Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
By Jeremy Travis, Laurie O. Robinson, and Amy L. Solomon
This year, approximately 600,000 individuals—about 1,600 a day—will leave state and federal prisons to return home. In many ways, this movement from prison to home is unremarkable—released prisoners have been making this journey ever since prisons were built. As in the past, prisoners released this year will face unpredictable reunions with their families, temptations of the old neighborhood, difficulties reconnecting with the world of work, risks of relapse if they have a history of substance abuse, adjustments to the strictures of parole supervision, and challenges of going straight when the odds are high that they will commit new crimes and be returned to prison.
Yet the flow of prisoners from prison to community today is different, in several important respects, from similar journeys a generation ago. First, there are simply many more people leaving prison. In 1977, about 150,000 prisoners were released from state and federal prisons, a quarter the number released this year. Second, they have been away from family and community for a longer period of time, as the average amount of time served in prison increased from 22 months in 1990 to 28 months in 1998. Third, they are less likely to have participated in the prison-based programs such as vocational training, education or drug treatment, that would prepare them to face some of the challenges of life on the outside. Fourth, and, perhaps most important, they are returning to a relatively small number of communities. In these disadvantaged urban neighborhoods the significant increases in arrests, removals, incarceration and return of large numbers of individuals (mostly men) have placed severe burdens on the formal and informal networks that should sustain healthy communities. (For documentation of the dimensions of prisoner reentry, see J. Travis, A.L. Solomon, and M. Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, available at www.urban.org/pdfs/from_prison_to_home.pdf.)
Fortunately, the issue of "reentry" is getting much attention these days. At the national level, Congress appropriated $100 million in fiscal year 2001 to fund a number of interagency partnerships across the country designed to improve outcomes for returning prisoners. The Department of Justice has announced that the federal initiative will encompass five cabinet agencies (Justice, Labor, Health and Human Services, Education, and Housing and Urban Development), an unprecedented collaboration. The Council of State Governments has established a Reentry Policy Council to develop model programs and legislation to make prisoner reentry more successful. The American Bar Association Criminal Justice Section has created a Task Force on Collateral Sanctions to propose a new framework for assessing the growing maze of legal barriers to the reintegration of ex-offenders.
The interest in new approaches to prisoner reentry can be seen at the community level, as well. Police departments in cities from Boston to Spokane have spearheaded collaborations among employers, faith institutions, community corrections agencies, youth workers, prosecutors, and victims groups to reduce crime risks and improve life chances for returning prisoners. Community groups from Brooklyn to San Antonio have formed coalitions to support returning prisoners and their families. In Baltimore, the Enterprise Foundation has collaborated with the Maryland Division of Correction and others to create a Reentry Partnership that brings representatives of community development corporations into the prison to meet with prisoners returning to their communities to design support systems, including transitional housing, to make the journey home more likely to lead to successful reintegration and less likely to result in a return trip to prison.
The discussion about the consequences of prisoner reentry has also spilled over into other policy domains. Public health officials, noting the high levels of HIV and AIDS, tuberculosis, hepatitis C, mental illness, and other diseases in the prison population, are examining new strategies for linking returning prisoners with community health care systems. Specialists in child welfare and family policy, responding to the fact that 1.5 million minor children now have a parent in prison (up from one million in 1990), are asking how to improve child care when a parent goes to prison, and how to promote positive parent-child and intimate partner relationships during and after imprisonment. Proponents of electoral reform, observing that four million Americans are now barred from voting under state laws denying felons the franchise, are arguing for legislation to limit the impact of these bars.
The implications of this resurgence in interest in prisoner reentry for the world of criminal justice policy and practice are significant. Important lessons can be drawn from a "reentry perspective" on the issues of sentencing, corrections, and reintegration of ex-offenders. This perspective allows us to set aside, for another discussion, questions of punishment policy that have too often divided our discourse along ideological lines and focus attention on the consequences of those policies. This perspective provides, we believe, a common ground for a consensus around four propositions: that policymakers and practitioners should (1) better prepare prisoners for reintegration, (2) focus attention on the actual transition from prison to society, (3) reexamine the workings of the system of parole supervision, and (4) reassess the legal barriers to reintegration.
The overarching framework for our analysis is this simple but powerful truth: with rare exceptions, everyone we send to prison comes home. Over the past 30 years, successive bursts of sentencing reforms have succeeded in diverting public attention from an iron law of criminal jurisprudence: irrespective of the philosophy under which offenders are sentenced, they continue to live amongst us. They may be separated from society for a time in prison. They may live a restricted life while under community supervision. They may be subject to lifetime registration requirements as a sex offender. They may be barred from certain occupations or denied the right to vote. But, unless they are deported, executed or die in prison, a sentenced offender continues to live with us.
Preparing prisoners for the return to society
The inevitability of reentry should create a substantial consensus among conservatives and liberals alike to argue on behalf of more in-prison programs. Whether one favors more imprisonment or less, retribution or rehabilitation, determinate or indeterminate sentencing, the corollary of the iron law applies: If all prisoners come back, how can they be best prepared for the inevitable return home, both from the standpoint of their own rehabilitation and community safety? Because of studies showing their impact in reducing recidivism, both ends of the ideological spectrum should be concerned with the decline in prison programs, documented in a recent Crime Policy Report from the Urban Institute. ( See J.P. Lynch and W.J. Sabol, Prisoner Reentry in Perspective, available at www.urban.org/pdfs/410213_reentry.pdf.) In 1991, 43 percent of prisoners within 12 months of release had participated in educational programs, 31 percent in vocational programs. Six years later those percentages had dropped to 35 percent and 27 percent, respectively. Similarly, a smaller share of prisoners receive drug treatment than in the past. In 1997, only 10 percent of state inmates received treatment in a residential facility or by a professional counselor, down from 25 percent in 1991.
In years past, skeptics might have advanced the counterargument that these programs "don’t work." However, a growing body of research showing that these interventions can reduce future criminal activity and other negative behaviors such as substance abuse has undermined that argument. As this research becomes more refined, and better identifies the types of interventions that work best for different categories of offenders, it becomes increasingly difficult to take the position that prisoners should sit idly in prison. If cost-effective programs can reduce the chances that a released prisoner will commit new crimes, why not make that investment? This argument becomes more compelling as prison populations are leveling off in some states, allowing corrections planners to focus less on prison construction and more on the "product" of imprisonment, the returning prisoner.
Focus on the "moment of release"
A second policy lesson of the reentry perspective is that we need to recommit our energies to transition planning. For a variety of reasons, there has been a loss of focus on the need to plan the transition from prison to community for each individual returning prisoner. Under the philosophy of indeterminate sentencing, one of the functions of the parole board was to ensure that each prisoner had a tailored release plan—a place to live, a job or job prospects, and, where possible, a family ready to accept him. Now, however, the role of parole boards has been sharply curtailed. As a consequence of the abandonment of the indeterminate sentencing framework in a number of states, only 26 percent of prisoners released in 1998 were released by parole board decisions, down from 39 percent in 1990. Conversely, in 1998, 40 percent were released because they reached their mandatory release date, up from 29 percent in 1990.
Furthermore, a large number of individuals released from prison are released without legal supervision, having served their full term behind bars. Of the more than 600,000 prisoners returning home this year, about 130,000 of them will simply be released—they are not on parole, have no parole conditions, report to no parole officer. At least some of these prisoners will be among the highest risk offenders, having committed such a serious offense or behaved so poorly in prison that they are not eligible for early release. In other words, some of the "max-outs" are among the worst risks in terms of community safety. At the other end of the spectrum, some low-risk offenders are also released without supervision, a policy that may be appropriate in terms of resource allocation, yet problematic in terms of reintegrating these persons into the community.
When asked about the release of unsupervised offenders, corrections officials often take the view that they have no responsibility to ensure that these prisoners are connected to health care, housing, family, or work because these former prisoners are no longer the responsibility of the criminal justice system. From a community perspective, this view is very shortsighted—these prisoners still come home. A renewed focus on transition from prison—irrespective of the prisoner’s legal status upon release—could enhance a number of important community outcomes such as employment levels, housing, connections to health care, functioning families, reduced drug use, and less crime.
Transition planning need not be a complex activity, but it does require organizational commitment and creative collaborations. Take health care as an example. Inmates generally receive adequate health care while in prison, but a focus on reentry asks a different question: Has the health care system in prison created linkages with the health care system in the returning prisoner’s community to ensure continuity of care? Or take housing. As prisoners move from a prison environment where housing is paid for by the taxpayer, is there not a public interest in ensuring that they have housing waiting for them upon release so they do not soon return to the high-cost prison cell? The Enterprise Foundation’s experiment in Baltimore is finding that a significant portion of returning prisoners do not have adequate housing, so the community development corporations in the consortium are making transitional housing available to help prisoners get their feet on the ground. Or take drug treatment. A study by the Vera Institute of Justice in New York City found that prisoners participating in prison-based drug treatment programs were often required to go to the end of a long waiting list for community-based drug treatment. This period poses a very high risk of relapse, so why not put prisoners on the list while they are still in prison? Or take the simple matter of identification. To obtain a job, a driver’s license, or various governmental benefits, a former prisoner needs identification. Why not make sure that everyone leaving prison has a state-issued ID card?
Embracing the goal of successful transition requires a new commitment by corrections agencies and new partnerships with the community-based organizations that can help make transitions succeed.
Rethinking parole supervision
A third lesson from the reentry perspective is that the system of parole supervision and parole violations is long overdue for critical examination. Over the last 20 years, while the states have been focusing on a number of sentencing reforms designed to limit judicial discretion and promote "truth in sentencing" and much public debate has focused on the broad question of abolishing parole, we have created, in essence, a second, virtually invisible sentencing system that sends large numbers of people back to prison for parole violations. Consider this profound shift in the profile of the population entering prisons: In 1980, about 17 percent of incoming state prisoners (or 27,177) were admitted for parole violations. By 1999, that percentage had risen to 35 percent, representing 197,606 individuals who were returned to prison either for technical violation of a parole condition or conviction for a new crime.
There is enormous variation among the states in terms of parole policy. The first dimension of variation concerns the decision whether to place released prisoners on parole in the first place. In some states, such as California, Oregon, Rhode Island, and Wisconsin, more than 95 percent of all prisoners are placed on parole supervision when they leave prison. In other states, such as Florida, Massachusetts, Oklahoma, Nebraska, and Virginia, more than half of state prisoners are released "unconditionally," with no supervision at all. It follows, of course, that those states with fewer former prisoners under supervision have a smaller pool of prisoners who are "at risk" of being sent back to prison for a parole violation. This "risk of violation" depends on a number of factors—parolee behavior, parole officer discretion, and state policies and practices around surveillance, enforcement, and the decision to sanction violators to additional prison terms. There is enormous variation among states along these dimensions as well. In California, for example, a high portion of its (large) parole population is violated each year. As a result, 65 percent of the incoming prison population—some 88,000 prisoners in 1998—are parole violators. In Florida, on the other hand, a smaller share of its (relatively small) parole pool is violated and returned to prison. Consequently, parole violators in Florida account for less than 10 percent of the state’s prison admissions each year.
In short, our national experiment in state sentencing reforms has resulted in a natural experiment, testing different approaches to a fundamental criminal justice policy question: Why, how, and for how long should a released prisoner remain under supervision of the criminal justice system? Unfortunately, these policy experiments are being conducted in a research vacuum. Little is known about the effectiveness of supervision. There is virtually no research on the basic question whether parole supervision is effective at reducing criminal behavior. There is a scant literature on the exercise of discretion by parole officers. There are few studies of the jurisprudence of parole violations. In our view, a system that sends hundreds of thousands of people to prison each year should be examined through the same critical lens as any other sentencing system. Such a review would ask the same questions posed by sentencing commissions and other reform efforts over the past three decades: Are like cases treated alike? Is there racial disparity in the system’s response to the same underlying behavior? Is there geographic disparity between urban and rural communities? Is the new punishment proportional to the underlying misconduct? Are due process rights adequately protected? Does the system allow for consideration of mitigating or aggravating factors? Are people being returned to prison for one reason—a purported technical violation—merely because there was insufficient proof to convict them of a new crime?
This review of parole supervision and violation policies could result in a more systematic approach to the critical decisions made in this part of the criminal justice system: Have the offenders engaged in conduct that constitutes a violation of their parole conditions? If so, should their parole be revoked? If so, what is the appropriate sanction? If the appropriate response is further imprisonment, how long should this new incarceration last? We can imagine a sentencing grid, very similar to that used for "front end" sentencing that would apply to this "back end" behavior. As with sentencing guidelines, a sentencing commission, legislature, or parole agency could specify the kinds of punishments to be meted out for certain violations, with upper and lower bounds, perhaps further defined by the extent of the offender’s prior record.
The key policy objectives here are (1) to bring this system of adjudication and punishment out into the open, (2) develop guidelines to reduce disparities, and (3) tailor the imposition of the criminal sanction to the underlying behavior. These goals should be pursued within the broader framework of the iron law of criminal jurisprudence. Because almost everyone who is supervised eventually comes off supervision and will live amongst us, the ultimate objective is to enhance the odds of successful reintegration.
Reassessing the network of collateral sanctions
The fourth lesson from the reentry perspective is that we should take a fresh look at the vast and expanding network of legal barriers that impede successful reintegration of ex-offenders. American jurisprudence has long recognized the concept of "civil disabilities," or collateral consequences that follow a criminal conviction but are not imposed by the sentencing court. Two classic examples are prohibitions against felons working in certain professions and disqualification of felons from voting.
During the past 20 years, however, Congress and state legislatures have significantly increased the number and reach of these disabilities. For example, in the late 1980s and 1990s, Congress passed laws that permit the deportation of resident aliens based on a single criminal conviction, require barring individuals with drug-related felony convictions from receiving federally funded public assistance and food stamps, require public housing agencies and providers of Section 8 housing to deny housing to individuals convicted of certain offenses, and suspend eligibility for student loans for those convicted of drug-related offenses. (An update of the federal law section of the survey, "Civil Disabilities of Convicted Felons: A State by State Survey" was prepared in November 2000 by the Office of the Pardon Attorney at the U.S. Department of Justice.)
At the state level, the reach of the felony conviction has been extended significantly, as well. Compared to 15 years ago, more states now disqualify felons from voting, restrict firearms registrations, disqualify convicted felons from holding public office, and accelerate the termination of parental rights for children who have been in foster care for 15 of the most recent 22 months (e.g., notably less time than the average prison sentence). Most dramatic has been the increase in sex offender registration statutes. In 1986, only eight states required released offenders to register. Now all states do, and 12 states mandate lifetime registration. (For further discussion, see Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, M. Chesney-Lind and M. Mauer, eds., forthcoming, 2002.)
These collateral sanctions have far-reaching consequences for our society and raise fundamental questions about the status that ex-offenders should be granted once their criminal sentences have been completed. For example, in the states of Alabama, Florida, Iowa, Mississippi, New Mexico, Virginia, and Wyoming about one-quarter of African-American men are barred from voting for the remainder of their lives because they have been convicted, even if years earlier, of felonies. How can they reclaim their role in society if they cannot exercise the most basic right of citizenship? What is the societal benefit of the lifetime bans in these states, and why don’t those states follow the example of other states and limit the voting disqualification to the term of the criminal sentence?
Or consider the recent federal enactments that cut offenders off from the remainder of the social safety net by denying them access to public housing, education benefits, food stamps, welfare (now called Temporary Assistance to Needy Families, or TANF), drivers licenses, etc. Has our nation, perhaps unwittingly, embraced a social policy that forever condemns criminal offenders to a diminished social status? And are we jeopardizing future public safety by making it so much more difficult for these ex-offenders to succeed?
One national organization that has shone a spotlight on this area is the American Bar Association. The ABA Task Force on Collateral Sanctions, in a report presented to the ABA Criminal Justice Standards Committee in November 2001, has proposed four common sense measures that will encourage state legislatures, practicing lawyers, sentencing judges and, most important, criminal defendants to consider the consequences of this new maze of barriers to reintegration. First, the task force recommended that all mandatory collateral sanctions should be codified and collected in one place in state and federal statutes. This might be called a "truth in legislating" recommendation—if a legislature intends that consequences follow a criminal conviction, those provisions should be readily available, codified along with other criminal sanctions. Second, the task force recommended that all collateral sanctions should be made known to the offender at the time of plea or sentencing. This idea follows the maxim that a decision to plead guilty should be made by a defendant who is aware of the consequences of this decision.
Third, the task force recommended that the sentencing court should take these collateral sanctions into account in calculating the overall sentence. For example, a plea of guilty may result in consequences such as deportation that may be far more onerous than anything the judge could impose. This proposal is also consistent with the underlying notion of the "truth in sentencing" movement, namely that actual sentences should be known to public and parties alike, not imposed or modified out of public view.
Finally, the task force recommended that states create accessible avenues for offenders to seek relief from these sanctions. In individual instances, a particular sanction may work a terrible injustice and offenders should be able to ask a court or administrative tribunal to secure an exception from the general rule. (For a discussion of why collateral consequences should be a serious concern to prosecutors, defendants, and the criminal justice system, see Margaret Colgate Love, Deconstructing the New Infamy; Robert M.A. Johnson, Collateral Consequences; Webb Hubbell, The Mark of Cain, 16 (No. 3) Crim. Just. 30–35 (Fall 2001).)
Although the ABA Criminal Justice Section Council and the ABA House of Delegates have yet to consider these recommendations, some version of the task force’s proposals should be adopted. With the voice of the bar behind this agenda, there is a good chance that several state legislatures will move in this direction. Once the issue has been brought into the light of day, a fair and open discussion can result in sensible restraints on the complex and often hidden network of collateral sanctions.
The contours of a new set of criminal justice policies that will shape our approaches to the punishment and reintegration of offenders may well be emerging. Why are we optimistic? For starters, the stunning reality that crime rates are now at their lowest levels in a generation relieves some of the emotional heat from the "tough on crime" debate, allowing a more measured conversation that takes into account a discussion of "what works." Further, after 30 years of relentless growth, the prison population in America is stabilizing and actually declining in several states, allowing state policymakers to focus on more than prison construction. Finally, and quite ironically, the new attention to the phenomenon of prisoner reentry—attention to the consequences of our fourfold increase in the rate of imprisonment in America—is bringing together diverse groups and varied ideological perspectives. This discussion has breathed new life into some of the oldest issues in criminal justice policy: How do we prepare prisoners for the inevitable return home? How do we manage the transition from prison both to ensure community safety and help get offenders back on their feet? How do we supervise them after release? How do we ensure their successful reintegration into society? With a little luck, we will learn some lessons from mistakes in our recent past and reform some outdated and counterproductive policies. With a lot of luck, we will build a new foundation for testing innovative approaches to these important questions.
Jeremy Travis is a senior fellow at the Urban Institute and former director of the National Institute of Justice. Laurie O. Robinson is a senior fellow at the Jerry Lee Center of Criminology, University of Pennsylvania, former assistant attorney general for the Justice Department’s Office of Justice Programs, and former director of the ABA’s Criminal Justice Section. Amy L. Solomon is a policy associate at the Urban Institute. The views expressed in this article are those of the authors, and should not be attributed to the Urban Institute or the University of Pennsylvania, their trustees or their funders.