By Christi M. Smith

The fact that the United States incarcerates more of its population than the rest of the industrialized world—and that racial and ethnic minorities are overrepresented in inmate populations—is common knowledge. Yet why we continue to over- incarcerate in light of a myriad of other strategies that appropriately respond to crime remains a mystery. Alternatives to incarceration are more cost-effective, efficient and provide better outcomes for accused law violators and communities. Alternatives also save precious law enforcement and judicial resources for more serious and violent offenders. The COVID-19 pandemic presented a unique opportunity for local jail administrators and their counterparts in the judicial process to pursue alternatives, as they were forced to critically analyze the need for pretrial confinement; reconsider length of stay upon conviction; and evaluate the appropriateness of returning to jail for bail, probation or parole violations. In conjunction with experience gained from the past 21 months of the pandemic, existing research demonstrates that it is time to reduce our overreliance on carceral strategies and address the factors that contribute to crime and non-compliance with judicial interventions. These evidence-based strategies can substantially reduce jail populations and the racial and ethnic disparities therein. Key Points: 1. COVID-19 disproportionately challenged local jail administrators who, compared to their state and federal prison counterparts, receive less physical, financial and medical support to manage a dynamic and constantly shifting inmate population that moves in and out of the community. 2. To mitigate viral spread inside of the jail and out into the community, criminal justice professionals worked quickly to reduce inmate populations using a variety of alternatives to incarceration for accused and convicted law violators. These alternatives disproportionately benefited white adults and highlighted the need for targeted strategies to reduce racial and ethnic disparities in the judicial process. 3. Crime rates did not increase during the time that alternatives to incarceration were used, thereby substantiating the benefits of utilizing various alternatives to incarceration to reduce jail populations, as well as racial and ethnic disparities in jail populations. Research indicates that these alternatives are more cost-effective, efficient and fairer than traditional judicial processing

R STREET POLICY STUDY NO. 250 January 2022, 8p.

By Chloe Anderson, Kyla Wasserman, Brit Henderson, with Erika Lewy

On January 1, 2017, the State of New Jersey implemented Criminal Justice Reform (CJR), a sweeping set of changes to its criminal legal system. With these reforms, the state shifted from a system that relied on money bail to a system that virtually eliminated the use of money bail and uses a risk-assessment tool that informs decision-making by generating scores based on an individual’s assessed risk of failing to appear at future court hearings and committing additional crimes if released. Additionally, CJR granted courts the option to detain people without bail until their cases are disposed, established a pretrial monitoring program, and instituted speedy-trial laws that impose time limits for case processing. The state’s goals were to improve fairness and reduce unnecessary pretrial detention while protecting public safety and ensuring that people continue to show up to their court hearings. While improving racial equity was not an explicit goal of the reforms, racial equity may be affected by reducing pretrial detention and eliminating the use of money bail. With support from the Robert Wood Johnson Foundation’s Policies for Action Program, the New Jersey Criminal Justice Reform Advancing Racial Equity (NJ CARE) Study sought to assess racial equity and perceptions of fairness in New Jersey’s criminal legal system after the implementation of the reforms to determine whether the reforms improved racial equity in the state. Furthermore, the study explored whether individuals who were navigating the pretrial system as defendants perceived it as fair. Their experiences and the reforms’ effects on racial disparities reveal valuable lessons about the effects of bail reform efforts on racial equity. The study employed a mixed-methods approach that included quantitative and qualitative methods, as well as participatory elements. The quantitative analysis found that CJR had a net positive impact on some outcomes for both Black people and White people. More people were issued a summons (rather than a warrant) and were immediately released following arrest, and people were released from jail more quickly following an arrest. Yet despite these positive impacts, racial disparities persisted throughout the pretrial system, to varying degrees. For outcomes that had larger disparities before CJR, there was no meaningful reduction in disparities. The largest disparities are seen at the front end of the pretrial system, in arrest rates and initial jail bookings. For the qualitative analysis, interviewees—who had experience navigating the state’s pretrial system as defendants—said that CJR’s elimination of money bail has improved the fairness of the system. Yet they also said the criminal legal system should consider each person’s voice and circumstances, treat each person with respect, be transparent, assign the least restrictive release conditions when possible, and employ diverse staff members. Taken together, the findings suggest that broad bail reform policies can reduce the footprint of criminal legal system involvement, but they may not be a salve for issues of equity broadly and racial disparities specifically. There are several potential approaches to improve racial equity, including programs or processes that reduce people’s initial contact with the legal system, incorporate procedural justice-informed techniques into policing to improve police-community relationships, elevate the voices of individuals who have experience as defendants, enhance the criminal legal system’s transparency and communication, employ the least restrictive conditions of release and offer supportive services, engage prosecutors in reform efforts, and employ a more diverse staff. As a next step, these potential approaches should be rigorously studied.

In a completely equitable society, individuals would not be any more or less likely to experience burdens during their interactions with societal systems just because of their race. However, historically explicit and implicit practices and policies across the United States reinforce racial inequity, and these racial disparities are observed in many social systems, including the criminal legal system.1 Racial disparities in the pretrial system—that is, the period from the point of arrest to a case’s resolution in a verdict, plea deal, or dismissal— have broad equity implications. Spending time in jail—sometimes even just a few days—is associated with a variety of adverse effects on physical and mental health, as well as on social determinants of health like employment, housing, and family ties.2 Jurisdictions across the country have made efforts to reduce their use of pretrial detention and improve perceptions of the system’s fairness through different types of reforms—most notably by reducing their use of money bail or using actuarial risk-assessment tools to guide release decision-making.3 However, relatively little is known about the effects of these reforms.

New York: MDRC , 2024. 87p.

By Louisa Treskon and Anna Kyler

For more than a decade, California has been enacting policy changes that are intended to lower the number of people who are incarcerated in the state. These policy changes include sentencing reforms and new funding streams for programs aimed at addressing underlying causes that can lead to incarceration, such as mental health and substance use disorders. Los Angeles County’s Reentry Intensive Case Management Services (RICMS) program, which began in 2018, is one such program. The RICMS program connects people who have been involved in the criminal legal system to community health workers who work at community-based organizations. Community health workers help people reintegrate into their communities by providing case management and connecting them with supportive services. This brief presents the results of a benefit-cost study of the RICMS program. The RICMS program comes with a cost, mostly borne by the state of California and Los Angeles County, since the program is publicly funded, as are many of the services it refers clients to. However, these costs could be offset by benefits such as reductions in participants’ involvement in the criminal legal system. Benefit-cost analysis provides a tool to compare these costs and benefits, which provides decision makers with a monetary lens through which to assess the potential effects of the program. The study, which is led by MDRC, is part of the Los Angeles County Reentry Integrated Services Project, a multiyear, multistudy evaluation of services that are offered by the Justice, Care and Opportunities Department (JCOD) of Los Angeles County.

New York: MDRC, 2024. 18p.

By The Global Commission on Drug Policy

The Global Commission on Drug Policy’s report, Beyond Punishment: From Criminal Justice Responses to Drug Policy Reform, exposes how punitive drug policies have driven mass incarceration and grave human rights violations. In 2023 alone, over 3.1 million people were arrested for drug-related offenses, with 20% of the global prison population detained for such crimes - nearly half for simple possession.

The report underscores the devastating consequences of prohibitionist policies, including over one million overdose deaths in the U.S. in the past two decades and 40,000 in Canada in just eight years. It also highlights systemic inequities, such as Indigenous peoples in Canada being six times more likely to face drug-related arrests than white counterparts. Furthermore, the report illustrates the disproportionate burdens on women and children, deepening cycles of poverty and marginalization.

It examines the broad spectrum of criminal justice responses to drug offenses, ranging from stop-and-search practices that disproportionately target marginalized communities to extreme measures like the death penalty and enforced treatment. These approaches often violate human rights, perpetuate stigma, and fail to address the root causes of substance use.

Offering a roadmap for reform, the report advocates for evidence-based strategies, including harm reduction measures (e.g., Overdose Prevention Centers, naloxone distribution, and safer supply programs), decriminalization and the legal regulation of drug markets. These approaches not only save lives but also reduce societal harms, foster dignity, and promote health and equity.

Geneva: Global Commission on Drug Policy, 2024. 56p.

By Johanna Higgs and Manith Chhoeng

In 2020, Amnesty International released a report detailing serious abuses against people held in drug rehabilitation centers and prisons in Cambodia, highlighting the severe overcrowding caused by the anti-drug campaign that began in 2017. As of March 2020, Cambodia’s prisons had an estimated capacity of 26,593, but the number of people held exceeded 38,990. Four years later, Cambodia’s Ministry of Interior reported that, as of March 2024, 45,122 people were imprisoned, with 21,644 (48%) held for drug offenses and 2,214 being minors. The General Department of Prisons' response to overcrowding has been to request the construction of new drug rehabilitation centers and prisons.

International standards, such as the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), and the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), call for detention to be used only as a last resort and promote non-custodial measures, particularly for women and children. Organizations working in Cambodia, like IDPC partner This Life (TLC), aim to address these challenges through programs that improve outcomes for at-risk youth and families. These initiatives align with international standards, advocating for alternatives to incarceration and providing support services.

While Cambodia’s Drug Control Law (2012) gives prosecutors and courts discretion to divert drug offenders from imprisonment in favor of "voluntary" treatment programs, it has not been effectively implemented to reduce detention or imprisonment. TLC offers programs that provide vocational training and family support to juveniles in conflict with the law, aiming to reduce recidivism and promote reintegration. The organization also engages with government ministries, law enforcement, and community leaders to create holistic solutions that strengthen Cambodia's justice system and support vulnerable populations.

There are alternative measures in place for children. The Juvenile Justice Law of Cambodia, promulgated on July 14, 2016, aims to protect the rights of children in conflict with the law, supporting their rehabilitation and reintegration into society. It also provides alternatives to detention, such as diversion, probation, community service, and mediation. This law is seen as a milestone in promoting and protecting children's rights in Cambodia, aligning with the Convention on the Rights of the Child and other international standards. Non-governmental organizations like This Life are committed to evidence-based interventions that promote human rights, reduce inequality, and create opportunities for marginalized communities. Their work complements the goals of the Juvenile Justice Law by focusing on the rehabilitation and reintegration of youth in conflict with the law.

Amnesty International, 2024. 18p

By Margaret Colgate Love

The problem of collateral consequences calls to mind Supreme Court Justice Oliver Wendell Holmes Jr.’s famous line: “The life of the law has not been logic: it has been experience.” U.S. criminal law itself is not theoretically pure. In the area of civil law, in particular commercial law, dozens of uniform laws are on the books, drafted by experts, many of which, such as the Uniform Commercial Code, have been widely adopted. But in a country where we evaluate criminal justice polices based on a melange of principles - retributivist, utilitarian, economic, religious, pragmatic, intuitive, and emotional - there is and could be no Uniform Penal Code.1 Criminal law is inconsistent across states, and even within states, in its underlying justification or rationale, and the reasons that particular rules or practices exist. The Model Penal Code has been widely influential, but—as designed—states adopted only the pieces they liked, and heavily modified them. Disagreement about how to treat someone who has been arrested or prosecuted after their criminal case is concluded is, if anything, even more intense. The collateral or indirect consequences of their experience may be divided into four main types: Loss of civil rights, limits on personal freedom (such as registration or deportation), dissemination of damaging information, and deprivation of opportunities and benefits, each of which may be justified and criticized for different reasons. Accordingly, criminal law practitioners and scholars disagree about the fundamental nature and purpose of collateral consequences. To the extent the public at large ever thinks about them, they also hold a range of views. There is no consensus about whether collateral consequences in general or particular ones should be understood as further punishment for crime or prophylactic civil regulation, as a reasonable effort to control risk or as an unconstitutional and immoral perpetuation of Jim Crow, or, perhaps, understood in some other way. Advocates, analysts, and lawmakers will never be in a position to argue persuasively “because collateral consequences rest on Principle X, it follows that they should apply in and only in Condition Y, and must be relieved under Circumstance Z.” Yet, the practical problem of collateral consequences looms large. With their massive expansion in recent decades, those who experience collateral consequences firsthand know that they cannot become fully functioning members of the community without finding a way to overcome them. The economic dislocations caused by the Covid-19 pandemic underscore the practical implications of collateral consequences: With individuals desperate for money and opportunity, and businesses hungry for workers, the need for a sensible policy to minimize employer concerns about risk is clear. And while there remains no compelling necessity for all states to have the same penalties for armed robbery or cattle rustling, collateral consequences are a national economic problem affecting whole communities that might justify a federal, or at least a uniform, solution. Fortunately, agreement on underlying principles is not required to agree on particular policies.2 Most Americans agree that people arrested or convicted of crime should not be relegated to a permanent subordinate status regardless of the passage of time, successful efforts at rehabilitation and restitution, and lack of current risk to fellow Americans. Finding ways to restore their legal and social status is a compelling necessity, given the array of collateral consequences adversely affecting tens of millions of Americans, their families and communities, the economy, and public safety itself. To adapt a line from Justice Anthony Kennedy’s 2003 speech on criminal justice to the ABA, too many people are subject to too many collateral consequences for too long. At the same time, substantial majorities likely agree that public safety requires excluding those convicted of recent criminal conduct from situations where they present a clear and present danger of serious harm. Even if it is impossible to identify a s

Washington, DC: Collateral Consequences Resource Center (CCRC) , 2022. 129p.

By Margaret Love & Rob Poggenklass

At the beginning of each year since 2017, CCRC has issued a report on legislative enactments in the year just ended, new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. These annual reports document the steady progress of what our 2020 report characterized as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. In the three years between 2019 and 2021, more than 400 new record reforms were enacted. Many states enacted new laws every year, and all but two states enacted at least one significant new law during this period. A full appreciation of the scope of this movement can be gained by reviewing the detailed 50-state charts and state-by-state profiles in our Restoration of Rights Project. The modern law reform movement reflected in our annual reports is bipartisan, grounded in and inspired by the circumstance that almost a third of adults in the United States now have a criminal record, entangling them in a web of legal restrictions and discrimination that permanently excludes them from full participation in the community. It reflects a public recognition that the “internal exile” of such a significant portion of society is not only unsafe and unfair, but it is also profoundly inefficient. We are pleased to present our report on new laws enacted in 2022, titled The Frontiers of Dignity: Clean Slate and Other Criminal Record Reforms in 2022. While this report shows that the legislative momentum gathering since 2018 slowed somewhat in the past year, there has still been progress, with more new laws enacted this year than in 2018 when the current reform movement took off in earnest.

Washington, DC: Collateral Consequences Resource Center, 2023. 43p.

Written by: Mirko Bagaric and Morgan Begg

Australia is experiencing both an incarceration crisis and an unprecedented worker shortage. Sensible criminal justice reform can address the excessive burden on Australia’s prison system while also filling persistent job vacancies in the economy.

According to the Australian Bureau of Statistics, there are currently close to 450,000 jobs vacancies across the economy, which is double the number of job vacancies prior to covid-19. And close to one in four businesses have stated they cannot find the workers they need.

In terms of incarceration, Australia’s incarceration rate has increased by 240 per cent since the mid-1980s. This is three times our population growth rate. This is much higher than other commonwealth countries with similar legal systems, such as Britain and Canada, and more than double European countries such as Germany, The Netherlands, and Sweden.

The total cost to the Australian taxpayer of imprisoning roughly 42,000 prisoners is now nearly $4.5 billion annually. Over-incarceration imposes an additional cost on Australians by depriving our labour force of healthy, working age men and women who could otherwise be productive members of society.

Approximately 42 per cent of prisoners have not committed sexual or violent offences. Not imprisoning these low-risk non-violent offenders would support, and most likely enhance, their rehabilitation. It has been firmly established that many employers are prepared to employ people who have prior convictions for non-violent and non-sexual offences, and when they do employ such people they are invariably pleased with their decision.

If Australian governments reformed sentencing so that non-violent low-risk offenders were not detained at taxpayer expense, but rather were put to work in industries which urgently need workers, this could deliver substantial benefits to taxpayers without compromising community safety.

If this reform had been implemented in 2021-22 as many as 14,000 young and healthy adults could have been added to the workforce, which would have improved government budgets by $1.95 billion in reduced incarceration costs and increased income tax revenue. If this reform had been implemented between 2016-17 and 2021-22, total budgetary savings would have been in the order of $10.4 billion in reduced incarceration costs for state governments and additional income tax revenue for the federal government.

Diverting low-risk non-violent offenders from prison and giving them the opportunity to work would enhance their lives and prospects, promote community safety, improve the economy through increased productivity, and reduce net government spending and debt.

Melbourne: Institute of Public Affairs, 2023. 20p.

By The Council of State Governments Justice Center

This report highlights the significant progress made in reducing recidivism across the country over the past 15 years. Since its passage in 2008, the Second Chance Act has invested in state and local efforts to improve outcomes for people leaving prison and jail, with a total of nearly 1,200 grantees from 48 states and 3 territories administering programs that have served more than 400,000 people.

For the past 15 years, federal, state, local, and Tribal governments, as well as community-based organizations across the country, have been focused on reducing recidivism like never before. This report answers three critical questions:

What progress has been made?

• State-level reincarceration rates are 23 percent lower since 2008.

• Fewer returns to custody mean that more people can rejoin their families and contribute in their communities. States are achieving these rates with changes in policy and by increasing opportunities and resources to support employment and connections to behavioral health care and housing.

How much could states save by reducing recidivism further?

• Despite the progress made, states will spend an estimated $8 billion on reincarceration costs for people who exited prison in 2022.

• Scaling effective policies and reentry models can reduce the economic and human costs of recidivism, while creating meaningful opportunities for returning people to contribute to the workforce and their families and communities.

Are states ready to expand their efforts?

• In the past year, leaders in Missouri, Alabama, North Carolina, and Nebraska have set bold goals for reducing recidivism and improving reentry outcomes further by 2030.

• The goals include increasing access to treatment, mental health services, and medical care; improving individuals’ economic independence by ensuring they are better prepared for work and have access to employment; and increasing access to stable housing.

New York: Council of State Governments Justice Center, 2024.