By David M. Doyle and consisted of Dr. Avril Brandon, Dr. Joe Garrihy, r. Amina Adanan and Prof. Denis Bracken  The Irish Penal Reform Trust and  h Maynooth University School of Law and Criminology

The Irish Penal Reform Trust launched an independently commissioned exploratory research study on the rights and experiences of foreign national and minority ethnic groups in the Irish penal system on Thursday 27 April 2022. "Sometimes I'm missing the words": The rights, needs, and experiences of foreign national and minority ethnic groups in the Irish penal system were supported by the Irish Human Rights and Equality Commission (IHREC) under the Human Rights and Equality Grant Scheme 2020-2021. Very little information exists on the needs and lived experiences of minority ethnic and foreign national people in prisons and on probation in Ireland. This report aims to bridge that gap and consider these needs and experiences within the context of relevant policy and law. The report was commissioned by IPRT from the Maynooth University School of Law and Criminology.

The need for reform is outlined in 18 recommendations made in the report.

Findings from the research include: 

• Based on an analysis of the quantitative data provided by the Irish Prison Service (IPS), it was found that foreign nationals may receive longer sentences than Irish nationals for controlled drug offenses and sexual offenses.

• Further analysis, along with interviews from professional stakeholders, established that the IPS data – while including statistics on prisoners’ nationality – was deficient in the areas of ethnicity and religion of the prison population.

• Interview data revealed that there were significant challenges faced by foreign nationals and minority ethnic people in prison concerning access to services, respect for different religious backgrounds, as well as language and communication barriers.

• Experiences of racism at different stages of the criminal justice process had the effect of limiting trust with any part of the penal system.

Dublin: Irish Penal Reform Trust, 2022. 73p.

By The Irish Penal Reform Trust

Piecing It Together: Supporting Children and Families with a Family Member in Prison in Ireland assesses progress on a series of recommendations made by IPRT in "Picking up the Pieces" in 2012. These recommendations were made to Government, the Courts and Courts Service, the Irish Prison Service, the Department of Education, and media, among others. While the new report details some pockets of good practice in Ireland, it highlights a number of significant gaps, including: limited national recognition of the rights of children with a family member in prison; the continued lack of any national support services for these children; visiting conditions that are not child-friendly; limited data and research; and stigmatisation of these children and their families. As we approach the tenth anniversary of the 2012 report, IPRT calls for the implementation of these outstanding recommendations, as well as the new recommendations made in this report, by the relevant assigned stakeholders.

The recommendations made in the report are grouped into 7 overarching recommendations:

1. Increase National Recognition of the Rights of Children with a Family Member in Prison

2. Establish a National Support Service for Children and Families with a Family Member in Prison

3. Improve Prison Visiting Procedures and Conditions for Children and Families

4. Enshrine in Law and Practice the Principle of “Prison as a Last Resort” for Primary Caregivers

5. Improve Data Recording on Children Affected by Imprisonment

6. Challenge Stigmatisation of Children and Families with a Family Member in Prison

7. Promote and Facilitate Family Involvement during the Period of Imprisonment

Dublin: Irish Penal Reform Trust, 2021. 60p.

By the Irish Penal Reform Trust

 In recent years there has been increasing recognition of children of imprisoned parents as a specific group of vulnerable and marginalised children with particular needs and of the detrimental impact of parental imprisonment on them. While there has been less focus on the specific impact on children when their mother is sent to prison, several studies have found that, while less common, maternal imprisonment can be significantly more disruptive than paternal imprisonment. This is largely because women are more often the primary caregivers for their dependent children. When fathers are imprisoned, the mother usually continues to care for any children. However, studies have shown that when mothers are sent to prison, the family is more likely to be broken up, with children being placed with other family members or into State care. The impact of maternal imprisonment has wider implications as a result, including on the women themselves, their families, and the broader community. Despite the well-documented impacts of parental, and specifically maternal, imprisonment on children and the clear obligations within the international human rights framework to consider children when their parents or primary caregivers come into conflict with the law, there are very few court systems that actively require courts to consider children at sentencing or when determining pre-trial measures. Additionally, when mothers are sent to prison, there are significant data gaps globally in understanding the numbers of children impacted, and a corresponding lack of effort made to mitigate against the potential negative impacts on them. Where data is collected, it is usually facility-specific with no efforts to collate data nationally or coordinate responses across different agencies. The Irish Prison Service (IPS) and the Probation Service have identified the risks associated with maternal imprisonment, noting that, ‘[t]he outcomes for children whose mothers have experienced prison are of major concern. Children of women prisoners frequently exhibit several behavioral and psychological problems and there is an increased likelihood of them becoming offenders themselves.’ Despite this, there has been very limited examination of the numbers and experiences of mothers imprisoned in Ireland and their children. While the IPS, the Probation Service, and other associated agencies appear to recognize the need to support children of mothers in prison – indeed these agencies have made efforts to develop support programs – concern remains at the lack of attention given, at the point of sentencing, to the caregiving responsibilities of women and the best interests of their children. The findings of this research also point to a lack of national efforts to coordinate amongst different stakeholder agencies to reduce the negative impacts of maternal imprisonment on children

Dublin: Irish Penal Reform Trust, 2023. 52p.

By: Scrutinize and The Center on Race, Inequality, and the Law at NYU School of Law.

Increased focus on state judiciaries has significant potential to improve the criminal legal system. Recognizing the need for evaluation metrics for judges, this report pioneers a data-driven, evidence-based approach to assessing the judiciary. We analyze written appellate decisions to quantify individual trial court judges' decisions and impacts. This methodology transforms complex judicial texts into accessible data, creating metrics of judicial performance for use by policymakers and the public. This report introduces ‘excessive sentence findings’ as a method to assess individual judges’ decisions and their impact. In New York, appellate courts review sentences for excessiveness and can reduce them in the “interest of justice,” a rare and clear signal—from highly respected institutional actors—that a lower court judge made an exceptionally troubling choice. We identify lower court judges with sentences reduced by appellate courts for being excessive and calculate the total number of years reduced from those sentences. The study reveals patterns of repeated excessive sentencing by several specific judges, raising questions about judicial accountability in New York.

Key Findings:

• Sixty-five lower court judges were found to have engaged in excessive sentencing more than once between 2007 and 2023.

• The 12 judges with five or more most excessive sentence findings had their sentences reduced by a total of 1,246 years.

• Two judges had a total of 39 excessive sentence findings between them, with the appellate court reducing a total of 684.5 years from the sentences they imposed.

Recommendations:

• New York’s court system should increase its transparency by releasing detailed, judge-level sentencing data.

• New York’s court system should publish annual reports summarizing excessive sentence findings and detailing the judges involved, the legal arguments made, and the appeal outcomes.

New York: The Authors, 2024. 32p.

By Faiza Chappell

In the past decade, stakeholder groups have formed across the country to achieve higher-quality postsecondary education in prisons, enhance student outcomes, and push policy changes. This report describes the benefits of emerging stakeholder engagement strategies and trends in stakeholder collaboration. It also serves as a guide to building stakeholder coalitions in the field of postsecondary education in prison. Prison education programs (PEPs) are offered by institutions of higher education and postsecondary vocational institutions that have been approved to operate in a correctional setting. The U.S. Department of Education has requirements that PEPs must follow in order for incarcerated students to access Pell Grants. These requirements include input from a variety of stakeholders to evaluate PEPs and confirm that they are operating in the best interests of the students. After conducting a national scan of existing consortia, the Vera Institute of Justice (Vera) analyzed the information presented in this report from 23 consortia. Vera found that tapping into the expertise of various stakeholders is a crucial element in ensuring high-quality education practices for incarcerated students.

Key Takeaway

Stakeholder groups provide a foundation built on a common mission, with substantive achievable goals and structures for the work to thrive, allowing stakeholders to collaborate effectively. Stakeholder feedback is a critically important practice that should be at the forefront in the expansion of postsecondary education in prison.

New York: Vera Institute of Justice, 2024. 28p.

By Benjamin Heller Brian King Will McKeithen Chantal Polinsky 

Since the New York City Council voted in 2019 to close Rikers Island and replace it with four borough-based jails, corrections officers’ perspectives on their work have been largely absent from the conversation, even though they, too, will be impacted by Rikers’ closure. This report addresses that gap. From November 2023 to February 2024, Vera researchers conducted 30 in-depth interviews with 30 current and former corrections officers. Vera found that working at the New York City Department of Correction (DOC) takes an enormous physical and psychological toll on officers, and many of those interviewed reported that they stayed in the role because they felt it was their only path to financial security. There is an urgent need for city leaders to invest in career transition services to help DOC rightsize its workforce without inflicting economic harm on the current correctional workforce. To that end, Vera also spoke with five New York City-based workforce development experts to identify best practices for transitioning corrections officers to new fields. In addition, the interviews make clear that DOC must equip officers who continue working in the jails with the skills and support they need to maintain their own physical and emotional well-being while ensuring the safety of people incarcerated in the borough-based jails. The interviews led Vera researchers to several key findings: • Officers join DOC for the salary, benefits, and pension—and often feel trapped by them. Every officer interviewed said they joined DOC for the salary, benefits, job security, and path to early retirement. The salary, benefits, and pension at DOC allow officers without college degrees a path to financial stability. However, pathways like this are so rare, and career services so inaccessible, that officers routinely feel trapped in the job. • Harmful working conditions take a toll on officers’ physical and mental health. Officers reported poor physical and mental health as a result of the job. They blamed their intense work schedule for bad eating habits, lack of physical activity, poor sleep hygiene, stress, anxiety, trouble attending medical appointments, and difficulty balancing their work and home lives. As a result, nearly every officer said they would not recommend the job to friends or family. • Officers feel unsupported by management. Many officers said that DOC management does not help staff address physical and mental health needs, either proactively or after issues arise. Some of the officers Vera interviewed remarked that they felt like just a number to DOC. More than one said that management pressured them to return to work after injury before they were medically ready. Others recalled situations in which management urged them to ignore symptoms of trauma, depression, or post-traumatic stress disorder (PTSD) and return to their posts. • Favoritism determines scheduling, and by extension, well-being. Several interviewees said that a culture of favoritism permeates every aspect of the job—from facility and post placement to overtime assignments, misconduct write-ups, meal relief, and promotions. Participants attributed the problematic culture they experienced to leadership and said that it trickled down through the ranks, lowering morale, eroding camaraderie, and increasing absenteeism. • Officers struggle to identify transferrable skills they develop on the job. Interviewees struggled to identify skills they developed at DOC, with some saying they could not think of any skills that would be useful outside of a security setting. When pressed, most officers said their skills included interpersonal communication and situational awareness. • When they leave DOC, most officers stay in the security sector, though their interests are much more varied. Most participants felt that they were only qualified to go into security-related jobs. The majority of officers said they had colleagues who left DOC to join the New York City Police Department (NYPD) or to move to a different state and work for a different corrections department. When asked about their interests and career ambitions, however, interviewees mentioned film production, library sciences, hospitality, education, personal training, real estate, and more. Often, the barrier to pursuing these alternative career paths was not a lack of motivation, but rather a lack of resources and time. • New Yorkers seeking well-paid careers with low barriers to entry need more options. Corrections is one of too few well-paid career opportunities for New Yorkers without postsecondary degrees. Providing career transition services to current officers will help DOC rightsize its uniform workforce, saving public funds while helping officers find new opportunities that do not place such a burden on their health and home lives. There was a clear consensus among workforce development experts that to facilitate these career transitions, city leaders must fund a program that creates a series of talent profiles, maps them onto new career pathways, and mobilizes robust support to help officers successfully reskill themselves and prepare for the next phases of their careers. Such a program should be a model for future initiatives that engage New Yorkers without postsecondary education—who may struggle to find well-paid jobs—at the start of their career searches to connect them with opportunities that lead to well-paid employment. • Officers who continue working at DOC need better training and support to maintain their health and improve conditions in the jails. Officers who remain working in the jails need more support than they currently receive. When asked how DOC could support them more effectively, officers had many ideas. Improved training, particularly when it comes to interacting with people with mental illness; enhanced access to mental health support; equitable processes for assigning officers to posts and overtime; and ongoing feedback mechanisms that allow leadership to hear directly from officers will all help DOC ensure that it is supporting officers’ physical and mental well-being, which in turn may help improve jail conditions for incarcerated people. Ultimately, investing in career transitions for corrections officers is an opportunity to reduce jail spending and invest in community-based solutions that prevent crime in the first place. It can also improve the lives of corrections officers who work for DOC because they feel they have no other options. In addition, supporting officers who remain at DOC may help keep the traumatic conditions of Rikers Island from taking root in the borough-based jails.   

New York: Vera Institute of Justice, 2024. 18p.

By Niloufer Taber, Amanda Nowak, Maurice Smith,   Jennifer Yang, Celia Strumph   

Pell Grant restoration took effect on July 1, 2023, making incarcerated people in the United States eligible for need-based federal postsecondary financial aid for the first time in nearly 30 years. Since the launch of the Second Chance Pell Experimental Sites Initiative (SCP) in 2016, more than 45,000 incarcerated students have enrolled in SCP programs. Today, there are more than 750,000 people in prison eligible to enroll in a postsecondary program. As the landscape of postsecondary education in prison evolves, so does its potential. In this report, the Vera Institute of Justice offers a snapshot of national progress toward implementation using the interconnected domains of quality, equity, and scale through a “balanced scorecard” approach. Drawing on data collected from surveys to SCP colleges and corrections agencies, the report aggregates individual responses to evaluate the adequacy and the system of education offered to incarcerated people. The result is a snapshot of the progress colleges and corrections agencies have made over the first year of this new era of access and opportunity.

‍Key Takeaway: Serving students in prisons requires collaboration and cooperation across a range of stakeholders. Vera assessed quality, equity, and scale through data aggregated at the level of each jurisdiction. The measures in this report are an invitation

New York: Vera Institute of Justice, 2024. 64p.

By Lewis Mudge

 In April 2021, a transitional military council headed by Mahamat Idriss Déby took control of Chad following the death of his father, late President Idriss Déby Itno. This triggered demonstrations, including by civil society and opposition party members, to demand a return to civilian rule. The authorities violently cracked down on such protests which culminated on October 20, 2022, when thousands of people demonstrated against an extension of the transitional government by two years. On this day, remembered as “black Thursday,” security forces fired live ammunition at protesters, killing and injuring scores. Hundreds more were detained and transferred to Koro Toro, a high security detention facility managed by the government and located about 600 kilometers north of N’Djamena, the country’s capital, in the desert. Some detainees died en route to Koro Toro, others died in the prison. In “Worse than hell”: Death and Torture at Chad’s Koro Toro Prison, Human Rights Watch documents the serious human rights violations experienced by protesters during their transit from N’Djamena to Koro Toro and in the prison itself. Based on interviews with survivors and witnesses as well as on satellite imagery, it exposes abuses that former detainees, including children, detained in connection to the October 20 protests, faced from the start of their detention until their release. These include forced labor, torture and inhuman treatment and denial of medical treatment, sometimes leading to deaths in custody, as well as arbitrary detention and unfair trials. The report provides insight into the deplorable – and unlawful – prison conditions and management at Koro Toro prison and makes recommendations to Chad and its partners for redress.  

New York: Human Rights Watch, 2024.  98p.

By Mia Bird, Mia, Alissa Skog and Molly Pickard

 The California prison system is designed to house and provide rehabilitative services to people sentenced to prison for felony offenses. Although most people in prison are serving multi-year sentences, 39.6% of people released during the past ten years spent one year or less in prison custody. The proportion of people released after these short stays (of one year or less) increased from about one-third of all releases in 2014 to about one-half in 2023. In 2020 and 2023, the Committee on Revision of the Penal Code recommended that short prison stays of one year or less be served in county jails. This recommendation was designed to build on California’s Public Safety Realignment Act from 2011 which required people convicted of less serious felony offenses to serve their sentence in county jail instead of prison. The Legislature has not yet adopted this recommendation, but given the State’s focus on reducing prison system costs while maintaining public safety, it remains a policy option. In this fact sheet, we explore how the number and share of people released after short stays has changed over time in California. We also explore the demographic, offense, sentencing, and county characteristics of people who have short stays in prison. To do so, we draw on data from the California Department of Corrections and Rehabilitation (CDCR) for the years 2014 through 2023. KEY FINDINGS Short stays have increased as a share of all releases since 2014. Over the past decade, 39.6% of all people released from prison had stays of one year or less. However, the proportion of those with short stays increased over this period from 36.3% of all releases in 2014 to 49.5% of all releases in 2023 (Figure 1). During this period, 15.4% of people released had very short stays of six months or less. The share of people released with very short stays also increased, from 13.4% in 2014 to 21.2% in 2023. This increase in short stays was concentrated in the period following the COVID-19 pandemic. During the first year of the pandemic, people may have spent more time in jail before they were convicted, sentenced, and transferred to prison. This was due to delays in court processing and suspensions of prison transfers. In addition, public health releases to reduce the spread of COVID-19 may have also led to shorter stays in prison.1 The share of people released from short stays continued to increase in 2022 and 2023. It remains to be seen whether this trend will continue in 2024.   

Los Angeles: California Policy Lab, 2024. 7p.

By David Macdonald

Truth in Sentencing laws eliminates discretion in prison release. This decreases the incentive for rehabilitative effort among prisoners. I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona. Before prison, I found that sentences were reduced by 20% for TIS offenders. Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%. After release, I found offenders were 4.8 p.p. more likely to re-offend. I further find that recidivism and infraction effects are largest among drug and violent offenders. Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

Unpublished paper, 2024. 84p.

By Sian Galsworthy

In 2019 Joseph McCann was sentenced to 33 life sentences for committing violent and sexual offences whilst subject to supervision by the National Probation Service (NPS), following his release from prison on license earlier that year. The subsequent Serious Further Offence (SFO) report prompted an independent review from His Majesty’s Inspectorate of Probation (HMIP) which put forward several recommendations for change, to ensure the probation service could safely and effectively protect the public. This report presents the findings from an evaluation of His Majesty’s Prison and Probation Service (HMPPS) Complex Cases pilot within the East of England Probation Region. Complex Cases have been defined as cases that meet six of eight specified criteria, which deem them complex and challenging for Probation Practitioners (PP) to manage. The pilot process consisted of triaging those cases that met six of the eight pre-determined criteria. If the practitioner required further support with their case following triage, the case was then referred to and heard at a multi-disciplinary panel which consisted primarily of senior members of Probation and Prison staff who could advise on how to best manage the case. The pilot formed part of the commitment to address the recommendation (8) put forward in the Joseph McCann HMIP report which was to: “Ensure probation staff have adequate time to become familiar with complex cases for which they assume responsibility” (HMIP, 2020) This evaluation has explored the views and experiences of those who have participated in the Complex Cases pilot, to identify how its development and subsequent roll out has been perceived so far, and if there is any early/indicative learning which can be identified for future scale-up of the pilot. The pilot commenced in the Summer of 2021, it is still active and expanding across the pilot Probation Region.   The objectives of this evaluation were: 1. To explore what has been successful about the initial roll out of the Complex Cases Pilot 2. To explore which aspects of the Complex Cases Pilot require improvement 3. To explore the effects of the Complex Cases Pilot on Probation Practitioners sense of confidence in managing the complexities of the case and practice/case management

His Majesty’s Prison and Probation Service , 2024. 60p.

By Sarah Aukamp

Contraband in correctional facilities can create challenges for the safety of incarcerated people, staff, and the general public. However little is known about the factors that affect the types and amounts of contraband entering facilities. To address this gap, researchers from the Urban Institute and CNA Corporation conducted a study of prisons across six states and assessed the risk factors that correlate with the recovery of three types of contraband: drugs, cell phones, and weapons. This summary describes the findings of that study and presents implications for practice. Findings show that factors like a prison’s security level (e.g., maximum, minimum), population (e.g., size, gender), staff composition, and available programming (e.g., substance use treatment) were all correlated with the number of contraband recoveries. Some risk factors were found to be common to all types of contraband, whereas others occurred only with certain types. Understanding the facility-level characteristics that affect types and levels of contraband can inform interdiction efforts, creating safer facilities for all stakeholders.

Washington, DC: The Urban Institute, 2024. 4p.

By Anna Anderson

This National Consumer Law Center (NCLC) report provides an overview of the carceral medical debt problem and policy recommendations and solutions to address the issue. The report provides background on the nature of the carceral medical debt, including the complex healthcare needs of people who are incarcerated, what fees are assessed and why, how these fees impact health outcomes and lead to medical debt, how carceral medical debt affects families and reentry, and private equity and for-profit contractors’ roles in this problem. The report includes an extensive review of the common sources of medical debt and how these debts are collected. It details recent policy victories in the effort to eliminate carceral medical debt, as well as some troubling setbacks. The report concludes with consumer-focused policy reforms to address medical debt related to incarceration.

Boston: National Consumer Law Center, 2024. 46p.

By The National Consumer Law Center

Consumer protection laws apply to incarcerated people. However, because of incarcerated people’s limited and highly regulated contact with the outside world, they struggle to report consumer problems such as identity theft and fraud, as well as abusive practices perpetrated by the private companies that they must rely on for essential services and goods within correctional facilities. Barriers to reporting these problems can render consumer protections toothless for this vulnerable population. Government agencies and correctional facilities can take a meaningful first step towards alleviating these consumer harms by ensuring incarcerated people can easily submit complaints without having to rely on loved ones and advocates who are not incarcerated.

Boston: National Consumer Law Center, 2024. 5p.

By Antje du Bois-Pedain

The prevalent criminal justice practices in the U.S. have produced levels and patterns of incarceration that fewer and fewer politicians, scholars, and citizens care to support. There seems to be widespread consensus that the system is indicted as unjust by its outcomes no matter how these outcomes came about. But if that is so, how can it be turned back? Who should be eligible for release, and on what grounds? This article addresses the position of black prisoners serving very long sentences. Many of these prisoners are at risk of missing out under current legislative and administrative proposals designed to reduce overall levels of imprisonment. Partly this is because the wrong of mass incarceration is often understood as a wrong suffered at the collective level by what has come to be referred to as “overpunished communities.” It is unclear how the existence of that collective wrong affects the permissibility of continued punishment at the individual level. This article develops an argument that, at the individual level, being a black prisoner serving a very long sentence gives rise to a moral entitlement for a review of the need and justification for continued incarceration. The article outlines the basic shape of a clemency scheme devised especially for these prisoners as a moral imperative for a reform process intended to remedy penal injustice.

New Criminal Law Review (2021) 24 (4): 655–688.

By Brandon L. Garrett & Lee Kovarsky

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception. This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis classifies the decision-making by reference to three attributes: the form of detention at issue, the substantive right asserted, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes , 

110 California L. Rev 117 (2022)   

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.