Chapter 13
1. The Massachusetts state legislature appointed a commission to investigate which claims?
2. What were some of the accomplishments of Dorothea Dix?
3. Who were two most influential individuals during the second-wave reform of mental illness, and what did they contribute?
4. What was the purpose of deinstitutionalization policies?
Chapter 14 
1. What are gender-responsive practices?
2. What is the gendered pathways perspective?
3. What are the arguments for gender-specific policies?
4. What are the goals of prison classification systems?
Chapter 15
1. Restorative justice takes what kind of approach?
2. What are some of the significant reforms achieved by the victim’s rights movements? Name at least two.
3. In terms of responsibility, what are the differences between the restorative process model and the due process model?
4. What is the purpose of using victim impact panels?
Chapter 16
1. What are the premises of the Three Strikes laws?
2. What did the second strike provision of the Three Strikes law in California require?
3. What are wobbler offenses?
4. What are the two forms of discretion that can be used by prosecutors when dealing with an offender who has strikes?

Criminal Justice Responses to the Mentally Ill
Henry F. Fradella
Rebecca Smith-Casey
Mentally ill criminal offenders often attract substantial attention from a broad cross section of society, particularly in the media. One of the most famous cases in history involving a mentally ill offender is the 1981 assassination attempt on President Ronald Reagan by John Hinckley Jr. Hinckley, who was diagnosed with schizophrenia, was found not guilty by reason of insanity in 1982 and since that time remains under institutional care at St. Elizabeth’s Hospital in Washington, DC. It does not take an assassination attempt on a U.S. President, however, for the media to devote significant attention to the crimes committed by mentally ill offenders, or those presumed to be. Consider the following recent cases:
Just before Christmas of 2012, 20-year-old Adam Lanza committed the most deadly school shooting spree in U.S. history. Armed with three of his mother’s guns, he killed 20 children and 6 adults inside an elementary school in Newtown, Connecticut, before turning a gun on himself. Details about his mental status remain fuzzy, but news reports suggested that Lanza committed these acts after learning his mother was preparing to commit him to a psychiatric facility. But, much of what was reported in the news was either hearsay or conjecture. As of this writing, the fact is that it is not yet known whether Lanza had a history of psychiatric illness or if he had been exhibiting signs of a psychotic breakdown. Yet, reports of Lanza’s purported mental status filled speculative media accounts of his heinous crime.
In the summer of 2012, James Holmes killed 12 people and wounded 58 others inside an Aurora, Colorado, movie theater during a screening of The Dark Knight Rises. As of this writing, his case is pending, but his defense attorneys represented to the court that Holmes was mentally ill at the time of the shooting massacre and, therefore, they intend to litigate an insanity defense. In fact, before Holmes dropped out of a PhD program in neuroscience at the University of Colorado’s Anschutz campus, he sought mental health assistance from professionals associated with the university’s mental health services. Details of Holmes’s mental status have not yet been made public, but any mental illnesses revealed are likely to play a central role in his defense. Moreover, there will surely be significant questions about the civil liability of the university employed mental health professionals for their actions (or inactions) after meeting with Holmes and assessing his potential dangerousness.
In 2011, Jared Loughner opened fire on a crowd of people in a Tucson, Arizona, shopping center parking lot. The shooting killed six people, including a federal judge, and injured 13 others, including U.S. Representative Gabrielle Giffords, whose treatment was followed intently by the media up until her resignation from her congressional seat in 2012. Loughner had been diagnosed with schizophrenia. He spent more than a year and a half in a secure mental hospital where mental health professionals worked to restore his competency to stand trial. In August 2012, a federal judge found that his competency was restored through treatment and then accepted Loughner’s guilty plea. He was subsequently sentenced to life in prison without the possibility of parole.
In April 2007, Seung Hoi Cho, who had been treated over a period of time for a variety of psychiatric symptoms, embarked on a shooting spree at Virginia Tech University, killing 32 people and injuring dozens more. At various times in his life, Cho had been diagnosed with major depression, social anxiety disorder, selective mutism, and an otherwise unspecified mood disorder.
In 2001, Andrea Yates killed her five children by drowning them in the bathtub. Although diagnosed with postpartum depression and postpartum psychosis, Yates was initially convicted of five counts of murder. Her convictions were set aside by an appellate court when it was revealed that a mental health expert falsified evidence in the case. On retrial, she was found guilty by reason of insanity and committed to the North Texas State Hospital, where she remained until 2007, before being transferred to a minimum security hospital.
The interplay between the media and criminal justice may be greater today than ever before— between the 24-hour news cycle’s unquenchable thirst for reporting sensational crimes and Hollywood’s seemingly endless depiction of crime stories in television and film (Surette, 2011). But, other factors beyond the media contribute to the pervasive narratives of offenders with mental illnesses, such as the prevalence of mentally ill offenders committing crimes, the lack of access to mental health services that might prevent mentally ill people from committing crimes, and the poor outcomes that result from the way that those offenders are treated.
The Back Story: Historical Foundations
Since the founding of the United States, people with serious mental illnesses (SMIs) were often confined in jails rather than hospitals. That slowly began to change in the 1820s and 1830s with early reform efforts in Massachusetts. Between 1840 and 1880, the first wave of major treatment reforms for the mentally ill had taken firm root. Advances in the behavioral sciences in the early twentieth century spurred a second wave of reforms that produced little fruit. Advances in psychiatry in the 1950s and 1960s ushered in a third wave of reform efforts that produced profound effects, most notably the advent of psychotropic medication that allowed the mentally ill to lead lives outside the walls of institutions. But, the unintended consequences of those reforms led to the current situation, namely with hundreds of thousands of incarcerated inmates who have SMIs that not only affect their behavior, but also impact the lives of correctional officials, the other inmates, and the courts (see Fradella, 2003).
First-Wave Reform Efforts: From Jails and Prisons to Asylums
In the early part of the 1800s, a Massachusetts minister, Rev. Louis Dwight, began a crusade to improve the shockingly inhumane living conditions of mentally ill offenders when he delivered Bibles to prisoners. His efforts led the state legislature first to appoint a commission to investigate his claims, and then to enact a law making it illegal to confine the mentally ill in jails rather than in hospitals (Grob, 1966, as cited in Torrey, Kennard, Eslinger, Lamb, & Pavle, 2010). A few years later, Massachusetts constructed the State Lunatic Asylum at Worcester to house up to 120 patients.
In the early 1840s, Dorothea Dix began to build on Reverend Dwight’s early efforts. As a nurse, she witnessed the atrocious living conditions of inmates with SMIs, such as the caging and whipping of people experiencing psychotic symptoms in futile efforts to control their behavior (Viney & Zorich, 1982). Dix eventually visited in excess of 300 jails and 18 state prisons, documenting the cruel treatment of the incarcerated mentally ill (Dix, 1975, as cited in Torrey et al., 2010). As a function of her era predating the dawn of modern psychology and psychiatry, her views were radical for the time, although through her presentation of detailed case studies, Dix successfully convinced policy makers that more humane conditions for the mentally ill could lead to their improved functioning. By the time she died in 1887, she had visited every state east of the Mississippi River and 13 European countries (Viney & Zorich, 1982). Dix’s efforts on both sides of the Atlantic are credited with facilitating the construction of 32 psychiatric hospitals and 15 schools for the “feeble minded” across the eastern United States, and her work had great impact on reform efforts in Europe (Viney & Zorich, 1982). According to Torrey and colleagues (2010), her reform efforts were so successful that by 1880, the U.S. Census “identified 40,942 ‘insane persons’ in ‘hospitals and asylums for the insane’[,]” but only “397 ‘insane persons’ in jails and prisons, constituting less than 1% (0.7%) of the jail and prison population” at that time (p. 14). Largely as a result of her accomplishments, the Encyclopedia of Human Behavior describes Dorothea Dix as “the most effective advocate of humanitarian reform inAmerican mental institutions during the nineteenth century” (Goldenson, 1970, p. 341).
The first wave of reforms was based primarily on moral arguments about the ethical treatment of people with SMIs. These reform efforts brought long-lasting changes. The movement’s emphasis on caring for the mentally ill fostered acceptance of a medical-psychological model of mental illness rather than theories of demonic possession that had prevailed until that time (Grob, 1966; Morrissey & Goldman, 1986). This, in turn, led to the establishment of asylums that were supposed to offer compassionate treatment of the mentally ill.
The spread of asylums was effective in moving those with SMIs out of jails and prisons and into treatment facilities. Indeed, until the 1960s, most studies found similar prevalence rates (i.e., less than 2%) of the mentally ill in jails and prisons as reported in the 1880 Census (e.g., Bromberg & Thompson, 1937). Rather, those with SMIs “were treated as patients, not as criminals, and were sent to mental hospitals [even though] the hospitals had little treatment to offer them at that time” (Torrey et al., 2010, p. 14). But, the goal of providing compassionate treatment to people with SMIs was never fully realized.
Asylums actually predate the first-wave reform movement. The first public asylum, Eastern State Hospital, was created in 1773 in Williamsburg, Virginia (New York Times, 1900). But most early asylums established in the United States were created by Protestants whose religious convictions led them to believe that it was their religious duty to care for “the less fortunate members of society” (Morrissey & Goldman, 1986, p. 14). Many of these asylums established a patient-care model based on the principles espoused by the Quakers at the time, who believed that people with SMIs should be treated “in a comfortable, clean, family atmosphere, in the tranquil surroundings of a country house” (Parry-Jones, 1988, p. 408). Indeed, the term “asylum” stems from the notion of a place of refuge—“a quiet haven in which the shattered bark might find a means of reparation or of safety (p. 408). This philosophy guided most of the private asylums throughout the 1800s. Public asylums were generally created with this same patient-care model in mind. But, lack of public funding and sufficient staffing led public asylums to become sprawling, overcrowded places where people with SMIs lived in “bleak, impoverished wards” that served merely as custodial institutions rather than treatment facilities (Parry-Jones, 1988, p. 408; see also Morrissey & Goldman, 1986). Moreover, as the U.S. population increased, so did the demand for custody arrangements for those with SMIs. As a result, the wealthy largely turned to private, pastoral facilities while the poor filled public asylums that became human warehouses, which served as “a general-purpose solution to the welfare burdens of a society undergoing rapid industrialization and stratification along social class and ethnic lines” (Morrissey & Goldman, 1986, p. 17). In other words, treatment became a concern secondary to low-cost custody and community protection (Rothman, 1970).
Second-Wave Reform Efforts: The Rise of Psychiatry and Psychology
Around the turn of the 20th century, a scientific approach to mental illness began to take a firm hold. Scientific advances in neurology, psychiatry, psychology, and social work were spawned as a result of the work of researchers such as Adolf Meyer and William James. Their work focused on therapeutic treatments of mental disorders, “especially by early intervention in acute cases” (Morrissey & Goldman, 1986, p. 18; see also Deutsch, 1944).
The second-wave reform efforts led to the creation of “psychopathic hospitals” for the acute treatment of people with SMIs, most of which were affiliated with research universities (Morrissey & Goldman, 1986). Other mental health facilities, mostly clinics, were also created as a result of the increasing medicalization of mental illness care. But, these facilities, just as the psychopathic hospitals, were designed to provide acute care; patients with SMIs who needed long-term care were eventually sent to state asylums where they received little, if any, real care.
Some scholars argued that the various forms of mental institutions that operated between the late 1800s and the mid-1900s were driven primarily by humanitarian concerns to care for those with mental illness (e.g., Grob, 1994; Ziff, 2004). Others, however, argued that asylums and mental hospitals primarily served a social control function to reinforce individual conformity with prevailing societal expectations— especially in poor, immigrant populations (e.g., Foucault, 1965; Rothman, 1970; Scull, 1991). Whatever the motivations, it is clear that public mental hospitals proliferated in the first half of the twentieth century and their patient population ballooned from 150,000 in 1903 to 512,000 in 1950—“a rate of growth nearly twice as large as the rate of increase in the U.S. population as a whole” (Morrissey & Goldman, 1986, p. 19). Moreover, in spite of scientific advances in the behavioral sciences, most state facilities remained primarily custodial in nature, providing long-term custody not only to those with SMIs, but also to the poor and disabled who could not care for themselves.
Third-Wave Reform Efforts: The Community Mental Health Movement
The third wave of reform is referred to as the Community Mental Health (CMH) movement. CMH efforts emerged in the aftermath of the Second World War as a function of several significant factors. First, new psychosocial techniques developed during the war to provide acute care for those in military service proved to be successful on the front lines (Morrissey & Goldman, 1986; Spiegel & Grinker, 1945). Psychiatrists who returned to practice after serving in the military brought these techniques back with them and taught others in state mental hospitals how to use them. Second, increased understanding of the importance of aftercare led mental hospitals to open outpatient clinics to serve those who were discharged after inpatient treatment while, at the same time, regular hospitals opened acute psychiatric care units (Morrissey & Goldman, 1986; Linn, 1961). Third, the federal government enacted a series of laws that not only established the National Institute of Mental Health, but also created far-reaching policies to foster mental health in the United States (Morrissey & Goldman, 1986; Foley & Sharfstein, 1983). Fourth, charges of neglect, abuse, and dehumanizing conditions in many state-run mental hospitals—such as those described in landmark sociological studies like Ervin Goffman’s Asylums (1961), and those depicted in the movie One Flew Over the Cuckoo’s Nest (Douglas, Zaentz, & Forman, 1975)—led civil libertarians and other activists to advocate for sweeping treatment reforms for those with SMIs. And perhaps most importantly, new psychotropic medications were introduced in the 1950s and 1960s (Talbott, 1982). These antipsychotic drugs—including Haldol, Mellaril, Moban, Navane, Perphenazine, Prolixin, Stelazine, and Thorazine—altered brain chemistry by regulating neurotransmitters. In doing so, these drugs enhance clarity of thought in those affected by psychosis, control for emotions, and prevent interference with rational thought processes. These developments led to the widespread release of the mentally ill through deinstitutionalization policies, which sought to reintroduce these patients to the community for supportiveservices.
The CMH movement spurred civil liberties activists to seek tightening of the methods which were used to involuntarily civilly commit the mentally ill. Prior to the 1950s, most states had only loose protections to prevent a person from being involuntarily hospitalized for psychiatric treatment. “Some jurisdictions statutorily authorized civil commitment for those persons defined as being a ‘social menace’ or ‘a fit and proper candidate for institutionalization’” (Fradella, 2008, p. 1972). But the advent of antipsychotic medicines, combined with the social movements of the 1960s—the CMH movement included—generated action by both legislatures and the courts to recognize that people with mental illnesses possessed a range of liberty interests protected by the U.S. Constitution, including “community-situated treatment, due process procedural protections, the right to treatment, medical and constitutional minimal standards in treatment, and the right to refuse treatment” (Arrigio, 1992/1993, pp. 139–140).
The landmark decision in Lessard v. Schmidt (1972) was decided at a time before many of the modern due process protections associated with civil commitment were enacted. Indeed, Lessard was largely responsible for transforming the legal landscape concerning due process in civil commitments (Mossman, Schwartz, & Elam, 2012). The case centered on a woman who was involuntarily hospitalized following an ex parte hearing about which she never received notice. She won her class action suit enjoining the state of Wisconsin from enforcing its involuntary commitment statute. One of the provisions the court ordered as part of its remedy in Lessard was to require evidence of risk as demonstrated by an actual threat or an overt act—some observable behavior from which dangerousness could be inferred. Several states subsequently adopted the overt act requirement as part of their own due process reforms, while other states did not (Mossman et al., 2012).
In the wake of Lessard, most states tightened their civil commitment laws so that mental illness alone, even if serious, did not suffice as the singular reason for commitment. Significantly, someone could only be involuntarily committed for treatment if a court found, by clear and convincing evidence, that the person represented a danger to themselves or to others (see Addington v. Texas, 1979). Although this dangerousness standard is universally concerned with imminent physical harm to oneself or to others, inabout 30 states, it also includes dangerousness to oneself because of grave disability. This is described as a condition where someone is unable to provide for their basic needs, such as food, clothing, shelter, health, or safety, but often only with the caveat that a failure to assist the person would result in a substantial deterioration of their previous ability to function on their own (Fradella, 2008).
The federal government also played an important role in facilitating deinstitutionalization. The CMH movement was successful in getting Congress to include incentives for moving patients out of psychiatric hospitals and into community-based treatment programs. Most notably, Medicaid and Medicare legislation passed in 1965 “purposefully excluded payments to ‘institutions for the treatment of mental diseases’ because the programs were not designed to supplant state control and financing of psychiatric facilities” (Harcourt, 2011, p. 67). This gave states an incentive to move psychiatric patients out of their hospitals and into communities where they became eligible for “Supplemental Security Income … Medicaid, food stamps, and other federal benefits” (p. 67).
Deinstitutionalization caused the resident population of state mental hospitals to decline by more than 75% between 1955 and 1980, while during this time frame more than 700 CMH centers were created (Morrissey & Goldman, 1986; Morrissey, 1982). As a result, state mental hospitals were closed across the country. But, on their release from mental hospitals, those people with SMIs rather than receiving community-based care were largely ignored because adequate funding was not provided to communities to support the needs of these patients (Bassuk & Gerson, 1978).
Deinstitutionalized patients encountered the hostility and rejection of the general public and the reluctance of community mental health and welfare agencies to assume responsibility for their care. Tens of thousands ended up in rooming houses, foster homes, nursing homes, run-down hotels, and on the streets. (Morrissey & Goldman, 1986, pp. 21–22)
The population in state mental hospitals peaked at more than 558,200 patients in 1955; that number stands in sharp contrast to the fewer than 70,000 patients with SMIs who were housed in public psychiatric hospitals in the mid-1990s (The Sentencing Project, 2002). By 2006, there were only 228 state psychiatric hospitals operating 49,000 beds, nearly a third of which were occupied by forensic patients—those “committed by the criminal courts because their competency to stand trial has been questioned, they have been found incompetent and have not regained competency, or they were adjudicated as not guilty by reason of insanity” (Fisher, Geller, & Pandiani, 2009, p. 679).
The overly optimistic CMH movement left tens of thousands of former patients “homeless or living in substandard housing, often without treatment, supervision, or social support” (Goldman & Morrissey, 1985, p. 729). Sadly, this state of affairs largely continues today; many communities currently have no services in place to assist those with SMIs. Largely as a function of these deficiencies, the mentally ill are often arrested for so-called “nuisance crimes,” which leads to prolonged contacts with the criminal justice system among people who are often unable to conform their behaviors to the rules of society due to their severe and chronic psychiatric issues.
On the other end of the spectrum, lack of access to quality mental health services has dire consequences, as it appears to have had for the Aurora movie theater victims in the James Holmes case. In the wake of Adam Lanza’s school massacre in Newtown, Connecticut, President Obama stated, “We are going to need to work on making access to mental health care at least as easy as access to getting a gun.” This is a tall order since between 2009 and 2012, states cut more than $4.35 billion in public mental health spending, or about 12% of the total budget; as a result, more than 3,200 psychiatric hospital beds, or 6 of the total, have disappeared and another 1,249 beds are in danger of being lost (Glober, Miller, & Sadowski, 2012).
The Current State of the Policy
In contrast to the height of mental hospitalizations in 1955 when there was one public psychiatric bed for every 300 people in the United States, only one such bed currently exists in both public and private facilities for every 3,000 people. In other words, without including private facilities or beds in psychiatric units of general hospitals, people with SMIs were 10 times more likely to find space available in public psychiatric hospitals in 1955 than could be found at the start of the 21st century at general hospitals, public psychiatric hospitals, and private psychiatric facilities combined (Torrey et al., 2010). Conversely, there are more than three times as many people with SMIs incarcerated in correctional institutions today than there are in psychiatric hospitals; thus, “America’s jails and prisons have become our new mental hospitals” (Torrey et al., 2010, p. 3).
Estimates of Mentally Ill Inmates
Currently available data indicate that approximately 7.1 million adults were under the supervision of state or federal correctional authorities in the United States at the end of 2010 (Glaze, 2011)—the most recent year providing official statistics. Of these people, roughly 2.26 million were incarcerated in prisons and jails (Glaze, 2011, p. 2). A sizable portion of this population suffer from SMIs.
One study concluded that up to 17.5% of inmates in state prisons had schizophrenia, bipolar disorder, or major depression (Veysey & Bichler-Robertson, 2002). Another study found that 16.6% of inmates in five jails met the diagnostic criteria for SMIs that included schizophrenia, schizophrenia spectrum disorder, schizoaffective disorder, bipolar disorder, brief psychotic disorder, delusional disorder, and psychotic disorder not otherwise specified (Steadman, Osher, Robbins, Case, & Samuels, 2009). And a 2006 survey conducted by the U.S. Department of Justice concluded upwards of 24% of inmates in certain metropolitan jails evidenced symptomology of a psychotic disorder (James & Glaze, 2006).
Studies show that the number of persons with SMIs in the prison system has risen from 7% in 1982 to 10–19% of jail populations, 18–27% of state prison populations, and 16–21% of federal prison populations. To put these prevalence estimates into perspective, the current rate of SMIs in jails and prisons is two to four times higher than rates of SMIs found among the general public. (Litschge & Vaughn, 2009, p. 542 [internal citations omitted]; see also Skeem, Manchak, & Peterson, 2010)
Based on these studies and official reports from many states, Torrey and colleagues (2010) concluded that we “have thus effectively returned to conditions that last existed in the United States in the 1840s” when Dorothea Dix first began her campaign against imprisoning the mentally ill in jails (see Figure 13.1). This conclusion is supported by the fact that the largest psychiatric facility in the United States is New York City’s Rikers Island, which is estimated to hold 3,000 mentally ill offenders at any given time (Stephey, 2007).
In addition to the high rates of those with SMIs placed in correctional institutions designed to punish offenders rather than provide treatment, it is important to note that substance abuse is high among those with SMIs. It is estimated that between 50 and 75% of all mentally ill offenders in jails have co-occurring substance abuse problems (Skeem et al., 2010). In part, this may be due to those with SMIs self-medicating with alcohol and/or illicit drugs to help relieve the unpleasant or painful symptoms of their disorders (e.g., Dixon, 1999; Khantzian, 1997; Modestin, Nussbaumer, Angst, Scheidegger, & Hell, 1997; Robinson, Sareen, Cox, & Bolton, 2009; Strakowski & DelBello, 2000).

xplanations for the High Prevalence of Inmates with SMIs
There are several possible explanations as to why there are so many people with SMIs in correctional facilities. First, much research demonstrates that police frequently arrest the mentally ill with whom they come into contact (Borum, Swanson, Swartz, & Hiday, 1997; Steadman, Cocozza, & Melick, 1978; Torrey et al., 1992). To some, the most obvious explanation for this is that the police do not understand the behaviors exhibited by people with SMIs and, therefore, make arrests based on misconceptions (e.g., Hylton, 1995). In landmark studies conducted in the 1980s, Teplin (1984, 1990) found that police were more likely to arrest people displaying psychiatric symptoms than those engaging in similar nuisance behaviors, but who do not outwardly show any signs of mental illness. But, other research questioned these findings. For example, after controlling for variables linked to police decision making, such as non-compliance and the relationship between the victim and offender, Engel and Silver (2001) found that police were actually less likely to arrest offenders with mental illnesses. The differences in results may be a function of methodology. Teplin used clinical definitions while Engel and Silver relied on officer’s perceptions of mental illness.
Second, in many U.S. jurisdictions—especially those where police departments subscribe to Broken Windows policing, formal criminal justice enforcement emerged as a significant—if not the preferred—response to disorderly people (Kelling & Coles, 1996). People with SMIs, especially those who are homeless, loud, or otherwise disorderly, often face formal arrests in these locales.
Third, it is clear that police often arrest the mentally ill to help them obtain services. Teplin and Pruett (1992) reported that police often make so-called “mercy bookings” to ensure that arrestees had a place to sleep, especially in extreme weather conditions, and were fed two or three meals each day. Torrey and colleagues (1992) similarly found that police arrested people with SMIs to keep them in a relatively safe environment until treatment space became available at mental health facilities.
Fourth, research suggests that many people with SMIs are arrested and criminally incarcerated due to a lack of availability of any mental health alternatives—even though such an alternative would have been preferable (Dupont & Cochran, 2000; Lurigio, Snowden, & Watson, 2006). Indeed, well-trained officers often recognize when people they encounter need mental health services, but nonetheless make arrests either because community resources are completely unavailable, or are so inadequate that frustration leads officers to doubt the feasibility of any public health options (Engel & Silver, 2001; Hails & Borum, 2003; Thompson, Reuland, & Souweine, 2003).
Finally, the high prevalence rates of inmates with SMIs call into question the fairness of the criminal justice system’s treatment of mentally ill. Mentally ill offenders who commit minor crimes are the “frequent flyers” of local and county jail systems (Torrey et al., 2010). Largely due to frequency of arrests and the lack of coordination between the criminal justice and mental health systems, these offenders typically receive little or no aftercare treatment after their release from jail, which, in turn, can lead them to decompensation and rearrest (see Solomon, Osborne, LoBuglio, Mellow, & Mukamal, 2008).
People with SMIs who commit serious offenses often fare no better in light of hostility to criminal defenses of excuse, such as diminished capacity or insanity. Traditionally, the doctrine of competency to stand trial and the insanity defense were both designed to prevent those with SMIs from being subjected to criminal prosecution and punishment (Schug & Fradella, 2014). But, the standard for adjudicative competency is quite low, and detainees often languish for months awaiting trial while issues related to determining competency are hashed out by mental health experts, attorneys, and the courts (Schug & Fradella, 2014). And in the wake of John Hinckley’s insanity acquittal for the attempted assignation of President Ronald Reagan, the federal government and more than two-thirds of U.S. states either significantly restricted the insanity defense or outright abolished it (Fradella, 2007). Similarly, legislatures, judges, and jurors have all proven to be hostile toward insanity and diminished capacity defenses, collectively contributing to the “sharp increase in the number of mentally ill people in prisons” since the mid-1980s (p. 120). Fradella argued that the U.S. Supreme Court’s decision in Clark v. Arizona (2006) illustrated this hostility to defenses of excuse based on mental illness, and signaled a continued narrowing of the law in a manner that leads to the incarceration of those with SMIs. These prisoners cost more to incarcerate (Torrey et al., 2010), cause significant management problems for correctional officials and the courts (Fradella, 2003), and frequently decompensate to the point that roughly half of them attempt to commit suicide (Goss, Peterson, Smith, Kalb, & Brodey, 2002).
Case Study: Clark v. Arizona
In Flagstaff, Arizona in the early morning hours of June 21, 2000, 17-year-old Eric Clark was driving his pickup truck around a residential neighborhood with the radio blaring loud music. Police Officer Jeffrey Moritz pulled over Clark’s truck in response to complaints. Less than a minute after approaching Clark and telling him to “stay where he was,” Clark shot the officer and ran away. Before he died, the officer contacted the police dispatcher for help. Clark was apprehended later that day with gunpowder residue on his hands. The gun used to kill the officer was subsequently found close to where Clark had been arrested.
At Clark’s trial, friends, family, classmates, and school officials all testified about his “increasingly bizarre behavior over the year before the shooting.”
For example, witnesses testified that paranoid delusions led Clark to rig a fishing line with beads and wind chimes at home to alert him to intrusion by invaders, and to keep a bird in his automobile to warn of airborne poison. There was lay and expert testimony that Clark thought Flagstaff was populated with “aliens” (some impersonating government agents), the “aliens” were trying to kill him, and bullets were the only way to stop them. A psychiatrist testified that Clark was suffering from paranoid schizophrenia with delusions about “aliens” when he killed Officer Moritz, and he concluded that Clark was incapable of luring the officer or understanding right from wrong, and that he was thus insane at the time of the killing. In rebuttal, a psychiatrist for the State gave his opinion that Clark’s paranoid schizophrenia did not keep him from appreciating the wrongfulness of his conduct, as shown by his actions before and after the shooting (e.g., circling the residential block with music blaring as if to lure the police to intervene, evading the police after the shooting, and hiding the gun) (p. 745).
At trial, Clark admitted that he shot and killed Moritz, but contended that he should be excused from criminal responsibility because he suffered from paranoid schizophrenia. Specifically, Clark sought to offer psychiatric evidence both to support an insanity-based defense and to prove that he failed to act with the mens rea required for a murder conviction because he delusionally thought he was shooting an alien. Relying on Arizona state precedent that prohibited diminished capacity evidence, the trial court refused to allow Clark to present evidence of mental illness to rebut mens rea, limiting such evidence strictly to consideration of his insanity claim.
Although the trial court determined that Clark “was indisputably afflicted with paranoid schizophrenia at the time of the shooting,” it found him guilty nonetheless, concluding that his mental illness “did not … distort his perception of reality so severely that he did not know his actions were wrong” (p. 746). The court thus determined Clark had failed to prove he was insane by clear and convincing evidence as required under Arizona’s narrow formulation of the “guilty except insane” defense. Moreover, given the state of Arizona’s bar on diminished capacity evidence, Clark was convicted and sentenced to life in prison with the possibility of parole only after serving 25 years.
Clark challenged his conviction on due process grounds, arguing that Arizona’s bar on relevant psychiatric evidence interferes with a criminal defendant’s “meaningful opportunity to present a complete defense” (p. 789). Over a strong dissent, a majority of the U.S. Supreme Court rejected this argument and affirmed Clark’s conviction. The Court reasoned the nature of mental-disease and capacity evidence gives rise to several risks that can be diminished “by channeling the consideration of such evidence to the insanity”—namely the “controversial character of some categories of mental disease,” “the potential of mental-disease evidence to mislead,” and “the danger of according greater certainty to capacity evidence than experts claim for it” (p. 774).
Source: Schug & Fradella (2014).
In summary, a wide range of factors contributes to the high incarceration rates of the mentally ill: the failure of many CMH initiatives in the wake of mass deinstitutionalization; decreased funding for public psychiatric services; tight restrictions on the involuntary civil commitment of the mentally ill; and get-tough on crime and disorder policies, ranging from Broken Windows policing to the narrowing of criminal defenses of excuse. Collectively, these factors led many to conclude that people with SMIs are “criminalized”—a phenomenon often referred to as the criminalization of the mentally ill or the criminalization of mental illness (see Abramson, 1972; Fisher, Silver, & Wolff, 2006;,2011; Slate & Johnson, 2008; Torrey et al., 2010). In essence, behaviors caused by mental illness that were once managed in the mental health system have now become behaviors that are referred to the criminal justice system.
It should be noted that some scholars have questioned the criminalization hypothesis, arguing that the criminal behavior exhibited by only a small, albeit important, minority of offenders (estimated as just under 10%) is a direct result of either psychosis or survival crimes related to poverty (Junginger, Claypoole, Laygo, & Crisanti, 2006; Peterson, Skeem, Hart, Vidal, & Keith, 2010). But these studies suffer from some methodological limitations insofar as they focus primarily on those convicted of only serious offenses and on those with SMIs. The researchers readily acknowledge that less serious offenses are often driven by hostility, disinhibition, and emotional reactivity that might be exacerbated by mental illnesses that do not rise to the level of being labeled “serious” (i.e., those that do not involve psychosis). For example, Junginger and colleagues (2006) concluded that co-occurring substance abuse disorders led to a sizable minority of offenses in the population they studied. Thus, although there are limited data to suggest that SMIs are not “criminalized” per se, there is little doubt that mentally ill offenders are in need of treatment that not only can reduce recidivism but also promote successful community reentry for this population of offenders. Consider the following data.
Upon release from prison, mentally ill offenders recidivate at high rates (e.g., Messina, Burdon, Hagopian, & Prendergast, 2004). In fact, parolees with mental illness are nearly twice as likely as their non-mentally ill counterparts to return to prison within one year of release (Eno-Louden & Skeem, 2011), and between 39% and 70% reoffended within 27 to 55 months, depending on the type of crime for which they were originally convicted (Case, Steadman, Dupuis, & Morris, 2009; Lovell, Gagliardi, & Peterson, 2002; Theurer & Lovell, 2008). Since one of the primary goals of the criminal justice system is to reduce recidivism rates, a number of initiatives attempted to reduce recidivism in this population of offenders; many of these initiatives were funded by a federal grant program established under the Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) of 2004.
he Mentally Ill Offender Treatment and Crime Reduction Act of 2004
The Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) was signed into law in 2004 by President George W. Bush. The law created the Justice and Mental Health Collaboration Program (JMHCP) to assist state and local governments create collaboratives betweencriminal justice and mental health systems. Congress reauthorized the Act in 2008 for an additional period of five years and expanded opportunities for training aimed at assisting law enforcement in the identification of persons and response to persons with mental illness and assessment of those in custody for mental health and/or substance abuse treatment needs.
Under the Act’s grant program, $50 million was available for state and local government use. The grant application process requires collaborative efforts between law enforcement or criminal justice agencies and mental health services in an effort to most effectively deal with the intersection of the two systems when dealing with deviant behaviors that occur as a result of mental illness. According to the Criminal Justice/Mental Health Consensus Project of the Council of State Governments (2012), this grant money was used to develop and implement training programs for law enforcement, mental health courts, and a variety of corrections-based treatment initiatives. Evaluation research on a number of these programs suggests that some are more effective than others. Before exploring such research, it should be noted that MIOTCRA was criticized for limiting grant money to diversion programs that serve only nonviolent criminal offenders; money to assist people with SMIs who committed violent offenses was limited to correctional-based treatments in jails or prisons or reentry programs after release (e.g., Danjczek, 2007).
What Research has Taught Us
Skeem, Manchak, and Peterson (2010) conducted a meta-analysis of the effectiveness of a number of programs aimed at reducing recidivism rates of mentally ill offenders. They focused on six types of programs, including four employing criminal justice models (jail diversion, mental health courts, specialty mental health probation/parole programs, and aftercare/re-entry programs) and two utilizing mental health models (Forensic Assertive Community Treatment [F-ACT] programs and Forensic Intensive Case Management [FICM] programs). Overall, they found mixed evidence that these programs reduce recidivism, with the evidence for both mental health-based programs and jail-diversion programs showing little to no effectiveness in reducing recidivism. They speculated that this may be due, in part, to these programs’ heavy reliance on case management services. In contrast, three of the criminal justice-based programs demonstrated varying levels of success and, therefore, deserve some explanation.
Mental Health Courts
Perhaps because evaluation research generally indicated significant levels of success in reducing recidivism through mental health courts compared to most of the other policies targeted at reducing the recidivism by mentally ill offenders, these specialty courts have grown in use and popularity since the first one was established in 1997. By 2012, roughly 250 mental health courts were established and that number is consistently growing. These courts are staffed by specially trained personnel experienced in working with mentally ill offenders and are based on a therapeutic jurisprudence model rather than an adversarial justice style (Council of State Governments, 2012; Mann, 2011). The mental health courts typically include judges, social workers, probation officers, and attorneys who have received special training regarding mental illness, psychotropic medication, and substance abuse, in direct contrast to the “mixed bag” of training and education normally found in non-mental health court adjudication.
Mental health courts are remarkably diverse. The clinical diagnoses that qualify arrestees for participation in mental health court vary significantly across the country, as do court procedures and completion requirements (Mann, 2011; Redlich, Hoover, Summers, & Steadman, 2010). The types of cases mental health courts adjudicate also vary: 85% accept misdemeanor cases; 75% handle felony cases; however, only 20% accept violent felony cases; and only 1% handle seriously violent felony cases (Mann, 2011).
Technically, participation in mental health court programs is supposed to be voluntary. Upon agreeing to participate, new participants are required to sign contracts that typically include commitments to take prescribed medications, attend and engage in treatment appointments, return to the court for status review hearings, come to court on time, meet with case managers or probation officers, and to follow any other individual requirements deemed necessary (Mann, 2011; Redlich et al., 2010). The use of sanctions to enforce these provisions varies significantly across mental health courts. However, Redlich and colleagues (2010) found that although between 65 and 76% of mental health court participants reported that they chose to enroll in the programs, most indicated that they did not know the court was voluntary, had not been informed of the program requirements prior to enrolling, and were unaware that they could stop participation if they so desired.
Community-based treatment is the defining characteristic of these courts (Almquist & Dodd, 2009). Yet, “despite being common, outpatient care appears not to have been intensive” (Luskin, 2012, p. 9). Nonetheless, the increased number and kinds of treatments mental health court participants receive decrease both inpatient and emergency room treatments (Luskin, 2012).
Empirical evaluations of mental health courts generally found them to be effective at reducing recidivism (Herinckx, Swart, Ama, Dolezal, & King, 2005; Moore & Hiday, 2006; Trupin & Richards, 2003). McNiel and Binder (2007) reported that mental health court participants experienced longer periods before any new charges for both violent and nonviolent offenses were filed against them than a comparison group processed through criminal courts—a pattern that persisted after completion of the mental health court program. Dirks-Linhorst and Linhorst (2012) found that the rearrest rate of 351 defendants who successfully completed a mental health court program was 14.5%, as compared to 38% among defendants who were negatively terminated from the program and 25.8% of defendants who chose not to participate. These results are similar to the decrease in rearrest rates that Herinckx and his colleagues (2005) found where the average number of arrests prior to mental health court participation was 1.99, but one year after entry into a mental health court program, the mean number of arrests dropped to 0.48. In part, determining the person who reoffends may be a function of program completion. Moore and Hiday (2006) found that 26.9% of participants who completed mental health court were rearrested within one year, compared to the rearrest rate of 70.0% for those who did not complete the program. Moore and Hiday also examined the factors associated with recidivism. They found that demographic factors and most criminal history factors were not significant related to reoffending; however, one criminal history factor proved salient: More severe prior offenses significantly increased the odds of rearrest.
In contrast, at least two studies concluded that there is little difference in reoffending levels between mental health court graduates and those who do not complete such programs. Although Christy, Poythress, Boothroyd, Petrila, and Mehra (2005) reported that 47% of mental health court participants were rear-rested within a year of the initial court appearance compared to 56% in the comparison group, this difference was not statistically significant. Cosden, Ellens, Schnell, and Yamini-Diouf (2005) similarly reported small, nonsignificant differences in rearrests, convictions leading to imprisonment, and number of days spent in jail over a four-year period (two years before and after initial admission to a mental health court program). The intense variations in mental health court policies and programs may be responsible for these divergent findings.
Specialty Mental Health Probation
More than 100 U.S. jurisdictions created programs where probation officers manage specialized, reduced size caseloads of mentally ill probationers working directly with treatment providers (Eno-Louden, Skeem, Camp, Vidal, & Peterson, 2012). Because these specialty probation officers “more frequently discussed probationers’ general mental health than any individual criminogenic need”; “chiefly questioned, directed, affirmed, and supported (rather than confronted) probationers”; and “relied more heavily on neutral strategies and positive pressures (e.g., inducements) rather than negative pressures (e.g., threats of incarceration) to monitor and enforce compliance” (p. 109), specialty probationers were modestly less likely to be rearrested or have their probation revoked over a one-year period than offenders assigned to traditional probation. But, given the modest levels of success associated with most of the specialty probation programs that have been empirically evaluated, the third option of reentry and an aftercare program might be a better approach as this alternative was found to have support by which Skeem and colleagues (2010).
Prisoner Reentry and Aftercare Programs
The first year after release from jail or prison is a particularly salient time for monitoring offenders with SMIs since 77% of reoffending occurs within this time (Lovell et al., 2002). High rates of reoffending can be tied to a number of factors, including medication non-compliance, lack of treatment services, a return to disorganized community settings, and poor support services. Accordingly, a number of jurisdictions formed collaborative programs between correctional and mental health services to provide some continuity of care, many of which have been effective at reducing recidivism rates, even for those with co-occurring substance abuse disorders (Kesten et al., 2012; Sacks, Chaple, Sacks, McKendrick, & Cleland, 2012). For example, a study by Sacks, Sacks, McKendrick, Banks, and Stommel (2004), which randomly assigned male inmates with co-occurring serious mental illness and chemical abuse (MICA) disorders to either modified therapeutic community (MTC) or mental health (MH) treatment programs, found that mentally-ill offenders receiving aftercare and reentry services were three times less likely to be reincarcerated within a year than those who received no such treatment interventions (5% vs. 16%). Similarly, a comprehensive jail aftercare and reentry program in Harris County, Texas, was found by Held, Brown, Frost, Hickey, and Buck (2012) to reduce the total number of rearrests significantly for both felonies and misdemeanors (see Figure 13.2).
The most promising reentry and aftercare programs are those that combine “interagency collaboration, housing support, and intensive, integrated clinical attention to mental health and substance abuse problems” (Theurer & Lovell, 2008, p. 400). As the Council of State Governments (2002) stated, “[w]ithout housing that is integrated with mental health, substance abuse, employment, and other services, many people with mental illness end up being homeless, disconnected from community supports, and thus more likely to … become involved with the criminal justice system” (p. 8). It should come as no surprise that such comprehensive programs can be quite expensive, reaching an annual cost of approximately $20,000 per person in some jurisdictions (Frisman, Swanson, Marín, & Leavitt-Smith, 2010). However, given that the average cost of incarcerating an inmate ranges between $18,000 to $50,000 per year with an average cost per inmate of $36,000 (The Economist, 2010), such reentry programs represent a solid investment from a cost-benefit standpoint (Torrey, 2011). Moreover, even in jurisdictions where the cost of reentry programs exceeds incarceration costs, such an investment protects the public from future crime associated with untreated mental illness while simultaneously providing “a better set of mental health and justice outcomes for people with mental health problems and their communities” (Wolff, Bjerklie, & Maschi, 2005, p. 38).

Unintended Consequences of the Policy
Given the comparative effectiveness of several of the criminal justice interventions discussed previously which leverage access to much needed community services, these programs can inadvertently increase police willingness to make “mercy bookings.” In other words, the structured treatment that mental health courts and reentry/aftercare programs offer can create incentives for police to arrest those with SMIs in order to get them the services they need (Bazelon Center for Mental Health Law, 2012). At first blush, one might be tempted to conclude that since the humanitarian motivations underlying such mercy arrests result in people with SMIs obtaining the services they need, justice system involvement is not necessarily a bad thing. But there are numerous, serious unintended consequences to using the criminal justice system to address the public health need of people with SMIs.
First, there are several negative consequences stemming directly from arrest and incarceration. These traumas can aggravate the symptoms of many SMIs, causing not only an unnecessary increase in suffering for the affected person, but also manifesting in behaviors that lead to violence that can injure those with SMIs, police officers, innocent bystanders, correctional officers, and other inmates in jails and prisons (see Gur, 2010). And arrests have collateral social consequences as well, which range from “stigmatization based on a criminal record” to the “resulting denial of housing or employment or treatment services— even if charges are dropped” (Bazelon Center for Mental Health, 2003, p. 2).
Second, because police often serve as the first responders to situations involving people with SMIs, significant resources must be devoted to training police to interact with this population to avoid unnecessary victimization. Today, many police departments have established a Crisis Intervention Team (CIT) to avoid situations where officers mistake the symptoms of SMIs and respond using unnecessary levels of force, sometimes resulting in preventable deaths (Gur, 2010; Stephey, 2007). But CIT programs are not cure-alls. Certainly it costs a significant amount of money to establish these programs and then train officers. But, perhaps more importantly, we do not know if CITs actually reduce violence and victimization experiences by both police and people with SMIs during encounters between the two, nor has it been established that CIT programs are actually effective in reducing the arrests of persons with SMIs (see Watson et al., 2010).
Third, using the criminal justice system as the “front door to access mental health care” (Seltzer, 2005, p. 583) places enormous financial burdens on state and local governments forced to increase budgets to accommodate the expenditures required to deal with these complex problems. According to Johnson (2011), states with large populations of prisoners must commit large portions of their state budgets to operating criminal justice services. The implications of these increasing criminal justice budgets are cuts to other programs in the state, when ironically these same cuts to public health or housing programs may help prevent some offenses from occurring that lead to incarceration.
State and city-wide expenditures continue to rise as more and more offenders requiring psychiatric treatment are relegated to the care and custody of jails and prisons. For instance, the Los Angeles County Jail spent $10 million on psychiatric medication in 2001, and the State of Ohio in 2005 was treating 8,371 mentally ill offenders at a cost of $67 million a year. In Florida the number of mentally ill inmates in jails and prisons is believed to outnumber those in state run psychiatric facilities by 5 to 1; yet, the minimum cost to care for a mentally ill person in a Florida jail costs in excess of $40,000 and $60,000 in a Florida prison. Compare those figures to the roughly $20,000 cost of providing intensive CMH treatment for those with SMIs ( Overall, it is calculated that imprisoning mentally ill offenders costs the United States roughly $9 billion per year (Slate & Johnson, 2008).
Fourth, mentally ill inmates create enormous problems for the corrections system. The three largest providers of psychiatric care in the United States are New York’s Rikers Island Jail, Illinois’ Cook County Jail, and California’s Los Angeles Jail (Slate & Johnson, 2008). The fact that so many mentally ill offenders are being held in our jails and prisons means that many of these prisoners are in daily contact with corrections officers who have not received proper training in effectively and safely dealing with psychiatric populations (Gur, 2010). This lack of training and understanding can lead to increases in conflicts, physical altercations, and injuries of both corrections officers and inmates (Steadman et al., 2009). Indeed, people with SMIs are often victimized while incarcerated (Gur, 2010; Human Rights Watch, 2009). Failing to provide incarcerated inmates with constitutionally minimum levels of medical care, as well as failing to protect these inmates from foreseeable victimization while incarcerated, further adds to the budgetary strain local and state governments experience as a result of the criminalization of mental illness. “Perhaps the best example of this is Sheriff Joe Arpaio who, claiming to be the toughest sheriff in the country, has cost taxpayers of Phoenix millions of dollars in lawsuit settlements for violating the civil rights of inmates with mental and medical needs” (Johnson, 2011, p. 19).
At great cost, some larger correctional facilities have special units devoted to housing “special needs” populations and staff receive at least some training in working with the mentally ill. But, even in such units, those with SMIs face a number of risks, not the least of which is decompensation, where the severity of the mental illness or the associated symptoms increases. The incarceration environment is one where inmates with SMIs “are more likely to violate rules or be injured in fights (Gur, 2010, p. 228; James & Glaze, 2006).
Finally, the funding consequences linked with the criminalization of mental illness offenders produces an untenable situation because in some U.S. jurisdictions, funds are no longer available to support public mental health outside of the correctional setting. As a result, some states, like Iowa, have turned to re-committing offenders with SMIs after serving their sentences back into the same prison system that released them because the state has no other facility for referral (Fuller, 2011). The beginning of 2011 saw 75 mentally ill offenders committed to prisons under this arrangement, some of whom had been civilly committed to the prison for a period of several years (Fuller, 2011). In essence, this means that citizens who have served their sentences are still being remanded to prison as the result of their mental illness, because there are no adequate mental health treatment facilities left where they can be civilly committed for treatment. This is the purest example of our jails and prisons becoming de facto psychiatric facilities, and it raises the question that the due process rights of these mentally ill offenders are being violated by virtue of the fact they have “served their time” and yet are not being released from prison.
How do We Fix It? Suggestions for Policy Reform
There is no shortage of calls for changes in policy to address the many problems with the revolving-door cycle of incarcerating those with SMIs in jails and prisons and then releasing them only to have them return to the criminal justice system (e.g., Torrey et al., 2010; Vitiello, 2010). In the final section of this chapter, we explore some of the most common recommendations.
Legislative Changes to Address Financial Problems
Two legislative changes could go a long way toward improving policies to assist mentally ill offenders. First, as noted earlier, MIOTCRA limited its diversion programs to serve only non-violent criminal offenders. If MIOTCRA were amended to fund diversion programs that reached violent offenders as well, that many more people with SMIs could benefit from mental health court supervision.
Second, the statutory restriction for using Medicaid funds to support mentally ill individuals in “institutions for mental diseases” should be lifted. This ban encourages states “to empty hospitals, even if the patients end up in jails or homeless” (Torrey et al., 2010, p. 12). Moreover, “there are no fiscal incentives to follow up and make sure the patients receive care once they leave the hospitals (p. 12). Accordingly, this restriction on Medicaid use should be repealed.
Increased Diversion Efforts by Expanding the Number and Scope of Mental Health Courts
As previously summarized, most of the studies evaluating the effectiveness of mental health courts finds them to be effective at reducing recidivism (Dirks-Linhorst & Linhorst, 2012; Herinckx et al. (2005); McNiel & Binder, 2007; Moore & Hiday, 2006; Trupin & Richards, 2003) and improving mental health functioning (Boothroyd, Poythress, McGaha, & Petrila, 2003). But there are many communities without this option available. Therefore, it presumes good public policy to advocate for the increase of the number of mental health courts. But care must be taken to ensure that these courts are properly staffed and funded, lest the courts become so backlogged and unable to provide services that their effectiveness is compromised. But adequate court resources are not sufficient since the success or failure of any mental health court program depends “on the ability of the mental health system to treat effectively those diverted from the criminal justice system (Litschge & Vaughn, 2009, p. 550). Thus, as discussed more fully below, inadequacies in the mental health system must also be addressed.
Regardless of the availability of mental health courts, there is a question of whether any criminal justice system involvement is necessary at all, especially in many misdemeanor cases. Consider that Fisher and colleagues (2006) noted that a review of records of mentally ill offenders arrested for nuisance crimes and referred to the forensic evaluation unit of a state hospital in Massachusetts found that many of these offenders would have met criteria for an involuntary hospitalization if the police had not arrested them and instead taken them for psychiatric emergency services. If that’s the case, does the criminal justice system need to be involved at all? As Skeem and colleagues (2010) suggested, providing psychiatric treatment to those with SMIs before they violate the criminal law could prevent the criminal justice system from even being involved with people who should be treated as patients rather than offenders. Thus, the best public policy options may lie outside the criminal justice system.
Reform Civil Commitment Laws
Torrey and colleagues (2010) called for significant changes in civil commitment laws. Specifically, they seek the statutory authority to commit those who need treatment without regard to their dangerousness. “Many times, it is this very dangerousness standard that necessitates law enforcement involvement. Mentally ill individuals should be able to access treatment before they become dangerous or commit a crime, not after” (p. 12). At first blush, this proposal seems logical and warranted. But, two concerns threaten its viability.
First, lax due process protections in the civil commitment arena were one of the reasons that civil liberties activists championed the tightening of these laws in the 1960s and 1970s. Legislators need to vote to loosen these laws over the objections of both civil libertarians and advocates for the mentally ill who oppose involuntary hospitalization. Moreover, when such laws are challenged in the courts, judges not only have to decide if the autonomy and privacy rights of the individual are outweighed by societal interests in caring for the mentally ill against their wishes, but also have to ensure that statutes provide sufficient safe-guards are in place to guarantee due process. This is not, however, a difficult task; New York appears to have done so quite successfully (see Litschge & Vaughn, 2009; New York State Office of Mental Health, 2005).
Second, even if better laws could be enacted that eased the dangerousness criteria for commitment while still honoring due process rights, increasing the number of civil commitments is not possible if there are insufficient beds in psychiatric facilities to care for the civilly committed patients . Given how few beds are available, and in light of the incredible budgetary pressures on most states since the Great Recession of 2008, it is highly unlikely that most states can afford to expand the number of psychiatric beds available to accommodate need. Moreover, although there is an argument to be made that the funds currently used to pay for the incarceration of mentally ill offenders in jails in prisons could be shifted out of the criminal justice system and into the public health system to pay for these beds, the politics of doing so is likely a significant obstacle. Consider that many other social services, most notably education, have been cut as public budgets have diminished. Reasonable arguments can certainly be made that education and other services need to be funded before expanded access to psychiatric hospital beds.
However, there may be a middle ground. In the past few years, many states have modified their civil commitment laws to allow for outpatient civil commitments of mentally ill people in crisis (Slate, 2009, p. 21). Outpatient civil commitment is more commonly referred to as assisted outpatient treatment (AOT). AOT “requires selected seriously mentally ill persons to take medication under court order as a condition for living in the community” (Torrey et al., 2010, p. 12). According to the Treatment Advocacy Center (2012), 44 states have laws that authorize AOT. Empirical studies of AOT lend significant support to this policy recommendation, as AOT has been demonstrated not only to reduce dramatically the arrest rate of the mentally ill (New York State Office of Mental Health, 2005; Swanson et al., 2000), but also to significantly decrease their use of alcohol and drugs, psychiatric rehospitalizations, homelessness, suicides, and violent behaviors (Fernandez & Nygard, 1990; Munetz, Grande, Kleist, & Peterson, 1996; Phelan et al., 2010; Rohland, 1998; Swartz et al., 2010; Zanni & deVeau, 1986). Moreover, there is evidence that several of these positive outcomes continue even after court supervision ends (Van Dorn et al., 2010).
Improve Services for the Mentally Ill within and beyond the Criminal Justice System
Offenders with SMIs generally fall into three categories: those who were arrested for “simply displaying the signs and symptoms of mental illness in public”; those who committed petty, nuisance, or survival crimes; and those who commit serious crimes, including those that are violent (Lurigio, 2011, p. 12). Those who fall within the first group do not belong in the criminal justice system at all. They need psychiatric services that need to be offered through an improved public health system. When police encounter such individuals, they should be able to take them for treatment without ever making a formal arrest. The aforementioned improvements in outpatient civil commitment laws vis-à-vis AOT gives police the authority to do so and improves the public health outcomes for the mentally ill without ever involving them in the criminal justice system.
The second group of offenders should be diverted to mental health courts. But, we need to conceptualize the primary purpose of these specialized courts as serving a public health function, not a criminal justice role. Measures of success need to go beyond mere recidivism statistics. Indeed, the myth that treating psychiatric systems can improve recidivism rates must be dispelled. There are no studies which empirically demonstrate that alleviating psychiatric symptoms—in and of itself—affects recidivism among offenders with SMIs (Lurigio, 2011). Thus, improvements which address only the treatment of psychiatric systems are not likely to reduce recidivism. To accomplish the goal of reducing recidivism, psychiatric treatments need to be paired with other interventions aimed at criminogenic factors (Skeem et al., 2010), such as substance abuse, lack of education, lack of employment, and community disorganization. Toward that end, mental health courts need to pair offenders with a variety of social service agencies in much the same way that prison parolees are paired in the comprehensive reentry and aftercare programs that demonstrated so much success at rehabilitating the whole person. This would not only help these people “get back on their feet,” but also help them avoid subsequent involvement in the criminal justice system (Council of State Governments, 2002; Kesten et al., 2012; Sacks et al., 2004, 2012; Skeem et al., 2010; Theurer & Lovell, 2008; Wolff et al., 2005).
The third group of offenders—those who commit serious crimes—pose the most significant policy challenges. To be sure, those who are imprisoned need treatment while incarcerated and, after release, they must be placed into comprehensive reentry and aftercare programs that help them comply with rules governing their release, thereby avoiding probation and parole violations and reducing the incidence of new offenses. But those correctionally based treatment, reentry, and aftercare programs do not address the true problem of incarcerating offenders with SMIs in jails or prisons in the first place. Three changes to law and policy could make a significant difference in reducing the number of people with SMIs in correctional institutions, and the final proposal might even serve to reduce the commission of crime by this population.
Initially, the narrowing of the criminal defenses of excuse that began in the 1970s and accelerated dramatically in the wake of John Hinckley Jr.’s case must be revisited. In Clark v. Arizona (2006), the U.S. Supreme Court upheld the authority of states to severely limit a mentally ill criminal defendant from offering some of the most probative evidence concerning his or her guilt. To prove that Eric Clark committed murder, the prosecution in the Clark case introduced evidence that the defendant spoke of wanting to kill police and then argued that to carry out this plan, the defendant lured police to the scene by blaring music from his truck while circling a block in a residential neighborhood. The defendant, however, was barred from introducing largely undisputed evidence about the nature of paranoid schizophrenia and how the disease caused, or could have caused, his actions. Specifically, the trial court was barred from considering expert testimony that people with schizophrenia often play music loudly to drown out the voices in their heads, which would have directly undercut the assertion that Clark did so to lure police officers to his car. The unworkable evidentiary framework upheld in Clark prevent the defense from arguing what should have been straightforward defense, namely that the defendant “did not commit the crime with which he was charged” because he lacked the requisite mens rea (Clark v. Arizona, 2006, p. 801, Kennedy, J., dissenting). The Supreme Court must revisit this misguided result and hold that barring the admissibility of such evidence violates due process (Fradella, 2007). Of course, dangerous people with SMIs like Eric Clark do not belong on the streets where they are free to maim or kill. But they do not belong in prisons either where they burden the correctional system and receive little or no treatment for their SMIs. Rather, such defendants should be remanded for treatment to secure psychiatric hospitals.
Next, the jurisdiction of mental health courts should be expanded to include the authority to adjudicate violent felony offenses. As Mann (2011) pointed out, 80% of mental health court systems do not accept any violent felony cases and only 1% handle those involving serious crimes of violence. If defendants who commit crimes like robbery and aggravated assault as a function of their SMIs had their cases handled through a system that subscribed to a therapeutic jurisprudence model, these offenders could get the comprehensive help they need while being monitored for compliance in ways that help to increase public safety.
Finally, and most importantly, we must make improvements to the mental health system and related social services so that people with SMIs do not commit serious crimes in the first place. Significantly expanded use of AOT can help to effectuate this desirable outcome. Those with SMIs need both psychiatric care (including access to psychotropic medications, when appropriate) and interventions aimed at criminogenic factors, such as job training, substance abuse treatment, and housing assistance (Skeem et al., 2010). Such multimodal services are likely to bring significant secondary benefits largely unrelated to the narrow metric of recidivism. Providing better treatment for the mentally ill likely reduces psychiatric symptoms in ways that allow the mentally ill to “become sober and employed, find and retain stable housing, develop better self-control, return to school, [and] mend relationships with family” (Lurigio, 2011, p. 15). These benefits, in turn, reduce calls to police and correspondingly reduce the number of inmates with SMIs, because mentally ill people receiving mentally appropriate treatment and adequate social services are better able to follow societal rules so that they do not run afoul of the law to begin with.
Chapter 14
Gender Responsive Practices
Barbara Koons-Witt
Courtney Crittenden
Gender-responsive practices are policies and programs based on the recognized needs ofwomen offenders. These practices acknowledge that there are gendered pathways to crime, meaning there are various biological, psychological, and social factors that are unique to the female offender (Salisbury & Van Voorhis, 2009). Moreover, these practices recognize that programs and policies need to be geared toward women’s differences and unique needs in order for the female offender to succeed after exiting the correctional system and negotiating reentry to society. In the current chapter, we examine gender-responsive practices in the criminal justice system. We begin by reviewing the background and the need for gender-responsive practices for women offenders. Next, we focus on current gender-responsive practices used in prisons for women, and finally, we discuss the future of these policies for women and their involvement in the criminal justice system.
The Back Story: The Need for Gender-Responsive Practices
Historically, women suffered from neglect in the criminal justice system and in criminal justice research (Belknap, 2007; Grana, 2010; Koons, Burrow, Morash, & Bynum, 1997). One of the major reasons that women experience this oversight is the fact that women are a minority in the offender population and the corrections system (Belknap, 2007; Butler, 1997; Glaze & Maruschak, 2008; Koons et al., 1997; Mumola, 2000; Owen, 2001); in fact, they are often referred to as an invisible population (Belknap, 2007). Moreover, Salisbury and Van Voorhis (2009) note that, “because crime is predominately a ‘man’s game,’ it comes as no surprise that most criminological knowledge focuses on how and why men engage in criminal activity” (p. 541). Yet, women are coming into the criminal justice system at a greater rate than ever before, and from 1980 to 1998, the number of incarcerated women increased over 500% (Morash & Schram, 2002). What is more, the number of women coming into the correctional system since 1970 is more than twice the rate of men (Belknap, 2010). These dramatic trends have resulted in more attention and research on women offenders.
Brief Profile of Women Offenders
Female offenders share many commonalities and are often quite different from their male counter-parts. When women commit crimes, they are typically supervised in the community rather than being incarcerated (Glaze, 2010). This is because women compared to men are usually much less violent, have less extensive criminal histories (Belknap, 2007), and are more likely to be arrested (and incarcerated) for drug or property offenses than for violent offenses (Brown & Bloom, 2009; Glaze & Maruschak, 2008; Mumola, 2000; Owen, 2001). Even when women are incarcerated for a violent offense, these offenses are typically less serious crimes than those committed by violent men (Belknap, 2007; Chesney-Lind, 2004; Sokoloff, 2005). Once in prison, women are regarded as less serious than their male counterparts because they are not as likely to riot or cause other major disturbances within the prison facility (Belknap, 2007; Rafter, 1990).
Women are likely to have extensive histories of victimization (Browne, Miller, & Maguin, 1999; Chesney-Lind, 2004; DeHart, 2008; Gilfus, 1992), drug use and abuse (Chesney-Lind, 2004; Glaze & Maruschak, 2008; Mumola, 2000), and mental health issues—especially in comparison to the general population (James & Glaze, 2006; Lord, 2008). Many women in prison are also likely to come from situations of poverty and broken homes (Chesney-Lind, 2004; Simon & Ahn-Redding, 2005) and have a striking lack of education (Belknap, 2010; Bloom, Owen, & Covington, 2005; Schram, 2003). These women are also highly likely to be mothers (Bloom et al., 2005; Chesney-Lind, 2004; Glaze & Maruschak, 2008; Leverentz, 2006; Morash & Schram, 2002; Simon & Ahn-Redding, 2005). Finally, minority women are overrepresented in the offender and prisoner populations (Glaze & Maruschak, 2008; Simon & Ahn-Redding, 2005; Sokoloff, 2005). Oftentimes, an accumulation of these multiple factors affect women’s criminality. All of these factors separate women from their male counterparts and warrant differential treatment from men. However, the treatment of women by the correctional system was not always the most appropriate for them.
Historical Perspective of Treatment and Programming
Throughout its history, the correctional system used various methods to control and treat women and generally, the treatment has been inferior to the treatment received by that of their male counterparts (Rafter, 1990). Historically, they received stereotypical programming due to the dominant societal ideal of a “good woman” which reflected the attitudes of mainstream society in regards to what it meant to be a proper woman in society (Grana, 2010). Many of the women who came into contact with the criminal justice system were viewed as “fallen women”; therefore, their time in prison was used to retrain them in the image of a “good woman.” They received programs that focused on traditional gender roles, such as sewing, cleaning, cooking, and other domestic duties (Fox, 1984; Rafter, 1990). Very few programs trained women to be self-sufficient and/or earn a living on their own.
Beginning in the late 1960s and early 1970s, critics pushed for the equal treatment of men and women in prisons (Fox, 1984); yet, this too was later condemned since the standard used to define equal was based on males (Belknap, 2003; Chesney-Lind, 2004; Morash & Schram, 2002; van Wormer, 2010). Under equal treatment, women basically received programs that were designed for men and simply added to women’s prisons in an effort to ensure “equality” (Rafter, 1990). In the late 1980s and early 1990s, feminist scholars argued that women in the criminal justice system were different enough from their male counterparts to warrant their own study (Covington, 2000). This focus on women resulted in the development of a theoretical point of view known as the (gendered) pathways perspective. The pathways perspective acknowledges that men and women take different paths to delinquency and criminality. Additionally, it notes that the most common paths for women consist of surviving trauma and abuse, poverty, and substance use/abuse (Belknap, 2003; Bloom et al., 2005).
The push for equitable and gender-responsive treatment also began in the early 1990s. Equitable treatment does not mean sameness, but instead refers to equal funding and programming options that are developed respectively for the needs of men and women prisoners (Bloom, 2012). Indeed, women are not identical to men, but “look” rather different from them in regards to the offenses they commit, their personal histories, their pathways to crime, and their risk factors and needs (Bloom et al., 2004; Wright, Van Voorhis, Salisbury, & Bauman, 2012). There were two major justifications for the gender-specific push: (a) the dramatic increase of incarcerated women and (b) differential needs and risk factors posed by women (Bloom, 1999; Morash, Bynum, & Koons, 1998).
One of the first major studies of gender-specific practices was conducted by Morash and colleagues in their examination of prison administrators’ opinions of management, treatment, and offender needs for women inmates. In this study, prison administrators noted the need for gender-specific classifications because gender-neutral classifications were less effective in their ability to correctly classify the needs and security risks of women (Morash et al., 1998). Additionally, administrators recognized that women need their own management style (Koons et al., 1997; Morash et al., 1998), and they identified successful elements of women’s programs that appeared to be promising in meeting their specific needs (Morash et al., 1998). Morash and colleagues (1998) concluded that the development and expansion of gender-specific practices was needed.
Bloom and her colleagues contributed to the gender-specific literature with the development of six gender-responsive guidelines (Bloom, 1999; Bloom et al., 2004, 2005). These principles have since been used to develop programs for women offenders. The gender-responsive principles, as outlined by Bloom and her colleagues (2004), include the following:
Gender: Acknowledge that gender makes a difference.
Environment: Create an environment based on safety, respect, and dignity.
Relationships: Develop policies, practices, and programs that are relational and promote healthyconnections to children, family, significant others, and the community.
Services and Supervision: Address substance abuse, trauma, and mental health issues throughcomprehensive, integrated, and culturally relevant services and appropriate supervision.
Socio-economic Status: Provide women with opportunities to improve their socioeconomicconditions.
Community: Establish a system of community supervision and reentry with comprehensive, collaborative services (p. 43).
Taken as a whole, the principles outlined above recognize the unique criminal pathways of women offenders. First, the principles acknowledge the many difficulties that women experience in their childhood (e.g., childhood abuse and neglect, family instability). Second, the principles identify the significance of relationships for women. These include relationships between women and their parents, their intimate partners, their children, and their friends. Third, the principles detail the importance of prior abuse and victimization for women. They address this issue in terms of needed program environments, programming, and supervision approaches. Finally, the principles demonstrate the interconnectedness of issues that women offenders face and the importance of addressing them in a holistic manner and throughout all parts of the correctional system. Again, these principles developed by Bloom and her colleagues guide much of the gender-responsive research and program development, which when taken altogether can work toward rehabilitating women by addressing their specific experiences, circumstances, and needs.
The Current State of Gender-Responsive Practices and Research
Researchers and practitioners alike have made progress in making the case for gender-responsive policies and practices. Due to their smaller numbers and less serious forms of offending, women have endured decades of being overlooked and neglected in research and in the formulation of criminal justice policies and practices (Bloom et al., 2004). As a result of our increased attention toward female offenders beginning in the 1960s and 1970s, and a growing body of research since then on women’s involvement in the criminal justice system, it is safe to say that gender does matter.
We know that there are vital differences between males and females and their involvement in the criminal justice system. These differences include pathways to delinquency and crime, and ultimately to the legal system. Recent research highlights gender differences in offenses, criminal backgrounds, and risk factors (Bloom et al., 2004; Wright et al., 2012). All of these are is important to consider because in addition to them providing us with a better understanding of women offenders, they also present us with a framework for how women offenders should be dealt with by the criminal justice system. While it is necessary to consider how gender-responsive practices can inform criminal justice policies across the entire system (Bloom et al., 2004), in the sections below we focus on the significance of gender-responsive practices in the correctional system in terms of classification and assessment, programming, and management/supervision areas for women prisoners and review what we know from current research.
Assessment of Risk and Needs
Once sentenced to prison, entering offenders typically spend several weeks being evaluated and assessed for security and programming reasons in a reception and orientation center or wing (Clear, Cole, Reisig, & Petrosino, 2012). Prisoners are most frequently classified into minimum, medium, or maximum security levels that reflect an increasing degree of risk for harming themselves or other prisoners, escaping, or recidivating (Farr, 2000; Wright, Salisbury, & Van Voorhis, 2007). Since the female inmate population is comparatively smaller than the male inmate population, female housing options are often more limited so this security classification is not always possible (e.g., there may be only one female corrections institution in a particular state). An inmate’s designated security level has other consequences for them. Custody level can also dictate prisoner’s access to resources, certain programming, and services within the institution (Farr, 2000; Wright et. al., 2007).
Prisons have historically classified incarcerated women using instruments that were developed for and validated on incarcerated men (Burke & Adams, 1991; Farr, 2000; Morash et al., 1998; Hardyman & Van Voorhis, 2004). Many practitioners and researchers believed that the assessments did not work for women (Burke & Adams, 1991; Reisig, Holtfreter, & Morash, 2006; Taylor & Blanchette, 2009; Van Voorhis, Wright, Salisbury, & Bauman, 2010) and that they did a poor job in matching women to proper custody levels or needed programming and services (Hardyman & Van Voorhis, 2004). One national survey conducted during the mid-1990s found that about three in four states used the same classification instrument for both male and female prisoners, and only a few states (three, or 6%) used classification tools that were different from those used by men and were specifically designed for female inmates (Morash et al., 1998).
The general goal of classification systems is to maintain order inside prisons, prevent escapes, and ensure community safety. Most women are not violent, do not commit serious infractions while incarcerated, and rarely riot or try to escape prison (Belknap, 2007; Rafter, 1990). Essentially, women commit less serious forms of crimes and serve their prison time differently than men (Kruttschnitt, Gartner, & Miller, 2000; Owen, 1998). Classification systems fail to recognize these differences. Correctional administrators generally feel that women prisoners are over-classified into higher security levels than either needed or appropriate (Morash et al., 1998). Over-classification can happen due to a number of reasons. First, instruments can inaccurately predict that a sizable number of women will harm themselves or other inmates in the prison. Second, because of their small numbers, females who are assessed as low risk may be confined in one institution meant to manage varying security levels; therefore, their setting is more restrictive than required (Morash & Schram, 2002). Additionally, gender-neutral assessment tools are believed to over-classify many women involved in violent crimes because they ignore the context or circumstance associated with women’s use of violence. For example, women may use violence in response to their abuse, or when they are with male partners (Farr, 2000). In other words, women’s use of violence in these incidents means something substantively different given the context; thus, they do not necessarily represent the same threat or risk for violence and disturbances behind bars as their male counterparts. Some states use overrides to address this issue. One classification study on women found that 1 in 5 state agencies utilized classification overrides between 18% and 70% of the time with women (Van Voorhis & Presser, 2001). Risk assessments ought to reflect women’s experiences and behaviors and should identify and connect women to proper custody levels and necessary programs.
In addition to determining the level of risk for women, many prisons assess women for mental health and medical problems and for other programming areas, including substance abuse, family issues, relationships, education level, and job skills (Morash & Schram, 2002). Morash and colleagues found that a considerable number of states assessed all incoming women offenders for substance abuse (86%), mental health (86%), medical problems (76%), and education level (86%). The study also found that states frequently assessed all incoming women prisoners for vocational choice (60%), spousal abuse (52%), child-hood sexual abuse (50%), and the presence of children (48%). Overall, they found that the assessments produced difficulties matching women to needed programs, and that this was further complicated by overcrowding, a restricted number of available housing options, and the lack of needed bed space in certain facilities and programs (Morash et. al., 1998; Morash & Schram, 2002). In conclusion, several studies from the 1990s suggest that correctional administrators and those working with women offenders questioned the utility of assessment and classification systems for women offenders in terms of both placing women at appropriate custody levels and identifying and connecting women to needed programming and services within prisons.
Beginning in the late 1990s and continuing through to the current decade, several initiatives were undertaken to develop and validate gender-specific classification and assessment systems, building on early efforts that identified concerns with existing assessment tools. Van Voorhis along with colleagues and in cooperation with the National Institute of Corrections (NIC) embarked on a project to determine if “gender-responsive factors are risk factors for institutional misconduct and community recidivism, as well as whether these factors improve the classification of women when they are considered in classification assessment tools” (Wright et al., 2012). This work on the part of Van Voorhis and others resulted in the development of two types of assessments, referred to as Women’s Risk and Needs Assessments, or WRNA (Buell, 2010). The one assessment, referred to as “the trailer,” is used to supplement an existing risk/needs assessment instrument like the LSI-R (The Level of Service Inventory-Revised), while the second assessment is utilized as an independent or “stand-alone” risk/need assessment instrument (Van Voorhis et al., 2008). In addition to incorporating “strength-based” items, the new assessments highlighted issues involving mental health, healthy relationships, stress related to parenting roles, prior abuse, and self-efficacy (Buell, 2010).
Current Research. Researchers involved in the NIC project report that early indications at least suggest that “risk assessments incorporating factors shared by men and women (gender-neutral) and those noted in the gender-responsive literature were found to be predictive/valid for women offenders” (Van Voorhis et al., 2010, p. 263). In fact, several programming needs for women appear to be risk factors for their adjustment to prison. Van Voorhis found that needs associated with a history of abuse and victimization, mental health and substance abuse problems, and difficult or unhealthy intimate relationships were linked to the occurrence of serious behavior misconducts within the first year of incarceration for women (Wright et al., 2012).
Taylor and Blanchette (2009) contend in their research that women’s pathways to crime must inform risk assessments for women. They note, “immense value is gained by recognizing women offender’s unique life experiences, offending context, and social location. The complex question is how to account fairly and justly for gendered pathways to crime” (p. 224). This area requires additional research since there is a continuing debate over whether gender-neutral or gender-specific risk factors best predict misconducts by women prisoners. There is some evidence that a gender-neutral assessment like the LSI-R is useful in assessing women offenders; however, Morash (2009) raises the question as to whether it is the best predictor for them. Some researchers continue to argue that gender-specific risk assessments are the best way to account for women’s needs, especially when added to gender-neutral assessments (Taylor & Blanchette, 2009; Van Voorhis et al., 2010; Wright, Van Voorhis, Salisbury, & Bauman, 2009), meaning that both gender-neutral and gender-specific assessments are needed to understand risk factors and predict misconducts for women.
Correctional Programming
Women in prison have many needs that can and should be met by the correctional system. These needs include medical and mental health issues, substance abuse treatment, parenting and family relationship issues, and education and job skills training. Given the array of programs needs and the fact that many of these issues are interconnected, it is important that prisons use holistic approaches that can be individually tailored to women (Adams, Leukefeld, & Peden, 2008; Browne et al., 1999; Koons et al., 1997). Programs and services should also emphasize building strengths, skills, and empowerment for women offenders (Koons et al., 1997; Morash et al., 1998; Morash & Schram, 2002) and should include wrap-around services for them in the community as well (Adams et al., 2008).
Physical Health
Women prisoners have considerable health problems that must be addressed while they are incarcerated. They are likely to have more health issues than both men and women in the general population, and also more than incarcerated men (Anderson, 2003). Many women come to prison with very little prior preventive medical care and a history of limited access to proper health care in the community (Daane, 2003; van Wormer, 2010). Some of these health care needs are unique to women and are related to their reproductive systems (e.g., pregnancy and prenatal care, gynecological needs). Their needs in prison may range from prenatal care to treatment of sexually transmitted diseases, or even treatment for major illnesses, such as cancer (Anderson, 2003; Daane, 2003). They may also have chronic health problems due to prior abuse (DeHart, 2008). Prisons have difficulty providing adequate health care services to women offenders. Despite the fact that more health care services are provided in today’s correctional system than in the past, there continues to be concerns, including (1) limited access to treatment compared to their male counterparts; (2) poor quality care; and (3) the use of unqualified medical professionals that show little concern for women and their health care needs (Anderson, 2003, p. 55).
Abuse and Victimization
The Pathways Perspective (research on women’s pathways into crime) highlights the prominence that prior abuse and victimization play in women’s involvement in crime and the criminal justice system. Research consistently demonstrates that incarcerated women have extensive histories of abuse and violence (Browne et al., 1999; DeHart, 2008; Gilfus, 1992) and report higher levels of prior abuse than do male inmates, 57% versus 16%, respectively (Harlow, 1999; see also, Belknap, 2003). Their abuse includes physical, sexual, and emotional incidents (Browne et al., 1999; Gilfus, 1992; Glaze & Maruschak, 2008). What is more, they tend to experience abuse and violence throughout their lifetime (i.e., childhood, adolescence, and adulthood) at the hands of multiple victimizers (DeHart, 2008). Many of these women offenders turn to drugs so that they can handle the pain and trauma; researchers refer to this as “self medication” (Chesney-Lind, 2000; McClellan, Farabee, & Crouch, 1997; Morash & Schram, 2002). For some women, prisons represent a “safe haven” for them away from their abuser and the chaos that is their life on the outside (Henriques & Manatu-Rupert, 2001). Access to programming to address trauma and abuse is essential since it represents an opportunity to counsel women about healthy relationships, empowerment, and responses other than turning to alcohol and other drugs.
Mental Health
Mental health issues are substantial among the correctional population and the problem has steadily worsened over the last several decades (Lord, 2008; Morash & Schram, 2002). National statistics from 2005 suggest that over half of all prison and jail inmates have some form of mental health problems (James & Glaze, 2006). The problem appears to be more exacerbated among female inmates, with 73% of female prison inmates (vs. 55% of males) and 75% of female jail inmates (vs. 63% of males) identified as having a mental health problem (James & Glaze, 2006). In sum, female inmates are considerably more likely than their male counterparts to suffer from mental illness, with a vast majority of women suffering from some mental health deficiency (Glaze & Maruschak, 2008).
Mentally ill women have difficulty understanding the prison environment, following rules, and participating in available programming. Referred to as “prison’s untouchables” by a former prison superintendent, mentally ill women are frequently misunderstood, stigmatized, and find themselves at the lowest end of the prison hierarchy (Lord, 2008). Because of their erratic behavior and propensity to harm themselves and others without warning, they are often isolated within the prison setting. Prisons are not equipped to handle the large number of incarcerated women with mental illnesses (Lord, 2008), and lack the necessary programming, services, staff, and bed space necessary to effectively address this population. Essentially, mentally ill women in prison remain stigmatized and misunderstood with few resources to remedy their circumstances (Lord, 2008).
Substance Abuse
Female offenders have serious drug histories with many reporting use of drugs in the month leading up to their current imprisonment (Mumola, 2000). In fact, illegal drug use is higher among women than men prisoners (Greenfeld & Snell, 1999; McClellan et al., 1997). Correctional systems do not have enough programs and services to address the level of need of the large number of women in prisons or entering prisons with drug-related problems. Providing drug treatment for women while they are in prison and then in the community setting is critically important (Johnston, 1995; Owen, 2001), but treatment must recognize the differences in patterns of substance abuse between men and women.
Correctional addictions programs do not necessarily assess the multiple problems of women offenders. Women are frequently placed in programs that were designed for males (e.g., use confrontational approaches), and which do not typically work well for them (Shearer, 2003). Experiences with abuse and violence are pervasive among women prisoners, and they frequently deal with feelings of worthlessness, depression, and the need to please others around them (Shearer, 2003). Programs for women prisoners need to address the mental health problems (i.e., anxiety, depression) and traumatic experiences (i.e., victimization, abuse) that are often associated with drug use. Women’s drug use is also connected to other high-risk behaviors, such as the sharing of needles, exchanging sex for drugs, contracting sexually transmitted diseases, and engaging in unprotected sex with multiple partners (Shearer, 2003). Nevertheless, studies show that women can succeed in drug abuse programs (Dowden & Blanchette, 2002; Johnston, 1995).
Children and Family Relationships
Almost 66% of women prisoners report leaving at least one dependent child behind when they entered the prison system (Glaze & Maruschak, 2008). Incarcerated mothers feel a great deal of shame and regret for how their own decisions have negatively impacted their children’s lives. They worry about who will care for their children during their incarceration and fear the possibility of losing their parental rights (Morash & Schram, 2002). To avoid losing custody of their children, incarcerated women may resort to placing the children in tenuous environments that are themselves rife with chaos, danger, drug use, abuse, and violence (Sharp, 2003). Children of incarcerated women may react to the separation by getting angry, depressed, doing poorly in school, and acting out in other ways (Morash & Schram, 2002). It is important to provide opportunities and programming that encourage continued communication and contact between incarcerated women and their kids with many prisons offering some form of parenting programs or visitation programs to help maintain and strengthen this relationship (Sharp, 2003). These programs are important since children can serve as a motivating factor for women offenders (Brown & Bloom, 2009); therefore, facilitating a positive and healthy relationship between both should be an important objective for the correctional system.
Considerations of Race/Ethnicity and Class in Gender-Responsive Practices
In addition to gender, other statuses like race, ethnicity, and class are important in shaping women’s experiences. According to Bloom, “race and class can also determine views of gender-appropriate roles and behavior. Differences exist among women based on race and socioeconomic status or class” (Bloom et al., 2004, p. 32). These differences are reflected by the variations of those who enter into the criminal justice system. For instance, the imprisonment rates for women differ by race, with Black females having the highest incarceration rate (149 per 100,000), followed by the incarceration rate for Hispanic females (75 per 100,000) and the rate for White females (50 per 100,000) (Sabol, West, & Cooper, 2009).
The war on drugs policies of the last several decades had a tremendous impact on Black females with some researchers equating the era to a war on poor women and women of color (Bush-Baskette, 1999; van Wormer & Kaplan, 2006). Many of these women were once punished in the community setting, but instead more recently have been incarcerated for their involvement in drug-related crimes (Bush-Baskette, 1999; Bloom et al., 2004). The war on drugs campaign had a disproportionate impact on women offenders. From the mid-1980s to the mid-1990s, approximately one-third (32%) of the increase in male incarceration rates were attributed to drug offenses, whereas about half (49%) of the increase in female incarceration rates during this time were attributed to drug offenses (Mauer, Potler, & Wolf, 1999). Furthermore, the number of women sentenced to state prisons for drug-related crimes grew by 888% compared to 116% for violent offenses and property crimes respectively (Mauer et al., 1999, p. 5). The result of these drug and sentencing policies was that more women, especially ones with limited economic resources and women of color, were incarcerated in higher numbers than previously (Bloom et al., 2004) and represented a disproportionate share of those sentenced to prisons around the country (Mauer et al., 1999).
Black women face complex social conditions and extreme powerlessness outside of prison. According to Henriques and Manatu-Rupert (2001), “it appears that the gendered roles African American women learn, aspire to, and seek so desperately to maintain work to imprison them. It appears, too, that these women have been imprisoned at various points in their lives in other, more symbolic ways as a result of their social exclusion, witness to the economic frustration felt by African American men, and their abuse and victimization that is an outgrowth of this inequality at both the social and economic levels in the Unites States” (Henriques & Manatu-Rupert, 2001, p. 224). Morash and Schram (2002) state that, “at the heart of a gender-responsive program is the recognition that women exist in a social context and structure that affords access to choices and opportunities according to class, race, ethnicity, and gender. Gender-responsive programs change women and their circumstances so that they get out of destructive relationships, get access to good jobs, and can negotiate effectively for resources from welfare and health care providers” (p. 167). In sum, gender-responsive practices must not only address the unique needs of women overall, but they also must recognize that there are key differences among women offenders; differences that take into account experiences influenced by social location and oppression that are linked to race, ethnicity, and class identities.
How do We Fix It? The Future and Gender-Responsive Practices
Gender-responsive practices are relevant to both male and female offenders; consequently, our approaches to both populations should reflect the unique needs of all who come into contact with the criminal justice system. Understanding the pathways offenders take into the criminal justice system helps us respond appropriately to their risks and needs. Because males are the dominant offender population, much of our understanding of offenders to date, and the policies and practices used to process and punish them, are based on our knowledge of men. Both researchers and practitioners argue that women offenders require a different approach, one that is responsive to their unique needs and experiences and informed by research. Put simply, gender along with race and socioeconomic status shape women’s lives in critical ways. Scholars believe that gender-informed practices are necessary so that women offenders can succeed in negotiating the prison system and in reentering society as more prepared, productive, and empowered citizens (Bloom et al., 2004).
In the first section of the current chapter, we discussed the background and importance of gender-responsive practices for women offenders. We found that women offenders have endured a history of neglect, oversight, and approaches steeped in traditional gender stereotypes (Fox, 1984; Grana, 2010; Rafter, 1990). At certain points in history, incarcerated women were treated the “same” or equal to their male counterparts and at other times they were treated differently from males (Rafter, 1990). After decades of research involving women offenders and considerable debate as to whether our response should be informed by equality or equity, a substantial amount of research now supports the belief that gender matters and that there is a serious need for policies and practices that acknowledge these distinct differences. In other words, the approaches we use with women offenders should reflect parity and equitable treatment. Equitable treatment rejects the notion of sameness and instead promotes equal funding and programming options that are appropriate and correspond to the needs of incarcerated men and the needs of incarcerated women (Bloom, 2012).
In the second section of this chapter, we detailed the current state of gender-responsive practices in the correctional system, focusing specifically on assessment and classification, programming, and managing or supervision of women prisoners. We found that progress has been made on several fronts. For instance, Van Voorhis and the National Institute of Corrections collaborated together to develop and validate gender-informed assessment tools that correctional systems can use as either a supplement (i.e., referred to as a “trailer”) to an existing instrument, or as a “stand-alone” tool. Preliminary research suggests that there are gender-responsive factors that can improve on gender-neutral instruments (Wright et al., 2007; Wright et al., 2009). This is an area where research should continue to examine the usefulness of gender-informed assessment tools and continue to determine what is best to use with incarcerated women.
In this section, we also discussed what gender-responsive programming might look like and what management or supervision approaches for working with women offenders might entail. Needed programming areas include mental health and abuse, substance abuse, parenting, and job skills training (Koons et al., 1997). Again, a sizable amount of research details women’s programmatic needs and required services; however, we know very little about the actual impact of programs and their overall effectiveness. In terms of management and the supervision of incarcerated women, research suggests that women are less violent, pose less of a risk while in prison (Belknap, 2007; Rafter, 1990), and do their time in different ways than incarcerated men (e.g., they are more emotional, talkative, seek out connections to others, worry about their kids) (Schram et al., 2004). Interest and attention in this area of corrections is growing. Researchers believe that gender-responsive practices have relevance here as well, in terms of management and supervision styles that are appropriate to use when working with women who have histories of abuse, tend to value relationships, and experience their time in prison differently than do men. This is an important area of research, and further work on initiatives such as GIPA and the WOMCC are warranted.
One of the most important lessons learned from the current chapter is that gender-responsive practices are informative for all parts of the criminal justice system. Bloom, Owen, and Covington (2004) maintain that it is necessary to examine the gendered effects of public policy. They state
although their numbers have grown, … public policy has ignored the context of women’s lives and that women offenders have disproportionately suffered from the impact of ill-informed public policy. The policies—both within the criminal justice system and other social arenas— ignore the realities of gender. (p. 31)
Future research should focus on how policies in the sentencing area (i.e., mandatory minimums and truth-in-sentencing initiatives) influence women’s sanctioning and increasingly incarcerate women for non-violent offenses. Many women who are currently incarcerated for their offenses could be effectively sanctioned under community supervision.
The criminal justice system may not know where to begin when determining the relevance of gender-responsive practices for their agencies and overall system. Bloom and her colleagues (2004) suggest that those who are interested in developing gender-informed policies and approaches should ask themselves the following questions so that gender-informed knowledge can guide their decisions:
How can correctional policy address the differences in the behavior and needs of female and male offenders?
What challenges do these gender differences create in community and institutional corrections?
How do these differences affect correctional practice, operations, and supervision in terms of system outcomes and offender-level measures of needs?
How can policy and practice be optimized to best meet criminal justice system goals for women offenders? (p. 44)
Chapter 15
Restorative Justice
Donna Decker Morris
Restorative justice represents a paradigmatic shift in society’s response to crime. The established criminal justice system involves only two parties—the government and the defendant. The victim and/or members of the community impacted by the crime are generally considered irrelevant, except as witnesses. When a crime occurs, the issues are determining what law was violated and finding, prosecuting, and punishing the perpetrator. In contrast, restorative justice recognizes and includes victims and the community as integral participants in the process. Moreover, restorative justice considers the much broader questions: who was harmed by the crime, what is the nature of the harm, and how can the harm be repaired (Braithwaite, 2003, p. 1; Perry, 2002; Roche, 2006; Umbreit & Greenwood, 1999; Umbreit, Vos, Coates, & Lightfoot, 2007; Van Ness & Strong, 1997; Zehr, 1995, 2002)?
Restorative justice takes many forms, but for the justice to be considered restorative, there are several necessary elements. There must be a focus on reparation of harm, assisting the victim(s), offender accountability, and protection of the victim and all involved in the crime and its aftermath. Involvement of all stakeholders—victim, offender, families/community, and government—and usually the inclusion of some sort of dialogue process is also critical. With this inclusive approach, there is a restructuring of community and government roles in promoting reparations and restoration of persons and the community, with an increased role for the community impacted by the crime. Finally, as much as possible, restorative justice promotes the reintegration of victims and offenders into their community(ies). Common restorative program forms include victim-offender dialogue, group conferencing, circles, and/ or community boards; however, these dialogue processes are only a portion of what makes a program restorative.
The Back Story: Historical Perspectives on Restorative Justice
The theory and practice of restorative justice have evolved during the past forty years from multiple sources, including community and social justice efforts, recognition and adoption of some indigenous people’s response to crime, the victim’s rights movement, peacemaking/faith-based initiatives, and alternative conflict resolution scholarship and practice. Detailed histories of the development of restorative justice have been presented by scholars like Paul McCold, Daniel Van Ness and Karen Heetderks Strong, and Mark Umbreit and colleagues (McCold, 2008; Van Ness & Strong, 2010; Umbreit et al., 2007). For a brief chronology of restorative justice practices, refer to Box 15.1.
Box 15.1: Timeline of Restorative Justice Practices
1971—V/O (Victim-Offender) Mediation—Minnesota Restitution Center diversion & restitution program in Minnesota for adult male property offenders & Night Prosecutor Program—diversion in Columbus, Ohio
1974/5—VORP programs (Victim-Offender Reconciliation Programs)—“Kitchener experiment” in Canada, followed by VORP program
1976—Circle process first used in criminal case in Canada
1977—Brooklyn Dispute Center funded by Victim/Witness Assistance Project—V/O Mediation
1978—Three experimental neighborhood justice (V/O Mediation) centers funded by DOJ—still operating in Atlanta, Los Angeles, & Kansas City
1978—VORP in U.S. in Elkhart, Indiana
1980s—Expansion of community mediation centers and VOM (Victim-Offender Mediation) programs with funding from federal & private foundation sources
1982—Circle process in Navajo Peacemaker Courts
1989—New Zealand juvenile justice reform—conferencing model implemented nationally 1991—Family Group Conferencing (FGC) started by police (community policing context) in Wagga Wagga, Australia
1991—Sentencing circle process began by judge in Yukon, Canada
1993—Balanced and Restorative Justice (BARJ) Project—national initiative of the Office of Juvenile Justice and Delinquency Prevention (OJJDP)
1994—Group conferencing model introduced in United States
1995—Reparative board programs established in Vermont
1998—Restorative justice circles in Minnesota implemented off reservations
1990s—International development of RJ (restorative justice) programs
1999—Nova Scotia Restorative Justice Program initiated in four communities; expanded provincewide by 2001
2000—10th UN Congress on Prevention of Crime adopted resolution promoting RJ in criminal justice process
2002—UN Economic and Social Council adopted Resolution on Restorative Justice: “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters” [E/CN.15/2002/5/Add.1]
Currently—Hundreds of individual programs in U.S. and hundreds of international programs, many of which are systemwide
Community Justice
Community justice has been defined as referring “to all variants of crime prevention and justiceactivities that explicitly include the community in their processes and set the enhancement of community quality of life as a goal” (Karp & Clear, 2000, p. 1). Key elements in community justice include viewing the community as an “active agent” in partnership with traditional justice entities, taking a problem solving approach to enhance public safety, building capacity within the community, evaluations based on community outcomes—not just crime control or recidivism, and restorative justice as the orientation (Roman, Moore, Jenkins, & Small, 2002, p.7; Bazemore & Schiff, 2001; Karp & Clear, 2000). Thus, the focus in community justice efforts is the community itself and the quality of life for persons living in a particular location, not merely responses to crime, especially particular instances of crime (Crawford & Clear, 2001). Formal community justice programs began in the 1980s with community policing and drug courts, and since then have expanded with initiation of community courts, community prosecutor programs, and similar efforts. (e.g., see Clear, Hamilton, & Cadora, 2011; Nicholl, 1999; Bazemore & Schiff, 2001). Community justice programs seek to focus resources in high crime areas and engage citizens in ways that not only attack specific crime problems using formal social controls of the criminal justice system, but also improve quality of life and promote social justice in neighborhoods; this is achieved through increased resources and collaboration in ways that strengthen informal social controls. For it is recognized that strong informal social controls provide the most significant deterrence of crime. Thus, community justice efforts combine programs, such as community policing, citizen patrols and neighborhood watches, community courts with focused social services and community service requirements, halfway houses, and similar programs, and services to promote citizen and community involvement. These programs seek to reduce crime through increased detection and arrests of offenders, but also to assist offenders in rebuilding their lives, to avoid future crime involvement, and to assist citizens in the community with development (Clear et al., 2011; Gilbert & Settles, 2007; Bazemore & Schiff, 2001). An example of concerted efforts to restore a community is demonstrated by the Red Hook Community Justice Center, which was created in 2000 in New York (Center for Court Innovation, 2012).
In addition to formal community justice programs, grassroots social justice efforts not only inform community justice, but also more directly contribute to development of restorative justice. Out of the 1960s and 1970s movements for civil rights, women’s rights, economic rights, and the human rights of indigenous people emerged greater consciousness of the negative impacts of the criminal justice system on disadvantaged communities and the need to empower people within communities. This was in contrast to the increased professionalization of criminal justice and social service programs during that time. As a result, the need to improve social justice as a predicate for stronger communities is recognized by proponents of community justice initiatives (Clear et al., 2011).
Out of this recognition of the need to empower communities and the emerging development of conflict resolution thinking, community mediation centers were developed in many locations, providing mediation of disputes, many of which might otherwise result in criminal processing. In some instances these were separate from the criminal justice system, and in other cases community mediation organizations collaborated with the criminal justice system through the mediation of disputes referred by the police or the courts. In what appears to be the earliest such program, the Institute for Mediation and Conflict Resolution was established in 1969 in New York City to mediate community conflicts and personal disputes. The first recognized examples of direct collaboration by community mediation organizations with the criminal justice system in the United States occurred in 1971 with establishment of the mediation diversion project through the Minnesota Restitution Center and the Night Prosecutor Program in Columbus, Ohio. In the subsequent twenty years, many community mediation organizations emerged across the United States, with similar entities developing in Australia, the United Kingdom, and Europe. By 1990, approximately 400 community mediation organizations existed in the United States, with a few locations like the State of New York providing formal, legislated public support for a network of mediation centers, although in most states there was limited governmental support and collaboration (McCold, 2008; National Association For Community Mediation (NAFCM), 2012). Community mediation inclined toward a focus on interpersonal and community disputes where offenders and victims, or mutual offenders, knew each other and resolution of the underlying conflict was necessary to prevent further problems. In part as a result of this, the community mediation approach had a tendency to approach the conflict from a neutral stance and to see both sides as equal parties in the “dispute.” At times, this approach was in conflict with the emerging victims’ rights movement and what developed as fundamental principles of restorative justice of focusing on the nature of the harm and repairing the harm—not merely reaching an agreement to settle the immediate “dispute.” However, as community mediation matured, it frequently became a provider of victim-protective as well as community-focused restorative justice programs, often in collaboration with the formal justice system diversion efforts.
Victims’ Rights Movement
The victims’ rights movement was another major influence in the development of restorative justice. In modern Western criminal justice systems, victims were relegated to witnesses for the prosecution at best, and often disregarded entirely in the process of government prosecution against criminal defendants. This was not always the case. In ancient times, most crimes were viewed as offenses against the individual victims and there were systems of restitution for victims for the harms caused by the particular crimes, with enforcement assisted by whatever governmental authority. This was true even in early colonial America, although this no longer applied in continental Europe because increasingly powerful monarchies developed in the Middle Ages, and crimes were transformed into offenses against the king’s peace rather than offenses against individual victims. Through fines or confiscation of property, punishment, both physical and financial, was meted out by governmental authorities with any money collected going into the monarch’s treasury. The only remedy left for victims was to attempt to recover through the developing civil court systems (Tobolowsky, Gaboury, Jackson, & Blackburn, 2010). Thus, in practical terms restitution for victims became virtually impossible (Roberts, 1990).
The development of the academic study of what became known as victimology started in the mid-twentieth century, evolved into the modern-day victim’s movement in the 1960s and 1970s, and was then followed by formal, governmental recognition and national and state legislation in the 1980s (Roberts, 1990; Tobolowsky et al., 2010). Significant reforms achieved were: the recognition of crime victims’ rights to information from the prosecution about the cases against the person who had harmed them; consideration of the impact of the crime on them during sentencing, achieved through victim impact statements; the opportunity to be heard during proceedings involving the offender; the opportunity to receive reparations; the provision of direct services to address victims’ needs; and the prevention for further harm (i.e., evidence shield laws in rape cases) during prosecutions (Tobolowsky et al., 2010; Van Ness & Strong, 2010).
In some of the early Victim Offender Reconciliation Programs (VORPs) and other restorative justice programs, too much emphasis may have been placed on reconciliation and efforts to help offenders and endeavors to reduce recidivism. In these instances, victims felt pressured to participate and were expected to forgive the offenders and accept reconciliation, which further imposed duress and harm on the victims, contrary to the intended philosophy. As a result, there was a time that victims’ advocates were inclined to oppose restorative justice programs. Their concerns, however, were recognized and adaptations were made by restorative justice proponents to refocus and help to ensure victim protections, which resulted in greater collaboration and increased sensitivity to victims’ needs by proponents of restorative justice (Umbreit et al., 2007). Also, in the mid-1990s in the United States, the Balanced and Restorative Justice (BARJ) approach was developed and researched with support by the U.S. Department of Justice to provide best practice models for implementation which addressed the needs of victims as well as juvenile offenders (Pranis & Bazemore, 1999). In 1994, the American Bar Association (ABA) approved Criminal Justice Policy on Victim Offender Mediation/Dialogue recommending adoption of restorative dialogue incourts throughout the country, but including recommended protections for both victims and offenders, such as voluntary participation (American Bar Association, 1994). In 1995, a leader of the victims’ rights movement endorsed broad implementation of restorative justice programs in a monograph published by the National Organization for Victim Assistance (NOVA), Restorative Community Justice: A Call to Action (Young, 1995). While most no longer see restorative justice as contrary to victims’ rights andneeds, collaborative efforts are continuing for groups and agencies, and for restorative justice programs to truly protect the needs of victims (see Achilles, 2004; Achilles & Stutzman-Amstutz, 2008; Amstutz, 2004; Herman, 2004; Strang, 2004).
First Nation Peoples and Village-Based Cultural Philosophies
In contrast to the individualistic philosophies of modern European-based cultures, including the United States, communitarian philosophies of first nation peoples and village-based cultures emphasize community harmony and community harm when crime occurs were also influential in the development of restorative justice. For example, after a crime, the process used for addressing the crime and its consequences, the goals of the process, and the decision-making sources of authority generate justice models that contrast with European-based justice systems (see, Schweigert, 2002a and 2002b). Traditions from the Maori of New Zealand and the Native Americans of North America have been particularly influential beyond their own cultures, while practices from many other cultures have also contributed.
Many indigenous cultures use relatively informal processes to deal with crime. In contrast to a formal police/prosecution/judicial system, community leaders are called on or initiate the response when a crime occurs. The process is often dialogue-based and usually involves not only the victim and offender, but often family members and others in the community who know the immediate parties or were in some way impacted by the crime. For example, the Navajo way of peacemaking is directed by appropriate naat’aanii (respected members of the community who are the natural leaders) who engage others in a talking-out process; a process where people discuss what happened—including varying perceptions of what happened, why the events happened, feelings about what happened and the impact on them and their relationships with others, and then what to do to repair the harm and prevent future problems (Zion & Yazzie, 2008). This process of finding consensus through dialogue is also evident in the methods used by other indigenous cultures for resolving conflict arising from crimes or other harms (e.g., application of ubuntu (African concept of one’s humanity as expressed in relationship to others/community) approach, see Louw, 2006).
Specific practices of conference and circles have emerged from these consensus-based processes. The Navajo Nation on its reservation in the southwestern United States in 1982 formally established Peacemaker Courts employing restorative circles for criminal cases (McCold, 2008). The first incorporation of a Native American circle process into a Western criminal justice system is generally considered the sentencing circle applied to a case in the Yukon Territory of Canada in 1992. Circles have been adapted to non-aboriginal settings and are starting to be used in programs throughout North America and in other parts of the world (Van Ness & Strong, 2010). The application of this circles process ranges from the use of original sentencing circles, to corrections settings involving conflict reduction or reentry programs, to school-based programs dealing with youth (Pranis, 2005).
Sources of authority for determining whether a crime has occurred and what should be done about it are based on the unwritten cultural norms, or customs, of the community rather than written laws adopted by a formal government entity (see Zion & Yazzie, 2008). What drives the processes, however, are the philosophical roots and resulting goals. Following the disruption by a crime, the community seeks to restore harmony or peace in the relationships among community members for the good of the entire community. For example, Navajo peacemaking seeks to find and follow the appropriate “life way” based on talking out the problems involved with, and created by, the crime, its impact, the participants’ understandings and feelings, and then by application of the “problem-solving concept of nahat’a.” This problem-solving component is much more than simply resolving the “dispute” in Western terms. Rather, Navajo peacemaking explores how to repair the harm in its broadest sense, how to prevent it from happening again, and thus to restore the right relations among the people (Zion and Yazzie, 2008, p. 152). Similarly, the southern African concept of ubuntu also emphasizes relationships among people and the healing of breaches in relationships, including the community, when crimes occur (Louw, 2008). This concept was incorporated into the South African government’s statement of principles for “development of social welfare policies and programmes” (South African Department of Welfare, 1997, p. 10).
Ubuntu is defined as
The principle of caring for each other’s well-being … and a spirit of mutual support … Each individual’s humanity is ideally expressed through his or her relationship with others and theirs in turn through a recognition of the individual’s humanity. Ubuntu means that people are people through other people. It also acknowledges both the rights and the responsibilities of every citizen in promoting individual and society well-being. (p. 12)
At the same time, being truly human under ubuntu means respecting each person and implicitly recognizing and protecting differences among people, which protects individuals and limits forced consensus through dialogue (Louw, 2008, 167). Thus, under the principle of ubuntu the goal of criminal justice is the healing and restoration for all concerned, not prosecution and punishment of the offender (Louw, 2008).
Central to rebuilding relationships within the community in such traditional processes is reparation for the victims. Providing reparations or some form of compensation for the victims serves to make amends for the wrong and relieve the perpetrators’ shame from offending community norms, thus providing the basis for rebuilding relationships within the community (e.g., Howley, 2002).
In the 1980s in New Zealand, the Maoris became increasingly concerned about the impact of the western-style criminal justice system that was at odds with their traditional, communitarian culture. Too many of their children were being removed from their families and communities by the government’s criminal justice system. The authorities were likewise concerned with the high levels of incarceration of children and with their recidivism. Following proposals, dialogue, and pilot programs, the result was the passage of the groundbreaking Children, Young Persons and Their Families Act of 1989 that established a restorative justice system, with conferencing as a central component, for all juvenile cases, except homicides, throughout New Zealand. It is also significant that the process rested on a family welfare model with major involvement by the Department of Social Welfare (McCold, 2008; MacRae & Zehr, 2004). Thus, New Zealand was the first country to implement nationwide a restorative justice process for juveniles rooted in first nation traditions.
Faith-Based Influences
Faith-based organizations and individuals also played a significant role in developing restorative justice practice and philosophy. The Mennonite Central Committee was instrumental in the Kitchener experiment and in the subsequent establishment of the Community Justice Initiatives Association’s victim offender reconciliation program (VORP) in Ontario, Canada, as well as the establishment of thefirst VORP program in the United States in Elkhardt, Indiana (McCold, 2008; Peachy, 1989; Umbreit, Coates, Kalanj, Lipkin, & Petros, 1995). The Center for Justice and Peacebuilding of Eastern Mennonite University supports scholarship and restorative justice programs and is the home of Howard Zehr, often referred to as the grandfather of restorative justice (Van Ness & Strong, 2010). Prison Fellowship International supports many programs working with victims and with prisoners (both within prisons and for reentry), and also provides an online clearinghouse for restorative justice news and information. The major faith traditions promote respect for all persons, compassion, and healing, which can be described as a positive peace among people, exemplified in the concept of shalom (Hadley, 2008; Van Ness & Strong, 2010).
Common Themes in Restorative Justice Programming
Common threads found in all these cited sources is the recognition of the failures of formal, government controlled, punitive criminal justice systems; a desire for a more humane system that strengthens communities and provides healing for victims; and opportunities for offenders to rejoin those communities. The restorative justice vision is a transformative one; it does not merely involve a different response approach to instances of crime by the criminal justice system, but instead reflects “a holistic change in the way we do justice in the world” (Braithwaite, 2003, p. 1). Thus, restorative justice is considered the means for creating a positive peace in our communities and society instead of an ineffective, negative peace based on a strong police presence (the occupying force model), incarceration, and further disintegration of communities (Zehr, 1995; Van Ness & Strong, 2010).
The Current State of the Policy
The principles and practices which developed and coalesced into what is generally known as restorative justice emerged approximately 40 years ago as a result of deep discontent with, and recognition of, the failures of established criminal justice systems. However, to date in the United States, despite multiple, isolated and often diversionary or net-widening programs, restorative justice has limited systemic impact. In reality, in many respects the criminal justice system in the United States has become even worse. Disadvantaged populations are alienated from the justice system and tend to perceive it as not legitimate. While some progress has been made in reducing re-victimization by the system and state practices vary considerably, many victims are still generally ignored, with only victims of serious, violent crimes generally receiving advocacy assistance, opportunities to be heard in sentencing decisions, and notices of results and offenders’ status. Lengths of prison sentences and incarceration rates have increased dramatically, to the point that this country leads the world in the imprisonment of its citizens—not an enviable first-place position (e.g., Bonta, Jesseman, Rugge, & Cormier, 2008). Recidivism rates for persons released from prisons range from approximately 35% for first time juvenile offenders to an average of about 43%, measured as reincarceration for adults incarcerated in state prisons and released in 2004 (Pew Center on the States, 2011). Combining state and federal expenditures, the United States spends approximately 57 billion dollars annually to incarcerate its citizens, which does not even include the cost of “supervision” of over 5 million persons on probation or parole (Guerino, Harrison, & Sabol, 2011; Glaze, 2010; Pew Center on the States, 2011). Yet, finally there are signs that policy makers and the public may be recognizing the problems with the criminal justice system, in part due to the enormous costs as well as the high levels of recidivism. Consequently, policy makers and the public may be receptive to recognizing that restorative justice provides a better approach.
From the first programs in the United States in the early 1970’s in New York, Minnesota, and Ohio, restorative justice programs in some form spread throughout the United States, with over 400 programs in existence today. Restorative justice programs also expanded worldwide. In 2002, the United Nations Economic and Social Council adopted a Resolution on Restorative Justice, titled Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. This was followed by the adoption of acall to implement restorative justice programs by the 11th United Nations Congress on Crime in the Bangkok Declaration:
To promote the interests of victims and the rehabilitation of offenders, we recognize the importance of further developing restorative justice policies, procedures and programmes that include alternatives to prosecution, thereby avoiding possible adverse effects of imprisonment, helping to decrease the caseload of criminal courts and promoting the incorporation of restorative justice approaches into criminal justice systems, as appropriate. (Article 32)
In 2006, the United Nations Office on Drugs and Crimes published a Handbook on Restorative Justice Programs, which included “Basic Principles on the Use of Restorative Justice Programmes inCriminal Matters” as an appendix. Currently, well over 80 countries implement at least some restorative justice programs (Van Ness, 2005), including several countries which have adopted broadly based national or state/province level programs (e.g., Archibald & Llewellyn, 2006).
Basic principles of restorative justice include (a) focusing on the harm caused by the crime—especially to the victim, but also to the community and offender rather than merely on the rule violation; (b) seeking to repair the harm; (c) accountability for repairing harm, primarily the offenders, but in some cases others may have obligations to repair harms; (d) involving all stakeholders—victim and community as well as offender and government—in decision making through a collaborative process; and (e) reintegration/restoration of victim, offender, and community (Raye & Roberts, 2004; Umbreit, 2001; Van Ness & Strong, 2010; Zehr, 2002). As Howard Zehr explained, restorative justice is based on a “commonsense understanding of wrongdoing” that views crime as “a violation of people and of personal relationships” that “create obligations … to put right the wrongs” (Zehr, 2002, p. 19). This is in contrast to typical criminal justice systems that focus on the rule violations and punishment for offenders of the violations (Zehr, 2002; Van Ness & Strong, 2010).
Restorative justice tends to be misperceived as a “get out of jail free” approach that is soft on crime, or as an ill-conceived reversion to disparate, personal justice which reinforces unequal bargaining and deprivation of constitutional protections, without any consistency on application of the law (Delgado, 2000). Neither view is accurate. In a restorative justice process, offenders must take responsibility for their actions, which is in contrast to the legal due process model where offenders deny responsibility. Offenders must repair the harm they caused as much as possible, in contrast to the traditional criminal justice approach of punishment without reparation to the victims. While there are increasingly criminal dispositions that include some attempt to order restitution or community service, these changes actually reflect the impact of the victim’s rights and restorative justice movements, although as currently practiced the attempts are only limited and not truly restorative. Moreover, in cases of serious offenses as well as in cases in which offenders are considered a threat to the community or refuse to accept responsibility, offenders are likely incarcerated, at least for some period of time.
Even with some of the problems that may arise with the improper application of restorative justice, the problems pale in comparison to the failures of the current system. Even Delgado in his criticism of restorative justice admits that the current criminal justice system almost completely fails to live up to the supposed positive ideals of consistency in application of law and punishment, protection of due process, and use of punishment to satisfy “society’s need for retribution or vengeance” (Delgado, 2000, p. 761). The retributive model assumes that justice is achieved by carrying out society’s need for vengeance by inflicting pain on the offender in supposed equal measure to the pain inflicted on a victim. Of course, such “justice” conceives of fairness as an equality of suffering, which only results in an overall increase in pain in the world (Walgrave, 2004). This idea of justice as fairness in equality of pain totally breaks down and fails to account for victimless and status crimes. Retributive justice then becomes blatantly the application of coercive power to cause pain to those persons who have arguably not harmed anyone else—except perhaps themselves in a paternalistic sense. In these situations, also, retributive justice only serves to double the pain imposed on the so-called offender.
Four major restorative justice models emerged in the criminal justice context: victim-offender mediation/dialogue, family group conferencing, community reparative boards, and peace-making circles or sentencing circles (Bazemore & Umbreit, 2002). These programs are applied in variousstages across the entire spectrum of the criminal justice process—from diversion, particularly with juveniles; pre-conviction, as an adjunct to plea bargaining; post-conviction and pre-sentence, which may or may not impact sentencing; post-sentence as part of the sentencing process or requirements; separately, at the request of those impacted by the crime; and increasingly in reentry. In addition, victim impact panels are increasingly used in corrections settings, as well as the importation of mediation, conferencing, and circles into correctional settings (Gaboury & Ruth-Heffelbower, 2010). Other restorative justice programs may include community courts, drug courts, or community service and restitution options to the extent that these programs implement restorative justice principles and practices.
Victim-offender mediation and family group conferencing involve direct dialogue between the victim and offender. In general, participants in the victim-offender mediation model are limited to the victim, offender, and mediator, although in juvenile matters the parents are also usually present. Even in adult dialogues, supporters or others impacted by the crime may be present. However, the number of participants is generally quite small. Moreover, in the mediation model supporters generally have somewhat limited roles (Bazemore & Umbreit, 2002). In contrast, family group conferencing includes the victim, the victim’s family and supporters, the offender, the offender’s family and supporters, and other community members who may have been harmed or affected by the crime (Bazemore & Umbreit, 2002; Bradshaw & Roseborough, 2005; MacRae & Zehr, 2004). These two models are the most frequently used and studied, particularly the victim-offender mediation model (Bazemore & Umbreit, 2002; Latimer, Dowden, & Muise, 2005; Umbreit, Coates, & Vos, 2001; Pelikan & Trenczek, 2008).
It should be noted that the term “mediation” is a contested concept, although there seems to be little dispute about the general nature of the process—a dialogue between the victim and offender facilitated by a mediator. Early programs in the United States used the term “victim offender reconciliation programs” (VORP). Because of concerns with the connotations of the term “reconciliation” by victims and the emerging victims’ rights movement, the term “victim offender mediation” (VOM) is now more commonly used. However, even the term “mediation” generated concern, because of the implications that it was similar to the settlement-driven process often used in civil matters. Also, because of continuing concerns from victims and prosecutors/criminal justice personnel that mediation implied a “neutral” mediator facilitating a “dispute” between equal parties, in contrast to a criminal matter with an identified victim who needs to be protected and/or at a minimum, an identified offender who has committed a crime. In part because of these concerns that the term “mediation” implies mediator’s neutrality and a settlement-driven process, as often the case in court-affiliated civil mediation, VOM became frequently labeled restorative dialogue or restorative conferencing (Umbreit, Coates, & Vos, 2008). Of course, these terms do not clearly distinguish a dialogue between two or a few people from a dialogue involving several or many people, which can be the case in group conferencing or circles, nor do the terms distinguish the process differences.
A foundation of restorative justice theory is that the process is transformational for the individuals involved. For the victims, the intended effect of a restorative justice process is to provide healing, reparation for the harm caused by the crime, and a restored sense of safety and integration in the community. The offender is expected to take responsibility for his or her actions, experience remorse, make reparations, and through this process be reintegrated into the community in a positive way. Accordingly, it is expected that the offender is then less likely to reoffend (Bazemore & Umbreit, 2002; Moore & McDonald, 2002; McGarrell & Hipple, 2007; Schweigert, 2002b). In part, it is this promise of stopping the cycle of criminal behavior, especially with juveniles, that has made restorative justice increasingly appealing for criminal justice professionals and policy makers, even without sharing the more philosophical concepts of restorative justice proponents.
In addition to diversionary, pre-conviction, or immediate post-conviction sentencing applications of restorative justice, increasingly restorative justice is being applied in correctional settings. Within prisons, circles and restorative dialogue are being used to reduce violence, especially among inmates with lengthy prison sentences. In some cases, victim-offender dialogues are taking place between victims (or family member survivors) and the perpetrator of violent offenses, such as rape or murder. These take place at the request of victims who have questions only the offender can answer or who want to confront the person who caused so much harm. The results often go far beyond what offenders thought possible and provide a basis for healing, for the victim, and also even for the offender (Gaboury & Ruth-Heffelbower, 2010).
Another frequent correctional approach is the use of victim impact panels in preparation for reentry. In these cases, victims from the community engage in facilitated dialogues with an offender or offenders through victim impact panels. In these panels, the victims are representative in that they do not meet directly with those who personally offended against them; instead, victims speak to strangers about their experiences. The victims who participated in these panels report high levels of satisfaction. Victim impact panels are employed in nearly every state in the United States. The primary purpose of these victim impact panels is to promote acceptance of responsibility and to reduce recidivism on completion of the offender’s lengthy sentence. Some reported results from such programs are highly promising, with reduced recidivism rates following reentry. Another reentry model is conferencing or a narrower restorative dialogue among the offenders and their families. Reentry is highly stressful for both the offender and the offender’s family, especially after lengthy incarcerations. Restorative dialogue assists both the offender and family members (Gaboury & Ruth-Heffelbower, 2010).
What Research has Taught Us
Restorative justice practices have been extensively studied in North America, Australia, New Zealand, the United Kingdom, and Europe. Reflecting the dominant models used in the various countries, in Europe and North America the great majority of research was on victim offender dialogue (mediation) programs, with group conferencing mainly studied in New Zealand and Australia. Existing research analyzed recidivism and various qualitative measures of satisfaction, procedural justice (fairness, opportunity to be heard), and emotional benefits for victims (e.g., reduced fear, healing). Overall, the results of this research are highly favorable for restorative justice programs, especially victim-offender dialogue. This research is summarized and then followed by a discussion of program-generated difficulties, and further research needs.
In North America, most of the research on victim-offender mediation (VOM) programs for juveniles reports decreased recidivism, although some results varied (Umbreit et al., 2001). Some of this research was questioned due to design flaws, such as absence of control groups, non-equivalent control groups, and self-selection bias (Bradshaw & Roseborough, 2005; Umbreit et al., 2001). It should be noted, however, that these methodological problems are largely an artifact of program and funding limitations, since with few exceptions there was insufficient funding and institutional support for strong experimental designs, particularly random assignments with control groups. Also, definitions of recidivism ranged from reconviction within one year to any re-involvement with the juvenile justice system, making generalization across studies more difficult (Bradshaw & Roseborough, 2005). However, in a large cross-site analysis of victim-offender mediation programs using matched control groups from programs in the midwestern and western United States, Umbreit (2001) reported significant reduction in recidivism of juveniles in the mediation programs compared to similar offenders in court-administered restitution programs. A reanalysis of four previous studies also reported a significant reduction in recidivism by juveniles who participated in victim-offender mediation (Nugent, Umbreit, Winamaki, & Paddock, 2001). And in a recent meta-analysis of previous studies, the effectiveness of victim-offender mediation in reducing recidivism was confirmed (Bradshaw, Roseborough, & Umbreit, 2006).
Another meta-analysis of restorative justice programs, including both published and unpublished research, also reported a significant reduction in recidivism (Latimer et al., 2005). In this study, programs meeting the operational definition of “restorative justice” as “a voluntary, community-based response to criminal behavior that attempts to bring together the victim, the offender, and the community, in an effort to address the harm caused by the criminal behavior” were included in the analysis so that programs implementing various models at varying stages of the criminal justice process were included (Latimer et al., 2005, p.131). This analysis also included adults as well as juveniles. A more recent meta-analysis which up-dated these previous studies found not only overall reduced recidivism from restorative conferencing, but also greater effects in more recent program studies, possibly reflecting better program designs and training of facilitators (Bonta, Jesseman et al., 2008).
A study of long-term effects of a restorative justice juvenile diversion program in a largely rural and small city midwestern population found that referral to the restorative justice program, reduced juvenile recidivism both quantitatively and qualitatively (severity of re-offense) relative to a matched sample comparison group. Although originally designed as a victim-offender dialogue program, in practice this program served as a hybrid program, which included victim-offender dialogue when appropriate or possible and, when a dialogue was not appropriate or possible, then the program used informal community panels, or even simply dialogue with the program facilitator. At intervals over four years, the study evaluated both long-term effects and survival rates and controlled for various factors, such as age, race, gender, urban (small city) versus rural residence, seriousness of offense, and prior offenses (Bergseth & Bouffard, 2007). Restorative dialogue programs, in particular victim-offender mediation, yielded high levels of satisfaction and perceptions of fairness by victims and offenders, which was in marked contrast with levels of satisfaction and perceptions of fairness by victims and offenders in the traditional criminal justice system. Participants in victim-offender mediation perceived both the process and resulting agreements to be fair to both victims and offenders. Significantly, these high levels of satisfaction and perceptions of fairness also produced satisfaction and perceptions of fairness of the criminal justice system itself by participants in VOM (Umbreit et al., 2008).
In Europe, VOM is also the predominant restorative justice model applied, with similar success. Victims and offenders report high levels of satisfaction with the process and outcomes. Also, victims participating in restorative justice programs had significantly higher levels of satisfaction than victims in the regular criminal justice system. In addition, offenders participating in restorative processes had lower rates of recidivism (Pelikan & Trenczek, 2008).
Less empirical research is available on family group conferencing (FGC). In a recent meta-analysis of restorative justice dialogue programs, the available research on family group conferencing using control groups reflected mixed results. Although restorative justice dialogue programs, including both VOM and FGC, produced significant reductions in juvenile recidivism, the effect for VOM programs was significantly greater than for FGC programs. One study found that the impact of FGC programs differed little or not at all from the impact of traditional juvenile justice approaches (Bradshaw & Roseborough, 2005). However, among young first-time offenders who participated in family group conferencing, a recently reported study in Indianapolis using an experimental design found significantly reduced recidivism, both in terms of frequency and survival of effect (McGarrell & Hipple, 2007). Research in Australia and New Zealand also showed some mixed results, but particularly in New Zealand, conferencing produced reductions in re-offending (Maxwell, Morris, & Hayes, 2008). A major factor reflected in these different results may be in the program designs and the role of the facilitator. For example, some of the programs with less favorable results used police facilitators, while more successful ones used social service or community facilitators who are not directly part of the prosecuting agencies. In addition, the nature of the offense involved may also be a factor, since there may be little difference in results between traditional process and restorative justice referrals for young, first-time offenders who committed minor offenses.
A recent study of a community-based restorative justice program in a major metropolitan area in the southwest with a diverse juvenile population also found reduced recidivism for juveniles in the restorative justice program compared to juveniles in the traditionally processed comparison group whose terms of diversion were defined by probation officers. The restorative justice diversion program studied consisted of community justice committees which combined elements of group conferencing and community reparative boards. In their analyses, the researchers not only controlled for factors, such as race, gender, age, offense, and number of prior offenses between groups, but also considered the mediating effect of these factors on program impact. For example, the restorative justice program produced an even greater reduction in recidivism for girls than for boys (Rodriguez, 2007).
Various research concerns in the extant restorative justice literature have been identified, both by the researchers and by critics, including the nature or lack of comparison groups, potential self-selection bias, non-response bias, definition of recidivism, and effect of other potential meditating factors (e.g., gender, age, etc.) (Bergseth & Bouffard, 2007; Bradshaw & Roseborough, 2005; Bradshaw et al., 2006; Latimer et al., 2005; Lemmon et al., 2012; McGarrell & Hipple, 2007; Rodriguez, 2007). For example, until recently, gender had been largely ignored in the reported literature; the studies involved predominantly male populations (see summary in Latimer et al., 2005). However, Rodriguez (2007) found that gender had a significant mediating effect; the impact of the restorative justice diversion program studied on reducing juvenile recidivism was even more pronounced for girls than for the boys. Further research is also needed on the impact of program design, particularly the degree to which programs follow best practices in both design and in training/selection of dialogue facilitators, referral criteria, and the degree to which the programs are restorative (e.g., Zehr, 2002). Often a problem in conducting research in this area is that the researchers have little control over design features and referral criteria. Both cooperation from agencies and criminal justice professionals in designing programs that can more thoroughly test these issues, as well as finding sources of funding to develop and evaluate such programs, are needed to refine our understanding of restorative justice programs and define best practices for replication.
Race, Gender, and Class Implications
Gender implications in restorative justice vary based on whether the perspective is offender or victim based. With respect to offenders, much of the research focused on male offenders (Latimer et al., 2005). More recent research that assessed programs with substantial numbers of female juvenile offenders found a greater reduction in recidivism for girls referred to the restorative justice program compared to a matched sample. Thus, while the restorative justice intervention decreased recidivism for both boys and girls, the effect was even stronger for girls (Rodriguez, 2007). Additional research is needed to consider whether there are differences in gender impact, under what circumstances, and why.
Whether victims’ experience with restorative justice is mediated by gender is an important question, but one which has not been considered empirically. Conceptually, restorative justice is seen as holding great promise for improving victims’ lives (Achilles, 2004; Strang, 2004). For victims of domestic violence and sexual assault, who are predominantly female, practitioners were often reluctant to apply restorative dialogue processes because of concern of the power imbalances or the emotional trauma from the violence/assaults. On the other hand, restorative justice in these situations may provide increased benefits due to the victim-focus and empowerment of restorative justice.
Established criminal justice systems disproportionately impact persons from lower socioeconomic classes, minorities, and women both in terms of the rate and levels of punishment and lack of recognition and voice in deciding what is prohibited and how the punishment is enacted (e.g., Jenkins, 2004; Hakiaha, 2004). Incarceration rates are a prime example. In the United States, the incarceration of Black males is six to seven times the rate of incarceration of White males (Mauer & King, 2007; Glaze, 2010) resulting in a drastically skewed overall incarceration of African Americans. Of the 2.2 million people incarcerated in the United States in 2005, 900,000 are African American even though African Americans represent only 12.8% of the population (Mauer & King, 2007; U.S. Census Bureau, 2013). Moreover, there is substantial variation of Black-to-White incarceration rates among the states, from 13.6% (Oklahoma) to 1.9% (Hawaii), with seven states maintaining a Black-to-White incarceration rate of more than ten to one. Even worse, incarceration of young Black men is even more concentrated, with one in nine or 11.7% of all African American men ages 25 to 29 in the United States in prison (Mauer & King, 2007).
The resulting impact on African American communities is enormous in terms of employment prospects, family relations, family and community stability, and voting participation. Michelle Alexander labeled the practices of the criminal justice system as “the new Jim Crow.” Through the criminal justice system, African Americans, especially men, are not only denied the ability to vote in massive numbers, but also “subject to legalized discrimination in employment, housing, education, public benefits, and jury service,” similar to their ancestors. She notes, “we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices [of discrimination] we supposedly left behind” (Alexander, 2012, pp. 1–2).
Although the rate is much less than for AfricanAmericans, incarceration rates for Hispanics nationally is about twice the rate of non-Hispanic Whites. This varies considerably by state, however, as does the ratio of Hispanic-to-White incarceration which varies from a high of 6.6% in Connecticut to less than one-to-one (under-representation of Hispanics) in several other states. Moreover, the rate of Hispanic incarceration is increasing (Mauer & King, 2007).
Conceptually, restorative justice could reduce these disparities by empowering the primary stakeholders—victims, offenders, and community—to address crimes. Jenkins (2004) noted that restorative principles are consistent with an Afrocentric approach to crime, but that a more explicitly Afrocentric theoretical approach that emphasized community and reduced governmental dominance would enhance restorative justice practices. However, there is scant analysis or research evaluating the impact of restorative justice practices on communities of color. To the extent that racial impacts were considered in existing research on restorative justice programs, no racial differences in the positive effects of restorative justice was found; specifically, restorative justice programs lead to similar reductions in recidivism for African American and Hispanics as for Whites (e.g., Rodriguez, 2007). Yet, reducing recidivism in general does not change the definitions of “crime” or selective enforcement, which can often disproportionately target persons of color, such as the disparate treatment of crack cocaine offenders.
As a corollary to disproportionate impact, aspects of the criminal justice system are viewed as illegitimate by racial minorities and the poor (e.g., Gau & Brunson, 2010; Jenkins, 2004). Similarly, women who contest sexual or domestic violence can experience the criminal justice system as illegitimate when not only do the laws not protect them, but the system further victimizes them if they seek enforcement (e.g., Estrich, 1987; Gaarder & Presser, 2008).
In political and legal philosophy, legitimacy is founded on having an equal voice in the development of laws and on perceptions of fairness of the laws (Rawls, 1971/1999). Furthermore, people tend to obey the law when they perceive it as legitimate, whereas perceptions that the law or system is illegitimate undermine compliance with the law (Tyler, 2006). Therefore, for those on whom the laws and punishments are disproportionately imposed—racial minorities and the poor—and those who are not provided adequate protection by the law, or are further victimized by legal systems (e.g., women who suffer from victimization of sexual and domestic violence), legitimacy and compliance are undermined. In addition, in the criminal justice system juveniles with no power or say in the process also share these concerns, which can be further compounded by considerations of race, class, and gender.
In political and legal philosophy, legitimacy is founded on having an equal voice in the development of laws and on perceptions of fairness of the laws (Rawls, 1971/1999). Furthermore, people tend to obey the law when they perceive it as legitimate, whereas perceptions that the law or system is illegitimate undermine compliance with the law (Tyler, 2006). Therefore, for those on whom the laws and punishments are disproportionately imposed—racial minorities and the poor—and those who are not provided adequate protection by the law, or are further victimized by legal systems (e.g., women who suffer from victimization of sexual and domestic violence), legitimacy and compliance are undermined. In addition, in the criminal justice system juveniles with no power or say in the process also share these concerns, which can be further compounded by considerations of race, class, and gender.
As discussed in the next section on reform suggestions, restorative justice holds great promise for changing these dynamics, or at least lessening the harmful impacts. With citizens working in partnership with the criminal justice and judicial systems, communities can be rebuilt. An example is the Redhook Community Justice Center in New York City, which opened in 2000 (Center for Court Innovation, 2012). Through accepting responsibility and working to repair harm, individual lives can be rebuilt so that formerly despairing and offending people can become productive members of their communities. In New Zealand prior to implementation of a restorative justice approach for all juveniles with the enactment and implementation of the Children, Young Persons, and Their Families Act of 1989, Maori youth were disproportionately incarcerated (MacRae & Zehr, 2004). Victims can find healing through acknowledgment of the pain they suffered, acceptance, and support by members of their communities as well as reparations from offenders. Thus, restorative justice mechanisms can empower people within their own communities to discuss the impacts of crime and develop plans to respond and repair the harms. Significantly, in disadvantaged communities repair of harms often involves providing services for offenders to enable them to be reintegrated into a safer community. This local empowerment can then provide the springboard for reduced marginalization and extension of their voices into the political arena.
How do We Fix It? Suggestions for Reform
Suggestions for reform involve micro and macro elements. Several leaders in the restorative justice movement have noted concerns with actual or potential problems in implementation of restorative practices. These suggestions address design, evaluation, and essentially quality control elements for restorative justice programs in order to achieve proper implementation. A macro discussion is an attempt to discuss an overall redesign of the criminal justice system that melds the existing legal system with restorative justice, while still preserving rule of law, due process, and public safety principles. Collaboratively thinking through what such a system would actually look like and how it might function in a legal context is necessary if we are going to move toward a more just and effective system.
Areas of concern with implementation of restorative justice involve ensuring best practices, maximizing the extent programs or practices are truly restorative, and preventing “net-widening” while maximizing use. Best practices include such characteristics as voluntary participation, sensitivity to victims’ needs, proper training of dialogue facilitators, and adopting a respectful dialogue/encounter process rather than an agreement-driven process (Umbreit, 2001). Howard Zehr proposed six questions for analyzing the extent to which particular applications are effective and restorative: Do they address harm/needs/causes, are they victim-oriented, do they encourage offenders to take responsibility, is there stakeholder involvement, is there dialogue and stakeholder decision making, and do they respect all stakeholders (Zehr, 2002, p. 55). Van Ness and Strong posited three key principles for implementing restorative justice: (a) working to heal victims, offenders, and communities; (b) opportunity for all stakeholders for active involvement in justice processes; and (c) rethinking and reordering the roles of government and communities in achieving both order and peace. As an alternative to focusing on a best practices approach, Van Ness and Strong further recommended focusing on restorative values as guideposts for design, evaluation, and training: assuming responsibility for making amends, assistance for affected persons, collaboration and consensual decision making, empowerment of affected persons, opportunity for encounter, inclusion of affected parties, moral education through reinforcement of community standards, protection of physical and emotional safety as a primary concern, reintegration, and finally, resolution of the issues surrounding the offense and its aftermath (Van Ness & Strong, 2010).
As noted above, advocates for restorative justice argue for systemic change, essentially a transformation of thinking as well as practice, recognizing that the two are intertwined. Van Ness and Strong applied the principles and values they identified to redefine various models of a minimally restorative system to a fully restorative system (Van Ness & Strong, 2010). Similarly, others also argue that policy makers and practitioners need to carefully implement and monitor programs to ensure that such programs include necessary elements of a truly restorative system, follow best practices, and avoid undermining the restorative process through co-optation by system professionals or net-widening (Van Ness & Strong, 2010; Bazemore & Schiff, 2001; Zehr, 2002).
Nevertheless, too little attention has been given to overall design in practical terms, although Van Ness and Strong do identify five models for implementing restorative justice. The “augmentation model” is essentially what currently exists in the United States and in most other jurisdictions, where some parties may be referred to and choose alternative restorative justice programs at various stages in the contemporary criminal justice proceedings. The reverse of this augmentation model, is when the “safety net model” of restorative justice becomes the primary system for responding to crime with relatively fewcases processed in the traditional system. Alternatively, a dual track model envisions parallel systems with the decision about whether to proceed through restorative justice or traditional criminal proceedings made by the stakeholders. A hybrid model processes cases first through one system and then the other in a linear fashion, while a unitary model handles all cases through a restorative justice process, which the authors note presents the most challenges to consider (Van Ness & Strong, 2010). However, none of the authors adequately consider the law in their discussions.
When we are talking about a response to crime, it would seem that a threshold question must be how to best achieve justice in our responses to crime, with justice defined as achieving fairness and what is morally right (e.g., Rawls, 1999). Note that fairness and what is morally right includes justice for victims and the community as well as for offenders. Moreover, this definition of justice does not include vengeance nor arbitrary and discretionary punishments.
On a macro level, it is difficult to see how anyone can argue that the retributive criminal justice system in the United States dispenses “justice.” When an African American disabled youth is sentenced to 162 years in prison without possibility of parole as a first-time offender, is this justice? Add to that information, the crime was for a brief series of robberies of commercial establishments, with his convictions based mainly on the testimony of five accomplices who cut plea deals with sentences of nine to 22 years in prison. Based on this example alone, can it be argued that our criminal justice system even dispenses proportional or equal punishment, let alone justice (Brown, 2012)? Our prison system has also been called the “new Jim Crow” for its massive incarceration of African Americans, largely resulting from the so-called “war on drugs” (Alexander, 2012). A very large portion of persons incarcerated or on probation suffer from mental illness, but receive punishment instead of treatment. Victims continue to be sidelined and often ignored. Too many people are incarcerated, and sometimes even executed, when they are actually innocent. Debtors’ prisons have been on the rise, where people are incarcerated when they are simply unable to pay fines, only to have continued fines added to their debts by for-profit collection and jail companies (Bronner, 2012). The list of examples could go on—this is the reality of the criminal justice system experienced by massive numbers of our citizens. Thus, it is small wonder that many people who experience these injustices perceive the criminal justice system, including the laws, as illegitimate. Rather than generating respect for law and acceptance of the laws as a reflection of appropriate social norms, the current system tends to generate perceptions of illegitimacy and rejection of the law itself.
On the other hand, legal principles and protections enshrined in our judicial institutions set a gold standard for human rights—rule of law, due process, equal protection, and justice. Occasionally, for those with sufficient resources or whose cause may be taken on as test cases, the criminal justice system lives up to those ideals. Certainly, legal constraints limit injustice to some degree. It is generally recognized, for example, that the local warlord, “bigman,” or the U.S. equivalent in the form of county sheriff or judge, should not be able to arbitrarily make up the law. Instead, rule of law principles require established rules governing future conduct by all parties and define rewards and punishments for complying with and breaching the rules. In the criminal justice context, among other rights, accused are legally entitled to a speedy trial, to be informed of the charges against them, to have legal counsel represent them, to be free from coercion so as not to incriminate themselves, to obtain a trial by jury of their peers, and to challenge the legality of the charges against them, or the conduct of those prosecuting them. These rights have been established and given meaning through judicial proceedings. Recently, for example, the U.S. Supreme Court ruled that the imposition of a life sentence without possibility of parole for juveniles violates the Eighth Amendment’s ban on cruel and unusual punishment (Graham v. Florida, 2010). Equal protection and due process protections that have meaning through case decisions also constrain arbitrary abuse of power. Thus, concerns about maintaining legal proceedings and judicial decisions to advance as well as reinforce concepts of justice and their application are appropriate (see Fiss, 1984). Without test cases, development of the law stagnates.
In the movement to make criminal justice more fair and humane as well as provide real remedies for persons harmed by crime (i.e., be restorative), the importance of rule of law is not adequately recognized and discussed. Additionally, we cannot lose sight of the important advances in human rights that rule of law principles and practices have achieved. On a global scale, international efforts to promote rule of law are seen as critical to ensuring stability, economic and political development, and human rights.
Nevertheless, in the current implementation of the criminal justice system, justice tends to be lost along with respect for the fundamental legal system, while human lives are often further harmed by the system itself. While the law seeks a shared understanding of normative behavior and social order necessarily relies to a large extent on voluntary compliance with the law, when the legal system is viewed as illegitimate by substantial segments of the population, shared understanding and voluntary compliance are decreased. On the other hand, wholesale adoption of community-based justice without following legal limits may create similar injustices rather than the healing and more humane society it seeks (see, Wojkowska, 2006). We cannot forget that communities may be oppressive, both in terms of seeking vengeance against persons who have committed crimes, and in punishing people, even victims, who challenge cultural stereotypes or are seen as threatening the harmony of the community by trying to assert their own human rights, such as freedom from domestic abuse. Examples abound in many developing countries of the oppression of such community based “justice.” At the same time, advances in the law would also be curtailed by largely replacing the legal system with restorative processes. The challenge, it seems, for restorative justice should not be to supplant the legal system or to promote a parallel and competing system as has been suggested by some or understood by others. The challenge is to develop a system that integrates the best aspects of each.
What I propose is melding the two models, an idea that was generated while observing the Village Courts in Papua New Guinea. The Village Courts attempt to integrate indigenous traditions and restorative processes with the formal justice system. Although in Papua New Guinea the system is fraught with enormous political and economic problems, the basic model is sound.
Rather than being a parallel system, the Village Courts function to provide community-based justice which can then be enforced in the traditional system when the process does not result in compliance. Established by the Village Courts Act in 1973 and modified and expanded by the Village Courts Act of 1989, the Village Courts seek to apply restorative justice based on the Melanesian tradition of mediation and local custom (normative practices) to promote harmony in the communities. The Village Courts consider civil and customary law cases and minor criminal matters and may order reparations, fines, and community service, but not imprisonment. With judicial system reforms in 2000, restorative justice was established as one of the “pillars” of the Papua New Guinean justice system with efforts to expand and improve the Village Courts (Papua New Guinea Law & Justice Sector, 2000; Kimisopa, 2007). Recently, there were more than 1,100 village courts in Papua New Guinea, a country with a land mass equivalent to California and a population of approximately seven million.
As a British Commonwealth country, the formal judicial system is very similar to that of the United States, with an independent judiciary that functions as a separate branch of government and a tiered court system, in order of descending jurisdiction, consisting of a supreme court, national courts, district courts, and village courts. The supreme, national, and district courts are part of the formal court system with judges or magistrates appointed and applying constitutional, legislative, and common law (with incremental incorporation of local customary law into British/Australian common law). On election or nomination by each local area council, village court officers, who are respected members of their communities, are appointed by the government; the officers in each village court, who receive training in procedures, legal limits, and mediation skills, are several magistrates, with one of the magistrates serving as chair or chief magistrate, a clerk who maintains written records of the court’s proceedings, and one or more peace officers.
The village courts apply local custom law in a three-tiered process. Significantly, the village courts are limited both in cases they can consider and results by constitutional law and legislation. Initially, when a dispute arises, one or more magistrates may try to conciliate the matter informally. If this fails to resolve the dispute or when an offense has been committed, a formal mediation is held in which all affected parties and members of the community have the opportunity to discuss the matter. The mediation process is essentially the same as practiced in community mediation centers in the United States, with opportunity for all concerned to express what happened and the impact, discuss what is needed to resolve the dispute (in civil cases), or repair the harm (in a criminal cases), and jointly decide what will happen, which is then recorded as the mediated agreement (personal observation, 2008). A distinction, however, is that the mediation agreement is recorded for two purposes: for reference in the event a party does not comply, and for review by the government for compliance with constitutional and legislative requirements. Subsequently, if the agreement is breached, the case proceeds to a hearing (similar to an informal, but binding, arbitration hearing) before the magistrates, who after hearing from the parties involved, decide the matter by consensus of the magistrates and issue an order. If the order is then breached, the aggrieved party can take the order to the district court for consideration and formal action.
This general model could work very well in Western legal systems. Although precise details require discussion, a proposed framework for our system is as follows. Community justice centers are established, coordinating with existing community mediation organizations and civil society community organizations, operated mainly by members of the community who receive specialized training and with some administrative support, and collaborating with local governmental organizations. Once established, citizens could access the community-based process on their own initiative, or on referral from community agencies, including civil society as well as government agencies. Law enforcement entities would initially refer matters to the community justice centers within specified jurisdictional ranges (misdemeanors and nonviolent, low-level felonies) and/or refer based on voluntary choice by victims and offenders. The community justice centers would function within the communities, using existing space in such locations as schools, community centers, churches, and so forth. If victims objected to a restorative process or offenders either objected or were not willing to accept responsibility, then those cases would move forward to be processed through the traditional system. Also, seriously violent crimes and severe white-collar crimes would initially route through the traditional system, although restorative justice processes should be integrated into those proceedings. For example, as much as possible, victims should have a voice in the process involving repair of harms, as a mandatory consideration in sentencing orders, and with opportunities for restorative dialogue provided at appropriate stages. In tandem, there should be opportunities for offenders to engage in various restorative options, including during any incarceration and prerelease. The restorative processes and partnerships provided and developed in the community justice centers should also serve as resources for providing restorative dialogue and other restorative options to more serious offender cases handled in the traditional court system, as well as for reentry programs.
Adapting the village courts system to the existing system in the United States provides several advantages. First, this can provide the mechanism to implement restorative justice universally as the primary entry point through community courts, staffed by trained members of the community, and as the provider and/or coordinator of restorative processes in serious offender cases. Second, savings in traditional system costs, including savings from reduced use of incarceration for non-serious cases, can be used to fund the community court system, which includes citizen mediators/magistrates as well as some full-time staff, similar to community mediation organizations. Third, these citizen justice centers can provide significantly greater access to justice for many citizens without adequate access, including not only the poor and marginalized groups, but also the middle class and other victims (See Wojkowska, 2006). Fourth, particularly in marginalized communities, this system of citizen courts can be expected to increase perceptions of legitimacy of the legal system, since it would not be justice administered through an occupying force but rather by the community itself, resulting in increased public safety through greater compliance with the law. Fifth, with oversight by the traditional legal system and jurisdictional and, to some extent, outcome limitations, concerns about potential for excess or evasion of responsibility of offenders is obviated. Sixth, with a tiered system where orders from the citizen courts can be enforced through the traditional system in the event of noncompliance, participants are ensured enforcement without duplication of effort and resources. Seventh, with an integrated system, significant legal issues can still be processed through the traditional system in order to advance the law.
It is hoped that this proposal meets the challenge of blending the best of both restorative and traditional justice systems. At the least, perhaps it can start a practical conversation about how to blend the two systems.
Chapter 16
Three Strikes: Passage, Implementation, Evaluation, and Reform
Elsa Chen
The first Three Strikes policy was adopted by ballot initiative in Washington state in 1993. Since then, about half of the states and the federal court system have adopted Three Strikes laws. Three Strikes laws are based on the following premises: Repeat offenders are responsible for a substantialshare of violent crime; increases in sentencing severity can serve to reduce recidivism through both incapacitation and deterrence; and the most incorrigible criminals deserve particularly punitive sentences. In the early to mid-1990s, as the United States’ crime rate was reaching a peak and states were serving as laboratories for innovations in crime reduction strategies, these rationales served as the basis for numerous “tough-on-crime” policy efforts throughout the nation.
While Three Strikes laws share a common name, the details of the laws vary widely from one state to another. Variation exists in the number and types of offenses that are defined as strikes, the number and nature of convictions required to trigger an enhanced sentence, and the mandatory sentence that must be served by a repeat offender (Clark, Austin, & Henry, 1997; National Conference of State Legislatures, 1996). By August 1998, California had sentenced 4,468 third-strikers and 36,043 second-strikers under the law (Dickey, 1998). In comparison, Washington, which enacted its Three Strikes statute a year earlier, had sentenced approximately 120 third-strike offenders and three second-strikers under its more restrictive law (Dickey, 1998). By the end of 2006, every state with a Three Strikes law, other than California, reported fewer than 400 second- or third-strike convictions (Chen, 2008a). In contrast, by the end of 2003, a total of 80,087 second strikers and 7,332 third-strikers had been imprisoned in California (California District Attorneys Association, 2004).
California’s law differed from those in other states in two respects: it included a “second strike” provision, and it was not limited to violent and serious offenders. The “second strike” provision, which is still in place, requires that any individual convicted of a felony automatically receives a doubled sentence if he or she has a proven prior serious or violent offense (a “strike”) on his or her record. Until November 2012, an individual who had two proven “strikes” and was convicted of any subsequent felony could receive the “third strike” sentence of 25 years to life in prison. While the list of serious and violent offenses that count as “strikes” comprises about 26 crimes and enhancements as defined in California Penal Code sections 667.5(c) and 1192.7(c), over 500 felonies could trigger the third strike sentence, including numerous property and drug crimes, and a long list of “wobbler” offenses that could be charged as either felonies or misdemeanors. This distinctive aspect of the law changed when Proposition 36 was passed by ballot referendum in November 2012. As of November 7, 2012, the second-strike provision remains in place, but the current offense must be serious or violent in order to trigger the third-strike sentence of 25 years to life in prison. This change brought California’s law more in line with the policies in place in the rest of the nation.
This chapter focuses on California’s Three Strikes policy, which for its first eighteen years of existence was the nation’s broadest and most frequently used policy of this type. I begin with an explanation of the law and why and how it was originally passed. I continue with a discussion of the law’s implementation and an assessment of its effects on crime. Next, efforts to modify the law, including Proposition 66, which failed in 2004, and Proposition 36, which passed in November 2012, are reviewed. The chapter concludes with some thoughts about the future of Three Strikes in California, as well as suggestions for further research on the topic.
The Back Story: How the Idea Became Reality
According to political scientist John Kingdon, the success of policy ideas depends on the confluence of favorable circumstances with regard to problem recognition, the generation of policy proposals, and the political environment as well as the presence of “policy entrepreneurs” ready to devote energy and resources to their preferred proposals when the right “window of opportunity” arises (Kingdon, 1984). The passage of the Three Strikes law in 1994 fits Kingdon’s theoretical framework well.
Violent crime was a well-recognized problem in the early 1990s. While the crime rate was rising across the United States, California faced a particularly severe situation. The state had the second highest violent crime rate in the nation in 1993 (U.S. Department of Justice—Federal Bureau of Investigation, 1993). Violent crime, as measured by both the Uniform Crime Reports and the National Crime Victimization Survey, had been rising steadily for about a decade (U.S. Department of Justice, Office of Justice Programs, 1985–1996), and criminal justice experts predicted that the situation would only worsen in the foreseeable future (Ruth & Reitz, 2003). Frequent media reports of rampant and random violence heightened the public’s awareness and fear of violent crime (Ruth & Reitz, 2003). Meanwhile, frustrations ran high over the apparent ineffectiveness of the existing state of sentencing and incarceration. A report by former U.S. Attorney General William Barr cited an alarming statistic: Violent offenders nationwide were serving an average of only 37% of their sentences before being released (Barr, 1992).
Support for increased toughness on crime was high among both the general public and political leaders. The Gallup poll found that the proportion of people who identified crime as “the most important issue facing the country today” rose from nearly zero in 1991 to a peak of over 50% in 1994 (Turner, Fain, Greenwood, Chen, & Chiesa, 2001). Other opinion polls indicated that the public had low confidence in the criminal justice system, felt that courts were not dealing harshly enough with criminals, and were increasingly willing to prioritize punishment over rehabilitation and to spend money to control the crime rate (Turner et al., 2001). Mentions of “crime” in the presidential papers and “violent crime” in the congressional record also peaked in 1994 (Turner et al., 2001).
States and local jurisdictions hastened to adopt policy efforts to control and reverse these trends. Congress passed a comprehensive Violent Crime Control and Law Enforcement Act in 1994, which provided grants to the states to fund crime-fighting initiatives, including building prisons, lengthening time served for inmates convicted of violent crimes, expanding “boot camps” for delinquent youth, monitoring sex offenders, and hiring police officers (U.S. Congress, 1994). Other ideas proliferated, including “zero-tolerance” policing in New York (Kelling & Bratton, 1998), efforts to abolish or curtail the use of parole in Texas (Petersilia, 1999), the use of prison chain gangs in Alabama and Arizona (Burley, 1997), the adoption of gang injunctions in Los Angeles (Gibeaut, 1998), and active use of the death penalty in Texas (Sorensen, Wrinkle, Brewer, & Marquart, 1999). Three Strikes was just one of a myriad of “tough on crime” proposals attracting the attention of the public and policy makers throughout the United States.
The California Three Strikes law was not initially written by a policy expert, but rather by a professional photographer from Fresno, Mike Reynolds, whose 18-year-old daughter, Kimber, had been shot and killed in a robbery attempt in June 1992 (Skelton, 1993). In his grief and anger, Mike Reynolds drafted a proposal loosely modeled on the measure that had passed by ballot initiative in the state of Washington, but with changes that made it far broader in scope. With support from his Assemblyman, Bill Jones, Reynolds originally attempted to get the Three Strikes law passed through the California legislature. Despite the best efforts of Reynolds and Jones, the proposal’s most persistent advocates, “Three Strikes” initially received only lukewarm support in the legislature and among the public. The measure was defeated in the Assembly Public Safety Committee when it was first introduced (Moore, 1999). However, a compelling “focusing event,” the heinous kidnap and murder of a young girl by a repeat offender, provided the window of opportunity for Three Strikes’ advocates to attract the public and political attention and approval they needed for the bill to succeed.
In October 1993, twelve-year-old Polly Klaas was abducted at knifepoint from her suburban Petaluma, California, home during a slumber party. Her strangled body was eventually found at an abandoned lumber mill (Anderson, 1994). She had been murdered by Richard Allen Davis, a repeat offender with an 11-page-long rap sheet, listing 17 prior arrests, including three for kidnapping and sexual abuse (Franklin, 1994). Davis was remorseless and repulsive in his attitude and behavior (Vitiello, 1997a). At the time that he murdered Polly Klaas, he had recently been freed from prison after being released for good behavior halfway through a 16-year sentence for kidnapping. The events of this case and Davis’s name and photograph were highly publicized by the media in California and beyond. Polly Klaas’s victimization and Davis’s arrest and trial drew the public’s attention to the issues of repeat offenders and early prison releases. The petition in support of the Three Strikes ballot initiative, which had until then collected only 20,000 signatures, rapidly accumulated well over the 385,000 signatures required to put it on the November 1994 ballot. The initiative also attracted the support of powerful interest groups and political candidates during that election year (Vitiello, 1997b). The National Rifle Association offered political and financial support for Three Strikes, as did the 24,000-member California Correctional Peace Officers Association, another politically powerful group. Three Strikes also had the support of the California Gun Owners Association, the Republican Party, and the campaign committees of Governor Pete Wilson and United States Senate candidate Michael Huffington (Vitiello, 1997a).
Realizing that this policy proposal had attracted a groundswell of public support, the California legislature passed the Three Strikes bill, and the governor signed it, in March 1994. Eight months later, the Three Strikes ballot initiative, Proposition 184, was approved with 71.9% of the popular vote in the 1994 California election. While the ballot initiative reiterated the language already approved by the legislature, it strengthened Three Strikes; changes to laws passed by ballot initiative in California require a majority vote in a subsequent ballot initiative or a two-thirds vote in both the Senate and Assembly rather than a simple majority vote in the state legislature (League of Women Voters California Education Fund, 2010).1 This was a primary reason that the law remained unchanged for eighteen years.
1 An exception to this occurs if the text of the initiative expressly permits legislative amendments.
The Current State of the Implementation of Three Strikes
While Three Strikes is a statewide law, its implementation is carried out at the county level. Research has found that substantial variation exists in the law’s application from county to county, and even from case to case within counties. A major source of discretion is the ability to dismiss or ignore prior serious or violent offenses, which must be “pled and proved,” to avoid triggering a second- or third-strike sentence. Prosecutors have always been granted this discretion, and the California Supreme Court’s decision in People v. Superior Court (Romero) extended similar decision-making authority to judges (CaliforniaLegislative Analyst’s Office, 1997). A second source of discretion is the prosecutor’s authority to determine whether to charge what is known as a “wobbler” offense as a misdemeanor, which carries a maximum sentence of one year in jail, or as a felony, which could carry a 25 years to life prison sentence if it were charged as a third strike under the original form of the law (Chen, 2008b).
The penal code allows prior strike convictions to be dismissed or ignored by prosecutors or judges “in the furtherance of justice.” This discretion is used very frequently. A study using data from 2006 found that among California prison inmates admitted to prison between 2002 and 2006 with two prior serious or violent convictions before the current felony conviction, only 14% were actually serving sentences of 25 to life, even though they were all technically eligible for the third-strike sentence (Chen, 2013). Frequent use of prosecutorial and judicial discretion has served as a “safety valve,” helping to prevent California’s already overcrowded prisons from becoming even more overwhelmed with nonserious and nonviolent inmates, and keeping the costs of implementation below some of the highest initial estimates (California Legislative Analyst’s Office, 2005; Greenwood, Rydell, Abrahamse, Caulkins, Chiesa, Model, & Klein, 1994). Strong evidence indicates that much of the variation in implementation results from prosecutors’ and/or judges’ exercise of this discretion in an effort to restore some proportionality to sentencing under Three Strikes. A clear positive correlation was found between the severity of an offender’s current offense and the likelihood of having received a 25-to-life sentence (Chen, 2013). Furthermore, all else equal, eligible offenders with a higher number of serious and violent priors were also more likely to be serving third-strike sentences (Chen, 2013).
What Research has Taught Us: The Effects of Three Strikes
Three Strikes was passed in California with the stated intention of enhancing public safety through the incapacitation and deterrence of repeat offenders. As evidence of the law’s effectiveness at crime reduction, proponents of the law point to the fact that crime rates have declined dramatically in California since the law’s passage. For example, in opposition to Proposition 36, the “Save Three Strikes” web page stated: “What’s to fix? Shortly after 3 Strikes passed in 1994, California crime dropped in half. Half the crime also has meant half the criminals” ( Statements like this imply that Three Strikes was responsible for the dramatic decline in crime rates, but fail to acknowledge other facts: crime rates began dropping before Three Strikes was enacted; crime rates fell as much and even more in many states that did not adopt Three Strikes; and declines in crime were no larger in California counties with high rates of Three Strikes usage than in counties that applied the third-strike penalty sparingly (Chen, 2008a; Zimring, Hawkins, & Kamin, 2001).
Several methodologically rigorous analyses have investigated whether the Three Strikes’ crime reduction objective has been accomplished. Prominent criminologist Michael Tonry provided a summary of fifteen major published empirical analyses of the deterrent effects of Three Strikes in California, and found that only one concluded that the policy had led to a statistically significant reduction in crime (Tonry, 2009). The other 14 studies concurred that California’s Three Strikes law did not significantly reduce crime, despite the fact that the researchers relied on a variety of different units of analysis (including cities, counties, and states) and statistical methods (including econometric time-series designs, noneconometric time-series comparisons between California and other states, time-series comparisons of counties in California with varying rates of Three Strikes usage, and comparisons of different demographic populations within California) (Tonry, 2009). In fact, three of the studies found an association between Three Strikes and higher homicide rates, which the authors attributed to an increased motivation among those facing third strikes to eliminate victims, witnesses, and/or law enforcement officers (Kovandzic, Sloan, & Vieraitis, 2002; Marvell & Moody, 2001; Moody, Marvell, & Kaminski, 2002).
According to a cross-sectional, time-series analysis of state-level data from all 50 states over 20 years, California’s Three Strikes law, despite its breadth, had little impact on crime trends above and beyond the effects of the narrower Three Strikes laws in other states (Chen, 2008a). This conclusion seems counterintuitive, given that 100,000 felons have been sent to prison for second and third strikes in California, and so many fewer have been sentenced under the law in other states. How, one might ask, could the incapacitation of so many criminals have had no clear effect on crime rates? One possible explanation is capacity constraints. Because California’s prisons have been full beyond capacity since before Three Strikes was adopted, keeping Three Strikes inmates incarcerated longer has prevented non-strikers from serving as much time in prison. The most violent and serious offenders with third-strike sentences probably would have received long sentences, even in the absence of Three Strikes. However, if nonviolent, nonserious, aging third-strike inmates serving long mandatory prison sentences are less dangerous than the other criminals who were prevented from remaining in prison because of limited capacity, then declines in violent and serious crimes could very well not occur (Chen, 2012).
Although Three Strikes had negligible effects on crime in California, it had substantial effects on the correctional population and the state’s budget. A study conducted by the nonprofit Justice Policy Institute attributed about $10.5 billion in additional prison and jail expenditures from March 1994 to September 2003 to the law, with $6.3 billion the result of longer prison terms (Ehlers, Schiraldi, & Ziedenberg, 2004). More than half of the cost was for the incarceration of individuals whose third strike was nonviolent (Cost of ‘three strikes’ law, 2004). A May 2010 report on California’s prisons by the California State Auditor concluded,
about 25 percent of the inmate population was incarcerated under the three strikes law … On average, we estimate that these individuals’ sentences are nine years longer because of the requirements of the three strikes law and that these additional years of incarceration represent a cost to the State of $19.2 billion. (California State Auditor, 2010)
These costs, combined with severe budget constraints in California and questions about the law’s fairness, were among the driving forces behind efforts to reform the law and eventually the approval of Proposition 36 in 2012.
Race, Class, and Gender Implications of the Policy
Considerable variation also exists between counties in the exercise of prosecutorial and judicial discretion to dismiss or ignore prior strikes (Greenwood, Everingham, Chen, Abrahamse, Merritt, & Chiesa, 1998). For all or part of the law’s existence, the chief District Attorneys in three of California’s 58 counties (Los Angeles, San Francisco, and recently, Santa Clara) have already been directing deputy DAs to charge third strikes in a manner consistent with -Proposition 36 law (email interview with Debbie Mesloh, Public Information Officer, Office of San Francisco District Attorney Kamala D. Harris, October 17, 2006; Van Derbeken, 2004; Whitaker, 2000). As a matter of policy, several other district attorneys have filed third-strike sentences against all or most eligible offenders (Bowers, 2001). In other jurisdictions, third strikes have been charged on a case-by-case basis with no overarching policy. This resulted in considerable geographic disparity in offenders’ chances of receiving a 25-to-life sentence (Bowers, 2001; Zimring et al., 2001).
The odds of a third-strike sentence are influenced not only by characteristics of the defendant and his crime, but also by characteristics of the jurisdiction where an offender is sentenced. For example, as the proportion of Republicans in the county population increases, so does the likelihood that an offender receives a third-strike sentence, even when offense, prior record, and other variables are controlled (Chen, 2013). This is not surprising, since California District Attorneys and judges are elected political officials and are therefore motivated to demonstrate accountability and responsiveness to the views of their constituents. In addition, as the proportion of Latinos in the local population increases, so does the probability of receiving a third-strike sentence (Chen, 2013). The odds of a third-strike sentence are also higher where the unemployment rate is higher (Chen, 2013).
In addition to geographic disparities, racial disparities emerged in the application of Three Strikes in California. Although African Americans make up only 6% of California’s population, they comprise 34% of second-strikers in prison, and about 44% of third-strikers (Chen, 2008b). Even when legally relevant characteristics, such as current offense, prior record, and parole status are held constant, African Americans face 40% higher odds of a third-strike sentence than Whites (Chen, 2013). Prior studies found similar evidence of discrimination against African Americans in the application of habitual-offender laws in Florida (Crawford, 2000; Crawford, Chiricos, & Kleck, 1998; Crow & Johnson, 2008). Although prior research conducted in other states found disparities between Latinos and Whites in the application of mandatory minimum and habitual offender sentencing policies (Crow & Johnson, 2008; Ulmer, Kurlychek, & Kramer, 2007), evidence of similar disparities has not been found in California.
Racial disparity between Blacks and Whites is more severe when it comes to lesser offenses. The gap between Blacks and Whites in the odds of receiving a third-strike sentence is greater for property and drug offenses than for violent offenses. The difference between Blacks and Whites in their odds of a third-strike sentence is 76% for property crimes, 52% for drug crimes, and 35% for violent crimes (Chen, 2008b). Blacks also have 56% higher odds than Whites of receiving a third-strike sentence for a wobbler offense, whereas the difference between Blacks and Whites is 44% percent for non-wobbler offenses (Chen, 2008b). This statistic is consistent with the “liberation hypothesis,” which suggests that there is likely to be some consensus regarding appropriate punishments for the most egregious offenses, but less agreement regarding punishments for less serious crimes; therefore decisions regarding the latter may be more susceptible to the influence of personal opinions and biases of criminal justice decision makers (Kalven & Zeisel, 1966; Spohn & Cederblom, 1991).
It would be as unwise as it is impractical to advocate for the elimination of prosecutorial discretion in sentencing decisions. Discretion is a necessity when decisions are being made about humans whose characteristics and circumstances are not easily distilled into a few data points entered into a formula. Discretion also allows for more efficient allocation of scarce courtroom and correctional resources. However, the findings described above indicate that discretion has been exercised widely, but not uniformly, in the implementation of Three Strikes, and the variation is sometimes associated with factors that should not influence the administration of justice. The implementation of California’s Proposition 36, which removed the option to charge a third strike for a nonserious, nonviolent offense, is expected to reduce unwarranted disparities by removing much of the room for variation in the application of the Three Strikes law.
How do We Fix It? Efforts to Reform Three Strikes
From the start, opponents to Three Strikes challenged components of the law in court. In 1996, the California Supreme Court ruled in People v. Superior Court (Romero) that judges (rather than only prosecutors) had the discretion to dismiss prior felony convictions in the implementation of the law (California Legislative Analyst’s Office, 2005). In People v. Fuhrman (1997), the state Supreme Court upheld a lower court’s decision to permit multiple strike convictions to be charged from a single criminal incident (California Legislative Analyst’s Office, 2005). The constitutionality of Three Strikes under the Eighth Amendment was upheld by the United States Supreme Court in Ewing v. California (2003). The plaintiff, who had received a 25-to-life sentence for stealing a set of golf clubs, argued that Three Strikes constituted cruel and unusual punishment because the sentence was grossly disproportionate to the offense (California Legislative Analyst’s Office, 2005; Vitiello, 2003). Likewise, the U.S. Supreme Court ruled in Lockyer v. Andrade (2003) that a sentence of 50 years to life for two third-strike counts of petty theft (for stealing about $155 worth of videotapes from two different Kmart stores) did not violate the Eighth Amendment (Horn, 2004).
In addition to challenges in court, efforts to modify the law have been made through two ballot initiatives subsequent to the original Three Strikes initiative. The first, Proposition 66, appeared on the ballot in November 2004. Proposition 66 sought to require that all three offenses needed to be serious or violent in order to trigger the 25-to-life sentence. It also tried to remove burglary of an unoccupied residence, attempted burglary, and six other crimes from the list of “serious and violent” felonies that could count as strikes. The measure also required all strikes to be tried and convicted separately so that multiple strikes could not result from one criminal act. Inmates whose cases did not meet the terms of the modified law were eligible for resentencing. Finally, in an effort to allay the fears of those whose memories of Polly Klaas had not faded, Proposition 66 required 25-to-life prison terms for second-time child molesters (California Legislative Analyst’s Office, 2004).
The “Yes on Proposition 66” campaign was funded by over $5 million in donations from a handful of wealthy individuals, while the “No on Prop. 66” side received only about $71,000 from the California Organization of Police and Sheriffs (National Institute on Money in State Politics, 2004; Teji, 2011). The measure led by a margin of 62% to 21% among registered voters responding to a Los Angeles Times poll conducted just two weeks before the election, and by an even greater margin according a Field Poll taken earlier in October 2004 (Mathews, 2004). However, election results reflected an enormous shift in public opinion just before the election. Ultimately, the measure lost. Analysts attributed the measure’s sudden loss of voter support to several factors. Confident in his own reelection bid, Governor Arnold Schwarzenegger refocused his energies during the two weeks leading up to election day on a media campaign to defeat Proposition 66 that was financed by last minute donations, including $3.5 million from Henry T. Nicholas III, a billionaire whose daughter had been a murder victim, and over $138,000 from the California Correctional Peace Officers Association, which represents the state’s prison guards (Kravets, 2004; Teji, 2011). Television ads, including one starring Schwarzenegger, “shifted debate on the proposition from images of drug addicts and petty thieves serving unfairly harsh prison sentences to hardened criminals receiving get-out-of-jail-free passes” (Martin, 2004). The wording of Proposition 66 also contained ambiguities that raised fears regarding the potential early release thousands of prison inmates, and its efforts to redefine “serious and violent crime” seemed too extensive to many critics (Kravets, 2004; Martin, 2004). Finally, Schwarzenegger portrayed wealthy businessman Jerry Keenan’s $2 million contribution to the “Yes on 66” campaign as an effort to buy freedom for his son, who was serving prison time for two vehicular manslaughter convictions (Kravets, 2004). Concerns raised by these issues were serious enough to convince 53.2% of California voters to vote against this effort to reform Three Strikes (Mathews, 2004).
Eight years later, in the context of a very different economic and political climate, California’s voters approved Proposition 36 by a margin of 69.3% to 30.7% (Bowen, 2012), with majority support in every one of the state’s 58 counties (Leonard & Dolan, 2012b). This ballot measure, passed on November 6, 2012, and effective the next day, made two major changes to the “Three Strikes and You’re Out” sentencing policy:
Nonserious or nonviolent new felonies no longer trigger third-strike sentences of 25 to life. All three offenses must now be serious or violent.
Proposition 36 also applies retroactively to certain inmates sentenced to 25-to-life for nonviolent, nonserious third strikes. Based on data from the California Department of Corrections and Rehabilitation (CDCR), approximately 2,900 current prison inmates may be eligible for resentencing as “second strikers.” Successful petitioners will receive shortened sentences, and some will be released on the basis of time served (California Secretary of State, 2012).
At the same time, the existing law’s “second strike” provision remains intact. The revised law still requires a doubled sentence for any offender with two prior serious or violent felonies who is convicted of a new nonserious, nonviolent felony. In addition, Proposition 36 is written so that offenders whose priors include particularly egregious crimes like murder, rape, or child molestation do not benefit; they remain eligible for 25-to-life third-strike sentences and are excluded from resentencing consideration, even if their most recent crimes are nonserious and nonviolent (Bowen, 2012).
Proposition 36 succeeded in 2012 where Proposition 66 failed in 2004 for many reasons. One was a decline in the importance of criminal justice as a salient political issue and the heightened prominence of a state budget crisis in the minds of the public. With crime rates declining or constant over the past decade, the public no longer perceived tough crime policies as urgently needed. Facing a state budget shortfall, cuts in social welfare benefits and services, poorly performing schools, and higher taxes, California voters were no longer in the mood to prioritize expensive crime-fighting approaches above other budgetary priorities. A well-publicized report by an organization called California Common Sense reported that in 2011, after three decades of growth in spending on prisons and declines in spending on higher education, the former surpassed the latter (Anand, 2012). A public opinion poll conducted by the Public Policy Institute of California in 2012 found that 64% of Californians were willing to pay higher taxes for K-12 schools, and 54% willing to pay for health and human services, but only 17% wanted to pay for prisons, and 81% opposed any such efforts (Skelton, 2013). Another poll found that 62% agreed that the governor and legislature should cut prison spending to prevent additional cuts to education, health and social services (Californians for Safety and Justice, 2012). The nonpartisan California Legislative Analyst’s office estimated that Proposition 36 would save taxpayers $70 million to $90 million a year (California Legislative Analyst’s Office, 2012), and the measure’s advocates effectively emphasized these cost savings in their messages to voters.
Polls conducted during and after the election indicated that proponents of Proposition 36 succeeded in convincing the majority of voters, including conservatives, that Three Strikes in its original form was not only too expensive, but also unfair (Turner, 2012). Although critics of Three Strikes had complained about sentencing disproportionalities associated with Three Strikes since before the original law’s passage in 1994, it took many years before moral and legal arguments, and numerous well-publicized real-life examples, such as individuals sentenced to 25-to-life for offenses like stealing a loaf of bread, a pair of gloves, or a slice of pizza (Furillo, 2012), raised the public’s concerns about the law’s fairness beyond the level necessary to create policy change. There were also doubts about the law’s effectiveness. Advocates for reform pointed to the substantial body of expert research conducted over many years that reached the consensus that the California Three Strikes law had not effectively reduced crime as its proponents had contended (Tonry, 2009).
While crafting the language of the 2012 initiative, the authors of Proposition 36 avoided some of the pitfalls that had damaged prospects for success for Proposition 66 in 2004. Proposition 36 did not narrow Three Strikes as much as Proposition 66 would have, the language was less ambiguous, and it included specific provisions exempting the worst violent offenders from reduced sentences and leaving ample room for prosecutorial and judicial discretion in the resentencing process.
The political environment was far more conducive to Three Strikes reform in 2012 than in 2004. While Proposition 66 was defeated in large part through the efforts of Republican governor Arnold Schwarzenegger, Proposition 36 appeared on the ballot with the support of the state’s popular Democratic governor, Jerry Brown, who was a persistent and outspoken advocate of exercising fiscal responsibility, balancing the state’s budget through difficult decisions, and regaining control over the growth in California’s prison populations (Skelton, 2013).
Bipartisan support also contributed to Proposition 36’s success (Leonard & Dolan, 2012a). Although the measure was opposed by the California District Attorneys Association, three prominent DAs, Steve Cooley of Los Angeles, Jeff Rosen of Santa Clara County (which includes San Jose, California’s third-largest city), and George Gascón of San Francisco strongly supported Proposition 36 in advertisements, media interviews, and public appearances (Austin, 2012). These three counties are home to 40% of California’s voters (Kaplan, 2012b). The law also had public support from other prominent Republicans, including Los Angeles Police Chief Charlie Beck (Austin, 2012); a Texas-based conservative criminal justice reform group called Right on Crime, whose signatories included Jeb Bush and Newt Gingrich (Kaplan, 2012b) and prominent fiscal conservatives, such as anti-tax crusader Grover Norquist, who stated, “the Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put a stop to wasting hundreds of millions in taxpayers’ hard-earned money, while protecting people from violent crime” (Turner, 2012). The ballot measure earned the support of 51% of Republican voters along with 81% of Democrats and 74% of independent voters (Californians for Safety and Justice, 2012). 2
2. At the same time, most Republicans opposed another ballot measure up for a vote, Proposition 34 to abolish the death penalty, which did not pass.
Finally, Proposition 36 was well-funded, receiving $1 million in support from George Soros, nearly $1 million from Stanford Law School professor and business investor David Mills, and several other substantial donations (KCET, 2012). The opponents were considerably less well-financed, and the California Correctional Peace Officers’ Association, whose generous donations had contributed to the success of Three Strikes and the defeat of Proposition 66, did not make a contribution to the “No on 36” campaign (Furillo, 2012).
Like the original Three Strikes proposal, Proposition 36 met many of John Kingdon’s (1984) criteria for effective transformation of an idea into policy. This effort at reform succeeded in 2012 because of the public’s belief that it would address important problems, because of the merits of the policy proposal as well as the well-documented shortcomings of the law it was designed to modify, and because of favorable political conditions.
Future Directions: What Lies Ahead for Three Strikes in California?
Now that Three Strikes reform has been passed, the next steps are implementation, evaluation, and continued change, if appropriate. Like the original Three Strikes law, the revised policy is being implemented at the county level. While Proposition 36 is expected to reduce geographic disparity, there remain opportunities to exercise discretion in the revised law, and perhaps even more so in Proposition 36 resentencing.
Based on data from the California Department of Corrections and Rehabilitation (CDCR), approximately 2,900 current prison inmates may be eligible for resentencing as “second strikers.” Geographically from ten California counties, 92% of the inmates who are eligible for resentencing were convicted, and would therefore be considered for resentencing.3 The resentencing provision of Three Strikes is expected to proceed quickly in some counties and more slowly in others (Kaplan, 2012a). Discussions with public defenders and alternate defenders from several counties reveal that variation already exists between counties in many aspects of Proposition 36 implementation, including efforts to communicate with inmates who are eligible for resentencing, procedures for resentencing application, personnel and other resources allocated to resentencing, and challenges from DAs.4
3. They are Los Angeles (976 inmates), San Bernardino (317), San Diego (258), Kern (226), Santa Clara (209), Riverside (207), Sacramento (207), Orange (152), Fresno (67), and Kings (67). Source: Stanford Three Strikes Project.
4. These discussions took place at a Proposition 36 Implementation Summit at Stanford University on November 19, 2012, and during a subsequent conference call on December 17, 2012.
Proposition 36 added the following language to the Penal Code (emphasis mine):
If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony … the defendant shall besentenced pursuant to paragraph (1) of subdivision (e) [i.e., doubled sentence] unless the prosecution pleads and proves [one of several exceptions].5
5 California Penal Code Section 667(e)(2)(C). The exceptions include conviction for certain felony sex offenses, child molestation, homicide, “solicitation to commit murder,” “assault with a machine gun on a peace officer or firefighter,” “possession of a weapon of mass destruction,” and “any serious and/or violent felony offense punishable in California by life imprisonment or death.”
The italicized “pled and proved” clauses remain subject to discretionary treatment. Prosecutors can continue to opt not to prove some or all prior strikes or exceptions. Furthermore, one exception, listed in section 667(e)(2)(C)(iii), is that “the defendant used a firearm, was armed with a firearm, or intended to cause great bodily injury to another person.” “Intention” may be subject to interpretation by prosecutors, juries, and/or judges.
Regarding resentencing, the Penal Code was amended to read (emphasis mine):
An inmate is eligible for resentencing if: (1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety … In exercising its discretion … the court may consider: (1) the petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) the petitioner’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.6
6 California Penal Code section 1170.126(e).
Substantial room for discretion has clearly and intentionally been written into the law. Prosecutors and resentencing judges retain the authority to assess an offender’s dangerousness, and they are afforded considerable latitude with regard to the factors that they may consider in this assessment. DAs have the opportunity to provide arguments against sentence reduction or release during resentencing hearings. Public Defenders in some counties do not anticipate much opposition from their prosecutorial counterparts, but a few DAs have already filed challenges in response to early petitions for resentencing, and still others are expected to challenge most or all petitions that come before them (Lee, 2013).
Variation in administrative processes may also lead to differences in outcomes between and within counties. In many jurisdictions, the Public Defender’s office has taken responsibility for initiating contact with most or all offenders who may be eligible for resentencing, reviewing files to confirm eligibility, filing petitions, and representing clients in hearings. However, many Public Defenders have limited staff and funds to allocate to this process. Moreover, some counties do not have Public Defenders, instead providing indigent defense on a contract basis. It is not yet clear how resentencing will be handled in these counties. There will also be variation in legal counsel among resentencing applicants, with most represented by public or alternate defenders, others represented by private attorneys, and yet others representing themselves. Research is needed to determine the extent to which the factors described here influence the outcomes of offenders seeking resentencing.
Another area of concern in the implementation of Three Strikes after Proposition 36 is what will happen to the inmates who earn early release through the resentencing process. Some will be resentenced to time served and released unconditionally, which means that they will no longer be under any form of correctional supervision, so they will lack access to the range of services normally offered to parolees (Kaplan, 2013). For these inmates, release from prison will be welcome, but challenging, particularly if they had not anticipated or prepared for their freedom well in advance and do not receive adequate resources, such as transitional housing, job training, employment assistance, or mental health care, to facilitate successful reintegration into society (Kaplan, 2013). According to criminologist Joan Petersilia, 38% of third-strikers receive mental health treatment in prison, compared to 22% of inmates in the general population (Kaplan, 2013). The average age of inmates eligible for resentencing is over 50, while for other inmates it has historically been around the age of 30.7 This age difference makes resentenced third-strikers statistically less likely to reoffend compared to the average person released from prison, but it may also be associated with greater challenges with regard to health and employment.
7 Source: personal correspondence with data analyst Jerome McGuire, California Senate Public Safety Committee, September 18, 2012.
In addition to current inmates eligible for resentencing, future offenders may be influenced by the revisions to Three Strikes. Many nonviolent, nonserious offenders will be spared the lengthy sentences that they might have received if Proposition 36 had not passed. Therefore, the biggest question regarding Three Strikes in the future may be whether the recent modifications to the law will change the behavior of potential criminals. Opponents to Proposition 36, like Three Strikes author Mike Reynolds, predict that watering down Three Strikes will embolden criminals and endanger the public by reducing the law’s deterrent effect (Leonard, 2012). Supporters of Proposition 36 argue that crime is unlikely to rise, pointing to the fact that crime rates are actually lower in counties where Three Strikes was used sparingly than in counties where DAs adhered more strictly to the law (Leonard, 2012), and they cite scholarly studies discussed earlier in this chapter that question whether the original law had a deterrent effect at all. Rigorous research is needed to determine which predictions are more accurate.
It will be a methodological challenge to separate the effects of Proposition 36 from the potentially larger effects of other changes that occurred in California’s criminal justice system around the same time, most notably the implementation of Assembly Bill 109, a major criminal justice “realignment” effort enacted in October 2011 after the United States Supreme Court’s Plata v. Brown decision, which upheld a District Court’s order to reduce overcrowding in the state’s prisons (Schlanger, 2013). As a result of AB 109, offenders whose crimes are nonviolent, nonserious, and not sex offenses, who have no serious or violent prior convictions, are now sentenced to terms in county jail, community supervision in the counties, or split sentences combining jail and community supervision instead of state prison (California Department of Corrections and Rehabilitation, 2012). Furthermore, some inmates will be eligible for post-release community supervision administered by the counties rather than parole, which is administered by the state (Silbert, 2012). In the first year of realignment, California’s prison population shrank by about 26,000 inmates, to its lowest level since May 1995 (Mintz, 2013). Citing anecdotal evidence, some local law enforcement officials have blamed the influx of former prison inmates into local communities for recent increases in crime rates, while others have expressed skepticism about these assertions (Bulwa & Berton, 2013). Claims regarding realignment’s effects on crime rates have yet to be confirmed or disproven by research, but if any effects exist, they may confound the observed relationship between the modified Three Strikes law and crime.
The Legislative Analyst’s Office (LAO) estimated that Proposition 36 would reduce prison and parole costs by $70 million to $90 million per year, with one-time resentencing costs of “a few million dollars statewide over a couple of years” (California Legislative Analyst’s Office, 2012). However, the LAO’s report added that the true savings would depend on many factors, such as the level of government services required by released offenders, potential revenue from released inmates who enter the workforce, and costs associated with any changes in the crime rate resulting from changes in the law (California Legislative Analyst’s Office, 2012). More data will have to be collected over time to determine the costs of the revised Three Strikes law and the savings associated with Proposition 36.
Three Strikes and other habitual offender laws were among many “tough on crime” policy efforts adopted throughout the nation in the early to mid-1990s in response to rapidly rising crime rates and frustration over the perceived failure of rehabilitative approaches to criminal justice (Ruth & Reitz, 2003). Although crime rates have declined nationwide over the last two decades, these laws remain in place in about half the states and the federal court system. Until November 2012, one state, California, had a Three Strikes law in place that was unusually draconian. The law’s passage in 1994 resulted from the confluence of many factors, including California’s system of direct democracy, which allows members of the public to bypass the legislature to enact laws, an atmosphere of public alarm over high and rising crime rates, and a critical focusing event, the abduction and murder of Polly Klaas and the subsequent arrest and trial of Richard Allen Davis, who epitomized the problem of lenient treatment of repeat violent offenders.
As Three Strikes was implemented by county court systems, substantial geographic disparities emerged in the law’s implementation, with some District Attorneys charging all eligible offenders with third strikes, and others reserving third-strike charges for only the most serious and violent criminals. Racial disparities have also been found in the law’s application, with African American defendants far more likely than Whites to be sentenced to 25-to-life under the law.
Questions over the law’s fairness led to efforts to modify or repeal the law in the courts and at the ballot box. In 2012, a successful ballot initiative, Proposition 36, considerably narrowed the range of offenses that can trigger a third-strike sentence. Research is needed to assess the effects of this change. If future analyses find that recent modifications to Three Strikes decrease unwarranted disparities in the law’s application without increasing crime, we might conclude that the first eighteen years of the law’s existence in California constituted a wide-ranging experiment in sentencing policy with immense monetary and social costs with limited benefits.
The public’s willingness to reform Three Strikes came at a time of dramatic change in California’s approaches to correctional policy. While severe budget constraints and an ongoing recession have forced policy makers throughout the United States to make difficult choices, these dire fiscal circumstances also opened a window of opportunity for innovative reform in criminal justice policy. Recognition of the high cost of incarceration increased political officials’ willingness to consider less-expensive intermediate sanctions for certain offenders. Concerns about persistently high recidivism rates and the easing of prison overcrowding as a result of realignment provided correctional authorities with incentives and opportunities to again think more seriously about rehabilitation. The influx of ex-inmates into local communities as a result of both realignment and the end of long prison terms imposed during the 1990s has directed the attention of policy makers and the public to the importance of reentry and reintegration. California voters’ acceptance of recent changes to Three Strikes may reflect the beginning of a shift from the “get-tough” attitudes and policies of the 1990s toward more balanced, affordable, and effective approaches to criminal sentencing.


(USA, AUS, UK & CA PhD. Writers)


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