Revising Policies That Exacerbate Socioeconomic Inequalities and Redirecting Public Spending Toward Crime Prevention and Drug Treatment
While the criminal legal system is not well-positioned to address the socioeconomic inequality that contributes to differential crime rates, it should not aggravate these problems. Advocates have had success in downsizing criminal penalties and redirecting savings towards community safety, as well as limiting the collateral consequences of criminal convictions and associated fines and fees.
Limiting Fines and Fees
The Department of Justice recommends alleviating the burden of fines and fees by creating penalty-free payment plans or amnesty periods where individuals can have such outstanding debt waived, as some jurisdictions have done. For example, Minnesota and Iowa are advancing debt relief by setting up a payment plan for overdue court debt to help drivers avoid license suspension. Atlanta and Milwaukee are experimenting with warrant clearances that allow those with outstanding minor offenses and traffic violations to resolve their cases without risk of arrest or failure-to-appear fees. San Francisco Superior Court no longer suspends defendants’ driver’s licenses for their failure to pay fines and fees.
Other measures address high costs during incarceration. Signed into law in 2023, the Martha Wright-Reed Just and Reasonable Communications Act expands the Federal Communications Commission’s power to reduce the exorbitant phone and video call costs for incarcerated people and their families. California, Colorado, Connecticut, Massachusetts, and Minnesota have made all calls from their prisons free, New York City and several California counties have done the same for their jails, and the organization Worth Rises is pursuing similar reforms around the country. By helping people to stay connected with their families and support networks, these reforms will support rehabilitation and reentry.
Pushing for Fair Wages
Incarcerated workers produce goods and services amounting to over $11 billion every year, yet they remain unfairly compensated for their labor, with average nominal wages even lower today than they were in 2001. There is some hope for reform as momentum builds to right this wrong. The Fair Wages for Incarcerated Workers Act, introduced by Senator Cory Booker in 2023, would extend the protections of the Fair Labor Standards Act of 1938, including a federal minimum wage, to incarcerated workers.
In 2018, Colorado became the first state to amend its state constitution and remove language allowing “slavery and involuntary servitude” as punishment for a crime. Similar constitutional amendments have passed in Utah, Nebraska, Vermont, Oregon, Alabama, and Tennessee, and residents of Nevada and California are expected to vote on like-minded revisions in 2024. If duly implemented, these amendments would ban forced and unpaid labor among incarcerated workers; however a class action lawsuit filed in Colorado in 2022 highlights that incarcerated individuals there continue to be forced to work under threats of punishment including losing family contact privileges and being moved into solitary confinement.
Limiting the Collateral Consequences of Criminal Convictions
Employment
To reduce employment barriers for those with criminal records, many states have revised their occupational licensing requirements. In addition, 37 states, 150 cities and counties, and the federal government have passed laws or issued administrative orders to “Ban the Box”—removing the question about conviction history from initial job applications and delaying a background check until later in the hiring process. These fair-chance reforms often apply only to public sector employers, but the National Employment Law Project reports that many states—including Hawaii, Illinois, and Washington—and cities and counties—including Los Angeles and Waterloo, IA—extend these laws to private sector employers as well. California law also now allows people with most felony convictions to automatically seal their records if they complete all terms of their sentence and remain conviction-free for at least four years, so that it does not appear on criminal background checks. Nearly all states have some policy in place that allows for sealing or expunging one’s record. However, the onerous filing fees and long processing times associated with the process often limit these policies’ impacts.
While some studies suggest that employers discriminate more against all Black job applicants without information about who has a criminal record, some experts emphasize the benefits for the vast numbers of Black job seekers who have criminal records and call for other reforms to tackle broader forms of hiring bias.
Social Welfare
Advocates have also been successful in removing another barrier to reentry, which primarily affect low-income women of color: denial of federal cash assistance and food stamp benefits for people convicted in state or federal courts of felony drug offenses. The 1996 Personal Responsibility and Work Opportunity Reconciliation Act that created the ban also permitted states to opt out or modify its terms. As of December 2023, 29 states and Washington, DC, do not impose bans on Supplemental Nutrition Assistance Program (SNAP) benefits for people with a felony drug conviction and 25 states and the District allow people with felony drug convictions to access Temporary Assistance for Needy Families (TANF) benefits. Advocates continue to seek to fully eliminate these restrictions at the federal level, through the RESTORE Act and reforms to the Agriculture Improvement Act (known as the Farm Bill).
Housing
Advocates are also addressing housing insecurity for people with criminal histories in private and public housing markets. In 2011, the federal Department of Housing and Urban Development (HUD) began urging public housing authorities to broaden admission criteria to help people released from prison reunite with their families, and later prevented the use of arrest records for screening residents. In 2016, HUD advised providers in public and private markets that issuing blanket bans on people with criminal histories violates the Fair Housing Act and provided guidance to those who continue criminal records screening. In 2022, HUD advised private housing providers to not use criminal histories to screen tenants for housing due to their racially disparate impact and because criminal histories are not reliable predictors of whether someone will be a good tenant. Lawsuits in New York City, Chicago, and enforcement actions by federal and state agencies in Louisiana, Connecticut, and Virginia have also tackled discriminatory screening policies. New Jersey now bans landlords from asking about criminal histories until after they have conditionally approved a housing application, narrows how far back a record can be used as a basis for a denial, and requires that they explain any subsequent rejection in writing and give potential tenants an opportunity to respond.
Voting Rights
States are also reinstating voting rights and improving democratic representation. Since 1997, 26 states have expanded voting rights to people with felony convictions. As a result, over two million Americans have regained the right to vote. Washington, DC, has joined Maine, Vermont, and Puerto Rico in permitting people in prison to vote.
But 4.6 million Americans—most of whom are not incarcerated—remain barred from voting due to a felony conviction. And the hard-won reinstatement of voting rights is precarious in some states. For example, over a million people were expected to regain their voting rights after Floridians overwhelmingly passed Amendment 4 in 2018, allowing most people who had completed their sentences to vote. But the state legislature and governor undermined this referendum by conditioning re-enfranchisement on the payment of court-ordered monetary sanctions, blocking access to the majority of those whose voting rights had been restored. In Virginia, Governor Glenn Youngkin rolled back an automatic voting rights restoration process that had been used by his predecessors for over a decade.
In August 2023, advocacy organizers, academics, researchers, communications specialists, and more gathered together at The Sentencing Project’s Civic Power 2023 Convening to build momentum on recent efforts to expand the vote and challenge fifty years of mass incarceration.
In addition, in the absence of corrective action by the U.S. Census Bureau, several states have taken action against prison gerrymandering by counting imprisoned people as residents of their home address – often located in urban areas – rather than their prisons—which are often located in rural areas. The switch in how incarcerated people are counted influences financial and Congressional apportionments and thus helps prevent the dilution of the political power of communities most impacted by incarceration.
Contracting Criminal Penalties and Expanding Community Resources
In two states, voter referendums led to contraction of criminal penalties and reinvestment of funds that would have been used for incarceration. First, California voters in November 2014 approved Proposition 47, which reclassified a number of low-level offenses from felonies to misdemeanors. This reform reduced the state’s overall level of arrests, jail bookings, and incarceration. It also allocated a significant portion of state prison savings each year to preventing crime from happening in the first place. This includes investments in mental health and substance abuse treatment, programs to reduce school truancy and prevent dropouts, and support for victim services. More recently, Oregon voters approved Measure 110 in 2020, decriminalizing possession of small quantities of all drugs and applying the state’s marijuana tax revenues to expand treatment and recovery services. However, Oregon’s delayed rollout of treatment services as part of Measure 110 has led to calls for the law to be repealed and has elicited concerns from some states considering similar reforms.
In 2021 and 2022, Congress and federal agencies also increased investments in harm reduction and community-based violence interruption programs. But the balance of public investments remains heavily in favor of punishment over prevention and some public health approaches have not been sustained.
Investing in Justice-Impacted People’s Health and Education
The White House Office of National Drug Control Policy is encouraging states to use Medicaid funds to provide mental health and drug treatment in jails and prisons. A 2018 federal law allowed states to reconnect incarcerated people with Medicaid benefits, and California is the first to adopt the change, by providing certain Medicaid benefits to incarcerated individuals 90 days prior to their release. The First Step Act of 2018 requires the federal Bureau of Prisons to expand access to medication for opioid use disorder (MOUD). However, the agency has struggled with implementation. Rhode Island has led the nation in providing MOUD to its incarcerated population.
The main educational investments have come in the form of college access. The Second Chance Pell pilot program created in 2015 allows colleges and universities to offer incarcerated students Pell-Grant-funded postsecondary education. In 2020, Congress restored Pell eligibility to people in prison, with broad eligibility having begun in summer 2023. Likewise, the criminal history question was removed from the Common Application for undergraduate admission in 2018, although individual universities often still make this inquiry.
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