Handbook on Inequalities in Sentencing and Corrections among Marginalized Populations 9781032145624, 9781032156316, 9781003245032

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HANDBOOK ON INEQUALITIES IN SENTENCING AND CORRECTIONS AMONG MARGINALIZED POPULATIONS

The Handbook on Inequalities in Sentencing and Corrections among Marginalized Populations ofers stateof-the-art chapters on seminal and topical issues that span the felds of sentencing and corrections. The volume is a comprehensive and fresh approach to examining sentencing and community and institutional corrections. The book includes empirical and theoretical essays and recent developments on the pressing concerns of persons of traditionally non-privileged statuses, including racial and ethnic minorities, indigenous populations, gender, immigrant status, LGBTQ+, transgender, disability, aging, veterans, and other marginalized statuses. The handbook considers a wide range of perspectives for understanding the experiences of persons who identify as a member of a traditionally marginalized group. This volume aims to help scholars and graduate students by providing an up-to-date guide to contemporary issues facing corrections and sentencing. It will also assist practitioners with resources for developing socially informed policies and practices. This collection of essays contributes to the knowledge base by summarizing what is known in each area and identifying emerging areas for theoretical, empirical, and policy work. This is Volume 7 of The ASC Division on Corrections & Sentencing Handbook Series. The handbooks provide in-depth coverage of seminal and topical issues around sentencing and corrections for scholars, students, practitioners, and policymakers. Eileen M. Ahlin is an Associate Professor of Criminal Justice in the School of Public Afairs at Penn State Harrisburg. Her research uses an ecological framework to study violence. Using a multipronged, holistic approach, she seeks to identify policies and practices that address risk and protective factors among informal and formal social controls such as neighborhoods, correctional facilities, and alternatives to incarceration. Dr. Ahlin is a 2016 W.E.B. Du Bois Fellow of the National Institute of Justice. She is author or coauthor of several books and edited volumes, including Youth Violence in Context: An Ecological Routine Activity Framework (2022), Taking Problem-Solving Courts to Scale: Diverse Applications of the Specialty Court Model (2021), and Living with Violence (2023). Ojmarrh Mitchell is an Associate Professor in the School of Criminology and Criminal Justice at the Arizona State University. Professor Mitchell earned his PhD in Criminology and Criminal Justice from the University of Maryland with a doctoral minor in Measurement, Statistics, and Evaluation. His research interests center on criminal justice policy, particularly in the areas

of drug control, sentencing and corrections, and racial fairness in the criminal justice system. More broadly, Dr. Mitchell studies the efectiveness and fairness of criminal justice sanctions. His research has appeared in many criminology journals including Criminology & Public Policy, Journal of Quantitative Criminology, Journal of Research in Crime and Delinquency, Justice Quarterly, and Journal of Experimental Criminology. Cassandra A. Atkin-Plunk is an Associate Professor and Associate Director in the School of Criminology and Criminal Justice at Florida Atlantic University. Her research interests span both institutional and community corrections with an emphasis on contemporary issues in corrections, including the reentry and reintegration of individuals returning to the community from incarceration. Dr. Atkin-Plunk examines evidence-based practices and conducts program and policy evaluations to identify what works in corrections. Her research is largely community-based, and she won the 2018 FAU Presidential Award for Outstanding Community-Engaged Research. Her research has been published in Justice Quarterly, Criminal Justice and Behavior, Journal of Criminal Justice, Journal of Interpersonal Violence, Criminal Justice Policy Review, and Journal of Ofender Rehabilitation.

TH E ASC DIVISION ON COR R ECTIONS & SENTENCING H A N DBOOK SERIES

The American Society of Criminology’s Division on Corrections & Sentencing sponsors a series of volumes published by Routledge on seminal and topical issues that span the felds of sentencing and corrections. The critical essays, reviews, and original research in each volume provide a comprehensive assessment of the current state of knowledge, contribute to public policy discussions, and identify future research directions. Each thematic volume focuses on a single topical issue that intersects with corrections and sentencing research. The contents are eclectic in regard to disciplinary foci, theoretical frameworks and perspectives, and research methodologies. Edited by Beth Huebner and Jodi Lane

Editorial Board Gaylene Armstrong, University of Nebraska, Omaha Breanna Boppre, Sam Houston State University TaLisa Carter, American University Todd Clear, Rutgers University Natasha Frost, Northeastern University Kimberly Kras, San Diego State University Dan Mears, Florida State University Ojmarrh Mitchell, Arizona State University Michael Osterman, Rutgers University Cassia Spohn, Arizona State University Jefery Ulmer, Pennsylvania State University Christy Visher, University of Delaware 6. Handbook on Pretrial Justice Christine S. Scott-Hayward, Jennifer E. Copp, and Stephen Demuth 7. Handbook on Inequalities in Sentencing and Corrections among Marginalized Populations Eileen M. Ahlin, Ojmarrh Mitchell, and Cassandra A. Atkin-Plunk

HANDBOOK ON INEQUALITIES IN SENTENCING AND CORRECTIONS AMONG MARGINALIZED POPULATIONS

Edited by Eileen M. Ahlin, Ojmarrh Mitchell and Cassandra A. Atkin-Plunk

First published 2023 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Eileen M. Ahlin, Ojmarrh Mitchell, and Cassandra A. Atkin-Plunk; individual chapters, the contributors The right of Eileen M. Ahlin, Ojmarrh Mitchell, and Cassandra A. AtkinPlunk to be identifed as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. ISBN: 978-1-032-14562-4 (hbk) ISBN: 978-1-032-15631-6 (pbk) ISBN: 978-1-003-24503-2 (ebk) DOI: 10.4324/9781003245032 Typeset in Bembo by codeMantra

CONTENTS

List of Contributors

ix

Introduction Eileen M. Ahlin, Ojmarrh Mitchell and Cassandra A. Atkin-Plunk 1 Homeless Defendants in Felony Court: Cumulative Case Outcomes and Institutional Bias Katharine L. Brown and Ojmarrh Mitchell

1

9

2 Equity in Jeopardy: How Flawed Immigration Policy Creates Double Punishments for Noncitizen Service Members and Veterans Anne S. Douds and Kyle C. Troeger

31

3 What an Examination of Previously Untested Sexual Assault Kits Tells Us about the Patterns of Victimization and Case Outcomes for Black Women and Girls Rachel E. Lovell, Adrianne M. Crawford Fletcher, Danielle Sabo, Laura Overman and Daniel J. Flannery

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4 Racial Bias and Amelioration Strategies for Juvenile Risk Assessment Leah C. Butler, Zachary Hamilton, Amber E. Krushas, Alex Kigerl and Melissa Kowalski

70

5 The Debate and Concerns of Risk Assessment with Historically Marginalized Populations Adam K. Matz

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6 Justice-Involved Populations with Disabilities: Examining Inequalities during Incarceration and Reentry Kimberly D. Dodson and Joshua R. Rufn

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Contents

7 “We, as Women, Focus on Relationships”: Women Jail Residents’ Resource Attainment Eforts via Connections with Female Correctional Ofcers Lindsay Smith and Sydney Ingel 8 Experiences of Transgender and Gender Nonconforming Individuals in Jail/Prison: Navigating Tensions L. Cait Kanewske, Angela Hattery, Shannon Magnuson, Danielle S. Rudes and Zach Zaborowski 9 Using Technology to Respond to the Safety, Housing, and Programming Challenges Associated with Transgender Inmates: Building a Research Program to Study the Efectiveness of Technology-Delivered Programming Jennifer L. Lanterman, M. Janelle R. Goodwin, Marc Bello and Morgan N. Bucy 10 The Pains of Imprisonment through a Rainbow Lens: An Overview of the Marginalized Conditions of Incarceration for LGBTQ Persons Calli M. Cain and Jared M. Ellison

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11 Incarcerated Indigenous and Native American Populations Reneè Lamphere and Matthew R. Hassett

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12 Aging in Prison: Understanding Elderly Incarcerated Populations Beatriz Amalf Marques, Stuti S. Kokkalera and Michael S. Vaughn

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13 How COVID-19 Amplifed Trauma and Marginalization among Carceral Populations: Using the Pandemic Experience to Rethink Incarceration Eileen M. Ahlin, Annie Bunce and Anna Kotova

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Index

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CONTRIBUTORS

Beatriz Amalf Marques is a doctoral student in the Department of Criminology and Criminal Justice at Sam Houston State University. She attended Damasio Law School in São Paulo, Brazil, where she was born and raised. Her research interests are centered on age-based studies of incarceration, reentry, recidivism, and criminal desistance. Marc Bello is a Captain with 27 years of service at the Washoe County Sherif’s Ofce, a full-service law enforcement agency serving the communities in the greater Northern Nevada area. He is currently managing the Operations Division where he oversees all functions of patrol services including the homeless outreach team. Prior to this assignment, he managed the jail, which houses more than 1,000 people. He was instrumental in creating the Detention Service Unit, which is intended to provide services to people confned at the jail and to support a continuum of care when these same people transition to this community. Katharine L. Brown  is a doctoral student in the School of Criminology and Criminal Justice (CCJ) at Arizona State University (ASU). She earned her Bachelor’s degree in Sociology from the University of California, San Diego and Master’s degree in CCJ from ASU. Katharine’s research primarily focuses on how individuals facing homelessness interact with the criminal justice system. More specifcally, she does work on evidence-based policing related to homelessness and gender, policy evaluation, and police practices and strategies. Her dissertation considers how informal and formal police decision-making in encounters with people experiencing homelessness shapes their experiences with criminal justice system involvement. Morgan N. Bucy is a graduate of the University of Nevada, Reno. She earned a Bachelor’s degree in criminal justice. She is interested in correctional programming and cognitive behavioral interventions. Annie Bunce  is a Research Fellow in Criminology in the Violence and Society Centre, City, University of London which she joined in January 2022. Annie was awarded a PhD in Psychology/ Criminology from the University of Surrey funded by the KeepOut charity as part of an evaluation of their work. Her doctoral research was titled “What we’re saying makes sense so I’ve subscribed to it and I try to live by it.” This study is a qualitative exploration of prisoners’ motivation to participate in an innovative rehabilitation program through the lens of Self-Determination Theory (SDT) and explored serving prisoners’ motivation to participate in a dual-purpose youth crime diversion ix

Contributors

and ofender rehabilitation program in four UK prisons. She has since worked as a Research Offcer at Her Majesty’s Inspectorate of prisons, conducting and analyzing surveys on treatment and conditions with detainees in prison, young ofender institutions, immigration detention facilities, and other places of detention in England and Wales. Dr. Bunce has published in the areas of program implementation, ofender rehabilitation, and desistance from crime. She is a Chartered Member of the British Psychological Society. Leah C. Butler is an Assistant Professor in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha. Her research is centered on corrections, with an emphasis on the efects of race and racial attitudes on public opinion of correctional policy. She also conducts research in victimology, with a focus on intimate partner violence, sexual violence, repeat victimization, and strategies for preventing such violence. Her recent work has been published in Crime & Justice: A Review of Research (Vol. 50), Crime & Delinquency, Criminal Justice and Behavior, Journal of Interpersonal Violence, and Journal of School Violence. Calli M. Cain is an Assistant Professor in the School of Criminology and Criminal Justice at the Florida Atlantic University. Her research interests include victimization, human trafcking, corrections, juvenile delinquency, and sex ofender policy. She received her PhD from the University of Nebraska at Omaha. Kimberly D. Dodson  earned her PhD in Criminology from Indiana University of Pennsylvania after spending 15 years as a Deputy Sherif and Sexual Abuse Investigator for Greene County Sherif ’s Department in Greenville, Tennessee. She is an Associate Professor and Criminology Program Director in the Department of Social and Cultural Sciences at the University of Houston-Clear Lake (UHCL). Dr. Dodson is also an afliated faculty member in the Transforming Lives by Degrees Program at UHCL and she teaches at the Ramsey Prison Unit in Rosharon, Texas. Her research interests include correctional policy and program evaluation, justice-involved individuals with special needs, health justice, and inequalities in the criminal justice system. Anne S. Douds is an Associate Professor and Chair of the Public Policy Program at Gettysburg College and a retired trial attorney. She earned her BA in Political Science from Duke University, her JD from Emory University School of Law, and her PhD from George Mason University. Her recent research and consulting work includes court evaluations; judicial systems analysis; and victims’ rights analysis. Her recent publications have appeared in Victims & Ofenders, Criminal Justice Review, and Criminal Justice Policy Review. Dr. Douds’ books include Rethinking American Correctional Policies: Commonsense Choices from Uncommon Voices (2017), The Veterans Treatment Court Movement: Striving to Serve Those Who Served (2019), and Taking Problem Solving Courts to Scale: Diverse Applications of the Specialty Court Model (2021). Jared M. Ellison is an Assistant Professor in the Department of Sociology and Criminal Justice at Old Dominion University. His research interests include institutional corrections, inmate and correctional ofcer well-being, and court processing. He holds a PhD from the University of Nebraska at Omaha. Daniel J. Flannery  serves as the Dr. Semi J. and Ruth W. Begun Professor and the Director of the Begun Center for Violence Prevention, Research and Education at Case Western Reserve University. His primary areas of research are youth violence prevention, the link between violence and mental health, and community-based program evaluation. x

Contributors

Adrianne M. Crawford Fletcher is an Assistant Dean for Diversity and Inclusion at the Mandel School of Applied Social Sciences at Case Western Reserve University. Her scholarship focuses on raising awareness and seeking remedies for the historic destructive complications of race and racism within the US. M. Janelle R. Goodwin is a Jail Programs Specialist for the Larimer County Sherif’s Ofce in Fort Collins, Colorado. Previously, she worked for the Washoe County Sherif’s Ofce for seven years in various roles including Project Coordinator for the Virtual Housing Unit Pilot Project. She continues to fulfll this role as an independent contractor. Zachary Hamilton is an Associate Professor in the School of Criminology and Criminal Justice and the Associate Director of the Nebraska Center for Justice Research at the University of Nebraska – Omaha. His main research focus is risk and needs assessment for justice populations. He has developed the Static Risk Ofender Needs Guide – Revised (STRONG-R) and the Modifed Positive Achievement Change Tool (MPACT). These assessment tools are used to identify the supervision level and programming needs for juveniles and adults, those in prison or on probation and parole, and these tools are currently used in more than a dozen states. Dr. Hamilton was recently tapped by National Institute of Justice to create the risk assessment for the First Step Act (the PATTERN), which is part of the federal government’s criminal justice reform, providing early release for low-risk inmates to strategically reduce the federal prison population. He has published over 50 peer-reviewed journal articles, chapters, and books on risk and needs assessment, evidence-based practices, and program efcacy. Matthew R. Hassett is an Assistant Professor of Sociology and Criminal Justice at the University of North Carolina at Pembroke. He has recently published works related to disparities in trauma care after crime victimization and how social inequalities can manifest themselves within modern higher education. Angela J. Hattery is a Professor of Women & Gender Studies and Co-Director of the Center for the Study and Prevention of Gender-Based Violence at the University of Delaware. She is the author of 11 books, including her most recent book, Gender, Power and Violence: Responding to Intimate Partner Violence in Society Today (2019) which followed on the heels of Policing Black Bodies: How Black Lives Are Surveilled and How to Work for Change (2018) as well as dozens of book chapters and peer-reviewed articles. Her forthcoming book (number 12) entitled Way Down in the Hole: Race, Intimacy and the Reproduction of Racial Ideologies in Solitary Confnement explores the ways in which racial antagonisms are exacerbated by the particular structures of solitary confnement. She serves as a consultant to agencies that seek to combat violence against women, and she regularly appears as an expert on these issues with major US TV and radio news media. She teaches courses on race and gender inequality, families, and methods. Sydney N. Ingel  is a doctoral student in Criminology, Law and Society at George Mason University. She earned her Master’s degree at George Mason University and works as a graduate research assistant at the Center for Advancing Correctional Excellence (ACE!). Her research interests include corrections, reentry, and qualitative methods. L. Cait Kanewske is a doctoral candidate in the Department of Criminology, Law and Society at George Mason University, and a graduate research assistant with George Mason’s Center for Evidence-Based Crime Policy. They received an MS degree in Justice, Law and Society from American University in 2014. Their research interests include rural crime and community safety, xi

Contributors

policing reform in small and rural communities, mental health, the experiences of transgender individuals in the criminal legal system, and correctional reform. Their dissertation is titled Things Have Changed Around Here: Crime and Community Safety in Appalachian Kentucky. Alex Kigerl  is a Research Associate in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha and the Nebraska Center for Justice Research. His research focus has been on machine learning and statistical algorithm design, risk assessment development, and cybercrime, namely the legal and economic determinants of cybercrime as well as cybercriminal clustering and profling techniques. His research has appeared in Social Science Computer Review, Justice Quarterly, and Criminal Justice and Behavior, among others. Stuti S. Kokkalera is an Assistant Professor of Criminal Justice and Criminology at Sam Houston State University. Her current research examines diferent aspects of state discretionary release practices as they impact juveniles sentenced to life. She is equally interested in cross-country comparative research on juvenile ofending, as well as correctional practices generally. Her work has been published in Crime & Delinquency, Journal of Crime and Justice, and International Journal of Comparative and Applied Criminal Justice, among others. Anna Kotova  is a Lecturer in Criminology at the University of Birmingham (UK). Her work focuses on families of people in prison, interpersonal relationships of people in prison, and stigma. It draws heavily on sociological work on prisons and time, political philosophy, social psychology, and beyond. Melissa Kowalski  is a Research Analyst in the Research and Policy Unit for the Wisconsin Department of Corrections. Generally, her research focuses on corrections with an emphasis on justice-involved youth. She also conducts research with respect to victimization experiences, risk/ needs assessment, gender responsivity, mental health, substance use, and correctional programming. Some of her work has appeared in Youth Violence and Juvenile Justice, Criminal Justice and Behavior, Women & Criminal Justice, and The Prison Journal, among others. Amber E. Krushas  is a doctoral student in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha. Her research interests include pathways to ofending and victimization, victimology, corrections, and program and policy evaluation. She has published in the Journal of Interpersonal Violence and Race and Justice. Reneè D. Lamphere is an Associate Professor of Criminal Justice in the Department of Sociology & Criminal Justice at the University of North Carolina at Pembroke. Her areas of academic interest include corrections, mixed-methods research, sexual violence and victimization, family violence, and cyber and digital-media crimes. Dr. Lamphere has a particular interest in teaching and pedagogy and has published in the Journal of Criminal Justice Education, and her most recent research project examines the #MeToo movement and sexual assault disclosure among college professors. She currently serves as the President of the North Carolina Sociological Association. She also serves as a Guardian ad Litem for Robeson County, North Carolina, where she advocates for children in the foster care system due to abuse and neglect. Jennifer L. Lanterman is an Associate Professor of Criminal Justice and Director of the School of Social Research and Justice Studies at the University of Nevada, Reno. Her research focuses on the institutional and community-based management and treatment of people assessed to be high-risk and high-need and on restorative justice training and quality assurance. Her recent xii

Contributors

work has appeared in the British Journal of Community Justice, Contemporary Justice Review, Corrections: Policy, Practice and Research, Criminal Justice and Behavior, Criminal Justice Studies, Criminology and Public Policy, Dialogues in Social Justice, Feminist Criminology, International Journal of Comparative and Applied Criminal Justice, Journal of Qualitative Criminal Justice and Criminology, Justice Research and Policy, Studies in Social Justice, Psychiatry, Psychology and Law, The Prison Journal, and Women’s Studies in Communication. Rachel E. Lovell is an Assistant Professor of Criminology at Cleveland State University. She is a victimologist and methodologist whose research focuses on gender-based violence and victimization, particularly rape, human trafcking, and domestic violence. Shannon Magnuson  is a Senior Associate with Justice System Partners and she earned her PhD from George Mason University. Her research primarily investigates organizational change and reform eforts across various justice agencies. Shannon has over fve years of experience providing evidence-informed technical assistance to local, state, and federal justice agencies. She works with agencies on a variety of change eforts, including identifying evidence-based programs to achieve goals, building organizational capacity for change, developing and facilitating initial and ongoing training for staf, and conducting outcome and process evaluations of change eforts. Adam K. Matz is an Assistant Professor in the Department of Criminal Justice at the University of North Dakota (UND). He previously worked in research positions with the American Probation and Parole Association (APPA), an afliate of the Council of State Governments (CSG), as well as the Administrative Ofce of the Courts (AOC) with the Kentucky Court of Justice (KCOJ). His research interests include police probation/parole partnerships, interagency information sharing, occupational culture, probationer/parolee recidivism and desistance, and the mentoring of youth with an incarcerated parent. His teaching interests include research methods, statistics, correctional alternatives, and evidence-based practices and programs. He has been involved in numerous committees, serving as Chair for the Academy of Criminal Justice Sciences (ACJS) Corrections Section and as a former Vice-Chair of the Global Standards Council (GSC) with the US Department of Justice (DOJ). He received his doctorate in Criminology from Indiana University of Pennsylvania (IUP), as well as Master’s and Bachelor’s degrees from Eastern Kentucky University (EKU). His publications have appeared in a variety of renowned scholarly journals including Crime & Delinquency, Journal of Criminal Justice, and Criminal Justice and Behavior. Laura Overman is a Research Associate at the Begun Center for Violence Prevention, Research and Education in the Mandel School of Applied Social Sciences at Case Western Reserve University. Her research focuses broadly on violence prevention and education reform, and her primary areas of specializations include program evaluation, data management, and data analysis. Danielle S. Rudes  is a Professor of Criminal Justice and Criminology at Sam Houston State University and the Deputy Director of the Center for Advancing Correctional Excellence (ACE!). Dr. Rudes is an expert qualitative researcher whose methods include ethnographic observation, interviews, and focus groups with over 20 years of experience working with corrections agencies at the federal, state, and local county levels including prisons, jails, probation/parole agencies, and problem-solving courts. She is recognized for her work examining how social control organizations and their middle management and street-level workers understand, negotiate, and at times, resist change. xiii

Contributors

Joshua R. Rufn is an Assistant Professor of Criminal Justice in the School of Criminal Justice and Criminalistics at California State University, Los Angeles. His research explores procedural justice and police-community relations, race and justice, and marginalized populations and reentry. His scholarly contributions may be found in Oxford Bibliographies in Criminology, Criminal Law Bulletin, and the Journal of Correctional Health Care. Danielle Sabo  is a Research Associate at the Begun Center for Violence Prevention, Research and Education in the Mandel School of Applied Social Sciences at Case Western Reserve University and a doctoral student in Sociology at Case Western Reserve University. Her mixed-methods research focuses on the lived experience of trauma for marginalized (LGBTQ+, BIPOC, Neurodiverse) survivors of sexual violence and its impact on health outcomes over the life course. Lindsay Smith is a doctoral student in Criminology, Law and Society at George Mason University. She earned her Bachelor of Arts degrees in Psychology and Sociology from the University of Missouri and her Master of Arts in Criminology, Law and Society from George Mason University. As a Graduate Research Assistant at the Center for Advancing Correctional Excellence! (ACE!), Lindsay studies correctional issues with an emphasis on reintegration success, gender-based violence, and sexual victimization. Kyle C. Troeger  earned Bachelor’s degree in Public Policy and Political Science, with honors, from Gettysburg College. His research interests include constitutional law, regulatory policy, and political theory. He recently published a book chapter, Creating a Home Base for Treatment in Homeless Courts, in an edited volume. Michael S. Vaughn is a Professor in the Department of Criminal Justice and Criminology and Director of the Institute for Legal Studies in Criminal Justice within the College of Criminal Justice at Sam Houston State University. He has published over 100 articles and law review/journal pieces on the intersection of law and criminal justice. He is a Fellow of the Academy of Criminal Justice Sciences. Zach Zaborowski  is an undergraduate student in the Schar School of Policy and Government and formerly an undergraduate research assistant at the Center for Advancing Correctional Excellence (ACE!) at George Mason University. He is also an International Market Research Associate at Virginia Small Business Development Center (SBDC). His interests focus on advocating and working to end injustice in the US criminal legal system.

xiv

INTRODUCTION Eileen M. Ahlin, Ojmarrh Mitchell and Cassandra A. Atkin-Plunk

The American Society of Criminology’s (ASC) Division on Corrections & Sentencing (DCS) Handbook Series ofers state-of-the-art volumes on seminal and topical issues that span the felds of sentencing and corrections. The current volume, Inequalities in Sentencing and Corrections among Marginalized Populations, carries on that tradition. This edited collection of curated works is a comprehensive and fresh approach to examining sentencing and community and institutional corrections. The volume includes empirical and theoretical essays and recent developments on the pressing concerns of persons of traditionally non-privileged statuses, including racial and ethnic minorities and Indigenous persons, women and people whose gender does not conform to a binary dichotomy, immigrant status, LGBTQ+, transgender, disability and health, aging, veterans, persons experiencing homelessness, and other marginalized statuses. The chapters in this volume consider a wide range of perspectives for understanding the experiences of people who identify as a member of a traditionally marginalized group. This volume aims to serve as an important resource for scholars and practitioners working to address the needs of marginalized populations. The need for a volume of this nature is not new. However, by the very defnition of the term marginalized, people who do not fall into traditional and at times seemingly arbitrary categorizations are often overlooked, understudied, and treated as insignifcant. Their experiences in the courts and correctional systems may be relegated to subgroup analyses rather than serving as the focal point. Not in this volume. The chapters in this volume center traditionally marginalized groups as the main point of the conversation. As a feld, criminology and criminal justice must do more to centralize the experiences of the most vulnerable, the fewer in number but not worth, and those facing social exclusion. As the feld does more to recognize and value the experiences of traditionally marginalized populations, these chapters are a go-to resource for scholars and graduate students by providing an up-to-date guide to contemporary issues facing corrections and sentencing. It also assists practitioners with resources for developing socially informed policies and practices. By comparison, this volume contains a smaller number of chapters than the others produced by the DCS Handbook series. This is not refective of the importance of the present topic. All the topics addressed in the DCS Handbook series are vitally important to frame our understanding of not only what we know of a topic but also what we do not yet know. The small number of chapters in this volume refects just how far we have to go to center the experiences of traditionally marginalized populations in the courts and corrections branches of the criminal justice system. It also refects the need to emphasize research and discussion in these areas.

DOI: 10.4324/9781003245032-1

1

Eileen M. Ahlin et al.

Unlike some of the previous handbooks, this volume addresses both domains of the DCS. The chapters herein represent both a deep dive into issues related to the marginalization of vulnerable populations afected by corrections and/or sentencing and broader considerations essential for understanding the history, current status, and future of marginalized persons within and across sentencing and corrections. We begin the volume with a brief contextual overview of the issue at hand and highlight how each chapter addresses a portion of the topic. Park (1928) introduced marginality to the feld of sociology through his work on immigration. In contemporary times, Wacquant (2008) used this concept in his research on urban inequality while Wilson’s (1987, 1996) studies of the urban poor highlight the reality of economic marginality, and Massey (1990) focused on racial segregation. There are three basic types of marginalization relevant to criminology and criminal justice—social, economic, and political marginalization. They often overlap, and all forms of marginalization prevent realization of equal rights and the liberties associated with a democracy. Marginalization excludes some people from society, renders others less important, and contributes to discrimination and inequality. It creates stratifed hierarchies with people in the marginal groups falling to the bottom or of the grid entirely. Active acts to prevent or minimize the inclusion of groups are an obvious part of marginalization. Failure to meet the needs of people and the groups they belong to also creates and perpetuates marginalization. A wheelchair user unable to access a school building because ramps and automatic doors are not available is marginalized from educational opportunities. A trans woman who is not permitted to use a public bathroom designated for women is marginalized from equal access to social goods. Others are pushed out of focus, intentionally or through detrimental policies and practices. Indigenous peoples were removed from their ancestral land and told where to live and their cultures are stifed by colonialism. Persons with serious mental illness encounter police who have few resources to provide adequate aid so jails become a holding space which often leads to criminal justice system processing. Marginalization is evidenced by the gender pay gap, housing policies that segregate lower-income individuals into low-resource and high-poverty communities, voting laws disenfranchising people who have been convicted of a crime, and the list could go on. Marginalization is the act of placing less importance on a person or group because they have a certain attribute. Marginalization prevents or severely limits participation in the dominant culture. The efects of marginalization are the inability to access social services or fully participate in social activities. Unequal opportunities are reinforced when people in power have the capacity to improve such access or extend a seat at the table and they fail to acknowledge or provide full inclusion opportunities to persons and groups who are small in number and do not ft the profle of the majority. Marginalization perpetuates inequalities by limiting participation in the decisionmaking process and placing less emphasis on certain voices when they do have a seat at the table. This volume ofers a platform for important, ground-breaking research on these issues. Before we take account of persons who have experienced marginalization, we should acknowledge that all persons in the criminal justice system are among a marginalized population. Their freedoms are restricted pre-conviction (e.g., pre-trial detention) and their sentencing determines the extent to which they lose freedoms and civil liberties. After someone has been convicted of a crime, there are laws and practices that restrict their opportunities including disenfranchisement (Uggen & Manza, 2002), employment barriers (Larson et al., 2021; Pager, 2003), occupations bans (Vuolo et al., 2017), and housing prohibitions (Leasure & Martin, 2017). These collateral consequences accompany anyone who experiences the criminal justice system. The extent to which these laws and practices afect their lives often depends on the other forms of marginalization to which they are subjected. Compared to the general population, already marginalized groups experience the criminal justice system at higher rates than those who are White, cis-gender, heteronormative, or have good mental health (Bronson & Berzovsky, 2017; Cunneen, 2006; Hinton et al., 2018; Panfl, 2018). People with other marginalized identities including 2

Introduction

persons with disabilities (PWD) (e.g., auditory, cognitive, visual, neurological), older people, veterans, persons experiencing homelessness, and immigrants face added challenges when involved in the criminal justice system. The compounding of marginalized identities further exacerbates the already detrimental efects associated with involvement in the courts and corrections. There is an emerging literature on the lived experience among some marginalized populations and the negative impact criminal justice involvement has on immediate and lifetime outcomes. Research on some marginalized populations is in the nascent phase of scholarly inquiry, though rapidly becoming an important part of conversations on sentencing and corrections. Individually, marginalized populations are disadvantaged before, during, and after contact with courts and correctional systems. The more we know about their experiences in the criminal justice system, the broader the evidence base from which to develop best practices for practitioners. Research in this area is important, needed, and has real-world application. More research is needed to understand the experiences of the multiple marginalizations among persons afected by the criminal justice system. We know that people often belong to more than one group that experiences marginalization. The marginalized identity can be multifaceted rather than insular—gay, Black man; immigrant without a home; a person with mental health illness and a physical disability. The permutations and subgroups of marginalized populations are endless. To what extent are the detrimental efects of marginalization additive or exponential? Research by Collins and colleagues (2015, p. 2) suggests that having multiple marginalized statuses, also called intersectionality, leads to identities such as “race, class, gender, sexuality, ethnicity, nation, ability and age [that do not] operate not as unitary, mutually exclusive entities, but as reciprocally constructing phenomena that in turn shape complex social inequalities.” While much work has been done, several questions remain to be answered. The chapters in this volume provide important information for scholars and practitioners. The work in this volume has thrown up many questions in need of further investigation. More information would help us establish a greater degree of accuracy and understanding of marginalization in sentencing and corrections. Understanding the inequalities among marginalized populations in sentencing and corrections is fundamental to addressing them in practice.

Chapters This volume begins with a focus on a particularly vulnerable and marginalized population— people experiencing homelessness. In Chapter 1, Katharine L. Brown and Ojmarrh Mitchell examine the cumulative case outcomes and institutional biases that homeless defendants in felony courts experience—one of the frst studies of its kind. They review the homelessness-incarceration nexus and highlight the structural- and individual-level barriers that unhoused individuals face, while noting the paucity of research examining how homeless defendants fare in felony courts. Brown and Mitchell utilize the focal concerns and institutional bias perspectives to hypothesize that unhoused defendants experience harsher outcomes throughout case processing due to their lack of economic resources, which constrains their ability to defend against prosecution, and court actors’ perception that they pose a danger to public safety. To test their hypotheses, they employ a cumulative disadvantage analytic framework to track, from arrest to disposition, a random sample of 666 felony cases fled in Pinellas County, Florida in 2017. Brown and Mitchell compare case outcomes by housing status, which allows them to comprehensively estimate the efects of homelessness on case outcomes and examine the direct and indirect efects of housing status on case outcomes. Results confrm their hypotheses and highlight the disadvantages that unhoused defendants experience in felony court. The authors conclude by providing policy implications rooted in the focal concerns and institutional bias perspectives, which, if implemented, could reduce the disadvantages that unhoused defendants face. 3

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Another understudied population is noncitizen service members and veterans who encounter the criminal legal system. In Chapter 2, Anne S. Douds and Kyle C. Troeger provide an in-depth look into how immigration policy can create double punishments for noncitizens who serve in the United States military. Although most service members and veterans who do not have United States citizenship or lawful immigration status commit no crimes, those who do face punishment through the criminal legal system and through immigration proceedings, which can result in deportation. The authors begin by providing an overview of the history of citizenship-for-service in the United States. This is followed by a discussion of the shifting and often confusing military policies, which have not only widened the net for the types of behaviors that can trigger immigration consequences but have also muddled the military naturalization process. In addition, the authors examine how many of the issues that arise for service members and veterans facing deportation could be resolved at the individual case level. Douds and Troeger conclude with numerous areas of practice and policy recommendations to reduce the injustices experienced by noncitizen service members and veterans. Chapter 3 is another frst of its kind study, wherein Rachel E. Lovell, Adrianne M. Crawford Fletcher, Danielle Sabo, Laura Overman, and Daniel J. Flannery take a diferent approach to traditional sentencing research by centering the experiences of sexual assault victim-survivors who are Black women and girls. Particularly, they utilize data on previously untested sexual assault kits to explore racial diferences of victim-survivors to examine victimization patterns and case outcomes. The beginning of the chapter sets the stage for the study by delving into the historical context for sexual assault against Black women and girls in the United States, examining the neighborhood efect and the legacy of redlining, providing an overview of routine activities and broken windows theories as they relate to sexual assault, and discussing the research on attrition of sexual assault cases in the American criminal legal system. Utilizing data from over 1,000 previously untested sexual assault kits in Cuyahoga County, Ohio, the authors explore how Black women and girls difer from non-Black women and girls in the characteristics and locations of the sexual assault, while also examining the case outcomes, as it relates to previous adjudication, for Black and non-Black victim-survivors. The fndings highlight the inequalities in the lived experiences of Black women and girls who are more likely to reside in disadvantaged and marginalized communities. The authors conclude the chapter with implications for practice that focus on the societal, institutional, and individual level—all with an overarching goal of addressing inequalities that women and girls from marginalized, disinvested communities experience. With Chapters 4 and 5, we turn our attention to the topic of risk assessment of historically marginalized populations. In Chapter 4, Leah C. Butler, Zachary Hamilton, Amber E. Krushas, Alex Kigerl, and Melissa Kowalski evaluate the predictive performance of the Modifed Positive Achievement Change Tool (MPACT)—a highly utilized youth risk-need assessment—across racial/ethnic subgroups. To set the stage for their study, the authors begin by reviewing the research on bias in risk assessment instruments, with a focus on how the biases that such assessments aim to reduce might not actually be lessened given that diferent racial/ethnic groups experience disparities and disproportionate contact within the juvenile justice system. This leads the authors to examine how test bias and disparate impact potentially plague risk assessment tools and what methods can be taken to modify assessment instruments to reduce racial and ethnic bias. Utilizing a sample of over 241,000 youth across ten states, the authors propose and test three ways to reduce bias in the MPACT: (1) removing criminal justice indicators from the development of risk assessments; (2) removing items that increase false positive rates for racial/ethnic groups; and (3) a combination of the two strategies. The authors conclude by providing policy implications for improving risk assessment instruments through the reduction of racial and ethnic disparities. Chapter 5 takes a broader approach to the examination of risk assessment instruments for marginalized populations. In this chapter, Adam K. Matz discusses the concerns and potential for 4

Introduction

disparate implications of the use of risk assessment instruments with minority populations. Matz begins by discussing how risk assessment instruments are utilized by actors across the criminal legal system, from policing to corrections. He then goes on to elaborate the narrative on criticisms and limitations of risk assessment instruments, focusing specifcally on three areas: (1) the potential for biased outcomes; (2) questions related to the predictive accuracy of risk assessment instruments; and (3) the lack of transparency and legal accountability for risk assessment instruments. The author concludes the chapter with possible solutions to mitigate the concerns of risk assessments. One marginalized population that is often overlooked within the feld of criminology and criminal justice is PWD. In Chapter 6, Kimberly D. Dodson and Joshua R. Rufn begin to fll this void by examining the prevalence of PWD among correctional populations. They provide readers with an overview of the Americans with Disabilities Act and explain how it applies to correctional facilities and PWD who are incarcerated. The authors then discuss fve models of disability—the Institute of Medicine’s Enabling-Disabling Model, Medical Model of Disability, Expert/Professional Model of Disability, Social Model of Disability, and Rehabilitation Model of Disability—which provide conceptual frameworks for understanding views about PWD and serve as the foundation for treatment PWD receive from healthcare professionals. The authors go on to examine the limitations of each model in its application to correctional settings. Following this, Dodson and Rufn apply and assess the efectiveness of the risk-need-responsivity model as a treatment intervention for PWD. The authors conclude the chapter with an examination of the inequalities that PWD—learning, mental, and physical disabilities—experience within correctional facilities and during the reentry process. Although the rate of incarceration for women in the United States has increased more than that for men over the last few decades, the attention to the distinct needs of women in such spaces—particularly in jails—has not maintained pace. In Chapter 7, Lindsay Smith and Sydney Ingel examine formal forms of social support, or resource-based relationships, that women incarcerated in jails receive from female correctional ofcers. To do this, the authors conducted a case study of 29 women residing in one jail to examine perceptions of their relationships with female correctional ofcers, as well as how formal social support manifests, if at all. Specifcally, Smith and Ingel seek to answer two questions through their qualitative interviews: how do women jail residents perceive the female correctional ofcers with whom they interact; and how do female correctional ofcers facilitate or inhibit resource attainment? The authors conclude the chapter with practical implications for correctional ofcer training and for increasing resource attainment for women jail residents. Chapters 8–10 focus on the many challenges and experiences of arguably one of the most marginalized incarcerated populations—transgender and LGBTQ individuals. In Chapter 8, L. Cait Kanewske, Angela Hattery, Shannon Magnuson, Danielle S. Rudes, and Zach Zaborowski employ a unique methodology—utilizing primary interviews and publicly available news accounts— to describe the experiences of transgender folx while incarcerated. They begin, however, by explaining the terms and concepts seen throughout their chapter, many of which might be new to readers. The authors then highlight what little is known about the incarceration experiences of transgender and other gender-nonconforming individuals through a review of the existing literature, focusing specifcally on placement, housing, and access to medical care policies. They analyze the benefts and drawbacks of such policies that are premised on the notion of increased safety and improved lives of incarcerated transgender folx. To give voice to incarcerated transgender individuals, the authors then describe the fndings from their interviews and the news accounts, which describe the frst-hand experiences transgender people have—particularly related to misgendered assignment to facilities, lack of access to gender-appropriate commissary, denial of gender-afrming medical care, use of solitary confnement as a “safety” strategy, and being 5

Eileen M. Ahlin et al.

subjected to discrimination, verbal abuse, and sexual violence—while living within the confnes of correctional facilities. The authors conclude the chapter with recommendations for reforming policy and practice to improve the experiences of incarcerated transgender folx. Given that many incarcerated transgender individuals are housed in solitary confnementstyle housing units, they typically are denied access to programming. In Chapter 9, Jennifer L. Lanterman, M. Janelle R. Goodwin, Marc Bello, and Morgan N. Bucy examine how technology can be used to provide programming to transgender folx housed in solitary confnement. The authors begin by reviewing the literature related to access to treatment among incarcerated transgender people. They then describe the Virtual Housing Unit Pilot Project (VHUPP) and associated evaluation framework that are being implemented at the Washoe County (Reno, Nevada) Detention Facility. The VHUPP was designed, in part, to make treatment and programs available to transgender people in custody, who due to jail policies are housed separate from the general population, and subsequently restricted from participating in various programs. The authors conclude the chapter with a detailed description of the VHUPP, including the impetus for implementing it, its numerous components, and how the program will be assessed for efectiveness. While Chapters 8 and 9 focus exclusively on transgender and gender-nonconforming individuals, in Chapter 10, Calli M. Cain and Jared M. Ellison provide a broader picture of the pains of imprisonment for LGBTQ persons. They begin by providing an overview of the disproportionate representation of LGBTQ persons in correctional facilities across the United States and key legal rulings and policies related to incarcerated LGBTQ persons, focusing specifcally on Farmer v. Brennan (1994) and the Prison Rape Elimination Act (PREA). Following this, the authors examine the experiences LGBTQ persons have while incarcerated, including housing practices, deprivations, the sexual hierarchy, sexual victimization, and healthcare and programming issues. The authors conclude the chapter by providing recommendations for policy and practice, which, if implemented, can serve to protect incarcerated LGBTQ persons. Chapter 11 moves on to examining a group that has experienced marginalization since the invasion of European settlers—Native populations. Here, Reneè Lamphere and Matthew R. Hassett explore the relationship between incarceration and Indigenous people. While they focus primarily on the experiences of Indigenous people in the United States, the authors also provide a comparative view of incarcerated Indigenous populations in Australia and Canada. The chapter begins with an overview of the history of the criminalization and incarceration of Native American populations and examines Native American youth populations and their disproportionate involvement in the justice system. The authors also explore the relationship between Native Americans and a disproportionate involvement in drug/alcohol and sexual ofenses. Following this, the authors discuss the efects of isolation and solitary confnement and rights to religion in prison for incarcerated Native Americans. The chapter concludes with an examination of incarcerated Indigenous populations in an international context. Beyond the continued marginalization of many populations, one of the numerous consequences of the “War on Crime” is the substantial increase in the number of elderly incarcerated people. In Chapter 12, Beatriz Amalf Marques, Stuti Kokkalera, and Michael S. Vaughn examine the experiences of this population—typically defned as people 50 years of age or older—and how they interact with the prison environment. Whether individuals were incarcerated while young and sentenced to long terms of incarceration or arrested and incarcerated while elderly, this chapter highlights the humanitarian, social, and economic costs of incarcerating the elderly. The authors begin by providing an overview of the elderly incarcerated population and discuss the numerous challenges they face, including physical and mental health conditions and access to healthcare and non-health-related treatment and services. The

6

Introduction

authors then draw on the risk, needs, and responsivity model to highlight how the elderly incarcerated population would beneft from release from prison, while also recognizing that their institutional dependence and lack of basic life skills can pose a challenge to the reentry process. The chapter concludes with recommendations for reducing the marginalization of the elderly who are incarcerated along with a call for future research on the needs and incarceration and reentry experiences of the elderly. To conclude this volume on the inequalities in sentencing and corrections among marginalized populations, in Chapter 13, Eileen M. Ahlin, Annie Bunce, and Anna Kotova explore how the COVID-19 pandemic has amplifed trauma and marginalization among carceral populations. Instead of focusing on one marginalized population or the intersection of marginalized populations, the authors take a broader approach to examine how the pandemic might be the impetus for shifting the discourse on the purpose of incarceration. Throughout the chapter, the authors ask tough questions of practitioners, policy makers, and scholars alike. Through an exploration of the consequences of the pandemic for incarcerated populations—focusing particularly on social and health inequalities, infection control, and (lack of ) access to information—Ahlin and colleagues posit that the pandemic provides an opportunity to retheorize the purpose of prisons, reexamine the proportionality of punishment, and reconsider who deserves to be incarcerated and for how long. The authors conclude by arguing that now is the time to actively pursue the reformation of our criminal legal and correctional systems to address the systemic conditions from which inequality and marginalization emerge.

Conclusion This volume is composed of a broad array of sentencing and corrections research concerning under-studied, marginalized groups. The thread that binds each chapter is the common focus on a traditionally marginalized group; yet, these chapters consider a wide variety of issues relevant to sentencing and corrections ranging from the use of risk assessments, sentencing disparities, and experiences while incarcerated. The shared interest of these chapters on marginalized and unstudied groups is this volume’s primary contribution to the knowledge base. We hope that the research contained in this volume inspires a fresh wave of investigation into these and other marginalized groups. While the feld’s evidence base concerning race, ethnic, and gender diferences is voluminous, relatively little research centers on noncitizens, PWD, LGBTQ persons, transgender individuals, and people experiencing homelessness. The dearth of such research not only exposes gaps in the knowledge base but also reinforces the marginalization of these under-researched groups. Thus, greater research concerning these often invisible groups aids both understanding and egalitarianism. Moving toward these goals will necessitate novel research that overcomes empirical and ethical obstacles. Empirically, a large and persistent research barrier is the lack of mechanisms capable of identifying members of various marginalized groups. That is, unlike data on race/ethnicity and biological sex, data on characteristics such as gender identity are often not collected systematically. This lack of data often makes identifying and reaching members of stigmatized groups challenging. Ethically, studying members of marginalized groups, particularly in feld settings, presents larger hurdles in gaining voluntary consent and giving participants “voice” in the research. As an example, providing fnancial incentives to individuals experiencing homelessness is complicated by the coercive potential of the incentives and the unmet personal needs of this population (e.g., hunger) may undermine their ability to fully engage with the research. Given the innovation evident in this volume and in the feld more generally, we are confdent that future studies will meet these challenges.

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References Bronson, J., & Berzovsky, M. (2017). Indicators of mental health problems reported by prisoners and jail inmates, 2011-12. Bureau of Justice Statistics. Collins, J. C., McFadden, C., Rocco, T. S., & Mathis, M. K. (2015). The problem of transgender marginalization and exclusion: Critical actions for human resource development. Human Resource Development Review, 14(2), 205–226. Cunneen, C. (2006). Racism, discrimination and the over-representation of indigenous people in the criminal justice system: Some conceptual and explanatory issues. Current Issues in Criminal Justice, 17(3), 329–346. Hinton, E., Henderson, L., & Reed, C. (2018). An unjust burden: The disparate treatment of Black Americans in the criminal justice system. Vera Institute of Justice. Larson, R., Shannon, S., Sojourner, A., & Uggen, C. (2021). Felon history and change in US employment rates. Social Science Research. doi:10.1016/j.ssresearch.2021.102649 Leasure, P., & Martin, T. (2017). Criminal records and housing: An experimental study. Journal of Experimental Criminology, 13(4), 527–535. Massey, D. S. (1990). American apartheid: Segregation and the making of the underclass. American Journal of Sociology, 96(2), 329–357. Pager, D. (2003). The mark of a criminal record. American Journal of Sociology, 108(5), 937–975. Panfl, V. R. (2018). LGBTQ populations of color, crime, and justice: An emerging but urgent topic. In R.  Martinez, Jr., M. E. Hollis, & J. I. Stowell (Eds.), The handbook of race, ethnicity, crime, and justice (pp. 415–434). John Wiley & Sons. Park, R. E. (1928). Human migration and the marginal man. American Journal of Sociology, 33(6), 881–893. Uggen, C., & Manza, J. (2002). Democratic contraction? Political consequences of felon disenfranchisement in the United States. American Sociological Review, 67(6), 777–803. Vuolo, M., Lageson, S., & Uggen, C. (2017). Criminal record questions in the era of “ban the box”. Criminology & Public Policy, 16(1), 139–165. Wacquant, L. (2008). Urban outcasts: A comparative sociology of advanced marginality. Polity. Wilson, W. J. (1987). The truly disadvantaged: The inner city, the underclass, and public policy. University of Chicago Press. Wilson, W. J. (1996). When work disappears: The world of the new urban poor. Vintage.

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1 HOMELESS DEFENDANTS IN FELONY COURT Cumulative Case Outcomes and Institutional Bias Katharine L. Brown and Ojmarrh Mitchell Introduction Homelessness in the United States is a large and persistent problem that increasingly has been criminalized. Six million Americans live at risk of homelessness and over two million Americans experience homelessness at some point in a year (Burt et al., 1999; National Alliance to End Homelessness, 2021; National Center for Homeless Education, 2020). Unhoused individuals face a growing set of laws that criminalize behaviors common among people experiencing homelessness, such as sleeping in public places, sitting on sidewalks, loitering, living in vehicles, camping in public spaces, and requesting donations (Herring, 2019; Herring et al., 2020; Ortiz et al., 2015). Anti-homeless laws stigmatize those experiencing homelessness and lead to their vast over-representation in the criminal justice system. One study found that unhoused individuals had ten times the number of police contacts as housed people (21 vs. 2, respectively) (Rountree et al., 2019). These numerous police contacts lead to unhoused individuals being disproportionately represented in court and jail populations. While individuals experiencing homelessness comprise a small percentage of Americans, studies estimate that between 8% and 24% of people incarcerated in jail were experiencing homelessness at the time of incarceration (Applied Survey Research, 2013; Greenberg & Rosenheck, 2008; for a review see Metraux et al., 2007). Additionally, Greenberg and Rosenheck (2008) estimate that the unhoused were 7.5–11.3 times more likely to be incarcerated in jail than the general U.S. population. Further, these authors found that incarcerated people with a history of homelessness were more likely than other incarcerated people to have past involvement with the criminal justice system (i.e., greater criminal history), mental health and substance abuse problems, and trauma, in addition to having signifcantly fewer fnancial means. Given their over-representation, stigmatization, and multiple vulnerabilities, it is surprising that so little research examines how homeless defendants fare in felony courts. In this chapter, we empirically examine this issue using a cumulative case outcome approach (see, e.g., Hagan, 1974; Kurlychek & Johnson, 2019). We hypothesize that homeless defendants are seen as more dangerous and culpable than other defendants leading to a direct association between homelessness and more punitive case outcomes (e.g., jail instead of probation or diversion). We also hypothesize that several institutional policies and practices that tie case outcomes to the defendants’ fnancial wherewithal (e.g., cash bail) are indirect sources of disadvantages against homeless defendants. We test these hypotheses in a randomly selected sample of felony cases fled in 2017 in Pinellas County, Florida. DOI: 10.4324/9781003245032-2

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Te Homelessness-Incarceration Nexus The relationship between homelessness and incarceration is driven by both structural and individual-level variables (Elliott & Krivo, 1991; Main, 1998; Nilsson et al., 2019). Structurally, the cumulative efect of changes in policy and funding in the areas of housing, mental health, and criminal justice led to the management of individuals experiencing homelessness heavily falling on the criminal justice system. Since the 1968 Safe Streets Act, the United States has shifted funding out of public assistance programs and housing programs and instead began funding the war on crime (Hinton, 2016). For instance, since 1980, funding for public housing decreased by more than half, while funding for corrections more than doubled (Herring et al., 2020). And since the 1960s, there has been an exodus of individuals with serious mental health disorders from psychiatric hospitals to communities. These publicly funded facilities provided long-term, residential mental healthcare for as many as 559,000 patients in 1955 (Mechanic & Rochefort, 1990), but since 1970 the number of such patients, after adjusting for population growth, has declined by 77% (Lutterman et al., 2017). The shift from the war on poverty and publicly funded long-term mental health facilities to the war on crime was characterized by new quality-of-life laws that targeted the poor and were enforced through emerging police practices (Herring et al., 2020). Many police departments, particularly in urban areas, adopted a version of Wilson and Kelling’s (1982) broken window policing, which contends that crime can be managed through the prevention of minor forms of public disorder and nuisance (e.g., broken windows and vagrants). This focus on order-maintenance policing led to a zero-tolerance mindset that fooded lower-level courts (Kohler-Hausmann, 2018) and has been described as a punishment imperative largely responsible for mass incarceration (Clear & Frost, 2015). For the homeless specifcally, this has led to “banishment” practices, in which communities have over-relied on social controls such as the police and probation to deal with issues of homelessness, rather than social welfare systems that are better suited to address the needs of those experiencing homelessness (Beckett & Herbert, 2009; Herring, 2019). Together, these structural changes created a bridge between homelessness and incarceration for the growing unhoused population. In addition to structural factors, individual-level barriers such as mental illness and substance abuse are also important for understanding homelessness. A sizeable proportion of homeless individuals have an underlying serious mental illness (Michaels et al., 1992) but lack access to afordable healthcare, which reinforces and exacerbates housing instability and homelessness (Martin, 2015). Nilsson and colleagues (2019) recently conducted one of the most comprehensive reviews of individual-level risk factors predicting homelessness. The authors used meta-analytic techniques to synthesize results of 116 independent studies concerning homelessness. They found several individual-level variables were strong predictors of homelessness, namely, adverse life experiences, psychiatric disorders, especially drug use problems, and a history of incarceration. Further, other research demonstrates that incarcerated individuals with a history of homelessness have high rates of co-occurring mental health and substance use problems (Polcin, 2016). McNiel and colleagues (2005), for example, found that 78% of incarcerated individuals with a history of homelessness in San Francisco County Jail had a co-occurring severe mental health disorder and substance use disorder. Altogether, the punishment imperative unleashed in the context of disappearing housing assistance and the abandonment of publicly funded mental institutions set the stage for what is now known as the homeless-incarceration nexus (Crane et al., 2005; Gowan, 2002). The homelessincarceration nexus encapsulates the cyclical relationship between homelessness and incarceration in which individuals can become caught. While thus far we have focused on the ways in which homelessness increases the likelihood of incarceration, it is important to stress that this relationship runs in both directions. Many studies, including the previously mentioned study by Nilsson and 10

Homeless Defendants in Felony Court

colleagues (2019), fnd that a history of incarceration signifcantly elevates the risk of homelessness (see, e.g., Adler, 2021; Greenberg & Rosenheck, 2008; Metraux et al., 2007; Mogk et al., 2019; Moschion & Johnson, 2019). Thus, not only are individuals experiencing homelessness at high risk of incarceration but incarceration also elevates the risk of homelessness. And in this way, many individuals experience homelessness and incarceration in a cyclical fashion. As an illustration of this cycle, a recent study conducted by Mogk and colleagues (2019) interviewed 101 homeless individuals in Seattle. These authors found that 78% of participants had experienced incarceration at some point, with a mean of 7.3 stints of incarceration ( jail, prison, or detention centers) and a median of 3.0 stints.

Homeless Defendants and Court Outcomes Despite ample evidence of the homeless-incarceration nexus, little research examines how homeless defendants fare in courts, especially felony courts. The dearth of research on this topic is perplexing, given that most of the research discussed previously focuses on people in jails and all people incarcerated in jail are currently or recently have been defendants in court. There are several studies that describe and/or assess the efects of homeless courts, which are specialty courts designed to process misdemeanor cases that many individuals experiencing homelessness continually face due to aggressive enforcement of anti-homeless laws and to address the underlying causes of homelessness (Binder, 2000; Binder & Horton-Newell, 2014; Buenaventura, 2018; Troeger & Douds, 2021). Very little research, however, compares case and sentencing outcomes by defendants’ housing status. The little research that does exist fnds that homeless defendants receive less favorable outcomes than domiciled defendants. McNiel and colleagues (2005), for instance, fnd that unhoused defendants were held in jail longer than other incarcerated individuals arrested on similar charges. Another study by van Wingerden and colleagues (2016) assessed the relationship between sentencing outcomes and housing accommodations, a measure based on four items, including one on prior experiences with homelessness, in a sample of cases in Dutch courts. These researchers found that poor-quality housing accommodations signifcantly increased the probability of imprisonment.

Teorizing Homeless Disadvantage in Criminal Courts To understand the potential direct and indirect efects of homelessness status on felony court case outcomes, we apply insights from the focal concerns and institutional bias perspectives. The focal concerns perspective explains that judges and attorneys decide case outcomes based on three focal concerns: blameworthiness, protection of the community, and practical constraints (e.g., Kramer & Ulmer, 2009; Stefensmeier et al., 1998; Ulmer, 1997; Ulmer & Kramer, 1996). Blameworthiness subsumes factors relating to the seriousness of the crime, victim injury, the defendant’s role in the ofense, and so forth. Protection of the community refers to the perceived dangerousness of the defendant, which is based on factors such as the extent and severity of prior criminal history and defendant characteristics associated with recidivism (e.g., mental illness, drug dependence). Practical constraints and consequences are individual and organizational considerations that shape case outcomes. Individual-level practical constraints include the defendant’s ability to successfully complete a potential sanction, special needs, and collateral consequences of a potential sanction on the defendant’s children and other family members. Organizational practical constraints include efcient case processing, being stewards of community resources (e.g., jail beds), and preserving healthy working relationships between court actors. The focal concerns perspective posits that court actors’ decisions are primarily guided by the formal rationality of criminal law but court actors also tailor case outcomes to achieve substantive rationality. That is, court actors consider 11

Katharine L. Brown and Ojmarrh Mitchell

each defendant’s perceived character, future dangerousness, and ability to complete an imposed sentence. Applying the focal concerns perspective to predict and make sense of diferences in court outcomes between housed and unhoused defendants produces several testable hypotheses. Given that homeless defendants in many large urban jurisdictions repeatedly cycle through the criminal justice system, court actors are likely to perceive defendants experiencing homelessness as more blameworthy and dangerous than domiciled defendants, which leads to homeless defendants being more likely to have felony charges fled against them and more likely to be found guilty. Court actors, however, face considerable practical constraints when sentencing unhoused defendants. In particular, sentences involving community supervision (i.e., pretrial diversion, withholding of adjudication, and probation) in the jurisdiction of interest require individuals to pay supervision fees, report to a supervising agency regularly, and comply with a host of conditions of supervision. Court actors are well aware that defendants experiencing homelessness do not typically have the fnancial resources necessary to successfully complete terms of supervision, and many individuals facing homelessness sufer from mental illness and drug dependence, which further complicate the successful completion of community supervision. And as noted previously, unhoused defendants typically are indigent and unlikely to have the wherewithal to make bail, which leads to homeless defendants being detained pretrial. The accumulation of days detained pretrial causes court actors to default to jail sentences of time served for homeless defendants, as jail sentences in such cases are efcient resolutions that come without any post-release supervision requirements for the defendant (i.e., jail is typically a stand-alone sanction without post-release community supervision) and consumes no additional community resources, unlike sentences of probation or prison. In other words, days detained pretrial serve as another practical constraint on case outcomes for unhoused defendants that pushes court actors toward jail sentences, in addition to the fnancial considerations that compel court actors away from imposing terms of community supervision on homeless defendants. Based on these insights, we hypothesize that in comparison to housed defendants, who were similarly situated at the complaint stage: 1 2 3

4

Defendants experiencing homelessness are more likely to have felony charges fled against them at the information stage. Defendants experiencing homelessness are more likely to be found guilty. Defendants experiencing homelessness are less likely to receive diversion from prosecution or withholding of adjudication, both of which involve fnancial obligations to be successfully completed. Defendants experiencing homelessness are more likely to receive jail sentences as the case outcome.

It is important to stress that this research is not a direct test of the focal concerns perspective, as a formal test of this perspective would need to measure or account for court actors’ attributions of defendants as well as the perceived practical constraints relevant to each case (see Lynch, 2019, for a discussion of these issues). We have no such measures. Instead, we use the focal concerns perspective as a heuristic framework for understanding and explaining sentencing disparities. Further, the limited fnancial resources of unhoused individuals are likely an indirect source of institutionalized disadvantage in felony courts. Institutional theories of bias assert that in contemporary America inequities primarily operate through legitimate, seemingly neutral factors and, through these factors, inequities become routine or institutionalized (see, e.g., Bonilla-Silva, 2006; Haney Lopéz, 2000; Small & Pager, 2020). For instance, in the current context of felony case processing, pretrial release in the majority of jurisdictions in the United States function under the implicit assumption that tying pretrial release to fnancial considerations is necessary to ensure appearance in court and, many of these jurisdictions utilize bail schedules to determine bail 12

Homeless Defendants in Felony Court

amounts in an efort to ensure that bail decisions are made in neutral fashion (see, e.g., Carlson, 2011; Dabney et al., 2017; Pretrial Justice Institute, 2010). This rationale legitimatizes basing pretrial release on seemingly even-handed fnancial considerations. Yet, empirical research challenges the use of cash bail by fnding that defendants released on non-fnancial conditions have high rates of court appearance (see, e.g., Ares et al., 1963; New Jersey Courts, 2019; Ouss & Stevenson, 2019). Further, in practice, this system disadvantages defendants with limited fnancial resources and leads to poor defendants having higher probabilities of pretrial detention. Importantly, pretrial detention has been found to increase the likelihood of conviction (see, e.g., Dobbie et al., 2018; Gupta et al., 2016; Leslie & Pope, 2017; Lum et al., 2017; Stevenson, 2018) and incarceration (Didwania, 2020; Martinez et al., 2020; Stevenson, 2018). Criminal history is another ostensibly neutral and legitimate factor in case processing. But once again, in practice individuals who live in heavily policed areas are likely to accumulate more contact with police, which in turn produces more arrests and convictions, than individuals residing in areas policed less aggressively. As an example, Mitchell and Caudy (2015) found that the strongest predictor of which drug-involved individuals were arrested for a drug ofense was not the frequency of drug use or drug sales but the type of neighborhood of residence. Drug-involved individuals who lived in gang neighborhoods, the kind of locations typically policed heavily, had much higher odds of drug arrests than individuals residing in neighborhoods without gangs. These ideas when applied to the current research context of unhoused defendants in felony courts motivate several potential indirect ways in which homelessness leads to more punitive case outcomes. Most fundamentally, homelessness is strongly associated with limited fnancial resources. First, defendants facing homelessness have limited fnancial means which contributes to these defendants being detained during the entirety of the pretrial stage. Being detained pretrial weakens defendants’ ability to mount a strong defense and as a result detained defendants are more likely to have charges fled against them, plead guilty, and receive more punitive sentencing outcomes (e.g., jail or prison sentences instead of probation). Second, court actors have the discretionary authority to divert cases from prosecution or withhold adjudication for defendants who plead guilty. Both sanctions require defendants to complete a term of community supervision that includes paying supervision fees and court costs, among other conditions; and, if the terms of supervision are completed in the specifed time period, the charges against the defendant are dismissed in the case of diversion and permanently held in abeyance for withholding. Defendants facing homelessness, however, are unlikely to receive these discretionary case outcomes as court actors recognize that unhoused, indigent defendants do not typically have the fnancial resources necessary to successfully complete these sanctions’ conditions. Third, indigent defendants are less likely to hire private defense counsel. Type of defense counsel is important for two distinct reasons. The fnancial wherewithal to hire a private attorney is an indication that a defendant has the means to make bail and aford sanctions that require payment of supervision fees (i.e., diversion, withholding of adjudication); thus, hiring a private attorney is an indirect measure of wealth. Type of defense counsel is also salient because private defense attorneys are likely to investigate their cases prior to prosecutors making a charging decision. That is, private attorneys, because they do not operate under the enormous caseloads common among publicly funded defense attorneys, are able to conduct thorough case investigations prior to the charging decision and aggressively attempt to infuence prosecutors’ charging decisions toward less punitive options (e.g., diversion, reducing charges to misdemeanors). Perhaps due to these factors, Williams (2013) found that in Florida courts defendants with private attorneys obtained more favorable outcomes than defendants with publicly funded defense counsel. Fourth, court decisions from bond setting to fnal disposition are strongly infuenced by the defendant’s criminal record. As mentioned previously, on average, unhoused defendants have greater criminal history due to their limited access to private space and societal criminalization of 13

Katharine L. Brown and Ojmarrh Mitchell

homelessness, as well as increased interactions with law enforcement due to the preceding factors. All these institutional factors are likely to work against the homeless, therefore, we hypothesize that in comparison to housed defendants: 1 2 3 4

Defendants experiencing homelessness have a greater criminal history. Defendants experiencing homelessness are less likely to hire private attorneys. Defendants experiencing homelessness are more likely to be detained pretrial. Defendants experiencing homelessness have more punitive case outcomes due to the indirect efects of criminal history, pretrial detention, and private attorney on case outcomes.

Te Current Study The current research expands the knowledge base in several important ways. First, this research is one of the few existing studies that compare case outcomes by housing status. This contribution is salient because, while we know that unhoused defendants are vastly over-represented in criminal courts, we have little knowledge about how they fare in these arenas. Second, this research employs a cumulative disadvantage analytic framework that tracks a sample of cases from case fling to fnal disposition. The vast majority of courts and sentencing research only examines disparities in sentencing outcomes and leaves unexamined disparities in pre-sentencing outcomes such as charging decisions (see, e.g., Hagan, 1974; Kurlychek & Johnson, 2019). By tracking and assessing diferences in cumulative case outcomes by housing status, we are able to estimate the efects of homelessness comprehensively. Third, we examine the direct efects of housing status on case outcomes and the indirect efects to assess the extent to which homeless defendants are disadvantaged by institutional factors and practices.

Research Context and an Overview of Case Processing Pinellas County is part of the Tampa-St. Petersburg-Clearwater metropolitan area, located on the west coast of Florida. Much of Pinellas County is waterfront property surrounded by the Gulf of Mexico. Its warm climate and beaches make Pinellas County an attractive location for tourists and Florida residents alike. In fact, Pinellas County is the most densely populated county in the state with nearly 3,400 people per square mile and has a total population of 975,000 (U.S. Census Bureau, 2021). St. Petersburg is the most populous city in the county, and St. Petersburg long has had a substantial homeless population. In the time period of interest (2017), Williams Park in downtown St. Petersburg was a gathering place for homeless individuals and a crime hotspot, particularly for drug activity (Irwin, 2017; Tampa Bay Times Staf Writer, 2013). The sizeable homeless population and access to court records identifying homeless defendants make this county well-suited for the current research. Felony case processing in Pinellas County, Florida has three distinct phases. The frst phase is the complaint stage. Typically, after a felony arrest has been made, prosecutors specify the initial charges by fling a criminal complaint. The charges are reviewed by a judge to determine whether probable cause exists to support the defendant’s detention. The charges in the complaint are the basis for determining the initial bail amount, as Pinellas County uses a bail schedule that sums bail amounts in case with multiple charges. The most common felony charge, for example, is drug possession; bail for this ofense is $2,000 for each charge/count. Thus, if a defendant is charged with two felony drug possession ofenses the bail is $2,000 for each ofense or $4,000 in total (i.e., bail amounts are “stacked”). The use of a fxed bail schedule allows defendants with immediate access to the resources needed to bond out of jail to do so as soon as the charges have been decided upon without having made a frst court appearance. Defendants without the means to meet the 14

Homeless Defendants in Felony Court

initial bail amount are brought before the court. The presiding judge decides whether to modify the initial bail amount. The judge has the authority to increase or decrease the bail amount or to release the defendant on their own recognizance based upon factors such as the defendant’s history of failure to appear for court hearings, criminal history, community ties, dangerousness to the community, and other alleged details listed in the criminal complaint. Defendants who are unable to make bail are detained until the case is resolved. The information stage is second in the process. In this stage, the prosecutor makes a case fling or “information” decision. An assistant state attorney (ASA) is assigned to each case. The assigned ASA is tasked with reviewing and investigating the case and then making a charging decision by fling a felony “Information,” a formal charging document, with the court. In the information stage, the prosecutor decides whether to drop all charges and dismiss the case, reduce all of the charges to misdemeanors and transfer the case to a lower court, divert the case from prosecution, or continue to prosecute the case as a felony. The information decision typically requires substantial investigation by the ASA, and this process generally takes three to four weeks. If the prosecutor elects to proceed with felony prosecution, a pretrial conference hearing is set, and plea negotiations begin. The disposition stage is the third component of case processing. The plea negotiations that usually begin after the information decision most often yield a change in the defendant’s plea to guilty or no contest (hereafter, we refer to pleas of no contest and guilty as simply “guilty pleas”). Trials in this county are exceedingly rare as nearly all convictions are made via guilty pleas. If the defendant is found or pleads guilty to a felony ofense, the sentence imposed needs to adhere to Florida’s Criminal Punishment Code (CPC). Unlike most sentencing systems, the CPC does not use a two-dimensional grid; instead, the CPC uses a point system and a worksheet to calculate or “score” each case. Points are assessed for several factors, including the severity of the ofense, victim injury or death, use of a weapon, prior criminal record, and legal status at the time of the ofense. These scores are summed to calculate “total sentence points” that determine the “lowest permissible sentence” (Florida Department of Corrections & Ofce of the State Courts Administrator, 2012, p. 13). If the defendant “scores” more than 44 total sentence points, then a prison sentence is the lowest permissible sentence; in cases with 44 or fewer points, the lowest permissible sentence is a non-prison sanction.

Methods Data This research study drew a simple random sample of felony cases fled in calendar year 2017 in Pinellas County, Florida.1 To draw this random sample, we frst enumerated cases fled in 2017, then we assigned each case a random number, and fnally, we selected the 5% of cases with the highest random number. We excluded murder homicide cases from our sample because of their rarity, atypically long durations of case processing, and to prevent these cases from disproportionately infuencing the statistical analyses. We also excluded extradition-related cases (e.g., fugitive cases), as they are fundamentally diferent from the cases of interest in this study. Our ability to sample and collect data on these felony cases was made possible by Florida’s expansive open records or “Sunshine Laws,” which require most court-related documents to be made available to the public. Case dockets detailing case events as well as court documents fled with the court clerk are public records, which are accessible in electronic form on the Pinellas County Clerk of the Court’s website. Trained coders recorded relevant measures by reviewing each case’s docket and court records. The measures, which are described below, were primarily coded from the court docket, criminal 15

Katharine L. Brown and Ojmarrh Mitchell

complaint, the felony information, and, if the defendant was found guilty, the plea agreement, judgment and sentence, and CPC scoresheet. To ensure inter-rater consistency in coding, the principal investigator audited case coding. The principal investigator resolved any coding errors, and reoccurring errors were discussed with individual coders as well as in group project meetings. The coded information included personal identifers that were used to obtain defendants’ prior criminal history. Specifcally, we cross-referenced each defendant’s personal identifers with publicly available data from Florida’s Department of Corrections (DOC) to fnd the DOC number for individuals previously convicted of a felony. The DOC number was then used to identify each defendant’s prior felony convictions as recorded in the DOC data (the DOC data strictly contain felony convictions, regardless of sentence type). It is important to note that the DOC data include alias names and dates of birth used by individuals previously convicted of felonies, which limits measurement error in the prior felony convictions variable due to the use of aliases. A total of 763 felony cases were initially coded. For the current study, we excluded cases that were still pending disposition (n = 39) or had limited information available due to the court clerk restricting access to these cases (e.g., the victim was a minor, n = 23). Finally, we dropped cases from these analyses in which the defendant’s race was coded as “other” or Hispanic2 due to the small number of the cases in these categories (n = 35), particularly among homeless defendants (n = 2). After these exclusions, the sample for this study is comprised of 666 cases initially fled as felonies in which the defendant was Black or White. Due to the modest sample size, we include an alpha level of 0.10 as statistically signifcant (see, e.g., Warner, 2008).

Key Measures and Teir Coding Demographics. The primary demographic variable of interest is defendants’ homelessness status. To identify homeless defendants, we reviewed the court records, primarily the criminal complaint that lists each defendant’s home address. This document typically lists the home address for homeless defendants as “transient” or “homeless.” We used this information to create a dummy variable fagging unhoused defendants. We also coded each defendant’s age, sex, and race. Age was measured in years at the time of case fling. Sex and race were dummy coded with male and White serving as the reference categories. These demographic data were also typically obtained from the criminal complaint and court docket. Case Characteristics. A host of variables measuring relevant case characteristics were coded. Several variables were created to measure ofense seriousness.3 These measures include the number of charges, the specifc criminal ofenses as well as their corresponding statutes for the top three charges.4 This information was used to calculate the precise ofense seriousness in accordance with the CPC; in particular, the CPC categorizes ofenses into ten levels, and each level has a specifed number of ofense points (e.g., ofense level 1 = 4 points, level 2 = 10 points, level 3 = 16 points). We summed the ofense points for the top three charges to create total ofense seriousness points. We also used ofense points to identify the most serious ofense (i.e., the ofense with the greatest number of points under the CPC), which in turn was used to identify the felony degree level of the most serious ofense. Most serious ofense, third-degree felony is measured using a series of dummy variables for frst-degree with the possibility of a life sentence (frst-life), frst-degree, second-degree, and third-degree (the reference category) felony ofense. Notably, the total ofense seriousness points variable is a more precise measure of ofense seriousness than the felony degree level as some third-degree felonies, for example, have greater ofense seriousness points than some second-degree felonies. Last, we created a most serious ofense type variable using four categories: drug, property, violent, and other ofenses. These categories were dummy coded with drug offenses serving as the reference category. 16

Homeless Defendants in Felony Court

As previously mentioned, we used number of prior felony convictions as our measure of criminal history. We view this variable as the most appropriate measure of prior record because the CPC calculates prior record points based almost exclusively on prior felony convictions. To be clear, prior misdemeanor convictions are scored but infuence prior record scores relatively little due to their light weighting. For instance, the maximum points scored for a prior misdemeanor is 0.2; whereas the most common prior felony convictions are scored as 1.6 points or more. Bail and pretrial detention were also coded. The initial bond amount was captured using a categorical variable capturing eight common bond outcomes; specifcally: (1) being released on recognizance (ROR) or pretrial supervision, (2) receiving a bond amount less than $2,000, (3) between $2,000 and $4,000, (4) between $4,001 and $6,000, (5) between $6,001 and $15,000, (6) greater than $15,000, (7) having bond denied, or (8) bond information is unknown.5 Detained pretrial is coded as “1” if the defendant was detained during the entirety of the pretrial period and “0” otherwise. Last, we coded type of defense counsel. The type of counsel retained by the defendant was dummy coded with defendants represented by private attorney at the time of case disposition coded as 1 and all publicly funded defense counsel as the reference. Cumulative Case Outcomes. As mentioned previously, felony cases can be disposed at either the information or disposition stage. At the information stage, prosecutors have four distinct decisions. First, prosecutors have the authority to drop all charges and dismiss the case by declining to fle charges (no charges fled). Second, prosecutors may divert a case from prosecution. If the defendant completes the conditions of the diversion agreement, the case is dismissed. The third potential information outcome is to transfer all charges to a lower court (e.g., misdemeanor or trafc court) and thereby end the case as a felony. Fourth, prosecutors can continue to prosecute the case as a felony by fling a “felony information” listing the felony ofenses. Cases in which a felony information was fled are resolved at the disposition stage. Here cases are disposed by the defendant changing their plea to guilty, or much more rarely, cases are dismissed after the felony information has been fled. We frst coded cases in which the defendant was found guilty of any ofense.6 Defendants found guilty were coded as 1 all others were coded 0. For defendants pleading guilty, the court may fnd the defendant guilty but choose to withhold adjudication. Defendants adjudicated guilty are typically sentenced to probation, jail, or prison, which may not be mutually exclusive if the defendant is convicted of multiple charges. We combined the above case outcomes at the information and disposition stages to create six distinctive case outcomes, loosely ranked in severity: (1) all charges were dropped either at the information or disposition stage, (2) transferred to a lower court, (3) diverted from prosecution or adjudication was withheld, (4) sentenced to probation, (5) sentenced to jail, and (6) sentenced to prison. This measure is designed to capture the collective case outcomes made by court actors.7

Analyses After reporting descriptive statistics for the variables of interest by homelessness status, we conducted a series of analyses to estimate the direct efects of homelessness on various outcomes. The frst set of analyses used logistic regression models to assess the efects of homelessness on pretrial detention, felony information fling, and found guilty, while controlling for a common set of independent variables. The second analysis used multinomial logistic regression to assess diferences in cumulative case outcomes by homelessness status. For the logistic and multinomial logistic regression analyses, we report the results using the regression coefcients and their standard errors. For the multinomial regression analysis, we also report predicted probabilities by homelessness status. Further, we base our hypothesis tests concerning diferences between housed and unhoused defendants on chi-square tests of diferences between these groups’ predicted probabilities, 17

Katharine L. Brown and Ojmarrh Mitchell

instead of using the statistical signifcance of regression coefcients from the multinomial regression model. We chose this method because these regression coefcients and tests of their statistical signifcance are sensitive to which category of the dependent variable is used as the reference. Predicted probabilities are invariant to this choice. The predicted probabilities and tests of diferences of the predicted probabilities were estimated using Stata’s margins commands. It is important to note that all of our regression models estimate cumulative disadvantage by examining similarly situated cases at fling and then comparing eventual case outcomes by homelessness status. To similarly situate cases at fling, we control for case characteristics, most importantly charging variables, at case fling. We did not update the charging variables as they change in later stages, because doing so would estimate the efect of homelessness, at a particular stage of case processing, after controlling out of the analysis how homelessness may have afected changes in charges, instead of the total cumulative efect. The indirect efects of race were estimated using Gelbach (2016) decomposition models. Decomposition models calculate the size of group disparities (e.g., sex, race) on some outcome of interest and estimate the observed variables’ contribution to these disparities. One goal of these models is to explain how much of the group disparity on the outcome of interest is attributable to group diferences in predictor variables, which is referred to as “explained variation.” This information is then used to estimate a counterfactual that asks how much of the group diference would remain if the two groups were equal on all predictor variables except for the group or “unexplained variation.” In this way, decomposition models identify the indirect efects of group membership via the predictor variables. The Gelbach approach uses two models to identify explained and unexplained group variation. It frst estimates a base OLS regression model that calculates the raw marginal mean diference on a particular outcome by group (e.g., homeless vs. domiciled defendants’ mean diference). A full OLS regression model that contains all predictor variables, including the group membership variable, is then estimated. The coefcient for the group membership variable in this full model is the direct efect of belonging to a particular group (e.g., being homeless), after controlling for the other independent variables. The diference between the group membership coefcients in the base and full models represents how much of the group efect is accounted by the other predictor variables, and the Gelbach approach breaks down this explained variation by individual predictor variables or sets of predictor variables. For example, in the analyses below, we are interested in estimating how much of the diferences between housed vs. unhoused defendants are attributable to group diferences in demographic factors (age, sex, race), the hiring of a private defense counsel, pretrial detention, prior convictions, and the case/charge seriousness (as measured by the set of variables concerning case/ofense seriousness). To express each variable’s (or variable set’s) contribution toward explaining housed vs. unhoused diferences in percentage terms, we summed the absolute value of each variable’s contribution to calculate the total adjusted explained diference. We then divided each variable’s (or variable set’s) explanatory contribution by the total adjusted explained diference and multiplied this dividend by 100 (Donnelly, 2019). These decomposition models were conducted in Stata using Gelbach’s (2014) b1x2 command.

Results Descriptive Statistics Table 1.1 provides descriptive statistics on the variables of interest by homelessness status. Twenty percent of defendants in the sample were unhoused and the remaining 80% were housed. These groups exhibit large and statistically signifcant bivariate diferences on most of the coded variables. In terms of demographic and socioeconomic variables, unhoused defendants were older, less likely

18

Homeless Defendants in Felony Court Table 1.1 Descriptive statistics by defendant homelessness status (N = 666). Housed (n = 532) Variables Black, non-Hispanic Female Age, years Private attorney

Mean/Prop.

Homeless (n = 134) SD

0.36

SD

0.26

*

0.27 35.68 0.24

Mean/Prop.

0.22 12.25

38.45* 0.05** χ(6)2=29.91**

Initial bond amount, categorical Bond$2,000, $4,000, $6,000, $15,000

0.14

0.04

Bond denied

0.08

0.08

Unknown

0.01

0.01

0.34

0.63**

Detained pretrial # of prior felony convictions # of charges1 Total ofense seriousness pts, complaint Most serious of. type, complaint

12.10

1.37 1.64 29.01

2.12 1.18 23.45

1.82* 1.46 28.01 χ(3)2=7.55+

Drugs0

0.30

0.40

Property

0.20

0.12

Violent

0.29

0.28

Other felonies

0.21

0.21

Most serious of., third degree felony

0.77

0.79

Felony information fled

0.64

0.75*

Found guilty on any charge

0.64

0.75*

2.36 1.28 23.37

χ(5)2=19.20**

Cumulative case outcome Case dismissed0

0.23

0.18

Transferred to lower court

0.08

0.06

Adj. withheld/diverted

0.17

0.07

Adj. guilty and sentenced to probation

0.10

0.09

Adj. guilty and sentenced to jail

0.26

0.43

Adj. guilty and sentenced to prison

0.16

0.17

Note: Statistical tests were chi-squares for dichotomous and categorical variables, and t-tests were utilized for continuous variables. 0 Indicates omitted reference category in regression models. 1 Censored at the 99th percentile to reduce infuence of outliers. ** p < 0.01, * p < 0.05, + p < 0.10.

19

Katharine L. Brown and Ojmarrh Mitchell

to be Black, and much less likely to hire private attorneys. As expected, unhoused defendants were much more likely to be detained pretrial than housed defendants. This disparity is not attributable to homeless defendants having higher bond amounts; in fact, unhoused defendants had lower initial bond amounts than housed defendants. For example, 38% of unhoused defendants had bond amounts in the lowest category, less than $2,000, but 20% of housed defendants had bond amounts in this range. Given that bail amounts are tied to severity of charges in the complaint, it is unsurprising that unhoused defendants also faced somewhat less serious charges than housed defendants in terms of the most serious ofense.8 Although not statistically signifcant, unhoused defendants had somewhat fewer charges in the complaint and those charges were associated with fewer total ofense seriousness points. Unhoused defendants, as expected, had signifcantly more prior convictions than housed defendants. There are also notable diferences between housed and unhoused defendants on individual and cumulative case outcomes. Unhoused defendants were signifcantly more likely to have felony charges fled against them at the information stage (75% vs. 64%) and were more likely to be found guilty (75% vs. 64%), respectively. Notably, the percentage of cases that had felony charges fled at the information stage and the percentage of cases in which the defendant was found guilty are identical; this is not an error. Only one case in which the prosecutors fled felony charges against the defendant did not lead to a conviction, which is a remarkable example of the power of prosecutors—prosecutors obtained guilty pleas in 99% of cases in which they pursued felony charges. Cumulatively, housed and unhoused defendants have distinct distributions of case outcomes with unhoused defendants being less likely to have charges dismissed (18% vs. 23%), much less likely to have adjudication withheld or diverted from prosecution (7% vs. 17%), and much more likely to receive a jail sentence than housed defendants (43% vs. 26%), respectively. By contrast, there are small diferences in the percentage of cases with housed and unhoused that had all charges reduced to a misdemeanor, received probation, or were sentenced to prison. The fndings of the bivariate analyses reported in Table 1.1 support several of our hypotheses. As predicted by hypotheses 5–7, homeless defendants had a greater criminal history, were less likely to hire private attorneys, and were more likely to be detained during the pretrial phase. And as predicted by hypotheses 1 and 2, unhoused defendants were more likely to be charged by prosecutors at the information stage with a felony and more likely to be found guilty of some ofense in these simple bivariate analyses.

Logistic Regression Analyses Individual Outcomes To more rigorously assess the relationships between homeless status, fling of felony information, and guilt, the logistic regression analyses reported in Table 1.2 statistically control for other relevant factors. Even after accounting for other factors, homeless defendants had much higher odds of being detained throughout the pretrial process. In terms of odds, homeless defendants had 233% ((e1.204 – 1)*100 = 233%) higher odds of pretrial detention than housed defendants. When translated into predicted probabilities, the predicted probabilities of pretrial detention, after controlling for other relevant factors, are 0.61 and 0.35, respectively (not reported in the tables), for unhoused and housed defendants. These diferences are statistically signifcant ( χ2(1) = 31.00, p < 0.001). The regression coefcients displayed in Table 1.2 also demonstrate that homeless defendants were more likely to have felony information fled against them and were more likely to be found guilty. Yet, the association between homelessness and these outcomes is more modest in comparison to pretrial detention. Unhoused defendants had odds that are approximately 57% greater than housed defendants of having felony information fled and of being found guilty of some ofense in Circuit court. Thus, even after accounting for competing factors, homeless defendants are disadvantaged in comparison to housed defendants who were similarly situated at the complaint stage. 20

Homeless Defendants in Felony Court Table 1.2 Pretrial detention, felony charging, and guilty outcomes: logistic regression (N = 666). Felony Information Variables

Detained Pretrial

Filed

Guilty

Homeless defendant

1.204 (0.222)

0.423 (0.243)

0.430+ (0.244)

Black, non-Hispanic

−0.315 (0.194)

0.044 (0.196)

0.053 (0.197)

Female

−0.375+ (0.204)

0.143 (0.205)

0.156 (0.206)

Age

0.001 (0.008)

0.002 (0.007)

0.002 (0.007)

Private attorney

−1.023** (0.248)

0.276 (0.232)

0.239 (0.231)

# of prior felony convictions

0.126** (0.041)

0.101* (0.047)

0.104* (0.047)

0.400** (0.136)

0.413** (0.137)

# of charges

**

−0.164+ (0.095)

+

Total ofense seriousness pts

0.004 (0.007)

0.001 (0.007)

0.000 (0.007)

Other felonies, most serious charge

0.202 (0.298)

−0.457+ (0.268)

−0.451+ (0.268)

Property, most serious charge

0.387 (0.237)

−0.374 (0.245)

−0.376 (0.245)

Violent, most serious charge

−0.019 (0.310)

−1.526** (0.276)

−1.556** (0.277)

Third-degree felony

−0.188 (0.326)

−0.289 (0.327)

−0.323 (0.329)

Bond>$2,000, $4,000, $6,000, $15,000

1.423** (0.405)

Bond denied

0.883* (0.423)

Unknown bond

0.419 (1.014)

(Continued)

21

Katharine L. Brown and Ojmarrh Mitchell

Felony Information Variables

Detained Pretrial

Detained pretrial Constant

Filed

Guilty

−0.765 (0.544)

0.793** (0.197) 0.127 (0.541)

0.803** (0.197) 0.163 (0.542)

0.117 104.71**

0.108 92.19**

0.112 95.37**

Model ft Pseudo R-squared Likelihood ratio χ2

Note: Logged odds regression coefcients are displayed with standard errors in parentheses. ** p < 0.01, * p < 0.05, +p < 0.10.

Multinomial Regression Analyses of Cumulative Case Outcomes Table 1.3 reports the results of a multinomial logistic regression that examines the relationship between homelessness and cumulative case outcomes in terms of the coefcients. Most of the relationships revealed by the model ft our expectations. As anticipated, the use of a private attorney has a sizeable positive association to the case outcomes requiring fnancial obligations, namely, diversion/withholding of adjudication and probation sentences. Given that retaining private defense counsel is strongly associated with case outcomes involving fnancial obligations but no other case outcomes, we believe that our measure of private defense is serving more as a proxy for ability to pay than capturing the relative efcacy of private defense attorneys vs. publicly funded defense counsel. Pretrial detention has strong positive relationships with jail and prison sentences as predicted; however, unexpectedly, detention has a positive relationship to diversion/withholding of adjudication. The multinomial model’s regression coefcients also indicate that homeless defendants were more likely than domiciled defendants to receive jail sentences compared to having their cases not fled (i.e., dismissed). No other regression coefcients signifcantly predict diferent outcomes between housed and unhoused defendants. Put simply, when individuals experiencing homelessness are detained pretrial, they are more likely to be sentenced to jail than have their case dismissed when compared to housed individuals. This fnding should be viewed with caution because these regression coefcients and their statistical signifcance are afected by the choice of the reference category as mentioned previously. Table 1.4 displays the results of the multinomial regression model in terms of predicted probabilities to provide results that are invariant to the choice of the reference. These results more closely align with our predictions. As hypothesized, unhoused defendants were considerably less likely to have adjudication withheld or diverted from prosecution in comparison to domiciled defendants (0.097 vs. 0.160), respectively (χ2(1) = 3.83, p = 0.0502). Further, defendants experiencing homelessness were much more likely to receive jail sentences than domiciled defendants (0.378 vs. 0.266), respectively ( χ2(1) = 5.76, p < 0.05). There were no meaningful diferences in the predicted probability of receiving any of the other case outcomes between the two groups.

Indirect Efects of Homelessness via Institutional Practices The previous analyses reveal that housing status is related to individual and cumulative case outcomes. These models also reveal that case outcomes are strongly predicted by pretrial detention and criminal history. In addition, private defense counsel has a strong, negative relationship with pretrial detention and strong positive relationships to withholding of adjudication/diversion and 22

Homeless Defendants in Felony Court Table 1.3 Multinomial logistic regression of cumulative case outcomes (N = 666).

Variables

Transferred Coef. (SE)

Diverted/Withheld1 Probation Coef. (SE) Coef. (SE)

Jail Coef. (SE)

Prison Coef. (SE)

Homeless defendant

0.111 (0.479)

−0.285 (0.439)

0.472 (0.429)

0.665* (0.308)

0.270 (0.378)

Black, non-Hispanic

0.182 (0.367)

−0.191 (0.324)

−0.636 (0.392)

0.107 (0.265)

0.774* (0.313)

−0.750+ (0.426)

−0.068 (0.311)

0.704* (0.335)

−0.302 (0.276)

−0.553 (0.371)

Age

0.016 (0.013)

−0.018 (0.012)

0.007 (0.014)

0.010 (0.010)

0.010 (0.013)

Private attorney

0.291 (0.438)

0.972** (0.355)

0.672+ (0.399)

0.192 (0.338)

0.540 (0.397)

Detained pretrial

0.311 (0.373)

0.669* (0.322)

−0.184 (0.379)

0.841** (0.262)

1.405** (0.313)

−0.153 (0.100)

−0.887** (0.191)

0.082 (0.076)

0.022 (0.059)

0.181** (0.065)

0.170 (0.313)

0.614** (0.216)

0.657** (0.218)

0.657** (0.197)

0.677** (0.202)

−0.010 (0.014)

−0.004 (0.012)

−0.016 (0.013)

−0.015 (0.010)

0.005 (0.010)

1.505**

−0.372

0.317

−0.132

0.078

(0.544)

(0.461)

(0.477)

(0.368)

(0.468)

Property, most serious charge

0.915 (0.532)

0.232 (0.379)

0.065 (0.420)

−0.407 (0.328)

0.162 (0.396)

Violent, most serious charge

−0.533 (0.596)

−1.426** (0.435)

−1.577** (0.540)

−1.933** (0.367)

−1.938** (0.468)

Third-degree felony

−0.719 (0.609)

0.586 (0.566)

−1.115+ (0.581)

−0.190 (0.464)

−1.301** (0.486)

Constant

−1.351 (1.042)

−0.502 (0.900)

−0.786 (0.978)

−0.357 (0.746)

−1.874* (0.847)

0.168 379.36**

0.168 379.36**

0.168 379.36**

0.168 379.36**

0.168 379.36**

Female

# of prior felony convictions # of charges Total ofense seriousness pts Other felonies, most serious charge

+

Model ft Pseudo R-squared Likelihood ratio χ2

Note: Standard errors in parentheses. The omitted, reference category of the dependent variable is case dismissed. 1 This outcome combines pretrial diversion and withholding of adjudication due to small number of cases receiving these outcomes and their substantive similarity. ** p < 0.01, * p < 0.05, +p < 0.10.

probation sentences. Given that pretrial detention, criminal history, and hiring of private defense counsel are correlated with defendants’ housing status, these fndings suggest that each of these factors is an indirect conduit of institutional bias against homeless defendants. Yet, the preceding models do not capture these potentially important indirect efects. 23

Katharine L. Brown and Ojmarrh Mitchell Table 1.4 Predicted probability for each cumulative case outcome by homelessness status. Housed

Homeless

Outcome

p

SE

p

SE

Case dismissed Transferred to lower court Diverted/withheld Probation Jail Prison

0.233 0.082 0.160 0.094 0.266 0.166

0.017 0.012 0.015 0.012 0.019 0.014

0.185 0.070 0.097+ 0.112 0.378* 0.159

0.032 0.024 0.028 0.030 0.042 0.028

**

p < 0.01, * p < 0.05, + p < 0.10.

Table 1.5 Decomposition of housed-homeless disparities in pre-conviction outcomes. Dismissed

Transferred

Diversion/Withheld1

Coef.

SE

Coef.

SE

Coef.

SE

Base model Full model Explained diference

−0.052 −0.044 −0.008

0.040 0.040 0.020

−0.025 −0.012 −0.013

0.026 0.027 0.010

−0.093* −0.061+ −0.032*

0.034 0.035 0.016

Variation explained by: Demographics Private attorney Detained pretrial Prior convictions Charges

−0.003 0.015+ −0.029** 0.000 0.009

0.005 0.008 0.011 0.003 0.014

0.004 0.002 −0.006 −0.004 −0.009

0.004 0.005 0.007 0.003 0.006

−0.005 −0.017* −0.001 −0.015+ 0.005

0.005 0.007 0.008 0.007 0.007

% Explained by: Demographics Private attorney Detained pretrial Prior convictions Charges

4.73 26.98 52.42 0.09 15.77

17.19 7.42 24.33 15.83 35.23

12.24 39.65 1.34 34.73 12.04

1 This outcome includes cases that were diverted from prosecution and cases with adjudication withheld. ** p < 0.01, * p < 0.05, +p < 0.10.

To address this issue, we employed Gelbach decomposition models. Table 1.5 summarizes the decomposition models analyzing sources of housed-unhoused diferences for three pre-conviction cumulative case outcomes (i.e., dismissed, transferred, withheld/diverted). For case dismissal, the raw marginal mean diference between housed and unhoused defendants is −5.2 percentage points indicating that unhoused defendants were less likely to have their cases dismissed than housed defendants. In the full model, this diference shrinks modestly to −4.4 percentage points, and the other −0.8 percentage points are explained by demographics (i.e., age, sex, race), the hiring of a 24

Homeless Defendants in Felony Court

private attorney, pretrial detention, prior convictions, and the various measures of case/ofense seriousness. The middle section of Table 1.5 reports the variation explained by each of these components. Because the raw marginal mean diference from the base model is negative, predictors with negative coefcients contribute toward explaining the observed raw disparity and predictors with positive coefcients indicate that the observed disparity would be larger, if not for such predictors. The bottom section of the table reports the percent of the explained variation due to each factor. For instance, over 50% of the explained variation in the diference in cases dismissed between housed and unhoused defendants is attributable to pretrial detention alone. The three mediating variables of interest (pretrial detention, prior convictions, and private attorney) account for a large portion of the explained variation on case dismissal and adjudication withholding/diversion outcomes. These variables, however, account for a noticeably smaller portion of the explained variation for the case transfer to a lower court outcome; here, the variables capturing ofense seriousness account for the largest portion of the explained variation. Type of defense counsel accounts for the largest portion of the explained variation on the withholding of adjudication/diversion outcomes but has modest contributions to explained variation on the other outcomes. Even though the number of prior convictions is a strong prediction of case outcomes, it accounts for a relatively small portion of the explained variation between housed and unhoused defendants except for its contribution on the withholding of adjudication/diversion outcome. Table 1.6 reports the results of the decomposition models for the conviction and sentencing outcomes. Here we added the guilty outcome variable to the cumulative case outcomes to make plain the large disparity in conviction that is implicit when each of the post-conviction outcomes is analyzed separately. In these four case outcomes, pretrial detention accounts for a portion of the explained diference between housed and unhoused. In fact, homeless defendants’ greater prevalence of pretrial detention accounts for 70% of the explained variation in that group’s higher rate Table 1.6 Decomposition of housed-homeless disparities in conviction and sentencing outcomes. Guilty Coef. Base model Full model Explained diference

SE

0.118* 0.046 0.076+ 0.046 0.043 0.022

Variation explained by: Demographics Private attorney Detained pretrial Prior convictions Charges

−0.001 −0.009 0.045** 0.008 −0.001

% Explained by: Demographics Private attorney Detained pretrial Prior convictions Charges

1.58 13.26 70.05 13.21 1.91

**

Probation

0.006 0.009 0.013 0.005 0.015

Jail

Prison

Coef.

SE

Coef.

SE

Coef.

SE

−0.008 0.014 −0.022+

0.029 0.030 0.012

0.170** 0.121** 0.048**

0.043 0.045 0.018

0.010 −0.018 0.028

0.036 0.034 0.020

0.002 −0.006 −0.018* 0.003 −0.004

0.006 0.006 0.008 0.003 0.005

0.007 0.011 0.021+ 0.002 0.008

0.006 0.009 0.011 0.004 0.012

−0.006 −0.003 0.034** 0.014 −0.010

0.006 0.006 0.010 0.007 0.013

7.01 17.06 54.61 9.99 11.33

p < 0.01, * p < 0.05, +p < 0.10.

25

14.06 21.84 42.98 3.82 17.29

9.60 5.11 50.41 20.42 14.46

Katharine L. Brown and Ojmarrh Mitchell

of being found guilty. Simply put, these fndings suggest that individuals experiencing homelessness are more likely to experience higher rates of being found guilty compared to housed defendants through their experiences with pretrial detention. Cumulatively, the three mediating variables of interest account for 68%–97% of the explained variation between housed and unhoused defendants across the seven outcomes with the exception of transfer to a lower court (48%). These decomposition analyses make clear that these factors are key indirect sources of disparities in case outcomes between housed and unhoused defendants. In other words, if not for group diferences in pretrial detention, criminal history, and retention of private defense counsel, the observed disparities in case outcomes would be substantially smaller on the outcomes with relatively large group diferences (i.e., withholding of adjudication/diversion, being found guilty, jail sentences).

Discussion Before discussing the implications of this research, there are several limitations that need to be acknowledged. One limitation that is common to sentencing research is that we have no direct measure of defendants’ socioeconomic or poverty status. For defendants experiencing homelessness, it is reasonable to assume that they are impoverished; yet, for domiciled defendants, the omission of such measures results in other variables such as the use of a private attorney and pretrial detention serving as proxies for socioeconomic/poverty status. A direct measure of socioeconomic/poverty status would remedy these ambiguities. Another limitation is that only one county was included in this research. We limited this research to only Pinellas County because it has a sizeable homeless population and its court records noted which defendants were unhoused at the time of arrest. The use of just one county limits the generalizability of our fndings and results in relatively small sample size and limited statistical power. Despite these limitations, we believe this research is a notable addition to the knowledge base. One of our most remarkable fndings is that 20% of defendants were unhoused at the time of arrest. This fnding aligns with previous estimates of the homeless population in local jails (see, e.g., Greenberg & Rosenheck, 2008; McNiel et al., 2005; Zapf et al., 1996), and this fnding suggests that in densely populated counties, like Pinellas County, individuals experiencing homelessness comprise a signifcant portion of all defendants. Yet, to our knowledge, little to no research focuses on this vulnerable and over-represented population in felony criminal courts. While homeless courts have been adopted in a number of jurisdictions, these courts focus on misdemeanor ofenses, and, as a result, the feld has little empirical knowledge concerning the prevalence of unhoused individuals in felony courts and how they fare in these courts. We found substantial evidence of defendants experiencing homelessness receiving more punitive court outcomes than domiciled defendants who were similarly situated at case fling. In comparison to domiciled individuals, unhoused defendants were more likely to be detained pretrial, charged with a felony, found guilty, and much more likely to be sentenced to a jail term. Further, homeless defendants were somewhat less likely to receive discretionary lenience from court actors in the form of diversion from prosecution or withholding of adjudication. These fndings support our hypotheses (1–4) that are guided by the focal concerns perspective. The support of these hypotheses suggests that focal concerns perspective is a useful heuristic framework for understanding disparities in felony case outcomes between housed and unhoused defendants. It also suggests that court actors may view defendants experiencing homelessness as more culpable and dangerous to the community than housed defendants. Perhaps the greatest contribution of the focal concerns perspective in the current context is the utility of its concepts in explaining the practical constraints producing the overrepresentation of homeless defendants among those sentenced to jail terms. The inability of homeless individuals to pay for bail or cash 26

Homeless Defendants in Felony Court

bonds leads to the accumulation of jail days. Further, their inability to pay the supervision fees necessary to successfully complete diversion or withholding of adjudication makes these case outcomes largely unavailable to homeless defendants. Homeless defendants’ inability to pay and the accumulation of days served in jail during the pretrial process are practical constraints on the viable case outcomes available to court actors, which in the end lead to court actors imposing jail terms on defendants facing homelessness. In fact, jail sentences were by far the most common case outcomes for unhoused defendants. The direct comparison of cumulative case outcomes between housed and unhoused defendants obscures the indirect disadvantages faced by the unhoused in felony courts. As predicted by our hypotheses (5–8), we found defendants experiencing homelessness have signifcantly greater criminal history and because of their indigent status are much less likely to make bail or hire private attorneys. These case factors, especially being detained in jail during pretrial, are strong predictors of case outcomes and, as a result, serve as powerful, indirect mechanisms that lead to homeless defendants receiving more punitive case outcomes. The consistency of the fndings with our hypotheses demonstrates that institutional bias theories are useful theoretical lenses for examining and identifying policies and practices that lead to sentencing disparities.

Conclusion Homelessness has been the central focus of this research but, more broadly, our fndings illuminate the stark disadvantages sufered by impoverished defendants in felony courts. The policies and practices adopted in the felony court examined tie several crucial decisions/outcomes with defendants’ ability to pay. These practices clearly disadvantage defendants experiencing homelessness but also negatively afect any defendant lacking the ability to pay. A more just criminal justice system requires policy reforms to attenuate the relationship between defendants’ ability to pay and court outcomes by curtailing, if not ending, cash bail and eliminating the requirement of paying supervision fees in order to be successfully discharged from certain sanctions.

Funding This project was supported by Award No. 2018-R2-CX-0021, awarded by the National Institute of Justice, Ofce of Justice Programs, U.S. Department of Justice. The opinions, fndings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily refect those of the Department of Justice.

Notes 1 Calendar year 2017 was chosen to allow sufcient time for cases to reach disposition, as cases can take months to years to be resolved. 2 Individuals were coded as Hispanic if the court listed them as Hispanic and if their surname was listed as Hispanic according to the U.S. Census Bureau. Despite these various measures of Hispanic ethnicity, there were simply too few Hispanic defendants to warrant statistical analyses. 3 Information on charges was obtained from the case docket, the criminal afdavit, bond records, felony information, and judgment and sentence documents, as well as the CPC scoresheet. 4 The vast majority of cases (94%) had no more than three charges; however, some cases had dozens of charges. To preserve the project’s limited resources, we coded only the top three charges. 5 We also measured fnal bond amount. In the analyses, we include measures of initial bond amounts because judges take fnancial means into consideration when determining fnal bond amounts and thereby may make homelessness status endogenous to fnal bail amount. 6 The guilty outcome includes all cases in which the defendant was found guilty in Circuit court, even if the adjudication was withheld.

27

Katharine L. Brown and Ojmarrh Mitchell 7 This cumulative case outcome departs from other research using the cumulative disadvantage framework, in that, our measure does not include combinations of the case outcomes with pretrial detention as distinct case outcomes (see, e.g., Kutateladze et al., 2014). Instead, we view pretrial detention as a potentially powerful predictor of case outcomes, but not in itself a case outcome. 8 See the text in the “Research Context and Overview of Case Progressing” section for a discussion of how initial bail amounts are tied to the charges listed in the complaint.

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Katharine L. Brown and Ojmarrh Mitchell Ouss, A., & Stevenson, M. (2019). Evaluating the impacts of eliminating prosecutorial requests for cash bail. George Mason Legal Studies Research Paper LS 19, 8, 1–35. Polcin, D. L. (2016). Co-occurring substance abuse and mental health problems among homeless persons: Suggestions for research and practice. Journal of Social Distress and the Homeless, 25(1), 1–10. Pretrial Justice Institute. (2010). Pretrial justice in America: A survey of county pretrial release policies, practices and outcomes. Pretrial Justice Institute. Rountree, J., Hess, N., & Lyke, A. (2019). Health conditions among unsheltered adults in the US. California Policy Lab. Retrieved August 30, 2021 from https://www.capolicylab.org/health-conditions-amongunsheltered-adults-in-the-u-s/ Small, M. L., & Pager, D. (2020). Sociological perspectives on racial discrimination. Journal of Economic Perspectives, 34(2), 49–67. Stefensmeier, D., Ulmer, J., & Kramer, J. (1998). The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, Black and male. Criminology, 36(4), 763–797. Stevenson, M. T. (2018). Distortion of justice: How the inability to pay bail afects case outcomes. The Journal of Law, Economics, and Organization, 34(4), 511–542. Tampa Bay Times Staf Writer. (2013, February 16). In Williams Park, ‘spice’ addicts overwhelm idyllic setting. Tampa Bay Times. https://www.tampabay.com/news/humaninterest/in-williams-park-spice-addictsoverwhelm-idyllic-setting/1275515/ Troeger, K. C., & Douds, A. S. (2021). Creating a home base for treatment in homeless courts. In E. M. Ahlin & A. S. Douds (Eds.), Taking problem-solving courts to scale: Diverse applications of the specialty court model (pp. 91–116). Lexington Books. Ulmer, J. T. (1997). Court communities under sentencing guidelines. State University of New York Press. Ulmer, J. T., & Kramer, J. H. (1996). Court communities under sentencing guidelines: Dilemmas and formal rationality and sentencing disparity. Criminology, 34(3), 383–408. U.S. Census Bureau. (2021). QuickFacts Pinellas County, Florida. U.S. Census Bureau. https://www.census. gov/quickfacts/pinellascountyforida van Wingerden, S., van Wilsem, J., & Johnson, B. D. (2016). Ofender’s personal circumstances and punishment: Toward a more refned model for the explanation of sentencing disparities. Justice Quarterly, 33(1), 100–133. Warner, R. M. (2008). Applied statistics: From bivariate through multivariate techniques. Sage Publications. Williams, M. R. (2013). The efectiveness of public defenders in four Florida counties. Journal of Criminal Justice, 41(4), 205–212. Wilson, J. Q., & Kelling, G. L. (1982). Broken windows. Atlantic Monthly, 249(3), 29–38. Zapf, P. A., Roesch, R., & Hart, S. D. (1996). An examination of the relationship of homelessness to mental disorder, criminal behaviour, and health care in a pretrial jail population. The Canadian Journal of Psychiatry, 41(7), 435–440.

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2 EQUITY IN JEOPARDY How Flawed Immigration Policy Creates Double Punishments for Noncitizen Service Members and Veterans Anne S. Douds and Kyle C. Troeger Introduction Jose Segovia Benitez arrived in the United States from El Salvador at age three. As a legal permanent resident (LPR or “green card holder”),1 he legally was able to enlist in the United States Marine Corps and did so at age 18 (Kopetman & Naso, 2019). With assistance from military personnel, he began the naturalization process for citizenship while on active duty. After two combat tours in Iraq and a service-related traumatic brain injury, he was honorably discharged. Because Mr. Benitez’s citizenship application was “delayed and mishandled” during his time of military service (Kopetman & Naso, 2019), he never became a citizen. Post-traumatic stress (PTS) exacerbated by his brain injury predisposed him to alcoholism and criminal activity, and he was convicted of driving under the infuence and domestic violence, among other charges (Kopetman & Naso, 2019). When he completed his prison sentence in January 2018, Immigration and Customs Enforcement (ICE) agents took him to the Adelanto ICE Processing Center (Kopetman & Naso, 2019). The ICE agents did not follow the legally required enhanced protections for veterans in detention and deportation proceedings (Takano & Vargas, 2019). He was deported in 2019 to a country he had not seen since he was a toddler (Kopetman, 2021). Mario Martinez served six years in the United States Army and was honorably discharged. He now works as a building engineer in California where he owns a home and enjoys spending time with his son and granddaughter. One night in 2008, distraught after learning that his best friend had committed suicide, [Mr. Martinez] got into an argument with his then girlfriend. He carelessly fung a bottle, which unintentionally struck her, leading to his arrest. The incident was uncharacteristic. His girlfriend pled with the district attorney to drop the charge and for leniency, writing “[t] he harshness of the charges and punishment does not apply to what happened. He is a decent man and to destroy his character in such a matter is incomprehensible.” Her pleas went unheard and [Mr. Martinez] was convicted of domestic violence. He accepts that what he did was wrong, and served his prison sentence. (ACLU, 2021) Mr. Martinez now faces deportation because his criminal conviction prohibits completion of the naturalization process he commenced while in the military. His only hope is a gubernatorial pardon. DOI: 10.4324/9781003245032-3

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Anne S. Douds and Kyle C. Troeger

Sgt. Roman Sabel so desperately wanted to serve in the United States Marine Corps that he provided falsifed documents during his enlistment (Puzzo, 2019). He served six years, started a family, was honorably discharged, and thrived in the country he had served (Puzzo, 2019). He returned to Belize in 2008 for medical treatment. When he attempted to return home to his wife (a U.S. citizen) and his two children (U.S. citizens), he was denied re-entry due to issues surrounding his old enlistment documents (Puzzo, 2019). He has not been able to return to his family home for more than 13 years. Mr. Martinez, Mr. Benitez, and Mr. Sabel are among the 94,000 immigrant veterans in the United States who do not have United States citizenship or who do not have lawful immigration status (National Immigration Forum [NIF], 2018). Unlike these three men, most immigrant veterans have committed no crimes, yet they live in constant peril of deportation. Others like these three men sufer double punishment through criminal justice systems that sentence them, and then trigger immigration proceedings that compound the price they pay for their mistakes. They are punished twice: once through incarceration and again through deportation. Arguably, the angst of living under the shadow of potential deportation is a third layer of psychological punishment. Many of these veterans arrived in the United States as very young children (Moriarty, 2020). A notable number of them were enticed into military service with promises of expedited paths to citizenship, and more than 760,000 service members have obtained citizenship in this manner (Moriarty, 2020). Noncitizens also represent a large segment of the active-duty ranks. Approximately 80,000 noncitizens joined the military between 1999 and 2010 (Thompson, 2012). While the number of noncitizen service members remained high in 2021, the number of those who are permitted to complete the naturalization process continues to drop precipitously due to policy changes discussed below (NIF, 2018; Sisk, 2021). Due to changes in the Military Accessions Vital to the National Interest (MAVNI) Act during the Obama Administration and multiple policy changes made during the Trump Administration, many noncitizens who were promised pathways to citizenship have been forced out of the Armed Service and left to fend for themselves in immigration proceedings (Romo, 2018; Sisk, 2021). Others continue to serve with no clear path for completing immigration paperwork. All eventually will leave the military, and most will become honorably discharged veterans. There is insufcient data on how many noncitizen veterans have come into contact with the criminal justice system (Takano & Vargas, 2019), nor can anyone say with certainty how many of the currently active service members may commit criminal ofenses in the future. We do know, however, that immigrant service members and veterans sufer from greater criminogenic risk factors than other groups (Ahlin & Douds, 2018). Accordingly, it may be surmised that as the number of naturalizations decreases, the number of veterans who are noncitizens will increase, and a percentage of those noncitizen veterans will incur criminal convictions. Those with criminal convictions, like Mr. Benitez and Mr. Martinez, will have paid the price of their convictions by serving prison time. Thereafter, they are subject to deportation proceedings, often within minutes of release from prison as happened with Mr. Benitez. Others rebuild their lives post-incarceration, as did Mr. Martinez, but live under constant threat of deportation. Others like Mr. Sabel committed misconduct for arguably noble reasons, and now pay an enormous price for their willingness to serve in the United States military. After honorably discharged veterans complete sentences imposed by the criminal justice system, they are subject to the immigration court system for detention and deportation procedures (Takano & Vargas, 2019). Immigration courts are not criminal courts. Defendants do not have a constitutionally guaranteed right to counsel in immigration courts, and most veterans go through deportation proceedings with no outside assistance. Moreover, because veterans’ violations of immigration laws are separate matters from whatever criminal charges they faced, principles of double jeopardy do not apply. Technically, they face separate sets of consequences for separate 32

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sets of actions: Punishment through the criminal justice system for violation of state or federal criminal laws, and detention/deportation through immigration courts for violations of federal immigration laws. It may feel like they are being doubly punished, but under the law, they are not. Nevertheless, these cases do jeopardize fundamental principles of equity that should be paramount in our legal systems. While these policies and processes are legal, they are inequitable and must be remedied to keep the faith with those service members who joined the military in reliance upon promises of pathways to citizenship. This chapter describes how changes in some policies, and gaps in execution of other policies, interface to create inequitable consequences for noncitizen veterans who have served honorably, usually in times of war, then served their criminal sentences for ofenses often arising from combat-related injuries, then face deportation. The chapter begins with an overview of the history of citizenship-for-service in the United States, followed by discussion of policies that give rise to three inequities: (1) unnecessary net widening of what kinds of criminal behaviors trigger immigration consequences; (2) inconsistent and confusing recruitment and retention policies that entice noncitizens to enlist in exchange for an expedited path to citizenship then fail to deliver on the promised assistance with naturalization proceedings; and (3) failure to enforce applicable laws and policies at the individual case level in both criminal justice and naturalization proceedings. The chapter concludes with recommendations responsive to each of these sets of problematic policies and practices that create a Gordian knot of injustice for noncitizen service members and veterans.

Background Approximately 25,000–45,000 immigrants served in the United States military in 2015, with approximately 5,000 new noncitizen LPRs joining every year (Department of Defense [DoD], 2016; Moriarty, 2020; Thompson, 2012). Exact numbers are hard to determine for several reasons, most likely because there are no databases to track such information and noncitizens often are reluctant to self-identify (Takano & Vargas, 2019). Immigrants represent an increasing percentage of the total service member and veteran populations, suggesting an increasing reliance on immigrants to populate tightly stretched demands for military personnel (Zong & Batalova, 2019). Many noncitizens who join the military are promised paths to citizenship as part of the enticement for enlistment. Indeed, most immigrants who have served in the military have in fact become citizens. As of 2018, roughly 436,000 (83%) of the 530,000 immigrant veterans living in the United States were naturalized citizens (Zong & Batalova, 2019). As noted above, fewer than 100,000 immigrant veterans are not citizens and remain at risk for deportation. They usually fy below the radar, but any involvement with the criminal justice system shines an ICE spotlight upon them and increases their risk of detention and deportation (Takano & Vargas, 2019).

Ancient History The promise of citizenship-for-service stretches back to the founding of the Nation. As Prussian military Ofcer Friedrich von Steuben wrote to General Washington during the Revolutionary War “[my] only object… [is to] render your Country all the Services in my Power, and to deserve the title of the Citizen of America by fghting for the Cause of your Liberty” (Crackel, 2008, para. 1). At the recommendation of Washington, Congress commissioned von Steuben as the Inspector General of the Continental Army, with a rank of Major General (Stockwell, 2010). He trained soldiers and fought alongside them. For his service, he was granted citizenship in 1784 (Stockwell, 2010). Von Steuben was not the only one. Wartime circumstances necessitated that some states, “use noncitizen recruits… with the promise of full citizenship at the end of the war” (New, 2020). 33

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This precedent of citizenship-for-service continued as new conficts arose. The United States frst adopted conscription policy during the Civil War under the Civil War Military Draft Act of 1863 (History.com Editors, 2017). That law included a provision allowing foreign nationals “who had declared an intent to naturalize… to gain citizenship through military service” (New, 2020, p. 3). This was “the frst codifed expedited naturalization process” in the United States (New, 2020, p. 3). An estimated 543,000 soldiers who served in the Union Army were immigrants, accounting for roughly one-quarter of the Union forces (Doyle, 2015). How many of these were not already citizens, however, is harder to ascertain. The World Wars, likewise, created a need for service personnel that was flled by foreign recruits (CIS, 2020b). Between 1918 and 1920, 244,300 people were naturalized through military service (New, 2020). From 1943 to 1945, there were 109,392 military naturalizations (New, 2020).

Modern History The United States began more explicitly codifying citizenship-for-service practices in the middle of the twentieth century with legislation like the Immigration and Nationality Act (INA) of 1952 (as amended). All persons seeking naturalization, including military personnel and veterans, must demonstrate good moral character, English language comprehension, knowledge of U.S. government and history, an attachment to Constitutional principles, and a favorable disposition toward the United States (Takano & Vargas, 2019). However, applicants who have military service may expedite their applications pursuant to Section 328 of the INA that waives the normal fve-year residency requirement in exchange for one year of honorable service (McCarran & Walter, 2019). Section 329 grants even further expedited naturalization to noncitizens who serve in the armed forces during a period of hostility, allowing for naturalization proceedings to begin “at the time of enlistment” (McCarran & Walter, 2019; U.S. Congress, 1952). However, neither civilians nor service members could enjoy the benefts of this new legislation if they had committed an “aggravated felony” as defned in Section 101(a) (43) of the INA. Regardless of their immigration status, noncitizens who have been convicted of an ‘aggravated felony’ are prohibited from receiving most forms of relief that would spare them from deportation, including asylum, and from being readmitted to the United States at any time in the future. (American Immigration Council, 2021, p. 1) In other words, if veterans commit “aggravated felonies,” they cannot pursue citizenship proceedings, regardless of their military service and regardless of where they are in the naturalization process.

Net Widening and “Aggravated Felonies” This restriction appears reasonable on its face. Denying citizenship to aggravated felons refects reasonable criminal justice as well as immigration policy. However, the phrase “aggravated felonies” is misleading due to signifcant expansions of its meaning that began in the Clinton Administration. In 1996, President Bill Clinton, facing bipartisan pressure to get tough on immigration issues, signed the Illegal Immigration Reform and Immigrant Responsibility Act (1996) that, among other things, expanded the defnition of “aggravated felonies,” which previously included homicide, rape, aggravated assault, and other serious crimes of interpersonal violence. The expansion brought lesser ofenses into the ambit of “aggravated felonies” to include lesser felonies that are not “aggravated,” misdemeanors, and nonviolent ofenses (Costantino, 2017; Steinmiller-Perdomo, 34

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2013; Yates et al., 2005). Due in large part to this expansion, “crimmigration” policy permeates the immigration process, and the wide net of the criminal justice system ensnares innumerable potential noncitizens and veterans (Beckett & Evans, 2015). The question then must be asked: Is it equitable to doubly punish those who run afoul of the “aggravated felonies”—many of which are not felonies at all—by requiring them to serve a criminal justice sentence and then subjecting them to deportation proceedings. It may be legal, but it does not seem fair.

Confusing Policies Concerning Noncitizen Recruitment A confusing array of shifting recruitment policies overlays the potential inequities of the “aggravated felonies” policy and related deportation. Since September 11, 2001, the United States has juggled three interrelated challenges: (1) an expanding need for new enlistees; (2) an expanding need to respond to multiple military objectives internationally; and (3) an expanding need to quell public concerns about threats purportedly presented by people entering the United States intending to commit acts of terrorism. Those competing concerns have led to inconsistent policies that seem to encourage noncitizen enlistment but then make the naturalization process more complex. The following provides a brief history of that shifting landscape. On July 3, 2002, President George W. Bush issued Executive Order 13269, the Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status establishing the period commencing September 11, 2001 and onward as a period of hostility under Section 329 of the INA (Administration of George W. Bush, 2002). The designation remained in efect as of October 2021. This change in designation led to a notable increase in military personnel naturalizations that corresponded with increased eforts by military institutions to recruit citizen and noncitizen immigrants to fll their anemic ranks (Citizenship and Immigration Services [CIS], 2021). Six years later, Congress passed the Kendall Frederick US Citizenship Assistance Act of 2008 to “streamline” citizenship procedures for service members. The Act provides practical remedies to vexing procedural problems. It removes, for example, the requirement that service members obtain new fngerprints (which is particularly hard when deployed) and allows naturalization applications to rely upon fngerprints previously obtained during military enlistment (Department of Homeland Security Ofce of the Inspector General [DHSOIC], 2010). It also requires that the United States Custom and Immigration Service (USCIS) improve processing times and provide technology-aided means for service members to submit and track their materials. However, a 2010 Inspector General’s Report found that “USCIS’ information technology systems, such as the application processing system and background check support systems, do not meet all user requirements. As a result, personnel must devote resources to work around system limitations” (DHSOIC, 2010, p. 4). It should also be noted that nothing in this Act addresses the “aggravated felonies” issue described above. A few years later, Congress passed the MAVNI and the Afghan Allies Protection Act of 2009 (AAPA) purported to expand opportunities for noncitizens to serve. However, they arguably have muddled the military naturalization process by introducing new categories of eligibility for service in the U.S. Armed Forces that remain confusing to some on the front lines of naturalization processing. Prior to the MAVNI and AAPA, only LPRs or people from United States territories could apply for expedited naturalization in exchange for service (McCarran & Walter, 2019). MAVNI made other noncitizens eligible, “including refugees, asylees, and certain nonimmigrant visa holders maintaining their legal status for two years or more with in-demand skills, particularly in health care and critical languages, to join the military in exchange for expedited U.S. citizenship” (Zong & Batalova, 2019, para. 9). The Obama Administration added additional background checks and restrictions on eligibility in 2016, efectively suspending the program at 35

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a time when the military needed more personnel and levels of enlistment and ofcer commissioning were waning (Copp, 2018; Ofce of the Secretary of Defense [OSD], 2016). Moreover, these changes may be a solid national security policy, but they inject further complexity into the naturalization process. The AAPA created Special Immigrant Visas (SIVs) “to provide a pathway to safety for translators and interpreters who serve alongside American forces in Iraq and Afghanistan” (Gibian, 2019, para. 5). The Act, after several amendments in 2014 and 2021, has allocated 34,500 SIVs since December 2014. This program has drawn much attention in the wake of the United States’ withdrawal from Afghanistan in 2021 (Department of State [DOS], 2021). It is raised here as an example of the evolving and confusing standards for who is allowed to enter the United States to serve in the military. Naturalization for noncitizen military personnel and veterans became even more challenging during the Trump Administration as it rolled back many expedited naturalization processes. First, Secretary of Defense James Mattis added mandatory wait times for noncitizen immigrants to initiate the naturalization process (Ofce of the Secretary of Defense [OSD], 2017). USCIS data show that, in 2018, processing times for military naturalizations increased to an average of 12.5 months, up from 5.4 months in 2017 prior to Secretary Mattis’ memorandum (Takano & Vargas, 2019). Next, the Administration changed the DoD’s N-426 Policy, ostensibly for national security, to withhold N-426 certifcations of honorable service from service members until they meet several new criteria (OSD, 2017). On the same day they issued the new N-426 Policy, the DoD also “issued a second memorandum requiring heightened security screenings and background checks for noncitizens who wish to enter the military, including permanent residents” (New, 2020, p. 9). Next in 2018, the USCIS and the Trump Administration terminated the popular Basic Training Initiative pursuant to which service members received onsite assistance with naturalization applications (Appel & Soto, 2020). They also closed 19 of the 23 overseas feld ofces for naturalization services efectively eliminating opportunities for most deployed noncitizens to pursue citizenship (Sisk, 2019). The impact of these DoD policies can be seen in naturalization data. In the last quarter of the 2017 fscal year, and prior to issuance of these memoranda in October, USCIS received 3,132 applications for military naturalization. Of those they processed, 2,123 (67.8%) were approved and 214 (6.8%) were denied (New, 2020). The following quarter saw a sharp decline in applications for military naturalization, down to 1,069 or 34% of the number of applicants in the preceding quarter. Of those adjudicated, 755 (70.6%) were approved and 191 (17.8%) denied. That trend continued as evidenced by annual data: USCIS received 10,979 military naturalization applications in 2017; 3,233 in 2018; and 3,506 in 2019. The denial rate increased from 9.8% in 2017; 13.67% in 2018; and 17.14% in 2019 (New, 2020).

Looking Ahead at the Policy Level MAVNI, AAPA, and other programs surely have helped the American war eforts. Broadening the eligibility standards for service, however, must correspond with expanding protections for the rights of these new service members. It has not. Furthermore, such expanded recruitment should include improved practices among those organizations tasked with processing naturalization so that they have the capacity to comport with existing and evolving law. It does not (Huang, 2020; Mendoza & Burke, 2018). This top-down legislative approach has failed and has led to injustices throughout the military and immigration arenas. The courts have begun to grapple with veteran-immigration policy with early indications that they want to address some of the inequities. The Court in Ange Samma v. U.S. Department of Defense vacated the 2017 Minimum Service Requirement and directed DoD certifcation within 36

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30 days of request (Huvelle, 2020). The Court in Kuang v. U.S. Department of Defense overruled the Trump Administration policy that prevented LPRs from serving in the military, fnding the policy arbitrary and capricious (Prelogar & Boynton, 2021). While this decision does not expedite naturalization proceedings, it does signal a return to more equitable treatment of LPRs and other noncitizen service members. While all of the legal and executive action described above matters to veterans facing deportation, most of the troubling issues arise at—and could be resolved at—the individual case level. The following considers cases for active-duty service members, followed by examination of noncitizen veterans.

Failure to Enforce Applicable Law and Policy at Individual Case Level At the individual case level, noncitizen service members and veterans stand in diferent positions vis-à-vis the law. Veterans are only subject to civilian criminal laws. Active-duty service members are subject to civilian criminal law as well as criminal laws defned under the Uniform Code of Military Justice (UCMJ), such as insubordination, fraternization, or absent without leave (U.S. Congress, 1951a, 1951b, 1951c, 1951d). Both UCMJ and civilian criminal proceedings trigger potential ICE involvement and deportation proceedings. To understand where the potholes exist in these circuitous legal-procedural paths, the following starts with the initial proceedings that service members face when accused of misconduct, then moves through the subsequent layers of judicial activity for both service members and veterans.

Noncitizen Service Members, the UCMJ, and Separation When service members commit misconduct during a time of active duty, they face discharge and separation proceedings under the UCMJ (Barry, 2019). There are three types of court martial: summary, special, and general. Summary court martial often does not result in a service member being discharged from the military. Convictions under special court martial may lead to incarceration for up to one year and bad conduct discharge; convictions under general court martial may lead to incarceration, the death penalty, and/or dishonorable discharge (Editor, 2021; Milley & O’Keefe, 2017; U.S. Congress, 1951(e)). If the convicted service member is not a citizen and must be separated as a result of the court marital, the “commanders responsible for separation processing will notify immigration ofcials of the discharge action so that they may take the individual into custody, if they so desire” (Milley & O’Keefe, 2016, p. 67). DHS, the parent agency to ICE, then decides whether to start removal proceedings, or it can immediately deport the service member (Puhl, 2018). If the former, removal proceedings begin when the DHS fles a Notice to Appear (NTA) with an immigration court (Puhl, 2018). What will typically follow will be a “Master” hearing, and an “Individual Merits” hearing (Puhl, 2018). After a verdict is reached, either DHS or the noncitizen service member can appeal the immigration judge’s decision to the Board of Immigration Appeals (BIA). The noncitizen has the further option to appeal a loss at this stage to the Federal Circuit Court of Appeals (Puhl, 2018). Because of the opportunities to appeal, this process can last anywhere between weeks and years; “the entire process may occur in a matter of hours or one step could take years or decades” (CIS, 2020a; Puhl, 2018, p. 1). If the noncitizen loses the case and receives a removal order, they can then be deported. However, “a country must accept the person in order for DHS to deport them” (Puhl, 2018, p. 6). If the noncitizen cannot be physically deported, ICE has three options. They can (a) detain them for up to 180 days; (b) release them temporarily while arranging to deport them; or (c) delay deportation for humanitarian reasons (Puhl, 2018). Notably, any naturalization proceedings that had been commenced during the noncitizens’ time of service are terminated, and they are not entitled to legal representation once 37

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they separate from the military. It may be argued that service members who are discharged with other-than-honorable status should not continue pursuing citizenship because they do not meet the “good moral conduct” requirements for all persons pursuing legal immigration status (Takano & Vargas, 2019). However, that should be a decision on a case-by-case basis, based on the conduct underlying the discharge, not a blanket policy as it currently works in operation. Someone with a less-than-honorable discharge for fraternization should be treated diferently than someone convicted of a violent felony. Additionally, this discussion of when and how military discharge triggers DHS/ICE activity inherently relates to the “aggravated felonies” discussion above.

Veterans, Conviction, and Immigration Law The UCMJ part of the above process does not apply to noncitizen veterans, for obvious reasons— veterans by defnition are no longer in the military and thus not subject to the UCMJ. Noncitizen veterans who face criminal charges are prosecuted through state or federal criminal justice processes. At arrest, law enforcement may choose to run veterans’ (or anyone’s) information through federal databases to confrm their immigration status. Noncitizen veterans who do not have proper legal status may be placed on “immigration hold” upon arrest pursuant to Section 238 of the INA. This 48-hour hold creates a window of opportunity for federal agents to transfer the arrestee into federal custody. These immigration holds can be imposed for any ofense at all, from trafc violations to felonies. Many of those who are not placed on hold and/or are not transferred into federal custody pursue plea agreements, and many of those who accept plea agreements do not understand the immigration consequences of those decisions (Cruz, 2010). While the United States Supreme Court in Padilla v. Kentucky established defense counsel’s duty to advise clients on the immigration consequences of plea agreements (Stevens, 2010), many noncitizen veterans still fnd themselves subject to unanticipated side efects of plea agreements. For some, they mistakenly think that the military took care of their immigration paperwork, so they assume themselves to be protected from deportation during the pendency of those proceedings. Others know that they must advocate their cases on their own through immigration courts, but they justifably believe that law enforcement and judges will abide by applicable law that requires enhanced, favorable considerations for veterans (Takano & Vargas, 2019). Finally, others operate under the false assumption that serving their time will clear their names and allow them to return to their lives in the United States. Once ICE becomes involved, they have certain heightened responsibilities for veterans. ICE policy demands that “when enforcement ofcers learn that they have encountered a veteran; these policies require they conduct additional assessments, create additional documentation, and obtain management approval in order to proceed with the case” (CitizenPath, 2020, p. 1). Evidence indicates that ICE is not fagging veterans, and they are not giving due consideration to veteran status as a mitigating factor during detention and deportation proceedings (DHSOIC, 2010). ICE has not developed a policy to identify and document all military veterans it encounters during interviews, and in cases when agents and ofcers do learn they have encountered a veteran, ICE does not maintain complete electronic data. Therefore, ICE does not have reasonable assurance that it is consistently implementing its policies for handling veterans’ cases. (Takano & Vargas, 2019, p. 1) Military and veteran naturalization does not exist in a vacuum. It is but one method of attaining citizenship, directly impacted by civilian immigration levels. As of May 2021, the backlog of total pending immigration cases reached 1,337,372. This is more than double the number in 2017, during which there were 629,051 (Executive Ofce for Immigration Review, 2021). According 38

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to the USCIS, it takes roughly 5.5 months to complete 50% of immigration cases, and 8 months to complete 93% of cases (CIS, 2020a). Others, such as Jonathan Petts, cofounder of ImmigrationHelp.org, estimate the time to naturalization as between 12 and 17.5 months (Petts, 2020). Media outlets report that immigrants “have been waiting an average of nearly 950 days for a court decision, two-and-a-half years of living in limbo” (Kight, 2021, p. 2). This overburdened system inherently causes delays for military personnel and veterans. “USCIS’s processing time for military naturalizations also increased, from an average of 5.4 months in fscal year 2017 to 12.5 months in fscal year 2018” (Takano & Vargas, 2019, p. 26). All of the foregoing indicate that noncitizen service members and veterans, who have served, fought, and sufered for the United States, are not receiving the legal assistance they deserve or that they were promised. The United States has relied upon citizenship-for-service policies to fll the ranks of military units for centuries. Problems existed previously with processing naturalization and other immigration paperwork for noncitizens service members and veterans. However, the post-September 11 era has observed a troubling and signifcant increase in delays and other policy and practice failures that have caused an increasing number of honorably discharged noncitizens not to receive what they were promised—citizenship—and to pay doubly for any transgressions they committed in their post-military service lives. Policy reforms within military procedures, among ICE personnel, within immigration courts, and in federal law are necessary to redress the inequities inherent to a system that promises citizenship in exchange for military service, then fails to provide any assistance with immigration and naturalization procedures.

Policy Recommendations The following surveys several areas for potential policy reform. Acknowledging that length-limitations on this chapter require some oversimplifcation, this section sets forth many of the key arenas for reform eforts, moving from noncitizens’ time in service to post-incarceration considerations.

During Military Service First, bring back the overseas immigration and naturalization feld ofces, and bring back the Basic Training Initiative. Presumably, the infrastructure already exists. Institutional knowledge should remain. There are costs; both in terms of dollars and political capital, but restoring these services would mean that more service members would complete naturalization procedures during their time of service, thereby obviating the need for the remaining discussion. Moreover, it is politically palatable. In February 2021, the American Legion “called on President Biden to issue an Executive Order authorizing the reinstitution of the USCIS Naturalization at Basic Training Initiative and reopening all USCIS feld ofces abroad for service members and deported veterans” (Wolf, 2021, para. 14). The same year in June the American Legion gave testimony to the U.S. Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, afrming their support for those pursuing citizenship through service (Wolf, 2021). Second, and as described above, many noncitizen military personnel and veterans do not understand the limited scope of immigration assistance that the military provides. Perhaps they are naïve to think that their naturalization paperwork will be handled by their superior ofcers or military attorneys. When they enlist, however, they are encouraged—some might say indoctrinated—with fealty to and faith in the chain of command. What their superior ofcers say goes. Therefore, it should not come as a surprise that many entrust their futures to the institution that promises to grow and develop them as soldiers, sailors, and Marines. Even if misplaced, that trust deserves reciprocity. Senior enlisted and military ofcers should be trained on explaining exactly what service members can—and cannot—expect with regard to their naturalization 39

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proceedings. Timelines and expectations should be made explicit. Noncitizen service members should be given contact information and resources for how to track their cases and how to seek assistance if the ofcer assigned to their fle is not pushing the matter forward.

Afer Military Service More importantly, when noncitizen service members leave the military they should be advised, in writing, of the status of their case. They also should be aforded at least one exit interview and consultation with a Judge Advocate General ( JAG) attorney versed in immigration law. They could provide “counseling [that] should include an explanation that voluntary or involuntary separation could afect fulfllment of the naturalization requirements” (Milley & O’Keefe, 2017, p.22). That consultation and education should occur as an established part of the mandatory VA’s Transition Assistance Program (TAP) that all people separating from the military must complete. They also should be provided an attorney and advice on what they should do to complete the process. There is a precedent for JAG ofcers to liaise with the American Immigration Lawyers Association (AILA) to provide legal assistance to recently separated noncitizen veterans (AILA, 2019). Such assistance would be invaluable in the event that noncitizen veterans come into contact with the criminal justice system. Some of the policies and practices recommended above already exist, and a subset of those are actually enforced. More needs to be done to standardize these types of policies and ensure that they are followed uniformly throughout the Armed Services.

Train Veterans Services Ofcers (VSOs) to Help Veterans Services Ofcers (VSOs) are either veterans employed by local governments to facilitate social services for other veterans, or they are volunteers through organizations such as the Veterans of Foreign Wars (VFW) or the American Legion (Douds & Ahlin, 2015). Their expertise, both in navigating military processes and working in the civilian sector, would be a ready-made force multiplier for providing veterans with immigration advocacy assistance. Those employed by government entities could be trained as part of their professional education, and then they could train the volunteers. This kind of local-level initiative is how many other veteran-oriented services operate (see, e.g., Douds & Ahlin, 2018, discussing veterans courts).

Change ICE/USCIS Policies and Practices As referenced above, ICE agents who encounter noncitizen veterans, either by virtue of alleged immigration law violations, immigration holds, or through post-conviction/post-sentencing referrals, owe veterans several duties. They must consider veteran status in making detention decisions. They must consult with their supervisors. They must review veterans’ cases in totality, with attention to service record, whether they were deployed in a combat zone, evidence of rehabilitation, family status, fnancial status, physical and mental health, and connections to the community (Takano & Vargas, 2019). Most notably, all cases involving veterans must be sent to ICE headquarters for review and approval. According to a government investigation, that did not happen in 70% of cases (Takano & Vargas, 2019). ICE agents can be trained on how to handle veterans’ fles. Such training occurs in a variety of other contexts, and it could be integrated into their other training protocols. Not all parts of the criminal justice system fag veterans during case processing (Douds et al., 2017); research could be done to determine how best to fag veterans’ fles and otherwise ensure that all legal personnel who encounter veterans are aware of their status.

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Decision-making trees also should be adopted for how to handle veterans’ cases. For example, when ICE agents encounter noncitizen veterans whom they believe to have violated immigration law, they should be able to reference a decision tree that instructs them to check to see if the veterans have pending immigration cases. If so, they should be released. That decision tree must be developed internally to account for the wide array of issues that cannot be included in this chapter. There also must be consequences for failure to follow these procedures. Rather than punish ofending agents (which can be tricky due to qualifed immunity), veterans’ cases should be stayed automatically while the procedural errors are cured. When the veterans do not pose a threat to themselves or others, they should be able to await resolution of the procedural faws in their homes, not in custody.

Encourage Favorable Use of Judicial Discretion It appears that “military service is not considered as a factor in the decision to order their deportation” (Moriarty, 2021, p. 4). Immigration court judges, like all judges, have latitude to exercise judicial discretion in making deportation decisions (ICE, 2021). Through that discretion, they can consider whether criminal convictions for which the veterans were convicted should be considered “aggravated felonies” for purposes of deportation decisions. Additionally, a public law organization, such as the ACLU could develop a bench book for immigration court judges to consult when making these decisions. A series of cases have created unclear precedent on the potential use of equitable estoppel in these cases, and several other cases inform the meaning of “aggravated felony” under immigration law. It might help immigration judges make more veteran-friendly decisions if they had a one-stop shop for reviewing applicable law. Judges also might consider the health implications of deportation as a reason to keep noncitizen veterans in the United States (Horyniak et al., 2018). Many of those who commit crimes after leaving the military do so because they have service-related injuries or disabilities. PTS, traumatic brain injury, depression, anxiety, and troubles with reintegration often predispose veterans to engage in antisocial behavior (Camins et al., 2021). Judges can and should consider noncitizen veterans’ cases holistically. They should inquire into availability of healthcare services in the noncitizens’ country of birth, and they should consider whether those veterans equitably have earned the right to VA healthcare, in the United States, through their honorable military service.

Reform Federal Legislation Senator Tammy Duckworth recently proposed a series of legislative initiatives to “prevent the deportation of veterans, repatriate deported veterans, strengthen the military naturalization process and remove barriers to accessing VA care faced by veterans living broad” (Duckworth, 2021a, para. 1). In January of 2021, she issued a press release calling on President Biden to prohibit the deportation of veterans with no violent ofenses, as well as to give legal permanent residents a path to citizenship through military service (Duckworth, 2021a). In 2020 Senator Duckworth introduced the Strengthening Citizenship Services for Veterans Act. This would ensure that those deported veterans who pass the preliminary naturalization process could have their citizenship interview at American ports, embassies, or consulates “without navigating the complex process of advance parole” (Duckworth, 2021a, para. 4). In 2021, the senator introduced the Veterans Visa and Protection Act to facilitate the return of deported veterans (Duckworth, 2021b). Another of her policy suggestions is to “require USCIS to adjust the status of noncitizen enlistees to conditional Legal Permanent Resident status after they take the oath of enlistment” (Duckworth, 2021a, para. 12). Most of her proposals enjoy bipartisan support.

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In a related bipartisan efort, Representatives Gonzalez and Young reintroduced the Repatriate Our Patriots Act (H.R. 4382) “to stop the deportation of immigrant veterans and allow veterans who have already been deported to return home” (Moriarty, 2021). More specifcally, the legislation “defnes a new category of ‘special veterans’, generally immigrants who have served in the U.S. military, were honorably discharged, and have not been convicted of ofenses like voluntary manslaughter, rape, sexual abuse, child abuse, or terrorism-related charges” (Moriarty, 2021). These “special veterans,” their honor afrmed, can then be accorded the privileges of citizenship they have rightly earned. The bill would also require the Secretary of Homeland Security to inquire about military service before beginning the deportation process (Moriarty, 2021). It would also cause the reexamination of those previously deported, and when appropriate allowing veterans to return as legal permanent residents (Moriarty, 2021). Congress also might revisit the Military Personnel Citizenship Processing Act (MPCPA). Enacted in 2008, with a fve-year sunset clause, it ensured expedient processing and oversight of military naturalization applications. It amended the INA to require that USCIS process and adjudicate naturalization applications fled by Armed Forces members within six months of receiving them (Schumer, 2008). Failing this, they had to explain their inability to meet the deadline and provide an estimated adjudication date (Schumer, 2008). It also required the USCIS Director to annually report to Congress on all naturalization applications taking more than one year to process and adjudicate (Schumer, 2008). At present, the average time for military naturalization is (as of 2018) 12.5 months (Takano & Vargas, 2019). A new MPCPA could mitigate many of the issues contemplated by this chapter.

State Action Finally, states can take action. For some types of ofenses, a gubernatorial pardon may prevent deportation (Caplow, 2013). The law is unclear in many respects due to unsettled issues surrounding interpretation of the INA, but it appears that some pardons do give some noncitizens relief from deportation proceedings (Cade, 2012). Similarly, governors could commute sentences or shorten sentences to move the ofense outside of the “aggravated felonies” categorization under the INA. Depending on state procedures, governors could request referral of all parole cases involving veterans to the executive branch for pardon consideration. Other procedures might be possible for fagging noncitizen veterans’ cases following sentencing, but such approaches would be state-specifc. States also can adopt legislation like California’s proposed VISION Act of 2021. If passed, this would forbid state and local institutions from factoring in immigration status while deciding sentencing (Carrillo, Kalra, & Santiago, 2021). While these types of laws will not solve the problems, they are a stopgap measure to reduce the number of noncitizen veterans entangled in the double bind of criminal sanctions and deportation.

Conclusion Given the increased proportion of noncitizen soldiers, the recent drop in military naturalization rates, and the increasing inadequacy of current law to ensure that they are equitably treated, reforms should occur at all levels of government. As discussed above, policies must be standardized across all levels of government and within the military. Equity demands reform. There also seems to be public support for the notion. A Smithsonian poll found that an overwhelming “87% of current service members and veterans agreed that individuals who serve in the military, and their spouses and children, should be protected from deportation” (Moriarty, 2021). Acknowledging

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that the poll did not distinguish veterans who had been convicted of a crime, it still suggests that public opinion supports reform. Commanders, law enforcement, and courts must view noncitizens’ case holistically, with a keen eye to what they have done for the United States’ national security. Those who join the Armed Services in reliance on a promise of citizenship, or at least legal status, deserve more. The inequities inherent to existing policy jeopardize many noncitizen service members’ and veterans’ lives, causing them to pay doubly their debt to society when they run afoul of the law. The most radical approach would be to provide blanket citizenship through automatic naturalization upon enlistment. The recommendations above probably are more legally and politically palatable than blanket citizenship. Citizenship-for-service is an American meritocratic tradition (Chishti et al., 2019). Reform of this longstanding policy must occur in the interest of national security, and for the sake of the United States’ moral integrity.

Note 1 Because this chapter includes multiple, perhaps unfamiliar acronyms across several policy domains, all acronyms are defned in Appendix 2.1.

Appendix 2.1: Laws, Executive Orders, and Cases Afghan Allies Protection Act (AAPA) Signed into law by President Obama on March 11, 2009. The law created a new special immigrant category for Afghan nationals who worked for or on behalf of the U.S. government in Afghanistan. Was designed to encourage local support, while also providing compensation and protection to those who gave it. Initially, only 1,500 slots for these special immigrant visas (SIVs) were allotted. However, since 2014 (and with subsequent legislation) over 34,000 visas have been allocated for the program.

Ange Samma v. U.S. Department of Defense A case where the Federal District Court for the District of Columbia ruled (2020) that the Trump Administration’s 2017 policy requiring a minimum period of service before applying for citizenship is unlawful in accordance with the INA and the Administrative Procedure Act.

Civil War Military Draf Act Passed in 1863 by the United States Congress during the American Civil War to provide fresh manpower for the Union Army. Was the frst national conscription law.

Executive Order 13269, the Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status An Executive Order issued in 2002 by the Bush Administration. It specifed a period of hostilities beginning on September 11, 2001, during which aliens and noncitizens could receive expedited naturalization in exchange for active-duty service in the Armed Forces. This is in accordance with Section 329 of the INA. As of 2021 it is still in efect, and must be terminated by another Executive Order.

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Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) Passed in 1996 in response to large amounts of illegal immigration. Made major changes to the INA. In addition to imposing criminal penalties for racketeering, alien smuggling, and the use or creation of fraudulent immigration-related documents, the Act also increased penalties for undocumented immigrants who commit crimes while in the United States.

Immigration and Nationality Act (INA) Enacted in 1952, and has been amended many times since. It is part of the U.S. Code and outlines all the processes of naturalization. Sections 328 and 329 pertain to naturalization in exchange for military service.

Kendell Frederick US Citizenship Assistance Act (S.2516) A law passed in 2008 by the 110th Congress to help streamline the process of naturalization for noncitizens in the U.S. military. It directed the Department of Homeland Security (DHS) to accept fngerprints submitted by military citizenship applicants at the time of their enlistment or from prior submissions. Additionally, it directed the DHS to implement procedures for electronic transmission of said biometric information. It also included provisions requiring the Secretary of the DHS and the Comptroller General to review and report on the implementation of the Act.

Kuang v. U.S. Department of Defense A case in which the Federal District Court for the Northern District of California ruled (2018) that the Trump Administration’s updated N-426 policy unfairly (and without sufcient cause) discriminated against lawful permanent residents from serving in the Armed Forces.

Military Accessions Vital to the National Interest (MAVNI) A 2008 recruitment program by the United States Department of Defense, through which noncitizens with certain critical skills are recruited into the military. It was suspended in 2009, and reinstated in 2012 with stricter security. In 2014 it was expanded to allow DACA recipients. Ended in 2016, but continued accepting applicants till September 2017. Legal per Section 329 of the INA.

Military Personnel Citizenship Processing Act (MPCPA) (S.2840) A law passed in 2008 by the 110th Congress, expired in 2013 due to a fve-year sunset clause on its provisions. It amended the INA to require that the U.S. Citizenship and Immigration Services (USCIS) process and adjudicate military naturalization applications within six months. It also required the USCIS Director to give an annual report to Congress on the average naturalization time for members of the Armed Forces.

N-426 Policy On October 13, 2017, the Trump Administration’s Department of Defense adopted a new policy requiring that the military withhold N-426 certifcations of honorable service from service members unless they met several new criteria and followed a new process. This included new metrics of 44

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security risk, 180 days of active-duty service (or 1 year in the Selected Reserve), and certifcation of the N-426 by the Secretary of Defense or someone he designates.

Padilla v. Kentucky A case in which the United States Supreme Court decided (2010) that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea.

Repatriate Our Patriots Act (H.R. 4382) A proposed law sponsored by Representative Gonzalez in the 117th Congress in 2021. If passed, it would prohibit the removal from the United States of those veterans who have been honorably discharged. It would also provide for the expedited naturalization of such veterans.

Strengthening Citizenship Services for Veterans Act (S.3227) A proposed law sponsored by Senator Duckworth, ofcially introduced in the 117th Congress in 2021. If passed, the law would direct U.S. Citizenship and Immigration Services to conduct naturalization procedures for veterans at ports, embassies, and consulates. It would also make the Secretaries of Homeland Security and State responsible for the implementation of this policy.

Uniform Code of Military Justice (UCMJ) Enacted in 1951 to standardize legal regulations among all branches of the Armed Forces. It is the foundation of military law in the United States.

Veterans Visa and Protection Act (S.2265) A proposed law sponsored by Senator Duckworth, ofcially introduced in the 117th Congress in 2021. If passed, would require the Secretary of Homeland Security to establish a veterans visa program to permit veterans who have been removed from the United States to return as immigrants, and for other purposes.

VISION Act (AB-937) A proposed law in the California legislature. Sponsored in 2021 by Assembly member Wendy Carrillo. If passed, the bill would prevent eligible noncitizens from being transferred from state and local corrections facilities to immigration detention.

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Anne S. Douds and Kyle C. Troeger Puhl, E. (2018, December). Overview of the deportation process. Immigrant Legal Resource Center. https:// www.ilrc.org/sites/default/fles/resources/overview_deport_process-20181221.pdf Puzzo, A. (2019, July 17). Deported marine veteran trying to reunite with family denied US entry for citizenship interview. Marine Corps Times. https://www.marinecorpstimes.com/news/marine-corps-times/2019/07/17/ deported-marine-corps-veteran-trying-to-reunite-with-family-denied-us-entry-for-citizenship-interview/ Romo, V. (2018, July 9). U.S. Army is discharging immigrant recruits who were promised citizenship. NPR. https:// www.npr.org/2018/07/09/626773440/u-s-army-is-discharging-immigrant-recruits-who-were-promised-citizenship Schumer, C. (2008). S.2840- Military personnel citizenship processing act. House/Senate Judiciary Committee(s). https://www.congress.gov/bill/110th-congress/senate-bill/2840/text Sisk, R. (2019, September 30). The naturalization process just got harder for noncitizen troops stationed overseas. Military.com. https://www.military.com/daily-news/2019/09/30/naturalization-process-just-got-hardernoncitizen-troops-stationed-overseas.html Sisk, R. (2021, March 16). These recruits were promised citizenship in exchange for military service. Now they fear the US has forgotten them. Military.com. https://www.military.com/daily-news/2021/03/13/these-recruitswere-promised-citizenship-exchange-military-service-now-they-fear-us-has-forgotten.html Steinmiller-Perdomo, E. (2013). Consequences too harsh for noncitizens convicted of aggravated felonies. Florida State University Law Review, 41(4), 1173–1194. Stevens, J. (2010). Padilla v. Kentucky. Supreme Court of the United States. https://www.law.cornell.edu/ supct/html/08-651.ZS.html Stockwell, M. (2010). Baron von Steuben. George Washington’s Mount Vernon. https://www.mountvernon. org/library/digitalhistory/digital-encyclopedia/article/baron-von-steuben/#note1 Takano, M., & Vargas, J., (2019). Immigration enforcement: Actions needed to better handle, identify, and track cases involving veterans. Government Accountability Ofce. https://www.gao.gov/assets/gao-19-416.pdf. Thompson, M. (2012, April 6). Non-citizens make better U.S. soldiers*. TIME.com. https://nation.time. com/2012/04/06/non-citizens-make-better-u-s-soldiers/ U.S. Congress. (1951a). United States Code of Military Justice (UCMJ) - Article 86. https://uscode.house. gov/view.xhtm l?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title10-section886 &num=0&saved=%7CZ3JhbnVsZW lkOlVTQy1wcmVsaW0tdGl0bGUx MC1zZW N0aW9uO Dkx%7C%7C%7C0%7Cfalse%7Cprelim U.S. Congress. (1951b). United States Code of Military Justice (UCMJ) - Article 89. https://uscode.house. gov/view.xhtm l?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title10-section889 &num=0&saved=%7CZ3JhbnVsZW lkOlVTQy1wcmVsaW0tdGl0bGUx MC1zZW N0aW9uO Dkx%7C%7C%7C0%7Cfalse%7Cprelim U.S. Congress. (1951c). United States Code of Military Justice (UCMJ) - Article 91. https://uscode.house.gov/ view.xhtml?req=granuleid:USC-prelim-title10-section891&num=0&edition=prelim U.S. Congress. (1951d). United States Code of Military Justice (UCMJ) - Article 134. https://www.sapr.mil/ public/docs/ucmj/UCMJ_Article134_General_Article.pdf U.S. Congress. (1951e). United States Code of Military Justice (UCMJ) - Article 16. https://www.law.cornell. edu/uscode/text/10/816 U.S. Congress. (1952). 8 U.S. code § 1440- Naturalization through active-duty service in the Armed Forces during World War I, World War II, Korean hostilities, Vietnam hostilities, or other periods of military hostilities. https:// www.law.cornell.edu/uscode/text/8/1440e Wolf, M. (2021, July 12). Biden administration provides pathway to citizenship for deported veterans. The American Legion. https://www.legion.org/citizenship/252979/biden-administration-provides-pathwaycitizenship-deported-veterans Yates, J., Collins, T. A., & Chin, G. J. (2005). A war on drugs or a war on immigrants? Expanding the defnition of “drug trafcking” in determining aggravated felon status for noncitizens. Maryland Law Review, 64(3), 875–909. https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3236&context=mlr Zong, J., & Batalova, J. (2019). Immigrant veterans in the United States. Migration Policy Institute. https:// www.migrationpolicy.org/article/immigrant-veterans-united-states-2018

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3 WHAT AN EXAMINATION OF PREVIOUSLY UNTESTED SEXUAL ASSAULT KITS TELLS US ABOUT THE PATTERNS OF VICTIMIZATION AND CASE OUTCOMES FOR BLACK WOMEN AND GIRLS Rachel E. Lovell, Adrianne M. Crawford Fletcher, Danielle Sabo, Laura Overman and Daniel J. Flannery Introduction Hundreds of thousands of sexual assault kits (SAKs), also known as rape kits, have languished for decades, untested in evidence storage facilities across the U.S. (Strom et al., 2021). A kit consists of items collected by medical professionals to preserve evidence from a victim-survivor of sexual assault. At times, these kits contain the only evidence linking a suspected perpetrator to the sexual assault; however, this linkage requires the testing of DNA potentially contained within the kit. Even as DNA testing technologies advanced and societal attitudes toward the crime of sexual assault evolved, these kits continued to languish untested. While these kits sat, many suspected rapists remained free and continued to sexually assault (Lovell et al., 2017). Thus, untested kits contain potentially probative evidence of a crime and are a physical reminder of a failed criminal justice response to sexual assault (Lovell et al., 2017, 2020). The existence of large numbers of untested SAKs is attributed to several factors, including poor evidence tracking, outdated and inefective investigative practices, lack of resources and personnel, crime lab case acceptance policies, victim-blaming beliefs and practices, and lack of understanding among law enforcement personnel about the neurobiology of trauma and the probative value in testing kits (Campbell et al., 2015; Luminais et al., 2017; Strom et al., 2009). Traditionally, the utility of testing kits was seen primarily by law enforcement as a way to identify an unknown suspect when the victim-survivor was interested in prosecuting (Campbell et al., 2015). However, these kits can provide much more to law enforcement. They can also connect ofenders to previously unsolved crimes, confrm the identities of known ofenders, possibly exonerate innocent suspects, and populate the federal DNA database (Lovell et al., 2018b). Over the past decade, “backlogged” (untested) kits have captivated headlines—and the nation’s attention. Headlines were followed by dramatic increases in eforts to systemically address large numbers of untested kits (Lovell & Dissell, 2021) in numerous jurisdictions across the DOI: 10.4324/9781003245032-4

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U.S.—primarily through the U.S. Bureau of Justice Assistance’s SAK initiative, which to date has resulted in 127,000+ kits being inventoried and almost 69,000 kits being tested (SAKI, 2021). In addition, the SAK initiative provides an opportunity to revisit and learn from past practices—and in some cases, failures. In this chapter, we focus on what a sexual assault initiative in one urban U.S. jurisdiction (Cuyahoga County, Ohio; primarily within the city of Cleveland) tells us about patterns of sexual victimization and case outcomes for Black/African American (hereafter referred to as Black) women and girls compared to non-Black women and girls who had kits that were collected contemporaneously to the sexual assault but only recently tested. The story of untested SAKs is largely the story of forgotten sexual assault victim-survivors—who are almost all women and girls (90–95+%) and disproportionally from marginalized populations (Campbell & Fehler-Cabral, 2018; Lovell et al., 2020). In Cleveland, where almost 50% of the city’s residents are Black (U.S. Census, 2019), Black women and girls are also disproportionally represented in data from untested rape kits. This chapter seeks to better understand and give voice to their experiences. To the best of our knowledge, this is the frst scholarly product from data on previously untested kits to specifcally explore racial/ethnic diferences in the associated sexual assaults. This chapter is likely a bit of a departure from the other chapters in this handbook, as our focus is on the victim-survivors (vs. suspects) and what we can learn about how race/ethnicity plays a role in how and where the sexual assaults happened and the suspected sexual perpetrator’s sentencing/ adjudication (Morabito et al., 2019a). An important component in sentencing and correctional research is the experiences of those impacted by the crimes. This is especially salient with sexual assault because so few cases reach adjudication. Additionally, existing research on Black women and girls’ experiences with sexual assault and the criminal justice system primarily focuses on racial diferences in prevalence rates, disclosure and support service experiences and responses, and attributions of blame (Black et al., 2011; Long et al., 2007; Slatton & Richard, 2020). This study expands our understanding of Black women and girls’ experiences with sexual assault by assessing and comparing how and where Black women and girls were sexually assaulted and what happened with their cases in the criminal justice system compared to non-Black women and girls in an urban U.S. jurisdiction. In the sections that follow, we combine and summarize several diferent types of literature to more fully contextualize the study’s fndings, including the historical context for sexual assault against Black women and girls, redlining and the neighborhood efect, criminological theories of victimization, and research on attrition in sexual assault. This is followed by a description of the data and fndings, a summary of key fndings, and a discussion of how this research on past practices can inform future policies and practices.

Literature Review Historical Context for Sexual Assault against Black Women and Girls in the U.S. Sexual assault against Black women and girls has a long history within the U.S. During slavery, sexual assault of enslaved Black women by White or Black men (who were fellow slaves) was not considered a criminal act (Pokorak, 2006) and legally upheld as a noncriminal act by the Mississippi Court in 1859 in George vs. State. This decision stated that it was not a crime for a Black man to sexually assault a Black woman (or nine-year-old girl in this case) because sexual intercourse, whether forced or not, was regulated by the owners and not by the slaves themselves (Edmonds, 1992). Therefore, the sexual assault of Black women and girls represented codifed social control over Black women’s bodies (Buchanan & Ormerod, 2002; Crenshaw, 1989; Omolade, 1989; Wriggins, 2015) and functioned as a source of economic gain by increasing the number of slaves born as a result of sexual assault (Ritchie, 2017). 50

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These sexual vestiges of the past have had a tremendously deleterious infuence on the present-day lived experiences of Black women regarding sexual assault. Women who were enslaved, for example, were seen as sexually available (Getman, 1984) and sexually vulnerable (Clinton, 1994; Collins, 1986, 2004), which were vestiges from the chattel slave communities in which those who were enslaved lived. Another remnant of the past is sexual assault experienced at the hands of white men. This type of sexual assault—perpetrated by the owner of an enslaved woman or by an overseer—often went unnoticed (Getman, 1984). This, coupled with notions of Black women as sexually uninhibited—a seductress, specifcally of White men (Getman, 1984; Neville & Pugh, 1997), is a historical stereotype that has been difcult for the contemporary Black women and girls to escape within their community. One example of the reifcation of these relics of the past occurred between 2013 and 2014 when an Oklahoma City police ofcer sexually targeted and assaulted numerous Black women in their neighborhoods because he believed he would not be held responsible because of his status as a police ofcer (Slatton & Richard, 2020). To date, sexual assault remains a serious social and public health problem impacting a significant portion of the population. National prevalence studies report that one in fve women in the U.S. have experienced a completed or attempted forced penetration in their lifetime (Smith et al., 2018). Moreover, sexual victimization often occurs before adulthood, with most women experiencing their frst attempted or completed sexual assault before 18 (Tjaden, 2000). Black women and girls experience sexual violence at higher rates than white women (Smith et al., 2017; Wooten, 2017). Approximately 22.0% of Black women and 18.8% of White women report being raped in their lifetime (Black et al., 2011). In addition, economically disadvantaged Black women and girls have substantially higher rates of sexual victimization (Temple et al., 2007).

Neighborhood Efect and the Legacy of Redlining Neighborhoods have long been known to have a signifcant impact on the lives of their residents (see Chicago School of Sociology’s ecology paradigm and the more contemporary “neighborhood efects approach” [Browning & Cagney, 2002, 2003; Park & Burgess, 1967; Sampson, 2012; Shaw & McKay, 1969]). The impact of a neighborhood has been examined traditionally through the lens of the intersection of its racial composition and/or indicators of poverty or inequality. A more expansive approach to the “neighborhood efect” includes an understanding of the built environment, which is the human-made environment (e.g., homes, streets, buildings, open space, infrastructure), or more simply, how the physical space is being used by and for humans. Thus, “place” is not merely a describer of the neighborhood (e.g., rural, urban, or suburban) but an essential third axis—along with race and poverty—for understanding human behavior and crime (Tung et al., 2017). We posit that this three-way axis (race, place, and poverty) is a necessary framework to contextualize the racial diferences in the experiences of sexual assault victimsurvivors and is best understood within a historical context. Starting around the late 1930s, the U.S. federal agency, the Home Owners Loan Corporation (HOLC), developed “Residential Security” maps for most major U.S. cities. Loan ofcers, appraisers, and real-estate professionals assessed areas within the city according to their mortgage-lending risk. People living in areas with the highest risk (designated as “red” on the maps) or higher risk (yellow) were denied access to loans and/or given loans with high(er) interest rates. Conversely, those living in the lowest risk (green) or lower risk (blue) areas were able to get loans with low(er) interest rates. The highest risk areas/hazardous (“red” areas) were disproportionately comprised of non-native born and/ or racial/ethnic minorities compared to the other color-coded areas (Reece et al., 2015). This practice, now known as “redlining,” resulted in signifcant economic inequality and economic deprivation that is still apparent. Across the U.S., red lined areas remain disproportionately comprised of residents of color, particularly Black residents (Mitchell, 2018), which is also true 51

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in the current jurisdiction (Cleveland, Ohio) (Health Data Matters Stories, 2021). Cleveland is in the top ten for the most racially segregated cities in the U.S. (Kent & Frohlich, 2019), which, like many rust belt cities, can be directly tied to discriminatory housing practices and redlining (Reece et al., 2015). Still today, the red lined areas of 1940s Cleveland are associated with many adverse, contemporaneous outcomes, such as increased percentages of children with elevated levels of lead in their blood (in 2016) and lack of access to high-speed internet (in 2015) (Lovell et al., 2018a). In terms of crime rates, in 2018 (the last year reported), Cleveland’s violent crime rate (1,450 violent crimes per 100,000 residents) was almost four times the national rate (368.9 per 100,000)— making Cleveland the sixth most violent city in the U.S. In addition, Cleveland’s rape rate in 2018 was 120 per 100,000—three times the national average of 42.6 per 100,000 (FBI Uniform Crime Report, 2018). Based on national estimates that 89.5% of victims of reported rape are female (FBI Crime Data Report, 2019), the rate of female-victim rape in Cleveland in 2018 was approximately 1 out of 500 women and girls. This is about three times the national rate—1 out of every 1,500 women and girls (FBI Uniform Crime Report, 2018).

Routine Activities Teory, Broken Windows Teory, and Sexual Assault Routine activities theory holds that individuals are more likely to be victims of crime when three conditions are met: a motivated ofender with the ability to act upon their inclinations, a suitable target, and the absence of capable guardianship. The theory takes its name from the idea that as a consequence of people going about their “routine” activities and social interactions, some individuals are more likely to be viewed as “suitable targets” (Cohen & Felson, 1979). A capable guardian is conceptualized as the presence of another person, or more passively, the presence of video surveillance or security systems. This theory has been applied to sexually motivated crimes—often in the context of higher education and/or college-aged victim-survivors, with alcohol and/or drug use providing an important context for understanding victimization (Clodfelter et al., 2010). But for certain types of sexual victimization, the built environment and neighborhood play an oversized role. These would be instances where victim-survivors were sexually assaulted by strangers and approached while interacting in the built environment—namely, walking or waiting outdoors. In more economically depressed neighborhoods, individuals are more likely to be walking and waiting because of reduced access to a personal vehicle for transportation. Relatedly, broken windows theory holds that disinvested urban environments promote criminal activities via signaling to motivated ofenders that the neighborhood lacks efective social control (Kondo et al., 2018). Hence, the application of routine activities theory and broken windows theory are notable in that for some, their routine activities more often include walking and waiting outdoors in disinvested and blighted neighborhoods, thereby increasing opportunities for motivated ofenders to have access to suitable targets with limited guardianship for the purposes of sexually assaulting them. As these theories suggest, the built environment provides an important backdrop in instances of sexual assaults committed by strangers while victim-survivors were walking or waiting. The built environment has been strongly infuenced by the historical context of residential racial segregation and the legacy of redlining.

Attrition of Sexual Assault in the Criminal Justice System Legal and Extralegal Factors. Sexual assault investigations sufer from signifcant attrition—or a failure to proceed—in the criminal justice system. Out of every 100 sexual assaults, an estimated 5–25 are reported to law enforcement (Morgan & Oudekerk, 2019), 18 lead to an arrest (Morabito et al., 2019a), fve lead to the conviction of at least one suspect, and three result in an ofender 52

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spending at least one day in prison (RAINN, n.d.). These statistics indicate that most of the attrition occurs in the investigative stage—before a suspect is arrested (Morabito et al., 2019b). Research on the factors that impact attrition in sexual assault cases is expansive, but in general, these factors are frequently categorized as either “legal” factors (evidentiary facts and/or strength of the evidence) or “extra-legal” factors (“beyond” legal factors). Legal factors, for example, include whether the sexual assault charge is one of several charges (Addington et al., 2008); criminal severity, such as the presence of a weapon (Spohn & Tellis, 2018; Walfeld, 2016) and gratuitous injuries to the victim-survivor (Morabito et al., 2019a; Spohn & Tellis, 2018; Walfeld, 2016); delayed reporting (Morabito et al., 2019b; Spohn & Tellis, 2014); the presence of eyewitnesses (Morabito et al., 2019a; Spohn & Tellis, 2018); and whether a kit was collected (Morabito et al., 2019a). Extra-legal factors often include the victim-ofender relationship (Beichner & Spohn, 2012; Bouffard 2000; Du Mont & Myhr, 2000; Spohn & Holleran, 2001); race and age of the victim-survivor (Boufard, 2000; O’Neal et al., 2015; Pattavina et al., 2016; Spohn & Holleran, 2001; Spohn & Tellis, 2012; Walfeld, 2016); the location of the sexual assault (Addington & Rennison, 2008; Bouffard, 2000); and victim-survivor credibility (Alderden & Ullman, 2012; Morabito et  al., 2019a; O’Neal et al., 2015; Spohn & Tellis, 2018). However, in practice, legal and extra-legal factors can, and often do, intersect. For example, should a victim-survivor defend themselves against their attacker(s) speak to the facts of the case, to the credibility of the victim, or both? Beyond Legal and Extralegal Factors. Then, there are factors beyond both legal and extra-legal, such as those pertaining to downstream orientation, which is when police ofcers tend to pursue cases they believe prosecutors will accept (Morabito et al., 2017; Pattavina et al., 2016) and the bureaucratic burden is placed on victim-survivors of sexual assault to identify their assailant and remain engaged (cooperative) in the investigation and prosecution (Lovell et al., 2020). In terms of attrition in the criminal justice process, having an identifed suspect is vital to a case continuing in the process (Lovell et al., 2020). In the attrition literature, whether the assailant was known to the victim (“stranger” vs. “nonstranger”) is commonly used to describe the nature of the sexual assault (Morabito et al., 2019a, 2019b). Lovell et al. (2020) argue based upon their study that whether the victim was able to aid in the identifcation of the suspect might be a more accurate variable in attrition studies. Victim-survivor identifcation of a suspect accounts for the role that victim-survivors play in the bureaucratic process and highlights that cases can have an identifed suspect in instances where the suspect was a stranger to the victim-survivor (e.g., the victim-survivor provided license plate, description of the car, suspect’s address). Victim-survivor “cooperation” is the strongest predictor of a successful prosecution in sexual assaults (Spohn & Tellis, 2014; Spohn et al., 2014), as Morabito et al. (2019b) explains that sexual assault cases often begin and end based upon the victim’s engagement. Additionally, a victim’s perceived credibility plays a signifcant role in more successful case outcomes and/or the decision to prosecute (Beichner & Spohn, 2005; Boufard, 2000; Kingsnorth & Macintosh, 2004). Therefore, the system is heavily dependent on victims’ engagement, but navigating the criminal justice system is notoriously difcult for victim-survivors of sexual assault. Victim-survivors frequently report negative interactions (e.g., victim-blaming, insensitive behaviors/attitudes) with individuals within the criminal justice system—termed secondary victimization—which can lead to retraumatization and negative health impacts (Campbell, 1998). While victim-survivor engagement is vital to a case’s progression in the criminal justice system, engagement can be particularly problematic for Black women and girls. In terms of reporting sexual assaults to law enforcement, previous experience with the criminal justice system (Messing et al., 2015), lack of social support (Eben, 2007), and cultural views on formal help-seeking (Bryant-Davis et al., 2009) deter participation in criminal justice processes. Moreover, within the historical context of redlining, the lack of trust when reporting sexual assault to law enforcement, and the ongoing false narrative of Black female lewdness (Pokorak, 2006) make engagement with 53

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the criminal justice system particularly difcult (and sometimes harmful) for many Black women and girls (Alderden & Long, 2016).

Signifcance and Aim of the Study This chapter has two aims. First, we explore how Black women and girls vary from their non-Black counterparts in how and where they were sexually assaulted. Specifcally, we assess diferences in the characteristics of the sexual assault for Black and non-Black victim-survivors, such as the victim-suspect relationship, the suspect’s means of access to the victim-survivor, whether the suspect used or threatened to use a weapon, etc. We also geospatially explore the locations of the sexual assaults with untested kits within a historical context of redlining and residential racial segregation. Second, we explore the criminal justice case outcomes. We know these victim-survivors’ kits were not tested, but what happened with their cases’ initial investigation and prosecution? Were the Black victim-survivors’ cases any more or less likely to lead to an adjudication? Adjudication is defned as when the defendant was found guilty, found not guilty, pled guilty to the ofense, or had their case dismissed with prejudice (indicating that they could no longer be prosecuted for the ofense). What factors predict whether the case was successfully adjudicated or not, and are these factors diferent for Black and non-Black victim-survivors? We use diference of means/distribution statistics and logistic regressions for these questions. This study capitalizes on the uniqueness of a dataset on untested kits and the opportunity to revisit and learn from past practices. These data allow us to examine a large number of sexual assaults over almost two decades and include the characteristics of the sexual assaults, the victim-survivors, and the suspects. In addition, the fndings presented here improve our understanding of racial diferences in sexual victimizations by incorporating the legacy of sexual violence against Black women and girls, the legacy of redlining and disinvestments in the Black community, and the experiences of many Black women and girls whose kits remained shelved and cases remained stalled.

Data and Methods The data are derived from an initiative that began in 2013 to follow up on the testing (via investigation and prosecution) of thousands of previously untested kits that span nearly two decades in Cuyahoga County (primarily within the city of Cleveland, Ohio) and are based on ofcial law enforcement documentation of the sexual assaults (and not directly from victim-survivors). To complete these activities, the Cuyahoga County SAK Task Force (Task Force) was formed and led by the Cuyahoga County Prosecutor’s Ofce. The research team coded a sample of 1,132 SAK case fles from 7,024 previously untested kits in the initiative. The Task Force opened investigations on all 7,024 kits, so for the analyses presented here, we have data from the incident reports and investigative reports, including details on the initial criminal justice outcomes of the cases. All 1,132 cases pertain to current investigations of these “cold” case sexual assaults (i.e., primarily 1993 through 2011) with untested kits. Our sample is not representative of all sexual assaults from the larger SAK Initiative in the jurisdiction. We sampled: (a) kits associated with investigations that have been completed by the Task Force and (b) that were either previously adjudicated (meaning the kits were not tested when initially investigated but cases were adjudicated; 33.6%; n = 380) or not previously adjudicated (meaning the kits were not tested when initially investigated but cases were not adjudicated so they could potentially be prosecuted by the Task Force; 66.4%, n = 752). We did no sample cases with completed investigations that were: (a) outside of the statute of limitations (for these cases is 20 years), (b) abated by the suspect’s death, or (c) connected to a consensual partner (meaning the 54

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All sexual assaults

Reported sexual assaults

Sexual assaults with kits Sampled sexual assaults with kits

Figure 3.1 Visual depiction of the nestedness of sexual assault. Note: The diagram is not drawn to scale. Figure prepared by authors

DNA hit from the now-tested kit was determined to belong to the victim-survivor’s consensual partner and not the suspect). In terms of generalizability, as indicated in Figure 3.1, the data presented here are not representative of all sexual assaults in this jurisdiction nor all reported sexual assaults with untested kits. These data are those cases in the inner circle. So, what do we know about the other circles? Nationally, an estimated 5–25% of all forcible rapes are reported to law enforcement (Morgan & Oudekerk, 2019). Approximately 40–50% of all reported sexual assaults in Cleveland include a kit (Lovell & Dissell, 2021). In Cuyahoga County (especially in the case of the Cleveland Police Department, which contributed approximately 97.7% of all kits), very few kits were regularly submitted for forensic testing before the mid-to-late 2000s (Luminais et al., 2017). Even when some kits were being submitted for testing, there was no standard policy or practice around which kits were submitted or tested (Lovell et al., 2018b). These factors infuence which kits remained in the “backlog” (the inventory of untested kits) and, thus, which sexual assaults are in our sampled data. This implies that the untested kits represent almost all the kits collected during the time period in our sampled data. In terms of the generalizability of our data, our sample of sexual assaults with previously untested kits consists of sexual assaults that disproportionally occurred between 1993 and 1999 (59.5%), refecting the higher number of reported rapes during this time (Lovell & Dissell, 2021) and prioritization of cases by the Task Force based on the state’s 20-year statute of limitation (Lovell et al., 2018). Our data are also disproportionally comprised of sexual assaults committed by strangers (42%) (suspects completely unknown to the victim-survivors), compared to national estimates that strangers commit approximately 15% of sexual assaults (Black et al., 2011). This is likely because those who are sexually assaulted by strangers are more likely to have a kit collected (Lorenz et al., 2021).

Demographics of the Victim-Survivors in Our Analytic Sample Given that the overwhelming majority of victim-survivors in our sample with previously untested kits were female-identifed (96%) according to the criminal justice system documentation and that 55

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the males in our sample were substantively diferent from the females in terms of victimology (primarily juveniles/children [n = 26 out of 40] or adult institutionalized males [n = 5]), we limited our analytic sample to those identifed as female in the reports (n = 1,092). According to police reports and/or other criminal justice documentation, 64% of the victim-survivors in our sample were Black, 33% were White, 3% were Hispanic/Latina, and 100% due to multiple categories selected per victim or assault.

Analytical Plan To examine the characteristics of the sexual assaults and case outcomes for Black and nonBlack victim-survivors, Table 3.1 presents the results of Chi-square analyses. To examine spatial patterns, we present the locations where the sexual assaults occurred for Black and non-Black victim-survivors (Figures 3.2 and 3.3) and publicly available shapefles. To map the locations of the addresses listed in the police report, each location was entered into Google Earth Pro and plotted for XY coordinates. A total of 980 out of 1,092 (90%) cases could be geocoded. The remaining 10% were either missing in the police reports or had errors (e.g., listing the hospital’s address where the kit was collected). The coordinates were imported into ArcGIS Pro, where HOLC and the city of Cleveland shapefles were overlayed. Bufering analyses were conducted to determine how many of these occurred in the red- and yellow-lined areas of the city. Finally, to examine the factors that predict whether a case was previously adjudicated (= 1) or not (= 0), we present the results of three multivariable logistic regressions. Listwise deletion resulted in a fnal analytic sample of n = 996 in the regression models. Model 1 is the pooled sample that includes Black victim-survivors (= 1) as a covariate and non-Black as the reference group. Models 2 and 3 include separate multivariable logistic regressions for Black victim-survivors and non-Black victimsurvivors, which allows for an examination of how the covariates infuence the outcome diferently. SPSS (ver. 28) was used for the statistical analyses. Geocoding of each assault location was conducted using Google Earth Pro (ver. 7.3.4.8248) to capture these locations with exact XY coordinates more accurately, and subsequent maps were created in ArcGIS Pro (ver. 2.7.0) utilizing a KML layer to the shapefle conversion process. 59

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Results Characteristics of Sexual Assault Table 3.1 indicates that Black and non-Black victim-survivors were reasonably similar in the characteristics of their sexual assaults, with a few notable diferences. Non-Black victim-survivors more frequently were: sexually assaulted by an acquaintance; accessed via “all other means” by the suspect; used drugs/alcohol at the time of the sexual assault; and were sexually assaulted at night (more frequently associated with sexual assaults that involved drug/alcohol use). Non-Black victim-survivors also more frequently had any credibility issues and credibility issues related to: mental illness/cognitive impairment, other types of “risky” behavior, and could not articulate details of the sexual assault (frequently associated with drug/alcohol use). Black victim-survivors more frequently involved: a sexual assault by a stranger while walking or waiting outdoors/outside, an immediate attack (blitz) by the suspect, the use of control by the suspect, and a weapon—with the latter three being more frequently associated with sexual assaults that involved walking and waiting. Black victim-survivors were also more frequently sexually assaulted in abandoned buildings. Thus, the main racial diferences in the characteristics of the sexual assaults for Black women and girls pertained to the factors that were infuenced by the “built” (human-made) environment—namely, being sexually assaulted by a stranger while walking or waiting and the characteristics associated with these types of sexual assaults, such as an immediate attack, use of control, and threat or use of a weapon. For non-Black women and girls, the built environment was less prominent in their sexual assaults but instead, involved individual vulnerabilities tied to drug/ alcohol use, mental illness/cognitive impairment, and other types of risky behavior.

Diferences in Case Outcomes There were only a couple of diferences in Black and non-Black victim-survivors’ case outcomes—no diferences in victim-survivor engagement and whether the case was previously adjudicated. In other words, Black and non-Black victims were no more or less likely to have their cases successfully adjudicated. However, when cases were not previously adjudicated, Black victim-survivors more frequently had no investigative closing reason mentioned in the report. Non-Black victim-survivors more frequently had their investigations closed due to insufcient evidence. We also examined the timing of the case outcomes for the non-adjudicated cases for each closing reason detailed in Table 3.1. Given the skewness of the time variables, we conducted the Mann–Whitney tests (nonparametric tests of diferences) of the median days from the start to the close of the investigation. The results (not shown) indicated no signifcant diferences between Black and non-Black victim-survivors in the timing of case closure for cases that were not previously adjudicated.

Spatial Patterns Figures 3.2 and 3.3 present sexual assault heat maps of Greater Cleveland. Figure 3.2 illustrates the locations to the city block for the sexual assaults associated with the previously untested (or “backlogged”) kits in our sample by race. The left heat gradients represent non-Black victimsurvivors, and the right heat gradients indicate Black victim-survivors. Figure 3.3 expands on this analysis by overlaying Cleveland city boundaries (as almost all the sexual assaults in our sample are from Cleveland) and the redlined areas as defned by the HOLC in 1940. These analyses reveal the 60

Untested Sexual Assault Kits

substantial degree of residential segregation in Cleveland. They also show that Black women and girls (which comprise 67% of the valid addresses in our sample) were primarily sexually assaulted on the east side of Cleveland, disproportionally within the most “hazardous” areas as defned by the HOLC. Conversely, non-Black women and girls (which comprise 33% of the valid addresses in our sample) were sexually assaulted predominately on the west side of Cleveland, in areas outside of the HOLC “hazardous” areas. To expand on this fnding, the geospatial bufer analyses indicate that 81% (n = 789) of the sexual assaults occurred within the red- and yellow-lined areas, with 44% of all the sexual assaults (n = 428) occurring just within the redlined areas. A third (n = 107) of the non-Black victimsurvivors were sexually assaulted in redlined areas (which corresponds to 11% of all sexual assaults in the sample). By comparison, almost half (49%) of the Black victim-survivors were sexually assaulted in redlined areas (which corresponds to 33% of the sexual assaults in the sample). These fndings indicate that sexual assaults with untested SAKs disproportionally occurred in the redlined areas, and therefore disproportionally impacted Black female residents. The fndings presented in Figures 3.2 and 3.3 coupled with those from Table 3.1 suggest the physical environment played a signifcant role in how the suspects accessed the victim-survivors.

Figure 3.2 Locations of sexual assaults with “backlogged” sexual assault kits. The left heat gradient map represents non-Black women and girls. The right heat gradient map represented Black women and girls. Figure prepared by authors

Figure 3.3 HOLC map of Greater Cleveland, Ohio (“red lined” areas) and locations of sexual assaults with “backlogged” sexual assault kits. City of Cleveland boundary is denoted with a dotted line. Historically labeled “hazardous” areas are outlined in black for non-Black women and girls and outlined in white for Black women and girls. The left heat gradient map represents non-Black women and girls. The right heat gradient map represents Black women and girls. Figure prepared by authors

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Predictors of Adjudication Table 3.2 presents the results of three multivariable logistic regression models, which examined potential predictors of whether a sexual assault case was previously adjudicated (= 1). Findings in Model 1 (pooled model of all females in the analytic sample) indicate that Black victim-survivors were not more or less likely to have their cases previously adjudicated compared to non-Black victim-survivors. The models include potentially predictive covariates based upon the attrition literature. Collinearity statistics were examined. The victim-ofender relationship (e.g., stranger, acquaintance) was not included as a predictor due to collinearity issues with victim-survivor identifcation of a suspect. The two strongest predictors of a case being previously adjudicated across all models were whether the victim-survivor aided in identifying a suspect and whether the victim-survivor engaged (cooperated) in the investigation and prosecution. These factors played an oversized role in predicting adjudication. For all females in the sample (Model 1), if the victim-survivor aided

Table 3.2 Multivariate logistic regression of covariates on whether case was previously adjudicated (=1) or not (=0). Table prepared by authors Model 1: All Women and Girls (N = 996)

Covariates

Odds Ratios

Std. Sig. Error

Victim-survivor characteristics Black (Y = 1) 0.96 Aided in ID of suspect (Y = 1) Engaged/ cooperative (Y = 1) Age at assault

0.21

B

Model 2: Black Women and Girls (N = 639)

Model 3: Non-Black Women and Girls (N = 357)

Odds Ratios

Odds Ratios

Std. Sig. Error

Std. Sig. Error B

B

–0.05

20.74

*** 0.33

3.03 32.07

*** 0.45

3.47 14.74

*** 0.55

2.69

39.77

*** 0.27

3.68 76.39

*** 0.42

4.34 20.97

*** 0.38

3.04

0.98

0.01

–0.02

0.97

0.01

–0.01

0.28

0.80

0.44

1.31

**

*

0.01

–0.03

0.99

1.47

0.38

0.39

3.70

Injured (Y = 1)

2.22

Self-defense (Y = 1) Any credibility issue (Y = 1)

1.14

0.21

0.14

1.04

0.30

0.04

1.24

0.32

0.22

0.67

0.22

–0.40

0.55

0.30

–0.59

0.87

0.32

–0.14

0.36

–1.10

0.36

0.49

–1.02

0.29

0.57

–1.23

0.26

–0.07

1.07

0.34

0.07

0.67

0.46

–0.40

0.45

0.25

0.57

0.68

–0.56

3.02

0.66

1.11

0.36

0.96

1.54

0.49

0.43

3.84

*

0.53

1.35

0.66

–5.51

0.01

*** 0.91

–5.31

0.00

*** 1.05

–5.99

Characteristics of sexual assault Occurred outdoors 0.33 ** (Y = 1) Threat or use of 0.93 weapon (Y = 1) Reported within 1.28 72 hours (Y = 1) Eyewitnesses 2.60 ** (Y = 1) Constant 0.00 ***

Notes: ***p < 0.001; **p < 0.01; *p < 0.05.

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*

**

*

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in the identifcation, the case had 20.7 times increased odds of being adjudicated (known as the odds ratio, OR). If the victim-survivor was engaged in the process, the case had 39.8 times greater odds of ending in adjudication. Additional positive predictors of adjudication include: whether the victim-survivor was injured in the sexual assault and if there was an eyewitness—(often construed as legal factors that indicate a stronger case for prosecution). The case was less likely to be adjudicated if the sexual assault occurred outdoors, which is correlated with sexual assaults committed by strangers; Pearson’s r = 0.30, p < 0.001. Model 2 presents the results for Black victim-survivors only. The victim-survivor identifcation of the suspect (OR: 32.1) and victim-survivor engagement in the process (OR: 76.4) were much stronger predictors of adjudication for Black victim-survivors compared to the ORs for those variables in the pooled model. The covariates that inversely predicted adjudication in Model 2 were the age of the victim-survivor and whether the sexual assault occurred outdoors. Model 3 presents the results for the non-Black victim-survivors only. Victim-survivor identifcation of the suspect (OR: 14.7) and engagement in the process (OR: 21.0) were also stronger predictors of adjudication but less so compared to the pooled model (Model 1) and for Black victim-survivors (Model 2). The other covariates for the non-Black victim-survivors were comparable to the pooled model—whether the victim-survivor was injured, and the presence of an eyewitness increased odds of adjudication while sexual assaults that occurred outdoors decreased odds of adjudication.

Discussion, Policy Implications, and Future Directions Our fndings speak to inequalities in the lived realities for Black women and girls who more frequently reside in economically disadvantaged, marginalized communities—they are more likely to be sexually assaulted outdoors by strangers or near-strangers while walking or waiting because they are disproportionally likely to be using the built (human-made) environment in areas with a lasting legacy of redlining. As a practitioner participant from a research study on untested kits from Detroit aptly states, “It’s not that complicated to fgure out… this is a crime that afects women, and in this city, that means Black women, poor Black women…” (Campbell & Fehler-Cabral, 2018, p. 90). Regarding victims of sexual assault, another participant noted, “Many of them are poor… many of them are living not only a legacy of racism but active racism, active misogyny… and the criminal justice system exacerbate[s] [this]” (Campbell & Fehler-Cabral, 2018, p. 90). The most typical response to sexual assault is either increased law enforcement presence (most notably, increased police surveillance of communities of color) or an increased burdening on individuals to avoid being victims of sexual assault (e.g., avoid walking alone at night, do not engage in conversations with strangers). Our fndings, however, suggest that these might be inadequate to address racial diferences in how sexual ofenders exploit the vulnerabilities of victim-survivors. Instead, these fndings suggest that a more efective response would encourage bystander intervention (Bystander-Focused Prevention of Sexual Violence, 2014) for all residents and seeks community engagement and feedback (Kondo et al., 2018) to make the built environment safer when walking or waiting. Data can inform these responses by examining how the built environment is being used via spatial analyses, but also data on the locations of the sexual assaults, the means of access, and how physical space is being used. For example, are certain public transportation stops more dangerous? Are certain convenience stores, abandoned buildings, or open spaces more frequently mentioned in police report narratives? Certain hot spot spatial analyses, such as risk terrain modeling, might be a more efective contemporaneous analytic approach to narrowing down the highest risk areas and predicting where the sexual assaults might occur in the future (Kennedy et al., 2015). 63

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Our fndings indicate that victim-survivor engagement plays a signifcant role in predicting adjudication. Thus, more research is needed to unpack the specifc mechanisms within victim-survivor engagement in terms of adjudication. Of the cases that were not previously adjudicated, approximately half failed to proceed due to lack of victim follow up, and another ~10% were unable to proceed because victims did not want to prosecute, according to the police reports. Why do victim-survivors report, have a kit collected, and then disengage with the process? Research suggests that an unwieldy bureaucracy (Lovell et al., 2020) and negative interactions with law enforcement (Alderden & Long, 2016; Lorenz et al., 2021) play a role in victim (dis)engagement. But how and in what ways can these factors be mitigated to improve victim-survivor engagement? Emerging research from the SAK initiative indicates that substantial improvements in providing victim advocacy and a commitment to efective, multidisciplinary victim advocacy are necessary frst steps in increasing victim-survivor engagement (Luminais et al., 2020). And with increased victim engagement comes increased odds of convictions (Luminais et al., 2020), which makes communities safer (Lovell et al., 2021), especially in redlined/high-crime areas that are disproportionally comprised of Black women and girls. Our data are limited to information collected from police ofcers and not from the victim-survivors themselves. More research is needed to understand better what leads to victim-survivor disengagement after making a police report and even having a kit collected—specifcally from the victim-survivor perspective. The fndings highlight the inequalities female victim-survivors face, especially Black women and girls, in the criminal justice system. Data from untested kits provide the opportunity to revisit past practices and renew our focus on women and girls from marginalized and disinvested communities to address inequalities in sexual victimization. The fndings presented here—in a handbook on sentencing and corrections—also provide an opportunity to explore sexual victimization for victims whose kits and (more often than not) cases were forgotten about by the criminal justice system. In terms of the limitations of this study, our fndings cannot be generalized to all sexual assaults, all sexual assaults with kits, or all jurisdictions. Additionally, our sample is comprised of sexual assaults disproportionally committed by strangers and/or very casual acquaintances, and almost 60% of the sexual assaults in this sample occurred between 1993 and 1999. Lastly, our data are limited because they are derived from ofcial police and prosecutor documentation, which varies by the individual and may contain errors or omissions of essential details.

Implications for Practice Hardiman and colleagues (2013) provide a solid framework to consider implications for sentencing and corrections and the criminal justice system more broadly, including law enforcement practitioners and social service providers, related to racial/ethnic diferences in the risk of victimization and case outcomes. Their model conceptualizes the experience of oppression on the societal level, providing a way to think about how the historical and current U.S. social norms negatively impact Black women and girls. Their model also helps us conceptualize the maintenance of oppression at the level of social institutions, including the legal system. This is of particular importance regarding the investigation (or lack thereof ) of allegations of sexual assault against Black women and girls. Lastly, the authors help us to consider oppression at the individual level, which not only includes the beliefs, attitudes, and narratives about Black women and girls’ sexuality but also includes Black women and girls’ own internalized beliefs, attitudes, and narratives, as well as healing from the trauma of sexual assault. Social service providers should work collaboratively with law enforcement practitioners and community partners to create new interventions and strategies (George et al., 2013) focused on: 64

Untested Sexual Assault Kits

a

b

societal level oppression via increased awareness of the vast negative implications of redlining and its lasting legacy for residential racial segregation, the creation of a counter Black female narrative, and the development of grassroots initiatives (e.g., community meetings) to foster neighborhood cohesion, a shared positive narrative, and mutual support. institutional level of oppression via fostered relationships of neighborhood/police collaboratives; increased testing and investigative and prosecutorial follow up of the kits (Lovell et al., 2021); raised awareness of the greater risk of “walking and waiting” sexual assaults for Black women and girls; and the fostering of community groups to increase bystander intervention (Bystander-Focused Prevention of Sexual Violence, 2014); and (c) individual level of oppression via specialized therapeutic community resources for vulnerable women and girls to engage in the healing process.

Conclusion We found limited racial diferences in most of the characteristics of the sexual assaults, with the means of access being a key exception. Black women and girls were more frequently sexually assaulted by strangers outdoors while using public space—walking and waiting sexual assaults. Non-Black (who are almost all white) women and girls’ sexual assaults were more frequently associated with victim-survivors who were mentally ill/cognitively impaired, involved the use of drugs and/or alcohol, and other types of “risky” behavior. The other observed racial diferences in the characteristics of the sexual assaults corresponded to the typical ofending patterns associated with walking or waiting sexual assaults vs. drugs/alcohol use. For example, walking and waiting sexual assaults by defnition included sexual assaults committed by strangers/near strangers and outdoors, and thus, often began as an immediate attack on the victim-survivor, involved a weapon, occurred in abandoned buildings, and included the use of control by the suspect. Conversely, drug/alcohol-involved sexual assaults were more frequently perpetrated by acquaintances, occurred at night, entailed other types of “risky” behavior, and led to victim-survivors not being able to articulate the details of the sexual assaults. We also explored where the sexual assaults occurred—the spatial patterns of the sexual assaults. We found that sexual assaults disproportionally occurred within the most hazardous areas with higher crime rates—the “red lined” areas. However, with the high rates of racial segregation in this jurisdiction, Black women and girls were more frequently sexually assaulted in the most economically divested communities, corresponding to the red lined areas. Black women and girls were more likely to be living in these hazardous areas (areas still heavily comprised of Black residents) and thus, faced an increased risk of being sexually assaulted while walking and waiting. Our unique and detail-rich data on untested kits combined information on “how” the sexual assaults occurred with “where” the sexual assaults occurred, and as such, our fndings provide a more complete understanding of racial diferences and similarities in sexual assaults. Findings also suggest that Black women and girls had diferent routine activities and lived experiences compared to their non-Black counterparts. This is due in large part to Black women and girls’ increased vulnerabilities to sexual victimization via their routine use of public space with a historical legacy of economic disinvestment and higher crime. Non-Black women and girls’ routine activities and, thus, their increased risk of sexual victimization had less to do with the built environment and more to do with drugs/alcohol use. While the kits were only recently tested as part of this jurisdiction’s SAK initiative, some cases were adjudicated at or near the time of the sexual assault. We accessed racial diferences in the cases that were already adjudicated. We found that Black women and girls’ case outcomes were similar to non-Black women and girls’ case outcomes. Black women and girls were no more or less likely to have had their cases adjudicated than non-Black women and girls. For cases that were 65

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not previously adjudicated, Black women and girls more frequently did not have a closing reason listed in the police reports, and non-Black women and girls more frequently had their cases closed due to insufcient evidence. Lastly, we observed racial diferences in the factors that predicted adjudication. For all victimsurvivors, their identifcation of a suspect and engagement in the process played an oversized role in predicting adjudication. For Black women and girls, these factors had a stronger impact on adjudication compared to non-Black women and girls. These two factors (along with age and occurring outdoors) predicted adjudication for Black women and girls. For non-Black women and girls, whether the victim-survivor was injured, whether it occurred outdoors or not, and whether there was an eyewitness also predicted adjudication.

Acknowledgments We want to thank all the survivors who inadvertently shared their stories of intimate trauma with us. We have read your stories and promise to do our best to ensure they no longer remain shelved. We thank the Cuyahoga County Prosecutor’s Ofce and the Task Force for inviting us to sit at your table. Without your support, this project would not have happened.

Funding This project was supported in part by Grant Nos. 2015-AK-BX-K009, 2016-AK-K016, and 2018 AK-BX-0001 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the U.S. Department of Justice’s Ofce of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Ofce of Juvenile Justice and Delinquency Prevention, the Ofce for Victims of Crime, and the SMART Ofce. Points of view or opinions in this document are those of the author and do not necessarily represent the ofcial position or policies of the U.S. Department of Justice. A pilot research project was supported by a research grant from the Cuyahoga County Prosecutor’s Ofce.

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Rachel E. Lovell et al. Lovell, R., Luminais, M., & Berg, K. (2018a, July 5). Legacy of redlining: How 1930s Cleveland mortgage-lending maps mirror today’s poverty. The Daily. https://thedaily.case.edu/legacy-redlining-1930scleveland-mortgage-lending-maps-mirror-todays-poverty/ Lovell, R., Luminais, M., Flannery, D. J., Bell, R., & Kyker, B. (2018b). Describing the process and quantifying the outcomes of the Cuyahoga County sexual assault kit initiative. Journal of Criminal Justice, 57, 106–115. Lovell, R., Luminais, M., Flannery, D. J., Overman, L., Huang, D., Walker, T., & Clark, D. R. (2017). Offending patterns for serial sex ofenders identifed via the DNA testing of previously unsubmitted sexual assault kits. Journal of Criminal Justice, 52, 68–78. Lovell, R. E., & Dissell, R. (2021). Dissemination and impact amplifed: How a researcher–reporter collaboration helped improve the criminal justice response to victims with untested sexual assault kits. Journal of Contemporary Criminal Justice, 37(2), 257–275. Lovell, R. E., Singer, M., Flannery, D. J., & McGuire, M. J. (2021). The case for “investigate all”: Assessing the cost-efectiveness of investigating no CODIS hit cases in a sexual assault kit initiative. Journal of Forensic Sciences, 66, 1316–1328. Luminais, M., Lovell, R., & Flannery, D. (2017). Perceptions of why the sexual assault kit backlog exists in Cuyahoga County, Ohio and recommendations for improving practice. The Begun Center for Violence Prevention Education and Research at the Jack, Joseph and Morton Mandel School of Applied Social Sciences at Case Western Reserve University. https://digital.case.edu/islandora/object/ksl:2006061457 Luminais, M., Lovell, R., McGuire, M., Klingenstein, J., Kavadas, A., & Overman, L. (2020). Victim advocates and cold case investigations: Impact of integration on the Cuyahoga County sexual assault kit task force. The Begun Center for Violence Prevention Education and Research at the Jack, Joseph and Morton Mandel School of Applied Social Sciences at Case Western Reserve University. https://digital.case.edu/ islandora/object/ksl%3A2006061588 Messing, J. T., Becerra, D., Ward-Lasher, A., & Androf, D. K. (2015). Latinas’ perceptions of law enforcement: Fear of deportation, crime reporting, and trust in the system. Aflia, 30(3), 328–340. Mitchell, B. (2018). HOLC “redlining” maps: The persistent structure of segregation and economic inequality. National Community Reinvestment Coalition. Morabito, M. S., Pattavina, A., & Williams, L. M. (2017). Active representation and police response to sexual assault complaints. Journal of Crime and Justice, 40(1), 20–33. Morabito, M. S., Pattavina, A., & Williams, L. M. (2019a). It all just piles up: Challenges to victim credibility accumulate to infuence sexual assault case processing. Journal of Interpersonal Violence, 34(15), 3151–3170. Morabito, M. S., Williams, L. M., & Pattavina, A. (2019b). Decision making in sexual assault cases: Replication research on sexual violence case attrition in the United States, 2006–2012. Inter-university Consortium for Political and Social Research. https://www.ncjrs.gov/pdfles1/nij/grants/252689.pdf. Accessed 22 June 2020. Morgan, R., & Oudekerk, B. (2019, September). Criminal victimization, 2018. US Department of Justice. https://bjs.ojp.gov/content/pub/pdf/cv18.pdf Neville, H. A., & Pugh, A. O. (1997). General and culture-specifc factors infuencing African American women’s reporting patterns and perceived social support following sexual assault. Violence Against Women, 3, 361–381. Omolade, B. (1989). Black women, Black men, and Tawana Brawley: The shared condition. Harvard Women’s Law Journal, 12, 11–23. O’Neal, E. N., Tellis, K., & Spohn, C. (2015). Prosecuting intimate partner sexual assault: Legal and extra-legal factors that infuence charging decisions. Violence Against Women, 21(10), 1237–1258. Park, R. E., & Burgess, E. W. (1967). The city: Suggestions for investigation of human behavior in the urban environment. University of Chicago Press. Pattavina, A., Morabito, M., & Williams, L. M. (2016). Examining connections between the police and prosecution in sexual assault case processing: Does the use of exceptional clearance facilitate a downstream orientation? Victims & Ofenders, 11(2), 315–334. Pokorak, J. J. (2006). Rape as a badge of slavery: The legal history of, and remedies for, prosecutorial raceof-victim charging disparities. Nevada Law Journal, 7, 1. RAINN. (2021). The criminal justice system: Statistics. RAINN. https://www. rainn.org/statistics/ criminal-justice-system Reece, J., Martin, M., Bates, J., Golden, A., Mailman, K., & Nimps, R. (2015, February). History matters: Understanding the role of policy, race and real estate in today’s geography of health equity and opportunity in Cuyahoga County. Kirwan Institute. http://kirwaninstitute.osu.edu/wp-content/uploads/2015/06/TheHistory-of-Race-Real-Estate-Cuyahoga-County-Final-Report-February-2015.pdf

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4 RACIAL BIAS AND AMELIORATION STRATEGIES FOR JUVENILE RISK ASSESSMENT Leah C. Butler, Zachary Hamilton, Amber E. Krushas, Alex Kigerl and Melissa Kowalski Introduction For more than three decades, risk assessments have been used to estimate youth risk for recidivism, identify needs, and guide decisions regarding diversion, case management, supervision, and placement practices (Hamilton et al., 2019). These tools aim to score youth with equity, based on established predictors of risk (Bonta & Andrews, 2017). Thus, one attractive element of risk assessments is that they can remove some of the human biases and inconsistencies in decision-making that may lead to disparate treatment of youth across racial and ethnic groups (Baglivio & Jackowski, 2013; Hoge, 2002). However, a 2016 ProPublica Investigation, “Machine Bias” (Angwin et al., 2016), called into question whether risk assessments are truly unbiased or whether they continue to produce disparities in system outcomes, only now in a way that is “colorblind” (Barabas et al., 2018; Harcourt, 2015; Starr, 2014; see Matz, Chapter 5). This chapter provides a review of research on racial and ethnic bias in risk assessment and, in an analysis of data collected as part of a large, tenstate evaluation of a well-known youth risk-need assessment, we evaluate the predictive performance of the tool across racial/ethnic subgroups. In doing so, we outline methods for modifying assessment content to ameliorate the potential sources of bias contained within the tool. Two indicators are used to examine the degree to which racial or ethnic bias is a problem for a risk classifcation tool: (1) test bias, the degree to which the predictive validity of the tool difers between racial or ethnic groups, and (2) disparate impact, the degree to which there are racial or ethnic diferences in risk classifcation that could result in systematically disparate decisions across case processing for diferent racial/ethnic groups. A risk assessment may be plagued by test bias, disparate impact, or, likely, some combination. As such, the strategies to ameliorate racial and ethnic bias in risk assessment may be as complex as the nature of the problem itself. In this context, this chapter reviews three elements of the ongoing eforts to understand and address racial and ethnic bias in risk assessment. First, we briefy discuss the history and current state of disproportionate minority contact (DMC) with the juvenile justice system and racial and ethnic disparities (REDs) in youth treatment—problems that risk assessments aim to reduce by removing human bias and by using known criminogenic factors and protective factors to guide decision-making across contact points. As we will discuss in this section, the diferent explanations for DMC raise questions about whether risk assessments succeed in removing bias or instead capture the sources of DMC in their measures of risk, thereby perpetuating racial/ethnic bias in youth treatment across the justice system. Second, we review some of the evidence of both test bias and disparate impact within 70

DOI: 10.4324/9781003245032-5

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various risk classifcation tools. Reviewing this evidence is imperative as it helps to establish the degree to which the problem at hand is prevalent in some of the tools being used to guide juvenile case processing and because it provides some insight as to what the sources of test bias and disparate impact are and how they may be addressed. Third, we discuss strategies employed to address sources of bias in risk assessments, the utility of these strategies, and the challenges associated with the implementation of these strategies. We focus our discussion on the approaches to reducing bias that involve removing, modifying, or adding to the measures of risk included in models used to predict recidivism. In light of prior research on how risk assessments may perpetuate DMC and RED, the current study takes a multistage approach to identifying and implementing strategies for reducing racial/ ethnic disparities in the predictive validity of the Modifed Positive Achievement Change Tool (MPACT). This approach seeks to balance improving the predictive validity within racial/ethnic subgroups, reducing disparities in prediction accuracy between racial/ethnic subgroups (i.e., test bias), and avoiding any increases in the false positive rate (FPR) (i.e., the youth who receive a high-risk score but do not recidivate) for any racial or ethnic group or reductions in a model’s prediction accuracy for the overall sample. Our results have surprising and complex implications for future research in this area. Before we present the current study, we frst turn to our discussion of the three aforementioned areas of research that guide our analyses.

Disproportionate Minority Contact (DMC) and Racial/Ethnic Disparities (REDs) in Juvenile Justice Evidence of DMC and RED DMC refers to the overrepresentation of minority youth at various stages of contact with the juvenile justice system relative to the racial/ethnic makeup of the youth population (Kakar, 2006; Piquero, 2008). Research on DMC has, over decades and across populations (e.g., nationwide, statewide), shown that Black youth are overrepresented at each stage of juvenile case processing. Although Black youth comprise approximately 15% of the adolescent population (Ofce of Juvenile Justice and Delinquency Prevention [OJJDP] Statistical Briefng Book, 2020), they make up 26% of juvenile arrests, 39% of those formally processed by the juvenile court, 40% of those detained, 37% of those adjudicated, and 43% of those placed in secure confnement (Sickmund et al., 2021; see also, Hamparian & Leiber, 1997; Poe-Yamagata & Jones, 2000; Spinney et al., 2014). Further, there is evidence that there are DMC and REDs in case processing between racial/ ethnic subgroups and that these disparities are not shrinking, despite widespread attention to the problem and federal law—the Juvenile Justice and Delinquency Prevention Act of 1975—requiring each state to examine the overrepresentation of youth of color in their respective juvenile justice system (Pasko, 2019). As an example, although youth incarceration rates have decreased over the past decade, the disparities in incarceration rates have remained unchanged, with Black youth being fve times more likely, and “Latinx youth 42% more likely than their White peers to be incarcerated” in 2019 (Rovner, 2021, p. 4). Finally, there is evidence that disparities between racial and ethnic groups at one stage accumulate throughout each further stage of processing in the system (DiPrete & Eirich, 2006; Hanes & Hanes, 2012; Kakar, 2006; Piquero, 2008). Cumulative disadvantage may be the result of early decisions in case processing infuencing decisions at subsequent stages in ways that create additional racial/ethnic diferences in processing or exacerbate diferences that already exist (Kempf-Leonard, 2007; Wooldredge et al., 2015; see Brown & Mitchell, Chapter 1). 71

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Potential Sources of DMC and RED Although the causes of DMC and RED are multifaceted and complex (Campbell et al., 2018; Hanes & Hanes, 2012; Kakar, 2006), researchers have developed two primary explanations for why DMC exists: (1) disproportionate involvement and (2) diferential enforcement/treatment. Each of these explanations has implications relevant to identifying how bias may be manifested in risk assessment scores, contributing to further disparities in youth involvement in the justice system. Diferential Involvement. First, some evidence suggests that at least part of the disproportionate representation of minority youth in the juvenile justice system is due to diferential patterns in ofending across racial/ethnic groups, especially with regard to certain ofenses (Bishop & Leiber, 2011; Kempf-Leonard, 2007; Piquero, 2008; Pope & Snyder, 2003). For example, some research suggests that minority youth may be more likely than their White counterparts to commit offenses that more commonly come to the attention of law enforcement (Blumstein, 1982, 1993; Conley, 1994; Crutchfeld et al., 1994; Sorensen et al., 2003). Some studies also show that Black youth (Kakar, 2006; Sampson et al., 2005; Walker et al., 2003) and Hispanic youth (Morenof, 2005; see also Piquero & Brame, 2008) are disproportionately involved in serious violence relative to their White counterparts. Findings of disproportionate involvement in violence among Black and Hispanic youth relative to White youth have emerged from studies using ofcial records, which are often critiqued for capturing only crimes recorded by police, and self-report surveys (see, e.g., Elliott, 1994; Farrington et al., 1996; Williams & Gold, 1972), which are often viewed as a more accurate representation of true involvement in crime. The degree to which DMC and RED are explained by diferential involvement in delinquent/ criminal behavior may be the result of minority youth being subjected to various criminogenic risk factors at higher rates. For example, Black youth experience higher rates of socioeconomic disadvantage (Kids Count Data Center, 2021) and lower educational attainment and opportunities (see, e.g., Brey et al., 2019; Shores et al., 2020) than White youth, both of which are included in the “central eight” risk factors (Bonta & Andrews, 2017) that most risk assessments consider. Thus, from the evidence of diferential involvement, researchers might consider how diferences in the distribution of certain indicators across minority youth result in systematically greater risk scores and, in turn, how adjusting for these baseline diferences could help reduce disparities. We discuss this strategy for ameliorating racial and ethnic bias in risk assessment below. Diferential Enforcement/Treatment. In contrast to the evidence of diferential involvement in more serious ofending, some self-report studies of delinquency show little support for increased frequency of ofending among minority youth (Hawkins et al., 2000; Peeples & Loeber, 1994). Thus, a competing explanation of DMC and RED is that minority youth are treated diferently by the juvenile justice system, including by law enforcement and court actors. For example, some research cites evidence of law enforcement decisions to target certain neighborhoods (e.g., high crime neighborhoods that tend to be majority-Black or -Hispanic) and certain ofenses, as leading to increased police contact with minorities (Fagan & Davies, 2000; Hinton et al., 2018; Petrocelli et al., 2003). Beyond increased contact due to targeted enforcement, explicit and/or implicit stereotypes and discriminatory practices may also infuence treatment of minority youth (see, e.g., Graham & Lowery, 2004; Zatz, 2000). Other studies demonstrate diferential treatment by examining whether youth race signifcantly impacts case processing, controlling for various case or youth characteristics that are legitimate considerations in decision-making (e.g., whether the ofense was violent, whether the youth has a criminal record). Taking this approach, studies have shown that minority youth are still more likely to be formally adjudicated (Evangelist et al., 2017; Kim et al., 2010; Pasko, 2017) and to receive longer probation decisions (Zatz, 2000) after accounting for other case characteristics. 72

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Likewise, several studies demonstrate that Black youths in the system are given more restrictive dispositions than their White counterparts, even when they have committed the same ofense and have the same record (e.g., Brownfeld et al., 2001; Leiber & Mack, 2003; Pope & Feyerherm, 1995; Pope & Snyder, 2003; however, see also Johnson, 2007). In a meta-analysis of 46 DMCrelated studies published between January 1969 and February 1989, Pope and Feyerherm (1990) found that observed diferences in case processing across racial groups could not be attributed solely to the presence of legal characteristics or other factors. Instead, approximately two-thirds of the reviewed research indicated that a youth’s racial status made a diference at selected stages of juvenile processing. Finally, Piquero (2008) suggests that diferential treatment may be especially prominent for “victimless” crimes (e.g., drug use, public order violations) where court actors can typically exercise greater discretion in decision-making. If minority youth are treated disproportionately harshly by criminal justice system actors, they will likely score higher on criminal history measures included in risk assessments, which capture prior involvement at various stages of the juvenile justice system (e.g., prior arrests, prior adjudications, prior confnements). Thus, the evidence of disproportionate enforcement or treatment implies that risk assessments may need to place less weight on criminal history measures or remove these measures from risk classifcation models altogether.

Risk Assessment Predictive Performance across Racial/Ethnic Groups Despite their intent to decrease potential racial and ethnic biases in case processing decisions (Baglivio & Jackowski, 2013; Hoge, 2002), some studies have found evidence of test bias (i.e., racial diferences in predictive validity) and disparate impact (i.e., racial diferences in risk classifcation or mean scores that could result in diferential treatment) in certain risk assessments. To summarize these fndings, we review studies that demonstrate the scope of the problem. The studies identifed for this review span four diferent risk assessment tools: (1) The Youth Level of Service/Case Management Inventory (YLS/CMI), (2) the Structured Assessment of Violence Risk in Youth (SAVRY), (3) the North Carolina Assessment of Risk (NCAR), and (4) the Positive Achievement Change Tool (PACT). Onifade and colleague’s (2009) validation of the YLS/CMI examined the predictive validity of the overall instrument both in terms of the predictive validity of the instrument within each gender and racial/ethnic subgroup and in terms of the diferential prediction accuracy between each subgroup (Onifade et al., 2009, p. 214). Although the area under the curve (AUC) coeffcient demonstrated the tool’s predictive validity within each subgroup, there were signifcant diferences in risk prediction accuracy between the subgroups, with the tool performing the worst for Black male youth. Specifcally, the YLS/CMI tool under predicted recidivism for Black boys. Thus, although the YLS/CMI serves as a valid predictor of recidivism, it also exhibits poor dimensional identity, as the tools’ accuracy in predicting re-ofense varied signifcantly across racial subgroups (Onifade et al., 2009). To further examine how certain risk factors might be linked to race, Onifade and colleagues (2009) also tested whether there were signifcant diferences in mean scores on subscales of the YLS/CMI across gender and racial/ethnic subgroups. Their analyses found signifcant diferences on the education subscale (with higher scores for Black males than for White females), on the peer subscale (with higher scores for Black males than Black females), on the drug subscale (with Black females scoring lower than White females, White males, and Black males), and on the attitudes subscale (with Black males scoring higher than all other gender/racial subgroups). Building on these fndings, Campbell et al. (2018) found that criminogenic risk scores interacted with race and gender within the YLS/CMI tool. Their fndings contradict the diferential involvement explanation of DMC/RED because the validity of the instrument was signifcantly 73

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lower for Black male youth relative to other subgroups, despite there being “no signifcant differences in overall risk score…for white and Black males” nor were there signifcant diferences in “types of [prior] crimes committed” (p. 13). As a result, Campbell et al. (2018) proposed that claims of Black males having an increased risk for recidivism due to higher risk scores or increased involvement in violent delinquent activity are unfounded and that other social, policy, and/or enforcement-related factors may help explain this increased risk for recidivism for Black youth (for further evidence of diferential predictive validity across racial/ethnic groups for the YLS/CMI, see Flores et al., 2004; Thompson & McGrath, 2012). Although these studies demonstrate potential racial/ethnic test bias, fndings regarding the YLS/CMI and other instruments are mixed. Perrault et al. (2017) examined test bias for the YLS/CMI and another youth assessment tool, the SAVRY. Their results show that both the YLS/CMI and SAVRY signifcantly predicted recidivism, without diferentially predicting recidivism across races. Others have also found the predictive validity to be equal across races for the YLS/CMI ( Jung & Rawana, 1999; Olver et al., 2014). Similarly, Vincent et al. (2011) found that the predictive validity of total risk score computed with the SAVRY did not difer across racial groups. Other contemporary youth assessment tools also have mixed evidence of racial bias. For example, using the NCAR, Schwalbe et al. (2004) compared 12-month recidivism rates of Black and White youth with similar risk levels. Results demonstrated signifcant diferences across groups, with predictions of recidivism better for non-Latino White juveniles in comparison to Black juveniles. However, in a separate analysis, the NCAR was shown to be least accurate for White females and relatively more accurate for White males and minority youth (Schwalbe et al., 2006). Other assessment tools have fairly consistent evidence of similar predictive validity across racial/ethnic subgroups. For example, in their validation of the PACT, Baglivio (2009) found that the tool predicted recidivism for minorities and non-minorities among a sample of Florida youth ofenders with similar accuracy. As evidence to suggest that the PACT may result in an equitable impact on youth regardless of race or ethnicity, Baglivio and Jackowski (2013) did not fnd significant diferences in predicted future referral/arrest and future adjudication/conviction. However, Hamilton and colleagues found that Black youth, and Black girls, in particular, were “overrepresented in the ‘high-risk’ category,” but that the disparate classifcation of Black youth as high risk could be reduced by “including greater needs items into risk prediction” (2020, p. 1282). Collectively, these studies demonstrate mixed fndings regarding the racial biases that may exist within youth risk assessment tools. Given this lack of clarity on the extent that risk assessments may be contributing to or reducing racial disparities for juvenile ofenders, it is imperative that researchers continue to further investigate existing biases (Onifade et al., 2009; Schwalbe et al., 2006; Thompson & McGrath, 2012).

Strategies for Ameliorating Racial Bias in Risk Assessment Tools The strategies for reducing test bias and/or disparate impact of risk assessment fall into two general categories: modifying or expanding the factors used to predict risk and adjusting the models used to predict risk based on the factors measured by the assessment tool. The latter category involves approaches such as modeling the intervening or moderating relationships between race, risk factors, and recidivism (see, e.g., Campbell et al., 2018; Schwalbe et al., 2007) and using multi-level modeling to account for macro-level factors that may shape risk (see, e.g., Onifade et al., 2009). For the current study, we implement strategies that fall under the frst category—including (1) removing criminal history and (2) modifying or removing other measures of risk that might be diferentially associated with recidivism across racial/ethnic groups—and therefore expand on these strategies below. 74

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Removing Criminal History First, in terms of modifying or expanding the factors used to predict risk, several unique strategies have been suggested, implemented, and evaluated, the most prominent of which is adjusting or removing criminal or juvenile justice history from risk classifcation models. As discussed above, criminal history may be infuenced by selection bias, where minority youth are more likely to come into contact with the justice system, at least in part due to increased law enforcement surveillance of minority communities (Hinton et al., 2018) and disparities at each stage of case processing (Kakar, 2006; Piquero, 2008). Thus, one argument is that racial and ethnic bias is “baked into” measures of criminal history such as prior arrests, prior adjudications, and prior confnement (Sickmund et al., 2021). To address this problem, some suggest removing criminal history from risk prediction models entirely. In an analysis of data collected from 3,591 youth using the Ohio Youth Assessment System-Disposition Tool (OYAS-DIS), Miller et al. (2021) assessed the efect of criminal history on recidivism for Black girls, Black boys, White girls, and White boys, separately. Their results showed that when controlling for age and dynamic risk factors, criminal history only signifcantly predicted two-year postassessment recidivism for White boys, thus suggesting that removing criminal history would not substantially impact prediction accuracy for White girls or Black youth (Miller et al., 2021).

Considering Other Risk Factors that May Act as Proxies for Race Beyond removing criminal history, scholars have suggested numerous other modifcations to risk factors. For example, whereas criminal history is a static factor (something that cannot be changed) many tools measure dynamic predictors of future ofending that may be more accurate than static predictors (Miller et al., 2021; Perrault et al., 2017; Thompson & McGrath, 2012; Vincent et al., 2011). Similarly, certain predictors of risk—both static and dynamic—may be sufciently associated with race that they efectively serve as proxies for race/ethnicity. These factors may serve as proxies for race/ ethnicity because they are linked to disparities in other realms such as employment or education or because they are common elements of the culture of a group (e.g., certain family or living arrangements). For example, Hamilton et al. (2020) aimed to reduce any racial/ethnic test bias in the PACT by (1) weighting the aggregated sample to efectively equate “the sample sizes of the fve primary study racial/ethnic subgroups” and (2) removing predictors that were correlated with youth being non-White to create a “race-neutral” model (p. 64). The results indicated that “agencies may reduce bias further by removing items that are found to be more highly correlated with race/ethnicity” (p. 64). As a diferent approach, some argue that expanding the scope of assessments to include a greater number and more comprehensive accounting of risk factors—both dynamic and static—may reduce the racially disparate efect of any one factor on risk classifcation (Schwalbe et al., 2006, 2007). Thus, studies have shown that longer assessments may have an advantage over shorter instruments (Schwalbe et al., 2007). Thus, adding a number of predictors to an assessment tool may be benefcial both for increasing prediction accuracy overall and reducing test bias and disproportionate high-risk classifcation for minority youth. For example, tools might include individual factors, such as conduct problems and oppositional defance disorder (Cottle et al., 2001; McDermott & Spencer, 1997). Ultimately, these approaches—removing items that contribute to bias and increasing the number of indicators upon which recidivism is predicted—may be incompatible. In other words, one approach requires limiting the pool of items upon which recidivism is predicted, a practice that the other approach suggests may reduce prediction accuracy overall and within racial/ethnic 75

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groups. Identifying this trade-of, Berk and Elzarka (2020) introduced a series of statistics that can be used to assess bias, one of which is the cost ratio. The cost ratio “captures how the algorithm is trading false negatives against false positives” where a cost ratio greater than 1 indicates that “the algorithm…works harder to reduce false positives than to reduce false negatives” (p. 1240). Berk and Elzarka (2020) argue that one measure of disparity in risk assessment is whether the cost ratio difers across racial subgroups. Berk and Elzarka’s consideration of how false positives are diferentially avoided across racial/ ethnic groups, counters criticisms from the ProPublica argument and others that risk models “likely to falsely fag Black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants” (Angwin et al., 2016, n.p.). The current study takes a similar but distinct approach, identifying for removal from prediction models items that may contribute to poorer prediction for minority youth. Instead of developing an algorithm based on the White subsample only and then examining the cost ratio for that model across racial/ethnic subgroups, we instead strategically remove items that yield high FPRs.

Te Current Study Building from the prior work on identifying means of reducing racial/ethnic bias in risk assessment, the current study proposes three approaches to reduce bias and alter prediction accuracy. Specifcally, we examined the impact of removing criminal justice indicators from the development of a risk assessment model. Further, we sought to understand if there are other commonly assessed items that present bias via increasing FPRs for any one racial/ethnic group when included in an assessment tool. While many of these issues are broadly applied across populations, we sought to examine outlined issues using a juvenile justice sample. Advancing beyond prior research, we provide fndings from a large, representative sample of U.S. justice-involved youth, using advanced metrics and sophisticated assessment methods, evaluating both model prediction and item-level analyses.

Methods To assess the issues described above, we made use of a large (N = 241,596), ten-state sample of youth assessed and tracked for recidivism in the community.1 Building from prior methods of assessment development (see, e.g., Hamilton et al., 2019, 2020), we describe the development of the MPACT, exploring the impact of criminal history items within the development process. Following this examination, we then sought to identify additional assessment items that may contribute to disparities in prediction across racial/ethnic groups, and the impact of those items within model development.

Hypotheses The primary study aim was guided by the recent discussion of inherent race/ethnicity bias within risk assessment models (Angwin et al., 2016; Berk & Elzarka, 2020; Miller et al., 2021). In particular, the inclusion of criminal history measures has been suggested to unintentionally introduce race/ethnicity bias within an assessment tool. Therefore, removing criminal history items from the pool of indicators eligible to be selected and included in an assessment tool development should remove bias, particularly relating to tool accuracy and over-classifcation of risk for minority youth. It is anticipated that removing items from the development pool will substantially reduce model accuracy, however, it is also anticipated that models without criminal history indicators will demonstrate more equitable FPRs when comparing youth race/ethnicity groups. 76

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H1 Assessment models developed with the full range of potential predictors, will demonstrate greater predictive performance compared to the models developed without criminal history indicators. H2 Assessment models developed without criminal history indicators will demonstrate reduced FPRs for racial/ethnic minority youth compared to those developed with the full range of potential predictors. Next, we explored assessment measures, seeking to strategically remove a set of predictors that may contribute to higher FPRs. The underlying rationale of this approach is that certain items that produce higher FPRs, not criminal history items specifcally, contribute to higher rates of disproportionality. For the current study, we defned an item that yields an FPR of 50% or greater for any one racial/ethnic group as an indication of disproportionality and potential bias. Similar to H1 and H2, with H3 and H4 we anticipate reductions in overall accuracy and in FPRs for minority youth resulting from the removal of these items. H3 Assessment models developed with the full range of potential predictors will demonstrate greater predictive performance compared to the models developed without indicators that yield FPRs of 50% or greater for any one racial/ethnic group. H4 Assessment models developed without indicators that yield FPRs greater than 50% for any one racial/ethnic group will demonstrate reduced FPRs for minority youth compared to those developed with the full range of potential predictors. Finally, we combine these two strategies—removing criminal history indicators and removing indicators that yield FPRs of 50% or greater for any one racial/ethnic group—to assess whether doing so further reduces bias (i.e., FPRs for minority youth) and/or reduces overall prediction accuracy. Again, we expect that this approach will reduce FPRs for minority youth but will also result in reduced overall accuracy by virtue of limiting the range of predictors on which the model predicts risk. H5 Assessment models developed with the full range of potential predictors will demonstrate greater predictive performance than models developed without criminal history indicators and without indicators that yield FPRs of 50% or greater for any one racial/ethnic group. H6 Assessment models developed without criminal history indicators and without indicators that yield FPRs greater than 50% will demonstrate lower FPRs for minority youth compared to models developed with the full range of potential predictors. Collectively these hypotheses address model development issues suspected to impact both accuracy and bias within assessment tools.

Te MPACT The current study used data collected from a multi-state development sample using one of the original youth risk assessments. Developed as the Washington State Juvenile Court Assessment (WSJCA) in 1997, its scoring was made non-proprietary and adopted by over 35 jurisdictions and 19 states as the Positive Assessment Change Tool (PACT), Back on Track (BOT), Youth Assessment Screening Inventory (YASI), and a variety of other, locally specifed names (Hamilton et al., 2021; JJGPS, 2017; OJJDP, 2010). This fourth-generation tool includes items that assess youth risk, needs, and responsivity within a 46-item scale, further broken down by domain (e.g., criminal history, school, associates, family, mental health). Following data collection, several sample states requested modifed versions of the tool be developed for their state and a version of the tool was created with all ten development sites. While the underlying data sets difer, the modeling procedures used to optimize item selection and 77

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weighting are relatively similar. Thus, we refer to the collection of these assessments, as well as the current tool, as the MPACT.

Data Both assessment and recidivism information were gathered from agency records. While the tool is comprised of 46 questions, several items are “select all-that-apply,” with multiple dichotomous selections. Hence, the MPACT item pool contains a total of 126 analyzable items. As part of the larger study, we described the multiple jurisdictions, youth populations, data collection, and processing in the development of a dataset comprising the ten states (see Hamilton et al., 2021). Due to the extensive number of predictors and items, we provide item descriptive statistics for each racial/ethnic group in Appendix 4.1. Each state also provided recidivism data, collected from states’ administrative ofce of court records. To take advantage of data availability the study outcome, recidivism, is operationalized as any new charge occurring within 12 months of the initial assessment for probation and diversion youth and 12 months following their last assessment prior to release for parole or detention youth.

Analytic Strategy Approaches to Reducing Racial and Ethnic Disproportionality in Assessment Four assessment models were developed to assess the outlined hypotheses: (1) Full Model, (2) No Criminal History, (3) 50%+ FPRs Removed, and (4) Combined Removal. We began by creating a recidivism prediction model using a starting pool that included all assessment items (the Full Model). As part of our standard coding structure, responses are coded in a positive direction based on theory, where protective responses are coded with negative values. Our customized statistical procedure, coded in R, uses a Ridge regression algorithm to iteratively select, retain, and weight only items with positive item coefcient values. Therefore, items with greater importance were assigned larger coefcient model weights and those with negative, or no, contribution to model improvement are not selected. This customized selection method has demonstrated an ability to optimize risk prediction for multiple populations and assessment types, removing prediction noise while retaining items that increase performance in data sets with high dimensionality (e.g., many items/responses) (see Hamilton et al., 2016, 2021). Among the advantages of Ridge regression is that it is resistant to overftting the data on which it is trained. While logistic regression fts all predictors equally, Ridge is designed to attenuate the weights for items that are less important, and thus the algorithm avoids modeling noise. Another advantage is the capacity of Ridge to accommodate high-dimensional data, with as many as hundreds of inputs. While logistic regression might be singular with so many inputs and an insufcient sample size, the regularization inherent to Ridge ensures that each item can be modeled without undue burden on the overall model. Given the specifcations of our data, including an extremely large sample with many items/dimensions, Ridge regression was deemed optimal. Weights were used to reduce issues of gender bias in the item selection procedure related to sample disproportionality, where each female represented roughly 2.3 males, allowing both genders to equally contribute to the fnal model. While not the primary focus of this study, this procedure provides a novel method for reducing gender bias in model development procedures. Next, an alternate set of models was created to test H1 and H2, where criminal history measures were removed from model consideration. Items removed from the pool included—“age at frst ofense,” “misdemeanor referrals,” “felony referrals,” “weapons referrals,” “against-person misdemeanors referrals,” “against-person felony referrals,” “sexual misconduct misdemeanor referrals,” 78

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“felony sex ofense referrals,” “confnements,” “detentions,” “escapes,” and “failure-to-appear warrants.” While it is anticipated that removing criminal history items could drastically reduce the overall predictive accuracy of the model (H1), the described regression procedure allows other, non-criminal history items to increase in weight and potentially “fll in” for missing variance using the limited item pool. Models developed with, and without, criminal history indicators were then compared via predictive performance metrics. Next, to provide a more data-driven approach to assessing race/ethnicity bias and to test H3, FPRs were computed for all items broken down by race/ethnicity group—White, Black, Hispanic, and Other. Using the model threshold, or the optimal AUC that best balances the true positive and negatives, the FPR identifes the proportion of subjects whose model’s continuous risk score exceeded the threshold but was not observed to recidivate. Thus, if a youth was identifed to be a “false positive,” it represents over-classifcation. By contrast, “false negatives” represent under-classifcation but are not the focus of the current study. While there is no FPR industry standard threshold indicating disproportionality, we defned FPRs greater than 50% as indicating a greater rate of false positives than true positives. Thus, substantial association was identifed as an assessment item’s FPR rate, for any one race/ethnicity subgroup, that was 50% or greater. Finally, an additional model (the 50%+ FPR Removed Model) was developed, removing items exceeding said bias threshold. Finally, to assess the joint impact of these two solutions for reducing disproportionality, we combine the strategies used in the No Criminal History and 50%+ FPR Removed models. One last model, the Combined Removal Model, was computed, removing both criminal history and items with FPRs of 50% or greater. It is anticipated that the reduction in prediction items in this fnal study model will impact overall model performance (H5) yet display some of the lowest FPRs (H6). Again, models with, and without, identifed items were then compared via study metrics. It should be noted that model comparisons on predictive performance metrics were completed with the larger sample and broken down by race/ethnicity group.

Evaluating Predictive Performance Each model’s performance was evaluated with K-fold cross-validation (Stone, 1974). What is now becoming an industry standard, K-fold advances beyond classic split-sample procedures, creating more stable estimates. Specifcally, instead of single split, K-fold separates a model data set into ten parts. The model is trained on nine parts and validated on the tenth. Repeating the process ten times, using a diferent tenth for validation each time, thus, using the whole sample to make predictions and assess performance (Han et al., 2011). Using all validation sets, performance metrics are averaged to produce a single score. Discrimination is measured via the receiver operating characteristics (ROCs), computing the AUC metric, which is both a percentage of accuracy and efect size. In 2005, Rice and Harris translated AUC into the following efect size ranges—negligible (0.5–0.55), small (0.56–0.63), moderate (0.64–0.70), and strong (0.71–1.00). Due to the size of our sample, we describe performance in efect size magnitude, rather than statistical signifcance. Readers should note that the average efect size range is roughly 6.5%. The H-measure represents an alternative to the AUC and is designed to overcome limitations related to distributional issues commonly present when comparing across samples (Hand, 2009). Accuracy (ACC) was also measured as the percent of correct predictions divided by all sample predictions. To calculate ACC, we use the default ROC threshold yielding the maximum true positives relative to false positives. Calibration is a class of metrics and compares predicted and observed recidivism probability. We use root mean squared error (RMSE) to measure calibration, which is the square root of the average squared deviations between the observed and predicted probabilities. 79

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The Squared error, Accuracy, and Receiver operating characteristic (SAR) score was also computed and represents a combined metric of AUC, ACC, and RMSE. Representing a single, unifed score the SAR also represents a proportion that ranges from 0 to 1.00. Both the H and SAR are less commonly reported performance metrics but as a point of reference recent SAR fndings have ranged from a 0.62 to 0.90 (Duwe & Kim, 2016; Duwe & Rocque, 2018; Hamilton et al., 2016; Tollenaar & van der Heijden, 2013) and H-measure values have ranged from < 0.01 to 0.29 (Duwe & Kim, 2016; Duwe & Rocque, 2018; Hamilton et al., 2016). Finally, while part of the computation of the AUC, the FPR is commonly considered a key indicator of race/ethnicity bias within risk assessment. In particular, research has focused on the over-classifcation of juveniles, where a tool with greater disproportionality would identify a larger FPR for minority youth. As one measure of prediction error, the FPR identifes youth with higher risk scores that are not observed to recidivate. As an additional comparison, we provide the FPRs for all models broken down by study race/ethnicity group.

Results In this section, we provide results describing the empirical fndings of our risk assessment model development eforts. Following our established hypothesis tests and analytic plan, we frst provide results from two models—one with and another without criminal history indicators. We compare these models’ discrimination, accuracy calibration, and FPR, broken down by race/ethnicity and report the results of testing H1 and H2. Next, we examine items that demonstrate evidence of disproportionality and present a third model where we test H3 and H4 by removing items with FPRs greater than 50% for any one racial/ethnic group. Finally, we compute a model that combines these two strategies, providing fndings that test H5 and H6. In the Full Model, we computed a Ridge regression which contained a total of 87 predictors, including 6 Criminal History, 10 School, 12 Associates, 17 Family, 5 Substance Abuse, 14 Mental Health, and 24 items from the Cognitions and Behavior MPACT domain.2 This model’s predictive performance metrics are provided in Table 4.1. The K-fold model AUC was 0.69, indicating a moderate level of prediction strength for the overall model. Further, the H-measure and SAR identifed 0.11 and 0.61, respectively. As anticipated, this model, which included the full battery of potential predictors, presented the highest levels of predictive performance. Notably, this model also possessed the highest FPR (39%). In the second model, the No Criminal History Model, we removed the six criminal history indicators from the prediction pool. While the indicators removed could potentially reduce the ability of the model to predict recidivism, as a result of the Ridge selection algorithm and elements of shared variance, the remaining 81 items were reweighted, supplementing for performance lost due to the noted reduced item pool. The prediction performance metrics for this model are presented in Table 4.1. Surprisingly, the K-fold model AUC was 0.68, retaining a moderate level of prediction strength overall and only a small, 1% reduction from the Full Model AUC. Further, the H-measure and SAR identifed 0.10 and 0.61, respectively. As anticipated, this model, which included all potential predictors other than criminal history, presented the highest levels of predictive performance, compared to the 50%+ FPR Removed Model and Combined Removal Model. Further, the FPR decreased only slightly (38%) a diference of only 1% compared to the Full Model. In our third model, the 50%+ FPR Removed Model, we examined the FPR for all items, and removed those with greater than 50% FPR for any one race/ethnicity category, which included White, Black, Hispanic, and Other.3 Notably, apart from one measure—the number of prior misdemeanors and felony referrals—all other criminal history items identifed an FPR of less

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Juvenile Risk Assessment Table 4.1 Model performance comparison. Table prepared by authors Metric

1. Full Model

2. No Criminal History

3. 50%+ FPR Removed

4. Combined Removal

AUC H SAR FPR

0.69 0.11 0.61 0.39

0.68 0.10 0.61 0.38

0.68 0.11 0.62 0.34

0.68 0.10 0.63 0.34

than 50% and were returned to the development pool, to be selected in the third model. Findings indicated a similar overall predictive performance to the Full Model and No Criminal History Model, where the AUC was moderate (0.68), and the H-measure and SAR identifed 0.11 and 0.62, respectively. Notably, the full sample FPR was lowest for this model at 34%, approximately a six-percentage point reduction from the Full Model. Finally, we estimated the Combined Removal Model, which removes both those items with greater than 50% FPR and the criminal history indicators. Likely due in part to the total number of dimensions within the initial MPACT item pool, the removal of 26 measures from the item pool reduces the overall model AUC and H-measure by 1 point only, compared to the Full Model (AUC = 0.68; H = 0.10). Further, model accuracy and/or calibration improved by 2 points compared to the Full Model (SAR = 0.63). The FPR for the full sample is retained at its lowest rate of 34%. Overall, it is remarkable that model performance for all youth did not vary substantially when items thought to produce greater levels of race/ethnicity bias were removed. The AUC, H, and SAR were all identifed to be within 1–2 points across all three models, suggesting that performance does not diminish substantially. Furthermore, prediction lost by reducing the development pool can be recovered through weighting adjustments of the remaining items. Finally, concerns of over-classifcation thought to be due to a model’s FPR can be reduced substantially with strategic item removals. Next, we examined model performance by race/ethnicity subgroup, focusing our evaluation on the AUC and FPR exclusively. Model fndings are provided in Table 4.2. For the full model, we identifed the highest predictive performance (AUC = 0.70) for White youth. Conversely, for Black, Hispanic, and “Other” youth, lower performance (AUC = 0.66, 0.63, and 0.68, respectively) was observed. The FPR was relatively similar for White, Black, and Hispanic groups (FPR  = 39%, 41%, and 36%, respectively). Notably, the largest impact of disproportionality is observed for “Other” youth (52%), where the FPR exceeded 50%. For our “No Criminal History” model, predictive performance remained stable for White youth (AUC = 0.70), improved slightly for Hispanic youth (AUC = 0.65), while decreasing slightly for Black and “Other” youth (AUC = 0.65 and 0.67, respectively). Regarding FPRs, all groups decreased, where a reduction was observed at 7% for “Other,” 5% for Black, 5% for Hispanic, and 2% for White youth. Furthermore, all race/ethnicity groups decreased under the 50% FPR, representing a substantial improvement from the prior model. Next, we examined performance in our model that excluded items with FPRs greater than 50%. Compared to the full model, overall predictive performance remained higher for White and “Other” groups (AUC = 0.70 and 0.68, respectively), improved slightly for Hispanic youth (AUC  = 0.66), while decreasing slightly for Black youth (AUC = 0.65). Regarding the FPR, again a 7% reduction is observed for “Other,” 7% for White, 5% for Black, and 4% for Hispanic youth. The notable diference between this model and the Full Model is that the FPR decreased substantially for both White and non-White youth.

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Leah C. Butler et al. Table 4.2 Model performance comparison by race/ethnicity. Table prepared by authors Metric

White Black Hispanic Other

1. Full Model

2. No Criminal History

3. 50%+ FPR Removed

4. Combined Removal

AUC

FPR

AUC

FPR

AUC

FPR

AUC

FPR

0.70 0.66 0.63 0.68

0.39 0.41 0.36 0.52

0.70 0.65 0.65 0.67

0.37 0.36 0.31 0.45

0.70 0.65 0.66 0.68

0.32 0.36 0.32 0.45

0.69 0.64 0.66 0.67

0.38 0.36 0.32 0.43

Note: The “Other” race/ethnicity category is comprised of nearly equal proportions of Native American and Asian/ Pacifc Islander, representing roughly 4% of the sample.

Finally, our “Combine Removal” model only slightly reduces AUC performance compared to the Full Model, where predictive discrimination decreases by 1%–3% for all race/ethnicity groups except for Hispanic youth, for whom we see a 3% increase in AUC. Notably, FPR rates remain similarly low for all groups by comparison to the Full Model. Furthermore, the three largest groups indicate FPRs within 4% of one another (32%–38%), while the “Other” group records its lowest FPR (43%). Summarizing model fndings by race/ethnicity group, dramatic shifts in AUCs performance were not observed between the four models, suggesting that strategic item removals (i.e., criminal history or high FPR items) allow items remaining in the development pool to supplement prediction and thus, retain model performance. When examining the two proposed solutions for reducing disproportionality/bias, we observe a diferent set of fndings. Regarding FPRs, the study’s representative metric for over-classifcation and disproportionality, reductions are observed with both methods. In Model 2 (removal of criminal history items), we observe only a 1% reduction of FPR overall, with substantial FPR reductions observed for non-White youth. With Model 3, we strategically removed high FPR items from the prediction pool observing a larger overall FPR reduction (6%), with substantial reductions for both White and non-White youth. In our fnal model, we combined the two approaches, fnding only small reductions in predictive performance overall and by race/ethnicity subgroup. Further, FPR rates remained low in the fnal model set.

Discussion The current study presented three approaches to modeling recidivism risk using data collected from a large (N = 241,596) MPACT assessed sample of youth. We made comparisons between the Full Model, developed with the full battery of potential predictors and the three alternative models—the No Criminal History Model, the 50%+ FPR Removed Model, and the Combined Removal Model. We tested six hypotheses to evaluate the degree to which each of these approaches (a) reduces REDs in prediction while (b) maintaining high predictive performance overall and by racial/ethnic group.

H1, H3, and H5: Expected Reduced Predictive Performance in Alternative Models Compared to Full Model—Not Supported We anticipated that higher predictive performance would be observed in the full model, with the full battery of potential predictors, over alternative models where we strategically limit the pool of potential predictors. With regard to H1, we do not fnd large diferences in 82

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overall predictive performance between the Full Model (which includes all criminal history indicators) and the No Criminal History Model, the 50%+ FPR Removed Model (which only removed one criminal history indicator), or the Combined Removal Model. With regard to H2, we do not fnd substantial diferences in overall predictive performance for the Full Model compared to the 50%+ FPR Removed Model or the Combined Removal Model. In fact, AUCs increase for Hispanic youth in the three alternative models relative to the Full Model. This fnding is likely due to the use of Ridge regression, which reweights items to adjust for reductions in explained variance that result from removing criminal history indicators. Ultimately, this fnding is promising, where implementation of similar item adjustment strategies to reduce racial/ethnic disparities in risk prediction is likely to be successful. However, we stress the importance of doing so using a tool with high dimensionality (e.g., many items), where the added benefts of sophisticated modeling, item selection, and weighting eforts, such as Ridge regression, can supplement for removal of predictive, yet biased, items while retaining predictive performance.

H2, H4, and H6: Expected Reduced False Positive Rates for Minority Youth in Alternative Models Compared to Full Model—Supported Lower FPRs were expected for minority youth in the models developed without criminal history indicators (the No Criminal History Model and the Combined Removal Model) compared to those developed with the full item development set (the Full Model) (H2). Lower FPRs were also expected for minority youth in the models developed without indicators that yielded FPRs greater than 50% for any one racial/ethnic group (the 50%+ FPR Removed Model and the Combined Removal Model) compared to models developed with those indicators (the Full Model and the No Criminal History Model). The results presented above are supportive of H2, H4, and H6. Across all racial/ethnic groups, FPRs were lower in all three alternative models compared to the Full Model. Notably, benefts were observed for all racial/ethnic groups, not only minority youth, and the FPR of the overall model was reduced in our three alternative approaches relative to the Full Model. Not only is the FPR reduced for each racial/ethnic group, when criminal history indicators are removed, but the disparity in the FPR between Black youth and White youth is reduced via the removal of criminal history indicators. Thus, removing criminal history indicators may be an efective strategy to reduce racial/ethnic bias in risk assessment. As a fnal note, we did not observe substantial diferences in either the predictive performance indicators or the FPRs in the full sample or by racial/ethnic group across the three alternative models. Thus, we suggest that future eforts to reduce racial/ethnic bias in risk assessment could involve any one of these three approaches, and that researchers should select the approach that yields the greatest reduction in FPRs for minority youth while maintaining prediction accuracy overall and for each racial/ethnic group.

Limitations Although the current study presents potentially fruitful avenues for reducing racial/ethnic bias in risk assessment based on data collected using a validated tool with a large sample of youth spanning ten states, it is not without its limitations. First, the results presented above do not explore gender diferences in risk assessment performance. Although others have examined prediction at the intersection of race and gender (see, e.g., Miller et al., 2021), such analyses were outside the scope of the current study. However, future research should evaluate the predictive performance and 83

Leah C. Butler et al.

FPRs across both race and gender (i.e., breaking down the analyses for White boys, White girls, Black boys, Black girls, Hispanic boys, Hispanic girls, boys in the “Other” category, and girls in the “Other” category). Not only is it possible that the three strategies presented here could reduce gender disparities in risk prediction but it is also possible that these approaches could address the joint efect of race and gender on prediction. Second, the current study did not account for geographic variation in the racial/ethnic makeup of the youth population. Regions where minority youth make up larger proportions of the population may see that these three approaches work better to reduce FPRs for minority youth while maintaining predictive performance. Further, because Asian and Native American youth each comprised only 2% of the sample (4% total), they were combined into the “Other” category because White, Black, and Hispanic youth would have a greater infuence algorithm by which predictors were selected and weighted. Geographic regions with larger populations of Asian youth, Native American youth, or youth falling into the racial/ethnic categories that comprise the rest of the “Other” category, could also implement these strategies, and may identify for removal of diferent items that yield higher FPRs for those youth. Third, the current study only addressed models that predict general recidivism, also known as broadband models. While many specialized prediction models, referred to as narrowband models, focus on predicting violence, sex, and other forms of recidivism. While beyond the scope of this study, similar issues of disproportionality and bias are likely presented in said models. Further extensions of study concepts examined here should be expanded to include narrowband predictions. Finally, items were removed that were theoretically or empirically identifed to have disproportionate representation. By contrast, adding items that are more representative of youth risk generally, should also be a goal. As demonstrated, the MPACT’s high dimensionality allowed for “weighting substitution” for remaining items, supplementing for prediction loss. Future research should attempt to introduce new items, either similar or distinct to items removed, with an efort to include measures that are culturally and universally appropriate for all youth.

Policy Implications The current study presents three approaches to improving risk prediction for minority youth and reducing racial/ethnic disparities in prediction performance. Policy makers should consider implementing these approaches with their current instrument. However, agencies should be sure to assess which strategy (if any) yields the greatest reduction in FPRs across racial/ethnic groups without substantially reducing the AUC. One method—removing criminal history or removing items that yield FPRs greater than 50%—might be optimal depending on the population and the tool being used and combining both methods of removal may have a greater impact than either method separately depending on the population as well. Relatedly, agencies should also be aware that not all tools can be modifed to achieve the results demonstrated. The MPACT is somewhat unique in that its high dimensionality allows for item removal, without substantial reduction in predictive performance. Tools with fewer items may demonstrate greater performance loss. Furthermore, other tool developers may not be open to the idea of local tool adjustments, viewing their assessments as of-the-shelf and un-modifable. Most practitioners are unaware that, while some tools are proprietary, the data collected is owned locally by the agency and can be provided to independent researchers to review and evaluate alternative versions. For agencies seeking to adopt a new, or change assessment provider should

84

Juvenile Risk Assessment

consider not only the tool’s recent evaluations of bias but also how the provider plans to evaluate bias following implementation and their willingness to optimize current models to meet the needs of the agency. Beyond the approaches used in the current study that seek to establish equality in prediction across racial/ethnic groups, future research should consider whether other approaches may produce equitable predictions of risk for racial/ethnic minority youth. However, we caution researchers considering weighting items diferently for each racial/ethnic subgroup to optimize prediction, rather than using the same model for all groups. There are ethical concerns an approach like this would present—does creating separate models based on youth race mean that decisions made using those models of risk would be based on race? Will separately weighted items introduce greater bias for minority youth, increasing weight and focus on criminal history and other culturally bias metrics? Further, are there legal ramifcations for scoring youth assessments diferently based on race/ethnicity, even if completed in an efort to reduce known system biases? Nonetheless, innovative thinking could identify other approaches that pursue both equality and equity. To summarize, the current study makes two key contributions to the feld. First, we demonstrate that using a risk assessment tool with high dimensionality, removing predictors that contribute to test bias across racial/ethnic groups can be accomplished without sacrifcing predictive performance. Second, we show that our two strategies for ameliorating racial bias, both separately and combined, can reduce FPRs for all racial/ethnic groups and reduce the gap in FPRs between minority youth and their White counterparts. These fndings reafrm previous research showing that removing static factors like criminal history can help reduce bias in risk classifcation (Miller et al., 2021; Perrault et al., 2017; Thompson & McGrath, 2012; Vincent et al., 2011) and suggest that some dynamic factors may also be removed from models developed for all youth if they are contributing to poor prediction for certain racial/ ethnic groups (see also Hamilton et al., 2020; Schwalbe et al., 2006, 2007). Further, for non-justice agencies, or those without the ability to assess criminal history, developing an assessment model with the ability to predict youth risk without justice indicators is a substantial advancement itself. Ultimately, the current study takes a step forward in the ongoing endeavor to address the role risk assessment may play in perpetuating DMC and REDs in the juvenile justice system.

Notes 1 Readers should note that this sample was collected as part of a larger Ofce of Juvenile Justice and Delinquency Prevention (OJJDP) study (see Hamilton et al., 2021). 2 Readers should note that, due to space limitations, a table of coefcients and items weights is not provided but can be made available upon author request. 3 Items removed include, “Number of prior felony & misdemeanor referrals,” “Youth enrolled in community school past 6 months,” “Current School Enrollment Status,” “Current of expulsions and suspensions since frst grade,” “History of expulsions and suspensions since frst grade,” “Age at frst expulsion or suspension,” “Teachers, staf, or coaches youth likes/feels comfortable talking with,” “Currently living with/in: Transient/Foster Home,” “Parents consistent appropriate rewards for good behavior,” “Consistent appropriate consequences for bad behavior,” “Family provides opportunities for youth to participate in family activities and decisions afecting youth,” “Problem history of siblings currently involved with the household,” “History of petitions fled,” “History of suicide ideation,” “History of witnessing violence,” “History of drug use,” “Use of Cocaine/Crack in prior 6 months,” “Primary purpose for committing crime(s) in last 6 months: Power,” “Primary purpose for committing crime(s) in last 6 months: Money,” and “Skills in dealing with others.”

85

Leah C. Butler et al.

Appendix 4.1 Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Age

0

6

%

12 or younger

2.1

13

4.8

14

11.0

15

19.2

16

27.4

17

28.1

18 or older

7.5

Race

0

5

White

50.2

Black

36.6

Hispanic

10.1

Other

4.1

Recidivism within 12 months Any Violent Property Drug Sex Felony

0 0 0 0 0 0

1 1 1 1 1 1

0

4

22.7 10.9 5.8 8.2 0.4 11.3

Criminal History Age at frst ofense Over 16

9.9

16

10.7

15

15.7

13–14

39.3

Under 13

24.3 0

Misdemeanor referrals

3

None or one

51.9

Two

20.6

Three or four

17.9

Five or more

9.5 0 0 0

Felony referrals: One or more Weapon referrals: One or more Against-person misdemeanor referrals

86

2 1 2

64.9 7.7

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

%

None

58.8

One

28.9

Two or more

12.2

Against-person felony referrals

0

4

None

67.9

One or two

30.7

Three or more

1.4

Sexual misconduct misdemeanor referrals: One or more Felony sex ofense referrals: One or more Confned to detention

0 0 0

1 1 6

13.6 13.3

None

39.5

One

14.0

Two or more

17.4

Other confnement

0

2

None

42.3

One

31.6

Two or more

26.1

Escapes

0

2

None

90.7

One

9.1

Two or more

0.2

Failure-to-appear in court warrants

0

2

None

65.4

One

24.4

Two or more

10.2

School History Youth is a special education student History of expulsions and suspensions since frst grade

0 −1

1 2

33.9

No expulsions/suspensions

16.9

1 expulsion/suspension

16.1

More than 1 expulsion/suspension

67.0

Age at frst expulsion or suspension

−1

2

No expulsions

17.2

First expelled: 14–18 years old

34.1

First expelled: 5–13 years old

48.7

Youth enrolled in community school past 6 months

−2

2

84.7 (Continued)

87

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

−1

2

%

Current School Status Enrollment status Graduated/GED/Enrolled full-time

77.9

Enrolled part-time

7.2

Suspended

9.7

Current status unknown

5.2

Believes there is value in getting an education

0

2

Believes getting education is of value

54.9

Somewhat believes education is of value

39.4

Does not believe education is of value

5.7

Believes school provides an encouraging environment

0

2

Believes school is encouraging

36.2

Somewhat believes school is encouraging

51.4

Does not believe school is encouraging

12.5

Teachers, staf, or coaches youth likes/feels comfortable talking with

−2

0

Close to 2 or more adults at school

13.8

Close to 1 adult at school

23.4

Not close to any adult at school

62.8

Involvement in school activities during most recent term

−1

2

Involved in 2 or more school activities

9.5

Involved in 1 school activity

15.2

Interested but not involved in any activities

43.1

Not interested in school activities

32.2

Conduct

−2

2

Recognition for good school behavior

5.1

No problems with school conduct

38.5

School problems reported by teachers

16.5

School problem calls to parents

39.9

Number of expulsions and suspensions during most recent term

0

3

No recent expulsion/suspension

56.5

1 recent expulsion/suspension

14.8

2 or 3 recent expulsions/suspensions

9.2

Over 3 recent expulsions/suspensions

19.5

Attendance

0

3

No unexcused absences

18.7

Some partial-day unexcused absences

11.3

88

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Some full-day unexcused absences

% 54.0

Truancy petition/equivalent or withdrawn

16.1

Academic performance

−2

2

Honor student (mostly As)

1.6

Above 3.0 (mostly As and Bs)

15.0

2.0–3.0 (mostly Bs and Cs, no Fs)

35.5

1.0–2.0 (mostly Cs and Ds, some Fs)

30.0

Below 1.0 (some Ds and mostly Fs)

18.0

Assessment of likelihood youth will stay in school and graduate

0

2

Assessed as very likely to graduate

34.8

Assessed as uncertain to graduate

55.2

Assessed as not likely to graduate

10.0

Historic Use of Free Time History of pro-social structured recreational activities within past 5 yrs

−2

0

Has been involved in 2 or more structured activities

20.3

Has been involved in 1 structured activity

29.0

Never involved in structured activities

50.7

History of unstructured pro-social recreational activities within past 5 yrs

−2

0

Has been involved in 2 or more pro-social unstructured activities

19.3

Has been involved in 1 pro-social unstructured activity

32.5

Never involved in unstructured pro-social activities

48.2

Current Use of Free Time Current interest and involvement in supervised, structured pro-social recreational activities Currently in 1 structured activity

−2

0 18.8

Currently interested but not involved in structured activity

24.2

Currently not interested in structured activities

57.0

Current interest and involvement in pro-social unstructured recreational activities −2

1

Currently involved in 2 or more unstructured activities

12.2

Currently involved in 1 unstructured activity

20.9

Currently not interested in any unstructured activities

50.1

Currently not interested but not involved in unstructured activities

13.1

Employment History History of employment: Has been employed History of successful employment: Has been successfully employed History of problems while employed: Fired or quit because of problems

−1 −1 0

0 0 1

13.5 42.7 9.0 (Continued)

89

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

History of positive employment relationships

−2

0

%

Had 2 or more positive relationships

10.0

Had 1 positive relationship

19.2

Never had any positive relationships

70.7

Current Employment Understanding of what is required to maintain a job

−1

0

Has demonstrated or has knowledge to maintain job

48.7

Lacks knowledge to maintain job

51.3

Current interest in employment

−4

0

Too young for employment consideration

43.6

Not employed but highly interested in employment

24.7

Somewhat interested in employment

24.1

Not interested in employment

7.6

Current employment status

−2

0

Employment currently going well

6.7

Problems with current employment

0.2

Not currently employed

93.1

Current positive personal relationship(s) with employer(s) or adult coworker(s) −2

0

At least 1 current positive job relationship

14.9

Currently employed: no positive relationships

0.9

Not currently employed

84.3

History of Relationships History of positive adult nonfamily relationships no connected to school or employment 2 or more positive past adult relationships

−2

0 18.4

1 positive adult relationship

26.0

No positive adult relationships

55.6

History of anti-social friends

−1

2

Had only pro-social friends

8.0

Never had consistent friends or had pro-social and anti-social friends

72.2

Had only anti-social friends

16.9

Has been a gang member/associate

3.0

Current Relationships Current positive adult nonfamily relationships not connected to school or employment 3 or more current positive adult relationships

90

−3

0 7.1

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

%

2 current positive adult relationships

10.2

1 current positive adult relationship

25.5

No current positive adult relationships

57.1

Current pro-social community ties

−2

0

Strong pro-social community ties

4.2

Some pro-social community ties

44.3

No pro-social community ties

51.5

Current friends youth spends time with

−1

2

Only pro-social friends

16.0

No consistent friends or pro-social and anti-social friends

69.7

Only anti-social friends

12.0

Gang member/associate

2.3

Currently in a romantic, intimate, or sexual relationship

0

2

Not romantically involved

80.1

Romantically involved: pro-social person

14.6

Romantically involved: anti-social person

5.3

Currently admires anti-social peers

0

2

Does not admire anti-social peers

52.8

Somewhat admires anti-social peers

33.9

Admires, emulates anti-social peers

13.3

Current resistance to anti-social peer infuence

0

3

Does not associate with anti-social peers

41.0

Usually resists anti-social peer infuence

28.5

Rarely resists anti-social peer infuence

26.7

Leads anti-social peers

3.8

Family History History of court-ordered or voluntary out-of-home and shelter care placements exceeding 30 days History of running away or getting kicked out of home

0

1

0

2

No history

21.8

61.2

1 instance

11.1

More than 1 instance

27.7 −1 −1 0 0 0

History of petitions fled No family history jail/imprisonment Mother/female caretaker history jail/imprisonment Father/male caretaker history jail/imprisonment Other family member history jail/imprisonment

0 0 1 1 1

35.2 57.8 30.7 34.1 16.0 (Continued)

91

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Has been living under any adult supervision

0

1

98.0

%

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2

7.5 3.3 12.0 34.5 13.1 13.1 6.8 1.1 0.5 0.1 12.0 8.1 0.3 12.2 0.4 0.7

Current Living Arrangements Currently living with/in: Transient A foster home Alone Biological mother Biological father Nonbiological mom Nonbiological dad Long-term parental partner Short-term parental partner Parent’s roommate Grandparent(s) Another relative His/her child A family friend Romantic partner A friend Annual combined income youth and family Up to poverty line x 3

71.3

Up to poverty line x 4 or higher

28.7

Individual currently involved in the household has jail/imprisonment history 0 Problem history of parents currently involved with the household

1

30.4

No problem history of parents involved with the household Alcohol problem Drug problem Mental health problem Physical health problem Employment problem Problem history of sibling involved with the household

−1 0 0 0 0 0

0 1 1 1 1 1

59.4 22.1 21.5 17.9 19.0 22.5

No sibling Drug problem Mental health problem Physical health problem Employment problem Support network for family

−1 0 0 0 0 −2

0 1 1 1 1 0

36.0 16.9 14.5 12.7 13.2

Strong support network

18.6

Some support network

40.1

No support network

41.3

Family willingness to help support youth

0

Consistently willing to support

2 61.8

92

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Inconsistently willing to support youth

% 34.8

Little or no willingness to support youth

3.4

Family provides opportunities for youth to participate in family activities and decisions afecting youth Opportunities for involvement provided

−1

2 22.2

Some opportunities for involvement provided

58.1

No opportunities for involvement provided

19.8

Has run away or been kicked out Family member(s) youth feels close to or has good relationship with

0

1

23.2

Not close to anyone Close to father Close to mother Close to female sibling Close to male sibling Close to other family member Level of confict in the household

0 0 0 0 0 0 0

1 1 1 1 1 1 3

18.7 27.4 50.2 24.1 24.9 28.7

Some confict that is well-managed

70.9

Verbal intimidation, yelling, heated arguments

21.2

Threats of physical abuse

3.1

Domestic violence: physical/sexual abuse

4.9

Parental supervision

0

2

Consistent supervision

38.6

Sporadic supervision

46.3

Inadequate supervision

15.1

Parental authority and control

0

2

Youth usually obeys and follows rules

37.0

Youth sometimes obeys or obeys some rules

47.1

Youth consistently disobeys and/or is hostile

16.0

Consistent appropriate consequences for bad behavior

0

3

Consistently appropriate punishment

42.1

Consistently overly severe punishment

9.0

Inconsistent or erratic punishment

13.1

Consistently insufcient punishment

35.8

Consistent appropriate rewards for good behavior

0

2

Consistently appropriate rewards

43.1

Consistently overly indulgent/overly protective

18.6

Inconsistent or erratic rewards

38.3

Parental characterization of youth’s anti-social behavior Disapproves of anti-social behavior

−1

2 85.6 (Continued)

93

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Accepts anti-social behavior as okay

% 14.3

Proud of anti-social behavior

0.1

Alcohol and Drug History History of alcohol use No use Disrupted education Caused family confict Interfered with keeping pro-social friends Caused health problems Contributed to criminal behavior Has had tolerance Has had withdrawal History of drug use

−1 0 0 0 0 0 0 0

0 1 1 1 1 1 1 1

48.1 25.7 28.1 26.0 14.2 27.2 15.3 12.5

No use Disrupted education Caused family confict Interfered with keeping pro-social friends Caused health problems Contributed to criminal behavior Has had tolerance Has had withdrawal History of referrals for drug/alcohol assessment

−1 0 0 0 0 0 0 0 0

0 1 1 1 1 1 1 1 3

35.7 32.9 34.3 31.1 15.1 34.2 17.7 13.1

Never referred for drug/alcohol assessment or diagnosed as no problem

69.4

Referred but never assessed

5.5

Diagnosed as abuse

12.3

Diagnosed as dependent/addicted

12.9

History of attending alcohol/drug education classes

0

3

Never attended drug/alcohol education classes

74.8

Voluntarily attended drug/alcohol education classes

2.1

Attended classes by parent, school, or other agency request

6.9

Attended classes at court direction

16.2

History of participating in alcohol/drug treatment program

0

2

Never participated in treatment program

75.8

Participated once in treatment program

16.5

Participated several times in treatment programs

7.7

Youth currently using alcohol/drugs

0

1

44.7

−1

0

52.6

Current Alcohol and Drugs Current alcohol use Not currently using alcohol

94

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Disrupting education Causes family confict Interferes with pro-social friends Causes health problems Contributes to criminal behavior Has tolerance Has withdrawal Current drug use

0 0 0 0 0 0 0

1 1 1 1 1 1 1

21.9 23.8 22.5 13.7 23.5 14.6 12.1

No current drug use Disrupting education Causes family confict Interferes with pro-social friends Causes health problems Contributes to criminal behavior Has tolerance Has withdrawal Amphetamines usage Cocaine usage Heroin usage Marijuana usage Other drug usage Alcohol/drug treatment program participation

−1 0 0 0 0 0 0 0 0 0 0 0 0 −2

0 1 1 1 1 1 1 1 1 1 1 1 1 1

32.6 26.9 28.2 25.7 15.0 27.0 15.8 12.5 2.2 8.7 0.4 37.0 2.8

Drug/alcohol treatment not warranted

%

17.8

Currently attending treatment program

10.7

Successfully completed treatment program

45.8

Not currently attending needed treatment program

25.8

Mental Health History History of physical abuse Not physically abused Abused by family Abused in the home Abused outside of the family Abused in a foster home Abused with a weapon History of witnessing violence

−1 0 0 0 0 0

0 1 1 1 1 1

79.1 21.3 16.2 15.7 12.8 13.3

Has not witnessed violence Witnessed violence in the house Witnessed violence in a foster home Witnessed violence in the community Family member killed as a result of violence History of sexual abuse

−1 0 0 0 0

0 1 1 1 1

39.5 25.1 12.9 41.5 13.2

−1

0

86.9

Not sexually abused

(Continued)

95

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item Abused by a family member Abused by nonfamily member History of being a victim of neglect History of ADD/ADHD

Min.

Max.

%

0 0

1 1

16.2 49.7

0 0

1 2

12.9

No history of ADD/ADHD

74.9

Diagnosed: Only medication prescribed, or only treatment prescribed

19.7

ADD/ADHD medication and treatment prescribed

5.3

History of mental health problems Anger/irritability

0 0

1 3

18.6

No history of anger/irritability

46.2

Occasional feelings of anger/irritability

35.2

Consistent feelings of anger/irritability

10.5

Aggressive reactions to feelings of anger/irritability

8.1

Depression

0

3

No history

64.8

Occasional feelings

26.8

Consistent feelings

7.2

Impairment in daily tasks

1.2

Somatic complaints

0

3

No history

89.9

One or two

8.5

Three or four

1.0

Five or more

0.6

History of unusual thoughts, hallucinations, or beliefs Presence of traumatic event Health insurance

0 0 −2

1 1 0

Private insurance

2.1 11.9 14.2

Public insurance (Medicaid)

49.5

No health insurance

36.2

Current mental health problem(s)

0

1

−1

5

24.4

Current Mental Health Suicidal behavior or ideation No recent thoughts of suicide

22.8

History of suicidal ideation or self-mutilation

3.0

Current self-mutilation, feelings of hopelessness, or history of making suicidal plan

0.5

Current suicidal ideation

60.4

Recent suicide plan

0.2

96

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Recent suicide attempt

% 13.0

Diagnosed with ADD/ADHD

0

2

No ADD/ADHD diagnosis or no medication prescribed

89.7

Currently taking ADD/ADHD medication

5.7

ADD/ADHD medication prescribed but not taking

4.5

Mental health treatment prescribed, excluding ADD/ADHD treatment

0

2

No current mental health problem or no treatment prescribed

90.4

Attending mental health treatment

7.5

Mental health treatment prescribed but not attending

2.1

Mental health medication prescribed, excluding ADD/ADHD medication

0

2

No current mental health problem or no medication prescribed

90.9

Currently taking mental health medication

7.8

Mental health medication prescribed but not taking

1.3

Mental health problems interfere with working with the youth

0

1

0

3

13.1

Attitudes/Behaviors Primary emotion when committing last crime(s) in last 6 months Nervous, afraid, worried, uncertain

45.4

Excited or stimulated

26.8

Unconcerned or indiferent

25.5

Confdent/bragging

2.2

Primary purpose for committing crime(s) in last 6 months Anger Revenge, power Impulse Sexual desire Money, material gain, drugs Excitement, amusement Status, acceptance, attention Optimism

0 0 0 0 0 0 0 −2

1 1 1 1 1 1 1 2

13.6 0.3 15.4 6.0 16.9 11.3 9.4

High aspirations: Sense of purpose, commitment to better life

11.8

Normal aspirations: Some sense of purpose

72.3

Low aspirations: Little sense of purpose or plans for better life

15.1

Believes nothing matters: He or she will be dead before long Impulsive, acts before thinking

0.8 −1

Uses self-control: Usually thinks before acting

2 13.1

Uses some self-control: Sometimes thinks before acting

57.1

Impulsive: Often acts before thinking

20.9 (Continued)

97

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Highly impulsive: Usually acts before thinking

% 8.8

Belief in control over anti-social behavior

−1

1

Believes can stop anti-social behavior

34.8

Somewhat believes can stop anti-social behavior

62.0

Believes cannot stop anti-social behavior

3.1

Empathy, remorse, sympathy, or feelings for victim(s)

−1

1

Has empathy for victim(s)

26.6

Has some empathy for victim(s)

57.4

Does not have empathy for victim(s)

16.0

Respect for property of others

0

2

Respects property of others

62.9

Respects personal property but not publicly accessible property

30.9

No respect for property

6.2

Respect for authority fgures

0

3

Respects most authority fgures

72.3

Resents most authority fgures

24.9

Defes or is hostile toward most authority fgures

2.8

Attitude toward pro-social rules/conventions in society Accepts responsibility for anti-social behavior

1 0

2 3

91.0

Accepts responsibility for behavior

56.3

Minimizes, denies, justifes, excuses, or blames others for behavior

35.1

Accepts own anti-social behavior as okay

6.7

Proud of own anti-social behavior

1.9

Belief in successfully meeting conditions of court supervision

−1

1

Believes will be successful under supervision

50.4

Unsure of success under supervision

47.9

Does not believe will be successful under supervision

1.8

Aggression Tolerance for frustration

0

2

Rarely gets upset/temper tantrums

51.4

Sometimes gets upset/temper tantrums

37.1

Often gets upset/temper tantrums

11.5

Hostile interpretation of actions and intentions of others

0

2

Primarily positive view of intentions of others

71.2

Primarily negative view of intentions of others

25.4

Primarily hostile view of intentions of others

3.4

98

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Belief in yelling/verbal aggression to resolve disagreement/confict

0

2

%

Believes verbal aggression is rarely appropriate

52.3

Believes verbal aggression is sometimes appropriate

39.2

Believes verbal aggression is often appropriate

8.4

Belief in fghting/physical aggression to resolve disagreement/confict

0

3

Believes physical aggression is never appropriate

44.0

Believes physical aggression is rarely appropriate

27.1

Believes physical aggression is sometimes appropriate

24.7

Believes physical aggression is often appropriate

4.2

Reports/evidence of violence not in criminal history No reports Violent destruction of property Violent outbursts, displays of temper, uncontrolled anger Deliberately inficted physical pain Used/threatened with a weapon Fire starting reports Animal cruelty reports Reports/evidence of sexual aggression not in criminal history No reports Aggressive sex Sex for power Young sex partners Sex with a child Voyeurism Exposure

−1 0 0 0 0 0 0

0 1 1 1 1 1 1

49.8 17.2 32.4 17.7 15.1 13.5 12.5

−1 0 0 0 0 0 0

0 1 1 1 1 1 1

93.8 12.7 12.1 12.5 12.5 12.1 12.3

−1

2

Skills Consequential thinking Good consequential thinking and acting

6.6

Identifes consequences of actions

42.0

Understands about consequences to actions

45.8

Does not understand about consequences of actions

5.5

Goal setting

−1

2

Sets realistic goals

19.4

Sets somewhat realistic goals

61.5

Sets unrealistic goals

8.7

Does not set any goals

10.4

Problem-solving

−2

Applies appropriate solutions to problem behaviors

1 5.2

Thinks of solutions for problem behaviors

19.4 (Continued)

99

Leah C. Butler et al. Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Identifes problem behaviors

% 63.2

Cannot identify problem behaviors

12.2

Situational perception

−2

1

Selects the best time and place for best skill

10.2

Chooses best skill but not best time and place

22.3

Does not choose the best pro-social skill

55.7

Cannot analyze the situation for use of a pro-social skill

11.8

Dealing with others

−2

1

Often uses advanced social skills in dealing with others

6.0

Sometimes uses advanced social skills in dealing with others

27.0

Has basic social skills, lacks advanced skills in dealing with others

58.6

Lacks basic social skills in dealing with others

8.4

Dealing with difcult situations

−1

2

Often uses skills in dealing with difcult situations

6.8

Sometimes uses skills in dealing with difcult situations

64.9

Rarely uses skills in dealing with difcult situations

16.2

Lacks skills in dealing with difcult situations

12.1

Dealing with feelings/emotions

−1

2

Often uses skills in dealing with feelings/emotions

6.1

Sometimes uses skills in dealing with feelings/emotions

64.4

Rarely uses skills in dealing with feelings/emotions

17.1

Lacks skills in dealing with feelings/emotions

12.4

Monitoring of internal triggers that can lead to trouble

−1

1

Actively monitors/controls internal triggers

6.3

Identifes internal triggers

72.2

Cannot identify internal triggers

21.5

Monitoring of external triggers that can lead to trouble

−1

1

Actively monitors/controls external triggers

6.9

Identifes external triggers

73.9

Cannot identify external triggers

19.2

Control of impulsive behaviors that get youth into trouble

−2

1

Never a problem with impulsive behavior

4.5

Uses techniques to control impulsive behavior

12.4

Knows techniques to control impulsive behavior

56.2

Lacks techniques to control impulsive behavior

26.9

Control of aggression

−2

100

2

Juvenile Risk Assessment Assessment Item-Level Descriptive Statistics: All States (N = 241,596) Domain/Item

Min.

Max.

Never a problem with aggression

% 12.1

Often uses alternatives to aggression

15.7

Sometimes uses alternatives to aggression

52.6

Lacks alternatives to aggression

12.2

Rarely uses alternatives to aggression

7.4

Appendix 4.2 Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

1.9 4.4 10.2 18.2 26.6 30.9 7.7

2.6 5.3 11.4 19.3 26.7 26.6 8.1

1.4 4.6 13.6 23.4 34.2 19.3 3.5

1.9 5.0 10.7 19.6 26.4 28.3 8.1

21.2 8.9 6.3 7.0 0.4 9.8

23.5 14.0 3.7 11.2 0.4 13.8

24.7 10.3 8.1 4.9 0.3 11.2

32.5 11.2 14.4 5.4 0.3 13.0

Over 16 16 15 13–14 Under 13 Misdemeanor referrals

11.9 12.4 16.8 38.1 20.7

9.8 9.4 14.6 38.6 27.6

1.6 7.6 14.1 47.1 29.6

7.1 10.0 16.1 40.5 26.3

None or one Two Three or four Five or more Felony referrals: One or more Weapon referrals: One or more

52.4 20.8 17.6 9.2 58.7 6.7

51.4 20.4 18.3 9.9 69.0 8.4

55.0 20.2 17.2 7.6 83.3 9.3

41.1 21.4 21.7 15.8 58.4 10.0

Age 12 or younger 13 14 15 16 17 18 or older Recidivism within 12 months Any Violent Property Drug Sex Felony Criminal History Age at frst ofense

(Continued)

101

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

None One Two or more Against-person felony referrals

64.5 24.2 11.3

55.8 30.4 13.8

41.5 48.4 10.1

59.7 24.5 15.8

None One or two Three or more Sexual misconduct misdemeanor referrals: One or more Felony sex ofense referrals: One or more Confned to detention

76.9 22.2 0.9 7.9 9.0

61.9 35.9 2.2 13.4 12.2

42.4 56.5 1.1 45.0 40.7

77.1 21.9 1.0 4.8 6.3

None One Two or more Other confnement

46.6 27.1 26.3

44.2 30.3 25.5

17.3 59.7 23.0

31.4 27.5 41.1

None One Two or more Escapes

75.7 18.3 6.0

65.4 24.8 9.8

38.6 38.8 22.6

81.4 12.5 6.1

None One Two or more Failure-to-appear in court warrants

95.6 4.1 0.3

90.9 9.0 0.1

64.2 35.4 0.3

95.9 3.5 0.7

74.5 16.8 8.6

62.9 25.3 11.8

27.8 62.0 10.2

68.0 15.3 16.7

Youth is a special education student History of expulsions and suspensions since frst grade

28.4

35.3

57.7

29.5

No expulsions/suspensions 1 expulsion/suspension More than 1 expulsion/suspension Age at frst expulsion or suspension

19.7 17.0 63.3

15.4 14.3 70.3

13.1 11.5 75.4

16.4 16.4 67.2

No expulsions First expelled: 14–18 years old First expelled: 5–13 years old Youth enrolled in community school past 6 months

19.8 33.6 46.5 83.5

15.9 38.7 45.4 86.5

12.5 17.3 70.2 81.2

16.1 22.6 61.3 84.3

76.5 7.3

81.0 5.5

74.8 11.5

74.7 13.0

Against-person misdemeanor referrals

None One Two or more School History

Current School Status Enrollment status Graduated/GED/Enrolled full-time Enrolled part-time

102

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Suspended Current status unknown Believes there is value in getting an education

Black %

Hispanic %

Other %

9.7 6.6

8.6 4.9

13.3 0.3

11.0 1.3

Believes getting education is of value Somewhat believes education is of value Does not believe education is of value Believes school provides an encouraging environment

52.2 41.7 6.1

56.9 39.2 3.9

63.9 27.9 8.2

45.4 42.9 11.7

Believes school is encouraging Somewhat believes school is encouraging Does not believe school is encouraging Teachers, staf, or coaches youth likes/feels comfortable talking with Close to 2 or more adults at school Close to 1 adult at school Not close to any adult at school Involvement in school activities during most recent term

32.9 53.2 13.9

36.5 54.5 8.9

52.5 32.9 14.5

31.4 44.8 23.8

14.5 20.6 64.9

13.1 22.8 64.1

11.5 38.9 49.6

18.2 24.3 57.5

Involved in 2 or more school activities Involved in 1 school activity Interested but not involved in any activities Not interested in school activities Conduct

9.0 14.5 41.4 35.1

10.3 15.6 48.4 25.7

9.3 17.1 35.3 38.3

7.7 14.0 35.2 43.1

Recognition for good school behavior No problems with school conduct School problems reported by teachers School problem calls to parents Number of expulsions and suspensions during most recent term No recent expulsion/suspension 1 recent expulsion/suspension 2 or 3 recent expulsions/suspensions Over 3 recent expulsions/suspensions Attendance

4.7 38.6 14.5 42.3

5.7 39.9 17.8 36.7

4.7 34.9 22.8 37.6

4.5 34.4 15.2 46.0

60.2 15.6 9.8 14.4

59.9 12.5 7.7 20.0

27.0 16.5 9.9 46.5

52.3 22.9 15.0 9.9

No unexcused absences Some partial-day unexcused absences Some full-day unexcused absences Truancy petition/equivalent or withdrawn Academic performance

17.1 11.7 53.8 17.4

20.3 10.7 56.0 13.0

23.0 10.3 49.1 17.6

12.4 13.3 47.9 26.5

Honor student (mostly As) Above 3.0 (mostly As and Bs) 2.0–3.0 (mostly Bs and Cs, no Fs) 1.0–2.0 (mostly Cs and Ds, some Fs) Below 1.0 (some Ds and mostly Fs) Assessment of likelihood youth will stay in school and graduate

1.8 15.3 32.0 31.3 19.6

1.3 14.4 40.8 28.9 14.5

1.3 16.4 36.3 27.3 18.7

1.5 11.6 26.6 30.2 30.1

(Continued)

103

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item Assessed as very likely to graduate Assessed as uncertain to graduate Assessed as not likely to graduate

White %

Black %

Hispanic %

Other %

35.1 54.7 10.2

35.5 57.4 7.0

31.5 51.8 16.7

31.6 49.5 18.8

20.8 27.6 51.6

19.4 28.8 51.8

18.5 35.5 46.0

28.3 34.1 37.6

21.4

16.1

16.9

29.8

30.6 48.0

31.8 52.1

42.3 40.8

38.5 31.7

16.6 23.9 59.5

17.6 25.0 57.4

32.0 20.9 47.1

23.2 30.1 46.8

13.4 20.0 49.9 16.7

9.3 19.2 55.1 16.3

14.2 29.1 38.4 18.4

18.8 27.3 33.2 20.7

14.6 40.5

11.9 32.5

11.8 78.3

21.3 41.6

10.8

5.8

9.9

14.9

9.6 16.2 74.2

8.3 17.0 74.7

18.8 44.0 37.2

8.3 14.6 77.0

46.1

45.9

70.9

50.0

Historic Use of Free Time History of pro-social structured recreational activities within past 5 yrs Has been involved in 2 or more structured activities Has been involved in 1 structured activity Never involved in structured activities History of unstructured pro-social recreational activities within past 5 yrs Has been involved in 2 or more pro-social unstructured activities Has been involved in 1 pro-social unstructured activity Never involved in unstructured pro-social activities Current Use of Free Time Current interest and involvement in supervised, structured pro-social recreational activities Currently in 1 structured activity Currently interested but not involved in structured activity Currently not interested in structured activities Current interest and involvement in pro-social unstructured recreational activities Currently involved in 2 or more unstructured activities Currently involved in 1 unstructured activity Currently not interested in any unstructured activities Currently not interested but not involved in unstructured activities Employment History History of employment: Has been employed History of successful employment: Has been successfully employed History of problems while employed: Fired or quit because of problems History of positive employment relationships Had 2 or more positive relationships Had 1 positive relationship Never had any positive relationships Current Employment Understanding of what is required to maintain a job Has demonstrated or has knowledge to maintain job

104

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Lacks knowledge to maintain job Current interest in employment

53.9

54.1

29.1

50.0

Too young for employment consideration Not employed but highly interested in employment Somewhat interested in employment Not interested in employment Current employment status

48.2 23.3 21.3 7.1

45.7 24.5 23.0 6.9

16.4 32.4 40.3 10.9

34.3 24.6 28.2 12.9

Employment currently going well Problems with current employment Not currently employed Current positive personal relationship(s) with employer(s) or adult coworker(s) At least 1 current positive job relationship Currently employed: no positive relationships Not currently employed

7.7 0.2 92.0

3.7 0.1 96.1

11.5 0.5 88.0

9.0 0.4 90.6

15.8 0.8 83.6

15.5 0.6 83.9

10.2 1.9 87.9

11.5 1.1 87.4

18.7 25.4 55.9

17.4 25.7 56.8

18.2 28.6 53.2

25.6 31.3 43.1

8.3 77.4

9.7 69.9

1.1 51.5

4.2 80.6

11.8 2.4

16.6 3.7

44.5 2.9

11.7 3.5

7.4 10.3 24.6 57.7

6.7 9.6 25.5 58.2

6.5 11.3 28.5 53.7

10.1 12.7 30.6 46.6

4.4 43.6 52.1

4.0 42.4 53.7

3.8 52.4 43.8

5.4 53.0 41.5

16.2 71.1 10.8

20.3 65.6 11.2

1.9 76.9 19.4

8.3 73.1 14.5

History of Relationships History of positive adult nonfamily relationships no connected to school or employment 2 or more positive past adult relationships 1 positive adult relationship No positive adult relationships History of anti-social friends Had only pro-social friends Never had consistent friends or had pro-social and anti-social friends Had only anti-social friends Has been a gang member/associate Current Relationships Current positive adult nonfamily relationships not connected to school or employment 3 or more current positive adult relationships 2 current positive adult relationships 1 current positive adult relationship No current positive adult relationships Current pro-social community ties Strong pro-social community ties Some pro-social community ties No pro-social community ties Current friends youth spends time with Only pro-social friends No consistent friends or pro-social and anti-social friends Only anti-social friends

(Continued)

105

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Gang member/associate Currently in a romantic, intimate, or sexual relationship

Black %

Hispanic %

Other %

1.9

2.8

1.8

4.0

Not romantically involved Romantically involved: pro-social person Romantically involved: anti-social person Currently admires anti-social peers

81.3 13.1 5.6

82.5 14.0 3.4

67.5 23.8 8.7

72.7 15.5 11.8

Does not admire anti-social peers Somewhat admires anti-social peers Admires, emulates anti-social peers Current resistance to anti-social peer infuence

54.7 32.2 13.1

57.1 32.6 10.2

34.9 44.4 20.7

31.9 41.2 26.9

42.2 26.9 27.5 3.4

46.3 27.7 22.7 3.3

22.8 38.0 32.6 6.6

18.6 32.0 42.8 6.6

History of court-ordered or voluntary out-of-home and shelter care placements exceeding 30 days History of running away or getting kicked out of home

21.5

19.0

30.1

30.6

No history 1 instance More than 1 instance History of petitions fled No family history jail/imprisonment Mother/female caretaker history jail/imprisonment Father/male caretaker history jail/imprisonment Other family member history jail/imprisonment Has been living under any adult supervision

60.6 11.1 28.3 38.8 55.4 25.4 31.0 9.8 98.3

66.0 9.9 24.1 38.4 59.3 31.2 31.4 16.3 98.2

50.4 15.3 34.3 9.0 68.4 54.3 60.1 47.9 96.2

50.0 11.3 38.7 25.3 45.1 33.2 33.3 9.7 96.6

3.7 3.4 6.0 33.6 16.4 12.9 7.7 1.4 0.6 0.1 13.9 7.5 0.2

7.5 2.9 12.1 33.2 7.3 16.5 4.7 0.6 0.2 0.0 10.7 8.0 0.4

27.5 2.5 44.3 39.1 15.5 3.7 8.5 1.0 0.5 0.1 6.1 9.0 0.6

2.5 6.5 3.5 48.6 21.8 7.8 10.2 2.0 0.8 0.1 14.3 14.6 0.4

Does not associate with anti-social peers Usually resists anti-social peer infuence Rarely resists anti-social peer infuence Leads anti-social peers Family History

Current Living Arrangements Currently living with/in: Transient A foster home Alone Biological mother Biological father Nonbiological mom Nonbiological dad Long-term parental partner Short-term parental partner Parent’s roommate Grandparent(s) Another relative His/her child

106

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

6.2 0.4 0.8

12.2 0.2 0.3

44.6 1.1 0.9

3.7 0.6 1.0

Up to poverty line x 3 Up to poverty line x 4 or higher Individual currently involved in the household has jail/ imprisonment history Problem history of parents currently involved with the household No problem history of parents involved with the household Alcohol problem Drug problem Mental health problem Physical health problem Employment problem Problem history of sibling involved with the household

74.2 25.8 31.0

71.8 28.2 28.9

71.3 28.7 28.2

72.1 27.9 44.9

52.2 19.1 17.9 13.8 14.5 17.6

70.8 16.9 18.1 15.7 17.2 20.6

64.2 54.6 51.8 48.0 49.2 53.5

27.8 25.6 19.9 12.7 15.0 22.8

No sibling Drug problem Mental health problem Physical health problem Employment problem Support network for family

34.2 10.9 8.9 6.7 7.0

32.3 15.3 13.9 12.7 13.1

59.4 53.0 46.2 45.1 46.5

33.2 14.1 7.5 4.3 5.9

Strong support network Some support network No support network Family willingness to help support youth

18.8 39.6 41.6

19.1 36.3 44.6

15.2 52.4 32.4

19.6 54.6 25.9

Consistently willing to support Inconsistently willing to support youth Little or no willingness to support youth Family provides opportunities for youth to participate in family activities and decisions afecting youth Opportunities for involvement provided Some opportunities for involvement provided No opportunities for involvement provided Has run away or been kicked out Family member(s) youth feels close to or has good relationship with Not close to anyone Close to father Close to mother Close to female sibling Close to male sibling Close to other family member

61.6 35.7 2.7

71.5 24.5 4.0

64.3 29.2 6.5

60.2 34.7 5.1

23.0 57.9 19.2 24.9

21.2 64.7 14.0 17.2

20.5 63.9 15.6 32.4

25.4 57.6 17.0 36.7

13.7 24.5 45.7 17.0 17.8 23.1

17.0 22.7 48.0 24.2 24.9 28.2

50.7 60.0 79.7 58.9 60.0 57.9

14.8 23.9 52.6 22.5 23.7 28.9

A family friend Romantic partner A friend Annual combined income youth and family

Other %

(Continued)

107

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Some confict that is well-managed Verbal intimidation, yelling, heated arguments Threats of physical abuse Domestic violence: physical/sexual abuse Parental supervision

67.3 23.1 3.6 6.0

79.3 16.2 1.9 2.6

64.3 25.9 3.9 5.9

50.8 33.7 5.6 9.8

Consistent supervision Sporadic supervision Inadequate supervision Parental authority and control

39.4 46.7 13.8

39.3 46.6 14.0

32.6 43.2 24.2

38.9 38.3 22.8

Youth usually obeys and follows rules Youth sometimes obeys or obeys some rules Youth consistently disobeys and/or is hostile Consistent appropriate consequences for bad behavior

38.5 45.4 16.1

36.9 50.0 13.1

23.3 52.9 23.8

28.9 48.6 22.5

Consistently appropriate punishment Consistently overly severe punishment Inconsistent or erratic punishment Consistently insufcient punishment Consistent appropriate rewards for good behavior

41.5 8.7 12.5 37.3

42.4 9.1 10.1 38.3

43.3 10.8 24.0 21.9

43.3 7.2 22.3 27.1

Consistently appropriate rewards Consistently overly indulgent/overly protective Inconsistent or erratic rewards Parental characterization of youth’s anti-social behavior

42.6 16.8 40.6

43.1 16.3 40.6

45.2 34.1 20.8

45.3 23.8 30.9

86.7 13.2 0.1

87.8 12.2 0.1

73.3 26.6 0.1

80.6 19.1 0.0

No use Disrupted education Caused family confict Interfered with keeping pro-social friends Caused health problems Contributed to criminal behavior Has had tolerance Has had withdrawal History of drug use

38.2 22.7 25.9 23.4 9.0 24.7 10.3 6.7

60.9 21.3 22.4 21.4 13.4 22.0 14.5 12.1

56.7 56.8 60.1 55.9 45.2 58.2 45.8 45.0

30.2 23.3 26.7 25.3 7.6 26.6 6.7 4.2

No use Disrupted education Caused family confict Interfered with keeping pro-social friends Caused health problems

28.6 30.3 32.6 28.6 10.2

41.9 27.3 28.1 26.0 13.8

53.5 65.9 66.4 62.1 46.6

21.7 33.0 32.0 31.9 8.6

Level of confict in the household

Disapproves of anti-social behavior Accepts anti-social behavior as okay Proud of anti-social behavior Alcohol and Drug History History of alcohol use

108

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Contributed to criminal behavior Has had tolerance Has had withdrawal History of referrals for drug/alcohol assessment

32.0 12.9 7.5

28.6 16.3 12.4

64.7 48.9 45.5

34.1 9.0 4.8

Never referred for drug/alcohol assessment or diagnosed as no problem Referred but never assessed Diagnosed as abuse Diagnosed as dependent/addicted History of attending alcohol/drug education classes

69.3

76.0

48.4

61.0

5.0 11.6 14.1

5.1 10.4 8.5

9.3 21.4 20.9

6.9 14.0 18.1

Never attended drug/alcohol education classes Voluntarily attended drug/alcohol education classes Attended classes by parent, school, or other agency request Attended classes at court direction History of participating in alcohol/drug treatment program Never participated in treatment program Participated once in treatment program Participated several times in treatment programs Youth currently using alcohol/drugs

74.5 2.3 6.9 16.2

80.4 1.5 5.5 12.6

56.6 3.4 11.3 28.7

71.5 2.6 8.3 17.6

75.5 16.2 8.2 43.7

81.0 13.5 5.4 38.2

59.1 28.4 12.4 67.4

73.3 17.7 9.0 61.7

Not currently using alcohol Disrupting education Causes family confict Interferes with pro-social friends Causes health problems Contributes to criminal behavior Has tolerance Has withdrawal Current drug use

45.8 18.7 21.1 19.4 8.4 20.8 9.5 6.4

59.2 19.6 20.5 19.8 13.1 20.3 14.2 12.0

67.2 47.9 50.2 48.4 44.0 49.1 43.9 43.4

37.5 17.1 21.3 19.3 6.8 21.6 6.1 4.1

No current drug use Disrupting education Causes family confict Interferes with pro-social friends Causes health problems Contributes to criminal behavior Has tolerance Has withdrawal Amphetamines usage Cocaine usage Heroin usage Marijuana usage

30.9 24.5 26.3 22.9 10.2 24.4 11.1 6.9 3.1 5.5 0.6 36.4

37.7 23.1 24.2 22.6 13.7 24.2 15.0 12.1 0.6 7.8 0.1 31.6

24.9 52.5 53.7 51.3 45.2 51.1 44.8 43.8 2.7 29.1 0.3 55.2

25.5 24.9 24.7 23.9 8.3 24.1 8.3 4.8 5.9 5.0 1.0 50.2

Current Alcohol and Drugs Current alcohol use

(Continued)

109

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Other drug usage Alcohol/drug treatment program participation

4.0

1.1

2.2

5.8

Drug/alcohol treatment not warranted Currently attending treatment program Successfully completed treatment program Not currently attending needed treatment program

16.9 11.5 48.1 23.5

18.5 8.2 51.2 22.1

18.0 14.9 20.1 47.0

23.4 11.9 29.1 35.6

Not physically abused Abused by family Abused in the home Abused outside of the family Abused in a foster home Abused with a weapon History of witnessing violence

75.6 17.7 11.1 10.0 6.9 7.0

82.6 17.5 15.4 14.7 12.9 13.4

85.7 52.7 46.8 49.9 44.3 46.9

71.3 21.8 7.7 9.7 3.7 4.0

Has not witnessed violence Witnessed violence in the house Witnessed violence in a foster home Witnessed violence in the community Family member killed as a result of violence History of sexual abuse

34.9 20.9 6.9 34.2 6.5

42.8 23.6 13.0 47.5 14.1

55.9 54.4 45.3 62.7 45.6

23.5 14.0 4.0 19.7 4.3

Not sexually abused Abused by a family member Abused by nonfamily member History of being a victim of neglect History of ADD/ADHD

84.6 10.9 43.9 14.9

88.5 15.0 60.4 9.4

93.8 49.0 50.0 11.0

84.8 9.7 16.1 27.5

No history of ADD/ADHD Diagnosed: Only medication prescribed, or only treatment prescribed ADD/ADHD medication and treatment prescribed History of mental health problems Anger/irritability

73.6 20.0

77.1 18.5

73.4 22.9

76.3 18.4

6.3 21.2

4.4 15.1

3.7 17.9

5.3 19.5

No history of anger/irritability Occasional feelings of anger/irritability Consistent feelings of anger/irritability Aggressive reactions to feelings of anger/irritability Depression

50.5 32.9 9.5 7.2

41.5 38.2 11.5 8.8

35.6 39.7 13.4 11.4

66.9 21.8 5.9 5.4

No history Occasional feelings Consistent feelings Impairment in daily tasks Somatic complaints

65.7 25.5 7.4 1.4

66.9 26.5 5.8 0.8

49.4 36.8 12.1 1.7

76.1 17.6 5.1 1.2

Mental Health History History of physical abuse

110

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

No history One or two Three or four Five or more History of unusual thoughts, hallucinations, or beliefs Presence of traumatic event Health insurance

90.3 8.1 1.0 0.6 1.8 11.7

90.6 8.1 0.8 0.5 2.1 11.1

83.9 13.4 1.7 1.0 4.4 16.3

93.6 5.2 0.8 0.4 1.4 10.0

Private insurance Public insurance (Medicaid) No health insurance Current mental health problem(s)

18.8 45.9 35.4 26.9

9.0 50.1 40.9 19.0

8.2 60.7 31.1 29.2

22.2 65.5 12.3 32.9

25.0 3.9 0.7

21.7 1.4 0.3

14.4 4.0 0.5

27.5 5.0 0.8

62.8 0.3 7.2

63.8 0.1 12.8

36.3 0.2 44.6

61.1 0.4 5.3

88.0 7.0 5.1

91.6 4.3 4.2

91.8 4.8 3.4

89.7 6.3 4.0

89.3 8.5 2.2

92.8 5.6 1.6

88.5 8.2 3.2

86.0 10.5 3.5

89.3 9.3 1.4 12.6

93.7 5.2 1.0 10.5

89.6 8.6 1.8 24.5

86.1 11.8 2.1 14.9

47.1 25.9 25.0 1.9

51.1 23.7 23.4 1.8

21.5 40.6 32.6 5.3

29.5 33.1 34.2 3.2

Current Mental Health Suicidal behavior or ideation No recent thoughts of suicide History of suicidal ideation or self-mutilation Current self-mutilation, feelings of hopelessness, or history of making suicidal plan Current suicidal ideation Recent suicide plan Recent suicide attempt Diagnosed with ADD/ADHD No ADD/ADHD diagnosis or no medication prescribed Currently taking ADD/ADHD medication ADD/ADHD medication prescribed but not taking Mental health treatment prescribed, excluding ADD/ ADHD treatment No current mental health problem or no treatment prescribed Attending mental health treatment Mental health treatment prescribed but not attending Mental health medication prescribed, excluding ADD/ ADHD medication No current mental health problem or no medication prescribed Currently taking mental health medication Mental health medication prescribed but not taking Mental health problems interfere with working with the youth Attitudes/Behaviors Primary emotion when committing last crime(s) in last 6 months Nervous, afraid, worried, uncertain Excited or stimulated Unconcerned or indiferent Confdent/bragging

(Continued)

111

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Anger Revenge, power Impulse Sexual desire Money, material gain, drugs Excitement, amusement Status, acceptance, attention Optimism

13.4 0.3 14.9 4.9 15.9 11.7 9.3

12.4 0.8 16.1 3.2 18.4 7.7 9.4

12.5 2.2 16.2 9.3 28.9 13.7 15.3

19.1 0.6 17.5 4.5 18.5 16.0 14.8

High aspirations: Sense of purpose, commitment to better life Normal aspirations: Some sense of purpose Low aspirations: Little sense of purpose or plans for better life Believes nothing matters: He or she will be dead before long Impulsive, acts before thinking

11.8 72.4 15.2 0.7

11.6 76.2 11.5 0.7

12.3 62.1 24.0 1.6

13.4 58.6 26.7 1.3

Uses self-control: Usually thinks before acting Uses some self-control: Sometimes thinks before acting Impulsive: Often acts before thinking Highly impulsive: Usually acts before thinking Belief in control over anti-social behavior

11.5 57.6 21.6 9.3

13.2 61.5 17.8 7.5

21.8 43.9 25.1 9.1

10.0 41.7 32.1 16.3

Believes can stop anti-social behavior Somewhat believes can stop anti-social behavior Believes cannot stop anti-social behavior Empathy, remorse, sympathy, or feelings for victim(s)

34.4 62.5 3.2

33.5 64.1 2.3

41.8 53.1 5.0

35.5 58.5 6.0

Has empathy for victim(s) Has some empathy for victim(s) Does not have empathy for victim(s) Respect for property of others

26.7 58.3 15.1

26.0 60.6 13.4

29.1 44.9 26.0

24.8 47.0 28.2

Respects property of others Respects personal property but not publicly accessible property No respect for property Respect for authority fgures

64.8 29.4 5.8

66.3 28.7 5.0

45.8 43.6 10.6

49.3 39.1 11.6

Respects most authority fgures Resents most authority fgures Defes or is hostile toward most authority fgures Attitude toward pro-social rules/conventions in society Accepts responsibility for anti-social behavior

73.0 24.4 2.6 8.6

76.4 21.3 2.4 8.1

59.2 36.1 4.7 12.7

55.2 39.5 5.3 15.3

Accepts responsibility for behavior Minimizes, denies, justifes, excuses, or blames others for behavior Accepts own anti-social behavior as okay Proud of own anti-social behavior Belief in successfully meeting conditions of court supervision

57.3 34.7

58.5 34.1

48.1 38.6

43.4 41.3

6.4 1.6

5.9 1.5

9.6 3.7

11.9 3.4

Primary purpose for committing crime(s) in last 6 months

112

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

49.6 48.7 1.7

48.8 49.8 1.4

59.1 37.4 3.5

55.0 41.1 3.9

Rarely gets upset/temper tantrums Sometimes gets upset/temper tantrums Often gets upset/temper tantrums Hostile interpretation of actions and intentions of others

51.4 36.6 12.0

56.5 34.3 9.2

39.4 45.8 14.8

31.2 49.1 19.7

Primarily positive view of intentions of others Primarily negative view of intentions of others Primarily hostile view of intentions of others Belief in yelling/verbal aggression to resolve disagreement/confict Believes verbal aggression is rarely appropriate Believes verbal aggression is sometimes appropriate Believes verbal aggression is often appropriate Belief in fghting/physical aggression to resolve disagreement/confict Believes physical aggression is never appropriate Believes physical aggression is rarely appropriate Believes physical aggression is sometimes appropriate Believes physical aggression is often appropriate Reports/evidence of violence not in criminal history

72.8 24.0 3.2

75.2 22.1 2.7

53.6 40.3 6.1

55.6 38.0 6.4

53.7 37.6 8.7

56.1 37.4 6.5

37.5 50.5 12.0

34.5 50.4 15.2

46.4 27.2 22.7 3.7

47.4 25.6 23.6 3.5

25.7 30.8 35.2 8.4

25.9 29.9 36.0 8.2

44.4 12.6 28.7 12.3 9.2 8.0 6.6

54.9 15.0 28.3 16.0 14.3 12.8 12.3

65.0 49.3 62.8 51.5 48.8 46.2 45.0

28.2 13.0 40.7 17.0 9.8 6.1 4.3

91.8 7.1 6.1 6.7 6.7 6.1 6.5

95.5 12.3 12.0 12.3 12.2 12.1 12.2

98.1 44.8 44.4 44.8 44.7 44.4 44.5

94.1 4.9 3.7 4.5 4.3 3.6 4.0

6.3

6.1

10.2

6.5

Believes will be successful under supervision Unsure of success under supervision Does not believe will be successful under supervision Aggression Tolerance for frustration

No reports Violent destruction of property Violent outbursts, displays of temper, uncontrolled anger Deliberately inficted physical pain Used/threatened with a weapon Fire starting reports Animal cruelty reports Reports/evidence of sexual aggression not in criminal history No reports Aggressive sex Sex for power Young sex partners Sex with a child Voyeurism Exposure Skills Consequential thinking Good consequential thinking and acting

(Continued)

113

Leah C. Butler et al. Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Identifes consequences of actions Understands about consequences to actions Does not understand about consequences of actions Goal setting

44.4 43.8 5.4

46.4 42.8 4.7

19.3 62.9 7.6

25.4 58.6 9.5

Sets realistic goals Sets somewhat realistic goals Sets unrealistic goals Does not set any goals Problem-solving

18.7 61.8 8.7 10.8

19.3 65.2 7.6 7.9

24.2 50.3 11.0 14.5

16.8 50.4 13.3 19.6

Applies appropriate solutions to problem behaviors Thinks of solutions for problem behaviors Identifes problem behaviors Cannot identify problem behaviors Situational perception

5.0 19.0 63.6 12.3

4.7 18.8 66.4 10.1

8.2 22.9 52.1 16.8

5.0 20.0 53.8 21.3

Selects the best time and place for best skill Chooses best skill but not best time and place Does not choose the best pro-social skill Cannot analyze the situation for use of a pro-social skill Dealing with others

9.8 21.4 56.8 12.0

9.7 22.4 58.7 9.3

14.4 26.5 42.6 16.4

9.6 22.7 46.1 21.6

Often uses advanced social skills in dealing with others Sometimes uses advanced social skills in dealing with others Has basic social skills, lacks advanced skills in dealing with others Lacks basic social skills in dealing with others Dealing with difcult situations

6.0 26.4 59.3

5.6 26.8 61.0

8.2 30.6 47.8

5.3 27.6 53.4

8.3

6.6

13.4

13.7

Often uses skills in dealing with difcult situations Sometimes uses skills in dealing with difcult situations Rarely uses skills in dealing with difcult situations Lacks skills in dealing with difcult situations Dealing with feelings/emotions

6.4 65.3 15.7 12.6

6.5 70.0 14.5 9.0

10.6 49.8 22.0 17.5

5.1 47.6 23.9 23.3

Often uses skills in dealing with feelings/emotions Sometimes uses skills in dealing with feelings/emotions Rarely uses skills in dealing with feelings/emotions Lacks skills in dealing with feelings/emotions Monitoring of internal triggers that can lead to trouble

5.8 64.7 16.6 12.9

5.9 69.9 15.1 9.0

9.1 49.3 23.8 17.9

4.8 45.4 25.9 23.9

Actively monitors/controls internal triggers Identifes internal triggers Cannot identify internal triggers Monitoring of external triggers that can lead to trouble

6.0 72.0 22.0

5.9 77.7 16.4

9.9 58.1 32.0

5.1 57.2 37.6

Actively monitors/controls external triggers 6.6 Identifes external triggers 73.6 Cannot identify external triggers 19.9 Control of impulsive behaviors that get youth into trouble

6.4 79.1 14.4

10.8 61.5 27.7

5.8 58.7 35.5

114

Juvenile Risk Assessment Item-Level Descriptives: All States by Race/Ethnicity (N = 241,596) Domain/Item

White %

Black %

Hispanic %

Other %

Never a problem with impulsive behavior Uses techniques to control impulsive behavior Knows techniques to control impulsive behavior Lacks techniques to control impulsive behavior Control of aggression

4.2 9.6 58.2 28.0

4.8 11.7 61.4 22.4

5.8 30.5 32.1 31.5

4.8 8.4 42.0 44.9

12.9 15.4 52.6 12.4 6.7

11.2 15.1 57.2 9.9 6.5

10.4 19.5 40.6 17.1 12.4

13.8 14.5 38.4 20.9 12.4

Never a problem with aggression Often uses alternatives to aggression Sometimes uses alternatives to aggression Lacks alternatives to aggression Rarely uses alternatives to aggression

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5 THE DEBATE AND CONCERNS OF RISK ASSESSMENT WITH HISTORICALLY MARGINALIZED POPULATIONS Adam K. Matz Introduction As demonstrated in a 2021 survey of over 10,000 U.S. adults by the Pew Research Center, the country continues to struggle with its adverse racial history. Reportedly, about half of all the adults surveyed indicated “…‘a lot’ more needs to be done to ensure equal rights for all Americans regardless of their race or ethnicity” (p. 5). About a quarter of respondents suggested changes can be made within existing systems, while another quarter contended major institutions need to be completely rebuilt. Of Black respondents, 58% said “most of the nation’s laws and major institutions need to be completely rebuilt because they are fundamentally biased” (Pew Research Center, 2021, p. 5).1 As Kempany and Kaiser (2017) explain, perceptions of legitimacy and fairness (a.k.a., procedural justice) of the law and criminal justice agencies are critical in soliciting compliance and promoting prosocial behavior change. Simply put, cynicism toward the law and government ofcials reduces one’s likelihood to engage, report, or cooperate with legal authorities. Recently, risk assessment, especially in the pretrial context, has been met with increased consternation (Barabas et al., 2019; Forrest, 2021). In addition to broader system-level public skepticism (see also Scurich & Krauss, 2020), several social science and legal scholars have begun to question the extent to which risk assessment instruments (RAIs) may inadvertently perpetuate the disparate treatment of minorities throughout the criminal justice process (Dalakian, 2018; Hamilton, 2015; Koepke & Robinson, 2018; Schaefer & Hughes, 2019; Starr, 2014; see Butler et al., Chapter 4). Criticisms can be grouped into three focal areas: potential for biased assessment outputs that disproportionately classify minority populations as higher risk, questionable or limited evidence of RAIs’ predictive accuracy for specialized populations, and a general lack of transparency and legal accountability for how RAIs work. While many of these concerns may have gained enhanced attention resulting from arguments by defendants prior to or during trial (Wexler, 2018), when assistance of counsel is most able to mount a legal challenge, these issues are nonetheless equally relevant to the use of RAIs throughout the system. This chapter will discuss the prevalence of RAIs, further elaborate on the criticisms and limitations of RAIs, and consider solutions to mitigate these concerns.

Risk Assessment Permeates the System While RAIs are often associated with community supervision their prevalence has extended to permeate many aspects of the criminal justice system, including decisions at initial contact by DOI: 10.4324/9781003245032-6

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law enforcement.2 For example, the Danger Assessment for Law Enforcement (DA-LE) is a risk tool used by police to judge risk to reofend in intimate partner violence (IPV) (Messing et al., 2020). Similarly, in North Dakota, police have experimented with using the Youth Assessment and Screening Instrument (YASI) screening tool to make decisions regarding juvenile diversion. Though the use of RAIs in law enforcement is new and pales in comparison to other components of the criminal justice system, they too have questioned the accuracy, legitimacy, and transparency of these innovations; along with predictive policing which alternatively focuses on high-risk places (a thorough review is provided by Berk, 2021). Pretrial, on the other hand, has experienced a dramatic and intense growth in the use of RAIs, predicated on a desire to reduce pretrial detention without compromising public safety—in conjunction with continued pushes for bail reform (Barno et al., 2020; Dalakian, 2018; Desmarais et al., 2020). According to a report from Arnold Ventures, about 75% of the Texas jail population had yet to have been convicted of a crime (Lowenkamp et al., 2013). The Pretrial Justice Institute (PJI) similarly reported that 62% of all jail inmates in 2009 were still awaiting further court action, 6 in 10 of which were racial or ethnic minorities, with roughly 25% being held in relation to violent crimes (Mamalian, 2011). Lowenkamp and colleagues (2013) found that low-risk defendants held two to three days were 40% more likely to commit a new crime compared to those held no more than 24 hours. As this work demonstrated, there is a need to identify and release low-risk defendants as soon as possible, and RAIs are critical to this process. As Adler and colleagues (2020) note, demand is high with over 600 jurisdictions having shown an interest in the Arnold Ventures’ Public Safety Assessment (PSA). As Desmarais and colleagues (2020) contend, pretrial RAIs were designed to reduce bias, improve predictive accuracy, and increase consistency. In addition to the PSA, examples of pretrial RAIs include the Virginia Pretrial Risk Assessment Instrument (VPRAI), Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT), and the U.S. Federal Pretrial Services Risk Assessment (PTRA) (for more see a systematic review from Desmarais et al., 2020, p. 5). While the exact prevalence of RAI use in pretrial across the country is not known, as of 2009, PJI estimated 64% relied on a combination of objective and subjective methods, while 12% relied solely on professional judgment (Mamalian, 2011). Similar to the desire to reduce jail populations, RAIs have likewise seen an increase in interest at sentencing associated with a desire to reduce prison populations (a.k.a., decarceration). It is estimated that courts in at least 20 states have started incorporating risk assessment into their sentencing decisions (Monahan & Skeem, 2016), which may be included as part of the presentence investigation report often completed by a probation ofcer. As Monahan and Skeem explain, RAIs can assist judges in determining if a convicted ofender should be sentenced to the upper or lower bounds of a range as dictated by a given jurisdiction’s sentencing guidelines. Ideally, this should improve identifcation of the low-risk individuals that can be safely supervised in the community who otherwise would have been incarcerated. Given its isolated nature (a.k.a., total institution), RAI use in prison is unique from other components of the criminal justice system. Assessment of inmate risk centers on institutional misconduct, at initial classifcation, with community recidivism a more distant, though still relevant, concern (Latessa et al., 2020; Makarios & Latessa, 2013). RAIs are used to determine an incarcerated person’s custody level and appropriate assignment to a maximum-, medium-, or minimum-security facility. That said, some research has found tools geared toward general recidivism prediction, such as the Level of Service Inventory-Revised (LSI-R) and Youth Level of Service Inventory/Case Management Inventory (YLS/CMI), perform well for institutional misconduct (Holsinger et al., 2006). Makarios and Latessa (2013), however, recommend institutions utilize separate tools; one for initial classifcation and another for long-term case management. As Latessa and colleagues (2020) note, prisons have long screened inmates for risk factors pertinent to placement (e.g., suicide risk, mental health), but few have systematically conducted risk and needs 120

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assessments. In a survey conducted by research directors in state-level department of corrections agencies, about 55% of respondents indicated a risk classifcation score was the primary basis for placement (Byrne & Dezember, 2017). About a third of respondents indicated they were using a tool their state developed, whereas the other two-thirds utilized a proprietary instrument (e.g., Correctional Ofender Management Profling for Alternative Sanctions [COMPAS], ORAS, LSI-R). RAIs have been heavily championed by the National Institute of Corrections (NIC) in terms of probation and parole supervision through the advent of its eight evidence-based principles for efective interventions (Crime and Justice Institute at Community Resources for Justice, 2009; Taxman & Belenko, 2013). These principles have been heavily promoted by professional associations such as the American Probation and Parole Association (APPA). Examples of RAIs, aimed at general recidivism, can be found in Desmarais and colleagues (2016) systematic review (see p. 209). Burrell reported (2017) that a survey of probation and parole agencies in 1979 found that 30% of community supervision agencies had adopted an RAI. Later surveys revealed the adoption rate had increased anywhere from 75% to 97% in the early 2000s (Burrell, 2017). Schwalbe (2007) provided a similar review pertinent to juvenile risk assessment; state juvenile systems use of RAIs had increased from 33% in 1990 to 86% by 2003. In both cases, the latest surveys on RAI adoption are nearly two decades old. Nonetheless, it should be clear that the prevalence of RAIs in community supervision is high. To summarize, RAIs have become increasingly more ubiquitous with criminal justice practice; used in law enforcement (Berk, 2021; Messing et al., 2020), pretrial (Desmarais et al., 2020), sentencing (Arnold et al., 2018), institutional classifcation and case management (Makarios & Latessa, 2013), and community supervision decision-making (Latessa et al., 2020; Taxman & Dezember, 2017; Wright et al., 1984). That said, their purpose and use can vary considerably: from juvenile diversion at frst contact with law enforcement, to predicting the likelihood a defendant will reappear at their next court hearing, to institutional misconduct within prison, to assessing one’s likelihood to reofend and determining appropriate referrals to programming once released to the community under the supervision of a probation or parole ofcer (Latessa et al., 2020; Makarios & Latessa, 2013; Taxman & Dezember, 2017). However, while RAIs may exist across the system their level of actual implementation across agencies can vary. Recall, a 2009 survey from PJI found that 12% of pretrial agencies still relied on professional judgment (Mamalian, 2011). From the probation and parole perspective, Burrell (2017) laments that while RAIs have been clearly endorsed by the feld their actual implementation and use remain lacking and are “…more rhetorical than operational” (p. 23). As Burrell goes on to highlight, in some cases agencies have even been known to administer the tool but then neglect to use them in their decision-making (see also Viglione et al., 2015). In their National Criminal Justice Treatment Practices Survey, Taxman and Belenko (2013) found only 34% of community corrections agencies reported using a standardized risk tool. While RAIs may exist throughout the feld their level of implementation remains suspect.

Potential for Bias and Disparate Impact A consistent critique posed in the literature concerns the extent to which RAIs rely on historical criminal data (Starr, 2014). As Forrest (2021) argues, RAIs, including those utilizing artifcial intelligence (AI) or machine learning (ML) algorithms, may be based on “…data that embed structural inequalities, as well as implicit and explicit biases” (p. xxi; see also Kleinberg et al., 2020). As Monahan and Skeem (2016) explain, the extent to which disparities in decision-making are exacerbated by an RAI may be a function of the baseline data, the tool selected, and the environment in which it was adopted. In their discussion of algorithms more broadly, Kleinberg and colleagues 121

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(2020) clearly acknowledge the risk of perpetuating biased decision-making when using new tools that harness old data. Tools, whether it be RAIs or new-age algorithms and ML, are developed (a.k.a., normed) using historical information generated or gathered by humans. Kleinberg and colleagues put it bluntly, “…humans discriminate, and so the algorithms they construct can discriminate as well” (p. 30096). Without appropriate change to the system more generally, they argue, such tools may only exacerbate these problems. Hamilton and colleagues (2017) discuss the development of RAIs, noting that it is not unusual for a particular tool normed with a specifc population and purpose may be subsequently adopted for use by other agencies, at other decision points within the system, and with other populations. As they clearly express, this is unadvised without subsequent validation research as the tool may be ill-suited to this new purpose. Tools are initially normed using existing sample data from a specifc population. Analysis of this data is used to establish appropriate cutofs (i.e., to defne the numerical boundaries of low-, moderate-, or high-risk individuals) and item or domain weighting based on the strength of their correlation with an outcome of interest (e.g., failure to appear, institutional misconduct, recidivism). The items or domains considered vary by tool and are stipulated by the tool developer. Subsequent validation is recommended to ensure the tool performs as expected and to make adjustments to scoring and weighting accordingly (for further discussion of these procedures see Hamilton et al., 2017 and Butler et al., Chapter 4).3 In the case of ML, an algorithm would be continually reassessing and adjusting cutofs and weights as new data continues to be introduced to the system, in some respects automating what has been a manual process (Kleinberg et al., 2018, 2020). Though ill-advised, it would not be unusual to fnd instruments in use in jurisdictions that were adopted decades ago that lack any subsequent validation (Matz et al., 2021). The concern is obvious; RAIs utilize aggregate historical data patterns to predict future criminal behavior. In some cases, agencies may be utilizing instruments that were normed many years ago with little, if any, subsequent validation. If the data used to norm an instrument is biased (i.e., the outcome of prejudiced actions of criminal justice authorities), then the predictions made by that instrument will refect those biases. The contention generally is not that the tool itself is biased, but rather that the baseline data used to create the tool may be misleading because it refects discriminatory practices of the past.4 For example, discriminatory police profling practices would result in a greater number of charges and convictions for that target population, which then would be refected in risk assessment predictions (for more on the debate of profling and disproportionate minority contact see Coleman et al., 2019). Simply put, the target of discriminatory action, whether it be explicit or implicit, would sufer infated criminal histories and, in turn, infated risk classifcation. Higher risk classifcations can then lead to increased supervision and surveillance which further perpetuates the cycle. For example, intensive supervision has been criticized for increasing the rate of technical violations while having a negligible impact on recidivism when it does not include a substantive treatment component ( Jalbert et al., 2010; Paparozzi & Gendreau, 2005). That said, Hannah-Mofat (2017) argues that some interview items contained in the LSI-R are gendered, racialized, and infuenced by social-economic status, suggesting the tools themselves deserve a critical review. Some have argued that RAIs could inadvertently legitimize, under the guise of science, “…existing systems tainted by legacies of inequality” (“Beyond Intent,” 2021, p. 1760). Statements from former Attorney General Eric Holder, a supporter of RAIs, recognized and acknowledged such reservations when saying, these tools: …may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system…criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct. (Monahan & Skeem, 2016, pp. 496–497) 122

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Questions of Predictive Accuracy Hamilton and colleagues (2017) describe the process by which an RAI should be implemented and then modifed for ft to the population being served, which aligns well with the Evidence-Based Interagency Implementation Model for innovations espoused by Taxman and Belenko (2013). RAIs are sometimes purchased from a vendor and implemented with little follow-up to assess predictive performance in the new setting (Austin, 2006; Byrne & Dezember, 2017; Matz et al., 2021). As Taxman and Belenko (2013) stress, it is risky to adopt and implement innovations from another jurisdiction without subsequent follow-up research to confrm their fdelity and performance. With that said, for RAIs the area under the curve (AUC) statistic has become the most common, standardized, metric for judging predictive accuracy; the extent to which the tool correctly predicts the outcome of interest (Hamilton et al., 2020). The AUC varies from 0 to 1 with 0.5 indicating the instrument performed no better than a random guess, and an outcome closer to 1 indicating greater predictive strength. The generally accepted categorizations of performance for RAIs fall into four categories negligible (0.70) (Buter et al., Chapter 4; Hamilton et al., 2017). Note, such benchmarks are advisory, other categorizations exist in the literature (e.g., Orbis Partners, 2007). Per Ellis’ (2010) discussion of efect sizes more generally, such benchmarks should be used for general guidance and not seen as a rigid standard. Finally, Hamilton and colleagues (2017) defne an instrument as “validated” if a statistically signifcant AUC greater than 0.5 is reported, with no subgroup analysis requirements. They admit the bar for claiming validation is low but note that many of the well-established instruments fall into the moderate performance category. Desmarais and Singh (2013) systematically reviewed RAIs implemented and “validated” in correctional settings and found the performance varied depending on the measure utilized (Desmarais et al., 2016). Regardless, they reported no one tool stood out as exceptionally better than the others based on the 53 studies identifed. AUC values ranged from a low of 0.57 to a high of 0.74. More recently Desmarais and colleagues (2020) conducted a similar review of pretrial RAIs. From the 11 studies identifed, which covered 10 instruments, AUC values ranged from 0.64 to 0.73 for the overall population. In their subgroup analyses, they noted lower AUCs for African American defendants in terms of predicting violent crime (AUC = 0.63) and technical violations (AUC = 0.61) compared to White defendants (AUCs = 0.67 and 0.66) scored by the PSA. Though the practical signifcance of such diferences is debatable, such values would be considered “small” for African American defendants as opposed to “moderate” for White defendants. In other words, the PSA performed somewhat poorer, was more prone to error, for African Americans than Whites. That said, they found little diference in terms of predictive performance for other tools and outcome measures including failure to appear. Looking at individual studies of assessment validation, such as in the juvenile context, leaves one with more questions than answers. A recent study by Miller and colleagues (2021) on the Ohio Youth Assessment System-Disposition Tool (OYAS-DIS) found criminal history, while signifcant for Caucasian boys, was not a strong predictor of African American boys’ or girls’ recidivism. Matz and colleagues (2021) similarly found the YASI to possess limited (i.e., small) predictive validity for delinquent girls in North Dakota and were unable to adequately assess its performance for African American or Native American youth. Scott and colleagues (2019) also examined YASI and YLS performance in a Canadian sample. Though they note the YASI’s promise for female youth, the AUCs reported are similar to Matz and colleagues’ (2021) study. The tool clearly worked best for males and the YLS/CMI appeared to perform better for females than the YASI for their sample. Diferences in predictive accuracy by race were not reported. The tool developer’s own validation study reported “strong” AUC values for males and the aboriginal population as well as moderate-to-strong results for females ( Jones et al., 2016), but even they recognized 123

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the results were notably higher than that of prior (and later) studies (Orbis Partners, 2007; Skeem et al., 2013). Predictive performance by gender (though Smith and colleagues [2009] demonstrate, for example, performance was similar for males and females with the LSI-R), race, and ethnicity remains mixed and unclear (Pusch & Holtfreter, 2018; Salisbury et al., 2017; Schwalbe, 2007; Shepherd & Willis-Esqueda, 2017; Singh et al., 2011).

A Lack of Legal Accountability and Transparency Though RAIs have certainly experienced their greatest challenge yet in the form of intense scrutiny at the hands of legal professionals (Forrest, 2021; Starr, 2014), several lament the inability to mount a signifcant legal challenge on the basis of the equal protection clause (“Beyond Intent,” 2021; Starr, 2014). Per Washington v. Davis (1976) and Personnel Administrator of Massachusetts v. Feeney (1979), the U.S. Supreme Court identifed requirements for contesting equal protection challenges aimed at government actions believed to be associated with a disproportionate racial consequence. Legal challenges must provide evidence of disproportionate impact as well as the intent to discriminate. This discriminatory purpose requirement places the burden on the accusing party to substantiate their position and has been seen as counter to modern concerns of implicit bias which are difcult to prove. With specifc attention toward algorithmic RAIs, legal scholars argue that intent is shielded by adaptive AI in which even the tool developer lacks full control of the assessment output (“Beyond Intent,” 2021). As such, they suggest higher courts abandon the requirement of intent. Further, to Hannah-Mofat’s (2017) earlier point, tools used at pretrial or sentencing may avoid overtly including variables such as race but instead rely on what could be considered variable proxies (e.g., marital status, family criminal background). Avoiding the use of explicitly protected characteristics such as race is viewed as a loophole by which discriminatory purpose cannot be established. They argue the combination of these variables is de facto a proxy for race and introduces racial bias into the assessment. A legal challenge was mounted in State v. Loomis (2016), for example, where the Wisconsin Supreme Court rejected arguments against the use of the COMPAS assessment by a trial court at sentencing. The higher court concluded there was insufcient evidence to suggest the court’s sentencing decision, aided by the use of COMPAS, was based solely on a protected classifcation (“Beyond Intent,” 2021). That said, exceptions to the discriminatory purpose do exist in other criminal justice contexts, such as policing exams and jury selection, whereby intent similarly could not be established. In such cases, the plaintif need only demonstrate the disparate impact of a given practice, in which case the burden falls on the government to provide a race-neutral justifcation devoid of discriminatory intent. Though such a doctrinal shift, if such were to occur, would likely be slow, it should be clear that legal challenges to RAIs are likely to continue on the basis of these legal arguments. Given RAIs increased attention and adoption in the pretrial stages, it is not surprising to see the increase in legal challenges. Defendants are aforded due process protections and possess greater access to counsel than that a person incarcerated or on probation or parole. Indeed, in terms of correctional practice, the courts have historically been hands-of in terms of administrative oversight (Stohr & Walsh, 2016). Once convicted, it is clear institutional security and public safety take priority, with the rights of incarcerated persons balanced accordingly with those aims. Regardless, the issue of transparency in risk assessment is relevant at all stages of the criminal justice process and with all engaged stakeholders; including defendants, attorneys, incarcerated persons, probationers, parolees, and the agencies or professionals that employ them. Currently, there is little accountability placed on private companies that design and sell RAIs beyond what may be stipulated in ad hoc government contracts (“Beyond Intent,” 2021). There have been two arguments justifying the lack of transparency in RAIs; to protect proprietary property from 124

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being exposed to competitors and to avoid end-user manipulation (Wexler, 2018). However, because of this secrecy little may be known about how a given RAI works by the agencies and practitioners utilizing them (Forrest, 2021). As Adler and colleagues (2020) note, many criminal justice agencies have implemented RAIs that utilize “…proprietary algorithms for which the risk factors, factor weightings and scoring methods are not publicly available” (p. 586). Pertinent to legal accountability, Forrest argues “…the lack of a legal framework requiring disclosure means that individuals whose lives and liberties have been impacted by these tools have limited ability to challenge them” (p. xvi). Note, in the case of new-age tools that purport to utilize AI and ML, it may be difcult for the tool developer to cleanly articulate the inner workings of their RAI, “…algorithms, especially those incorporating artifcial intelligence, may operate in ways that are opaque, unpredictable, or not well understood” (“Beyond Intent,” 2021, p. 1760; for more on AI and ML see Berk, 2021; Schwartz et al., 2017; Wormith, 2017). While it is certainly not true of all RAIs (Barabas et al., 2019; Desmarais et al., 2019), several proprietary tools are products of private companies which are sold to government with little oversight (“Beyond Intent,” 2021). To recognize Desmarais and colleagues’ (2019, 2021) point, manuals and detailed information are available online for some tools such as the PSA. Nonetheless, in other cases when asked about the inner workings of their product, trade secret protection pertinent to intellectual property rights has been used to shield disclosure (Wexler, 2018). When the Urban Justice Center inquired about the suitability of an instrument for mentally ill clients their request was denied under a trade secret exemption on the basis of a state freedom-of-information law (Wexler, 2018). According to Wexler, at least fve states had denied defense attorneys’ motions to obtain trade secret evidence. A Washington court, for example, refused to order disclosure of software source code on the basis that the need for the code was “outweighed by a substantial risk of fnancial harm” (Wexler, 2018, p. 1361). In California, even when an attorney ofered to abide by a protective order that would prohibit his client from also seeing the source code, the court still denied the motion for disclosure. As Wexler (2018) argues, the courts have “…granted trade secret owners a withholding entitlement: a right to keep relevant evidence secret from criminal defendants because it is the owners’ intellectual property” (Wexler, 2018, p. 1360). As Wexler notes, this protection is at odds with discovery and the rights of defendants aforded by the Sixth Amendment. That said, there are limits to which developers and their governmental clients can use intellectual property law to avoid judicial scrutiny, with the law enforcement use of “stingrays” a prominent example (see McCandless, 2017). As the use of RAIs continues to proliferate at pretrial, Wexler suspects there will be an increasing number of challenges to risk assessment scores and that trade secret privilege will continue to be a common defense raised by proprietary tool providers.

Conclusion: Risk Assessment Is Here to Stay but We Can Do Better There is a clear scientifc consensus that standardized actuarial risk assessment is more accurate and equitable than professional or clinical judgment (Dawes et al., 1989; Desmarais et al., 2020, 2021; Duwe & Rocque, 2017; Latessa et al., 2020; Smith et al., 2009; Taxman & Dezember, 2017). Even critics such as Forrest (2021) clearly articulate that their intent is not to see agencies stop using RAIs. Desmarais and colleagues (2021) clearly recognize the concern of legal professionals in their recent commentary: Lack of transparency is a critique of pretrial risk assessment instruments that can be mitigated easily by sharing individual assessment results and disseminating information on the process through which an instrument was developed, including how items were selected and weighted to produce risk estimates. (p. 5) 125

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Adler and colleagues (2020) similarly stress defense attorneys demand transparency (see also Wexler, 2018), recommending counsel emphasize individual details and circumstances to further differentiate the suspect from the aggregate data utilized by RAIs. Overreliance on RAIs without due consideration can be grounds for a successful appeal, as demonstrated and described by a New Jersey Deputy Public Defender in which a judge refused to consider arguments that the high-risk score produced by the instrument was poorly refective of the defendant’s criminal history as well as failed to take into account pertinent protective factors (Adler et al., 2020, pp. 589–590). This appeal was successful, and the case was later reassigned to a new judge. While these sentiments are well-intentioned, only time will tell if changes occur in how the courts and more protective proprietary tool developers respond to defendants’ requests (Monahan, 2000). To go a step further, this call for transparency in RAI use should extend to all areas of the criminal justice system. Further, when state or local agencies procure a risk assessment tool from a vendor it would be wise to include a provision that stipulates such transparency in the contract. In some cases, it is not just the defendants or convicted individuals who are left in the dark about how an RAI works. The potential for racial bias is real and even Desmarais and colleagues (2021) concede that assessments will be impacted in jurisdictions where discriminatory practices occur. However, RAI critics and defenders seem to agree that biased predictions are the refection of discriminatory systematic practices and not of the RAIs themselves (with exception to Hannah-Mofat’s [2017] argument that some RAI item wording is suspect). Kleinberg and colleagues (2020) are particularly optimistic that the use of ML and algorithms, though at risk of unintentionally inheriting such biases, represents an opportunity to carefully examine and locate the source of discrimination. Specifcally, they argue that whereas past human judgments are difcult to fully understand, often noisy and inconsistent, the algorithm (or instrument) is more transparent in how it produces its recommendations (Kleinberg et al., 2018).5 Pew’s recent (2021) public opinion survey makes it clear that skepticism is high, especially from the African American population.6 In terms of RAIs, conducting consistent validation studies that demonstrate the tools work equally well for specifc subpopulations (i.e., by race, gender, and ethnicity) is one step toward addressing and hopefully alleviating these concerns (to which Desmarais and colleagues [2021] agree; see, also, Butler et al., Chapter 4). At present, however, too few studies conduct subgroup analyses as part of their validation work (in addition to the lack of validation in general). The conventional defnition of validation shared by Hamilton and colleagues (2017) sets the bar too low. At a minimum, a tool should be considered validated when it produces at least a moderate, statistically signifcant, efect (AUC > 0.64) for each subgroup of a population served by an RAI. A tool that varies substantially in its predictive ability by gender, race, or ethnicity is not equitable. Agencies that procure a proprietary tool should consider including participation in validation studies with an independent evaluator and consideration of subsequent modifcations based on those studies as a condition of their contract (Austin, 2006). RAIs possess errors (Forrest, 2021; Monahan & Skeem, 2016; Netter, 2007; Wandall, 2006). As prominent associations like APPA acknowledge, perfect prediction is an unrealistic expectation. RAIs are an informative supplemental tool in the decision-making process, but it should be transparent and equitable in its application.

Notes 1 Compared to 18% for Whites, 30% for Hispanics, and 24% for Asian Americans. 2 For a detailed historical account of the origins and evolution of risk assessment see Taxman and Dezember (2017, pp. 2–4). 3 Note, the performance of the tool can be signifcantly infuenced by the ability of the agency to administer the tool correctly. For example, Latessa and colleagues (2020) note that untrained staf produce poorer quality assessments than trained staf which negatively impacts the performance of the RAI.

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Debate and Concerns of Risk Assessment 4 To be clear, there is an empirical consensus that the use of actuarial risk assessment tools is a significant improvement over professional judgment in terms of predictive accuracy (Dawes et al., 1989; Desmarais et al., 2020, 2021; Duwe & Rocque, 2017; Latessa et al., 2020; Smith et al., 2009; Taxman & Dezember, 2017). At issue here is the contention that bias has still creeped its way into the decision-making process and deserves due consideration. It would be erroneous to assume that the implementation of a risk assessment tool (or complex algorithm) will, simply on its face, eliminate racial or gender discrimination. 5 Yang and Dobbie (2020) provide two statistical approaches aimed at purging race efects from algorithms. 6 Kempany and Kaiser (2017) recommend procedural justice and legitimacy be built into risk assessment, that perceptions of legitimacy be considered a criminogenic need. They provide specifc examples of scale items used in prior studies (pp. 282–283).

References Adler, J., Picard, S., & Flood, C. (2020). Arguing the algorithm: Pretrial risk assessment and the zealous defender. Cardozo Journal of Confict Resolution, 21(3), 581–596. Arnold, S., Flack, D., & Heilbrun, K. (2018). Risk assessment and juvenile resentencing: Critical analysis. Behavioral Sciences & the Law, 36(5), 576–586. https://doi.org/10.1002/bsl.2375 Austin, J. (2006). How much risk can we take? The misuse of risk assessment in corrections. Federal Probation, 70(2), 58–63. Barabas, C., Dinakar, K., & Doyle, C. (2019, July 19). The problems with risk assessment tools [Opinion]. New York Times. https://www.nytimes.com/2019/07/17/opinion/pretrial-ai.html Barno, M., Martinez, D. N., & Williams, K. R. (2020). Exploring alternatives to cash bail: An evaluation of Orange County’s Pretrial Assessment and Release Supervision (PARS) program. American Journal of Criminal Justice, 45, 363–378. https://doi.org/10.1007/s12103-019-09506-3 Berk, R. A. (2021). Artifcial intelligence, predictive policing, and risk assessment for law enforcement. Annual Review of Criminology, 4, 209–237. https://doi.org/10.1146/annurev-criminol-051520-012342 Beyond intent: Establishing discriminatory purpose in algorithmic risk assessment. (2021). Harvard Law Review, 134(5), 1760–1781. Burrell, W. D. (2017). Risk and needs assessment in probation and parole: The persistent gap between promise and practice. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 23–48). Routledge. Byrne, J. M., & Dezember, A. (2017). The research director perspective on the design, implementation, and impact of risk assessment and ofender classifcation systems in USA prisons. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 49–64). Routledge. Coleman, M., Kocher, A., Garip, F., Gleeson, S., & Hall, M. (2019). Rethinking the “gold standard” of racial profling: §287(g), Secure communities and racially discrepant police power. The American Behavioral Scientist, 63(9), 1185–1220. https://doi.org/10.1177/0002764219835275 Crime and Justice Institute at Community Resources for Justice. (2009). Implementing evidence-based policy and practice in community corrections (2nd ed.). National Institute of Corrections. https://www.crj.org/ assets/2017/07/Community_Corrections_BoxSet_Oct09.pdf Dalakian, G. J. (2018). Open the jail cell doors, HAL: A guarded embrace of pretrial risk assessment instruments. Fordham Law Review, 87(1), 325–370. Dawes, R. M., Faust, D., & Meehl, P. E. (1989). Clinical vs. actuarial judgement. Science, 243, 1668–1674. https://psycnet.apa.org/doi/10.1126/science.2648573 Desmarais, S., Garrett, B., & Rudin, C. (2019, July 19). Risk assessment tools are not a failed ‘Minority Report’ [Perspectives]. Law360. https://www.law360.com/articles/1180373 Desmarais, S. L., Johnson, K. L., & Singh, J. P. (2016). Performance of recidivism risk assessment instruments in U.S. correctional settings. Psychological Services, 13(3), 206–222. https://psycnet.apa.org/doi/10.1037/ ser0000075 Desmarais, S. L., Monahan, J., & Austin, J. (2021). The empirical case for pretrial risk assessment instruments. Criminal Justice and Behavior. Advance online publication. https://doi.org/10.1177/00938548211041651 Desmarais, S. L., & Singh, J. P. (2013). Risk assessment instruments validated and implemented in correctional settings in the United States. Council of State Governments Justice Center. https://csgjusticecenter.org/publications/ risk-assessment-instruments-validated-and-implemented-in-correctional-settings-in-the-united-states/ Desmarais, S. L., Zottola, S. A., Duhart Clarke, S. E., & Lowder, E. M. (2020). Predictive validity of pretrial risk assessments: A systematic review of the literature. Criminal Justice and Behavior, 48(4), 398–420. Advance online publication. https://doi.org/10.1177/0093854820932959

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Adam K. Matz Duwe, G., & Rocque, M. (2017). Efects of automating recidivism risk assessment on reliability, predictive validity, and return on investment (ROI). Criminology and Public Policy, 16(1), 235–270. https://doi. org/10.1111/1745-9133.12270 Ellis, P. D. (2010). The essential guide to efect sizes: Statistical power, meta-analysis, and the interpretation of research results. Cambridge. Forrest, K. B. (2021). When machines can be judge, jury, and executioner: Justice in the age of artifcial intelligence. World Scientifc. Hamilton, M. (2015). Risk-needs assessment: Constitutional and ethical challenges. American Criminal Law Review, 52(2), 231–292. Hamilton, Z., Kowalski, M. A., Schaefer, R., & Kigerl, A. (2020). Recrafting youth risk assessment: Developing the modifed positive achievement change tool for Iowa. Deviant Behavior, 41(10), 1268–1289. https://doi.org/10.1080/01639625.2019.1609302 Hamilton, Z., Tollefsbol, E. T., Compagna, M., & van Wormer, J. (2017). Customizing criminal justice assessments. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 333–377). Routledge. Hannah-Mofat, K. (2017). Purpose and context matters: Creating a space for meaningful dialogues about  risk and need. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 431–446). Routledge. Holsinger, A. M., Lowenkamp, C. T., & Latessa, E. J. (2006). Predicting institutional misconduct using the Youth Level of Service/Case Management Inventory. American Journal of Criminal Justice, 30, 267–284. https://doi.org/10.1007/BF02885895 Jalbert, S. K., Rhodes, W., Flygare, C., & Kane, M. (2010). Testing probation outcomes in an evidence-based practice setting: Reduced caseload size and intensive supervision efectiveness. Journal of Ofender Rehabilitation, 49(4), 233–253. https://doi.org/10.1080/10509671003715987 Jones, N. J., Brown, S. L., Robinson, D., & Frey, D. (2016). Validity of the Youth Assessment and Screening Instrument: A juvenile justice tool incorporating risks, needs, and strengths. Law and Human Behavior, 40(2), 182–194. https://doi.org/10.1037/lhb0000170 Kempany, K. G., & Kaiser, K. A. (2017). Incorporating procedural justice and legitimacy into the RNR model to improve risk-need assessment. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 269–291). Routledge. Kleinberg, J., Lakkaraju, H., Leskovec, J., Ludwig, J., & Mullainathan, S. (2018). Human decisions and machine predictions. The Quarterly Journal of Economics, 133(1), 237–293. https://doi.org/10.1093/q je/ q jx032 Kleinberg, J., Ludwig, J., Mullainathan, S., & Sunstein, C. R. (2020). Algorithms as discrimination detectors. Proceedings of the National Academy of Sciences, 117(48), 30096–30100. https://doi.org/10.1073/ pnas.1912790117 Koepke, J. L., & Robinson, D. G. (2018). Danger ahead: Risk assessment and the future of bail reform. Washington Law Review, 93, 1725–1807. Latessa, E. J., Johnson, S. L., & Koetzle, D. (2020). What works (and doesn’t) in reducing recidivism (2nd ed.). Routledge. Lowenkamp, C. T., VanNostrand, M., & Holsinger, A. (2013). The hidden costs of pretrial detention. Laura and John Arnold Foundation. https://nicic.gov/hidden-costs-pretrial-detention Makarios, M., & Latessa, E. J. (2013). Developing a risk and needs assessment instrument for prison inmates: The issue of outcome. Criminal Justice and Behavior, 40(12), 1449–1471. https://doi. org/10.1177/0093854813496240 Mamalian, C. A. (2011). State of the science of pretrial risk assessment. Pretrial Justice Institute. https://nicic.gov/ state-science-pretrial-risk-assessment Massachussetts v. Feeney, 442 U.S. 256 (1979). Matz, A. K., Martinez, A. R., & Kujava, E. (2021). Assessing risk in North Dakota juvenile probation: A preliminary examination of the predictive validity of the Youth Assessment and Screening Instrument. Crime & Delinquency, 67(4), 551–573. https://doi.org/10.1177/0011128720950023 McCandless, S. (2017). Stingray confdential. George Washington Law Review, 85(3), 993–1038. Messing, J. T., Campbell, J., Dunne, K., & Dubus, S. (2020). Development and testing of the Danger Assessment for Law Enforcement (DA-LE). Social Work Research, 44(3), 143–156. https://doi.org/10.1093/ swr/svaa005 Miller, W. T., Campbell, C. A., & Larnell, T. (2021). Bias detected? An examination of criminal history using the OYAS-DIS for girls and Black youth. Journal of Ethnicity in Criminal Justice, 19(2), 101–119. https:// doi.org/10.1080/15377938.2021.1932661

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Debate and Concerns of Risk Assessment Monahan, J. (2000). Violence risk assessment: Scientifc validity and evidentiary admissibility. Washington and Lee Law Review, 57(3), 901–918. Monahan, J., & Skeem, J. L. (2016). Risk assessment in criminal sentencing. Annual Review of Clinical Psychology, 12(1), 489–513. https://doi.org/10.1146/annurev-clinpsy-021815-092945 Netter, B. (2007). Using group statistics to sentence individual criminals: An ethical and statistical critique of the Virginia risk assessment program. Journal of Criminal Law and Criminology, 97(3), 699–730. https:// www.jstor.org/stable/40042840 Orbis Partners. (2007). Long-term validation of the Youth Assessment and Screening Instrument (YASI) in New York State Juvenile Probation. https://www.criminaljustice.ny.gov/opca/pdfs/YASI-Long-Term-Validation-Report.pdf Paparozzi, M. A., & Gendreau, P. (2005). An intensive supervision program that worked: Service delivery, professional orientation, and organizational supportiveness. The Prison Journal, 85(4), 445–466. https:// doi.org/10.1177/0032885505281529 Pew Research Center. (2021). Deep divisions in Americans’ views of nation’s racial history - and how to address it. https://www.pewresearch.org/politics/2021/08/12/deep-divisions-in-americans-views-of-nationsracial-history-and-how-to-address-it/ Pusch, N., & Holtfreter, K. (2018). Gender and risk assessment in juvenile ofenders: A meta-analysis. Criminal Justice and Behavior, 45(1), 56–81. https://doi.org/10.1177/0093854817721720 Salisbury, E. J., Boppre, B., & Kelly, B. (2017). Gender-responsive risk and need assessment. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 220–243). Routledge. Schaefer, B. P., & Hughes, T. (2019). Examining judicial pretrial release decisions: The infuence of risk assessments and race. Criminology, Criminal Justice, Law & Society, 20(2), 47–58. Schwalbe, C. S. (2007). Risk assessment for juvenile justice: A meta-analysis. Law and Human Behavior, 31(5), 449–462. https://doi.org/10.1007/s10979-006-9071-7 Schwartz, I. M., York, P., Greenwald, M., Ramos-Hernandez, A., & Feeley, L. (2017). Using predictive analytics and machine learning to improve the accuracy and performance of juvenile justice risk assessment instruments. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 140–165). Routledge. Scott, T., Brown, S. L., & Skilling, T. A. (2019). Predictive and convergent validity of the youth assessment and screening instrument in a sample of male and female justice-involved youth. Criminal Justice and Behavior, 46(6), 811–831. https://doi.org/10.1177/0093854819842585 Scurich, N., & Krauss, D. A. (2020). Public’s views of risk assessment algorithms and pretrial decision making. Psychology, Public Policy, and Law, 26(1), 1–9. https://doi.org/10.1037/law0000219 Shepherd, S. M., & Willis-Esqueda, C. (2017). Indigenous perspectives on violence risk assessment: A thematic analysis. Punishment & Society, 20(5), 599–627. https://doi.org/10.1177/1462474517721485 Singh, J. P., Grann, M., & Fazel, S. (2011). A comparative study of violence risk assessment tools: A systematic review and metaregression analysis of 68 studies involving 25,980 participants. Clinical Psychology Review, 31(3), 499–513. https://doi.org/10.1016/j.cpr.2010.11.009 Skeem, J. L., Kennealy, P. J., Hernandez, I., Clark, S., & Tatar, J. R. (2013). CA-YASI predictive utility: How well do scores and classifcations predict youths’ infractions and re-arrest? University of California, Irvine. Smith, P., Cullen, F. T., & Latessa, E. J. (2009). Can 14,737 women be wrong? A meta-analysis of the LSI-R and recidivism for female ofenders. Criminology and Public Policy, 8(1), 183–208. https://doi. org/10.1111/j.1745-9133.2009.00551.x Starr, S. B. (2014). Evidence-based sentencing and the scientifc rationalization of discrimination. Stanford Law Review, 66, 803–872. State v. Loomis, 881 N.W.2d 749 (Wis. 2016). Stohr, M. K., & Walsh, A. (2016). Corrections: The essentials (2nd ed.). Sage. Taxman, F. S., & Belenko, S. (2013). Implementing evidence-based practices in community corrections and addiction treatment. Springer. Taxman, F. S., & Dezember, A. (2017). The value and importance of risk and need assessment (RNA) in corrections & sentencing: An overview of the handbook. In F. S. Taxman (Ed.), Handbook on risk and need assessment: Theory and practice (pp. 1–20). Routledge. Viglione, J., Rudes, D. S., & Taxman, F. S. (2015). Misalignment in supervision: Implementing risk/ needs assessment instrument in probation. Criminal Justice and Behavior, 42(3), 263–285. https://doi. org/10.1177/0093854814548447 Wandall, R. H. (2006). Actuarial risk assessment: The loss of recognition of the individual ofender. Law, Probability and Risk, 5(3–4), 175–200. https://doi.org/10.1093/lpr/mgm001 Washington v. Davis, 426 U.S. 229 (1976).

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6 JUSTICE-INVOLVED POPULATIONS WITH DISABILITIES Examining Inequalities during Incarceration and Reentry Kimberly D. Dodson and Joshua R. Rufn Introduction According to the Bureau of Justice Statistics (BJS), an estimated 32% of state and federal prisoners and 40% of jail inmates report having at least one disability related to cognitive, vision, hearing, ambulatory, self-care, and independent living limitations (Bronson et al., 2015). Data also provide evidence that individuals with disabilities are afected in all aspects of jail and prison life (see Dogbe et al., 2016; Koo, 2016). The architectural design of a jail or prison, for example, may make certain areas of the facilities inaccessible to individuals with disabilities, including showers, dayrooms, outdoor recreation areas, and dining halls. A commonality in much of the data regarding inclusion of persons with disabilities (IPWDs) is that this population, whether in jail or prison, is overrepresented, overlooked, and underreported. Incarcerated people of color with intellectual and developmental disabilities are disproportionately afected by life behind bars because they are less likely than their white counterparts to be diagnosed prior to being locked up (Eisner, 2020). This means people of color with disabilities are more likely than Whites to enter the justice system with a lack of preventative care and are unaccustomed to advocating for their disability needs. Data also indicate persons with disabilities (PWD) are 2.5 times more likely to face violent victimization than populations without disabilities (Harrell, 2017), and they are particularly susceptible to sexual violence behind bars (Vallas, 2016). While there are several felds that have addressed disability and its interaction with crime and victimization, the felds of criminology and criminal justice have made minimal contributions to the literature, despite the increasing disability prevalence within all points of the criminal justice system (see Oberholtzer, 2017; Wallace, 2021). There is a high demand for research that examines how the experiences of correctional populations with disabilities difer from correctional populations without disabilities (Dodson, 2018a). Data, however, remain limited on justice-involved individuals with disabilities, and concerns remain about the quality of care they receive (Rufn et al., 2022). Further, research suggests this lack of knowledge regarding the experiences of these individuals contributes to inequalities within correctional settings and during reentry (Matz, 2018). In this chapter, we examine disability prevalence among populations under institutional supervision. We also examine the Americans with Disabilities Act (ADA) and its relevance to correctional facilities and justice-involved individuals with disabilities. We discuss core theoretical frameworks in which disability is situated, including the Institute of Medicine’s (IOM) DOI: 10.4324/9781003245032-7

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Enabling-Disabling Model, Medical Model of Disability, Expert/Professional Model of Disability, Social Model of Disability, and Rehabilitation Model of Disability. In addition, we apply the risk-need-responsivity (RNR) Model as a treatment intervention and assess its efectiveness for responding to this marginalized population. We conclude with an examination of the inequalities that individuals with disabilities encounter within correctional facilities, such as rehabilitation programs, medical treatment, and accommodations for independent daily living as well as barriers to reentry.

Disability Prevalence in United States Prisons Individuals who are incarcerated in state and federal prisons (38%) are two and a half times more likely than U.S. adults (15%) living in the general population to report a disability. Statistics also show that 40% of people incarcerated in state-run prisons and 29% in federal-run prisons report living with at least one disability. Both state and federal prisoners cite a cognitive disability (23%) as the most common type of disability, followed by ambulatory (12%) and vision (11%) disabilities. Estimates also show that about 24% of state and federal inmates report living with an attention defcit disorder. In addition, state prisoners (15%) are almost twice as likely to report having a learning disability than federal prisoners (8%) (Maruschak et al., 2021). Across state and federal correctional facilities, female prisoners are more likely than male prisoners to report a disability diagnosis. That is, female state (50%) and federal (40%) prisoners are more likely to report living with a disability compared to male state (39%) and federal (28%) prisoners. White state inmates (44%) are more likely to have a disability in comparison to Blacks (34%) and Hispanics (37%). Statistics for federal inmates reveal a similar pattern with Whites (37%) reporting they are more likely to have a disability in comparison to Blacks (22%) and Hispanics (27%). More than half of inmates ages 55–64 at state (57%) and federal (51%) correctional facilities report living with a disability. The number increases to nearly 70% for state and federal inmates over the age of 65 (Maruschak et al., 2021). From 2011 to 2016, the prevalence of reported disabilities in state and federal prisons rose from 32% to 36%. Both state and federal prisoners reported an increase in cognitive, hearing, and vision disabilities. Prisoners also reported these disabilities interfered with their capacity for self-care and independent living (Maruschak et al., 2021). Correctional administrators and staf are responsible for the care and treatment of people in their custody. The fundamental legal protections for the care and treatment of individuals with disabilities are articulated in the ADA.

Te Americans with Disabilities Act The ADA (1990) is a civil rights law that prohibits discrimination against individuals based on disability. Specifcally, Title II of the ADA states, “[N]o qualifed individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefts of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity” 42 U.S.C. § 12132. The ADA (1990) defnes someone with a disability as a person who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) a person with a record of such an impairment, even if they do not currently have a disability; and (3) individuals who are regarded [or perceived] as having a disability. (p. 8) The Act does not list all the impairments that qualify as disabilities, but it is meant to include a broad range of physical and cognitive limitations. 132

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The ADA is the “vehicle of protection of human rights for disabled persons,” (Paz, 2007, p. 43), and according to Pennsylvania Department of Corrections v. Yeskey (1998), the ADA applies to individuals in correctional facilities. However, incarcerated individuals often face difculty fling ADA claims because they are unable to demonstrate they are “qualifed” individuals or that they experience exclusion because of their disability status (Paz, 2007). A qualifed individual is a person that must demonstrate they can participate in programs or services with or without accommodation (ADA National Network, 2021). Furthermore, there is substantial debate regarding which individuals under correctional supervision are “qualifed” (Koo, 2016). An examination of Section 504 of the Rehabilitation Act of 1973 and the ADA (1990), shows these two federal laws disproportionately impact individuals who are incarcerated. Although many prisoners with disabilities are under the scope of protections provided by the ADA, there are still some who may not reap the benefts. For example, their disability status often is not taken into consideration when they fail to follow prison rules or procedures. Individuals with disabilities have difculty following institutional rules because of cognitive impairments or physical limitations, not their unwillingness to comply (Dodson, 2018a). Individuals with a traumatic brain injury (TBI), for instance, may need additional time to process instructions or directives because of their impairment. A delayed response or failure to immediately comply with an ofcer’s directions may be erroneously interpreted as noncompliance. The lack of system-wide disability policies frequently leads those with a disability to use improvised “coping mechanisms” or “self-directed alternative accommodations” in correctional facilities (Blanck, 2017, p. 316). To illustrate, the individual with the disability may pay other incarcerated individuals to assist with bathing or pushing a wheelchair. However, these adaptive strategies may result in injury to the individual with a disability because the person assisting them is not trained to provide such services. Even if there is no resulting injury, this does not absolve a correctional facility of their legal responsibility to provide accessible services to individuals with disabilities. In the next section, we discuss six Models of disability and the limitations of each in providing accessible services in correctional settings.

Models of Disability Each Model of disability provides a conceptual framework for understanding people’s attitudes, conceptions, and prejudices about individuals with disabilities. Each disability Model also serves as the foundation for the treatment PWD receives from healthcare professionals. This section highlights the most utilized Models of disability as well as an assessment of each. The section includes a discussion of how the Models of disability apply in institutional corrections and reentry. In addition, this section includes a discussion of the inequalities that often play out in healthcare delivery and treatment for justice-involved individuals with disabilities.

Institute of Medicine’s Enabling-Disabling Model The IOM Enabling-Disabling Model is a framework developed by Nagi (1965) that proposed a common language for describing and understanding disability and its related concepts. In this Model, there are four major concepts—pathology, impairment, functional limitation, and disability. Table 6.1 presents the conceptual defnitions of the IOM Enabling-Disabling Model (IOM, 1991, pp. 79–81). Under the Enabling-Disabling Model, the rehabilitative process attempts to resolve issues associated with displacement by restoring individual functioning or by expanding environmental access (e.g., building accessibility ramps). The Model does note these two methods, cure and care, are not mutually exclusive. Rehabilitation programs including both components are likely to be the most successful (Brandt & Pope, 1997). 133

Kimberly D. Dodson and Joshua R. Rufn Table 6.1 Conceptual defnitions of IOM Enabling-Disabling model. Table prepared by the authors Concept

Defnition

Pathology

Interruption or interference of normal bodily processes or structures caused by disease, trauma, or other conditions. Loss and/or abnormality of mental, emotional, physiological, or anatomical structure or function; includes all losses or abnormalities, not just those attributable to active pathology; also includes pain. Restriction or lack of ability to perform an action or activity in the manner or within the range considered normal that results from impairment. Inability or limitation in performing socially defned activity and roles expected of individuals within a social and physical environment; or gap between a person’s capacities and the demands of relevant, socially defned roles and tasks in a particular physical and social environment.

Impairment

Functional limitation Disability

The 1991 IOM Model defned the components of the disabling process in a way that allows for the identifcation of potential points for preventive intervention. Identifying and describing the importance of the diferent risk factors and the interaction and integral nature of quality of life have been fundamental to the feld of disability prevention. However, there are weaknesses associated with the Model. For example, the Model was unidirectional and focused on preventing progression, but not on reversal of the disabling condition (i.e., rehabilitative measures). The Model also failed to fully recognize the role of environmental factors and an individual’s interaction with the environment. While the Model discussed environmental factors, they are not clearly represented (Brandt & Pope, 1997). The revised IOM Model depicts disability more clearly as the interaction of the person with the environment and shows the possibility of movement in the direction of rehabilitation. Brandt and Pope’s (1997) amended Model includes three dimensions that address the person, the environment, and disability. The revised Model adds a designation to indicate people who have no disabling conditions. This allows for the idea of complete rehabilitation. The environmental factor focuses on the quality and quantity of accessible support systems and the existence of various barriers. Ultimately, a person will experience greater disability in less supportive environments than they would in more supportive ones (Brandt & Pope, 1997). Environmental factors include social-psychological and physical categories. Social-psychological factors include discrimination, access to health and medical care, appropriate care, access to technology, culture, employment, family, access to ftness and health-promoting activities, and other similar factors. The physical environment includes architectural design, transportation, climate, appropriate technology, and geography (Brandt & Pope, 1997). Regarding disability, the revised Model defnes disability as a function of the interaction between the person and the environment. Brandt and Pope’s (1997) IOM Model is a holistic treatment plan to improve the lives of those living with a disability, including individuals incarcerated in correctional facilities. It is important to respond to individuals with a disability on a case-by-case basis and recognize that one-size solutions do not ft all situations. Correctional staf, with the input of the person with the disability, can start by devising a plan for environmental changes to accommodate the specifc needs of the person who is living with a disability. Environmental changes may include making cells wheelchair accessible by widening the doors; raising the toilets, beds, and tables; and the installation of handrails. Shower facilities also may require the installation of handrails or grab bars as well as seating to accommodate proper bathing. Treatment staf should continually monitor the needs of individuals with a disability and adjust the environment as necessary.

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The revised IMO Model encourages treatment staf to work with an individual who has a disability to devise a ftness plan with their special needs in mind (Brandt & Pope, 1997). People with limited mobility, for example, may need to do exercises from a seated position. An individual’s disability also should be taken into consideration for institutional work assignments because physical limitations may preclude the person from performing the job adequately and it could jeopardize the safety of the individual or others.

Medical Model of Disability The Medical Model of Disability, or illness approach, also created by Nagi (1965) describes disability because of a health condition, disease, or trauma that disrupts the functioning of a person in a physiological or cognitive way. This defnition of the Medical Model is the reason it is sometimes called the biological inferiority or functional limitation Model (Amponsah-Bediako, 2013). The Model views a person’s disability as a “defect” that must be “cured, fxed, or completely eliminated” (Ofce of Developmental Primary Care, 2018, p. 1). The Model assumes the person with a disability is sufering and incapable of functioning as well as someone without a disability. Therefore, the Medical Model’s prescription for “fxing” the individual is to perform a medical intervention that may include medication, therapy, surgery, prosthetics, or other forms of treatment. The role of persons with a disability is to relinquish control of their care and treatment to healthcare professionals who are considered the experts. Many individuals with disabilities as well as disability advocacy groups reject the Medical Model because of its narrow focus and failure to address the full range of issues related to living with a disability (Smeltzer, 2007). For instance, it ignores the ability of many individuals to live and be independent, the impact of a disability on access to healthcare, and the need to modify how care is delivered because of a disability. Additionally, the Medical Model limits a patient’s ability to provide direct input regarding medical and healthcare treatment decisions. Individuals with disabilities have limited autonomy when they enter the justice system because of their physical or mental impairments. Once incarcerated, their autonomy is eroded further because they are not allowed to make even the most basic decisions about their daily lives ( Johnson & Toch, 1982; Sykes, 1958). In Washington v. Harper (1990), the United States Supreme Court examined the limits to autonomous medical decision-making of justice-involved individuals. In the past, Harper received treatment for a mental health condition that included consensual administration of antipsychotic medication. While incarcerated, Harper’s mental health deteriorated, and treatment staf administered antipsychotic medication against his wishes. Harper fled a civil suit alleging his due process rights were violated because he was not aforded a hearing on the matter. However, the Justices ruled against Harper noting the need to balance the interests of the individual against the compelling interests of the state. In this case, the state demonstrated a compelling interest in reducing the risk of harm Harper posed to himself and others within the institution. Washington v. Harper (1990) established limits regarding the medical decision-making of individuals under correctional supervision.

Expert/Professional Model of Disability The Expert/Professional Model is an extension of the Medical Model. Treatment professionals follow a process of identifying the person’s impairment and the limitations stemming from it. In addition, it seeks to improve the quality of life for the person with a disability. However, medical and treatment professionals reject the Expert/Professional Model as a stand-alone approach for treating clients because it is a top-down Model in which service providers make treatment decision with little input from their clients (National Black Disability Coalition, 2020). The

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relationship between the service provider and client is that of a “fxer” and “fxee” and it magnifes the diferential power dynamic between the two (Amponsah-Bediako, 2013, p. 126). In other words, the primary problem with this treatment Model is that it treats the client as someone who is acted upon by service providers. Like the Medical Model, the experts make the treatment decisions and clients have little to no voice in decisions that will ultimately afect their daily lives. The services that both the Medical and Expert/Professional Model of Disability provide revolve around “curing” a person’s disability or making a person look less disabled. Critics of these Models argue they do not put sufcient emphasis on the importance of environmental accessibility (Retief & Letšosa, 2018), and this is especially true in prisons and jails (Hebets, 2021). Incarcerated individuals with disabilities may need environmental accommodations, including modifcations to toilet and shower facilities, devices such as bed transfer or shower chair, grab bars, wheelchair accessible ramps and cells, and wide hallways and doors. The ADA does not automatically require correctional facilities to be architecturally retroftted, but it does require facilities to provide accessibility accommodations for PWD. However, if an accommodation creates an undue burden an agency is not required to provide it. An undue burden is defned as a “signifcant expense or a fundamental alteration of the nature of the operations of the agency” (Rubin & McCampbell, 1995, p. 4). Correctional administrators, however, must make reasonable accommodations that may include relocating services to other parts of the prison or jail, redesigning equipment, or providing auxiliary aids and services.

Social Model of Disability Oliver (1983), a British sociologist living with a disability, created the Social Model of Disability in reaction to perceived defciencies in the other disability models. The Social Model, for example, departs from the Medical and Expert/Professional Models in that it views a person’s disability as a function of attitudinal, environmental, and social barriers that prevent them from fully participating in society. In other words, the loss or limitation of opportunities to take part in everyday activities of living on an equal level with others is the result of physical or social barriers. Disability is “perceived less as an attribute of a person and more as a set of circumstances, many of which arise from the external environment” (Young, 2010, p. 3). The Social Model of Disability also is known as the Minority-Group Model of Disability, and the underlying assumption is disability stems from the failure of society to provide adequate services or adjust to meet the needs of a disabled minority (Cigman, 2010). Unlike the Medical and Professional Models of Disability, the Social Disability Model emphasizes the human right to participate in society, and this includes participation in correctional settings and reentry (Seevers, 2016). The Model’s primary goal is to remove barriers that restrict the life choices of PWD. The removal of barriers allows PWD to live equally and independently in their communities with decision-making power and control over their own lives. The Social Disability Model also seeks to remove the stigma associated with a disability and encourages creative environmental adaptations and designs to better accommodate individuals with disabilities. In prison, there are several barriers that hinder individuals with a disability to live independently. One of the primary barriers to appropriate treatment and care is cost. The Amplifying Voices of Inmates with Disabilities (AVIDs) Prison Project found many state prisons ruled accommodations, such as “exercise equipment, specialized diets, prosthetics, wheelchairs, and other assistive technology no longer medically necessary” for individuals who are incarcerated to cut costs (Seevers, 2016, p. 14). To ofset some of the costs associated with medical care, most prisons across the United States also require inmates to pay a medical copay. The average copay ranges from $2 to $8 while the hourly rate of pay for most state inmates is $0.14 to $0.63 cents (Rosen, 136

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2021). A medical copay represents a barrier to medical care because it may be cost prohibitive for many inmates. In the wake of the coronavirus, however, most state prisons are waiving medical copays because they do not want it to be an obstacle to treatment (Rosen, 2021). Many disability advocates support the elimination of copays for those who are incarcerated under any circumstances because, in some instances, inmates may not seek medical care even in life threatening situations (Dodson, 2018a). The Social Model of Disability supports the elimination of barriers like medical copays (Cigman, 2010). The AVID Prison Project also found there are inequalities in vocational training and release planning for individuals who are disabled (Seevers, 2016). There is a lack of access to vocational/ educational training for individuals who are disabled or no accommodation for their disability during the training. One individual in the AVID report stated that he did not receive visual aids for college class even though he had a documented visual impairment. Another asked a counselor about the process for applying for Social Security benefts, but his request was denied because his counselor stated he should be focused on seeking employment (Seevers, 2016). Individuals without access to vocational/educational training are less likely to be successful on reentry (Centers for Disease Control and Prevention, 2020). Again, the Social Disability Model advocates for the elimination of barriers for PWD to make their own life choices.

Rehabilitation Model of Disability The Rehabilitation Model integrates concepts developed by the World Health Organization’s (WHO, 2001) International Classifcation of Functioning (ICF). It utilizes integrated and applied approaches, including capacity, contextual factors, functioning, performance, and self-perception. The ICF uses a self-report questionnaire that asks patients about the level of difculty in comprehension and communication, ability to walk, self-care, life activities (household and work/ school), and participation in society (Grover, 2014). Having difculty performing activities mean discomfort or pain is heightened, activities require increased efort or time, and adaptations are necessary to perform simple tasks. Professionals who support the Rehabilitation Model see PWD as individuals in need of services from a rehabilitation specialist who can provide targeted services to make up for the defciency caused by the disability. In addition, rehabilitation specialists work with other medical and clinical professionals to ofer a patient a full range of services. The Model, for example, may provide a person with disability counseling, occupational therapy, training, and other services. Unfortunately, this Model may be cost prohibitive because few correctional facilities have the fnancial resources to hire the number of staf necessary to sustain it. Even so, correctional administrators and treatment staf should collaborate on a treatment plan with individuals who have a disability to improve their quality of life through a holistic approach to rehabilitative services.

Te Risk-Need-Responsivity Model The RNR Model is a theoretical framework that addresses the underlying causes of persistent criminal behavior and provides principles for reducing criminal involvement. The original RNR Model focused on the three core principles: risk, need, and responsivity (Andrews et al., 1990). The Model has since been expanded to include 18 efective principles for rehabilitation (Andrews, 2001; Andrews et al., 2011). The Model assumes treatment professionals can intervene to help people reduce their involvement in crime and thus provide a beneft for the community in the form of crime reduction. In addition, the RNR Model advocates for the intervention to be compassionate, collaborative, and a dignifed human service intervention that targets known factors of criminogenic behavior. 137

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The risk component of the Model has two parts. First, the likelihood of engaging in criminal behavior and the predictors of criminal behavior varies from person to person. Thus, it is important to understand the likelihood of ofending (risk) because more crime can be prevented when we target individuals with a higher risk of ofending than targeting low-risk individuals. Therefore, it is important to identify an individual’s risk level prior to intervention recommendations. It also is important to understand an individual’s risk level because higher risk individuals require more intensive intervention (Andrews et al., 2011). The need principle refers to the treatment needs of the individual. Andrews and Bonta (1998) identifed eight broad risk/need factors. These factors are divided into big four and moderate four categories. The big four includes anti-social attitudes, anti-social associates, anti-social temperament/personality, and history of diverse anti-social behavior. The moderate four includes family/marital circumstances, social/work, leisure/recreation, and substance abuse. These factors are aligned with specifc criminogenic needs to determine treatment needs. Responsivity refers to the variations among the services to which an individual may respond. Individuals with a disability, for example, may require a diferent treatment approach than someone without a disability. Interventions should be consistent with an individual’s developmental, cognitive, or physical abilities and resources. Thus, it is important to tailor treatment to an individual’s needs as much as possible and to help the individual understand how the program benefts their interests (Andrews & Bonta, 1998; 2010b). When an individual can make the connection between the treatment and a personal outcome, there is potential for more success. These three core principles are accompanied by three additional components: overarching principles, additional clinical principles, and organizational principles. The overarching principles component includes respecting the individual and the normative context, basing the program on validated psychological theory, and the importance and legitimacy of services that prevent crime. The additional clinical principle argues programs should target multiple criminogenic needs, assess strengths, use structured assessments of risk, and allow for professional discretion based on well-reasoned and well-documented grounds. The organizational principle recognizes intervention contexts and the resources needed for the intervention. It is recommended that interventions are community-based when possible. In addition, it is important for practitioners ofering the intervention to practice relationship and structuring principles with the individual (Andrews & Bonta, 2010b). One situation where the application of the RNR Model may be especially helpful is addressing the criminogenic needs of individuals with learning disabilities. Traditionally, individuals with learning disabilities have been excluded from most mainstream mental health and criminal justice services (Taylor, 2010). This exclusion has prevented individuals with learning disabilities from addressing risk factors identifed in sentence plans. This lack of access creates obstacles to early release or favorable parole decisions. Many individuals who have a learning disability and who are incarcerated serve their time without access to treatment. This lack of access to treatment is a disservice to the individual and increases the likelihood of recidivism. Further, the exclusionary factor raises questions of equity and discrimination within the criminal justice system for individuals presenting with a learning disability. In the past, psychoanalytic and psychodynamic interventions were seen as an efective treatment intervention for individuals who were incarcerated. The likelihood of exclusion of individuals with a learning disability, however, has made it difcult to assess the true efectiveness of such interventions among all populations. Despite previous arguments that individuals with learning or intellectual disabilities will not beneft from such intervention, Hollins (1992) suggested group psychodynamic psychotherapy could be efective for individuals with a learning disability. Psychodynamic psychotherapy, also known as “talk therapy” is guided by a therapist during group therapy sessions. Research on psychodynamic psychotherapy (Roessler, 2016) found it to be an 138

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efective tool for helping those with learning disabilities to increase their social participation and build confdence in their social interactions (Beail, 2016). Further, Mattison and Pisttrang (2000) demonstrated individuals with learning disabilities can beneft from psychodynamic-oriented therapies when the methods are adapted to the specifc population. One of the arguments for excluding individuals with learning disabilities from psychodynamic psychotherapy is they cannot understand the consequences of their actions and therefore cannot meaningfully engage within the psychotherapy context. Individuals with learning disabilities, however, reported group psychotherapy was benefcial because it allowed them to engage in a process that has traditionally been denied to them based on their disability (McDonald et al., 2003). As McDonald et al. (2003) note: while the emphasis on communication and being accepted is consistent with the psychotherapy process in the non-learning-disabled population, these processes are likely to be particularly important for people with a learning disability who are likely to have more difculty being listened to and accepted. (p. 446) Thus, it seems imperative that individuals with learning disabilities be given access to therapeutic services. As the RNR Model suggests, the responsivity of a treatment is based on the tailoring of the treatment to a specifc population. If properly administered psychodynamic psychotherapy can be benefcial to a variety of populations, including individuals with learning disabilities. The ability of individuals with learning disabilities to beneft from such therapy supports the need for interventions to be tailored to the population to which they are being ofered. Instead of excluding individuals from a program, treatment professionals should work to alter the program in a way that it will be benefcial to the targeted population. By catering to the specifc population, there is a maximization of potential engagement of the individual. Engagement is achieved by matching interventions to the learning style, cognitive ability, and values of the person receiving the treatment. Hence, the need to develop fexible and adaptable treatment approaches that can be suited to individuals. The adaptation of behavior-based therapy can easily be tailored to individuals with learning disabilities by using simple language, modifed interventions, and inserting other adaptations into the therapy process (Roeden et al., 2009). For individuals with mental illness, the correctional system typically views them strictly as psychiatric patients and often fails to address their criminogenic needs beyond their mental illness. Research indicates individuals with serious psychiatric disorders share criminogenic risk factors with non-psychiatric inmates (Morgan et al., 2012; Wolf et al., 2011). Thus, simply alleviating mental health symptoms may not be enough to reduce recidivism (Peterson et al., 2010). Despite the need to address both mental health concerns and criminogenic needs, correctional facilities struggle to provide efective mental health treatment, but the ultimate failure is the lack of awareness of the need to treat the criminogenic needs of individuals with mental illness (Batastini et al., 2018). Here, the RNR Model could be applied to adapt programs to address both criminogenic needs and mental health concerns to increase the likelihood of an individual’s release after incarceration. For individuals with physical limitations, such as deafness, treatment interventions must be adapted to address the unique needs of the individual. If adaptations, centering on language and literacy, are not made, the efciency of the program will be reduced. Failure to address language and literacy concerns may result in the exclusion of deaf people from programming. This is problematic because individuals who are deaf deserve access to programming to assist in efective reintegration. For example, substance abuse is common among the deaf incarcerated 139

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population. Research indicates that 63% of violent ofenders who are deaf have a history of alcohol and/or cannabis use prior to incarceration. In addition, 64% of murderers who are deaf reported a history of drug and/or alcohol abuse (Miller et al., 2005; Vernon et al., 1999). Further, 46% of sex ofenders who are deaf reported serious substance misuse, with alcohol and cannabis being the most frequently used (Miller & Vernon, 2003). These data indicate that drug use is likely a risk factor for many individuals who are deaf and incarcerated but they are often excluded from addiction treatment programs for a lack of available accommodations. The failure to address this empirically supported dynamic risk factor (Andrews & Bonta, 2010a) places individuals who are deaf at a higher risk of delay in parole release and/or recidivism upon release, which places them at a disadvantage compared to their hearing peers (Zidenberg et al., 2021). The deaf incarcerated population also appears to have a high prevalence of mental health concerns (Glickman, 2013). This also leads to the exclusion of individuals who are deaf in mental health treatment programs because there are few clinicians trained to work with deaf populations or who are fuent in American Sign Language (ASL). Determining recidivism risk among the deaf population also may be problematic because risk measures have not been validated on deaf populations. At the most basic level of the RNR Model risk-needs assessments should either be translated into sign language or new assessment measures should be formed for individuals who are deaf (Mitchell & Braham, 2011). In terms of responsivity, treatment professionals must recognize therapy may move at a slower pace with people who are deaf because there may be a need to fll in gaps in knowledge, and interpreters are needed to facilitate communication between the therapist and client. Ideally, program facilitators should have knowledge and fuency in a signed language as the use of interpreters is not ideal in a treatment setting and may disrupt the therapeutic alliance (Bramley, 2007; Payne & O’Connor, 2013). The RNR Model also can be applied to individuals with other physical limitations or disabilities. Individuals who are incarcerated, like the general population, have varying degrees of disability that afects the individual in diferent ways. Treatment personnel must consider the degree of impairment, length of time the ofender has been living with the impairment, and specifc nature of the impairment when determining an individual’s functioning level and potential treatment options (Kitei & Sales, 2008). All these factors may be relevant to treatment or rehabilitation outcomes. An individual who is blind or visually impaired, for example, may require adaptation to treatment oferings. For instance, if the intervention uses a workbook, the material needs to be provided in an accessible format (i.e., braille or large print). Individuals who have a physical disability or limitation also may need accessible work accommodations. Making these accommodations address the responsivity component of the RNR Model and increase the likelihood of success for program participants. Correctional programming adhering to the RNR Model has better outcomes across a variety of justice-involved populations (Gendreau & Goggin, 2013). In addition to the efectiveness of interventions following the RNR principles, programming adhering to the RNR Model also results in cost reduction when compared to other less efective intervention Models (Romani et al., 2012). Thus, it is imperative to address the multiple criminogenic needs an individual may face (risk), the interventions the individual needs to be successful upon release (need), and to alter the format of treatment programs when necessary to improve success of those with physical and mental limitations (responsivity). As mentioned previously, for individuals with limitations, it is especially important that interventions be adapted to address the unique needs the individuals may face, and to provide all individuals who are justice-involved with an equal opportunity for not only programmatic success but also for success upon release from correctional oversight.

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Inequalities during Incarceration and Reentry Individuals who are incarcerated often face several disadvantages compared to people in the general population. Individuals in the correctional system have a higher prevalence of mental health concerns, face health conditions that have been undiagnosed or untreated prior to incarceration, and age faster compared to individuals in the general population (Dodson, 2018b). While these individuals may be more likely to receive treatment during their incarceration, the treatment is likely to be substandard because, as Mechanic and Tanner (2007) state, Federal and state government[s] are more likely to provide assistance to those who are not seen as responsible for their vulnerability, such as children, the blind, disabled veterans, and the elderly. When people are seen as responsible for their life circumstances, such as in the case of substance abuses, unwed mothers, or ex-ofenders, there is less public compassion and often stigma. (p. 1222) Thus, an increased likelihood of treatment does not always result in efective or equal treatment, further exacerbating the inequalities individuals faced prior to incarceration and will face upon reentry. As noted previously, individuals cycling through prisons face a myriad of issues that interact in a syndemic fashion. Once incarcerated, these individuals present with poor health profles (Fazel & Baillargeon, 2011), increased rates of mental health concerns (Fazel & Danesh, 2002), are more likely to have substance abuse disorders (Fazel et al., 2006), be diagnosed with both communicable and noncommunicable diseases (Dolan et al., 2016; Herbert et al., 2012), and are more likely to have an intellectual disability (Fazel et al., 2008). The interaction of these co-occurring health problems combined with entrenched social disadvantages creates a cyclical situation in which individuals remain at a disadvantage both medically and socially (Rufn et al., 2022). Individuals who are incarcerated may have access to health services they did not have access to previously, but the services may still be lacking in quality compared to that of the general population. In addition, most people who are incarcerated are serving short sentences and thus, prisoner health care concerns should be public healthcare concerns (Dumont et al., 2012). Improving the health of individuals who are incarcerated and returning citizens is important to not only individual health but also to global health and to reduce health inequalities (Kinner & Young, 2018). Individuals detained in jails awaiting trial or transfer to a medical or mental health facility are frequently denied access to proper health care (Oberholtzer, 2017). Those with mental health conditions, for example, are more likely to experience mental health crises that often lead to a suicide attempt or completion. Suicide remains the leading cause of death in local jails with the BJS reporting of the 1,120 deaths in 2018, 335 deaths were from suicide, which is approximately 30% of all jail deaths (Carson, 2021). Suicide also is the ffth leading cause of death in prison (Noonan & Rohlof, 2015) and data show that between 2006 and 2016, 2,353 state prison inmates died by suicide (Statista Research Department, 2021). Correctional ofcers and staf often hold negative attitudes and stigmatizing views of people with mental illness that can lead to discriminatory practices. Discriminatory behavior, resulting from stigmatizing attitudes toward people with mental illness, includes avoidance, minimizing interactions, withholding help, and coercive treatment (Overton & Medina, 2008). While it is important to address the health care concerns of individuals with justice involvement, it also is important to address other concerns that may lead to exclusion and inequalities for individuals. Someone who has a physical disability or limitation, for example, may not be able to participate in traditional prison recreation because the facilities have not been altered to provide

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adequate accommodations for the individual. Meek (2014) notes that not only do individuals with disabilities face potential exclusion in physical education activities but individuals who are older also may face exclusion or hesitate to participate because of concerns associated with their age. For instance, one prisoner who was older reported that he did not go out for exercise in the winter because he struggles to stay warm (Meek, 2014). This lack of exercise results in him feeling like his joints are stifening and it also reduces the amount of fresh air that he gets (Prison Reform Trust, 2008). A simple solution to allowing this individual to participate in outdoor recreation (i.e., walking around the track) would be to provide him with better clothing designed to withstand the environmental elements and assist in keeping him warm. Individuals who are justice-involved with physical and learning disabilities also may be excluded from traditional prison recreation. Often these individuals report not having access to activities, appropriate facilities, or the specialist staf needed for them to participate (Meek, 2014; Rufn et al., 2022). Correctional staf should work with physical and mental health care professionals to develop groups that can specifcally target individuals with physical and learning disabilities to get them involved. The prison, for example, may consider creating a basketball team for individuals who are wheelchair users. Individuals without physical limitations also may be allowed to participate if they used a wheelchair during the participation. Allowing able-bodied individuals to participate may reduce the stigma associated with having a physical limitation. It is important to address the needs of these vulnerable populations prior to, during, and after incarceration, because individuals with a disability are more likely to be victimized, be charged with a crime, and serve longer sentences once convicted. The intersection of disability status and other marginalized identities (e.g., people of color, members of Indigenous communities, and individuals who identify as LGBTQIA+) further increases the likelihood the individual will be caught up in the criminal justice system (The Arc, 2021). The unique challenges, bias, and inaccessible services faced by these individuals often perpetuate a cycle of criminal justice involvement that is difcult to break. Individuals with a disability and justice involvement often face fear, prejudice, a lack of understanding, and hindered access to resources. Justice professionals often lack the experience and knowledge to properly address the concerns of individuals with a disability in the justice system. This lack of understanding often results in “misidentifcation of [the individual’s] disability, a heightened risk of false confessions, inaccurate assumptions about competency and credibility, inappropriate placement in institutions, and the unknowing waiver of rights” (The Arc, 2021, para. 5). Having a disability should not result in exclusion, discrimination, or mistreatment within the justice system. Individuals with disabilities deserve access to the services and programs ofered to other individuals who are justice-involved. Finally, the label of “ex-ofender” may afect the individual’s ability to receive adequate treatment and care upon release. Once released from correctional control, individuals facing multiple vulnerabilities (e.g., lower socioeconomic status, mental illness, lack of education, and unstable work histories) struggle to secure housing, food, and appropriate medical care (Mechanic & Tanner, 2007). Further inhibiting the treatment of individuals released from incarceration, is the lack of resources available to the organizations providing services for the population. That is, programs addressing the needs of clients who are seen as less deserving by the general public face persistent underfunding and instability. While there are a few nongovernmental organizations (NGOs) with stable funding resources, smaller organizations struggle from year-to-year with securing reliable funding, and this results in the most vulnerable, including those released from incarceration, falling through the cracks.

Conclusion The prevalence of PWD in correctional facilities is greater than in the general population. In fact, individuals who are incarcerated in state and federal prisons (38%) are two and a half times more 142

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likely than U.S. adults (15%) living in the general population to report a disability. Statistics also show that 40% of people incarcerated in state-run prisons and 29% in federal-run prisons report living with at least one disability (Maruschak et al., 2021). In addition, approximately 40% of jail inmates report having at least one disability related to cognitive, vision, hearing, ambulatory, self-care, and independent living limitations (Bronson et al., 2015). The prevalence of PWD in jails and prisons places a fnancial strain on the system; however, correctional administrators and staf must provide for the medical needs of those behind bars or risk civil liability (see Estelle v. Gamble, 1976). Several Models of disability exist to address the emotional, psychological, social, and environmental needs of PWD. Some Models take a top-down approach to the treatment of disability in which the client has little to no input (see, e.g., Expert/Professional Model), which seems to be the most prevalent model in correctional settings. Other Models recognize the importance of patient input for identifying patient needs as well as achieving better patient outcomes (see, e.g., Social Disability Model and the RNR Model). Correctional administrators may reject these latter Models because they are trying to cut costs. To cut costs, some disability advocates support having a separate system of justice for individuals who are justice-involved (Atabay, 2009; Seevers, 2016). In addition, results from a public opinion survey show some support for a separate criminal justice system for individuals with special needs (Preston, 2003). Specifcally, the survey reveals that 72% of respondents are in favor of a separate justice system for individuals with mental disabilities. This number, however, decreased to 42% in support of such a system for those with physical disabilities. Support decreased further for a separate system for individuals who were elderly with only 28% in support of this option. Short of creating a separate criminal justice system, there are some steps that could be taken to make it more accommodating for individuals with disabilities that include fully implementing the ADA integration mandate. While it is important to address the needs of individuals who are incarcerated, there also is a need to focus on reentry of individuals with disabilities. One example where reentry services are lacking relates to reentry of individuals with a mental disability. Although reentry programs exist for individuals with mental disabilities, there is little consistency in the delivery of the programs. Without rehabilitative services, individuals with disabilities do not have access to the types of programs needed to promote full integration (Dlugacz & Droubi, 2017). The ADA integration mandate can be useful for assisting in implementing efective treatment programs and reentry programs for individuals with a disability. Interpretations of the ADA mandate and the Supreme Court’s ruling in Olmstead v. L.C. ex rel. Zimring (1999) promotes social integration of individuals with disabilities, especially mental disabilities. The courts, however, have fallen short of providing these protections for individuals upon reentry from a correctional facility to the community (Dlugacz & Droubi, 2017). Thus, more needs to be done to ensure successful treatment of individuals with mental and physical disabilities during incarceration and to ensure successful reintegration back into the community. Another approach that may be successful in helping prevent the segregation and exclusion of individuals with a disability during their incarceration is the creation of disability courts. Disability courts would be based on the efective principles of other problem-solving courts and would divert individuals from the traditional court system into a specialized court designed to address the unique needs faced by individuals with a disability. These specialized courts would address both the unique needs individuals with a disability face and the criminogenic needs of the individual. The courts would work with community treatment providers and other community partners to afect the success of integration for the specifc population. The courts also would help end the mass incarceration of people with disabilities. As Vallas (2016) notes, “Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, 143

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as community-based treatment and prevention services cost far less than housing an individual behind bars” (p. 2). By implementing an efective problem-solving court model and focusing on community-based treatment, criminal justice practitioners may help balance the current inequality that exists throughout the system.

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Kimberly D. Dodson and Joshua R. Rufn Nagi, S. (1965). Some conceptual issues in disability and rehabilitation. In M. B. Sussman, (Ed.), Sociology and rehabilitation (pp. 110–113). American Sociological Association. National Black Disability Coalition. (2020). Disability inclusion toolkit for black faith & non-proft organizations (4th ed). National Black Disability Coalition. Noonan, M., & Rohlof, H. (2015). Mortality in local jails and state prisons, 2000–2013 –Statistical tables. U.S. Department of Justice. Oberholtzer, E. (2017). Police, courts, jails, and prisons all fail disabled people. https://www.prisonpolicy.org/ blog/2017/08/23/disability/ Ofce of Developmental Primary Care. (2018). Medical and social models of disability. Ofce of Developmental Primary Care, University of California San Francisco. https://odpc.ucsf.edu/clinical/ patient-centered-care/medical-and-social-Models-of-disability Oliver, M. (1983). Social work with disabled people. Macmillan. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Overton, S. L., & Medina, S. L. (2008). The stigma of mental illness. Journal of Counseling & Development, 86(2), 143–151. Payne, N., & O’Connor, H. (2013). Treating deaf sexual ofenders: Theory, practice, and efectiveness. Prison Service Journal, 208, 37–42. Paz, R. S. (2007). Accommodating disabilities in jails and prisons. In R. B. Greifnger (Ed.), Public health behind bars: From prisons to communities (pp. 42–55). Springer. Pennsylvania Department of Correction v. Yeskey, 524 U.S. 206 (1998). Peterson, J., Skeem, J. L., Hart, E., Vidal, S., & Keith, F. (2010). Analyzing ofense patterns as a function of mental illness to test the criminalization hypothesis. Psychiatric Services, 61(12), 1217–1222. Preston, P. (2003). Should there be separate justice systems for special needs populations? Results from the Penn State public opinion poll. Criminal Justice Policy Review, 14(3), 322–338. Prison Reform Trust. (2008). Doing time: The experiences and needs of older people in prison. Prison Reform Trust. http://www.prisonreformtrust.org.uk/Portals/0/Documents/Doing%20Time%20the%20experiences%20and%20needs%20of%20older%20people%20in%20prison.pdf Rehabilitation Act. (1973). Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 79. https://www. eeoc.gov/statutes/rehabilitation-act-1973 Retief, M., & Letšosa, R. (2018). Models of disability: A brief overview. Theology Studies, 74(1), 1–8. Roeden, J. M., Bannink, F. P., Maaskant, M. A., & Curfs, L. M. G. (2009). Solution-focused brief therapy with persons with intellectual disabilities. Journal of Policy and Practice in Intellectual Disabilities, 6(4), 253–259. Roessler, K. K. (2016). Emotional experiences and interpersonal relations in physical activity as health prevention and treatment—A psychodynamic group approach. In M. Raab, R. Seiler, A. Hatzigeorgiadis, P. Wylleman, & A-M. Elbe (Eds.), Sport and exercise psychology research: From theory to practice. Elsevier. Romani, C. J., Morgan, R. D., Gross, N. R., & McDonald, B. R. (2012). Treating criminal behavior: Is the bang worth the buck? Psychology, Public Policy, and Law, 18(1), 144–165. Rosen, D. E (2021). Medical copays for prisoners suspended in several states due to COVID-19. Prison Legal News. https://www.prisonlegalnews.org/news/2021/may/1/medical-copays-prisoners-suspended-severalstates-due-covid-19/ Rubin P. N., & McCampbell, S. W. (1995). The Americans with Disabilities Act and criminal justice: Mental disabilities and corrections. National Institute of Justice. https://www.ojp.gov/pdfles/amdisact.pdf Rufn, J. R., Battle, N. T., & Monk-Turner, E. (2022). Formerly incarcerated people with disabilities: Perceptions of accessibility and accommodations in correctional programs. Journal of Correctional Health Care, 28(1), 59–65. Seevers, R. (2016). Making time harder: Programmatic accommodations under the Americans with disabilities act. Amplifying Inmates Voices with Disabilities. https://www.disabilityrightswa.org/making-hard-timeharder-programmatic-accommodations-inmates-disabilities-americans-disabilities-act/ Smeltzer, S. C. (2007). Improving the health and wellness of persons with disabilities: A call to action too important for nursing to ignore. Nursing Outlook, 55(4), 189–195. Statista Research Department. (2021). Number of state prisoner suicides in the United States 2006 to 2016. Statista. https://www.statista.com/statistics/220919/number-of-state-prisoner-suicides-in-the-us/ Sykes, G. (1958). The society of captives: A study of a maximum-security prison. Princeton University Press. Taylor, J. (2010). Psychotherapy for people with learning disabilities: Creating possibilities and opportunities. A review of the literature. Journal of Learning Disabilities and Ofending Behaviour, 1(3), 15–25. The Arc. (2021). Our initiatives: Criminal justice. https://thearc.org/our-initiatives/criminal-justice/

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7 “WE, AS WOMEN, FOCUS ON RELATIONSHIPS” Women Jail Residents’ Resource Attainment Eforts via Connections with Female Correctional Ofcers Lindsay Smith and Sydney Ingel Introduction For the last three decades, the rate of incarceration for women in the United States increased by 750%, with approximately 225,000 women incarcerated in 2017 (The Sentencing Project, 2019). About half of these women were incarcerated in jails and the other half in prisons (The Sentencing Project, 2019). Despite this dramatic growth in the women’s jail and prison populations, women who are incarcerated do not receive adequate attention in carceral settings because they are overshadowed by the large number of men who are incarcerated (The Sentencing Project, 2019). This lack of attention toward women who are incarcerated is problematic as they often display a signifcant need for treatment and resources. To ensure that the needs of women are met throughout the criminal legal process, gender-specifc programming and services are necessary, but so too is research on the diversity of their needs. Compared to men, women who are incarcerated have higher rates of substance use disorders, mental health issues, and histories of sexual and physical abuse in childhood and adulthood (Greenfeld & Snell, 1999; James & Glaze, 2006; Maidment, 2006; Morash, 2010; Salisbury & Van Voorhis, 2009; Steadman et al., 2009). Anywhere from 80% to 90% of women who are incarcerated have substance use problems (Belknap, 2007; Fazel et al., 2006). About 73% have a mental health disorder—a rate three to fve times higher than men who are incarcerated (Drapalski et al., 2009; Hills et al., 2004; James & Glaze, 2006). Finally, 80%–90% of women in prison/jail experienced physical and/or sexual abuse at some point in their lives, which makes them three times more likely to be victimized than men who are incarcerated (Belknap, 2007; Belknap & Holsinger, 2006; Covington & Bloom, 2003; Greenfeld & Snell, 1999; Pollock, 2002; Women in Prison Project, 2008). To deal with these issues—which are often connected to their ofending behavior—women jail residents describe needing programs/services related to mental health, substance use, domestic violence, child abuse, post-traumatic stress disorder (PTSD), self-esteem, anger management, and life/relationship skills (Green et al., 2005; Grella & Greenwell, 2007; Lynch et al., 2012). Although women enter prison/jail with an extensive list of needs, these needs often go unmet and they end up leaving with the same social and health concerns they came in with ( James & Glaze, 2006). For instance, women in jails report at least one physical health problem (53%), a serious mental health disorder (32%), and/or a substance use disorder (82%) (Swavola et al., 2016). Yet, women report minimal access to mental health services, substance use services, and medical 148

DOI: 10.4324/9781003245032-8

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treatment (Acoca & Austin, 1996). More specifcally, correctional facilities rarely ofer programming specifc to women that target sexual and/or physical abuse (13%) or mental health (7%) issues (Koons et al., 1997). Medical treatment is a necessity; although, women who are incarcerated frequently face a lack of access to adequate care, understafed medical departments, and delays in treatment (Enders et al., 2005), which can lead to worsened health problems (Swavola et al., 2016). Mental health services are also inadequate (Acoca, 1998), with only an estimated 15%–23% of women who are incarcerated receiving the appropriate medication for their mental health disorders while in prison/jail (Greenfeld & Snell, 1999; Snell & Morton, 1991). The situation is just as bleak for substance use treatment (Teplin et al., 1996); only about 25% of women who are incarcerated obtain access to substance use treatment services (General Accounting Ofce, 1999). These unmet needs may explain the high rates of recidivism—40%–53%—for women released from jail (Greenfeld & Snell, 1999; Langan & Levin, 2002; Salina et al., 2004). Scholars have argued that the contribution to recidivism is due to a lack of gender-specifcity in the programs and services that women have access to while incarcerated which do not meet their needs (Petersilia, 2003; Travis, 2005), but perhaps the lack of access is also due to a failed connection to what is even available at all. Social support could prove a valuable tool for combatting the unmet needs facing women who are incarcerated. Social support is the process of transmitting human, cultural, material, and/ or social capital between people (Cullen et al., 1999). When incarcerated, women need social support to help them adjust and cope with incarceration ( Jiang & Winfree, 2006; Liu & Chui, 2014). Social support is also theorized to reduce crime and deviant behavior (Cullen, 1994), in that women with higher levels of social support during incarceration may be less likely to commit institutional misconduct and may be less likely to recidivate once released (Mears et al., 2012; Pierce et al., 2018). While research covers the importance of social support for individuals who are incarcerated, our understanding of the need for social support among women who are incarcerated is limited because most study samples are primarily made up of men (e.g., Bales & Mears, 2008; Duwe  & Clark, 2011; Mitchell et al., 2016). In a meta-analysis on how prison visitation afects reentry success, only two of the sixteen studies contained exclusively women samples; the other studies contained samples that were only men or men-dominated (Mitchell et al., 2016). In that study, visits signifcantly reduced recidivism by 53% for samples of men and 23% for samples of men and women, but no signifcant recidivism reductions emerged for samples containing only women (Mitchell et al., 2016). This further underscores the importance of focusing on women and their needs for social support given the feld’s bounded understanding of social support’s impact on the future lives of women relative to men. Furthermore, those studies that explore women’s social support mechanisms focus on the members of their external social networks that exist outside correctional institutions, like family and friends (Clone & DeHart, 2014; Mancini et al., 2016). For example, Mancini and colleagues (2016) found that receiving visits and letters from family and friends during incarceration reduced women’s concerns about reentry (e.g., employment, fnancial, stigma). This also maps onto Clone and DeHart’s (2014) fndings that family members ofering emotional support were crucial to the well-being of women who were incarcerated. However, family and friends are not the only sources of social support that women who are incarcerated can rely on, even if our knowledge of whom else they can utilize as a support mechanism is primarily limited to external social network members. Within institutional walls, research tends to focus on the informal social support gained from other women residents (Clone & DeHart, 2014). This completely neglects the formal social support delivered by institutions, another form of social support Cullen (1994) identifed as important. In carceral environments, formal social support is delivered by prison/jail staf, such as correctional ofcers. Correctional ofcers are “the employees who are front and center in the correctional 149

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system” and their behavior is a major determinant of how incarcerated individuals experience incarceration (Dirkzwager & Kruttschnitt, 2012, p. 405). For example, men incarcerated in English and Dutch prisons frequently mention the responsiveness and helpfulness of correctional ofcers (Dirkzwager & Kruttschnitt, 2012). According to Dirkzwager and Kruttschnitt (2012), “Correctional ofcers are usually prisoners’ frst source of support; they are the frst [people] who can be approached when a prisoner is in need of information or access to other persons or facilities” (p. 407). Correctional ofcers can provide both instrumental social support (e.g., providing information, helping with paperwork) and emotional social support (e.g., providing empathy, listening to concerns) to men in prisons/jails (Dirkzwager & Kruttschnitt, 2012). This highlights how important formal social support from correctional ofcers is for men who are incarcerated. To date, there are no studies that examine the potential benefts of social support garnered through connections between correctional ofcers and women jail residents; rather, there is similar research that exists in community corrections settings (Cobbina, 2010; Skeem et al., 2007) and in prison settings (Liu & Chui, 2014). The study by Liu and Chui (2014) found that, for women incarcerated in a Chinese prison, prison staf are an important social support for women to adjust to prison life (Liu & Chui, 2014). However, there could be a cultural element to these fndings as China has a more collectivist culture in comparison to the United States which places more value on independence. Therefore, there is an increased need to understand the supportive role of correctional ofcers in the lives of women who are incarcerated in U.S. jails. In this chapter, a case study of 29 women residing in one U.S. jail is presented. This case study uses data collected on the perceptions of such women extracted from qualitative interviews. Our chapter aims to fll gaps in the literature regarding women’s relationships with female correctional ofcers1 generally, as well as the formal social support via facilitation of access to services they gain from those relationships (if at all). Further, the chapter is situated within the context of a jail where incarceration periods are shorter and connections to resources are more pressing; this flls a gap in our understanding on the varying experiences of women residents in diferent correctional settings. This case study specifcally examines the perceptions of resource attainment by women jail residents through their personal connections with female correctional ofcers. The following research questions guide this case study: (1) How do women jail residents perceive the female correctional ofcers they interact with daily? and (2) How do female correctional ofcers facilitate or inhibit resource attainment by connecting women jail residents to items/services they need? The implications for building collaborative relationships between correctional ofcers and women jail residents are ofered, along with the potential for future research.

Current Study Case Study Site and Participants The case study site is one jail in the United States containing roughly 1,000 incarcerated individuals at any given time. This jail contains one women’s unit; it includes one programming dorm, one general population dorm, two smaller high-security dorms, and one smaller medical/psychological dorm. This study was conducted between the summer of 2019 and ended in the early fall of 2019.

Sampling Strategy and Sample Characteristics To accurately represent the women jail resident population (n~100) and ensure data saturation (Saunders et al., 2018) and triangulation, we determined that a minimum of 20 women needed to be interviewed. For subject recruitment, one researcher went cell-to-cell or bunk-to-bunk in each dorm that houses women and presented the purpose of the research, while making a record 150

Women Jail Residents’ Efforts Table 7.1 Demographics of women jail residents. Table prepared by the authors

Age 18–20 21–30 31–40 41–50 51–60 60+ Race/Ethnicity White Black Othera Security level Low Medium High

Total Sample

Study Sample

6% 30% 44% 15% 3% 2%

0% 48% 31% 14% 7% 0%

57% 30% 13%

52% 24% 24%

74% 7% 19%

76% 10% 14%

a While we would prefer to list out the race/ethnicities in this category rather than deeming it “other,” this was the classifcation provided to us by the jail administration.

of only those willing to participate. A total of 104 women were held in custody at the time of data collection. Demographically, 44% of these women were between 31 and 40 years old, 57% were White, and 74% were classifed as low security. This case study includes 29 of the 104 (28%) women in the jail population at the time of the study. The case study women closely approximated the total women jail population; 48% were between 21 and 30 years old (48%), 52% were White, and 76% were of low-security status. Further details on demographics can be found in Table 7.1.

Methodology This case study used a semi-structured interviewing approach—that was approved by George Mason University’s IRB—to collect data with women jail residents. Most jail residents often move in and out of the facility quickly (e.g., 30–90 days) because they are in a pre-sentencing phase, and thus the protocol could not be exceptionally lengthy to ensure higher participation rates. However, it is possible that some women were already sentenced at the time of data collection because women jail residents are not housed according to sentencing status.2 Therefore, making sure the protocol was not labor intensive was crucial. We also did not believe that a survey would produce the rich information necessary to capture the breadth of women’s needs. Thus, the protocol contained guiding questions asked by the interviewer, but there were no limits to the conversation. An interview protocol streamlined the process and included the following topics: (1) perceived needs (i.e., pre-incarceration, during incarceration, and post-incarceration); (2) facilitators and barriers to having needs met; (3) security-level variation in needs; and (4) connections to women ofcers. The open-ended questions guided the conversation with women jail residents in a way that produced conversations specifc to the facilitation of resources by correctional ofcers. The discussions by jail residents on this topic arose organically in their responses to questions about facilitators of their needs and their connections to women ofcers. 151

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After completing a participant list over several weeks, the researcher began to interview everyone who volunteered to participate. For each data collection visit, one researcher entered the jail and collected information in the women’s unit for about two to four hours at a time. Once the women verbally gave their informed consent to the interview, the interviews began and lasted for approximately 15–25 minutes each. This occurred until each woman who desired to participate was interviewed or was released prior to being interviewed.

Data Analysis Analysis for this case study used a hybrid approach: a deductive protocol and inductive data analysis. The researcher used this hybrid method to remain as open as possible to what the women had to say, regardless of topics of interest. This approach allowed for the use of the constant comparative method; as data collection continued and data analysis began, topics and ideas took a new form in the semi-structured interview protocol (Glaser, 1965). During data collection, the researcher took detailed notes during the interviews with women, as the jail did not permit recording devices. Per previously successful ethnographic methods (Emerson, 2001; Emerson et al., 2011; Morrill, 1995), increasingly detailed notes were typed out immediately following the interviews. Transcriptions of the notes downloaded into Atlas.ti (8), a qualitative data management software, aided the coding and analysis processes (Muhr, 1991). For this project, we used a clean copy of the Atlas.ti fle to only code themes related to resource attainment attempts from the correctional ofcers by jail residents. The coding process occurred in three parts: (1) jail residents discuss correctional ofcers (i.e., negative/positive/neutral); (2) jail residents discuss “access to resources”; and (3) resources jail residents discuss attempting to obtain from correctional ofcers (e.g., items, treatment, information). In the frst round of coding, the application of codes consisted of all instances in which jail residents discuss correctional ofcers to pull specifc examples for further analysis. In the second round of coding, the nuance in the discussion of correctional ofcers was parsed out by those women jail residents that discussed access to resources specifcally. Then, the third and fnal round of coding revealed the specifc resources jail residents expected to gain from correctional ofcers. The results from this coding and analysis process are presented in the following section. All names used within the following section are pseudonyms.

Results Due to jail policies, women jail residents only interact with female correctional ofcers, who the residents largely view favorably. Only one resident had strictly negative views of the female correctional ofcers. The rest of the women residents had positive (41%) or mixed views (55%) of them. For example, Carly said she “gets along with the COs” and has “pretty good relationships with them.” Mackenzie agrees that she “likes most of them” and Larissa feels the female correctional ofcers “really try to make things fair.” Similarly, Ashley echoed these sentiments that the female correctional ofcers are “good” and “nice,” especially compared to the correctional ofcers she has encountered at other local jails. Additionally, a signifcant portion of the women residents’ positive views of correctional offcers are tied to their perceived helpfulness. For instance, Jada said the correctional ofcers are “good” because they help get her access to things she needs. Kim, Deja, and Isabella all concurred that the female correctional ofcers are “very helpful.” However, some women tempered their views by saying that it depends on the ofcer. To illustrate, Nia explained: Some are better than others, just like any other job. Most are really good and if you ask for something, they may not be quick about it, but they try to get it for you. 152

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According to Nia, the level of helpfulness depends on the ofcer, but for the most part, correctional ofcers in this jail tried to help the women get access to what they need. In line with Nia, Casey also believes that it “depends on the ofcer” and Alexis explains that she “know(s) who to ask” and has learned “there are some you just can’t ask things to.” Likewise, Sierra and Meghan expressed that some ofcers are more helpful than others. According to Sierra, “Some work harder than others…if you need something, they’re there, but some aren’t and they judge you.” In similar fashion, Meghan stated: Some treat you like humans and are really awesome, and others are just bitches who simply do their jobs, let alone do something extra for you. Overall, the women residents generally had positive views of the female correctional ofcers, but these views are often tied to their perceived helpfulness—but it was agreed that some correctional ofcers are more helpful than others. In this way, the “it just depends” on the ofcer rings true for women in their perceptions of correctional ofcers.

Correctional Ofcers as Resource Gatekeepers The perceived “helpfulness” of correctional ofcers is intertwined with residents’ perceptions that correctional ofcers act as gatekeepers to resources. In their role as gatekeepers, correctional ofcers control access to things such as programming, treatment services, items, and general information, among other resources. As gatekeepers, correctional ofcers can either be facilitators or barriers to women residents’ access to resources. In the interviews, 45% of residents perceived that correctional ofcers facilitate their access to resources, while 17% perceived correctional ofcers as a barrier. However, another 14% believed that correctional ofcers can be either a barrier or a facilitator.3 Therefore, as seen above, the “it just depends” on the ofcer is a salient perspective among women residents because depending on the ofcer, women may or may not obtain access to their needs. When correctional ofcers help the women residents get their needs met, they are perceived as facilitators. For example, Soraya said that her relationship with the female correctional ofcers helped her get access to what she needed in the jail, just generally. Rose agreed that female correctional ofcers are “good at helping you with everything you need.” More specifcally, correctional ofcers “personally helped” Bonnie get enrolled in programming. And when two women had issues with their commissary, one correctional ofcer “worked on fxing it until the problem was resolved,” which is just one example of correctional ofcers “going above and beyond,” according to Larissa. Similarly, Larissa stated that in administrative segregation the women are not allowed to have commissary, “but if she’s hungry, [correctional ofcers] are good about getting her stuf to eat.” In these examples, female correctional ofcers were instrumental in facilitating access to both programming and tangible items (i.e., commissary and food). Correctional ofcers also recognize the importance of keeping the women residents connected to their families, as illustrated by Felicia and Soraya. Felicia told the story of how “the phone on the pod wouldn’t connect to my mom’s phone number, so the CO let me use their [personal] phone to get a hold of her.” This meant a great deal to Felicia. In another story, Soraya explained that when a resident’s mom died, the correctional ofcers “immediately fled her furlough to be able to go to her mom’s funeral.” The furlough process “takes a long time to go through,” so without fast-tracking the process by the correctional ofcers, the resident might have missed her mom’s funeral. Recognition by correctional ofcers regarding the importance of familial and other social connectivity is one way they can situate themselves in a position to facilitate the needs of women who are incarcerated. 153

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Not all residents perceived correctional ofcers as facilitators of access to resources; though, sometimes correctional ofcers are barriers that block access to such resources. When asked if the female correctional ofcers help get her access to the things she needs, Emily said “ofcers are clueless” because they “do their jobs and leave; they’re not here to interact and help you.” This indiference was also felt by Nia and Kayla. Nia stated that “asking for stuf and just being dismissed” makes it challenging for her to access the things she needs while incarcerated. Kayla further stated that it is difcult to obtain access because there is an “attitude or feeling that it’s a bother to ask for something [we] need” from the correctional ofcers. Further, lack of information sharing and poor follow-through on requests are seen as actions that correctional ofcers take that inhibit residents’ access to resources. Mackenzie and Sierra both complained about how correctional ofcers do not share important information with residents, such as why the unit gets locked down4 or why they have a “keep separate.”5 Sierra said that “every time they asked these clarifying questions, ofcers and sergeants just beat around the bush” even though these policies have real consequences on residents’ abilities to access programming and treatment services. Consequently, it afects their daily lives. Lastly, poor execution on requests by correctional ofcers can severely impact residents’ access to treatment services. Chelsea and Amanda both described waiting weeks for correctional ofcers to respond to their requests about needing treatment, specifcally mental health treatment. Amanda said, “the response time should be quicker than what it is” and Chelsea expressed her disappointment that the female correctional ofcers “weren’t keeping their word to her.” Unwillingness to provide information or inability to execute requests are seen by women residents as correctional ofcers not trying to do their job or as holding untrustworthy motives, but either of these reasons leads to an inaccessibility by women to ascertain resources that meet their daily needs within the jail.

Discussion Overall, women in the case study jail seem satisfed for the most part by the support they can garner from female correctional ofcers. This support occurs through aiding women in accessing programming and treatment services, going out of their way for women in special circumstances (e.g., broken telephones, death in the family), and ensuring they gain access to basic needs (e.g., food, medication). However, women tend to fnd themselves somewhere in the middle on their perceptions of female correctional ofcers as they appreciate the support of some but are disappointed by the neglect of others. This fnding is not particularly surprising given that so many women have reported in prior research that their access to services is lacking (Acoca, 1998; Acoca & Austin, 1996; Enders et al., 2005; General Accounting Ofce, 1999; Greenfeld & Snell, 1999; Koons et al., 1997; Snell & Morton, 1991; Teplin et al., 1996). In this way, women achieve resource attainment from those they know will expedite their intended outcome but avoid those that ignore them entirely. If women do not believe that the environment in which they reside is broadly supportive and must maneuver between ofcers they fnd accommodating, this may contribute to their neutral perceptions about resource attainment facilitated by female correctional ofcers. As a result, women jail residents tend to maintain better relationships with the ofcers they can rely on for meeting their needs, but their overall view of female correctional ofcers is still tainted by their experiences with varying ofcers. Theoretically, women correctional ofcers6 extend the social networks of women who are incarcerated. Previous work has not explicitly examined the relationship importance of women who are incarcerated and correctional ofcers that are female or identify as women. This application of social support theory utilizes gendered and correctional lenses uniquely (Cullen, 1994). Specifcally, scholarship has yet to explore the value of attempting to assign unit positions to correctional ofcers after aligning their identities to the carceral residents they manage as a practice promoting 154

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comfortability, acceptance, similarity, and most importantly, as a resource facilitation. Second, such research has yet to take place in jail settings where sentences are often shorter, so rapidity of resource attainment is of the utmost importance. In this way, this case study expands upon social support theories by examining an understudied correctional population—women jail residents. An important branch of women’s social networks, correctional ofcers are often overlooked as an essential component that can provide support during their incarceration periods.

Practical Implications There are a few practical changes that could be made in jail settings to enhance the connection between women jail residents and correctional ofcers. For example, oftentimes programs operated within jails are hosted by external organizations that send volunteers to operate classes. If women correctional ofcers oversaw more of these programs, this could shift the perception of ofcers in a way that is seen as more rehabilitative in nature and less authoritative by women jail residents. By taking on a dual role, this may improve the attitudes of women jail residents about their opportunities for garnering needed services from correctional ofcers. Further, the jail could ofer interpersonal skills trainings for women correctional ofcers to learn to navigate resident relationships more efectively in that they maintain appropriate boundaries, but also seek to ensure that women jail residents have the resources they need to succeed. Lastly, it is paramount that jails build a culture in which they promote information sharing between women residents and correctional ofcers to garner trust between them, but also to potentially reduce misbehavior and increase safety/security. This trust can create a ripple efect into much more productive experiences as well, like that of important service connections.

Limitations As for limitations of this case study, because we have a relatively small sample of women jail residents, it is difcult to highlight any other pieces of their identity as salient factors in their experience of attempting to bond and form relationships with women correctional ofcers. We understand that this limits our ability to be entirely intersectional in our fndings. Generalizing across all 29 women certainly denies any nuance between their experiences that exist because of their other intersecting identities, besides gender. In addition, our case study conducted interviews with female correctional ofcers as well, but there was too small of a sample to report meaningful results on their perceived connections with women jail residents and their role as resource facilitators. Given that this topic rose organically among the women jail residents, the topic of relationship building, and resource attainment were not key pieces of the interviews with female correctional ofcers and so their experiences are not shared in this case study. We understand that this exclusion glances over their other side of the story; since relationships require two or more individuals, we are not obtaining the full picture of the central focus of this paper—resource-based relationships. However, examining the perspectives of women correctional ofcers as an essential relationship and crucial resource is an important avenue for future research. Additionally, future research would beneft from an elaboration on whether jail residents attempt to garner resources through their relationships with women correctional ofcers since the interview protocol used in this case study did not explicitly ask about this phenomenon.

Future Directions To contribute to the literature base in the future, research must consider how formal social support afects women who are incarcerated, as they have been neglected in prior studies as a correctional population with difering experiences compared to men. Additionally, forward-thinking studies 155

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should dive deeper into how prison/jail staf provide needed formal social support to women who are incarcerated and the impact that this support has on their behavior in (e.g., institutional misconduct, program completion) and out (e.g., reincarceration, successful reintegration, sustained relationships) of correctional facilities. Second, it would be benefcial to examine whether the importance of connections between correctional ofcers and women residents in carceral settings results in positive outcomes beyond misbehavior, especially recidivism. It is well-supported in the literature that informal social supports like family members produce such results (Bales & Mears, 2008; Clone & DeHart, 2014; Duwe & Clark, 2011; Mancini et al., 2016; Mears et al., 2012; Mitchell et al., 2016; Visher, 2013). For example, do women who are incarcerated feel more emotionally stable during confnement with the support of correctional ofcers? Do women obtain needed resources during incarceration that they are able to sustain upon release? Do women receive the necessary referrals to services during their reintegration process by women correctional ofcers they connected with while incarcerated? Lastly, this case study does not explore the diferences in connection between women jail residents and men/male versus women/female correctional ofcers. The case study site’s staf position requirements did not allow for an opportunity for this to be explored. However, this may be an important interaction to explore further as men and women in the role of correctional ofcer may carry out their jobs diferently or even be assigned to varying roles in a way that impacts women jail residents’ experiences. Future research studies should examine whether identity alignment between correctional ofcers and the residents they oversee is benefcial to those who are incarcerated via questions that consider their perceptions, attitudes, resource attainment, and well-being of such an experience. Specifcally, exploring whether assigning women correctional ofcers to unit positions with residents that identify as women contributes to a more positive carceral experience is crucial. Further, if residents have other intersecting identities such as varying racial/ethnic backgrounds, disabilities, sexual orientations, gender identities, and trauma histories, that may overlap with correctional ofcers, determining if residents succeed when this ofcer position assignment intentionality is implemented is important. The same research potential exists for a mixed correctional ofcer position assignment where men correctional ofcers oversee women residents or women correctional ofcers oversee men residents. Seeing and interacting with ofcers that are similar in relation to the various identities that residents hold could have a larger impact on them than currently realized.

Notes 1 The use of “women jail residents” and “female correctional ofcers” is intentional in that correctional ofcers are employed by the jail and assigned a unit position within it according to their sex (i.e., male or female). Jail residents must indicate their sex upon intake and may identify their gender as well; this is so that they can be housed according to their gender, be it in a women’s unit, men’s unit, or other units. Female correctional ofcers are assigned to the women’s unit. 2 The sentencing status of women in this study is unknown as this information was not acquired as part of the study’s protocol. 3 A total of 24% of women residents did not comment on the role of correctional ofcers in gaining access to resources. 4 If a unit gets “locked down,” no movement of any kind is allowed within the unit for an extended period of time (unbeknownst to residents). That means that everyone must return to their cell or dorm and all doors are locked until an issue is resolved. 5 A “keep separate” is when two or more individuals must be kept apart from one another for various reasons (e.g., codefendants, fghting) meaning they cannot participate in programs together or live in the same cell blocks. 6 The study site holds sex requirements for staf. However, to be more inclusive of all ofcers that identify as women working in corrections, we have changed our language moving forward from “female” to “women.”

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8 EXPERIENCES OF TRANSGENDER AND GENDER NONCONFORMING INDIVIDUALS IN JAIL/PRISON Navigating Tensions L. Cait Kanewske, Angela Hattery, Shannon Magnuson, Danielle S. Rudes and Zach Zaborowski Introduction Transgender individuals face myriad challenges, indignities, and dangers while incarcerated. Emerging scholarship highlights common problems confronting many transgender individuals who are incarcerated, including discrimination from correctional staf and other residents, denial of necessary medical treatment, and limited access to gender-afrming items (such as genderappropriate underwear and grooming products). Although this is a growing area of interest for both scholars and policy makers, the experiences of transgender individuals in the criminal legal system remain critically understudied. The nascent literature that does exist focuses specifcally on the experiences of one subgroup of this population – trans women. Importantly, information pertaining to the experiences of trans women in prison (including both scholarly and anecdotal sources) is scarce and such information relating to the experiences of trans men, non-binary, and other gender nonconforming individuals is virtually nonexistent. In this chapter, we frst identify and review the existing research and scholarship that examines the incarceration of transgender individuals. Second, to center the voices of incarcerated transgender people, we present data that utilizes their voices. Finally, we conclude the chapter with a set of policy recommendations for correctional departments seeking to provide safe, fair, and afrming housing/care for transgender individuals, as well as recommendations for future research.

Chapter Terminology There are several terms used throughout this chapter that are common for disciplines such as sociology and gender studies. However, these terms and concepts are relatively new to the criminal legal scholarship space. As such, we defne our terms in context to this discipline whenever possible. First, we use the term “sex” rather than “gender” because jails and prisons typically use “sex assigned at birth” and physical traits to determine assignment to a men’s or a women’s facility. For this reason, we refer to jails/prisons as “sex-segregated”. The inclusion of “sex-segregated” in the description acknowledges the lack of gender-afrming policies used to make housing decisions (discussed in greater detail later).

DOI: 10.4324/9781003245032-9

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Among the many challenges that researchers face when examining the experiences of people who identify outside of the gender binary are the terms we use to categorize these varying and often fuid identities. To acknowledge the fuidity of both individual identities and terminology, we use the terms that are currently recognized by scholars and activists in the feld. The term transgender refers to people who identify outside of the traditional boundaries of the gender binary, including individuals who identify as non-binary or gender nonconforming. Of signifcant importance for our discussion here is that society marginalizes people who identify outside of the gender binary, and they often face discrimination and violence ( James et al., 2016). In fact, it is important to note that transgender individuals are not legally protected from discrimination in some states, thereby legalizing discrimination for employment, college admission, access to housing, and other rights that are protected for people who identify in other marginalized identities including race and gender (Warbelow et al., 2020). Cisgender is the term that refers to people whose gender identity is consistent with the sex they were assigned at birth. Finally, it is important to note that gender identity is distinct from sexual orientation. Just like cisgender people, transgender people may be heterosexual, gay or lesbian, bisexual, asexual, or any other sexual identity. Although this chapter is meant to include, whenever possible, the variety of experiences of people who identify as transgender or outside of the gender binary, we fnd that an umbrella term can be useful. We choose the term “transgender” for several reasons. First, all the people whose stories comprise the data in this chapter self-identifed as transgender. Second, most other scholars and theorists who write about identifying with a category other than sex assigned at birth use the term transgender. Third, it is critical to understand that transition can take on new meaning at both the individual and structural levels. People’s individual gender identities may change over time, and so do the categories with which people identify. Finally, we acknowledge that choosing an umbrella term has the potential to do exactly that which we mean to avoid: mask or render invisible diferences in people’s lived experiences. However, we understand using an umbrella term makes the reading of this chapter far less cumbersome. This compromise of language is the frst of many tensions scholars, policy makers, and correctional administrators must navigate when considering transgender individuals. Another term that we employ in this chapter, “folx,” may be new to readers or may be considered by some to be too informal for this type of academic writing. We use the term “folx” interchangeably with other plural nouns like “people” and “individuals” because it is the preferred term in many activist spaces, including trans activism and activism focused on anti-Black racism (Robertson, 2018).1 Importantly, part of centering voices of the trans community means using the language they prefer. Language is fuid and we can expect to use new language overtime; the language we utilize here aligns with current language preferences. Finally, due to the growing importance of using person-frst language and removing stigmatizing and labeling language throughout writing, we opt to use the term “residents” to describe individuals who are currently incarcerated rather than terms such as “inmates” or “prisoners.” However, when other scholars or research participants use the terms “inmates” and “prisoners,” those terms are used as an in vivo representation of the language used.

Navigating the World as a Transgender Person In an organizational space where sex and gender are highly regulated, transgender, genderqueer, gender nonconforming, and gender non-binary people challenge the very foundation on which jails or prisons are constructed. Specifcally, in the United States and in many societies in the industrialized world, it is commonly believed that people fall neatly into one of two categories: male or female, and many institutions are explicitly organized around the assumption that gender is binary (Hyde et al., 2019; Matsuno & Budge, 2017). By middle school, boys and girls are 160

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separated on sports felds and courts. Though gender-neutral and single-use bathrooms are becoming more common in commercial and academic buildings, bathrooms designated as “men’s” and “women’s” remain the only options in most public buildings in the United States (Warbelow et al., 2020). In most states, there are only two options to choose when indicating one’s gender on driver’s licenses, birth certifcates, social security card applications, and passports (Warbelow et al., 2020). The notion that gender is binary is so deeply ingrained that the majority of us never even consider that it is not. This, of course, is a privilege of being cisgender. Thus, transgender people present a challenge to one of the most basic assumptions and beliefs held by most Americans (Brown, 2017; McCarthy, 2021), not just when they arrive to be processed into jail or prison, but when they navigate nearly every aspect of life. The carceral state is one of the most complex institutions in which transgender folx present a “challenge” to outdated assumptions and beliefs about gender (Kanewske, 2021) because these institutions prioritize safety and security through the lens of cisgender constructs of gender. Jails and prisons must house individuals 24 hours a day, feed them, clothe them, and ofer them opportunities for showers and recreation. Sex segregation organizes nearly every aspect of incarceration, including the assignment of individuals to facilities, the assignment of staf to specifc housing units and responsibilities, the commissary items available for purchase (including undergarments and hygiene products), and, in solitary confnement or restricted housing units, who may shave. For a system built entirely on the assumption that gender is binary, transgender individuals challenge the entire carceral ecosystem, from the policies and procedures to the staf and other residents with whom transgender folx interact. Despite the fact that incarcerated transgender folx make up a relatively tiny portion of the incarcerated population (Beck et al., 2013; Sosin, 2020), they are disproportionately likely to be incarcerated, and carceral spaces are not equipped to respond in gender-afrming ways to transgender individuals ( James et al., 2016; Kanewske, 2021). As more and more people “come out” and identify as transgender, and if rates of incarceration for transgender folx remain high, we anticipate that the presence of transgender residents in carceral spaces will transform from being considered “cases-to-manage” to one of the most salient and overwhelming organizational challenges facing correctional administrators.

An Overview of Existing Research Transgender people face disproportionally high rates of contact with the criminal legal system compared to their cisgender counterparts. According to a report authored by the National Center for Transgender Equality (NCTE) ( James et al., 2016), 16% of transgender folx and 21% of trans women have been incarcerated in their lifetime. Among Black transgender people, nearly half (47%) have been incarcerated, a rate that is 10 to 15% points than the rate for all Black folx. One of the driving factors behind the disproportionate rate of incarceration among transgender people is their likelihood of living in poverty. The NCTE reports that 16% of transgender individuals have an annual household income below $10,000 and 29% of transgender people live below the poverty line. Additionally, the poverty rate is substantially increased for transgender Black and Latinx populations, at 38% and 43%, respectively ( James et al., 2016). Poverty is a common outcome for transgender folx because they do not share the same legal protections provided to other historically excluded groups (Warbelow et al., 2020). As a result, many transgender folx fnd themselves living in poverty because they experience high levels of unemployment as a direct result of job discrimination. In fact, 16% of transgender people report losing a job because of their gender identity ( James et al., 2016). Unemployment and poverty coupled with housing discrimination produce housing insecurity: 30% of transgender individuals report that they have been homeless at some point in their lives ( James et al., 2016). 161

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This toxic trifecta of unemployment, poverty, and homelessness produces an unprecedented precarity for transgender individuals when it comes to the criminal legal system. In order to survive, nearly 20% of transgender individuals report turning to underground economies, including engaging in sex work and selling drugs, to pay rent and buy food ( James et al., 2016). Life on the street means using public spaces like bathrooms more often and with that greater public surveillance and police contact (Kanewske, 2021; Lucal, 1999). Simply, the socio-context in which these folx must live then places transgender individuals in more situations that result in police contact. In fact, more than half (58%) of transgender people report being harassed by the police ( James et al., 2016). Transgender bodies challenge constructions of gender that are rooted in heteropatriarchy – the system that privileges the bodies and experiences of men, heterosexual people, and cisgender people, and oppresses the bodies and experiences of women, people who identify in the LGTBQ+ community, and those who identify as transgender. Taken together, the experiences of transgender individuals produce signifcant vulnerability and increased likelihood to enter the criminal legal system.

An Overview of Existing Policies and Practices Although there have likely always been transgender folx in prison, the scholarly literature is nascent. There are several reasons for this. First, despite the disproportionately high risk that transgender people face for being surveilled, policed, and funneled into the criminal legal system, they still comprise a tiny fraction of the incarcerated population. A Bureau of Justice Statistics 2012 survey reports 3,209 individuals who identifed as transgender in US state and federal prisons, and 1,709 transgender individuals in local jails (Beck et al., 2013). In February 2020, NBC News reported that there were 4,890 transgender individuals held in state prisons in 45 states and the District of Columbia (Sosin, 2020).2 These data suggest that despite their disproportionate rate of incarceration, transgender individuals likely make up less than one half of 1% of the total incarcerated population in the United States. As a result, their experiences are not only decentered but rarely even included in research on carceral spaces. Of the little extant, scholarly research that interrogates the experiences of incarcerated transgender folx, the focus is almost exclusively limited to the experiences of trans women.3 Additionally, this small body of research has largely been produced by a very small group of scholars (primarily Valerie Jenness and her colleagues). We acknowledge these signifcant shortcomings and raise our concerns that our chapter re-produces at least two problems we are trying to address: (1) acknowledging the invisibility of research on trans men, non-binary individuals, and gender nonconforming individuals and (2) the tendency to use the experiences of incarcerated trans women to paint a picture of the larger transgender (including trans men, non-binary, and gender nonconforming) experience in carceral spaces. We begin with a review of the literature on housing transgender individuals in jails/prisons, followed by a discussion of their experiences while incarcerated. This review of the literature provides a foundation for implications and recommendations ofered at the end of the chapter. Transgender people involved in the criminal legal system face signifcant challenges to safety and security in carceral spaces. While some of these challenges are also faced by cisgender residents, including the risk for physical and sexual violence, other challenges – including appropriate assignment to a facility, appropriate housing within facilities, and access to appropriate medical treatment – disproportionately shape the experiences of incarcerated transgender folx. In the next section of this chapter, we outline some of these unique challenges and discuss the policies developed and implemented to address the specifc needs of transgender residents in carceral spaces.

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Jail/Prison Placement Policy As previously noted, transgender folx present a challenge to the very foundation on which the carceral state is constructed: sex segregation. Assignment to jail or prison is almost exclusively based on sex assigned at birth. Even if a transgender person has changed their legal documents to refect their gender identity, and even in cases where they have begun or even completed a gender transition (including taking hormones or having surgery), transgender individuals are still generally assigned to units in a jail or prisons based on their sex assigned at birth (Kanewske, 2021). Practically speaking, though there are individual exceptions, this means that transgender women are housed in men’s prisons and transgender men are housed in women’s prisons. The scant research that does exist on the incarcerated experiences of trans women makes clear that these sexsegregated housing policies put their physical safety at extreme risk. Trans women held in men’s prisons report high rates of rape, sexual assault, physical violence, degradation, and harassment at the hands of both residents and staf (Kanewske, 2021; Mogul et al., 2012). As Jenness and colleagues (2007) document, 59% of trans women housed in men’s prisons report being raped, a rate that is more than ten times the rate for cisgender men incarcerated in men’s prisons (see also Jenness et al., 2019; Jenness & Fenstermaker, 2016).

Housing Practices in Jails and Prisons: Separate Housing Units Once transgender people are assigned to a jail or prison, policies and practices – often ostensibly designed to protect them – determine their housing assignments inside the facility where they are incarcerated. As the data we present here will detail, one of the most used strategies for ensuring the safety of transgender individuals in jails/prisons, especially trans women incarcerated in men’s prisons, is to house them in restricted housing/solitary confnement units. This practice incorrectly assumes that transgender folx are generally safer – particularly from threats of sexual violence – in such units, yet it does not consider the implications of the unit itself to other important metrics of safety, including mental wellbeing (Haney, 2003, 2018a, 2018b; Kupers, 2017). As Hattery (2023) argues elsewhere, rape is used as a tool for enforcing gender boundaries and gender performativity. When people – especially women, gay men, and transgender individuals – resist performing gender according to traditional, hegemonic constructions, they are often met with violence, and sexual violence in particular. Jenness and Fenstermaker (2016) refer to this as “Rape of the Feminine.” In their article by the same name, they suggest that the rape of trans women is just that: a tool, used by other residents and correctional ofcers to enforce gender boundaries and gender performativity. Understood this way, there is no structural solution to keeping incarcerated transgender folx safe from sexual violence. The only way to ensure their safety is by addressing sexual violence as a manifestation of the heteropatriarchy rather than as misbehavior that must be “corrected.” In some of the largest prison systems, separate units or pods have been created to house anyone who identifes with the LGTBQ+ community, and individuals who feel they would be safer in a special unit may apply to live there (Lopez, 2014; Skarbek, 2020; Ucar, 2014). There are many problems associated with special units designated for housing people who identify in the LGBTQ+ community (Luhar, 2014). First, assuming that the incarcerated LGBTQ+ experience is monolithic is problematic. Not only is the LGBTQ+ community diverse on every dimension, but not everyone who identifes in the community has the same needs and wants, especially transgender people whose needs are, in fact, quite distinct ( James et al., 2016; Routh et al., 2017). Second, the assumption that transgender folx will inevitably be safe in a unit specifcally designed to house individuals who identify in the LGBTQ+

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community is false. As Guadalupe-Diaz’s (2019) research reveals, transgender folx experience high rates of violence – physical and sexual – at the hands of other people who identify in the LGBTQ+ community. Third, as we will argue, the practice of segregating any group of people, rather than fnding ways to keep them safe in integrated spaces, reinforces the practice of segregation; this is a practice the United States, and prisons, in particular, have long been forced to confront.

Access to Medical Care Policies One of the most pressing issues facing transgender people who are incarcerated is access to essential medical care. Though most prison systems in the United States now have some codifed policies regarding transgender healthcare, this care is often substandard and difcult to access (Kanewske, 2021; Routh et al., 2017; Sevelius & Jenness, 2017; White Hughto et al., 2018). The World Professional Association for Transgender Health (WPATH) establishes standards of care for transgender folx (WPATH, 2012). One of the central standards of care involves the right of transgender folx to transition safely and according to their wishes. WPATH acknowledges that some transgender individuals may experience gender dysphoria, defned as “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth” (2012, p. 5). There is some controversy surrounding the specifcation of gender dysphoria as a psychological condition, as outlined in the DSM-5 (see APA, 2013), because some feel that it unnecessarily pathologizes gender nonconformity and contributes to stigmatization by equating being transgender with being mentally ill (Davy & Toze, 2018). We acknowledge this controversy but nonetheless include a discussion of gender dysphoria in this chapter because (as we will make clear), a diagnosis of gender dysphoria is often the only way that transgender folx in carceral settings can access appropriate care. Both WPATH and the NCTE stipulate that medical interventions (including hormone therapy and gender-afrming surgery) should be available to individuals as a means of treating gender dysphoria (NCTE, 2018; WPATH, 2012). Many cases we explore here, as well as lawsuits fled on behalf of incarcerated transgender people, detail the myriad ways in which the healthcare available and provided to incarcerated transgender folx violates these carefully designed standards of care. Among the most common approaches to providing healthcare to incarcerated transgender individuals, for example, is the “freeze frame” approach (Kanewske, 2021; Simopoulos & Khin Khan, 2014). The freeze frame approach refers to a policy in which incarcerated transgender individuals are allowed to continue to receive the same hormonal therapies they were receiving at the time of their incarceration. While at face value this may seem like an appropriate approach, in fact, the freeze frame approach freezes the transition, rather than allowing it to proceed according to the needs and wishes of the individual. Additionally, the freeze frame approach inaccurately assumes that even the same level of hormones will “freeze” the transition in place. Individual bodies, however, change under all kinds of conditions, and even stabilizing a transition may require diferent levels of hormones. As we will document, refusing to allow incarcerated transgender people access to hormones and other medical care is common and a signifcant and debilitating type of carceral violence. Furthermore, most prisons and jails in the United States do not allow residents to undergo gender-afrming surgery, even if they have been diagnosed with gender dysphoria and are experiencing signifcant clinical distress (Sevelius & Jenness, 2017). There are some indications these policies may be changing from momentum from the courts. In recent years, several courts have ruled in favor of transgender residents who contend that denying them gender-afrming surgery violates their Eighth Amendment rights against cruel and unusual punishment (Osborne & Lawrence, 2016). 164

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Research Study In this section, we examine the above challenges transgender residents identifed and shared in their own voices. Initially, our interest in the experiences of incarcerated transgender folx was sparked in part by the opportunities we had to interview several transgender individuals, both trans men and trans women, as part of a larger multi-year research study exploring risk, relationships, policies, and reform in one state’s Restricted Housing Units (RHUs) (the state’s formal name for solitary confnement units). This research analyzed the experiences of individuals living and staf working in RHUs across nine sex-segregated adult prisons (eight male, one female). Over three years, we conducted over 300 semi-structured interviews with RHU residents and staf, including some trans participants (n = 5). Of note, these participants self-identifed explicitly as transgender, and not as non-binary or gender nonconforming. When we frst set out to write this chapter, we had planned to focus on the data generated from these interviews and our observations inside the RHUs where we conducted our research. As we document in the following section, ultimately we decided authoring a chapter from the voices of the people we interviewed was ethically problematic and could put them at risk. Therefore, we made some difcult decisions about how to build the dataset for this chapter and pivoted to add publicly available secondary data. This decision allowed us to bring the voices of transgender people into the chapter while still protecting the people we promised to protect when they agreed to interview with us.

Data and Methods The data informing this chapter come from two distinct data sources that we combined to understand carceral policies and practices impacting transgender residents. The frst data source includes interview and feld observations with transgender residents in sex-segregated men’s and women’s prisons, including several we interviewed while they were incarcerated in restricted housing (i.e., solitary confnement) units. The narratives and experiences of the people we interviewed are important and unique. Presenting the analysis of these interviews, however, is rife with tensions. First, our sample includes so few transgender people (n = 5) that the simple act of presenting their narratives may risk the confdentiality we promised them. Therefore, if our discussion relied only on their specifc experiences and quotes, we could not guarantee that they would not be identifed. Additionally, their identifcation in this chapter might place them at risk in their facilities and, potentially, in their home communities. As researchers, we must be cognizant of the fact that ingrained transphobic societal attitudes mean that transgender individuals risk reprisals, discrimination, and violence anytime they speak openly about their experiences (Dodd, 2009). These are exactly the types of harms research should avoid and scholars must balance when publicly reporting on their own data (Fox et al., 2018). As a result of this tension, we added publicly available news accounts (n = 46) of incarcerated transgender people to our data set. These news stories describe specifc cases/narratives of an incarcerated transgender person or persons. These news stories include self-reported gender identity of the discussed individual, and direct quotes from them and others involved in the case. This ensures we were not mislabeling them and allowed us to use direct and exemplar quotes by people who consented to have their names and quotes publicly available. To create a dataset, we merged data from news stories (including quotes and descriptions of experiences) with the primary data interviews (gathered during the aforementioned research study) to create a more robust database of narratives (n = 51). We relied on a grounded theory (Charmaz, 2006) approach to develop emergent themes about the transgender experience. The most frequently emerging themes included “policies” and “practices” informing or structuring 165

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the carceral experience. From here, we completed more focused coding to understand the specifc policies and practices most often cited. Thematic analysis involves “systematically identifying, organizing, and ofering insight into patterns of meaning (themes) across a data set…[and] is a way of identifying what is common to the way a topic is talked or written about and of making sense of those commonalities” (Braun & Clarke, 2012, p. 57; Clarke & Braun, 2017). Simply put, we considered the entire dataset and distinguished commonalities and patterns in what the interviewees and news article participants conveyed. Although the number of incarcerated transgender people we interviewed is quite small and the number of news accounts is also small, there is remarkable overlap in the issues discussed across the narratives from the news stories and in our primary data interviews. Therefore, we feel confdent that despite the small sample that informs this chapter, the experiences that we heard or read about are not unique to the participants of our research but are also experienced by transgender people within a wide range of jails/prisons across the country. It is important to note that these stories are not refective of all transgender people, and that everyone has their own, unique, and equally valued story in addition to the shared experiences that bring them together. Moreover, the experiences of transgender people will difer from those of non-binary and gender nonconforming people, just as they vary among the transgender community itself. Our fndings detail the specifc policies implemented across various correctional facilities to “manage” and “accommodate” incarcerated transgender individuals. The fndings below describe the experiences transgender people had while living within the bounds of these policies, as conveyed through the narratives. While we considered the mixed primary and secondary data together to analyze emergent themes, we only present representative quotes from the news articles. At times, we also rely on the reporting of the article’s author to add context and maintain pronouns as presented in the news article. All of the data from the news accounts we cite were independently and organically raised in our interviews as well. However, this presentation approach reduces potential harms to the people interviewed as part of the primary research. This process is similar to selecting representative quotes to describe themes in any qualitative manuscript. The only diference in this approach is that we purposely did not select quotes from some portions of the data, even when the quote might more accurately or succinctly make the point. This is certainly a new approach to qualitative methods, but one that is ethnically and culturally responsive to the participants we want to center.

Experiencing Policies and Practices: Present Study Findings Our analysis of interviews and news accounts reveal a discrete set of unique experiences, challenges, and civil rights violations faced by incarcerated transgender people, including (misgendered) assignment to jail/prison, denied access to (gender appropriate) commissary, denied (gender-afrming) medical care, solitary confnement as a strategy for safety, and lack of adherence to respectful and safe standards of conduct.

(Misgendered) Assignment to Jail/Prison One of the most common experiences transgender people report in general, and within the carceral space in particular, is that of misgendering. Both in the free world and in jail and prison, cisgender people regularly and consistently misgender transgender people. Misgendering involves referring to someone by the wrong pronouns. This can exert a negative infuence on individuals’ self-esteem, self-stigmatization, and mental health (McLemore, 2015). Misgendering is also an example of a microaggression, a “commonplace, interpersonally communicated, othering message

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related to a person’s perceived marginalized status” (Nordmarken, 2014, p. 129). For transgender people who are entering the criminal legal system, misgendering originates literally at the beginning of case processing. In many of the accounts we present here, not only is the transgender person misgendered, but there is often confusion from the arresting ofcer, booking agent, or processing agent about the diference between gender identity and sexual orientation. Typically, when a transgender person is arrested or convicted and assigned to a jail or prison, the “data” from the strip search are the only factors considered when assigning an individual to a male or female prison. Fraser (2016, para. 9) notes this process in the case of Boyd Kodak, a trans man who was incarcerated in a Toronto jail: The documents that confrm his gender identity were updated roughly 20 years ago when he transitioned from female to male. Kodak has facial hair, wears male clothing and has a deep male voice. But after a strip search, he was moved to the female holding cells. A day later, he was transferred to Vanier Centre for Women, where he was strip searched again and correctional ofcers took away his penile prosthesis, despite his protests. Many things signal our gender identity, including the clothes we wear, hair styles, and facial and body hair. Often, when assigning transgender individuals to specifc prisons, no evidence other than sex assigned at birth – not even legal documents, or identity presentation signals – is initially considered. This means that not only are most incarcerated transgender people housed in a facility that is not aligned with their gender, but the beginning of their experience with the legal system starts with the system not recognizing them authentically. In many cases, this lack of recognition occurs even when transgender people have undergone gender-afrming surgeries. Though the carceral intake process often uses sight of person’s sex organs as its sorting mechanism, this technique is not always used consistently. This was the case with Jules Williams, a trans woman who had gender-afrmation surgery, including breast augmentation and removal of her testicles, at age 18. Nearly 20 years later, she was arrested and booked into the Allegheny County (Pennsylvania), where she was not only held in the men’s facility but also shared a cell with a man. Williams reports this cellmate raped her multiple times (Cowart, 2017; Schmitt, 2017). After fling various complaints and lawsuits, Williams appeared before a judge who agreed she is a woman and must be housed accordingly. Pittsburgh attorney Alec Wright, remembering Williams in the courtroom, remarked, “When I saw her, I had no doubt she was literally a woman locked up with men. Her physical appearance, her walk, her mannerisms, her hair, her facial structure told me she was a woman,” (Schmitt, 2017, para. 17). Although Attorney Wright’s commentary invokes rigid constructions of gender (referring to “her walk” and “her hair” invokes a cisgender, non-queering construction of gender by implying that certain behaviors or physical characteristics apply only to women), it nonetheless afrms Williams’ gender identity. Importantly, though, Williams only secured safe and gender-afrming housing in jail via court intervention. This is a process unlikely to occur for many carceral residents who are not regularly returning to court like their jailed counterparts and is an even more remote possibility for those without adequate legal representation. Although most spaces and institutions in the United States are highly gender segregated, prisons are perhaps the most rigidly so because the segregation is based on sex assigned at birth, rather than gender. In this context, transgender people fnd that correctional staf charged with determining their housing placement refuse to (or feel they cannot) accommodate those whose sex assigned at birth conficts with their gender identity. As such, drawing on all the news accounts and interviews reveals the vast majority of transgender people are misgendered early in the legal process and are housed in non-gender-afrming facilities.

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Access to (Gender Appropriate) Commissary All incarcerated people are entitled to a minimum basic level of clothing and toiletries. Those with money in their commissary account can, unless they are on restriction, order additional clothing and toiletries (as well as a wider variety of items including food and stationery) from a catalog or approved list of items. For many transgender people, both those who are incarcerated and those who are free, clothes (especially undergarments) and hygiene products are central to their gender performativity. However, across news accounts and interview participants, policies regulating gender-afrming clothes and items were another central concern. In some jails and prisons, residents are only able to purchase clothing and hygiene products from the catalog that aligns with the sex of the prison in which they are held (e.g., people housed in men’s prisons can only purchase commissary items from the approved list for men’s prisons). This is another way transgender bodies experience inequality within carceral spaces compared to their cisgender peers. In other systems, this may be dictated less by explicit policy and more by the nature of sex-segregated prisons (that is, options are not available not because policy forbids it, but because these items are not usually stocked and therefore not available for purchase). Regardless of why these commissary items are unavailable, they are nonetheless formative in maintaining dayto-day gender expression, a luxury aforded to incarcerated transgender residents’ cisgender peers. Ky Peterson, a trans man incarcerated in Pulaski State Prison, a women’s prison in Hawkinsville, Georgia, struggled to get gender-appropriate clothing through the commissary (Brydum & Kellaway, 2015; Project Q Atlanta Staf Author, 2016). According to Peterson, correctional staf denied him access to gender-appropriate clothing despite policy dictating that under Georgia Law he is entitled to the clothing that matches his gender identity. Peterson faces guards that misgender and mistreat him and a struggle for the trans-related healthcare he needs. Pinky Shear, his partner, spoke with Project Q Atlanta about the difculty she’s faced making sure what little access Peterson has to gender-afrming products – even simple things such as boxers – are protected. “It’s probably been six months fghting the prison to get them to have, to put boxer shorts [in] the stores so he can have boxer shorts and so the other guys can get boxer shorts, too,” Shear said. The “other guys” Shear is referring to are other transgender men in Peterson’s facility. (Project Q Atlanta Staf Author, 2016, para. 1–4) Other individuals included in our dataset note that their gender-afrming clothing and hygiene products are often labeled and treated as “contraband.” As Amber Thorrden, a trans woman held in a men’s prison in Oregon, describes: The ofcers assigned to my unit were conducting “faggot checks” on my cell-mate and myself…I was forced to take all of my property and lay it out on the tier so the ofcer could inspect it. This was done at a time when other inmates had access to the day room and several walked past my belongings, including my feminine undergarments and incontinence supplies…The pretense was to ensure that I had no contraband, but in reality it was a blatant attempt to show the “freak” of to the whole unit. (Gilmour, 2020, para. 10–12) Thorrden’s story illustrates how labeling necessary products as contraband is a means by which incarcerated transgender folx are not only denied gender-afrming items but also surveilled, labeled, stigmatized, and put at additional risk while incarcerated.

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Denying incarcerated transgender people the right to purchase and own gender-afrming clothing or hygiene products may seem like a minor inequality or inconvenience given the litany of “pains of imprisonment” (Sykes, 1958). However, access to these products is critically important. First, clothing and hygiene products are an essential strategy for conveying and confrming gender identity (Brömdal et al., 2019). Second, because there is so little that incarcerated people can control while in prison, everyday items like clothing and hygiene products become not only more important but also serve to tether persons who are incarcerated to life in the free world. Thus, denying transgender people who are incarcerated the right to clothing and hygiene products that allow them to express their true, authentic gender identity is unusually cruel, and in some systems, unlawful (Francisco, 2021).

Access to (Gender-Afrming) Medical Care One of the most common experiences transgender incarcerated people report is the denial of appropriate medical care. Prior literature discusses how necessary medical care – for all residents, cisgender and transgender alike – is woefully inadequate and inaccessible in carceral settings (Delgado & Humm-Delgado, 2009; Greifnger, 2006; Nowotny, 2016). However, this issue takes on an extra dimension when considering the experiences of transgender residents. Not only is the denial of necessary medical treatment (including hormone therapy and gender-afrming surgery) extremely dangerous for transgender individuals, it is also a mechanism for erasing their identities while reinforcing the gender binary (Sevelius & Jenness, 2017; White Hughto et al., 2018). As a means of addressing gender dysphoria, access to appropriate medical care is linked with improved quality of life, reduced substance abuse, and reduced suicidality, depression, and anxiety (Sevelius & Jenness, 2017). As with any medication or treatment, the abrupt interruption of hormone therapy (including testosterone blockers, estrogen, and progesterone supplements for trans women, and testosterone supplements for trans men) presents serious medical danger. A trans woman who abruptly stops taking estrogen, for example, will experience symptoms congruent with medically induced menopause (including hot fashes, night sweats, dizziness, anxiety, and depression), as well as reversal of some aspects of her physical transition (Briggs, 2013; Kanewske, 2021). These processes may not only cause physiological and psychological distress but can also render trans individuals’ identities literally invisible or erased. Ashley Diamond, a trans woman incarcerated in Georgia, reported she was denied her hormone regimen while incarcerated and housed in solitary confnement. As a result, she attempted self-mutilation to negate the reversal to her sex assigned at birth, putting her life in grave danger: But perhaps most traumatic of all, the lawsuit describes how Diamond was denied the hormones she had taken for 17 years before her incarceration. Without the necessary medication, Diamond “violently transformed,” losing breast tissue and experiencing muscle spasms, according to the lawsuit. Diamond’s lawyer, Chinyere Ezie, said Diamond has attempted to castrate herself so she can go back to being the woman she knows she is. (Greenberg, 2015, para. 38) At issue here is the blatant and deliberate denial of incarcerated transgender individuals their civil and human rights. The same hormonal treatment that trans women are routinely denied is given regularly to cisgender women experiencing menopause or to treat irregularities in menstruation (Kanewske, 2021). This means that the denial of gender-afrming medical care is not a cost or capacity concern – it is widely available. Rather, it is an example of transphobic policies operating

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in a sex-segregated system, ultimately putting incarcerated transgender people’s identities and lives at risk. As noted above, recent years have seen a number of court cases brought before federal judges arguing that denying incarcerated transgender residents access to gender-afrming surgery (after being diagnosed with gender dysphoria) violates their Eighth Amendment rights against cruel and unusual punishment. Courts have decided many cases in transgender residents’ favor, signaling positive developments for transgender rights in carceral settings (Osborne & Lawrence, 2016). However, transgender residents in most prison systems still face signifcant barriers in accessing surgery. For example, it took Adree Edmo three years of court battles to secure her right to gender-afrming surgery (Simmons, 2020). During the lengthy court process, Idaho governor Brad Little, who was strongly opposed to the surgery, repeatedly vowed to appeal the case to the United States Supreme Court and claimed that the Idaho taxpayers should not have to shoulder the burden of paying for Edmo’s surgery (Simmons, 2020). The Supreme Court eventually refused to hear the case and Edmo’s surgery went ahead in July 2020. Signifcantly, the surgery cost Idaho taxpayers virtually nothing as it was covered by Corizon Health, a prison healthcare company that the Idaho Department of Corrections contracts with to provide health services to Idaho prison residents (Simmons, 2020). As with the above discussion about hormone therapy, the issue here is not whether surgical remedies are available to incarcerated residents; all state corrections departments have policies in place to guarantee that residents receive medically necessary surgery ( Jreige et al., 2021; Scarlet & Dreesen, 2017). Rather, the argument lies with state corrections systems denying that genderafrming surgery is an appropriate and necessary treatment for an acknowledged medical condition (gender dysphoria) inside a context that approves of other medically necessary surgeries for people who are incarcerated. At its heart, this policy is an example of systematic transphobia and cis-sexism, both of which enforce the gender binary and uphold sex – not gender – as the primary way carceral spaces are organized and operated.

Solitary Confnement as a Strategy for Safety The most pressing concern facing transgender people who are incarcerated is their physical safety. The most common approach to carceral housing for transgender folx is in administrative segregation, otherwise known as solitary confnement (Kanewske, 2021). This includes living in a cell alone or with another person, locked down for at least 22 hours a day (Reiter, 2016). Although some researchers argue the physical and mental health impacts from restricted housing units/solitary confnement are inconclusive (Morgan et al., 2016; O’Keefe et al., 2010), most other scholars, activists, and policymakers recognize the extremely negative efects of these units (Haney, 2003, 2018a, 2018b; Kupers, 2017). However, research studying these efects – including anxiety, depression, violence, hypersensitivity, paranoia, and disproportionately high rates of suicide and self-harm – consider and discuss these efects in the (sex-gender) aggregate. This means these effects exist as the baseline or the minimum of what incarcerated transgender folx in these units will experience and does not account for how sex-segregated policies and gender-based sexual violence in these units exacerbate these efects and contribute to transgender people’s marginalization in prisons and jails. This is problematic when these units are the primary “safety” mechanism and housing unit for transgender individuals. Like Jules Williams, who reported living in solitary confnement during her incarceration, CeCe McDonald is another trans woman who jail administrators placed in solitary confnement for safety reasons (Erdely, 2014). According to news accounts featuring McDonald, she faced a number of difculties in life before incarceration, including bullying in school and her parents refusing to care and shelter her during childhood; by age 14 she was living on the streets. In 2000, 170

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she found a community center that provided services to LGBTQ+ youth which helped her navigate systems to begin taking hormones to transition, change her name on her driver’s license, and enroll in fashion classes at the local community college. As previously discussed, trans folx experience increased surveillance and harassment, not only from the police but from the public. In 2011, she was attacked by a white supremacist and responded by pulling the scissors she carried to classes out of her bag and stabbed the man. McDonald was convicted and sentenced to prison and served her entire 18-month sentence in solitary confnement (Erdely, 2014). Both Jules Williams and CeCe McDonald reported being raped while in solitary confnement, and McDonald reported sexual violence by both residents and correctional ofcers (Cowart, 2017; Erdely, 2014). As these stories suggest, even when transgender individuals, especially trans women, are housed in solitary, they are not safe, especially from sexual violence.

Policies Regulating Transgender Residents’ Interactions with Staf and Other Residents There are many formal and informal practices in carceral spaces that dictate staf-resident and resident-resident interaction. For instance, the Federal Bureau of Prisons Inmate Admission and Orientation Handbook (2020) specifes that residents “have the right to expect that as human beings [they] will be treated respectfully, impartially, and fairly by all personnel” and that residents “have the responsibility to treat others, both employees and inmates, in the same manner” (p. 44). In practice, however, these standards are rarely upheld. Like the kinds of verbal harassment that many transgender people report experiencing in the free world, incarcerated transgender folx report experiencing verbal abuse on the inside as well. This occurs not only from other residents but also from correctional staf ( Jenness et al., 2019). Jules Williams, in the article about her time incarcerated, recalled that, “Guards called her ‘faggot’ and ‘freak show’ and referred to her as ‘s/him.’ They forced her to shower in the presence of male prisoners and corrections ofcers” (Cowart, 2017, para. 8). Likewise, Boyd Kodak, in his interview with reporters, says that people harassed him constantly: “People would yell [at] me, because sometimes you get escorted through the halls…They’d say things like ‘What are you anyway? What were you born? What’s in your pants?’” (Fraser, 2016, para. 14). We personally witnessed this kind of verbal abuse during our interviews with correctional ofcers in a state department of correction. We observed staf repeatedly misgender incarcerated transgender folx and refer, among themselves, to incarcerated transgender people with slurs much like those quoted above. Despite numerous correctional policies forbidding sexual violence between residents (most notably the Prison Rape Elimination Act (PREA) passed in 2003), sexual violence against transgender individuals is rife within the carceral setting. C. Jay Smith, a trans woman held at San Quentin State Prison in California (a men’s facility), reported being raped a number of times, including one incident in 1998 when ofcers “allowed multiple men in custody to rape [her] repeatedly over four consecutive days” (Lang & Sosin, 2020, para. 6). In 2015, Candice Crowder – a trans woman held in a California men’s prison – was viciously raped by a fellow inmate after she repeatedly notifed correctional staf that he had threatened her. Following this attack, correctional ofcers not only refused to provide her with immediate medical attention but also moved Crowder to solitary confnement for nine months (Ashton, 2019). In a letter to Nevada lawmakers, Daisy Meadows – a trans women held in a men’s facility – described how she was raped by another inmate, declaring that “being raped, beaten, physically assaulted, oppressed, tortured, harassed, and forced to be someone I am not has never been a part of my sentence” (Lyle, 2021, para. 3). Rachel Whitted, another trans woman held in the same prison system, told lawmakers “I’ve even had an inmate ask to cell up with me so they can sexually assault me” (Lyle, 2021, para. 7). 171

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Both in the free world and in the carceral state, sexual violence poses one of the biggest threats to the safety of transgender folx. Transgender bodies challenge the fundamental paradigm that gender comes in just two “boxes” – male and female. In this way, it is possible that sexual violence in the carceral context targets the “site” of the transgression: transgender individuals’ sexual bodies. Sexual violence then is deployed specifcally to exert power and control as well as to enforce gender boundaries (Hattery, 2023), and to ensure, to the degree possible, that transgender people remain fearful enough that they seek invisibility, remain afraid enough never to transition, stay silent, and do not actively seek out legal protections. In this way, the experiences of transgender people, especially transgender carceral residents, are consistent with experiences in the outside world, and both incarcerated peers and correctional ofcers feel compelled to enforce the (erroneous) gender boundary through discrimination and violence. This occurs despite codifed policy aimed at ensuring respectful and safe interactions among residents and staf, as well as a policy forbidding sexual violence. Clearly, when it comes to transgender residents, these policies are simply not enforced, nor do individuals face appropriate repercussions for violating them. In sum, as we have documented here, there are many policies and practices in carceral spaces that threaten the safety and security of incarcerated transgender folx and put their very existence in peril. In some cases, it is the policy itself that threatens transgender residents (such as misgendered assignment to facilities). In other cases, the threat comes from correction systems’ failure to enforce policy (by, for example, not upholding appropriate standards of conduct and not adhering to the stipulations set forth in the PREA). Specifcally, we identifed the following threats to the wellbeing of incarcerated transgender folx: misgendered assignment to facilities, lack of access to gender-afrming commissary, denial of appropriate medical care, the use of solitary confnement as a “safety strategy,” and lack of enforcement of appropriate standards of conduct among residents and staf (leading to discrimination, verbal abuse, and sexual violence). Individually and in combination, these policies and practices run contrary to the fundamental mission in carceral spaces of care, custody, and control. Though we acknowledge that all incarcerated people experience harm in carceral spaces, transgender residents fnd that they are not only not cared for, but they are also harmed in unique ways. Specifcally, their gender identity is often ignored, their transitions are “frozen” (or in many cases reversed), and they are left vulnerable to verbal, physical, and sexual violence. To be incarcerated is to be invisible, to experience social death. To be incarcerated as a transgender person is to be erased.

Data Challenges As noted, one of the challenges facing researchers who focus on the incarceration of transgender people is their relatively small number in the population, despite their signifcant overrepresentation among the incarcerated (Beck et al., 2013; James et al., 2016; Sosin, 2020), and research access to incarcerated people who identify as transgender. Additionally, trans women are disproportionately represented in this already small population, and trans men, non-binary, and gender-nonconforming individuals are signifcantly underrepresented, which creates additional data challenges (Kanewske, 2021). Trans women are overrepresented among the incarcerated population for a variety of reasons, almost all of which have to do with ideologies of gender and gender identity. First, many people do not believe that trans women are “real” women (Hay, 2019, para. 6; see also Hotine, 2021). Instead, they argue that trans women are simply men disguising themselves or “pretending” to be women (Lee & Kwan, 2014, p. 84; see also Boukli & Copson, 2019; Like et al., 2015). Although we fnd this to be deeply troubling and problematic, beliefs like this impact the treatment that trans women experience in the streets and at the point of frst contact with law enforcement and the criminal legal system. As the incarcerated trans women in our sample discuss, trans women in 172

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the free world are often raped by cisgender, heterosexual men to police their perceived transgressions to masculinity (Guadalupe-Diaz, 2019). Additionally, heteropatriarchy and transphobia also create a more robust market for trans women who engage in sex work ( Jones, 2020; Nuttbrock, 2019). Thus, trans women are more likely to be ensnared in the criminal legal system because they are more likely to be working and living on the margins where their bodies are at greater risk for violence; this is especially important when considered in the context of surveillance, policing, arrest, and incarceration (Kanewske, 2021). In contrast, because trans men may be misgendered as “women,” they may be less likely to be arrested at all, refecting general beliefs about the criminality of men and women (Cumley et al., 2015). Finally, it cannot be overlooked that trans women pose a signifcantly greater threat to the hegemonic system of gender than do trans men. Trans men are often misunderstood as “butch” or “lesbian,” but still women. In contrast, trans women pose a signifcant threat to masculinity precisely because they are viewed as emasculated men (Arayasirikul & Wilson, 2019; Serano, 2016). As in the case of gay men, homophobia, transphobia, and misogyny converge in the case of trans women, making them the frequent targets of severe violence, both physical and sexual (Kanewske, 2021). Taken together, there are many challenges involving the data which are available or that can be gathered on the experiences of incarcerated trans men, non-binary, and gender nonconforming people. This phenomenon results in the unintended consequence of research centering the experiences of trans women over those of others in the transgender, non-binary, and gender nonconforming community. Plainly, this is also exacerbated in the carceral space. We are aware of these data challenges, and our intent for this chapter was not to reinforce or contribute to them. To the degree possible, we hope we presented an argument that widens rather than narrows our understanding of the experiences of incarcerated transgender folx and those who identify across the binary.

Policy and Practice Recommendations In this section, we present our recommendations for reforming policy and practice. For ease of reading, we provide a table that summarizes our recommendations followed by a lengthier discussion of each (see also Cain & Ellison, Chapter 10, for more policy recommendations). Transgender and gender nonconforming people are, for a variety of reasons, at signifcantly higher risk of incarceration (Kanewske, 2021). The majority of transgender and gender nonconforming people who are incarcerated are forced into high-risk activities because of the discrimination they experience in housing, education, and virtually every social space ( James et al., 2016). Our failure, as a society, to protect transgender and gender nonconforming people from housing or job discrimination, for example, leaves them vulnerable to poverty and housing insecurity ( James et al., 2016). In response, they may be more likely to engage in the illegitimate economy, including selling drugs and engaging in sex work, putting them at increased risk for arrest and incarceration (Kanewske, 2021). Within jails and prisons, one of the more championed interventions includes creating separate spaces inside of institutions for transgender residents. First, we believe strongly that designing separate institutions or units to incarcerate transgender individuals is not the answer. Though separate units are often touted as a necessary protection from violence, protection from violence does not equate to safety, nor does it guarantee equality. At the most basic level, as cases such as that of CeCe McDonald demonstrate, isolating trans women in administrative segregation, or even other non-restricted units, does not guarantee their safety. McDonald reported that correctional ofcers raped her at least seven times during her 18-month sentence in solitary confnement (Erdely, 2014). Any solution which involves separating people because they do not 173

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“ft” is not only othering in practice, but it reinforces the false ideology that transgender individuals cannot thrive with integration (Stewart et al., 2018). Growing scholarship supports the contention that integration of transgender, non-binary, and gender nonconforming individuals into a variety of realms – including the military (Dunlap et al., 2021; Ender et al., 2017), schools (Goodrich & Barnard, 2019; Mason et al., 2017), and sports (Braumüller et al., 2020; Gray et al., 2018; Lal, 2020) – is both necessary and feasible. As such, the implications of creating a “separate but equal” space in carceral settings hold the potential to be leveraged in other government regulated spaces – bathrooms, classrooms, workplaces, and social services, for example – and risks invalidating and undoing the progress made regarding transgender inclusion in society-at-large. Centuries of racial and gender segregation in the United States have demonstrated that separate is never equal. An examination of the history of prison reform makes clear that such reforms are often brought about as reactions to lawsuits. Though any positive reform should be celebrated, we must note that this approach is reactive rather than proactive. Furthermore, the passage of the Prison Litigation Reform Act in 1996 placed a number of restrictions on the kinds of lawsuits that correctional residents can fle in federal court, increasing the difculty of achieving positive change through litigation (Fathi, 2012; Schlanger & Shay, 2008). Although some of the specifc recommendations we suggest are indeed reactive, others are proactive. We encourage a proactive approach not only because it allows administrators to get “out ahead” of the lawsuits, but more importantly because it signals a humane approach to safely incarcerating transgender and gender nonconforming people while also protecting their civil and human rights. The most proactive and all-encompassing reform includes enacting laws that provide full civil rights protection for all people who identify as transgender, gender nonconforming, or any group outside the gender binary. Ensuring full civil rights protections will inevitably reduce poverty, housing instability, and other challenges that currently force transgender people into behaviors that put them at risk for arrest and incarceration. Second, we recommend immediately decriminalizing drug use, low-level drug sales, sex work, and other activities that are oftentimes the only option (due to systemic marginalization and discrimination) transgender people have to survive. However, we recognize these changes cannot happen in a vacuum and are at the whim of what Kingdon (2011) describes as policy windows, instances in which the public believes there is a problem, there exist viable solutions to address the problem, and the political composition is ripe to fx the problem. In this context, additional civil rights protections and decarceration is the most appropriate policy solution (Kingdon, 2011). In the absence of such overwhelming change, however, we ofer several practical recommendations for corrections administrators, as summarized in Table 8.1.

Staf Training The presence of transgender individuals in jails and prisons is consistent and rising (Beck et al., 2013; James et al., 2016; Sosin, 2020). Therefore, correctional staf must be prepared to supervise these populations with fairness, knowledge, and cultural competency. During our interviews with staf in restricted housing/solitary confnement units, we observed “cheat sheets” with sexual and gender identity terms posted in staf ofces that attempted to serve as an ever-present reminder of the appropriate terms to use when referring to and interacting with LGBTQ+ residents. Nonetheless, we repeatedly heard staf confuse sexual and gender identity, for example, referring to transgender residents as “homosexual.” Of course, this is not a problem confned solely to the facilities in which we have done prior research. In 2015, a judge ruled in favor of Neon Brown, a trans woman held in a Maryland correctional facility, fnding that the facility “failed to train all employees in how to efectively and professionally communicate with transgender inmates” 174

Experiences of Transgender Individuals Table 8.1 Policy and practice recommendations. Table prepared by authors Potential Impacts to: Policy Area Local Changes Staf training

Housing placement

Access to necessary medical care

Lead Implementor

State DOC agency; Practice: Mandate Federal Bureau of evidence-based and Prisons culturally competent training

State DOC agency; Policy: Allow Federal Bureau of incarcerated trans folx choice Prisons in institutional assignment (e.g., sex assigned at birth or gender identity) State DOC agency; Policy: Allow Federal Bureau of incarcerated trans Prisons folx access to pharmaceuticals and surgical procedures

National Changes Federal legislature; Civil rights State legislatures that protect members of the LGBTQ+ community

Decarcerate and reduce mass incarceration

Recommendation

Pass civil rights legislation extending protections to all people who identify in the LGBTQ+ community

Federal legislature; Decriminalize lowlevel drug ofenses State legislatures and sex work

Individual(s)

Institution(s)

Improves compassionate interactions between staf and folx incarcerated by reducing microaggressions and increasing awareness of trans issues Improves perceived safety for incarcerated trans folx; Less time spent in restricted housing units via administrative segregation Facilitates physical transition and reduces side efects from hormone absence; Improves self-esteem and mental health

Reduces tension in jails and prisons and creates safety and security, thus reducing lawsuits

Reduces need to turn to illicit markets for working and housing, and reduces vulnerability for involvement in the criminal legal system; Creates legal avenues for incarcerated trans folx to access genderafrming healthcare and commissary Reduces pathways to incarceration

Reduces the trans population in prison

Reduces reliance on restricted housing units for safety concerns; Reduces opportunity for victimization Minimizes discretion and ensures equal treatment for all incarcerated people

Reduces the trans population in prison

(Linderman, 2016, para. 4). Brown relates that staf referred to her as “it” and “some kind of animal” while also watching her shower (Linderman, 2016, para.1). The ruling resulted in required training on the appropriate ways to treat, interact with, and refer to transgender folx housed in Maryland correctional facilities. Despite this training, in 2021, a Baltimore City jail again made 175

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headlines for their unlawful treatment of Kazzy Davis, a trans woman who was repeatedly misgendered and harassed while housed there (Anderson, 2021). Stories such as these highlight the importance of providing correctional staf with evidencebased and culturally competent training on the appropriate ways to treat, interact with, and refer to transgender, non-binary, and gender nonconforming residents. This training must go well beyond simply learning appropriate language but must also help staf operationalize concepts into gender-afrming practices and procedures. Training such as this has been developed and is being utilized in various other areas of society, including school systems (Case & Meier, 2014), hospitals (Bristol et al., 2018), colleges and universities (Beemyn, 2005), and in large businesses like Google (Aguilar, 2020). Correction systems can use these other eforts as models to develop their own culturally competent inclusive training. Additionally, it is imperative that corrections departments commit to abiding by and enforcing standards of conduct that govern respectful, impartial, and safe interactions among residents and staf. Correctional staf must be trained to recognize instances in which these standards of conduct are breached and to intervene accordingly. Correctional staf must also abide by the standards set forth in the PREA by fulflling their responsibility toward sexual abuse prevention, detection, reporting, and response. The National PREA Resource Center (2021) provides copious guidance regarding training and technical assistance for corrections departments.

Housing Placement Even though transgender people face a signifcantly higher risk for incarceration compared to their cisgender counterparts, they make up a tiny portion of the incarcerated population. Some reports estimate the total number of transgender folx who are incarcerated is not likely greater than 20,000 individuals (Beck et al., 2013; Sosin, 2020). These 20,000 individuals are unlikely to be distributed equally across jurisdictions. Therefore, few (if any) jurisdictions will have a transgender population that comprises more than a tiny fraction of their total population, which might lend itself to creating policies that address individuals’ needs on a case-by-case basis. In California, for instance, individuals requesting transfers to facilities that match their gender identity may make their request to a committee composed of a correctional counselor, a PREA compliance manager, and medical and mental health stafers. Each request is considered on a case-by-case basis and considers a variety of factors such as the individual’s gender identity, criminal record, health needs, sentence, and safety concerns (Miller, 2021). From anecdotal news reports (Haug, 2021; Miller, 2021), incarcerated transgender individuals in California appear to be mostly pleased with this system. However, it has received signifcant pushback from groups (primarily prison stafers) who claim that it will allow cisgender residents to make false claims about their gender identity to transfer to the facility of their choosing (Miller, 2021). Furthermore, the case-by-case nature of the system (though positive) does mean that transfer and housing requests can take a long time to move through the system. For instance, between January 1 and April 5 of 2021, the California Department of Corrections received 261 transfer requests, but reviewed only 21 of these cases (all 21 transfer requests were approved) (Miller, 2021). Creating a statewide policy that dictates placement according to gender identity would mitigate the need and administrative resources devoted to individual reviews. In this scenario (under a system that assigns placement according to gender identity), the 261 people who requested transfer in California would have received the placement automatically. Assigning residents according to their gender identity also attenuates the need for solitary confnement to be used as a de facto strategy for safety. It is also important to consider that some transgender people may prefer to be incarcerated in jails and prisons based on their sex assigned at birth (due to safety concerns or availability of other accommodations). In response, states could rewrite policies to allow for assignment 176

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based upon gender identity, or assignment based upon choice. We recognize this new approach invites criticism from those who believe individuals will leverage the system for predatory or other gains. We believe this suggestion is the start and should be coupled with reasonable structures to protect against exploiting the system.

Access to Necessary Medical Care Transgender residents must have access to the full complement of civil and human rights guaranteed to incarcerated cisgender individuals, including the right to medically necessary treatment and surgery. Incarcerated transgender people need access to medications that allow them to maintain or continue their transitions; we urge prison and jail administrators to proactively ensure that transgender individuals have access to these medications and surgical interventions. Many of these drugs already exist and are approved for use in prisons and would only require expanding eligibility requirements to include transgender residents. This recommendation is one of the easiest to enact and doing so would curb concerns from advocacy organizations, prison watch dogs, and inevitable litigation. Those who choose to undergo a gender transition while incarcerated should have access to all medically necessary medications and surgical procedures, just as any other resident. Most states have agreements in place with health insurance providers that allow incarcerated residents to receive necessary surgery at no extra cost to the system or to taxpayers; gender-afrming surgery should be included as one of these covered surgeries. Specifc guidance regarding constructing trans-inclusive correctional healthcare policy is provided by both the NCTE (2018) and the WPATH (2012). Additionally, given that conditions can and do change in carceral spaces, we suggest that mental health staf schedule regular follow-up meetings with all incarcerated transgender folx as a matter of policy to assess their safety and reassess their needs. This is akin to similar existing policies that regulate supervision with counselors, psychology staf, or psychiatrists informed by a DSM diagnosis.

Areas for Future Research There are many gaps in the scholarly literature as scant research examines the experiences of transgender folx who are incarcerated. This leaves much room for documenting their experiences, understanding the challenges, risks, and successes, and providing evidence-based research that informs policies to protect the civil and human rights of these individuals in the carceral system. For example, how should researchers go about creating inclusive research focusing on this population? Where should research begin? Is it best to start with qualitative research to document their lived experiences and to inform larger scale studies? How should intake assessments be structured to ensure proper classifcation and housing assignments? How do the experiences of individuals difer if they are housed in facilities diferent or congruent with their gender identity? Although we acknowledge that transgender individuals continue to make up a tiny percentage of the incarcerated United States population, continuing to aggregate the experiences of these folx further exacerbates the problem by not giving proper time and attention to the very real and important diferences in the lived experiences of those who comprise this community. Future research should be inclusive of a variety of experiences and render visible, rather than invisible, the myriad and unique experiences of all those who identify outside of the logically fallacious gender binary. In addition to including a range of experiences as they relate to gender identity, there is also a need to focus research on the experiences of transgender, non-binary, and gender nonconforming people at all stages of the criminal legal system, including police surveillance and the point of frst contact, through processing, pre-trial detention, incarceration, and reentry. Only when we understand the entire range of experiences can we pin-point the areas of concern and points of promising intervention and reform. 177

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Conclusions As we have demonstrated here, incarcerated transgender people pose a challenge to carceral institutions specifcally because they defy the hyper sex-segregation on which jails and prisons are built. As a result, in addition to the types of discrimination that transgender folx face in the free world, they also face threats to their safety and bodily integrity when incarcerated. However, as we have demonstrated, many of the challenges faced by transgender folx during their periods of incarceration can be easily ameliorated without challenging or changing the structures of carceral spaces. Residents of any gender can be provided access to all commissary items so that they can purchase clothing that fts them and toiletries that align with their gender expression. As dictated by the WPATH Standards of Care, just as any cisgender resident has access to appropriate medications to treat health conditions, all transgender residents should have access to and receive any and all medications and treatments, including hormone therapy and surgery, that allow for their desired transition. The biggest challenge of all for incarcerated transgender people is ensuring their safety. Though transgender residents have higher risk for experiencing physical and sexual violence, safety is not a unique concern in carceral spaces. As we suggested in this chapter, implementing a case-by-case approach to housing incarcerated transgender folx would be a good frst step in improving their safety and security while confned. We strongly encourage correctional administrators to implement the kinds of reforms we suggest for improving equity and decreasing marginalization among transgender persons who are incarcerated. However, even these reforms do not address the root causes of the problem. Transgender individuals are at exceptionally high risk for physical and sexual violence while incarcerated and they regularly experience forms of discrimination that violate their civil and human rights because their bodies challenge deeply held beliefs about gender. Specifcally, transgender people are perceived as transgressing one of the most long-standing social boundaries: that between “men” and “women.” In the context of the carceral state, which is built squarely on the foundation of this belief, transgender individuals present challenges to every aspect of incarceration, beginning with assignment to a prison (men’s or women’s), cell assignment (general population or solitary confnement), access to medications and surgery, and access to gender-afrming commissary. Much more research is needed to better understand the experiences of transgender individuals both in and out of the carceral system. We call on researchers working at the intersections of race, gender, gender identity, and incarceration to take up this call to action so that policies and practices are designed, using empirical evidence, to keep transgender individuals safe and secure during their periods of incarceration.

Notes 1 See also Kunz (2019) and Salinas and Lozano (2019) for discussions of terms such as “womxn” and “Latinx.” 2 The fve states not included in this dataset are Alabama, Alaska, Indiana, Tennessee, and Utah. 3 In a personal conversation with Valerie Jenness – one of the foremost scholars of transgender individuals in prison – in July 2020, she conveyed that she knew of no extant scholarly work dedicated solely to trans men and gender nonconforming individuals in prison. 4 An asterisk denotes those sources that were included in our sample of 46 news sources.

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9 USING TECHNOLOGY TO RESPOND TO THE SAFETY, HOUSING, AND PROGRAMMING CHALLENGES ASSOCIATED WITH TRANSGENDER INMATES Building a Research Program to Study the Efectiveness of Technology-Delivered Programming Jennifer L. Lanterman, M. Janelle R. Goodwin, Marc Bello and Morgan N. Bucy Introduction Transgender people experience a variety of collateral sanctions beyond their periods of detention or sentences to incarceration. Many of these collateral sanctions are associated with the classifcation process and associated housing assignments (see Kanewske et al., Chapter 8). The classifcation process is primarily intended to ensure that people are housed at the appropriate custody level for the risks they pose to staf and other inmates, and the risk posed to them by other inmates. This process begins with a rudimentary binary assessment of sex based on the assigned sex listed on ofcial documents (e.g., state-issued identifcation, birth certifcates) or anatomical sex (i.e., genitalia; Scott, 2013; Sexton et al., 2010; Tarzwell, 2006). The standard procedure, historically and in most contemporary jails and prisons, is to house transgender people who have not completed sexual reassignment or gender confrmation surgeries in facilities with others who have the same anatomical sex rather than the same gender identity. This method of housing classifcation signifcantly increases the risk of physical and sexual victimization for transgender people, especially for transgender women housed in men’s jails and prisons (Beck et al., 2013; Jenness et al., 2010, 2019; see also Kanewske et al., Chapter 8). Jail and prison staf are responsible for taking reasonable measures to ensure the safety of the people in their custody (Abner et al., 2009; National Prison Rape Elimination Commission [NPREC], 2009). Historically, jail and prison staf have responded to this duty by housing transgender people in administrative segregation, protective custody, or other restricted housing assignments (hereafter, segregated housing; Etheridge, 2014; Kanewske et al., Chapter 8). These housing assignments may reduce the risk of assaults committed by other inmates, but they create additional challenges and further marginalize transgender inmates based on factors unrelated to their institutional behavior. Specifcally, transgender people in segregated housing typically lose 1

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their ability to participate in treatment and programs, which reduces their opportunities and may hinder their successful return to the community. Technology provides an avenue to increase treatment and program access for transgender people in segregated housing while jail and prison staf explore strategies to address broader classifcation, housing, and safety challenges. Such technology is being leveraged by the Washoe County Sherif’s Ofce (WCSO) which operates the Washoe County Detention Facility (WCDF), a direct supervision jail in Northern Nevada. The WCSO Detention Services Unit is experimenting with tablets to deliver treatment and programs through the Virtual Housing Unit Pilot Project (VHUPP). To assess the program, the WCSO and the University of Nevada, Reno (UNR) are collaborating to conduct a randomized control trial (RCT) that examines the relative efectiveness of treatment and program delivery in person versus synchronous delivery by tablet with a focus on the number of cisgender,2 general population inmates who can access treatment and programs to address their criminogenic needs and recidivism reduction (hereafter, Study 1). Current WCSO policy does not permit the random assignment of transgender people to general population housing and in-person group treatment and program participation. A second study collecting data through interviews and ofcial record reviews will be conducted to assess the ability of transgender people to access and complete treatment and programs during their detention, their thoughts, and experiences with remote access treatment and programs, and their post-detention contact with the legal system (hereafter, Study 2). The fndings from these evaluations will have important implications for the detention and incarceration experiences of transgender people, as well as how jails and prisons expand treatment and program availability, make treatment and programs available to people who may need to be housed in segregated housing for safety reasons and during disease outbreaks (e.g., COVID-19) that may impact in-person treatment and programs in jails and prisons. In this chapter, we frst review the extant literature relevant to access to treatment among transgender people who are housed in jail or prison. This review is important for several reasons including (1) establishing the need for a safe alternative to program delivery and (2) highlighting the added collateral consequences transgender persons experience while incarcerated. Second, we describe the program’s components and the two studies WCSO is conducting to evaluate technology as a viable means to deliver programming in a safe environment. Finally, we discuss the theoretical benefts of technology among some of the most marginalized populations in institutional facilities to establish a framework for future research.

Literature Review Transgender people are disproportionately likely to be arrested, incarcerated, and incarcerated for longer periods of time compared to cisgender people (Holsinger & Hodge, 2016; Jones, 2021; White Hughto et al., 2019). Once in jail or prison, transgender people are more likely to be physically and sexually victimized than cisgender people while they are incarcerated (Beck et al., 2013; Jenness et al., 2019). They are also often subject to verbal harassment from staf and inmates (Clark et al., 2017; see Kanewske et al., Chapter 8). The Prison Rape Elimination Act (PREA, 2003) was enacted to eliminate sexual abuse in confnement facilities and includes a provision regarding the classifcation and housing of transgender people (NPREC, 2009). However, recent literature indicates that a majority of jails and prisons have neglected to fully comply with these regulations (Malkin & DeJong, 2019). Prolonged poor treatment from staf and other inmates often compels correctional administrators to assign transgender people to segregated housing, to reduce further victimization, and ease tensions within the generally housed population (Redcay et al., 2020). The isolation that transgender people experience in segregation impacts their mental and physical health and prohibits them from accessing treatment and programs, among other resources.

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Te Lived Experiences of Transgender People Transgender people often have negative life experiences that impact their social support systems and educational and employment opportunities. They also experience high rates of violence that contributes to unstable housing, substance use, mental disorders, and involvement in illegal activities. They experience high rates of family rejection, resulting in fractured, weak, or absent social support systems (Bradford et al., 2013; Fletcher et al., 2014; Grant et al., 2011). Transgender people also endure harassment, discrimination, and violence in the educational setting, which negatively impacts performance and increases the likelihood of dropping out of school (Bradford et al., 2013; Grant et al., 2011). Additionally, they experience high rates of physical and sexual violence (Bradford et al., 2013; Grant et al., 2011; Stotzer, 2009). These experiences contribute to high rates of unstable housing or homelessness (Fletcher et al., 2014; Grant et al., 2011), substance use (Bradford et al., 2013; Grant et al., 2011; Reback & Fletcher, 2014), and mental disorders (Moagi et al., 2021; Sherman et al., 2021; Yang et al., 2015). The social and economic precarity disproportionately experienced by transgender people often leads to involvement in illegal activities, such as sex work and drug sales, to support themselves (Fletcher et al., 2014; Grant et al., 2011; Reback & Fletcher, 2014; Wilson et al., 2009). It is difcult to ascertain with certainty the number of transgender people incarcerated in the United States (U.S.). There are two primary causes of this problem. First, jails and prisons in the U.S. classify and segregate inmates by anatomical sex (Brömdal et al., 2019: Clark et al., 2017; von Dresner et al., 2013). Traditionally, male and female have been the only sex classifcation options, and jails and prisons have not systematically collected or published data on people who are transgender (Brömdal et al., 2019; Routh et al., 2017; Scott, 2013; White Hughto et al., 2018). Second, people who are transgender sometimes conceal this aspect of their identities to protect themselves from victimization during incarceration (Lydon et al., 2015; Schreier Lyseggen, 2015). The available data and estimates indicate that transgender people are more likely to be incarcerated in their lifetimes than the general population. Grant and colleagues (2011) estimated that approximately 16% of transgender people, and 21% of transgender women, have been incarcerated in their lifetimes. Male U.S. residents born in 2001 have a 1 in 9 (approximately 11%) chance of lifetime incarceration and female U.S. residents born in 2001 have a 1 in 56 (approximately 1.8%) chance of lifetime incarceration (The Sentencing Project, 2020). These data and estimates, if accurate, suggest that transgender people have a greater lifetime likelihood of incarceration than the general population and cisgender people. This increased likelihood of incarceration is likely attributable to the high incidence of negative lived experiences and criminogenic needs prior to incarceration.

Classifcation and Housing Historic and contemporary classifcation and housing decisions are made based on several criteria, including anatomical sex; the risk an inmate poses to staf and other inmates; and the risk posed to an inmate by other inmates. Transgender people have a higher risk of harassment and physical and sexual assault by staf and other inmates than cisgender inmates (Au, 2016; Beck et al., 2013; Clark et al., 2017; Edney, 2004; Iyama, 2012; Jenness et al., 2007; Okamura, 2011; Rosenblum, 2000). This elevated level of risk warrants careful consideration of classifcation and housing assignments (NPREC, 2009). Housing assignments are broadly categorized as general population and specialized housing units that are restricted based on relevant criteria (e.g., modifed therapeutic communities, mental health units, medical units, various forms of segregation). In this context, jail and prison staf decide how to house transgender people. Prior to PREA, many jails and prisons automatically assigned transgender inmates to administrative segregation, protective custody, or other restrictive housing assignments, such as mental 187

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health or medical units, for their protection (Malkin & DeJong, 2019). Other jails and prisons assigned transgender inmates to general population until repeated victimization led to a transfer to segregated housing (Faithful, 2009; Malkin & DeJong, 2019; Sumner & Jenness, 2014). PREA was signed into law in 2003 to provide protections for people from sexual harassment and assaults while they are incarcerated (Malkin & DeJong, 2019). PREA (2003) has transgender-specifc protections categorized under defnitions, classifcation and housing, staf training, and victimization prevention and response. In 2015, ten states reported being compliant with PREA, but these were self-reports and did not include an evidentiary requirement to demonstrate compliance (U.S. Department of Justice, 2015). A decade after PREA went into efect, Malkin and DeJong (2019) conducted a study to assess state compliance with this federal law. They found that Indiana was the only state to ofer all 13 PREA provisions focused on transgender people. Many states (40%) had policies that conficted with PREA, especially classifcation and housing policies (Malkin & DeJong, 2019). The PREA transgender-specifc provision with the lowest degree of compliance is related to automatic classifcation and housing in segregation (Malkin & DeJong, 2019). NPREC recommended not automatically housing transgender people in the general population based on anatomical sex and discouraged isolating them in segregated housing for extended periods as a means of protection (Au, 2016). Despite this recommendation, jails and prisons all over the U.S. facilitate the harassment, mistreatment, and harm of transgender people by housing them in general population based on anatomical sex or housing them in isolation without access to resources (Au, 2016). The practice of assigning transgender people to general population solely based on anatomical sex and the lack of practical accountability for those classifcation decisions observed in some jails and prisons can result in the physical and sexual victimization of transgender people (see Kanewske et al., Chapter 8). This lack of accountability further harms transgender people by inhibiting their ability to fle requests to modify their housing classifcations and assignments before they have been physically or sexually assaulted. Jails and prisons are generally unprepared to accommodate transgender people (Redcay et al., 2020; Routh et al., 2017). Despite NPREC (2009) recommendations to not house transgender people in segregated housing for extended periods of time, there are few options to protect and safely house transgender people, and they are often housed in various forms of segregated housing due to the primary administrative focus on physical safety (Redcay et al., 2020). However, the use of varying degrees of isolation in segregated housing is increasingly controversial. Long-term isolation is generally understood to be harmful to behavioral health due to the prolonged disruption of normal communication and interaction with other people (Haney, 2003; Labrecque et al., 2021; Okamura, 2011; Redcay et al., 2020). The varied policies and practices across segregated housing units lead to varied outcomes in relation to behavioral health and recidivism rates (Labrecque et al., 2021). People require stimulation and social interaction to maintain or develop interpersonal communication skills, and treatment and programs to address criminogenic needs to support eventual transition to the community. The absence of this communication and necessary programs due to placement in segregation creates or exacerbates mental health issues and reentry (Haney, 2003). These needs are particularly acute for transgender people given the prevalence of unsupportive family and intimate personal relationships, low levels of educational attainment and weak work histories, trauma, substance use and mental disorders, and reliance on illegal activities to support themselves (Bradford et al., 2013; Fletcher et al., 2014; Grant et al., 2011; Moagi et al., 2021; Reback & Fletcher, 2014; Sherman et al., 2021; Stotzer, 2009; Wilson et al., 2009; Yang et al., 2015).

Institutional Treatment and Programs There are numerous advantages to jails and prisons promoting treatment and making programs accessible. Assessing risk levels throughout a person’s detention or incarceration will ensure that 188

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high-risk people are prioritized for the treatment and programs they need while allowing lowrisk people the access to resources if their risk levels change (Matz, 2018). People are less likely to recidivate when they participate in treatment and programs that address criminogenic needs (i.e., antisocial personality pattern, antisocial cognition, antisocial associates, family and marital relations, education and employment, substance use, leisure and recreational activities) and services for a variety of responsivity factors, such as mental disorders (Andrews et al., 2006; Baglivio et al., 2018; Brooks Holliday et al., 2012; Taxman et al., 2014; Wooditch et al., 2013). Investing in treatment and programs throughout detention and incarceration reduces the potential costs of recidivism ( Jenkins et al., 2017). Generally housed people might have their treatment and program access revoked due to misbehavior. However, many jails and prisons do not permit people in segregated housing, regardless of gender, to participate in treatment and programs to address their needs (Frost & Monteiro, 2016). General population and segregated housing classifcations result in difering but harmful consequences for transgender people. According to NPREC (2009), jail and prison staf should consider a transgender persons’ housing preferences, when possible (see also Au, 2016; PREA, 2003). In the context of standard jail and prison housing, treatment, and programming policies, transgender people are forced to choose between: (1) residing in general population to access treatment and programs while living with an increased risk of physical and sexual violence, or (2) residing in segregated housing without access to treatment and programs and increased risks to their mental health due to isolation in an efort to reduce the risk of physical and sexual violence committed by other inmates (see Kanewske et al., Chapter 8, for a discussion on the use of solitary confnement as a strategy for “safety”). They are forced to choose between their safety and accessing treatment and programs to address their criminogenic needs, which may reduce their likelihood of future justice involvement. Using technology to support treatment and programs while people are housed in segregated housing, including transgender people, can reduce the gap in addressing criminogenic needs that people housed in segregated housing typically experience.

Technological Advancements in Treatment and Programs Technological applications in correctional treatment and programming have been slow to develop until the early 21st century. The use of technology to support treatment and programs has been more readily adopted in community corrections than institutional corrections (see Ahlin et al., 2016; Link & Reece, 2021). The COVID-19 pandemic brought a new urgency to developing secure technological support for treatment and programs in jails and prisons (see Ahlin et al., Chapter 13). However, evaluation research on technology-aided institutional treatment and programs is limited. One study describes managing opioid use disorder (OUD) treatment in a jail during the COVID-19 pandemic (Donelan et al., 2021a, 2021b). It was necessary for the behavioral health and clinical specialists working with the Franklin County Sherif’s Ofce, the study site, to continue providing behavioral healthcare services throughout the pandemic (Donelan et al., 2021a, 2021b). However, public health concerns over disease transmission rendered the standard in-person treatment unsafe, and a telehealth system was employed to continue OUD treatment (Donelan et al., 2021a, 2021b). Donelan and colleagues (2021a, 2021b) reported that clinicians were able to provide adequate care via telehealth technology. Perhaps premature as of this writing, outcome research focused on treatment engagement, recovery and relapse to substance use, and recidivism upon return to the community related to the Franklin County Sherif’s Ofce’s use of telehealth to provide OUD treatment to their jail population would be a useful contribution to this nascent area of practice and research. To date, there is no peer-reviewed, English language research comparing the relative efectiveness of in-person and virtual correctional treatment and programs at reducing recidivism. It is 189

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critical to determine if the virtual delivery of evidence-based treatment and programs is at least as efective as in-person delivery of evidence-based treatment and programs at reducing recidivism. This information has implications for transgender people housed in segregation, as well as people in other forms of restricted housing and people housed in general population in circumstances that preclude in-person treatment and programs. In the following sections, we describe the ongoing evaluative research. In doing so, our goal is that these evaluations will serve as a foundational framework for future research in this area.

Building a Research Program: Current Studies Study Site The WCDF is a direct supervision detention facility in Northern Nevada. WCDF receives bookings from more than 80 agencies throughout the year. The facility bed capacity is 1,257 beds with an emergency capacity of 1,399, which is achieved through the addition of ground foor bunks added to dayrooms in one or more of the 16 housing units in the facility. The average daily population in 2021 was 1,028 inmates with an average length of stay of 16.77 days (Soderblom, 2021). These numbers are below the four-year average, which is primarily attributable to the COVID-19 pandemic (Soderblom, 2021).

WCDF Standard Classifcation Policies All people who are booked into the WCDF are assessed by the Inmate Management Unit (IMU). The IMU manages the classifcation process used to assign a security level to a person and to identify their individual housing, treatment, and program needs. The classifcation process includes assessment of gender, age, medical conditions, distinct behavioral patterns, criminal history, and facility security considerations (WCSO, 2018). People are placed in an assessment unit upon booking and then classifed for either general population or special management population housing cells or units. Within 72 hours of the frst classifcation review, the IMU is required to identify all special management population inmates based on their inclusion in at least one of fve categories, including escape risk, violent behavior, nature of charges (e.g., charge involves a crime against a child or juvenile), special needs (e.g., requires medical or psychiatric assessment or treatment, transportation requirements, age, people who are transgender or non-binary), and keep separate status (e.g., enemies or co-conspirator in WCDF; WCSO, 2018). All people housed in general population, regardless of legal status, are eligible for a variety of program options at WCDF, including, but not limited to anger management education and counseling, substance abuse education and counseling, co-occurring disorder education and counseling, high school equivalency education, and parenting classes. Special management population inmates generally do not have access to these programs and are limited to those services that are mandated, including access to phones, religious materials, and visitation. These services are provided within the housing unit and do not require transit to another part of the WCDF.

WCDF Transgender Inmate Classifcation Policies Transgender people are classifed as members of a special needs population and assigned to the Medical Housing Unit (MHU). They present a unique set of challenges for housing and are subject to the same treatment and program restrictions that apply to all people in the special management population. This classifcation status limits their participation to only those services that can be provided in the housing unit in which they are housed. 190

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Transgender people are classifed through the standard process when they are frst booked into the WCDF, but two additional steps are included in their classifcation process. All people who self-identify as transgender or non-binary are required to complete a Statement of Search Preference Form and a Transgender/Gender Variant Individual Genitalia Search Form (WCSO, 2019). The Statement of Search Preference Form (WCSO, 2020a) allows the person to indicate the sex of the deputies (i.e., male, female, either sex) by whom they prefer to be searched in non-emergency situations. The Transgender/Gender Variant Individual Genitalia Search Form (WCSO, 2020b) allows the person to consent to or refuse an anatomical check by a medical staf member in a private setting. Both forms are processed through IMU to aid in housing decisions and to support compliance with PREA, National Commission on Correctional Healthcare standards, American Correctional Association standards, and Nevada State and Washoe County statutes, regulations, standards, and directives to promote safety, provide appropriate medical care, and eliminate discrimination against transgender people (WCSO, 2019). Housing status is based on all the standard classifcation criteria plus anatomical sex. Most transgender people are housed in the MHU. Their placement in the MHU supports the greatest safety, security, and medical care in the WCDF. This housing assignment does preclude them from participating in in-person treatment and programs that take place in the Programs Unit. The standard approach to treatment and program determinations has been if people cannot be housed together, then they cannot participate in programs together. The current WCDF programming model does not allow for program delivery in housing units or on a one-on-one basis. The WCSO is developing the VHUPP, in part, as a way to make treatment and programs available to transgender people in their custody.

Virtual Housing Unit Pilot Project The VHUPP takes a holistic approach to treatment, programs, and reentry. The VHUPP aims to address the whole person, including their physical, mental, and emotional health, while taking social factors into consideration. Furthermore, the VHUPP considers the environment in which the reentry process takes place. The WCSO is taking steps to improve its overall organizational culture to ensure the success of the VHUPP. Finally, the VHUPP involves comprehensive planning and collaboration with community partners, including case management follow-up. By treating the whole person, addressing each aspect of the judicial process the individual encounters, and ensuring a continuum of care and ongoing community support once an individual reenters the community, the VHUPP aims to improve public health and public safety and reduce recidivism in Washoe County.

Background An internal review of treatment and programs at the WCDF began in August 2018. This review identifed several areas of concern and opportunities for improvement and innovation. Assessments, treatment and program gaps, case management, community collaboration, equitable access to treatment and programs, data tracking, quality assurance, and organizational culture were identifed as areas for potential change. Assessments were not conducted on people prior to admitting them into treatment and programs. Consequently, people were not being assessed for their risk of recidivism or criminogenic needs. Instead, people were admitted to programs based on self-referral and on a frst-come, frstserved basis. WCDF programs staf did not know the risk level of participants or their specifc criminogenic needs when assigning them to treatment groups. This approach to program referral does not adhere to the risk-needs-responsivity (RNR) model. 191

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It was determined that the treatment and program self-selection process at the WCDF violated the risk principle and could potentially be causing more harm than good. The risk principle indicates that the level of supervision and treatment should be commensurate with a person’s level of risk to reofend and that treatment groups should be formulated based on participants’ risk (Bonta & Andrews, 2007). Treatment groups that allow low-risk people to participate with high-risk people can increase the low-level people’s risk to reofend (Andrews & Bonta, 2010). It was also determined that the treatment and program self-selection process at WCDF violated the need principle. The need principle indicates that treatment and program referrals should be targeted to a person’s unique criminogenic needs, dynamic factors shown to impact criminal behavior and recidivism, and that the level or dosage of that treatment should depend on their risk level (Andrews & Bonta, 2010). People should not be placed into programs that do not target their criminogenic needs or that are of insufcient dosage for their needs, which can occur when people are permitted to self-select into treatment and programs. The responsivity principle indicates that people beneft most from interventions tailored to their learning styles, motivation, abilities, and strengths, and treatment and programs that employ a cognitive-behavioral approach (Andrews & Bonta, 2010). Responsivity can also refer to barriers that may impact a person’s response to interventions but have no measurable impact on reducing recidivism (e.g., learning disabilities; Gendreau, 1996; see Dodson & Rufn, Chapter 6). Programs at the WCDF have historically focused on the latter defnition of responsivity with insufcient focus on cognitive-behavioral interventions. There were gaps in programming. First, not all criminogenic needs were addressed by the available treatment and programs. Second, many of the programs ofered were not evidence-based and none of the programs were monitored for quality assurance by WCDF staf or designees. A large percentage of the programming available at the WCDF is volunteer-led and largely faithbased. Some volunteer-led programs, such as Alcoholics Anonymous and Narcotics Anonymous, are popular and potentially helpful for some people but are not considered evidence-based. Some promising and evidence-based programming is available through the Getting Ahead While Getting Out (GAGO) program, RISE Academy, and American Comprehensive Counseling Services (ACCS), but no quality assurance policies or procedures were in place to ensure those programs were being delivered with fdelity. Case management was not available for people at the WCDF. The efectiveness of in-house programming at reducing recidivism and supporting other reentry outcomes, such as recovery from substance use disorder and stable employment, is signifcantly reduced when it is not accompanied by proper case planning and management to ensure a continuity of care from the WCDF to the community. Length of stay is also an important consideration in reentry planning. Comprehensive case management that follows a participant after detention or incarceration might mitigate the lack of programs or insufcient treatment dosage while in custody. This is especially true for jails where length of stay can vary greatly, with some people remaining in custody for a matter of hours and others for years. People sentenced to prison have months to years to engage with treatment and programs and to prepare for reentry into the community. The average length of stay for an inmate at the WCDF is 16.77 days (Soderblom, 2021). At the time of review, minimal community collaboration or follow-up was taking place. Partnerships with community stakeholders are needed to ensure a continuum of care for WCDF program participants and to provide necessary support to those community partners. Some people were excluded from treatment and programs based on classifcation, gender, or other special status that was not directly related to a disciplinary issue. It was possible that the WCDF was not providing services to people with the highest recidivism risk. This created a potentially inequitable and fnancially irresponsible distribution of resources. 192

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There was also no uniform system for tracking data. Defnitions of recidivism varied throughout the agency. The WCSO did not have a consistent understanding of the pertinent data and its interpretation to inform decision-making and policy development. Robust data collection and analysis are critical if WCSO wants to apply for funding to bolster and expand treatment, program, and reentry eforts. The WCSO also prioritizes transparency with the community which is impossible without a clear and consistent defnition of the outcomes of interest (i.e., criminogenic need treatment and program engagement, recidivism reduction) and a robust and reliable data collection system. The organization’s culture surrounding reentry eforts was less than ideal. This included a lack of quality assurance processes. There was no plan for self-evaluation or sustainability. Staf did not receive adequate training to support program and reentry eforts, including evidence-based practices to engage people in ways that support behavioral change (e.g., University of Cincinnati Corrections Institute’s [UCCI] Core Correctional Practices). Every interaction within the criminal justice system—from the law enforcement ofcer at the point of arrest to the judicial ofcer on the bench to the deputy in the housing unit—ofers an opportunity to contribute to behavioral change and harm reduction. To be efective, justice system actors must understand how their interactions infuence others and have the knowledge and skills to enhance this infuence. Reentry eforts cannot be siloed. Every person who comes into contact with a justice-involved person plays a part in determining the ultimate success of that person.

VHUPP Program Design The Project Coordinator, a detention programs specialist located in the Detention Services Unit, developed a comprehensive in-custody and reentry program that aims to improve upon existing treatment and programs and address the aforementioned defciencies. Identical treatment and program options will be available through the in-person and virtual program groups and will be delivered by personnel from the same agencies. VHUPP implementation is scheduled to begin in the second quarter of 2022.

VHUPP Components The entire VHUPP project is overseen by the Detention Captain and Project Coordinator. They, along with the Detention Services Unit Sergeant and lead investigator from the UNR form the Implementation Workgroup. Seven other workgroups were formed from the pool of interested personnel to aid in the implementation of the VHUPP. The Organizational Culture and Change Workgroup is responsible for understanding the organizational culture at the WCSO and identifying the formal and informal culture that impedes or supports the implementation of the VHUPP. This group is also responsible for creating a plan of action to address any identifed impediments. The Assessment Workgroup is charged with integrating evidence-based screening of the study group into the intake process and full assessment during the classifcation period. The Programming Workgroup will ensure that evidence-based treatment and programs are available at the WCDF to meet each criminogenic need. The Case Management Workgroup will establish the minimum requirements of an efective targeted intervention strategy to include the types of interventions needed, when and where interventions should occur, and by whom. The Data Tracking Workgroup will identify necessary types and sources of data and develop a comprehensive program participation and recidivism tracking plan. The Technology Workgroup is responsible for identifying, procuring, and supporting program technology and its proper use. The Quality Assurance Workgroup will ensure proper implementation of the VHUPP as designed and conduct process and outcome evaluations. Each workgroup will also work with the various community stakeholders and programs to ensure 193

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a seamless continuum of care and provide ongoing support for program participants and community partners. Organizational Culture and Change. The VHUPP will require some changes specifc to treatment and programs. The VHUPP will also require other system-wide changes to inmate assessment, case planning and management, and program referral processes. These system-wide changes represent a bigger change in how daily business is conducted and present additional implementation challenges. The WCSO and UNR partnered to administer an anonymous staf survey to identify issues that may need to be addressed to ensure the proper implementation of VHUPP and other initiatives. The survey administered to staf was based on the APEX Screener. The suite of APEX assessment tools was developed by the National Institute of Corrections to assess organizational performance and to inform change management processes in jails and prisons (Bogue & Cebula, 2012). The APEX Screener was selected for use in this survey for its content, brevity, and potential for anonymization. The APEX Screener includes leadership, organizational culture, operations focus, stakeholder focus, workforce focus, strategic planning, and measurement and knowledge management factors (Bogue & Cebula, 2012). These domain areas are broadly categorized into the strategy or engagement domains. The base tool requires approximately 15 minutes to complete; the VHUPP planning group decided to add three work background variables (i.e., length of service, division, current shift) and an open-ended question to the base APEX Screener to collect important contextual information and information that would not otherwise be collected through the closed-ended APEX Screener questions. The survey was hosted on the Qualtrics platform (Qualtrics, 2020) for fve months from January 28 through June 28, 2021, and resulted in a response rate of 73.5% (518 respondents out of 705 employees; M. J. R. Goodwin, personal communication, January 26, 2021). Agency leadership communicated the survey results and a plan to address the challenges highlighted by the survey results to support the implementation of VHUPP and other initiatives to WCSO staf. Assessment. All program participants will be screened and assessed using the Ohio Risk Assessment System (ORAS), which is a validated suite of tools that requires training and certifcation (UCCI, 2015). Participants will be screened for their risk to recidivate using the ORAS Community Supervision Screening Tool (CSST)3 during the intake process. If participants score as moderate- or high-risk on the CSST, then they will be assessed using the full ORAS Community Supervision Tool (CST) to confrm their risk level and identify their unique criminogenic needs during the classifcation process. This screening and assessment process will identify all moderate-, high-, and very high-risk people in the focal population for inclusion in the study. If a participant fags for substance use or possible mental disorder during the ORAS assessment, then the TCU Drug Screen 5 (Institute of Behavioral Research, 2017) and Brief Jail Mental Health Screen (BJMHS; Policy Research Associates, 2005) will be administered. Participants who screen positive for substance use or mental disorder on the TCU Drug Screen 5 or BJMHS, respectively, will be referred to a clinician for further assessment. Treatment and Programs. Evidence-based treatment and programs will be available within the WCDF to ensure interventions are available to target each criminogenic need. Programs that will be included in the VHUPP are Changing Ofender Behavior (scheduled to begin in 2022), GAGO (ofered since 2018), High School Equivalency (HSE; ofered since 2018), Early Head Start (ofered since 2017), Peaceful Parenting (ofered since 2012), Domestic Violence (ofered since 2012), Substance Abuse (ofered since 2012), and Co-Occurring Disorders (ofered since 2012). There will also be limited one-on-one counseling services (ofered since 2019). The WCDF currently has a Medication-Assisted Treatment (MAT) program that ofers treatment continuation and initiation for people living with severe substance use disorders (ofered since 2019). VHUPP participants will be referred to MAT as part of their treatment program, when appropriate. All programs included in the VHUPP will be available in person and virtually. 194

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Changing Ofender Behavior is an evidence-based cognitive-behavioral curriculum that targets antisocial cognition (Murphy Spruance et al., 2005; The Change Companies, 2020). The curriculum aids participants in recognizing risky situations, how to make diferent choices, and the skills necessary to make diferent decisions with the goal of reducing anti-social and criminal behavior. The programs staf will use the open-groups adaptation of the curriculum, which is more appropriate for the fuctuations in jail populations. GAGO is a promising discussion-based reentry model providing people returning from incarceration and their families with a comprehensive, community- and relationship-based approach to reentry that begins in prerelease and follows through with long-term support plans (DeVol et  al., 2015). The program is taught by trained WCDF staf. GAGO addresses several criminogenic needs, including antisocial cognition, antisocial associates, employment, and leisure and recreational activities over eight lessons. GAGO participants develop three plans. The frst plan is to get them through the frst 72 hours after release when returning citizens too often re-ofend. The second plan is intended to meet their short- and medium-term needs. The third plan is intended to transform their lives through future thinking and long-term planning. Participants who successfully complete GAGO earn a fve-day “kick,” or time of their sentence, for those who are eligible (Local Facilities for Detention, 2013). High School Equivalency (HSE) is taught by RISE Academy for Adult Achievement and addresses needs surrounding education and employment. Washoe County School District’s Adult School, RISE Academy, partners with WCSO to provide people the ability to prepare and complete their HSE while incarcerated. Education, including HSE or general educational development (GED), is associated with reduced likelihood of recidivism (Ellison et al., 2017; Esperian, 2010). Participants who start the program at the WCDF and are released can seamlessly transition to RISE Academy in the community to complete their education. People who successfully complete their HSE earn fve days of their sentences. Early Head Start, taught by the UNR Early Head Start Home Visiting Program, addresses family relations. The topics covered in the program include child development, parenting skills, child and maternal health, building positive relationships, and connection to resources. There are several evidence-based models used by the program, such as the Early Head Start Home-Based Option (Early Childhood Learning & Knowledge Center, 2021), Parents as Teachers (Early Childhood Learning & Knowledge Center, 2020), and interventions from Promoting Maternal Mental Health During Pregnancy (Solchany, 2013). The program is specifc to pregnant females and new mothers, but its evidence-based curricula and demonstrated positive outcomes merit inclusion in the VHUPP. The Peaceful Parenting group is facilitated by ACCS and requires completion of eight weekly sessions (two hours each). This class is recognized by all courts in the Nevada Judiciary and Child Protection Services. The group sessions focus on parenting styles and parenting skills. The groups cover family roles, attachment, communication, modeling behavior, discipline, the impact of domestic violence on children, the impact of substance use on family and children, and positive ways to parent. Participants are encouraged to be honest in their struggles with being a parent, including parenting while incarcerated. The Domestic Violence program is also facilitated by ACCS. The focus of the program is intimate partner violence, but participants also address aspects of antisocial cognition, antisocial associates, family and marital relations, and substance use during the program. This program offers three levels of treatment. Participants must complete 14 sessions to earn a certifcate in Anger Management. Participants who complete the anger management level earn fve days of their sentences. Participants who complete 26 sessions earn a Domestic Violence Level I certifcate, and participants who complete 52 sessions earn a Domestic Violence Level II certifcate. Each level of treatment includes modules on relapse prevention. Each session is 90 minutes in duration. Many 195

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people are court-ordered into a domestic violence program. Sessions completed through ACCS while in custody count toward these court-ordered programs. The Substance Abuse Program is also facilitated by ACCS. The primary focus is substance use, but other criminogenic needs, such as antisocial cognition and antisocial associates are also addressed. The Substance Abuse Program requires completion of eight sessions (60 minutes each) to earn a certifcate of completion. The group sessions focus primarily on the early recovery skills aspect of substance use treatment and counseling. People who successfully complete the program earn fve days of their sentences. The Co-Occurring Disorders Group, for participants living with co-existing substance use and mental disorders, is also led by ACCS. The Co-Occurring Disorders group requires the completion of 12 weekly sessions (90 minutes each). The group sessions defne what a co-occurring disorder is, examine mechanisms for recognizing and managing aspects of their disorders, and include discussion of successful therapeutic resources that are available. One-on-one counseling, using a cognitive-behavioral approach, will also be ofered. Not all VHUPP participants will be able to take advantage of one-on-one counseling due to limited personnel and resources. Priority will be given to VHUPP participants who score the highest on antisocial attitudes and antisocial cognition on the ORAS CST. MAT is also available to eligible participants. MAT is a combination of medication and behavioral therapy. It is an efective, evidence-based treatment option for people diagnosed with alcohol and opioid use disorders (Substance Abuse and Mental Health Services Administration, 2021). VHUPP participants who were receiving MAT when they were booked into WCDF and those whose diagnosis warrant MAT will be referred for possible continued or new participation. All treatment and programs are separated by male and female participants. ACCS counselors tailor some of the Peaceful Parenting, Domestic Violence, Substance Abuse Program, and the Co-Occurring Disorders Group content to address gender-specifc needs. ACCS counselors are also trained to work with transgender people to address their specifc needs in counseling programs. Sustainable funding is a critical aspect of institutional programs. At the WCDF, Changing Ofender Behavior, GAGO, Peaceful Parenting, Domestic Violence, Substance Abuse, and Co-Occurring Disorders are all funded through the Commissary Fund. The Commissary Fund is generated through inmate commissary purchases. This fund is separate from all Washoe County funding and is not subject to budget cuts. The Commissary Fund must be used for programs and resources that beneft inmates. HSE is funded by the Washoe County School District. Early Head Start is funded by UNR. One-on-one counseling is funded by the WCSO. MAT is funded through a SAMHSA grant. The tablets are made available through a no-cost contract to the WCSO. The agency does not pay any money for the tablets. All virtual programming is available to participants at no cost. Revenue for the company supplying the tablets is generated through inmate purchase of other approved content available on the tablets when they are not used for programs (e.g., movies). Case Management. WCSO employs case managers. These case managers will use the results of the ORAS CST, TCU Drug Screen 5, and BJMHS to develop targeted interventions for each participant consistent with the UCCI case planning process (UCCI, 2013). This will include treatment and programs specifc to the participant’s criminogenic needs while they are in custody and will leverage community programs and resources that build on the work the participant has done while in custody. These same case managers will track each participant’s progress once they leave custody and provide ongoing support as needed. Released individuals often have a difcult time following up on referrals, even when post-release services are available and accessible. Prior to release, participants, case managers, and identifed community service providers will complete a release of information (ROI) allowing all parties to openly communicate about the participants’ 196

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progress when they are out of custody. WCDF case managers will ofer support to program participants and community providers in an efort to keep participants on track with their treatment and program needs and to reduce their likelihood of recidivism. Data Tracking. The WCSO will adopt a uniform defnition of recidivism for VHUPP participants to include rearrest, rebooking, and reconviction for new ofenses within 18 months of release for tracking. The WCSO also intends to examine length of time between ofenses. Any one of these data points alone is insufcient to provide a comprehensive understanding of recidivism. The WCSO will rely on the expertise of the staf in its Crime Information Center (CIC), booking department, and dispatch ofce to ensure that recidivism data are associated with the correct VHUPP participant. To confrm an individual’s identity the WCSO will use the same criteria it does when confrming an identity for patrol deputies or booking someone into the WCDF. There must be 80% match in the Federal Bureau of Investigation’s (FBI) Interstate Identifcation Index (III) data, a fngerprint record (State ID or FBI ID) match, or a comparison of mugshots must be conducted when there is insufcient III information. CIC staf are trained to make these comparisons and interpret criminal history records during their Field Training Ofcer (FTO) program. If CIC staf are unavailable to search recidivism data, then staf in booking and dispatch also complete an FTO program and are equally qualifed to make reliable identifcations and data interpretations. Rearrest data captures the broadest view of interactions with the criminal justice system and is available relatively quickly. In the past, WCSO has relied on local arrest data available through its Tiburon correction management system, commercially available through TriTech Software Systems. These data alone do not provide comprehensive rearrest information, because arrests that occur outside of Washoe County are not captured in the Tiburon system. WCSO will need to access the FBI’s III, which collects criminal history data for local, state, and federal agencies (Durose et al., 2019). The WCSO is pursuing a Memorandum of Understanding (MOU) with the FBI and the National Law Enforcement Telecommunications System (Nlets), which will enable WCSO staf to access the FBI’s III recidivism data for VHUPP participants. Rebooking data are also available via the III. WCSO staf will also search the local Tiburon system for rebooking data. The MOU with the FBI and Nlets will also provide court disposition data, which will inform reconviction statistics. Local reconviction data can be verifed and supplemented through searches of local court records. The WCSO Court Transport ofce has access to many local court systems. Phone calls will need to be made to gather court disposition data from Sparks Municipal Court and all Tribal Courts in the area. The collection of arrest, booking, and conviction data before and after participation in the VHUPP will give the WCSO and UNR a comprehensive view of participants’ criminal histories and recidivism rates after release from the WCDF. The study dataset should also allow the WCSO and UNR to calculate the number of days between the date of release from WCDF and the frst subsequent arrest, booking, and conviction, if any (i.e., survival analysis). This information is important to the WCSO in determining the success of the VHUPP, because lengthening the amount of time between recidivism events is also an indicator that the reentry program is working by producing a harm reduction efect. All the data gathered by the WCSO for the VHUPP will be entered into an Excel spreadsheet developed by UNR and securely transferred to an encrypted cloud account owned by UNR for analysis. Technology. The VHUPP is unique because it will employ the use of technology to deliver evidence-based treatment and programs in an institutional setting. VHUPP treatment and programs will be delivered in both in-person format in the Programs Unit (control group) and in a virtual format through the end-to-end encryption version of Zoom on tablets in the housing units (experimental group). Experimental group participants accessing programs through tablets will be permitted to complete their programs in a meeting room in their respective housing units, 197

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which will aford them privacy from cell mates and other people in the common areas of their housing units. Control group participants will attend programs in the Programs Unit and complete assignments in their housing units, which is standard program practice. Experimental group participants will attend virtual synchronous group sessions through Zoom on the tablets. Some stand-alone lessons can also be preloaded onto tablets for participants to access outside of the synchronous group sessions, which will be completed in their housing units like the control group completes assignments. The goal with program delivery is to ensure that program delivery is identical in every way except the control group participants are physically in the same room as the facilitator and other participants, and experimental group participants and the facilitator are interacting through Zoom. One-on-one therapeutic appointments will be conducted through the existing iWeb system. All participants (control and experimental groups) will be able to communicate with their case managers outside of regular meeting times by accessing the inmate inquiry system located in the housing units. Participants receiving MAT will communicate with their providers in person if they are in the control group and through Zoom if they are in the experimental group. All MAT participants will have a physical meeting with the provider to receive their medication. Quality Assurance. Fidelity to the VHUPP program design will be assessed in several ways. First, the UCCI (2011) Continuous Quality Improvement process will be used to assess adherence to the VHUPP program design. Second, the UNR research partner will conduct a fle review twice per year. The initial goal will be to review ten open fles and ten closed fles every six months to assess for adherence to the VHUPP program design in individual cases. Finally, the VHUPP Implementation Workgroup meets twice per month to discuss implementation progress, any issues, and to develop solutions to those issues.

Study Populations This pilot project will focus on two sub-samples of the WCDF population. The WCSO elected to focus on young adults aged 18–24 years during the pilot study (Study 1) due to their relative overrepresentation at every stage of the criminal justice system, prevalence of behavioral health needs, and higher risk of recidivism. Young adults, ages 18–24, represent 9.5% of the U.S. population, yet account for 23% of all arrests (U.S. Census Bureau, 2017). In Washoe County, people ages 18–24 represent 9.1% of the population (U.S. Census Bureau, 2019) and account for 16.9% of all arrests that result in a booking at the WCDF (Soderblom, 2022). Behavioral health disorders, including substance use disorders, are more prevalent among young adults compared to other age groups. An estimated 1 in 7 young adults has a substance use disorder, more than double the rate of any other age group (Bose et al., 2018). The onset of most (75%) mental health disorders occurs before age 24 (National Alliance on Mental Illness, 2021), and the rate of serious mental health disorders among young adults has been on the rise since 2008 (Bose et al., 2018). Furthermore, young adults are also more likely to recidivate compared to other age groups (Alper et al., 2018). In addition to the young adult population, the WCSO will include the entire transgender population in the pilot project (Study 2). Transgender people are currently kept separate from the general population for safety reasons. Consequently, they are unable to engage in standard in-person treatment and programs. All transgender people in WCDF will be given the opportunity to participate in virtual treatment and programs. We believe the Study 1 results are critical to determining the efectiveness of virtual programming and, thus, the experiences and outcomes of the transgender participants in Study 2. Thus, we discuss both studies.

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Evaluation Design The VHUPP includes two studies. Study 1 is a RCT evaluating the relative efectiveness of in-person and virtual treatment and programs at reducing recidivism among young adults. Study 2 is a qualitative study of transgender inmates that explores their experiences with virtual treatment and programs, and future justice involvement.

Study 1: RCT with the Young Adult Population The main VHUPP study (Study 1) features a RCT design. All members of the young adult population will be screened with the CSST and those who are scored as moderate- or high-risk on the CSST during the intake process will be assessed with the CST during the classifcation process. Those who are scored as moderate-, high-, or very high-risk on the CST will be randomly assigned to the in-person treatment and program group (control group) or the virtual treatment and program group (experimental group) through the use of an online randomizer. Case managers will develop individualized case plans for each participant who will be referred to treatment and programs based on the case plans. Participants can decline treatment and program referrals. Declinations will be recorded in participants’ records and included in the outcome analyses. A stratifed random sampling method will be used in Study 1. There will be strata for male and female participants. The literature on gender-responsive treatment and programming suggests that female ofenders may have treatment, programming, and case planning and management needs that difer from male ofenders (Salisbury et al., 2009; Saxena et al., 2014; Van Voorhis et al., 2010). The goal is to assign 150 male participants to in-person treatment and programs and 150 male participants to virtual treatment and programs for a total of 300 male study participants, and 150 female participants to in-person treatment and programs and 150 female participants to virtual treatment and programs for a total of 300 female study participants, which we anticipate taking six to eight months. These strata will allow us to determine whether gender plays a role in the relative efectiveness of in-person and virtual treatment and programs. Every participant will be tracked for at least one-year post-release for treatment and program engagement with community-based providers and recidivism.

Study 2: Qualitative Study of the Transgender Population Current WCSO policy precludes the classifcation of transgender people to general population housing and participation in in-person treatment and programs, so they cannot be included in Study 1. Instead, Study 2 is focused exclusively on transgender people. A records review indicated that approximately seven people who identify as transgender are booked into the WCDF each year; some of these people are booked into the WCDF multiple times each year. An exact number of transgender people booked into WCDF in a year could not be identifed due to the way records are kept. The preparations for the VHUPP initiated conversations about how to modify the records management system to enable the systematic and reliable identifcation of transgender inmate records. All transgender people will be assigned to virtual treatment and programs. The small population of transgender people necessitates a qualitative design for Study 2. Dr. Jennifer Lanterman from UNR will conduct semi-structured interviews with each transgender participant prior to starting virtual treatment and programs (Interview 1) and immediately prior to release from WCDF (Interview 2). Interview 1 will explore participants’ treatment and program experiences during prior detentions and incarcerations, if applicable. Interview 2 will explore participants’

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thoughts and experiences with remote access to virtual treatment and programs in their respective housing units. Study 2 participants will also be tracked for at least one year post-release for treatment and program engagement and recidivism.

Discussion Transgender people often have histories of trauma and complicated sets of criminogenic needs when they enter jails and prisons. They often experience additional challenges and collateral sanctions associated with their gender identities as a result of jail and prison classifcation processes, housing assignments, and treatment and program policies. Historically, jail and prison staf have attempted to satisfy their duty to ensure the physical safety of transgender people in their custody by housing them in segregated housing (Abner et al., 2009; Etheridge, 2014; NPREC, 2009). NPREC (2009) indicated that people with a high risk for sexual victimization should only be placed in segregated housing as a last resort and that the high risk of sexual victimization should not restrict access to treatment, program, or work opportunities whenever possible, but segregated housing is one of two default housing classifcations for transgender people used in jails and prisons (see also Etheridge, 2014). These classifcation and housing procedures may reduce the risk of physical and sexual assaults committed by other inmates. However, segregated housing assignments generally eliminate opportunities to participate in treatment and programs because people with segregated housing assignments cannot participate in in-person treatment and programs with people who are housed in general population, and it is not typical for jails and prisons to provide individual or group treatment and programs in segregated housing units. Therefore, transgender people are at an increased risk of being denied opportunities to participate in treatment and programs to address their criminogenic needs, which may also allow them to earn time of their sentences (Etheridge, 2014). Transgender people often lack social support from family or intimate partners, they have low levels of educational attainment similar to cisgender inmates, they experience challenges with employment that often result in participation in sex work and the health and safety issues associated with sex work, and they are disproportionately likely to live with substance use and mental disorders compared to cisgender inmates and the general population (Sexton et al., 2010). The life circumstances and conditions with which transgender people lived prior to and during detention or incarceration are criminogenic needs. The prolonged or repeated lack of access to treatment and programs to address criminogenic needs likely to be experienced by transgender people due to their classifcation and housing assignments may contribute to their increased likelihood of recidivism (see Richmond, 2018; Shakir, 2020 for discussion of the elevated risk of recidivism among people who are transgender). The research program identifed above embraces virtual delivery of evidence-based treatment and programs. We hypothesize that this modality will be at least as efective at addressing criminogenic needs and reducing recidivism as in-person delivery of evidence-based treatment and programs. Further, virtual delivery will address the lack of access to treatment and programs often experienced by transgender people in segregated housing. The availability of virtually accessible evidence-based treatment and programs for transgender people in segregated housing will also create time for jail and prison administrators and staf to explore the benefts and challenges of alternative housing arrangements for transgender people, and what it will take to render those housing assignments safe for them. Efective virtual treatment and programs will also address inequity issues by providing transgender people with the opportunity to engage in treatment and programs to address their criminogenic and responsivity needs, the same opportunities to earn time of their sentences as cisgender people who participate in eligible treatment and programs, and may contribute to a reduced likelihood of recidivism. 200

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Traditionally, treatment and programs in jails and prisons are delivered via an in-person format. This treatment and program delivery modality features several limitations. First, in-person treatment and program delivery results in limited treatment capacity. The number of people who can participate in any program is necessarily limited by the number of seats available in a room. The number of programs that can be conducted at any given time is further limited by treatment and program stafng levels, caseload restrictions, custody staf supervision requirements, and the number and duration of sessions per program. Second, in-person treatment and program delivery preclude the participation of people who must be kept separate from other inmates. These restrictions relate to custody classifcation, as well as age, physical and mental health, and keep separate status, which applies to people attempting to leave gangs, co-defendants, and people with pre-existing relationships, among others. Finally, disease outbreaks among inmates or staf may result in the suspension of in-person treatment and programs. The COVID-19 pandemic has resulted in restricted or suspended in-person treatment and programs in many jails and prisons, including WCDF, through 2020 and into 2021 (Ahlin et al., Chapter 13; Prison Policy Initiative, 2021). However, outbreaks of adenovirus, infuenza, measles, methicillin-resistant Staphylococcus aureas (i.e., MRSA), mumps, tuberculosis, and varicella (i.e., chickenpox) are also common in jails and prisons (Beaudry et al., 2020; Bick, 2007). These regular outbreaks can result in the restriction or suspension of treatment and programs to address criminogenic needs that continue to pose challenges for inmates and staf despite the health-related restrictions on treatment and programs. Efective virtual delivery of evidence-based treatment and programs, once confrmed as a viable option, will be one additional tool in the correctional toolbox of addressing the limitations of the traditional approach to treatment and program delivery in jails and prisons. The results from the VHUPP will inform future treatment and program delivery for transgender people at WCDF. The results will also inform treatment and program capacity each year, the expansion of treatment and program access to populations that historically have not had access to treatment and programs, and the maintenance of treatment and programs in circumstances that limit in-person gathering (e.g., disease outbreaks in the WCDF, pandemics). Finally, the results of the process and outcome evaluations will ofer guidance to other correctional facilities, especially jails, on how to implement evidence-based practices, how to expand the availability of treatment and programs in their facilities, and how to establish an institution-community continuum of care.

Notes 1 For the purpose of this chapter, the term transgender will be used to include all people who enter jails and prisons who would identify themselves or be classifed as transgender, non-binary, gender nonconforming, or gender variant. We recognize there are diferences across these groups. We decided to use the term transgender to refer to all inmates who do not conform to a binary gender classifcation because most of the research on justice-involved people who do not conform to a binary gender classifcation has been focused on people who are classifed as transgender. 2 Cisgender means that a person has a gender identity or lived experience that corresponds or aligns with a person’s anatomical sex determined at birth (American Psychological Association, 2020). For example, a cisgender man, or cis man, is a person who identifes as a person of the male gender and has male genitalia. 3 Nevada has a class of crimes labeled as gross misdemeanors that are more serious than the disorderly persons or misdemeanor cases (and related sanctions) that are typically assessed through the Misdemeanor Screening Tool and the Misdemeanor Assessment Tool but not as serious as the felony cases (and related sanctions) that are assessed through the Prison Intake Tool with prison populations. The UCCI trainer agreed that the CSST and CST would be the most appropriate tools for both the misdemeanor and gross misdemeanor cases in Nevada jails.

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Building a Research Program Edney, R. (2004). To keep me safe from harm? Transgender prisoners and the experience of imprisonment. Deakin Law Review, 9(2), 328–338. Ellison, M., Szifris, K., Horan, R., & Fox, C. (2017). A rapid evidence assessment of the efectiveness of prison education in reducing recidivism and increasing employment. Probation Journal, 64(2), 108–128. Esperian. (2010). The efect of prison education programs on recidivism. Journal of Correctional Education, 61(4), 316–334. Etheridge, T. S. (2014). Safety v. surgery: Sex reassignment surgery and the housing of transgender inmates. Georgetown Journal of Gender and the Law, 15(3), 585–612. Faithful, F. (2009). Transitioning our prisons toward afrmative law: Examining the impact of gender classifcation policies on U.S. transgender prisoners. The Modern American, 5(1), 3–9. Fletcher, J. B., Kisler, K. A., & Reback, C. J. (2014). Housing status and HIV risk behaviors among transgender women in Los Angeles. Archives of Sexual Behavior, 43(8), 1651–1661. Frost, N. A., & Monteiro, C. E. (2016). Administrative segregation in U.S. prisons. U. S. Department of Justice, National Institute of Justice. Gendreau, P. (1996). Ofender rehabilitation: What we know and what needs to be done. Criminal Justice and Behavior, 23(1), 144–161. Grant, J. M., Mottet, L. A., Tanis, J., Harrison, J., Herman, J. L., & Keisling, M. (2011). Injustice at every turn: A report of the National Transgender Discrimination Survey. National Center for Transgender Equality and National Gay and Lesbian Task Force. https://transequality.org/sites/default/fles/docs/resources/ NTDS_Report.pdf Haney, C. (2003). Mental health issues in long-term solitary and “Supermax”confnement. Crime & Delinquency, 49(1), 124–156. Holsinger, K., & Hodge, J. P. (2016). The experiences of lesbian, gay, bisexual, and transgender girls in juvenile justice systems. Feminist Criminology, 11(1), 23–47. IBM. (2020). SPSS Statistics (Version 27) [Computer software]. IBM. www.ibm.com/analytics/spss-statisticssoftware Institute of Behavioral Research. (2017). Texas Christian University Drug Screen 5. Texas Christian University, Institute of Behavioral Research. https://ibr.tcu.edu Iyama, K. (2012). “We have tolled the bell for him”: An analysis of the Prison Rape Elimination Act and California’s compliance as it applies to transgender inmates. Tulane Journal of Law & Sexuality, 21, 23–48. Jenkins, M. J., Dammer, H., & Raciti, D. (2017). Built around failure. Corrections Today, 79(4), 58–66. Jenness, V., Maxson, C. L., Matsuda, K. N., & Sumner, J. M. (2007). Violence in California correctional facilities: An empirical examination of sexual assault. The Bulletin, 2(2), 1–4. Jenness, V. Maxson, C. L., Sumner, J. M., & Matsuda, K.N. (2010). Accomplishing the difcult but not impossible: Collecting self-report data on inmate-on-inmate sexual assault in prison. Criminal Justice Policy Review, 2(1), 3–30. Jenness, V., Sexton, L., & Sumner, J. (2019). Sexual victimization against transgender women in prison: Consent and coercion in context. Criminology, 57, 603–631. Jones, A. (2021, March 2). Visualizing the unequal treatment of LGBTQ people in the criminal justice system. Prison Policy Initiative. https://www.prisonpolicy.org/blog/2021/03/02/lgbtq/ Labrecque, R. M., Campbell, C. M., LaBranche, K. J., Reddy, L., Zavita, K. R., & Morgan, R. D. (2021). Administrative segregation: A review of state and federal policies. Criminal Justice Policy Review, 32(7), 718–739. Link, T. C., & Reece, B. (2021). Barriers to the adoption of technological innovations in corrections: A review and case study. International Journal of Ofender Therapy and Comparative Criminology, 65(2–3), 262–281. Local Facilities for Detention, NV Rev. Stat. § 211.120 (2013). https://www.leg.state.nv.us/nrs/NRS-211. html#NRS211Sect120 Lydon, J., Carrington, K., Low, H., Miller, R. & Yazdy, M. (2015). Coming out of concrete closets: A report on Black and Pink’s national LGBTQ prisoner survey. Black & Pink. www.blackandpink.org Malkin, M. L., & DeJong, C. (2019). Protections for transgender inmates under PREA: A comparison of state correctional policies in the United States. Sexuality Research & Social Policy, 16(4), 393–407. Matz, A. K. (2018). Community corrections and the health of criminal justice populations. Journal of Health and Human Services Administration, 41(3), 348–383. Moagi, M. M., van Der Wath, A. E., Jiyane, P. M., & Rikhotso, R. S. (2021). Mental health challenges of lesbian, gay, bisexual and transgender people: An integrated literature review. Health SA Gesondheid, 26(1), 1487–1487. Murphy Spruance, L., Latessa, E. J., & Lowenkamp, C. T. (205). Changing ofender behavior. The Change Companies.

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Jennifer L. Lanterman et al. National Alliance on Mental Illness. (2021, March). Mental health by the numbers. https://www.nami.org/mhstats National Prison Rape Elimination Commission. (2009). Standards for the prevention, detection, response, and monitoring of sexual abuse in adult prisons and jails. https://www.ojp.gov/pdfles1/226682.pdf Okamura, A. (2011). Equality behind bars: Improving the legal protections of transgender inmates in the California prison systems. Hastings Race and Poverty Law Journal, 8, 109–135. Policy Research Associates. (2005). Brief jail mental health screen. www.prainc.com/product/ brief-jail-mental-health-screen/ Prison Policy Initiative. (2021, May). The most signifcant criminal justice policy changes from the COVID-19 pandemic. https://www.prisonpolicy.org/virus/virusresponse.html Prison Rape Elimination Act, Pub. L. No. 108-79, 117 Stat. 972 (2003). https://www.congress.gov/108/ plaws/publ79/PLAW-108publ79.pdf Qualtrics. (2020). Qualtrics (Version June 2020) [Computer software]. Qualtrics. https://www.qualtrics.com Reback, C. J., & Fletcher, J. B. (2014). HIV prevalence, substance use, and sexual risk behaviors among transgender women recruited through outreach. AIDS and Behavior, 18(7), 1359–1367. Redcay, A., Luquet, W., Phillips, L., & Huggin, M. (2020). Legal battles: Transgender inmates’ rights. The Prison Journal, 100(5), 662–682. Richmond, L. M. (2018). How can recidivism be reduced among transgender individuals? Psychiatric News. https://doi.org/10.1176/appi.pn.2019.12b3 Rosenblum, D. (2000). “Trapped” in sing: Transgendered prisoners caught in the gender binarism. Michigan Journal of Gender & Law, 6(2), 499–571. Routh, D., Abess, G., Makin, D., Stohr, M. K., Hemmens, C., & Yoo, J. (2017). Transgender inmates in prisons: A review of applicable statutes and policies. International Journal of Ofender Therapy and Comparative Criminology, 61(6), 645–666. Salisbury, E. J., Van Voorhis, P., & Spiropoulos, G. V. (2009). The predictive validity of a gender-responsive needs assessment. Crime & Delinquency, 55(4), 550–585. Saxena, P., Messina, N. P., & Grella, C. E. (2014). Who benefts from gender-responsive treatment? Accounting for abuse history on longitudinal outcomes for women in prison. Criminal Justice and Behavior, 41(4), 417–432. Schreier Lyseggen, K. (2015). The women of San Quentin: Soul murder of transgender women in male prisons. SFINX Publishing. Scott, S. (2013). “One is not born, but becomes a woman”: A Fourteenth Amendment argument in support of housing make-to-female transgender inmates in female facilities. University of Pennsylvania Journal of Constitutional Law, 15(4), 1259–1297. Sexton, L., Jenness, V., & Sumner J. M. (2010). Where the margins meet: A demographic assessment of transgender inmates in men’s prisons. Justice Quarterly, 27(6), 835–866. Shakir, B. (2020). Factors of black transgender ex-ofender women that contribute to recidivism (Publication No. 28148402) [Doctoral dissertation, Walden University]. ProQuest Dissertations and Theses Global. Sherman, A. D. F., Allgood, S., Alexander, K. A., Klepper, M., Balthazar, M. S., Hill, M., Cannon, C. M., Dunn, D., Poteat, T., & Campbell, J. (2021). Transgender and gender diverse community connection, help-seeking, and mental health among black transgender women who have survived violence: A mixed-methods analysis. Violence Against Women. Advance online publication. https://doi. org/10.1177/10778012211013892 Soderblom, R. (2021, July). Area crime evaluation system report. Washoe County Sherif’s Ofce. Soderblom, R. (2022, January). Total bookings by fscal year, month by age group for bookings between 1/1/2019 and 12/31/2019. Washoe County Sherif’s Ofce. Solchany, J. (2013). Promoting maternal mental health during pregnancy (Revised ed.). NCAST Programs. Stotzer, R. L. (2009). Violence against transgender people: A review of United States data. Aggression and Violent Behavior, 14(3), 170–179. Substance Abuse and Mental Health Services Administration. (2021, January). Medication-assisted treatment (MAT). Author. https://www.samhsa.gov/medication-assisted-treatment Sumner, J. M., & Jenness, V. (2014). Gender integration in sex-segregated U.S. prisons: The paradox of transgender correctional policy. In D. Peterson & V. R. Panfl (Eds.), Handbook of LGBT communities, crime, and justice (pp. 229–259). Springer. Tarzwell, S. (2006). The gender lines are marked with razor wire: Addressing state prison policies and practices for the management of transgender prisoners. Columbia Human Rights Law Review, 38(1), 167–220. Taxman, F. S., Pattavina, A., & Caudy, M. (2014). Justice reinvestment in the United States: An empirical assessment of the potential impact of increased correctional programming on recidivism. Victims & Offenders, 9(1), 50–75.

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10 THE PAINS OF IMPRISONMENT THROUGH A RAINBOW LENS An Overview of the Marginalized Conditions of Incarceration for LGBTQ Persons Calli M. Cain and Jared M. Ellison Introduction The true number of lesbian, gay, bisexual, transgender, and queer (LGBTQ1) inmates in America’s jails, prisons, and youth detention centers is unknown, but this special population can no longer be described as trivial. In fact, LGBTQ persons are overrepresented at every stage of the criminal justice system beginning with the juvenile justice system, where LGBTQ and gender nonconforming youth make up 20% of this population compared with 4%–6% in the general population (Belknap et al., 2012; Irvine & Canfeld, 2016; Wilson et al., 2017). As adults, LGBTQ persons are arrested, incarcerated, and subjected to community supervision at signifcantly higher rates than straight and cisgender people ( Jones, 2021; Meyer et al., 2017), and this is especially true for trans people and queer women (Beck & Johnson, 2012). Additionally, when LGBTQ individuals are incarcerated, whether in jail, prison, or juvenile detention facilities, they are one of the most vulnerable groups for various forms of abuse and maltreatment by both fellow inmates and correctional staf (see Kanewske et al., Chapter 8). Landmark lawsuits and federal policies passed since the 1990s have increased national and international attention to the unique issues faced by LGBTQ 2 inmates, particularly sexual abuse (Smith & Yarussi, 2015). Building on this work, the present chapter serves as a general overview of the following: 1 2 3 4 5 6

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Disproportionate representation of LGBTQ persons incarcerated in the United States. Key lawsuits/policies specifc to LGBTQ inmates. The unique problems faced by LBGTQ inmates prior to incarceration (i.e., history of victimization, substance use, poverty). Adjustment to the prison/jail environment (i.e., victimization and harassment by inmates and staf, self-harm/suicide). Correctional policies and procedures that afect LGBTQ inmates (intake, assessment and classifcation issues, housing issues, healthcare, and programming access). Recommendations and current best practices for correctional administrators to better respond to LGBTQ inmates’ unique needs.

DOI: 10.4324/9781003245032-11

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Statistics on LGBTQ Inmates in Juvenile Detention Facilities, Jails, and Prisons National statistics of LGBTQ inmates within local, state, and federal correctional systems have only been collected and published since the early 2000s (Beck et al., 2013; Dennis, 2014), and the majority of this information is based on those who identify as gay, lesbian, or bisexual. However, these national studies sufer from several limitations. That is, these studies do not give a thorough representation of all sexual and gender identities, especially transgender (trans) individuals, because they do not have a large enough sample to estimate the prevalence or experiences of trans individuals in jail and prison (e.g., Shay, 2013). Given the lack of data on trans people incarcerated in the United States, scholars have also rarely focused on trans experiences in correctional facilities (e.g., Jenness et al., 2019; Shay, 2013). The lack of concrete numbers notwithstanding, the Bureau of Justice Statistics (BJS) estimates that there are 1,827 in local jails nationwide and over 3,200 transgender people in U.S. prisons (Beck, 2014). However, several non-government sources suggest the real estimate should be much higher (e.g., Sawyer & Wagner, 2020). For example, using the Freedom of Information Act, Sosin (2020) discovered that there were 4,890 transgender people incarcerated in 45 state prisons and Washington, DC (this number does not include transgendered people in federal prisons or the fve non-participating states3). Additionally, data from the National Transgender Discrimination Survey found that 16% of transgender people have been incarcerated at some point in their lives (Grant et al., 2011). Further, when examining only transgender persons who are Black, the number who have been incarcerated skyrockets to 47% (Grant et al., 2011, p. 163). Although limited data have been collected on inmates’ sexual orientation and gender identity throughout history, we know that LGBTQ people are more likely to end up incarcerated and are more likely to face abuse behind bars than the general population (Center for American Progress, 2016). Available data may not paint the whole picture, though existing information demonstrates that LGBTQ people are disproportionately involved in the correctional system. Starting with individuals in juvenile detention facilities, about 20% of this population identifes as a LGBTQ youth, compared to about 5% of youth in the general population (Beck et al., 2013; Belknap et  al., 2012; Irvine, 2010; Wilson et al., 2017). It is important to note, however, that there are signifcant gender diferences between youths who reported sexual orientation both in and out of detention facilities: namely, more females report being lesbian/bisexual than males report being gay/bisexual. A survey of high school students conducted by the Center for Disease Control and Prevention (CDC) found that roughly 12% of females and nearly 4.5% of males identifed as LGB (Kann et al., 2016). The gender diferences within the juvenile justice system are even more evident, as one statewide study of youth incarcerated in Ohio found that 27% of girls and 5.2% of boys identifed as LGB (Belknap et al., 2012). This study was conducted in 1998–1999, arguably before it was widely acceptable for youth in American culture to come out as non-heterosexual (Human Rights Campaign, 2016; Wakefeld & Spivak, 2018). However, another study conducted in two Nevada counties a decade later found nearly the same prevalence rate of girls on probation or in supervised diversion programs identifying as lesbian or bisexual (27.1%; Buttar et al., 2013). Other research conducted with 1,400 youth from seven diferent facilities found that the percentage of girls in detention who are LGBTQ4 may be closer to 40% (Irvine & Canfeld, 2016). The percentage of boys identifying as LGBTQ was much lower, 13.6%. Several other studies examining the wider juvenile justice population found comparably disparate percentages of LGBTQ youth involved in the juvenile justice system, and some researchers have suggested that LGBTQ youth are more likely than their straight and cisgendered counterparts to be subjected to the school-toprison pipeline5 (Center for American Progress, 2016; Irvine & Canfeld, 2017; Mallett, 2016). 207

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For example, Snapp and colleagues (2015) found that LGBTQ youth were punished in schools for public displays of afection and violating gender norms. Additionally, LGBTQ youth often experienced a hostile school climate, which led many of them to fght to protect themselves, in which they were frequently blamed for their own victimization. Several scholars have also discussed how family rejection and homelessness facilitate entry in the school-to-prison pipeline for LGBTQ youth (Irvine & Canfeld, 2017; Majd et al., 2009; Mallett, 2016; Snapp et al., 2015). Turning to adults incarcerated in the United States, sexual minorities continue to be overrepresented within jails and prisons compared to their composition in the general population. Similar to juveniles, the percentage of inmates who identify as LGB6 is driven largely by females (Meyer et al., 2017). Specifcally, a quarter of women in jail and one-third of women in prison identify as lesbian or bisexual, rates that are eight to ten times higher than the general population at 3.4% (Gates, 2011; Meyer et al., 2017). Using the National Inmate Survey (NIS), 2011–2012 (NIS3), Meyer and colleagues (2017) found that males who identify as gay or bisexual are not overrepresented in jails (3.3%) and prisons (5.5%), which compares to 3.6% of gay or bisexual men in the U.S. population (Gates, 2011). Thus, it is clear from the NIS-3 data that the disparity in incarceration rates for LGB persons is largely driven by lesbian and bisexual females (Meyer et al., 2017). The United States has the highest rate of incarceration of any nation in the world, with about 7 million adults under some form of correctional supervision in the U.S. today and almost 2.2 million of those persons housed in prisons and jails (Kaeble & Glaze, 2016; Walmsley, 2016). The high rates of LGB people behind bars can be attributed in part to the longer sentences courts impose on them (Meyer et al., 2017). The NIS-3 data revealed that lesbian and bisexual women were given longer jail and prison sentences relative to straight women, whereas gay and bisexual males were more likely to be sentenced to more than ten years in prison compared to straight men (controlling for most serious ofense and ofense history; Meyer et al., 2017). Additionally, several diferent factors have been identifed that may increase sexual minorities’ risk of incarceration, including but not limited to the stressors related to family rejection, use of illegal drugs, and community-level marginalization related to the stigmatization of LGBTQ people (Center for American Progress, 2016). Additionally, the NIS-3 revealed that sexual minority inmates were more likely to have a history of sexual child abuse, sexual victimization while incarcerated, to have experienced solitary confnement, and to report current psychological distress (Meyer et al., 2017).

Key Legal Ruling on Violence against LGBTQ Inmates by Staf and Other Inmates7 The landmark case of Farmer v. Brennan (1994) and policy directives surrounding the Prison Rape Elimination Act (PREA, 2003) form the basis for the treatment and management of LGBTQ individuals during incarceration. Although there are dozens of other state and federal court cases that relate to LGBTQ individuals’ rights in jail and prison, the Supreme Court’s decision in Farmer v. Brennan (1994) and the passage of PREA by Congress in 2003 are widely considered pivotal turning points that drive correctional policy and related experiences for the LGBTQ. While we discuss Farmer and PREA in detail here, we also comment on other court cases throughout the chapter. Farmer v. Brennan (1994): Dee Farmer was born an African American biological male, but underwent estrogen therapy, received silicone breast implants, underwent an unsuccessful sex reassignment surgery (i.e., black market testicle-removal), and dressed in women’s clothing so that she projected more feminine characteristics to align with her gender identity. After her transition, Farmer was convicted of federal credit card fraud charges in 1986 when she was just 18. Upon her diagnostic classifcation, prison medical personnel “diagnosed” Farmer as a transsexual. At the beginning of her prison sentence, Farmer was mostly kept apart from the general male population 208

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due to both safety concerns and her misconduct. However, when Farmer was transferred to Terre Haute Federal Penitentiary in Indiana, she was housed in the general male population, as federal prison policy prescribed. Within just two weeks of being placed in the general population, Farmer alleged that her cellmate repeatedly beat and raped her, and infected her with HIV (Farmer v. Brennan, 1994, p. 830). Farmer fled a formal complaint against the prison for putting her in the men’s general population in a penitentiary that had a long history of inmate assaults. She tried to sue the prison in a civil suit, alleging that prison ofcials “deliberately and indiferently failed to protect a prisoner” by placing her in general housing when she was at an elevated risk for violence as a feminine-looking transgender woman (Farmer v. Brennan, 1994, p. 831). She argued her placement in this violent environment violated her Eighth Amendment rights of protection against cruel and unusual punishment and she sought compensatory and punitive damages, in addition to an injunction against future incarceration in any prison (Farmer v. Brennan, 1994, p. 831). The district court ruled in favor of the prison ofcials, arguing that “Farmer never expressed any concern for his safety” prior to the incident, and the U.S. Court of Appeals afrmed their decision (Farmer v. Brennan, 1994, p. 831–832). Farmer appealed to the U.S. Supreme Court (USSC), which unanimously ruled that “prison ofcials may be liable if they showed ‘deliberate indiference’ to a substantial risk of serious harm when the ofcial was subjectively aware of the risk and disregarded it” (Farmer v. Brennan, 1994, pp. 828, 837). Thus, the court ruled, 7-0, in favor of Farmer, vacating the lower court’s rulings in a historic ruling that marked the frst USSC ruling on the issue of prison rape (see Jenness et al., 2019). Prison Rape Elimination Act (PREA, 2003): Sexual assault in correctional facilities was identifed as a problem as early as the 1600s, yet it was only in the last few decades that rape and sexual assault in prisons and jails were recognized as a legitimate issue (Kubiak et al., 2018). Corrections staf and administrators were forced to take rape and sexual assault in their facilities seriously after a scathing report by Human Rights Watch (2001) discussed rape and sexual assault among male prisons in the United States (Dumond, 2003). Growing awareness of sexual violence within correctional facilities (discussed below) led Congress to pass PREA in 2003, which mandated a National Prison Rape Elimination Committee (NPREC, 2009) be formed to address sexual assaults and misconducts in prisons and that required the collection of detailed data on incidents of sexual assault (BJS, 2004; Department of Justice [DOJ], 2012). To support the data collection efort, NPREC (2009) published complex guidelines and standards in 2012 in an efort to protect persons who are incarcerated from sexual assault and sexual harassment by other inmates and staf (DOJ, 2012). The PREA standards are a comprehensive set of rules designed to address all aspects of correctional facilities’ operations as they relate to sexual assault and sexual harassment (i.e., preventing, detecting, and responding to sexual assault; DOJ, 2012). These standards are legally binding on federal prisons, and state prisons may lose federal funding if they do not comply with these standards (DOJ, 2012). PREA was subsequently applied to jails, but they do not (typically) face penalties for noncompliance, though they can lose needed accreditation and contracts if they do not comply with PREA rules (Bopp, 2014). The PREA regulations are important for LGBTQ inmates because they include specifc protections for them, including limits on cross-gender searches, the consideration of LGBTQ inmates’ identities when determining risk for sexual victimization, and special considerations for housing placements of transgender and intersex individuals (Marksamer & Tobin, 2014). Although PREA has been useful, it is not a perfect tool, as several of its provisions are limited or unclear. For example, the Sexual Violence Propensity Assessment tool used to assess inmates’ risk factors for sexual abuse/harassment victimization and perpetration was largely developed on straight male prisoners (Arkles, 2014; Bopp, 2014; Dumond, 2003; Shay, 2013). In many ways, PREA re-afrmed the Farmer v. Brennan (1994) decision, which ruled that an excessive risk of abuse can 209

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be established when a prisoner belongs to “an identifable group of prisoners who are frequently singled out for violent attack by other inmates,” such as transgender people (p. 843). Other court cases have expanded on this ruling as it relates to LGBTQ persons, in that when ofcials know an inmate is LGBTQ (and thus vulnerable), a failure to take adequate steps to protect them from abuse can violate the Constitution and their Eighth Amendment rights.8

Te LGBTQ Experience with Incarceration Due in part due to housing practices in jails and prisons, the high rates of stress, mental health issues, and victimization among LGBTQ individuals (Harvey et al., 2021), and the unique deprivations and corresponding needs of LGBTQ inmates, sexual minorities are especially vulnerable to coercion and sexual violence by other inmates and staf during incarceration ( Jenness, 2021; Jenness & Sexton, 2021; Jenness et al., 2019; Reisner et al., 2014; Sexton et al., 2010; Stohr, 2015; see also Kanewske et al., Chapter 8). LQBTQ inmates are also more likely to engage in same-sex practices that violate the rules of the institution, and they are more likely to carry on relationships where the line between consent and coercion is sometimes blurred (Hensley et al., 2003, 2013; Jenness et al., 2019). Although all jail and prison inmates experience some degree of deprivation or “the pains of imprisonment” (Sykes, 1958), the LGBTQ experience in correctional facilities in the United States is oftentimes more difcult than straight and cisgender inmates, as they are more likely to face daily humiliation, physical and sexual abuse, experience segregation just because of who they are rather than because of misconduct, and they fear it will get worse if they complain or that staf will not take their complaints seriously ( Jenness et al., 2007; Marksamer & Tobin, 2014; Sexton et al., 2010; see Kanewske et al., Chapter 8).

LGBTQ Housing Practices, Deprivations, and the Sexual Hierarchy Recognizing that the efects of victimization during incarceration are signifcant and farreaching (Boxer et al., 2009; Listwan et al., 2013; Toman et al., 2018), and that LGBTQ inmates are vulnerable to victimization, many jail and prison administrators have tried to identify at-risk inmates and house them separately in specifc wings or units (e.g., Los Angeles and Santa Ana County Jails), or in protective custody (which is similar to segregation; Dolovich, 2011; Meyer et al., 2017; Robinson, 2011). Although segregating transgender and non-heterosexual inmates may protect them from the general population, such practices may isolate LGBTQ individuals, magnify the deprivations they experience, and exacerbate the vulnerabilities of a population that is already susceptible to suicide, self-harm, and victimization (Dolovich, 2011; Grant et al., 2011; Marksamer & Tobin, 2014; Robinson, 2011; see Kanewske et al., Chapter 8, for a discussion on the use of solitary confnement as a strategy for “safety”). For example, Dee Farmer (same as above) challenged the use of protective custody (segregation) for transgender inmates in Farmer v. Moritsugu (1998), arguing it violated the Eighth Amendment’s cruel and unusual punishment clause because of the psychological trauma being placed in isolation caused her. The court ruled against Farmer this time, arguing the prison’s penological interest and duty to maintain order and safety ranked higher than the trauma she experienced while in isolation (see also Steiner & Cain, 2016 for a systematic review of studies on segregation and its adverse efects on inmates). Studies of transgender persons incarcerated in New York, Pennsylvania, and California prisons found this population had mixed feelings regarding housing preferences – some agreed it was easier to be in prison while in segregation while others wanted to be housed in the general population (Emmer et al., 2011; Jenness et al., 2011, 2019; Sylvia Rivera Law Project, 2007). Thus, many scholars and legal advocates for LGBTQ inmates argue correctional facilities should not simply 210

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have “blanket policies” regarding the housing of these inmates (e.g., placing them in segregation or a special unit; Jenness et al., 2019; Marksamer & Tobin, 2014). Although state and federal prison systems have increasingly considered housing transgender women in facilities for women, most prisons and almost all short-term facilities or local jails house individuals according to their biological sex (Brown & McDufe, 2009; Jenness et al., 2019). This means that, regardless of individuals’ gender identities or sexual orientations, biological males and biological females are housed separately using a “genitalia-based” approach (Sumner & Jenness, 2014). Thus, individuals who identify as female may be placed in male units, individuals who identify as male may be placed in female units, and LGB inmates are housed alongside individuals with whom they might be sexually attracted. In addition, due to a variety of factors that are unique to the social environment of jails and prisons, individuals who otherwise identify as straight engage in sexual activity with LGBTQ inmates, and many of these interactions or relationships involve both coercion and consent (see Jenness et al., 2019; Oparah, 2012; Singer, 2013). For years, society and researchers alike considered sexual orientation to be static – individuals were either gay or straight – and yet something about the prison or the experience of incarceration made heterosexual men engage in same-sex practices during incarceration (Fishman, 1934; Sykes, 1958). Early eforts to examine sexual conduct in prison argued that inmates experience an intense sexual deprivation that distorted their norms and values to such an extent that they victimized homosexuals or those that were otherwise weak, passive, or submissive in some way; in essence, the prison experience forced some individuals to engage in same-sex practices (Donaldson, 1993; Fleisher, 1989). Those who perceived acute sexual deprivation or frustrations and who had a penchant for assertiveness or aggression occupied the argot role of “wolves or top-men,” while they forced “fags, pansies, or fairies” into sexual relationships (Sykes, 1958). Other inmates, referred to as “punks” or “turnouts,” gave up their bodies in return for safety or commissary items, while some had long-term sexual relationships with others (Fleisher, 1989). Thus, much of the early discussion about sexuality in prison dealt with coerced sexual activity between straight inmates, or straight and gay inmates. More recently, however, scholars have argued that sexual identity is a social construct, and that orientation may be better understood as a fuid concept that depends on the social and cultural contexts of the environment, societal progressiveness, and how individuals classify themselves (Eigenburg, 1992). Hensley and colleagues (2003) argued that male institutions, in particular, are often dominated by a hyper-masculine environment that forces some individuals to hide or repress their sexual identities while others are allowed to faunt it (Hensley et al., 2005). Within this context, non-aggressive “wolves” did not necessarily sexually assault partners, but rather, seek “consensual” relationships with other inmates. It was argued that “wolves” sought “fsh,” who are homosexual inmates who wore make-up, took on female roles, and passively engaged in sex for materials denied by the administration (Hensley et al., 2003, 2005). These non-aggressive wolves would also partner with “closet-gays,” or men who privately engaged in sex, but maintained a tough identity and often identifed as heterosexual (Hensley et al., 2003). Similar arguments relate to sexual activity and deviance in female institutions. True lesbians that possessed more dominate traits (aka the butch, stud, etc.) and who maintained a more masculine appearance and engaged with consensual and/or forced sexual activity with “jailhouse turnouts,” or individuals who were more feminine and maintained a more feminine appearance (Giallombardo, 1966; Ward & Kassebaum, 1964). In the relationship, while the “butch” provided protection and economic stability (i.e., through the commissary), the “femme” was the housekeeper and passive sexual servicer (Hensley et al., 2013). Other inmates, such as the “hustler, or chippie,” exploited situations for material or sexual gratifcation, while “kicks” held consensual relationships, and “turnabouts” took on a male (dominant) or female (submissive) role, depending on what was advantageous at the time (Giallombardo, 1966). 211

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Given that individuals are housed according to their biological sex in jail and prison, and the hyper-masculine environment that encourages both victimization and rule-break, individuals susceptible to victimization such as those who identify as LGBTQ are often identifed, segregated, and protected in specifc units or wings. While these practices arguably protect LGBTQ individuals from harassment, intimidation, and violence perpetrated by those in the general population, these practices might also increase isolation and exacerbate what is already an acute risk of selfharm, suicide, and psychological distress (e.g., depression; see Kanewske et al., Chapter 8). Thus, protective custody or isolation should only be used as a last resort and administrators should adopt individualized supervision strategies that identify and protect the most vulnerable individuals such as transexual women in prisons for men ( Jenness et al., 2019). Indeed, the masculinity and sexual tension that arise from forced celibacy in jails and prisons – either through the lack of contact with the opposite sex or as prohibited by institutional rules – may cause some individuals to become sexually aggressive (i.e., the wolf ), and those who are most vulnerable might be at increased risk of an attack (e.g., the punk or fsh). Even when sexual activity appears consensual between incarcerated persons, recent research suggests that many of these relationships remain at least partly coercive or are characterized by a “quid pro quo” of some kind. Thus, administrators should recognize the critical role their line-level staf have in detecting (non)consensual sexual relationships and create clear policies or remedies for dealing with these issues. Such practices would protect those who are most vulnerable and avoid practices that perpetuate the acute risks LGBTQ individuals experience during their incarceration.

Sexual Victimization and (Mis)Conduct The aforementioned discussion highlights the contextual nature of sexual relationships in jail and prison, and the apparent assumption that in the heterosexual sex-starved, ultra-masculine environment of jails and prisons, non-heterosexuals are more likely to be seen as fair game because they already engage in same-sex behavior, ignoring the profound diference between consensual and coercive sexual activity (Hensley et al., 2013). Indeed, Valerie Jenness and her colleagues (2019) have highlighted the often coercive and sometimes blatantly forceful nature of sexual activity among transexual women in male prisons. A general body of research based on both offcial and self-report data reveals that LGBTQ inmates have a higher risk of sexual assault in both male and female institutions (Beck, 2014; Hensley et al., 2003, 2005; Jenness et al., 2007, 2010, 2019; Wooden & Parker, 1982). It is important to note, however, that prior to the 1990s, scholars and correctional staf alike believed that consensual and coercive sexual activity within prisons was due to predatory homosexuals in prisons (e.g., Howarth, 1985; Ward & Kassebaum, 1964; Wooden & Parker, 1982). Thus, many facilities would segregate gay and transgender inmates because they believed them to be predatory and perverse (Howarth, 1985), and it was not until much later that prison management and correctional scholars realized that LGBTQ inmates were actually the more vulnerable inmates who were often preyed upon (Donaldson, 2001). All U.S. Department of Justice commissioned NIS to date have revealed that non-heterosexual individuals report higher rates of sexual victimization during incarceration compared to straight individuals (Beck et al., 2013, 2014). In the 2011–2012 NIS, 12.2% of non-heterosexual people in prison and 8.5% of non-heterosexual people in jail reported inmate-on-inmate sexual assaults within the last 12 months, compared with 1.2% of their straight counterparts in both institutional settings (Beck et al., 2013). Yet, rates of sexual victimization were even worse for non-heterosexual inmates who also had “serious psychological distress” (Meyer et al., 2017). Specifcally, 21% of non-heterosexual inmates in prison and 14.7% of non-heterosexuals in jail reported being sexually victimized by another inmate (Beck et al., 2013). Non-heterosexual individuals in prison also reported sexual victimization by staf at higher rates than prisoners who identifed as straight 212

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(i.e., 5.4% vs. 2.1%; Beck, 2013). Similarly, non-heterosexual persons in jail reported higher rates of sexual misconduct by staf compared to straight inmates (i.e., 4.3% vs. 1.7%; Beck et al., 2013). Several non-government studies have also revealed that transgender inmates have a much higher rate of sexual victimization in jails and prisons compared to cisgender inmates (e.g., Jenness et al., 2007, 2010, 2019; Jenness & Sexton, 2021; Lydon et al., 2015; Sylvia Rivera Law Project, 2007). For example, data from the 2015 U.S. Transgender Survey revealed that 30% of transgender inmates reported being physically or sexually assaulted by staf or inmates ( James et al., 2016, p. 191). As a consequence of their victimization, and perhaps as a result of their greater propensity to engage in same-sex activity, sexual minorities might experience more stress and engage in more rule violations or misconduct while incarcerated (Steiner et al., 2020). Some have argued that sexual minorities might be more likely to engage in misconduct due to the stress and trauma of previous victimization both in and outside of prison or jail (Woods, 2017; Zavala, 2017), such that experiencing victimization in prison contributes to higher odds of both violent and non-violent prison violations (Steiner et al., 2020). LGBTQ persons who are incarcerated may also be written up for misconduct at higher rates than heterosexual inmates because consensual sexual contact remains against institutional rules (Beck et al., 2014; Meyer et al., 2017). Moreover, Hensley and colleagues (2013) noted that some of the individual risk factors for victimization are wanting to impress peers and the desire to build a reputation. LGBTQ individuals who are incarcerated are more likely to have been victimized prior to incarceration and many sufer from poor self-esteem (Kosciw et al., 2018; Mogul et al., 2011), and they may resort to violent and non-violent (but perhaps sexual) behavior in an efort to gain respect and a reputation (Hensley et al., 2013). For example, fsh’ homosexuals were found to hold a fairly high status within the prison culture. Regardless, evidence suggests that LGBTQ inmates exhibit a greater risk for both victimization and ofending behavior while incarcerated (Goldbach et al., 2021; Hensley et al., 2013; Meyer et al., 2017; Olsen et al., 2014; Steiner et al., 2020). Sexual victimization is harmful to victims regardless of where it happens, but sexual victimization in correctional facilities can be especially traumatizing because inmates have limited access to medical care and counseling, and the unique structure of prison (e.g., limited autonomy, privacy, and freedom) may exacerbate the psychological efects of victimization (Dumond, 2000; Owen et al., 2008). Numerous studies confrm that prison sexual victimization has negative psychological efects on inmates, such as anxiety, depression, post-traumatic stress disorder (PTSD), rape trauma syndrome, suicide ideation, and other health-related concerns (Boxer et al., 2009; Dumond & Dumond, 2002; Hochstetler et al., 2004; Human Rights Watch, 2001; Listwan et al., 2010; Struckman-Johnson et al., 1996; Sylvia Rivera Law Project, 2007; Wolf & Shi, 2009; Wooldredge, 1999). Moreover, the high rates of HIV, Hepatitis C, and other sexually transmitted diseases in prisons combined with the lack of availability of condoms puts victims of sexual assault in prisons at risk for infection (Dumond, 2000; Human Rights Watch, 2001; McGuire, 2005).

LGBTQ Health, Healthcare, and Programming Issues LGBTQ inmates typically have the same medical and mental healthcare needs as other inmates and they should receive the same treatment as their straight and cisgender counterparts (National Center for Transgender Equality, 2018; The Fenway Institute, 2019). However, there are some unique physical and mental health issues among LGBTQ inmates that need to be addressed during their incarceration; the issue is, of course, that access to quality healthcare in jails and prisons is deeply lacking (e.g., Kendig et al., 2019; Sevelius & Jenness, 2017). Specifc to transgender persons who are incarcerated, those who have already begun hormone therapy need to maintain their treatment as the sudden cessation of hormone treatment can have serious adverse efects on one’s health (Sevelius & Jenness, 2017). Brown and McDufe (2009) did an empirical analysis of policies, directives, and memoranda 213

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regarding transgender prisoners’ healthcare across the United States and found wide variability in access to hormone therapy throughout prisons, while there was unanimous denial of surgical treatments for transgender inmates who want to transition (p. 280). Denying transgender inmates access to cross-sex hormones and/or surgical treatments can exacerbate the anxiety, depression, and body dissatisfaction that transgender inmates already experience before coming to jail/prison (Klemmer et al., 2021). Several transgender inmates in an Oregon prison fled several lawsuits against the state department of corrections (DOCs) for grievances around classifcation, housing, denial of medical treatment, and freedom to practice feminine mannerisms (i.e., shaving their legs, wearing makeup, dressing as a woman; Denson, 2014; Willson, 2014). Even though many state and federal cases have ruled that gender dysphoria9 and gender identity disorder are legitimate medical issues that require treatment,10 the Oregon DOC ignored these inmates’ requests for medical treatment until one inmate successfully castrated herself after several failed attempts and needed medical treatment for her physical injuries (Willson, 2014). However, Oregon is not the only state to deny medical treatment to transgender individuals who are incarcerated; according to the 2015 U.S. transgender survey, 37% of respondents who had been previously incarcerated reported taking hormones prior to incarceration but were denied continuation of those hormones in prison (James et al., 2016). Correctional facilities can further frustrate and demean transgender inmates by denying them freedom to dress in a way that is consistent with their gender identity through strict dress codes, using their wrong names and/or pronouns, or forcing them to shower with genders opposite of their gender identity (Braaten & Vaughn, 2021; Klemmer et al., 2021; Lloyd, 2005; see Kanewske et al., Chapter 8). Correctional administrators should also be aware that subjecting transgender inmates to strip searches can be especially demeaning and may lead to sexual harassment/assault by staf (Beck et al., 2014; Sylvia Rivera Law Project, 2007). LGBTQ inmates may also be denied access to programming or treatment services available to the general inmate population due to increased violence, harassment, fear of violence, or excessive use of solitary among LGBTQ individuals (Arkles, 2009, 2014; Sumner & Jenness, 2014; see Lanterman et al., Chapter 9). This is exacerbated where correctional staf receive very little, if any, education, and training pertaining to transgender inmates’ needs or the issues associated with being transgender (Iyama, 2012; Jenness & Sexton, 2021; see Kanewske et al., Chapter 8).

Implications for Policy and Practice To protect vulnerable inmates such as those who identify as transexual, gay, lesbian, or bisexual, jail, and prison administrators have historically placed them in protective custody (Beck & Harrison, 2010; Guerino & Beck, 2011). However, these practices efectively punish LGBTQ inmates because segregated units force individuals to live in more secure settings, with more limited programming opportunities, and a deeper loss of autonomy and privacy (Arkles, 2009, 2014; Hensley et al., 2013; Sumner & Jenness, 2014; see also Kanewske et al., Chapter 8; Lanterman et al., Chapter 9). Given that LGBTQ people are already at a higher risk of suicide and self-harm, placing these individuals in these types of units may only exacerbate the problem (Braaten & Vaughn, 2021; Harvey et al., 2021; Klemmer et al., 2021). There is also a signifcant need for training seminars with correctional ofcers and staf members regarding where victimization most often occurs, characteristics of those they might need to supervise more closely, how to manage and deal with consensual and/or coercive sexual activity when they see it, and most importantly, how to not contribute to the problem themselves (National Center for Transgender Equality, 2018; The Fenway Institute, 2019; Sumner & Jenness, 2014). Researchers have suggested that cells and housing units, for example, are dangerous areas of institutions that are prone to victimization (Ellison et al., 2018; Jenness et al., 2007, 2010; Warren et al., 2010). Scholars also suggest that incarcerated persons who take more risks, possess 214

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vulnerable attributes or behave in a way that antagonizes others, and have less guardianship or supervision around their person are more likely to be victimized (Ahlin, 2019; Wooldredge & Steiner, 2012, 2013, 2014). The latter is particularly important, as ofcers can either be instrumental in stopping victimization and sexual (mis)conduct, or they can be part of the problem. Ofcers who enforce the rules responsibly and consistently, for example, might be better able to reduce victimization and maintain supervision; ofcers should proactively recognize the signs and symptoms of inmates who are being victimized (Dumond, 2000, 2003; Eigenberg, 1989, 1994, 2002), and be comfortable confronting and writing up inmates for forbidden sexual activity (Hensley et al., 2013). In addition, ofcers should avoid being part of the problem and never use derogatory language for known victims and/or LGBTQ persons who are incarcerated or detained, nor should they use housing assignments as a means of intimidation or allow inmates who are known to engage in sexual activity to be housed together (National Center for Transgender Equality, 2018; The Fenway Institute, 2019). Although many jails and prisons have been forced to include training on recognizing and responding to sexual activity, much more could be done ( Jenness et al., 2019).

Conclusions Although an increasing amount of attention has been given to LGBTQ persons in the general population and in correctional facilities since the early 2000s, much remains to be done toward the goal of ensuring LGBTQ persons are treated equally by the criminal justice system more broadly and during periods of incarceration as this chapter highlighted ( Jenness, 2021; National Center for Transgender Equality, 2018; Panfl & Miller, 2014). Correctional systems in the United States have dealt with a variety of marginalized populations (e.g., the elderly, mentally ill, disabled, terminally ill, HIV positive inmates, and inmates on death row; see Dodson & Rufn, Chapter 6, for a discussion on justice-involved populations with disabilities, and Marques et al., Chapter 11, for an examination of elderly incarcerated populations) and researchers and correctional administrators are encouraged to address the special risks and needs of LGBTQ persons who are incarcerated in a similar way they did with other special populations (Marksamer & Tobin, 2014; Sawyer & Wagner, 2020; Smith & Yarussi, 2015; Wakefeld & Spivak, 2018). As we discussed here, data consistently show that LGBTQ people are overrepresented throughout the criminal justice system and that they are subjected to especially harmful and degrading conditions when incarcerated. The Center for American Progress (2016) explained that LGBTQ persons do not just end up incarcerated more often than their straight or cisgender counterparts because they are more criminal, but rather because they face layers of discrimination, marginalization, and stigma (e.g., family rejection, poverty, unsafe schools, employment discrimination) which leads to criminalization and disparate treatment by the criminal justice system. The Center for American Progress (2016) argues that ending the criminalization of LGBTQ people will require broad social and policy changes, including but not limited to (1) increasing support for LGBTQ youth within families, schools, communities, and other institutions; (2) eliminating discrimination against LGBTQ people in housing, employment, and other realms; (3) eliminating homelessness among the LGBTQ population; and (4) enacting drug policy and sentencing reforms. Moreover, while the overarching goal should include a reduction of LGBTQ individuals’ disproportionately high rate of incarceration through acknowledgment of and focus on criminogenic risks and needs that LGBTQ individuals experience, far more could be done to ensure their safety during incarceration. Such measures might include eforts aimed at preventing harassment and sexual assault, improving systems for addressing assault when it occurs, providing access to appropriate housing, healthcare, and clothing to incarcerated transgender people, and enacting and enforcing non-discrimination policies for staf.11 Such changes might ensure equal treatment of incarcerated persons regardless of sexual orientation or identity. 215

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Notes 1 A note about language used in this chapter: We use the term LGBTQ to refer to lesbian, gay, bisexual, transgender, and queer people in the criminal justice system, to best match language used by other criminologists and the data sources we cite most. It is also important to note that these categories are self-defned rather than determined by behavior (e.g., not all men who have sex with men or women who have sex with women identify as gay or lesbian). Defnitions: The term lesbian refers to females with a same-sex sexual orientation, while the term gay refers to all persons with a same-sex sexual orientation (though it usually refers to males). Bisexual refers to individuals who are attracted to and have a sexual interest in both same- and opposite-sex individuals. The term queer is an adjective used by some people, particularly younger people, whose sexual orientation is not exclusively heterosexual. Typically, for those who identify as queer, the terms lesbian, gay, and bisexual are perceived to be too limiting and/or fraught with cultural connotations they feel do not apply to them. The terms heterosexual and straight refer to individuals who are romantically/sexually attracted to persons of the opposite sex. These previous terms refer to individuals’ sexual orientation, whereas gender identity is typically a separate category and can include a wide variety of identities (e.g., cisgender, transgender, gender non-conforming). Cisgender is a term used to describe people who are not transgender (i.e., they identify as the same gender as their biological sex at birth). Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies that diverge from the normative gender role (man or woman) they are assigned at birth. Transgender refers to one’s gender identity and does not imply any type of sexual orientation. It is an imprecise umbrella term which is often used to describe a wide range of identities and experiences (e.g., female to male transsexuals, male to female transsexuals, those who undergo medical treatment to bring their physical appearance into conformity with their internal gender identity, those who live in accordance with their gender identity without any medical treatment, and those who are in the process of transitioning between sexes to bring their physical appearance into conformity with their internal gender identity). Gender non-conforming describes some people whose gender expression is diferent from conventional expectations of masculinity and femininity (note that not all gender non-conforming people identify as transgender; nor are all transgender people gender non-conforming). Gender non-conforming is not a synonym for transgender or transsexual and should only be used if someone self-identifes as gender non-conforming. The term LGBTQ is sometimes extended to include an “I” and/or an “A” at the end of the acronym. “I” stands for intersex which is an umbrella term describing people born with reproductive or sexual anatomy and/or a chromosome pattern that cannot be classifed as typically male or female. The term intersex is preferable to the outdated and derogatory term “hermaphrodite.” While some people can have an intersex condition and also identify as transgender, the two are separate and should not be confated. The “A” stands for asexual, which describes people who do not experience sexual attraction, though it should be noted there is a spectrum of asexuality (e.g., a person may have no sexual desire, but may still experience romantic, physical, or emotional attraction). See GLAAD (2016) or University of California – Davis (2020) for more information on terms/ defnitions. 2 Readers are encouraged to review Smyth and Jenness’ (2014), and Wakefeld and Spivak’s (2018) work for excellent descriptions of the historical context of homosexuality and gender identity, as both are relatively new phenomenon. 3 Alabama, Alaska, Indiana, Tennessee, and Utah did not respond to records requests. 4 Note this study included youth who identifed as gender non-conforming or transgendered, whereas the previous studies did not examine gender orientation, but only sexual orientation of youth. 5 Automatic and punitive discipline policies and practices often result in student entrance into the juvenile justice system, a process referred to as the “school-to-prison pipeline” (U.S. Department of Education, 2014). Institutional and cultural factors increase the risk of school discipline, and thus, contact with the justice system, for certain groups of youth (e.g., racial minorities, youth in the welfare system, LGBTQ youth). 6 LGB is used here without the “TQ” terms because this study used data from the NIS, 2011–2012, which only asked inmates about their sexual orientation, not their gender identity, thus Meyer et al. (2017) use the shortened LGB acronym. 7 There are dozens of state and federal court cases specifc to LGBTQ inmates’ rights, far too many to cover in this chapter, thus, we only cover two milestone cases and comment on others throughout the chapter. Readers interested in more details on cases specifc to transgender inmates should refer to the following: Braaten and Vaughn (2021), National Center for Transgender Equality (2018), Routh and colleagues (2017), and The Fenway Institute (2019).

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Pains of Imprisonment 8 See also Green v. Bowles, 2004; Johnson v. Johnson, 2004; and Schwenk v. Hartford, 2000. Those interested in learning more about the PREA provisions as they relate to LGBTQ inmates should read the National Center for Transgender Equality’s (2018) report for more detailed discussions (see also Marksamer & Tobin, 2014). 9 Many transgender people present with gender dysphoria, a serious medical condition marked by significant distress related to an incongruence between one’s experienced gender and the gender they were thought to be at birth. Treatment for gender dysphoria may involve counseling, social gender role transition (e.g., changing one’s name, clothing, or grooming habits), hormone therapy, and possibly surgical treatments. This treatment is medically necessary and efective for many people, and a failure to provide needed treatment can lead to serious physical and mental health outcomes (National Center for Transgender Equality, 2018). 10 For example, Hicklin v Precynth (2018) ruled that “the denial of hormone therapy based on a blanket rule, rather than an individualized medical determination, constitutes deliberate indiference in violation of the Eighth Amendment.” For example, correctional ofcials cannot deny gender dysphoria treatments based solely on the argument that such treatments would increase the risk of violence toward the inmate receiving the treatments (see Fields v. Smith, 2011), or based on fnancial or political factors (Harris v. Thigpen, 1991; White v. Farrier, 1988). Further, the treatment provided cannot be blatantly inappropriate (Edwards v. Snyder, 2007; Johnson v. Doughty, 2006). 11 For detailed accounts of best practices among LGBTQ inmates and calls for action/future research of this population, refer to the following: (Brown & Jenness, 2020; Center for American Progress, 2016; Marksamer & Tobin, 2014; National Center for Transgender Equality, 2018; Panfl & Miller, 2014; Sawyer & Wagner, 2020; Smith & Yarussi, 2015; The Fenway Institute, 2019; United Nations Ofce on Drugs & Crime, 2009; see also Kanewske et al., Chapter 8).

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11 INCARCERATED INDIGENOUS AND NATIVE AMERICAN POPULATIONS Reneè Lamphere and Matthew R. Hassett Introduction Worldwide there are 370 million Indigenous people in 90 diferent nations (United Nations, 2021). Indigenous people have unique traditions that are distinct from the dominant society in which they live. Indigenous people can be found all over the globe, and a common defnition is that they are the people who inhabited a geographic location at the time when people from a different culture or ethnic origin arrived at that location. The new arrivals to the geographic location eventually become the dominant culture via conquest, occupation, or other means. “Indigenous” is an all-encompassing term to describe people from many countries; however, there are preferences in some geographical regions for other terms, including tribes, First Peoples, First Nations, Aboriginals, and Natives, among others (United Nations, 2021). According to Amnesty International (2022), Indigenous people are marginalized and discriminated against by legal systems throughout the world. They are vulnerable to violence and abuse because of this; in fact, some Indigenous people are physically attacked or killed just for the simple fact that they are Indigenous. Indigenous people who use peaceful tactics to maintain their cultural identity or control how their resource-rich traditional lands are used are often met with violence and accusations of treason and terrorism by the dominant culture (Amnesty International). There is no way to know the real toll that discrimination has taken on Indigenous people, but it may be a factor in why they make up 5% of the world’s population and 15% of the world’s extremely poor population (World Bank, 2021). In addition to this, they have higher rates of landlessness and internal displacement when compared to other groups (Amnesty International, 2022). From all of this, it is clear that Indigenous populations are facing a number of difculties and vulnerabilities, and it is of interest to explore how this all impacts their involvement with justice systems throughout the world, in particular those who are currently or formerly incarcerated. The purpose of this chapter is to explore the relationship between incarceration and Indigenous people. While Indigenous people can be found throughout the world, this chapter will focus primarily on the experiences of Indigenous people in the United States, commonly referred to as Native Americans or American Indians. Issues related to sentencing, incarceration, and reentry will be reviewed. In addition to the research on Native Americans, there is also considerable amount of research on the First Nations people of Canada, as well as the Aboriginal peoples native to Australia and New Zealand, and that will be included in the discussion here as well. It should be noted that while there are some generalizations made in this chapter, there is not one uniform Indigenous experience, meaning the information contained herein cannot be applied universally to all Native peoples. DOI: 10.4324/9781003245032-12

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Indigenous Populations in the United States Background Information As of 2021, there are 574 federally recognized Indian tribes in the United States (U.S. Department of the Interior, Bureau of Indian Afairs, 2021). The U.S. Constitution vests the federal government with the authority to engage with Indian tribes, meaning this relationship is woven into the fabric of the country. In the 1830s, Supreme Court Chief Justice John Marshall coined the term “domestic dependent nations” to discuss the interplay between the U.S. government and Indian tribes (Giford, 2010). According to Marshall, Indian tribes have a nationhood status, and therefore should retain the power to self-govern. This principle has guided federal laws related to Indians throughout history and still guides federal laws as of this writing. In the United States, the Native American population has grown considerably over the past 60 years; in 1960 the Native American population was 500,000, and it has grown to 6.79 million people in 2021. Native Americans represent just over 2% of the entire U.S. population (World Population Review, 2021). In addition to the growth in population, there has been an increase in civil and tribal rights aforded to Native American populations. As discussed by Muhammad and colleagues (2019), legislation such as the Indian Self-Determination and Education Assistance Act of 1975 and the Tribal Self-Governance Act of 1994 have given Native Americans more control over their land and resources. While there is a perception that many Natives live on tribal land, only one out of every fve American Indians and Alaskan Natives live on a reservation. Those who do live on reservations often fnd themselves experiencing economic hardships; the median income for those on a reservation is approximately $29,000 annually, compared to $40,000 annually for Indians not on a reservation (Muhammad et al., 2019). As will be discussed, economic hardship is just one of many factors working against Native Americans in the United States.

Te Incarceration of Native American Populations Traditionally, prisons were not a part of American Indian society. The idea of imprisoning someone for committing an ofense was foreign, and the style of incarceration we see today came about during “Indian wars” with European settlers (Williams, 2014). As discussed by Mebane-Cruz (2015), beginning in the 1600s, settlers in the Eastern colonies began extended conficts with the local Native residents. During this time, the practice of enslaving conquered Indians evolved, as well as the deportation of these persons to the Caribbean as a source of labor (Hauptman & Wherry, 1993). These conficts lead to the removal of most Native peoples to the Western portion of the United States, which eventually resulted in the creation of the reservation system. In refecting on the relationship between tribal sovereignty and incarceration, Lumsden (2016) discussed the history of the criminalization of Native people. They argue that incarceration is tied to the loss of sovereignty of Native people, which subsequently erodes their ability to pass down their land and culture to future generations. Further, incarceration is something that Native people have experienced throughout history; from confnement on reservations (Mebane-Cruz, 2015) to boarding schools (Lumsden, 2016; Ogden, 2004) to prisons and jails. According to Lumsden (2016), “…prisons are just another in a long line of disciplinary spaces that have been used to inhibit the sovereignty of Indian peoples” (p. 43). Until the passing of the Major Crimes Act by Congress in 1855, Native people had their own system of criminal justice (Ogden, 2004; Sands & Rumann, 2004). As discussed by Ogden (2004), this system relied on an oral tradition of stories and laws being passed down via word of mouth from generation to generation. With the passing of the Major Crimes Act, Congress stripped tribes of the power to punish their own members for crimes. Tribal sovereignty was only recognized to 224

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Natives on reservations, and even this was limited as federal authorities became able to prosecute reservation Natives who committed felony ofenses. It should also be noted that because of federal criminal jurisdiction over most Native lands in the United States, Natives who are incarcerated are more likely to be housed in federal prison, rather than a state or local facility (Ogden, 2004). At the turn of the 21st century, Native Americans were incarcerated at a rate twice as high as Whites in the United States (Mears, 2018; Mebane-Cruz, 2015). According to the Federal Bureau of Prisons (BOP), there were 3,806 federally incarcerated Native Americans as of August 2021. They comprise 2.5% of the total federal prison population (Federal Bureau of Prisons, 2021). Uncovering the percentage of Native Americans in state and local facilities is more difcult because the data is scarce. Further, problems with data collection, such as grouping Native Americans with other ethnic and racial groups, have made it difcult to understand the true extent of mass incarceration on this population. According to the 2010 census data, approximately 38,000 individuals who identifed as American Indian or Alaska Native were in adult correctional facilities in the United States. These numbers include both state and federal facilities (Daniel, 2020). In looking at local facilities, in 2018 there were 9,700 American Indian and Alaskan Native people in jails in the United States. Their incarceration rate of 401 per 100,000 persons is almost twice the jail incarceration rate of White (187 per 100,000 persons) and Hispanic people (185 per 100,000 persons) (Zeng, 2020). Another Native population of particular concern is the youth population. In 2015, the Native American youth detention rate was 255 per 100,000 persons, making them three times more likely to be confned in a detention center when compared to White youth (83 per 100,000 persons) (Daniel, 2020). Part of this disproportionate representation of justice-involved youth might stem from the fact that Native youth also have a disproportionate rate of police contact. They are arrested at a higher rate (2,251 per 100,000 persons) than White youth (1,793 per 100,000 persons) (Daniel, 2020). It will be of interest to note how these numbers regarding Native American populations will change when the data for the 2020 census is made available. In addition to the Native American population in the general corrections system, there is also a tribal justice system in place in the United States throughout Indian Country. According to the Bureau of Indian Afairs (BIA), there are 90 detention facilities in Indian Country, with 25% of these facilities being operated by the BIA, and the rest being self-governed by individual tribes (Bureau of Indian Afairs, n.d.). As of 2020, there were 2,020 inmates in tribal detention centers throughout the United States. This was an almost 800-person decrease from the year prior; much of the decline can be attributed to the COVID-19 pandemic (see Ahlin et al., Chapter 13). The 2020 population was the lowest seen since 2004 (Minton, 2021). It will be of interest to see how the continuation of the COVID-19 pandemic will afect the rate of incarceration for those held in tribal detention centers.

Justice-Involved Native American Youth Populations As mentioned, Native youth are disproportionately involved in the justice system when compared to non-Native youth. In thinking about why this is occurring, it is important to look at things like risk and protective factors and adverse childhood experiences, and how these impact Native youth. In thinking frst about risk factors, these are things that are associated with poor childhood development (Austin et al., 2020). Some examples include poverty, parental incarceration, and exposure to violence, among a myriad of other factors (Bitsko, 2016; Holt et al., 2008; Turney, 2014). While less studied, there is also research that indicates that positive aspects of a child’s life, such as having caring adults around, spending time with a father fgure, and positive social play with peers, can serve as protective factors and help promote healthy childhood development (Cprek et al., 2015; Eggum-Wilkens et al., 2014; Lee & Schoppe-Sullivan, 2017). 225

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Austin and colleagues (2020) discuss how risk and protective factors impact Alaska Native and American Indian children. The authors point out that, in addition to traditional risk factors, these children also face the impact of collective trauma that has occurred over multiple generations. Examples of collective trauma include widespread death due to the introduction of communicable diseases by non-Native populations, the separation of Native children from their parents during the “boarding school era,” and the seizure of Native land and resources (Easley et al., 2005). As discussed by Pember (2019), the “board school era” is in reference to the time period from 1860 until 1978, following the passage of the Civilization Fund Act in 1819. This act was created with the intention of “assimilating” Native American children into the non-Native culture by having them live in Christian-based boarding schools. While at these boarding schools, children were taught to abandon the traditional languages and practices of their culture in favor of non-Native languages and practices. In addition to the systematic stripping of their culture, there have been many fndings of physical abuse, sexual abuse, and neglect at these boarding schools (Pember, 2019). These traumatic incidents have had a long-lasting impact on Native people, including Native youth. It also needs to be noted that despite the risk factors, there are also sources of strength and resiliency among Native communities. Things such as father-fgure involvement and the importance of family meals for Native American families serve as protective factors for Native youth. Given this, early intervention programs that are specifcally tailored to the experiences and developmental needs of American Indian and Alaska Native youth may prove to be more efective in the long run (Austin et al., 2020). Risk and protective factors are closely related to another concept that is important when studying justice-involved Native American youth, and that is the role of Adverse Childhood Experiences (ACEs) in their development. ACEs include things such as growing up with abuse, neglect, mentally ill family members, and incarcerated family members, among others (De Ravello et al., 2008). There have been studies that have examined ACEs among American Indian and Alaska Native populations. Research on ACEs and incarcerated American Indian women found that almost 65% reported having an alcoholic parent, and 45% experienced physical and emotional abuse in childhood (Koss et al., 2003). Recent research by Giano and colleagues (2021) found that the rate of ACEs was almost 2.5 times higher for American Indian and Alaska Native children when compared to White, Black, and Hispanic youth. Research by Robin and colleagues (1997) found that 50% of the incarcerated female American Indians in their study experienced sexual abuse as children. They hypothesized that the deterioration of cultural traditions and breakdowns in the social structure of Native communities has contributed to the high rates of sexual abuse and subsequent high rates of mental illness. The traditional Native family values of stability and guidance being passed down to younger generations have diminished over the years, and these traditional values have historically been associated with positive behavior and health outcomes for American Indians and Alaska Natives. More research is needed on ACEs and how the specifc experiences of Native youth are impacting them into their adulthood. An additional area to consider when thinking about justice-involved Native youth is the idea of the school-to-prison pipeline. The school-to-prison pipeline is a social problem in U.S. public education where students are systematically removed from the school environment into detention centers, jails, and prisons. Often beginning with suspension from school, it escalates to expulsion and school dropout, which frequently lead to incarceration (Stetser & Stillwell, 2014). This phenomenon disproportionately impacts minority youth, including Native Americans (Bell, 2016). Another factor to consider is that minority children are disproportionately represented in special education classes in K-12 education in the United States (Sakala, 2014). Some reasons for this overrepresentation of minority students include factors such as poverty and testing bias. One study by Zhang and Katsiyannis (2002) found that American Indian children had the second highest representation in special education classes in the state of Florida. In that study, upward of 40% of 226

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American Indian children were in special education classes. Students labeled with emotional and intellectual disabilities and in special education classes are more likely to be suspended, drop out of school, and end up incarcerated, meaning these things are more likely to occur to minority children (Bell, 2016). Overall, while school suspension and expulsion are intended to be a punishment of last resort for public school children, it appears that they are instead being used as a daily tactic for discipline, and this is disproportionately impacting special needs youth, who are more likely to be minority youth. More research, however, is needed to see how the school-to-prison pipeline is specifcally impacting Native American youth. A fnal area to think about when considering Native American youth is the impact of foster care involvement on these children. Minority children are often overrepresented in the U.S. child welfare system (Putnam-Hornstein et al., 2013). When in care of the system, they are more likely to end up in multiple placements, and they remain in the foster care system for longer periods of time (Foster et al., 2011). Research by Watt and Kim (2019) examined the National Youth in Transition Database (NYTD), which contains information about youth aging out of the foster care system throughout the United States. This longitudinal study examined youth at ages 17, 19, and 21. The results found that American Indian and Alaska Native youth were less likely to enroll in higher education and were substantially more likely (63%) than White youth to become incarcerated during the course of the data collection period. Almost half of the Native youth became incarcerated after leaving foster care. The researchers suggest that these poor outcomes may be linked to societal level inequality but might also be indicative of the child welfare system not being equipped to ofer culturally appropriate and efective services to these youth. Many of the services provided are evidence-based, but this evidence does not take the specifc cultural needs of Native youth into consideration. It is suggested that policies afecting the child welfare system’s response to American Indian and Alaska Native youth be reexamined in order to improve the outcome for these populations.

Drug- and Alcohol-Related Ofenses and Native Americans Prior to a deep discussion on Native Americans and alcohol and drug abuse, it is important to discuss the prevailing, inaccurate assumption that substance abuse is an innate characteristic of American Indians. In looking at the history of the use of alcohol and drugs by Native Americans in the Western Hemisphere, they did not excessively use alcohol or drugs prior to contact with European settlers. There was some use of weak, fermented beer for religious and ceremonial purposes, as well as mushrooms and tobacco leaves, but these were scarcely used (Mukosi, 2020). It was not until potent and addictive forms of alcohol were traded to the Indians by the European settlers that alcohol became more widely used by Natives. Most tribes did not have legal or even moral taboos to regulate alcohol use, so its use ran rampant. It was addictive and left destruction behind for both individuals and communities (Beauvais, 1998). The use of alcohol by Native Americans has increased their mortality, domestic violence, and risk of serious health complications, such as diabetes and heart disease (Mukosi, 2020). As of 2019, in the United States, approximately 15% of all arrests were made for drug-related ofenses and 9% were for drinking and driving ofenses (Federal Bureau of Investigations, n.d.). Many credit the War on Drugs for creating policies that resulted in the overrepresentation of racial and ethnic minorities in jails and prison for drug- and alcohol-related ofenses, deepening the disparity these populations face in the criminal justice system (Camplain et al., 2020). In thinking about Native people specifcally, the Southwest region of the United States is an example of how American Indian and Native Alaskan populations are disproportionately involved in the justice system for alcohol-related ofenses (Feldstein et al., 2006). This is despite the fact that Native populations in the Southwest have higher rates of alcohol abstention when compared to the general 227

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public (Spicer et al., 2003). Some of the reason Natives are more involved in alcohol-related offenses may be attributed to reported bias by law enforcement in towns that are in close proximity to tribal lands. Also, research by Camplain and colleagues (2020) found that American Indian and Alaskan Native persons in the Southwest were more likely to sell and use alcohol and drugs in public locations and were more likely to sell illicit substances to strangers when compared to non-Native populations. These are just a couple of presumably many factors that contribute to the disproportionate arrest of Native peoples for alcohol and drug-related ofenses. In thinking about adult drinking patterns in tribes across the United States, while there are high levels of abstinence from alcohol (Herman-Stahl & Chong, 2002; Spicer et al., 2003), there are also high levels of heavy drinking and negative consequences for American Indian and Alaska Native populations (Mukosi, 2020). In tribal communities, drinking is more likely to start at a young age and may involve heavier, more episodic periods of drinking when compared to national samples (Beals et al., 2004). These facts, coupled with myths about the “drunken Indian” and socioeconomic factors, such as unemployment and poverty, may hinder American Indian and Alaska Native populations from gaining access to alcohol treatment programs (Feldstein et al., 2006). In a study of American Indian and Alaska Natives and alcohol-related incarceration, it was found that those sufering from the most severe forms of alcohol dependence were more likely to be incarcerated than to receive treatment. The most common form of treatment was medical hospitalization, which is more likely to be a forced treatment rather than something that is voluntary in nature. This study highlights the importance of cultural diferences in receiving treatment and suggests that participants are more likely to receive treatment if they deem it to be a good cultural ft for them (Feldstein et al., 2006). Future research should focus on the implementation and effectiveness of alcohol treatment for justice-involved American Indians and Alaska Natives to help uncover how treatment eforts can best assist these populations. The criminal justice system has evolved in response to the ongoing addiction crisis in the United States that has resulted in many people being incarcerated for drug and alcohol ofenses. Beginning in the late 1990s, in an efort to better help those who were addicted, a number of American Indian tribes turned to the drug court model to help their people. It was important to the tribes though that these programs met the cultural needs of the tribe’s members. In 1997, in collaboration with the National Association of Drug Court Professionals and the Tribal Advisory Committee, the Healing to Wellness Court program was created (Bureau of Justice Assistance, 2003). Healing to Wellness Courts resemble conventional drug courts in many respects, but also infuse tribal customs and traditions in the model to assist members in gaining and maintaining sobriety. The courts, which are still in existence, focus on the underlying reasons for the criminal conduct rather than focusing on punishing the criminal act itself. Additionally, members of the family, extended family, and community can all be involved in the court process (Tribal Healing to Wellness Courts, n.d.). Overall, these courts have been found to be successful (Mukosi, 2020). With issues of overcrowding plaguing the U.S. justice system, the use of Healing to Wellness Courts may be used in the future as one of many tools to potentially help curb these conditions.

Native Americans and Sex Ofenses Regardless of whether one is discussing a reservation or an independent Indian community, most areas that are considered Indian country in the United States are located in rural areas. Because of this, many of the nearly 100,000 people in the United States who have a sexual ofense on their record who are unaccounted for nationwide seek refuge in Indian country. Further, Native Americans themselves are not immune from committing sexual ofenses. Nearly three out of fve federal sex ofenses reported nationwide occur in Indian country (Sands & Rumann, 2004). Of all the federal ofenses that Native Americans are incarcerated for, 10.2% are sex ofenses (United States Sentencing 228

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Commission, 2017). Statistically, one in every four Native American girls and one in seven Native American boys will be sexually abused in childhood (Giford, 2010). Following several disturbing cases of sexual abuse being perpetrated by schoolteachers from the Bureau of Indian Afairs, Congress passed the Indian Child Protection and Family Violence Prevention Act (ICPA) in 1990 to help protect Native American children from sex ofenders. In response to this, in the 1990s some tribes developed tribal registration lists for those convicted of sexual ofenses. While many tribes participated there were many who did not. Following the passage of Megan’s Law in 1996 and The Adam Walsh Act of 2006, all jurisdictions in the United States, including tribal lands, are required to track sex ofenders using a public website. This, however, has not come without complications. Many tribal governments are among the poorest in the United States and struggle to fnd funds to pay staf to monitor and update their registries on a regular basis. This coupled with other infrastructure issues makes tribal compliance with federal mandates a difcult task at times (Giford, 2010). In response to concerns over how Indian defendants were being treated in federal sex ofense cases, in 2003 the U.S. Sentencing Commission established the Ad Hoc Native American Advisory Group to examine the efect of Federal Sentencing Guidelines on Indian populations, in particular those who committed sexual ofenses. The Advisory Group reiterated the longstanding problem of sexual ofenses in Indian country in the United States. They note how poverty, unemployment, and changes in culture and community have contributed to the persistence of this problem. They also emphasized the need for treatment for Native Americans who commit sexual ofenses and note that many individuals received no treatment specifc to sexual abuse prior to leaving custody. The Advisory Group suggests that more Native Americans who commit sexual ofenses need to participate in treatment programs, including early intervention programs. They suggest modeling the program after the successful BOP drug and alcohol treatment program. They also suggest incentivizing participation by ofering modest reductions in federal sentences for those who successfully complete the program (Sands & Rumann, 2004). By expanding treatment program participation for Native Americans who commit sexual ofenses, the hope is that it results in substantial beneft for the ofender, victim, and communities afected by these crimes.

Te Efects of Isolation and Solitary Confnement on Incarcerated Native Americans The penal practice of isolation in U.S. prisons and jails is not a new phenomenon; people have been isolated while incarcerated since the beginning of the corrections system. Unfortunately, this practice has historically been used as a political tool to control certain populations of people, including Native peoples (Kerness & Bissonette-Lewey, 2014). As the penitentiary movement swept throughout the United States in the 1700s and 1800s, isolation was used as a strategy against Native Americans east of the Mississippi River. Genocide of Native peoples resulted in the capture of a number of Native Americans. The captured leaders of Native tribes would be sent to penitentiaries and segregated for long periods of time (Williams, 2014). There were reports of torture happening in addition to the forced isolation (Canku, 2013). Segregation continued in U.S. prisons and jails into the 1900s, and especially fourished during the latter half of the 20th century as prison policies based on incapacitation gained popularity. In the 1980s, letters began to emerge from “control units” in state prisons indicating that people were being held in isolation for extended periods of time for political reasons. This included incarcerated persons sufering from mental illness, jailhouse lawyers, and incarcerated Native American persons, among others. There are reports of Native people spending anywhere from a few months to upward of 25 years or more in isolation. There were even people who sufered this punishment who had no known political ties; it would seem they were sent to isolation just for being Native American (Kerness & Bissonette-Lewey, 2014). 229

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By the 1990s many prisons started recognizing what they called Security Threat Groups (STGs), aimed at managing the gang problem that was emerging in facilities during this time. The goal was to identify the STGs and isolate them from the general prison population. Unfortunately, entire races were identifed as gang members and STGs by prison authorities, including Native Americans, resulting in a massive number of people, both gang and non-gang afliated, being forced into isolation. There was even one report that emerged during this time of a young Native American woman who was incarcerated and was identifed as a gang member for speaking a “secret language” when she talked to and sang to her child in her Native Lakota language (Kerness & Bissonette-Lewey, 2014). The continued isolation of incarcerated Native American people continued into the 21st century and is still seen in many facilities today. A report on Minnesota prisons in 2019, for example, found that Native American peoples were placed in solitary confnement at rates higher than White incarcerated persons, with reports of some spending a year or more in isolation (Mannix & Hargarten, 2020). For some Native communities that are already struggling with high rates of poverty and unemployment, these efects are compounded by criminal justice policies, resulting in upward of one out of every two Native men being incarcerated during their lifetime (Kerness & Bissonette-Lewey, 2014). The depraved conditions of isolation within prisons are adding to the despair and harm that Native American populations already face, resulting in violence, addiction, and chaos within the carceral environment (Swanson, 2012). In looking at the future of isolation for incarcerated Native peoples, Kerness and Bissonette-Lewey (2014) state that “ending isolation is no longer a recommendation; it is an imperative… failing to act is not only unethical but is an untenable act of structural violence” (p. 39). Some steps in ending isolation for incarcerated Native Peoples is to recognize the roots of this practice and continue to study this problem to understand the true impact of isolation on Native communities.

Rights to Religion in Prison for Incarcerated Native Americans One aspect of the incarceration process for Native Americans that is of interest is the right to religion. As discussed by Williams (2014), there is often a breakdown in institutional protection of the right to exercise religion for incarcerated Native Americans for a number of reasons, including the fact that Native religions are diferent from other religions and some administrators perceive these diferences to be “threatening to penological interests” (p. 9). In the late 1800s and early 1900s federal regulations were passed that outlawed Native American religions entirely, punishing those who practiced them by incarcerating them (Inouye, 1992). Only in 1978 did Native American religious beliefs become protected by the American Indian Religious Freedom Act. Despite this becoming law, many incarcerated Native Americans have had to use the court system to force facilities to accommodate their religious practices (Williams, 2014). It is important that these accommodations be made as religious practices have been found to have a substantial rehabilitative efect for incarcerated Native Americans ( Johnson, 1997; Sumter, 2000). For correctional administrators, a balance must be made between implementing religious accommodations for incarcerated Native Americans and the safety and security interests of the facilities. It is important to examine the specifc aspects of Native American religion that pose a challenge for correctional administrators. One aspect of religion for Native Americans involves tobacco use, which is used by some Native faiths for religious ceremonies and for prayer. Correctional authorities have historically been hesitant to allow tobacco in prisons as it is typically considered contraband and could be used as currency for bribes, which poses a security risk for a facility. Another aspect is the use of sweat lodges, which are used by some tribes to cleanse and purify, making them an important part of rehabilitation eforts for Native Americans. Some prison authorities argue that the need to provide additional stafng to monitor incarcerated persons who use sweat lodges 230

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would make their use not feasible (Williams, 2014). Another aspect to consider is hair length and style, as having uncut hair is religiously signifcant for some Native Americans. The grooming policies in place at some facilities ban long hair for safety, identity, and hygienic reasons, which is at odds with the religious freedoms of Native Americans (Williams). Despite the objections raised, there are many institutions that now accommodate all the aforementioned aspects of Native American religion. Thirty-nine states, the District of Columbia, and the BOP have adopted grooming policies that permit uncut hair and grant religious exemptions for many other policies. The facilities that have made these accommodations have not reported a signifcant undermining of the safety and security of their facilities in comparison to those facilities that do not make religious accommodations (Sidhu, 2012). It is important to consider religious accommodations for incarcerated Native Americans not only because it is their right to practice their religion, but also for the potential rehabilitative benefts of allowing these practices in correctional facilities.

Reentry for Native Americans The United States incarcerates a large number of people and most will be released from prison at some point in their life. Over 600,000 people are released from prison confnement annually (Carson, 2020). Upon release, many returning residents go back to the same disadvantaged communities they originally came from, which often lack the resources to properly handle them. The result of this is that nearly two-thirds of incarcerated persons released from prison are rearrested for a new ofense within three years of their release and over 80% are rearrested within nine years (Alper et al., 2018). Further complicating this is that there is not one reentry experience, but rather a diversity of experiences depending on things like size of community, gender, race, and ethnicity, among other factors (Frazier, 2014). Unfortunately, one group that has been all but ignored in the reentry literature is Native Americans (Wodahl & Freng, 2017). The limited research that exists suggests that Native Americans experience high recidivism rates, sometimes higher than other racial or ethnic groups (California Department of Corrections and Rehabilitation, 2019; Kubrin et al., 2007). Research by Wodahl and Freng (2017) looked to uncover the core reentry challenges facing returning Native Americans. Among the most difcult challenges facing these people include fnding housing, fnding and maintaining employment, and abstaining from drugs and alcohol. Out of all the areas of need, the most pressing need appears to be housing, as fnding stable housing away from drugs and alcohol was a major obstacle for reentering Native Americans. Another problem facing Native Americans reentering the community involved a lack of reliable transportation. As previously mentioned, the rural aspect of tribal lands and Native communities means many in these communities are isolated, especially since public transportation is almost non-existent in these locations. These problems underscore the importance of community, and how broader community forces can hinder even the most well thought out programs. Reentry is something that afects the individual but also afects the family, tribe, and community. For efective reintegration to happen, changes will need to be made at all levels starting with the individual and including others such as the community (Wodahl & Freng, 2017). One way the community can get involved is by ofering and promoting cultural activities, which has been associated with positive outcomes such as high educational achievement and lower substance use rates among Native American populations (Torres Stone et al., 2006).

A Comparative View of Incarcerated Indigenous Populations As with many criminological issues, it becomes important to examine incarcerated Indigenous populations in an international context. When viewing incarcerated Indigenous populations through a comparative lens, we can not only learn more about the issue itself but also examine 231

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the prevalence of the issue among diferent countries across the globe. With this knowledge, both common and unique problems can be identifed. Further and perhaps more practically, we can see the degree to which a policy and/or solution in one country could become successful in another (Wood, 2014). Much of the research on incarcerated Indigenous populations internationally derives samples from Australia and Canada. While incarceration overall does not appear to be as big of a problem as in the United States in these countries, similar to the United States, racial disparities can be found within the data on the rising prison populations in both countries (Austin & Coventry, 2014). Specifcally, Indigenous people are overrepresented in both Australia (Bagaric, 2016) as well as within Canada (Inwood & Roberts, 2020). Essentially, research has shown that the overrepresentation of Indigenous people remains a worldwide issue across many countries (Gutierrez et al., 2018).

Incarcerated Indigenous Populations within Australia It has been widely established that Indigenous populations within Australia are specifcally overrepresented within prison populations (Austin & Coventry, 2014, Bagaric, 2016; Freckelton, 2013; Hefernan et al., 2015; Hopkins, 2015; Jefries & Stenning, 2014; Ryan et al., 2020; Shepherd et al., 2016; Tubex et al., 2020; Weatherburn & Holmes, 2010; Wood, 2014). For example, while Indigenous people only made up 2% of Australia’s general population in 2018, they made up to 28% of the country’s prison population (Ryan et al., 2020). Additionally, Aboriginal individuals are more likely to continue to cycle in and out of prison through multiple incidents and/or sentences (Lloyd et al., 2015). Recently, the COVID-19 pandemic has even further illuminated inequities within criminal justice systems (see Ahlin et al., Chapter 13), such as that within Australia (Waight et al., 2021). Different from the United States and overall prison population demographics, most of the Indigenous incarcerated individuals in Australia typically come from rural areas (Austin & Coventry, 2014). Issues while Incarcerated. Indigenous people who are within the criminal justice system, face several challenges. Most notably, research has shown that while Indigenous males are more likely to receive an adjudication involving incarceration as opposed to females (Bond & Jefries, 2011), Aboriginal incarcerated women can face unique health challenges. Recent data has shown that Aboriginal incarcerated individuals, especially women, in Australia faced signifcant inequitable access to proper healthcare while in prison (Kendall et al., 2020; Sullivan et al., 2019). This issue is further exacerbated by the fact that things like needle sharing among drug-dependent ofenders in prison have been shown to bring on additional negative health outcomes, such as a higher rate of diseases like Hepatitis, among Aboriginal ofenders (Smirnov et al., 2018). Beyond physical health, Indigenous incarcerated people in Australia face signifcant mental health issues as well. When looking at the population of incarcerated people, Aboriginal people with mental disorders can be found within incarceration settings (Charlson et al., 2021; Stewart et al., 2020). This becomes even more problematic since it has been found that Indigenous people were more likely than the general population to report being exposed to traumatic experiences and facing psychological distress (Hefernan et al., 2015; Rose et al., 2019). Unfortunately, one of the protective factors that have been identifed to combat negative mental health outcomes has been visitation while incarcerated, but it has been shown that Indigenous people were less likely to be visited while in prison as compared to non-Indigenous people—perhaps due to factors like travel distance (Ryan et al., 2020). Contributing Factors to Overrepresentation. While it is important to understand the issues that Aboriginal incarcerated individuals in Australia face while in prison, they do not necessarily explain the overrepresentation among the community. That is, why the incarceration rate is signifcantly disproportionate compared to the total population of Indigenous people within the country (Austin & Coventry, 2014, Bagaric, 2016; Freckelton, 2013; Hefernan et al., 2015; 232

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Hopkins, 2015; Jefries & Stenning, 2014; Ryan et al., 2020; Shepherd et al., 2016; Tubex et al., 2020; Weatherburn & Holmes, 2010; Wood, 2014). Questions remain about equitable treatment across the criminal justice system because of the clear overrepresentation of Indigenous ofenders (Bond & Jefries, 2011). However, one could argue that the true problems lie outside of the criminal justice system. Some have concluded that being Indigenous in and of itself does not have a signifcant direct impact on incarceration decisions, but other variables come into play (Bond & Jefries, 2011). Instead of having a direct signifcant impact, being Indigenous impacts other facets of an individual’s life, which in turn sets them up for an increased likelihood of involvement with the criminal justice system. That is, potential contributors to overrepresentation derive from disadvantages that exist in Indigenous communities (Austin & Coventry, 2014). When examining the available studies, research shows that race can interact with other factors to impact sentencing and few studies fnd any direct discrimination (Bond & Jefries, 2011). Researchers have examined factors related to race that might impact incarceration outcomes directly. Indigenous Australians are at the greatest social and economic disadvantages across groups (Bond & Jefries, 2011). Similar to other situations, social and economic disadvantages can increase the likelihood that someone becomes involved within the criminal justice system. Other social problems have been identifed as likely contributors to the overrepresentation as well. Substance abuse, child neglect, unemployment, and impaired physical/mental health have been identifed as contributors to the overrepresentation of Indigenous people within incarceration settings (Coles et  al., 2019; Freckelton, 2013; Weatherburn & Holmes, 2010). Further worsening the issues is the fact that those who are opioid-dependent and experience incarceration usually experience it multiple times (Degenhardt et al., 2014). Beating opioid addiction is perhaps even more difcult among Aboriginal people because they have inequitable healthcare as opposed to non-Indigenous people (Kendall et al., 2020). Addressing the Overrepresentation of Indigenous Populations within the Criminal Justice System. In Australia, there have been calls to reduce the number of Indigenous involved in the criminal justice system (Hopkins, 2015). Over time, programs have been developed to address the issue like “Closing the Gap” a program that builds relationships between Indigenous people and those at diferent levels of the government to address issues of disadvantage within their communities (Austin & Coventry, 2014). There have also been calls to address various social problems identifed through research that could ultimately impact incarceration rates. There should be more diverse options for Indigenous Australians with physical and mental health problems—the lack of options has been and continues to be an issue (Charlson et al., 2021; Rose et al., 2019; Steele et al., 2021; Sullivan et al., 2019). For Indigenous people who are incarcerated, research has shown that they should be exposed to rehabilitation that is unique to them as well (Shepherd et al., 2016). It has been found that Indigenous people who participate in programming that is culturally relevant to them were signifcantly less likely to recidivate in the future (Gutierrez et al., 2018). Unique treatments, like art therapy, have also been shown to be successful for incarcerated Aboriginal individuals (Rasmussen et al., 2018). Additionally, as a result of the existing social problems within Indigenous communities, it is critical that Indigenous people have a thorough transitional and post-release plan when being released from prison (Tubex et al., 2020).

Incarcerated Indigenous Populations within Canada The issue of the over-incarceration of Indigenous people just discussed within the context of Australia appears to mirror similar issues within Canada. It has again been widely established that Aboriginal people are overrepresented within incarceration settings across Canada (Hyatt, 2013; 233

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Inwood & Roberts, 2020; Jefries & Stenning, 2014). Over the past decade, there has been a great increase of Aboriginal people in prison—even in times where there have been decreases in other groups like Caucasians (Brown, 2016; Prevost & Kilty, 2020). Perhaps the issue has been best characterized when Jackson (2015) said “The crisis of Aboriginal over-incarceration in Canada is one of the most well-documented features of our criminal justice system” (p. 927). Beyond just the overall problem of the overrepresentation of Indigenous people in prison, the problems identifed as contributing to this issue in Canada have been similar to those uncovered in other countries. Indigenous people face inequalities as compared to other groups within Canadian society while also facing unequal treatment across the criminal justice system (Brown & Timler, 2019). Aboriginal people are more likely to receive prison sentences for similar crimes than their counterparts, and aspects of the criminal justice system, like discretion, may be contributing to disparities ( Jackson, 2015). In addition to overrepresentation, incarcerated Aboriginal people in Canada have some of the same issues while incarcerated as previously discussed with Australia, such as inadequate healthcare (Liauw et al., 2021). Initiatives within Canada Addressing the Overrepresentation of Indigenous People within Criminal Justice Settings. The overrepresentation of Aboriginal people within corrections has been recognized by governments as an issue (Hyatt, 2013). A variety of initiatives have been suggested to address the problem. It has been argued that Aboriginal people are unique and cultural-specifc healing implemented in prisons is an important factor within an Aboriginal person’s rehabilitation process (Hyatt, 2013). Relatedly, Indigenous elders should be accessible to Indigenous people throughout the criminal justice process (Murdocca, 2020) and special consideration needs to be given to certain groups within the Indigenous population, such as the unique needs of incarcerated Indigenous women (Prevost & Kilty, 2020). Similar to what has been found to be helpful in Australia, incarcerated Indigenous people benefted from therapeutic art programs in Canada as well (Brown & Timler, 2019). Although research has shown that some Canadian initiatives can be efective in addressing the over-incarceration of Aboriginal individuals, the efectiveness of other initiatives has come into question. Most commonly noted, sentencing reforms have not successfully addressed Aboriginal imprisonment overrepresentation ( Jackson, 2015; Jefries & Stenning, 2014). However, it is still believed that beyond therapeutic prison programs, earlier stages of the criminal justice process need to be focused on more with initiatives to address the overrepresentation of Aboriginal individuals ( Jackson, 2015). A way of identifying the specifc initiatives that are needed may be to have those who have lived experiences within the criminal justice system become involved with initiative development and implementation (Murdocca, 2020). Legislative responses to the overrepresentation of incarcerated Indigenous people internationally. While it has been known that reforms are needed to address the overrepresentation of certain groups within incarceration settings across the world, the COVID-19 pandemic has further demonstrated that importance of fnding criminal justice outcomes other than sending those from the most marginalized groups to prison ( Johnston, 2020; Payne & Hanley, 2020; see Ahlin et al., Chapter 13). It is a responsibility of criminal justice agencies to make available programs to increase general public safety (Gutierrez et al., 2018). However, it is important to examine the impact that any initiative would have on all populations. Thus, certain initiatives need to proceed with caution because in some instances, while legislation has worked in decreasing overall incarceration rates, certain groups have actually sufered more. For example, the Youth Criminal Justice Act (YCJA) in Canada was efective in decreasing the overall rate of youths being incarcerated, but for Aboriginal youths, their incarceration rate actually increased at this very same time ( Jackson, 2015). Unique problems need to be addressed and policy decisions need to consider them. For example, justice reinvestment in theory can seem like a good idea for Australia, but implementation that mirrors other countries, like the 234

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United States, may not work internationally (Wood, 2014). As such, while examining issues through a comparative lens may be useful for identifcation and understanding, solutions unique to certain countries or groups may be imperative.

Looking Ahead and Conclusions This paper has examined Native and Indigenous populations from the United States, Canada, and Australia. While the problems facing Native populations difer in each country, there are some commonalities that indicate a common Native experience among them. The Indigenous peoples of these countries all experienced invasion by European settlers during the Colonial period. The settlers came with the purpose of removing rich resources from Indigenous people and the end result was the same—socioeconomic and political marginalization of Native populations (Nielsen & Robyn, 2003). The criminal justice system appears to be one of many institutions historically used to control Indigenous peoples throughout the world. In thinking ahead on how the criminal justice system can best serve Indigenous populations, the frst step is to increase research eforts to better understand Indigenous justice practices and how they play out for diferent Native populations. Nielsen and Robyn (2003) warn against tactics such as hiring more Indigenous people in the justice system or providing sensitivity training, as these surface-level remedies do not address the deep, underlying issues that Indigenous people face in the justice system. They argue that in order to truly end overrepresentation of Indigenous people in the criminal justice system, we must tackle the issues growing out of colonialism. This includes things like revitalizing culture and language, economic growth, and development in Native communities, and enforcing penalties for discriminating and committing hate crimes against Native people, among other strategies. One cannot make changes to the justice system without also addressing the social and economic inequalities burdening Native communities. While this is an enormous task for policymakers to take on it is important that they do so in order to make real, signifcant changes to end the overrepresentation of Indigenous people in the criminal justice system.

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Incarcerated Indigenous Populations Sullivan, E. A., Kendall, S., Chang, S., Baldtry, E., Zeki, R., Gilles, M., Wilson, M., Butler, T., Levy, M., Wayland, S., Cullen, P., Jones, J., & Sherwood, J. (2019). Aboriginal mothers in prison in Australia: A study of social, emotional and physical wellbeing. Australian & New Zealand Journal of Public Health, 43(3), 241–247. Sumter, M. T. (2000). Religiousness and post-release community adjustment: Graduate research fellowship fnal report. U.S. Department of Justice, Ofce of Justice Programs. https://www.ojp.gov/ncjrs/virtual-library/ abstracts/religiousness-and-post-release-community-adjustment-graduate Swanson, D. (2012, May/June). Torture on trial: Legal and human frameworks for opposing torture. The Humanist, 27–30. Torres Stone, R. A., Whitbeck, L. B., Chen, X., Johnson, K., & Olson, D. M. (2006). Traditional practices, traditional spirituality, and alcohol cessation among American Indians. Journal of Studies on Alcohol and Drugs, 67, 236–244. Tribal Healing to Wellness Courts. (n.d.). About us. Retrieved August 31, 2021 from https://wellnesscourts. org/about-us/ Tubex, H., Rynne, J., & Blagg, H. (2020). Throughcare needs of Indigenous people leaving prison in Western Australia and the Northern Territory. Trends & Issues in Crime & Criminal Justice, 585, 1–14. Turney, K. (2014). Stress proliferation across generations? Examining the relationship between parental incarceration and childhood health. Journal of Health and Social Behavior, 5555(3), 302–319. United Nations (2021). Indigenous peoples, Indigenous voices: Factsheet. https://www.un.org/esa/socdev/ unpfi/documents/5session_factsheet1.pdf United States Sentencing Commission. (2017). Quick facts: Native Americans in the federal ofender population. https://www.ussc.gov/sites/default/fles/pdf/research-and-publications/quick-facts/Native_American_ Ofenders_FY16.pdf U.S. Department of the Interior, Bureau of Indian Afairs (2021). Frequently asked questions. https://www. bia.gov/frequently-asked-questions#:~:text=At%20present%2C%20there%20are%20574,Alaska%20 Native%20tribes%20and%20villages Waight, N., Axleby, C., Moore, R., & Meijia-Canales, D. (2021). COVID-19: A missed opportunity to reimagine the justice system for our people. Current Issues in Criminal Justice, 33(1), 19–26. Watt, T., & Kim, S. (2019). Race/ethnicity and foster youth outcomes: An examination of disproportionality using the national youth in transition database. Children & Youth Services Review, 102, 251–258. Weatherburn, D., & Holmes, J. (2010). Re-thinking Indigenous over-representation in prison. Australian Journal of Social Issues, 45(4), 559–576. Williams, J. W. (2014). Walking the red road in the iron house. American Jails, 28(2), 8–15. Wodahl, E. J., & Freng, A. (2017). The challenges of prisoner reentry faced by Native American returning ofenders. Journal of Ethnicity in Criminal Justice, 15(2), 160–184. Wood, W. R. (2014). Justice reinvestment in Australia. Victims & Ofenders, 9(1), 100–119. World Bank. (2021). Indigenous peoples. https://www.worldbank.org/en/topic/indigenouspeoples#1 World Population Review (2021). Native American populations 2021. https://worldpopulationreview.com/ state-rankings/native-american-population Zeng, Z. (2020). Jail inmates in 2018. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs. ojp.gov/content/pub/pdf/ji18.pdf Zhang, D., & Katsiyannis, A. (2002). Minority representation in special education a persistent challenge. Remedial and Special Education, 23(3), 180–187.

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12 AGING IN PRISON Understanding Elderly Incarcerated Populations Beatriz Amalf Marques, Stuti S. Kokkalera and Michael S. Vaughn

Introduction In March 2021, Joe Ligon was released from the State Correctional Institution Phoenix in Montgomery County, Pennsylvania, after spending 68 years in prison. Ligon was 15 years old when he received a mandatory life sentence, following a robbery and stabbing spree with four other teenage boys. Ligon holds the distinction of the oldest and longest-serving juvenile lifer (CBS, 2021). The elderly incarcerated population is represented not only by individuals sentenced as youth who spend decades in prison, but those serving time for crimes committed in their adulthood. For instance, Kent Clark is one of 150 “old law prisoners” in federal prison who committed a crime prior to November 1987 when the law changed removing the possibility of parole ( Johnson, 2021). Today, Clark is 66 years old and sufering from dementia, with no clear pathway for release. Similarly, women also serve long prison sentences for crimes committed in their youth. For example, Monica Jahner received a life sentence at the age of 22 and spent 28 years in prison before she was released with signifcant health issues, including high blood pressure and tachycardia (Courtney et al., 2017). Ligon, Clark, and Jahner represent a substantial and important segment of the incarcerated population in the United States. Approximately 200,000 incarcerated individuals over the age of 55 face a complex array of health, social, and legal issues in addition to their prison sentence (Maschi et al., 2016). Starting in the 1980s, legislative changes deriving from a shift in correctional goals, moving away from rehabilitation and toward incapacitation and retribution, caused an exponential growth in the country’s correctional population (Austin & Eisen, 2016). Estimates from the Bureau of Justice Statistics (BJS) suggest that over 6 million people were under some form of correctional supervision in 2018 (Maruschack & Minton, 2020). The scope of the correctional system population includes not only jails and prisons but also intensive community supervision such as probation and parole. According to the U.S. Department of Justice (DOJ), the country’s correctional population peaked in 2007 and has been steadily declining since (Maruschack & Minton, 2020). Mass incarceration is a direct consequence of excessively punitive policies. The rise in incarcerated populations has mostly been attributed to the passage of the Anti-Drug Abuse Act of 1986, which allowed for lengthier punishments, such as three-strike laws, truth-in-sentencing statutes, and mandatory minimum sentences. Because of these policy changes, both the size of the prison population and the time an incarcerated individual spends in prison increased. The average state sentence has increased 33% since 1993; “following the same trend, the average stay for federal prisoners more than doubled from 1988 to 2012, rising from 1.5 to 3.1 years” (Austin & Eisen, 240

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2016, p. 17). Consequently, the correctional population in the United States is now substantially comprised of older individuals serving long sentences. Since 1993, there has been a 400% growth in the sentencing and incarceration of individuals over the age of 55 (Carson & Sabol, 2016). In this chapter, we focus on the aging American prison population to highlight the humanitarian, social, and economic costs of lengthy incarceration. To explain the challenges posed by an aging prison population, this chapter draws on the risk, needs, and responsivity model (Andrews & Bonta, 2006; Bonta & Andrews, 2007). Existing literature suggests the incarcerated elderly pose a low risk to communities but represent a special correctional population with a myriad of needs (i.e., lack of access to healthcare, permanent housing, and technological knowledge to navigate the modern world), which are often not met due to systemic barriers (Harzke et al., 2010; Williams & Abraldes, 2007; Yates & Gillespie, 2000). Therefore, this chapter proceeds in two parts. In the frst half, we discuss the makeup of the correctional elderly population and challenges they face while incarcerated. The second half elaborates on the criminogenic risks and needs of this special population, culminating in a discussion of avenues of reentry to highlight a path forward for reducing the number of elderly persons who are incarcerated.

Defning Age in Prison Prison age classifcation varies greatly according to country, agency, researcher, and even according to the purpose of the research being conducted (Maschi et al., 2012). Most countries and international agencies classify elderly as those who are above 65 years of age as they are likely to be eligible to receive a full pension and other social security benefts (Maschi et al., 2012). In the American carceral complex, however, there is a diferent defnition of elderly. Incarcerated individuals of 50 years of age are considered elderly due to the adverse impact of the conditions of confnement on their physical and psychological health (Maschi et al., 2012). Going to prison further enables a high-risk lifestyle that can involve abuse of alcohol and other illegal substances, which accelerates the aging process (Williams, 2001). Additionally, many elderly persons who are incarcerated lack access to basic healthcare services and entered prison with chronic or cooccurring diseases, further afecting early physical and cognitive decline (Marquart et al., 2000). Therefore, within the realm of the correctional system, the concept of age is not merely defned by biology but also by socio-psychological theory which considers the diference in lifestyle between those incarcerated and those dwelling in free communities. As a result, both individualand community-level factors must be taken into consideration when determining the concept of aging in prison (Ofce of Inspector General, 2015).

Incarcerated Elderly Individuals A report published by the Federal Bureau of Prisons estimates that approximately 12% of the country’s federal prison population consists of individuals 55 years of age and older (Federal Bureau of Prisons, 2020). Similarly, 11% of the states’ correctional population is composed of people over the age of 55, most of them incarcerated in Florida, California, and Texas (Widra, 2020). The growth of this incarcerated population poses challenges to these individuals as well as to the correctional system at large. In prison, elderly individuals are more likely than their younger counterparts to present co-occurring health issues and to be victimized due to their physical fragility (Kerbs & Jolley, 2007; Kuhlmann & Ruddell, 2005; Maschi et al., 2012). Financial costs associated with in-prison medical care are approximately 10% of the total cost of care for the average incarcerated individual (Maschi et al., 2012). Furthermore, this population does not beneft from educational or vocational programming as they are often focused on intense manual labor, 241

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such as welding, plumbing, and other physically demanding trades. Elderly incarcerated individuals similarly do not take advantage of most recreational activities which often are geared toward younger individuals (i.e., team sports, lifting weights). There are two main categories of incarcerated elderly: (1) older individuals who were arrested and incarcerated as elderly and (2) individuals who were incarcerated while young and are serving (or have served) long prison sentences. While both groups face similar sets of challenges in the prison system, the distinction provides clearer identifcation of the criminogenic risks as well as the needs of each group of elderly incarcerated individuals. Incarcerated When Older. According to Berger (2018), although most ofenses are committed by younger individuals, the number of ofenses committed by the elderly is not negligible, largely in relation to alcohol and drug ofenses. Elderly individuals are also more prone to committing non-violent property ofenses, including larceny-theft, shoplifting, fraud, and white-collar crimes, while younger individuals are more likely to commit violent crimes (Berger, 2018). The lack of overrepresentation of elderly individuals arrested when older in the country’s correctional system may be related to police discretion. Lindesay (1996), for instance, argued that while most misdemeanors often go unreported, some major ofenses are disregarded by police ofcers who use their authority to divert the elderly ofender from the criminal justice system. Most crimes committed by the elderly are classifed as mala prohibita, those defned by the standards of society and not by the fact that they are bad in and of themselves (Davenport, 2015). Incarcerated When Young. The second group of elderly individuals are those who were incarcerated at an early age and have aged in prison. This group is primarily formed by individuals sentenced under harsh and strict guidelines enacted in the 1980s and 1990s during the height of the war on drugs and on crime. Nearly two in every fve people serving long prison terms (including life) were incarcerated before the age of 25 (Courtney et al., 2017). According to the Bureau of Justice Statistics (2016), 65% of all individuals incarcerated in a state correctional facility are serving time for a violent ofense. Furthermore, the number of individuals aged 55 years or over incarcerated for murder, nonnegligible manslaughter, rape, or sexual assault is higher than any other incarcerated age group (BJS, 2016; 2021).

Challenges Faced by the Elderly While Incarcerated Despite the diferent pathways to incarceration for the two groups of elderly incarcerated individuals, both face similar and signifcant health issues. In this section, we describe the state of healthcare for the elderly, focusing on both physical and mental health issues. We further address the right to healthcare in carceral settings for those who are viewed as elderly.

Healthcare The prison environment substantially degrades incarcerated elderly individuals’ physical and mental health. Specifcally, some have estimated that incarceration speeds the emergence of health concerns by 10–15 years when compared to same-age individuals living in general society (Chiu, 2010). Medical expenditures comprise a substantial portion of correctional budgets, as the cost of incarcerating and caring for elderly inmates is approximately $70,000 per year, while younger prisoners can usually be housed for about $35,000 per year (Chiu, 2010). Physical Health Conditions. Studies conducted in Texas call attention to the most common medical conditions of elderly individuals in prison. One of these studies was designed to assess the health condition of individuals incarcerated in Texas from 2006 to 2007. Although the research did not focus specifcally on the health issues of the elderly prisoners, its fndings demonstrated that this special population accounted for most health-related costs (Harzke et al., 2010). While 242

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the elderly comprised only about 6% of the total correctional population, they showed “prevalence estimates of chronic obstructive pulmonary disease, ischemic heart disease, and cerebrovascular disease that were at least three times greater than younger inmates, and this age group was considerably more likely to have co-occurring conditions” (Harzke et al., 2010, p. 497). Another study in Texas found that elderly individuals tended to present a high level of co-occurring health conditions (Marquart et al., 2000). Among the most common diseases were diabetes, hypertension, coronary heart disease, lung problems, and depression. While most health conditions arose due to lack of medical access preceding incarceration, diagnosis of clinical depression was traced back to a lack of prosocial activities, boredom, and lack of fresh air while incarcerated (Marquart et al., 2000). Research on female elderly individuals similarly noted they had higher rates of hypertension, asthma, and arthritis when compared to community-dwelling female elderly individuals (Williams et al., 2006). The health profle of older incarcerated individuals was specifcally assessed by Nowotny et al. (2016), who highlighted the complexity of health issues within this unique group of ofenders. The authors focused on existing patterns of multimorbidity across four health domains: mental health, chronic medical conditions, drug- and alcohol-related diseases and impairments, and behavioral health. Drawing from a sample of 1,026 incarcerated men older than 50, the authors suggested that only 45% of the elderly could be classifed as healthy, while the other 55% presented mild to severe health issues. Among the group with a high number of diseases associated with substance abuse, a plethora of behavioral health issues was identifed. This group had high rates of substance dependency (56.6%), injuries – whether intentional or accidental – (37.4%), and hepatitis (27.3). Compared to their healthy incarcerated counterparts, this group was surprisingly younger (M = 53.9), predominantly Black (45.4%), and possessed extensive criminal records. Nowotny and colleagues (2016) classifed the remaining individuals into two additional groups. The frst, comprised of older individuals with multiple impairments, was dubbed the chronically unhealthy group. Out of the seven chronic health conditions, this group possessed higher rates of cancer, hypertension, diabetes, heart problems, and kidney problems. About a quarter of this group required the aid of a cane or walker for daily mobility. Additionally, this group was comprised of the oldest individuals in the sample, and their health issues were mostly associated with aging rather than other possible explanations (i.e., drug use). The last group was comprised of older individuals who tested poorly across all four health domains. This was the only group with reported mental health issues: over half reported having depression, and one-third sufered from post-traumatic stress disorder (PTSD). About half of the group had a hearing or vision impairment that limited their daily activities even with the use of an aid (see Dodson & Rufn, Chapter 6, for a discussion of incarcerated persons with disabilities). Close to a third shared stories of physical or sexual abuse during their childhood. This latter cluster was composed of younger individuals (M = 53.7) and military veterans with extensive incarceration episodes. In one of the few studies focusing on elderly female incarcerated persons, Williams et al. (2006) say that 16% of their sample, who ranged from 55 to 82 years of age, needed assistance with one or more daily activities. The authors reported that this group of women over 65, should they be residing in the free world, would also require assistance with daily tasks. By changing the measure from assistance needed to perform daily activities to assistance needed to perform prison daily activities, the authors found that close to 70% of the sample reported needing assistance. This result was especially important to shed light on the fact that while an individual might not require assistance in the community, they might require aid to perform daily tasks within the correctional context, such as climbing on and of the top bunk in their cells or hearing orders given by staf and correctional ofcers. The detrimental efects of confnement were further exacerbated during the coronavirus pandemic. Given the crowded conditions of confnement, the lack of social distancing, and access 243

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or use of masks, the infection rate for individuals incarcerated was 150% more than the general public’s rates of infection ( Jeferson-Bullock, 2020). And that was before the omicron variant. As in the free world, elderly incarcerated individuals who contracted COVID-19 were at increased risk of developing serious disease or death ( Jeferson-Bullock, 2020). According to the Marshall Project and the Associated Press, during the frst 15 months of the coronavirus pandemic over 500,000 individuals who worked in and were housed in U.S. correctional facilities caught COVID-19 (Park et al., 2021). At one highpoint of the pandemic in December of 2020, over 25,000 incarcerated individuals had tested positive for COVID-19, and “nearly 3,000 prisoners and staf” had died as of July 2021 (Park et al., 2021, para. 5). Even so, most experts acknowledged that the known cases of COVID-19 and associated deaths among the incarcerated population are a gross undercount (Park et al., 2021). Many correctional systems were criticized for not quickly releasing the elderly: “by their very nature, [prisons] are unable to care for an old and ailing population…For this reason vulnerable inmates, especially the elderly, should be released to home confnement forthwith. Anything less is profoundly inhumane and represents a colossal miscarriage of justice” ( Jeferson-Bullock, 2020, p. 287; see Ahlin et al., Chapter 13). Not all the news was dire, however; some smaller correctional systems heeded these warnings by releasing vulnerable elderly prisoners to house arrest and reporting no COVID-19 transmission in their facilities (Strangor, 2021). Mental Health Conditions. Several studies have been performed on the impact of incarceration on an individual’s mental health. Studies highlight the fact that elderly persons have high rates of mental health problems while incarcerated (Stoliker & Galli, 2019). While 1%–2% of the elderly in free communities have been diagnosed with major or severe depression, this number increases by 50 times among incarcerated male individuals indicating that the incarceration experience contributes to mental health concerns among this population (Koenig et al., 1995). Elderly individuals incarcerated for the frst time, for instance, are likely to present anxious and depressive feelings upon entering the correctional system (Crawley & Sparks, 2006). Anxiety is also high among elderly persons who have been incarcerated for a considerably long period of time. This latter group is anxious to return to the community from which they have lost contact. Among elderly individuals who are incarcerated, anxiety is closely related to feelings of prisonization and institutionalization (Aday, 2003; Crawley & Sparks, 2006). Healthcare Issues. A more accurate picture of healthcare is obtained through understanding the multifaceted relationships between fnancial assets, medical resources, and punishment in the correctional system. In this section, our attentions turn away from persons who are incarcerated themselves and shift toward issues such as budget allocations for health professionals, architectural changes within the prison complex, and the design of new and more efcient medical wings. According to a study conducted and published by the American Civil Liberties Union (ACLU) (2012), the costs associated with medical care of the incarcerated comprise approximately 12% of state prison operating budgets. The same study estimates that older inmates cost taxpayers roughly twice the amount of the average incarcerated individual (ACLU, 2012). Considering the aforementioned scenario in which older incarcerated individuals require specialized staf to deal with serious health conditions and severe mobility issues, it is estimated that each elderly prisoner requires an investment three times higher than that of the average incarcerated individual (ACLU, 2012). Such high costs do not necessarily translate into access to high-level medical facilities, equipment, or staf (Nolasco & Vaughn, 2020). While correctional institutions adapt their facilities based on legal international rights of prisoners, they are also constrained by the costs of such modifcations. The Standard Minimum Rules for the Treatment of Prisoners (SMRTP), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Ofenders, which was held in Geneva in 1955, promulgated rules and principles on inmate treatment to 244

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be applied to all countries that subscribed to SMRTP. Pertaining to the incarceration of older individuals, the SMRTP recommends the implementation of geriatric-specifc services, as well as separate housing for the purposes of medical treatment: “prisoners shall be kept in separate institutions or parts of institutions taking into account their sex, age, criminal record, the legal reason for the detention and the necessities of their treatment” (United Nations, 1977, p. 2). In reality, however, the disproportionate amount of money required to take care of elderly individuals represents both the inadequacies of a correctional system designed to house those who are young and the sloppiness of a criminal justice system that resorts to mass incarceration and longer sentences as a form of punishment without properly anticipating the consequences of such policies. The Legal Right to Healthcare: According to Wool (2007), “prisoners (and other involuntarily institutionalized people) are the only persons in [the U.S.] with a federal constitutional right to medical care” (p. 28). The frst time the U.S. Supreme Court acknowledged the right of prison healthcare was in Estelle v. Gamble (1976). Gamble was incarcerated in the Texas Department of Corrections where he sufered from a severe back injury after a 600-lbs bale of cotton fell on him while on a work assignment. Following the incident, Gamble was sent to the hospital on two separate occasions and received painkillers. Although the prison medical staf cleared Gamble for work, he did not show up for his assignment, claiming to be in a lot of pain. Due to his refusal to work, Gamble was placed in administrative segregation for two months. In the following months, he experienced severe chest pain and high blood pressure and was seen by healthcare staf 17 times. Four months following the accident, Gamble sued, saying his Eighth and Fourteenth Amendment rights had been violated. In an 8-1 decision, the U.S. Supreme Court stated that Gamble’s case did not constitute medical mistreatment under the Constitution, although the Court recognized that his doctors had failed to provide him with the appropriate care and treatment available to individuals in free society. The Court, however, set an important precedent: “In order to state a cognizable claim, a prisoner must allege acts or omissions sufciently harmful to evidence deliberate indiference to serious medical needs. It is only such indiference that can ofend ‘evolving standards of decency’ in violation of the Eighth Amendment” (p. 106).

Access to Non-Health-Related Treatment and Services An issue faced by imprisoned elderly individuals is that of housing units. Unfortunately, there has been no consensus among scholars, inmates, nor staf on whether the elderly would beneft from segregated or consolidated housing facilities. Marquart et al. (2000, p. 91), however, suggested unanimous staf support for geriatric facilities: “most stated the facility aforded necessary protection and easier mobility for the men. Several staf members also noted that older prisoners tended to be victimized by younger inmates and were afraid or unwilling to report the abuse.” In the same study, individuals housed in segregated and consolidated facilities were interviewed and the majority of respondents showed support for segregation based on health issues: “inmates in both groups favored geriatric facilities and voiced a desire to live there should their health continue to decline” (p. 93). In general, proponents of segregated housing for the elderly highlight the importance of specialized care, decrease in victimization, and the development of appropriate age-based social peer groups (Rikard & Rosenberg, 2007; Rikard & Thompson, 2011). Proponents of the consolidated model, on the other hand, argue that the isolation of the elderly could increase the likelihood of depression and boredom. In addition, if housed in separate facilities, the elderly would have little access to rehabilitation and reentry services and opportunities provided to the general inmate population (Rikard & Thompson, 2011). An alternative solution would be housing elderly individuals in segregated facilities which are adapted to their physical needs, stafed appropriately, and provided communal areas in which to engage with younger inmates. It 245

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is obviously important, however, that the elderly do not have contact with high-risk and violent incarcerated youth. The group of elderly persons who were incarcerated at a young age and grew old in prison probably lack basic skills needed for an independent life in the community. It is highly likely that these elderly inmates have never held a stable job during their decades of incarceration, nor were they fnancially independent or able to maintain adequate housing while they lived in the community. Although there were opportunities for participation in educational and occupational classes while in prison, the elderly may not have had the opportunity to transfer such skills to the community setting. It is desirable, then, that these individuals receive lessons on basic life skills before release. Lessons should be divided by type, and should primarily cover the skills of cooking, essential fnance, medication management, and basic usage of technology. It is of the utmost importance that these individuals have the opportunity of participating in real-life scenario training to be equipped with the skills that can translate to the outside world. For every skill taught, a few hours of practical training should be provided. Since such skills are considered necessary to live in society, staf would not need to be trained to teach such classes. This proposed intervention, therefore, would have no additional costs to the correctional system. A diferent, and yet particularly important, challenge faced by the incarcerated elderly is the lack of rehabilitation or reentry services designed to attend to their specifc needs. Since elderly individuals comprise a small part of the prison population, interventions and recreational activities do not usually target their specifc needs. Two pioneer programs, however, focus on providing older individuals with sufcient skills for successful reentry into society. The Project for Old Prisoners (POPS) was the frst project designed to specifcally focus on elderly ofenders. POPS was developed to identify older inmates with low-risk levels (Higgins & Severson, 2009). Through a partnership with law schools, POPS functions with the help of volunteering law students who implement a strict screening process to make recommendations for early release while keeping in mind society’s safety. Although POPS promises to help local governments by providing relief from overcrowding and medical expenditures (Yates & Gillespie, 2000), its impact remains limited considering the low number of states that have implemented the program. Similarly, the Senior Ex-Ofender Program in San Francisco focuses its eforts on targeting those who are 50 years of age or older and who are either about to be released from incarceration or who have been dwelling in the community for a certain period but are still needing assistance (Bayview Senior Services, 2018). The primary goal of this intervention is to aid former incarcerated elderly individuals with reentry through the ofer of wraparound services varying from mental and physical health counseling to addiction recovery programs.

Risk, Needs, and Responsivity Model Given the above-described challenges associated with the incarceration experience of elderly offenders, we now turn to a discussion of targeted interventions. An extensive body of research has demonstrated the efectiveness of the principles of risk, need, and responsivity in the rehabilitation of individuals with criminal backgrounds (Andrews & Bonta, 2006; Lipsey & Cullen, 2007, Smith et al., 2009). The “risk, needs, and responsivity” (RNR) framework was developed to understand individualized reentry needs of incarcerated populations. The principle of risk is directly related to risk factors more likely to increase one’s chance of returning to a life of crime after incarceration. According to Andrews and Bonta (2006), intensive intervention programs should primarily target moderate- to high-risk ofenders. Low-risk individuals would perform poorly in intensive intervention due to the fact they often have prosocial attributes that are challenged by the existing programs; the premature introduction to intensive correctional programming, then, would introduce these ofenders to antisocial role models. 246

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The needs principle posits that well-designed interventions should solely target criminogenic needs. These needs are individual dynamic factors which are statistically correlated to one’s chance of reofending. Andrews and Bonta (2006) highlight the existence of eight specifc areas highly associated with criminal behavior that can be modifed through proper intervention: antisocial personality, attitudes, and associates; substance abuse; dysfunctional family; employment and education instability; and, fnally, lack of structured and prosocial leisure. Criminogenic needs, therefore, have a high infuence on behavioral change and recidivism rates. Lastly, the responsivity principle asserts that efective programs should be attentive to the potential barriers that each person could face while in treatment. Any barrier that could interfere with an ofender’s chance of success within the setting of the program should be addressed by the staf. Staf should be attentive to both internal (i.e., gender, age, cognitive ability) and external (i.e., lack of transportation, need for childcare) factors that hinder program participation and content assimilation. The responsivity principle additionally states that cognitive-behavioral therapies are most efective in dealing with diferent individuals. The RNR framework emphasizes the importance of individualized treatment. Upon entering the correctional system, individuals possess a specifc set of behavioral, cognitive, and social patterns that have the potential to afect how they perceive and accept treatment. Elderly persons who were incarcerated early in life, for instance, might not have completed basic education and could be illiterate. Rehabilitative programming that relies on written communication between counselors and incarcerated individuals, then, will not be efective if illiteracy is not addressed. Of particular importance to the elderly population is that age itself can be a barrier to treatment. Physical and cognitive deteriorations can prevent the elderly from fully comprehending or fully participating in interventions and activities that are not designed to accommodate their specifc needs (see Dodson & Rufn, Chapter 6). Furthermore, the responsivity principle highlights the relationship between the use of cognitive-behavioral treatment and behavioral changes across all groups of individuals, including the elderly. Programming involving elderly incarcerated populations needs to take this into account.

Applying the Risk, Needs, and Responsivity Model to Elderly Incarcerated Populations The risk, needs, and responsivity framework ultimately highlights that elderly incarcerated populations would beneft from release from prison. With respect to the risk principle, evidence shows that individuals tend to age out of crime as they grow older (Piquero et al., 2003), suggesting that older people pose a less serious threat than their younger counterparts. BJS, for example, measured the likelihood of recidivism among prisoners of all ages during a period of nine years. Results demonstrated that during the frst year after release, 52% of individuals under the age of 24 who were previously incarcerated had been rearrested, while the re-arrest for those above age 40 was 38% (Alper & Durose, 2018). Although the study revealed that rearrests tended to decrease with the passage of time regardless of individual age, it showed that older individuals recidivate at a lower level than their younger counterparts. In terms of ofending patterns across the life course, Augustyn and colleagues (2020) drew from a sample of 4,793 incarcerated individuals to test if increased age was associated with decreased misconduct. While previous research on institutional rule breaking has almost exclusively focused on gender and race and provided mixed and inconclusive results (Berg & DeLisi, 2006; Celinska & Sung, 2014; Cunningham et al., 2011; Kuanliang & Sorensen, 2008; Reidy & Sorensen, 2018; Tewksbury et al., 2014; Worrall & Morris, 2011), Augustyn et al. (2020) found that age was most closely related to decrease in rates of misconduct. The authors reported that misconduct started to decline at age 40. While 40-year-old individuals are not considered elderly in the community, as 247

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noted earlier, individuals in prison are often characterized as elderly much earlier due to the harsh conditions of confnement (Maschi et al., 2012). Augustyn and colleagues (2020) further reported that age, marital status, and fatherhood were related to prison misconduct. Moreover, individuals with stronger ties to loved ones and their communities were less likely to jeopardize visitation and communication privileges by engaging in prison misconduct. The needs principle requires that programs or interventions exclusively focus on criminogenic needs that may impact one’s ability to successfully reenter the community. Unfortunately, it has been documented that the elderly population fails to receive appropriate treatment opportunities due to improper needs assessment (Maschi et al., 2012). Although the criminogenic needs of elderly people are similar to younger incarcerated individuals, they have diferent levels of importance. Elderly persons who began their incarceration at a young age, for instance, manifest a high need for both educational and work-related opportunities since many did not have the opportunity or desire to be educated or work prior to their incarceration. The combination of lack of educational and vocational opportunities and long prison sentences creates systemic fnancial dependency, which is highly predictive of future ofending (Snyder et al., 2009). Additionally, family ties among elderly individuals in prison are likely to have disappeared over the years due to family not being able to aford long-distance traveling to the prison or not wanting to be subject to humiliating visiting procedures (Snyder et al., 2009). As such, this group “poses a problem for release as their ties to family and community are often tenuous or severed” (Snyder et al., 2009, p. 122). Interestingly, the lack of prosocial peers and activities impacts all incarcerated elderly equally. Most elderly in prison tend to isolate themselves to avoid victimization by younger inmates; consequently, they tend to lack prosocial peers inside and outside the prison environment (Snyder et al., 2009). Finally, the responsivity principle emphasizes the need to recognize barriers to treatment and reentry for the incarcerated elderly. As mentioned, elderly prisoners lack the support of families or positive peer role models, meaning they possess limited community ties outside of the institution. Two specifc barriers potentially reduce an elderly person’s chances of being successful in community-based programs: (1) institutional dependence and (2) lack of basic life skills. Lengthy sentences create a sense of dependency to prisons rules and constraints (Cohen & Whetzel, 2014). Prisonization causes non-intentional and intentional recidivism: while some will fail to adjust to community life, some will intentionally commit new ofenses to be re-incarcerated (Snyder et al., 2009). Similarly, longer prison sentences lead to the deprivation of necessary life skills for community living. In other words, “older adults many have acquired very few independent living skills such as cooking, shopping, and balancing a checkbook and would beneft from ‘community-placement orientation’ before release” (Williams & Abraldes, 2007, p. 68).

Reentry of Elderly Incarcerated Populations Challenges with Reentry Few studies have examined the challenges associated with reentry for elderly incarcerated populations. The dearth of research is surprising since reentry takes on a diferent meaning for the elderly who experience a range of health and social problems in prison (Murolo, 2020; Stojkovic, 2007). Yet, there is a visible lack of research focusing on elderly populations who are reentering society. Clarke’s study (2017) is one of the few to explicitly address the challenges of reentry for elderly incarcerated individuals, noting that reentry research has almost exclusively focused on younger individuals. Clarke (2017) argued for age-specifc resources to better aid the elderly reentering society. The study reported several overarching themes related to barriers to reentry from interviews with 26 respondents, including housing, employment, family support, physical health, mental health, substance use, and coping with the consequences of institutionalization. 248

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Adequate housing for elderly returning residents has been previously noted by others (see Stojkovic, 2007). The respondents in Clarke’s study (2017) pointed to difculties in searching for a permanent and stable residence. While some respondents were able to fnd a live-in program, treatment facility, halfway house, or shelter, those resources were temporary. Respondents who did not immediately return home after prison release faced two housing difculties: once after prison release and again after fnishing treatment or their stay at a halfway house. At least two respondents in Clarke’s (2017) sample mentioned being homeless, indicating a need for future research to focus on homelessness and elderly release. Indeed, research conducted by the Prison Policy Initiative shows that the highest homelessness rate among the reentering population is those over age 45 (Couloute, 2018). An additional barrier to locating appropriate housing is the lack of familial support, especially for elderly populations. Familial relationships have withered for those who were incarcerated at a young age; indeed, familial relationships can be strained for those institutionalized for decades (ACLU, 2012; Greenberg & Rosenheck, 2008; Stojkovic, 2007). Securing employment is another key theme reported in previous reentry studies (Clarke, 2017; Western, 2018). Clarke’s respondents reported high rates of incomplete education (high school dropouts) and less than half of them had access to educational programs while incarcerated (Clarke, 2017). While vocational training is widely available, educational opportunities to obtain a GED, or a college degree are feeting. Due to their age, some of the respondents in Clarke’s study (2017) mentioned they were unable to join the workforce and reported being retired. The job-seeking group, however, reported many barriers to securing employment. Old age, technological illiteracy, and lack of assistance were the three main barriers cited by elderly respondents. Additionally, as Stojkovic (2007) notes, the elderly population in prison has been “the most removed from free society” and therefore, the “ability to adjust to changing norms and expectations of a dynamic society is difcult” (p. 109). Some states ofer geriatric-specifc programming to help elderly prisoners reenter society. The Senior Ex-Ofender Program (SEOP) based in San Francisco, CA, was the frst reentry program in the country to focus on the elderly population. The SEOP targets individuals 50 years and older and provides them with “care, guidance, and services” (Bayview Senior Services, 2018). Similarly, the “True Grit Program,” run by the Northern Correctional Center in Nevada along with community partners, provides a range of therapeutic options for elderly incarcerated individuals that include a combination of activities focusing on physical, mental, and spiritual health (Murolo, 2020). Little research has examined the efcacy of such targeted programming.

Reentry without Intensive Carceral Supervision Budgetary constraints have created a demand for policies that are cost-efective, pragmatic, and humanitarian. Three policy alternatives to intensive carceral supervision have been proposed: geriatric parole, compassionate release, and medical parole (Pro & Marzell, 2017). Maschi et al. (2016) found that a combination of geriatric release, compassionate release, and medical parole policies have been enacted in 47 jurisdictions, including 45 states, Washington, DC, and the Federal Bureau of Prisons. Their application and eligibility requirements, however, vary tremendously. In total, six general categories of geriatric release laws have been identifed that take into consideration the person’s “(1) physical/mental health status, (2) age, (3) nature of crime, (4) pathway to release decision, (5) postrelease support, and (6) stage of review” (Maschi et al., 2016, p. 165). Geriatric release (or parole) laws have been enacted in diferent states with the purpose of giving elderly incarcerated populations an opportunity to be reintegrated back into society if, and only if, they pose a minimum risk of recidivating. In Virginia, for example, any person convicted of a felony can petition the parole board for release if they are 65 years or older and have served at least fve years, or if they have reached the age of 60 and have served ten years in prison (VA CODE ANN. § 249

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53.1–40.01 [1999]). To be granted geriatric parole, an individual must have served a specifc percentage of their sentence; medical conditions are not taken into consideration (Pro & Marzell, 2017). In New York, for instance, the “Elder Parole” bill allows anyone aged 55 years or older and who has spent more than 15 years in prison to apply for geriatric release (DiLorenzo, 2021). Compassionate release is distinct from geriatric release because it caters to elderly individuals in the terminal stage of a disease, requiring hospice care for less than six months (Pro & Marzell, 2017). Compassionate release policies became popular due to the dual objectives of keeping costs low and treating the elderly humanely (Ethridge & White, 2015). In other words, some have argued that it is both legally and morally justifable to release incarcerated individuals with life-limiting illnesses to ofset the fnancial costs of keeping them in prison (Williams et al., 2011); however, incarcerated individuals sentenced for violent ofenses can be excluded from compassionate release ( Johnson, 2021; Maschi et al., 2016). In 2019, for instance, Louisiana passed new legislation on compassionate release by way of “medical furlough” for individuals who are terminally ill or permanently disabled. Release would be monitored by a probation or parole ofcer (O’Donoghue, 2019). A few weeks later Senate Bill 458 (2019) was approved, which excluded individuals from seeking medical furlough if they were incarcerated for frst- or second-degree murder (O’Donoghue, 2019). Medical parole is a third avenue for early release available to chronically ill individuals. Unlike geriatric release policies, medical parole is available to individuals of all ages. In California, very ill individuals based on a review of their medical fle can be paroled before they reach their release dates (CA Penal Code, § 3550(a); 15CCR § 3359.1(b) [2011]); however, individuals sentenced to death or life without the possibility of parole are not eligible for medical parole (CA Penal Code, § 3550(b) [2011]). Some states (e.g., Georgia, New York, Ohio, Oklahoma, Oregon, Louisiana, and Texas) also allow for medical parole to be revoked if a released individual’s health condition substantially improves (Russell, 1994). According to the Prison Policy Initiative (2021), despite legislative and administrative changes to medical parole to include populations afected by COVID-19, most states saw only moderate decreases in their prison populations. Of the three policy alternatives to intensive carceral supervision, most states (with the exceptions of Arizona, Virginia, West Virginia, Iowa, and Illinois) have some type of medical parole. Yet, states rarely use these policies (Silber et al., 2017) and, when they do, seriously ill incarcerated individuals are often denied early release (Hansen, 2013). The process of medical parole is more likely to be initiated if correctional medical staf write a report on the failing health of an inmate. Medical parole considerations focus on day-to-day care needed by the individual, and whether they would beneft from community-based treatment. As noted by Williams and colleagues (2011), states considering the expansion of medical eligibility to include the incarcerated elderly population must involve the expertise of geriatric-specialized physicians to create evidence-based medical criteria for compassionate release or medical parole.

Conclusion Mass incarceration in the United States has produced a signifcant elderly prison population. Even so, there remains a lack of empirical research on the needs and experiences of incarcerated elderly, as well as their reentry experiences. More specifcally, we need more (1) empirical research on the benefts of segregated facilities for elderly ofenders, (2) studies on the correlation between ofense status, age, and homelessness following prison release, (3) qualitative and quantitative analyses of the impact of the correctional environment on elderly individuals’ mental health, (4) evaluations of correctional medical care for the elderly, and (5) preventative health protocols for an aging correctional population, with a specifc focus on the benefts of exercise, an active lifestyle, and early release. 250

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Considering the evidence presented on the impact of institutionalization and aging, incarcerated elderly individuals would beneft from architectural and structural changes in the facilities in which they are housed. Borrowing from the architectural changes made in large urban centers and public ofce buildings, it is necessary to decrease the number of staircases in prison facilities, as well as improve the lighting in communal areas. Furthermore, it is important that foors are not waxed, or otherwise slick, and that older inmates are assigned lower bunks (Aday & Krabill, 2006; Yates & Gillespie, 2000). Age-friendly environments have the potential, therefore, to decrease falls and injuries, as well as improve autonomy and mobility among this population. Correctional staf should be trained on the specifc challenges and conditions of elderly individuals so that more appropriate treatment is provided. In addition, correctional geriatric medical care needs to continue to improve and be more responsive to the specifc healthcare needs of elderly incarcerated individuals. Medical staf should be able to address the chronic and temporary illnesses commonly aficting the elderly, as well as substance abuse problems and mental disorders, such as depression and anxiety. Considering the low-risk high-need status of elderly individuals in prison, policies and practices need to focus on reentry, and reentry policies need to prioritize this population for release. Convict criminologists have called for assisted-focused reentry programming and strategies for community and transitioning (Richards et al., 2011; Zaitov, 2011). In other words, incarcerated individuals should take responsibility for the development of a realistic reentry plan; however, their assigned social workers can use their expertise on the RNR framework, as well as their access to information and resources, to assist in the creation of an individual plan targeting specifc criminogenic needs and barriers to reentry. It should be emphasized once again that the periodic use of actuarial risk assessments centered on the RNR model has the potential to (1) inform intake and screening processes, (2) determine criminogenic needs, (3) highlight any positive or negative changes caused by confnement and programming, and (4) assist with the development of a reentry plan. Use of the RNR model should be paramount in carceral settings to support the elderly individuals who are incarcerated. Furthermore, few policies exist to assist the elderly incarcerated population to secure housing, employment, disabilities services, and substance abuse program opportunities once released. Correctional systems need to develop specifc policies that provide incarcerated elderly with concrete opportunities for rehabilitation and reentry to decrease recidivism, alleviate taxpayers from fnancially supporting a low-risk population, and humanely impact their post-release lives. In sum, most of the elderly population poses no serious risk to other community-dwelling individuals. The elderly has not only aged out of crime, but many are also physically unable to commit the crimes of their youth. There is no need, therefore, for excessive supervision or for the reentering elderly to be placed on long-term probation or parole. Lack of excessive supervision, however, does not exempt the correctional system from providing each returning individual with necessary support and proper resources to succeed in the community. A timely and holistic approach to reentry has the potential of changing lives and providing elderly individuals with the necessary tools to succeed in the community.

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Aging in Prison Harzke, A., Baillargeon, J., Pruitt, S., Pulvino, J., Paar, D., & Kelley, M. (2010). Prevalence of chronic medical conditions among inmates in the Texas prison system. Journal of Urban Health: Bulletin of the New York Academy of Medicine, 87(3), 486–503. Higgins, D., & Severson, M. (2009). Community reentry and older adult ofenders: Redefning social work roles. Journal of Gerontological Social Work, 52(8), 784–802. Jeferson-Bullock, J. (2020). Let my people go: A call for the swift release of elderly federal prisoners in the wake of COVID-19. Federal Sentencing Reporter, 32(5), 286–291. Johnson, C. (2021, May 11). Forgetting and forgotten: Older prisoners seek release but fall through the cracks. National Public Radio. https://www.npr.org/2021/05/11/994273368/forgetting-and-forgotten-olderprisoners-seek-release-but-fall-through-the-crack Kerbs, J., & Jolley, J. (2007). Inmate-on-inmate victimization among older male prisoners. Crime and Delinquency, 53(2), 187–218. Koenig, H. G., Johnson, S., Bellard, J., Denker, M., & Fenlon, R. (1995). Depression and anxiety disorder among older male inmates at a federal correctional facility. Psychiatric Services, 46(1), 399–401. Kuanliang, A., & Sorensen, J. (2008). Predictors of self-reported prison misconduct. Criminal Justice Studies, 21(1), 27–35. Kuhlmann, R., & Ruddell, R. (2005). Elderly jail inmates: Problems, prevalence, and public health. Californian Journal of Health Promotion, 3(1), 49–60. Lindesay, J. (1996). Elderly people and crime. Reviews in Clinical Gerontology, 6(2), 199–204. Lipsey, M., & Cullen, F. (2007). The efectiveness of correctional rehabilitation: A review of systematic reviews. Annual Review of Law and Social Science, 3(1), 297–320. Maruschack, L., & Minton, T. (2020). Correctional populations in the United States, 2017–2018. Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/cpus1718.pdf Marquart, J., Merianos, D., & Doucet, G. (2000). The health-related concerns of older prisoners: Implications for policy. Ageing and Society, 20(1), 79–96. Maschi, T., Leibowitz, G., Rees, J., & Pappacena, L. (2016). Analysis of U.S. compassionate and geriatric release laws: Applying a human rights framework to global prison health. Journal of Human Rights and Social Work, 1(1), 165–174. Maschi, T., Viola, D., & Sun, F. (2012). The high cost of the international aging prisoner crisis: Well-being as the common denominator for action. The Gerontologist, 53(4), 543–554. Murolo, A. S. (2020). Geriatric inmates: Policy and practice. Journal of Correctional Health Care, 26(1), 4–16. Nolasco, C., & Vaughn, M. (2020). Section 1983 civil liability against prison ofcials and dentists for delaying dental care. Criminal Justice Policy Review, 31(5), 721–745. Nowotny, K., Cepeda, A., James-Hawkins, L., & Boardman, J. (2016). Growing old behind bars: Health profles of the older male inmate population in the United States. Journal of Aging Health, 28(6), 935–956. O’Donoghue, J. (2019, April 3). Louisiana changed a law to release more sick, old prisoners. Now, there’s an efort to undo that. NOLA.com. https://www.nola.com/news/politics/article_0aa0822c-a912-594f8c4b-2f bdd0284c3.html Ofce of Inspector General, U.S. Department of Justice. (2015). The impact of an aging inmate population on the Federal Bureau of Prisons. Ofce of Inspector General, U.S. Department of Justice. http://oclc.shsu.edu/ illiad/logon.html Park, K., Blakinger, K., & Lauer, C. (2021, June 30). A half-million people got COVID-19 in prison: Are ofcials ready for the next pandemic? The Marshall Project. https://www.themarshallproject.org/2021/06/30/ a-half-million-people-got-covid-19-in-prison-are-ofcials-ready-for-the-next-pandemic Piquero, A. R., Farrington, D. P., & Blumstein, A. (2003). The criminal career paradigm: Background and recent developments. In M. H. Tonry (Ed.), Crime and justice: A review of research, Vol. 30 (pp. 359–506). University of Chicago Press. Prison Policy Initiative. (2021). The most signifcant criminal justice policy changes from the COVID-19 pandemic. https://www.prisonpolicy.org/virus/virusresponse.html Pro, G., & Marzell, M. (2017). Medical parole and aging prisoners: A qualitative study. Journal of Correctional Health Care, 23(2), 162–172. Reidy, T. J., & Sorensen, J. R. (2018). The infuence of sentence length on the commission of serious and violent prison infractions by female inmates. Criminal Justice & Behavior, 45(9), 1420–1434. Richards, S., Ross, J. I., Newbold, G., Lenza, M., & Jones, R. (2011). Convict criminology prisoner re-entry policy recommendations. In I. Ekunwe & R. Jones (Eds.) Global perspectives on re-entry: Exploring the challenges facing ex-prisoners (pp. 198–222). Tampere (Finland) University Press.

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Beatriz Amalfi Marques et al. Rikard, R., & Thompson, M. (2011). The association between aging inmate housing management models and non-geriatric health services in state correctional institutions. Journal of Aging & Social Policy, 19(4), 39–56. Rikard, R. V., & Rosenberg, E. (2007). Aging inmates: A convergence of trends in the American criminal justice system. Journal of Correctional Health Care, 13(3), 150–162. Russell, M. P. (1994). Too little, too late, too slow: Compassionate release of terminally ill prisoners. Is the cure worse than the disease? Widener Journal of Public Law, 3(1), 799–828. Silber, R., Shames, A., & Reid, K. (2017). Aging out: Using compassionate release to address the growth of aging and infrm prison populations. Vera Institute. https://www.vera.org/downloads/publications/Using-Compassionate-Release-to-Address-the-Growth-of-Aging-and-Inf irm-Prison-Populations%E2%80%94Full-Report.pdf Smith, P., Gendreau P., & Swartz, K. (2009). Validating the principles of efective intervention: A systematic review of the contributions of meta-analysis in the feld of corrections. Journal of Victims and Ofenders, 4(2), 148–169. Snyder, C., Wormer, K., Chada, J., & Jaggers, J. (2009). Older adult inmates: The challenge for social work. Social Work, 54(2), 117–124. Stoliker, B., & Galli, P. (2019). An examination of mental health and psychiatric care among older prisoners in the United States. Victims & Ofenders, 14(4), 480–509. Stojkovic, S. (2007). Elderly prisoners: A growing and forgotten group within correctional systems vulnerable to elder abuse. Journal of Elder Abuse & Neglect, 19(3–4), 97–117. Strangor, C. (2021, August 19). Adams County Adult Correction Complex avoids COVID cases, moves forward with its mission. Correct Care Extra. [Email newsletter]. National Commission on Correctional Health Care. https://gettysburgconnection.org/adams-county-adult-correction-complex-avoids-covidcases-moves-forward-with-its-mission/ Tewksbury, R., Connor, D. P., & Denney, A. S. (2014). Disciplinary infractions behind bars: An exploration of importation and deprivation theories. Criminal Justice Review, 39(2), 201–218. United Nations. (1977). Standard minimum rules for the treatment of prisoners. https://www.unodc.org/pdf/ criminal_ justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf VA CODE ANN. § 53.1–40.01 [1999]. Western, B. (2018). Homeward: Life in the year after prison. Russell Sage Foundation. Widra, E. (2020). Since you asked: How many people aged 55 or older are in prison, by state? Prison Policy Initiative. https://www.prisonpolicy.org/blog/2020/05/11/55plus/ Williams, B., & Abraldes, R. (2007). Growing older: Challenges of prison and reentry for the aging population. In R. Greifnger (Ed.), Public health behind bars: From prison to communities (pp. 56–72). Springer. Williams, B. A., Lindquist, K., Sudore, R. L. Strupp, H. M., Willmott, D. J., & Walter, L. C. (2006). Being old and doing time: Functional impairment and adverse experiences of geriatric female prisoners. Journal of the American Geriatrics Society, 54(4), 702–707. Williams, B. A., Sudore, R. L., Greifnger, R., & Morrison, S. R. (2011). Balancing punishment and compassion for seriously ill prisoners. Annals of Internal Medicine, 155(2), 122–126. Williams, D. (2001, May 12). Aging inmates raise prison costs. The Augusta Chronicle, p. 3. Wool, J. (2007). Litigating for better health care. In R. Greifnger, J. Bick, & J. Goldenson (Eds.), Public health behind bars: From prisons to communities (pp. 25–42). Springer. Worrall, J. L., & Morris, R. G. (2011). Inmate custody levels and prison rule violations. Prison Journal, 91(2), 131–157. Yates, J., & Gillespie, W. (2000). The elderly and prison policy. Journal of Aging & Social Policy, 11(3), 167–175. Zaitov, B. (2011). We’ve come a long way, baby … Or have we? Challenges and opportunities for incarcerated women to overcome reentry. In I. Ekunwe & R. Jones (Eds.), Global perspectives on re-entry: Exploring the challenges facing ex-prisoners (pp. 225–256). Tampere (Finland) University Press.

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13 HOW COVID-19 AMPLIFIED TRAUMA AND MARGINALIZATION AMONG CARCERAL POPULATIONS Using the Pandemic Experience to Rethink Incarceration Eileen M. Ahlin, Annie Bunce and Anna Kotova Introduction Late 2019, the world experienced the beginnings of a pandemic-sized outbreak of a novel coronavirus. It was termed COVID-19 to identify the disease (coronavirus disease: COVID) and the year it was frst discovered (2019: 19). This acute respiratory infectious disease is more contagious than the fu. The virus was frst discovered in China, and it quickly spread throughout the world. Symptoms were variable including high fever, cough, shortness of breath, and, in some cases, they were severe enough to progress to pneumonia or respiratory failure and result in death. As the disease mutated and variants appeared, symptoms evolved. The disease permeated the globe, with exponential increases in daily infection and death totals, while scientists worked to produce a vaccine. COVID-19 is not an isolated disease, and its variants will likely plague the global health infrastructure for years to come. COVID-19 is particularly exacerbated in what are often termed “closed facilities” such as nursing homes and correctional institutions (e.g., detention centers, jails, prisons), where social distancing and hygiene protocols are either lax or less than optimal. COVID-19 transmission rates are higher in these types of facilities than the community and many carceral facilities are among COVID-19 hotspots (ACLU, 2020; Bernstein et al., 2020). As of early June 2021, 398,321 persons incarcerated in US state prisons had tested positive for the virus and more than 2,600 died, with the largest number of cases arising in states with the biggest carceral populations such as California, Texas, and Florida (The Marshall Project, 2021). As of the end of May 2021, 16,865 people in custody in England and Wales1 had tested positive for the virus and 149 died (Ministry of Justice, 2021a). The positive cases and number of fatalities are estimates and the presence of variants makes appraisals of the situation a moving target. Further, the absence of consistent COVID-19 testing may have contributed to an underestimation of the actual number of persons incarcerated who contracted the virus (Blair et al., 2021). Institutional testing and reporting practices may blur the true rate of infection among subpopulations, particularly for members of marginalized communities when individual demographics synonymous with risk (e.g., race, ethnicity, disability) are DOI: 10.4324/9781003245032-14

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absent or poorly captured in institutional records (Guo, 2020; see Dodson & Rufn, Chapter 6). For example, when institutions only gather racial and ethnic data on Black, white, Hispanic, and Other, we lose a great deal of information. “Othering” the race and ethnicity of persons from less populous racial and ethnic groups can further marginalize persons who may rise to the top of the decarceration stratifcation pools used to mitigate risk. COVID-19, in general, brought attention to the treatment of persons who are incarcerated and, specifcally, identifed how the pandemic further exacerbated the trauma of confnement, particularly among marginalized populations. It is well documented that correctional facilities across the world experienced COVID-19 outbreaks and deaths at alarming rates (NPR, 2020a). The pandemic forced prison systems to adapt and rethink their practices, and some countries released – either temporarily or early – some groups of persons experiencing incarceration. In March 2020, Iran furloughed 100,000 incarcerated people (Reuters, 2020), and many were freed in Burkina Faso (a country in West Africa; News24, 2020), among other countries. Between March and April 2020, 69 pregnant women in England and Wales were released on temporary license, a short period of release from prison (Ministry of Justice, 2020a), and the US Bureau of Prisons (BOP) leveraged the Coronavirus, Aid, Relief, and Economic Security (CARES) Act to release persons at greater risk of contracting COVID-19 (see Hummer, 2020). Non-violent individuals received expedited release in many jurisdictions throughout the United States, though experts disparaged the slow pace and small magnitude of such release mechanisms, which failed to produce meaningful results and did not slow the spread of the disease (NPR, 2020b; Prison Policy Initiative, 2021). Release of vulnerable populations including persons who were pregnant, had medical conditions, and the elderly were not prioritized in most of the United States; instead, many jurisdictions focused on type of ofense (e.g., non-violent, non-person), length of sentence remaining, and a solid reentry plan (see Prison Policy Initiative, 2021). Although these emergency release actions, designed to curb the spread of COVID-19 within prisons, are welcome, in this chapter we argue that the pandemic ought to force penal systems to tackle larger, more long-term questions about the purposes of prisons and the types of people who should be held within them. This dialogue pertains to all carceral institutions. For parsimony, however, we often use prisons to refer to carceral institutions; though, we are acutely aware of the diferences in various institutional settings such as prisons, jails, and detention centers within and between countries. The cause for refection about who is worthy of release and whose debt to society is perhaps better spent in the community, in the name of protecting others from the virus, may be a tangential question to the one we are posing within this chapter. However, it ofers an opportunity to refect on the true purpose and goal of incarceration. The need to take acute preventative and palliative measures due to COVID-19 means that penal systems – especially expansive and punitive ones like the United States and England and Wales – can in fact adapt and change. The COVID-19 pandemic provides an impetus for practitioners and scholars to tackle difcult questions about their punitive and austere systems. These issues will be unpacked in this chapter, which focuses on the United States and England and Wales – traditionally castigating countries, to demonstrate how COVID-19 may operate to shift the discourse within these countries toward one focused on rehabilitation and social justice. This chapter could address many diferent marginalized populations afected by the carceral system, including but not limited to persons of color (see Butler et al., Chapter 4), members of the LGBTQ community (see Cain & Ellison, Chapter 10; Kanewske et al., Chapter 8; Lanterman et al., Chapter 9), people from Indigenous ancestry (see Lamphere & Hassett, Chapter 11), and immigrants (see Douds & Troeger, Chapter 2). Those discussions are important, and perhaps better suited for a monograph-length platform. We purposely choose to avoid a deep dive into each possible permutation or intersectionality and instead focus on a broader spectrum of issues that speak across multiple marginalized groups. We choose to center the argument on the purpose of prisons, 256

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which as currently structured disparately ensnare persons from marginalized communities. We use examples of prevailing practices and accommodations made during the COVID-19 pandemic that spotlight how criminal justice is already rethinking incarceration. These descriptions lay the foundational argument for rethinking incarceration in the future.

Consequences of the Pandemic for the Prison Population The carceral experience itself is composed of a series of degradation ceremonies which strip persons who are incarcerated of their autonomy, privacy, and liberty. While some may argue that such consequences of imprisonment are part of the punishment process for those found guilty of violating the law, the pandemic and its mitigation eforts contributed additional imprisonment strains above and beyond what should be deemed appropriate punishment. The various repercussions of the pandemic contributed to the exacerbation of trauma and inequalities already experienced among the incarcerated, individually as people and through social and structural marginalization (see Nowonty & Piquero, 2020; Solis et al., 2020). The added trauma endured by persons incarcerated during the pandemic negatively contributes to the further marginalization of this segment of the population in two ways. First, since March 2020, carceral populations have endured cruel and unusual conditions that many would not have experienced without the pandemic. In an efort to stem the spread of COVID-19, correctional facilities ceased or severely limited visitation, promoted lockdowns by keeping people in their cells for most of the day, and curtailed activities where social distancing could not be maintained (e.g., group therapy, vocational training) (Bandara et al., 2020; Hummer, 2020; Montenegro, 2021). Second, national responses to the COVID-19 vaccine rollout were necessarily stratifed with the most vulnerable persons frst in line to be vaccinated. Despite the congregate nature of prisons, akin to nursing homes and schools – spaces that were among the frst in line to receive vaccines – the vaccination of persons in correctional settings and detention centers was not prioritized. In England, for example, only one-third of persons experiencing incarceration had been vaccinated as of June 2021, compared to 69% of the total adult population (InsideTime, 2021). Analogously, even though many persons incarcerated have greater health risks than the general population, prisoners were not deemed a priority group. In essence, the “master status,” the primary social position of incarcerated persons as inmates (see Gofman, 1963), overrode any concerns for broader inmate (or even public) health. These consequences of the pandemic thereby exacerbated existing trauma and inequalities experienced by persons incarcerated.

Social and Health Inequalities First, we consider social and health inequalities within the prison population. This seems appropriate as the COVID-19 pandemic is a health issue that afects social interactions. The prevalence of health, economic, and social problems among people who come into contact with the criminal justice system in punitive countries, such as the United States and England and Wales, is high. This phenomenon has existed for decades, without a global pandemic. The signifcant health problems faced by prisoners – including poor physical and mental health and substance misuse – are often complicated and amplifed by social issues, including unemployment, indebtedness, and homelessness (Anders et al., 2017). A study of the prison population in England and Wales found that people in prison often experienced multiple co-existent forms of social exclusion, including poverty, lack of schooling, numerous mental health problems, addiction, and others (Social Exclusion Unit, 2002). As one example, physical and dental health concerns are overrepresented among carceral populations due to historical lack of care, minimal carceral care, and co-morbidities (Douds et al., 2020; Nowotny, 2017; Wilper et al., 2009). Persons likely to become incarcerated 257

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are often already at the margins of society, and the carceral experience itself can increase social exclusion. The detrimental efects of medical problems are made worse among marginalized populations who are incarcerated, including sexual and racial minorities (Ba ćak et al., 2018; Nowotny & Kuptsevych-Timmer, 2018). Thus, prisons are places that hold people subject to numerous forms of social injustices, and the COVID-19 pandemic has led to a reduction in access to education and healthcare, which has only further compounded the social injustices experienced by persons incarcerated. Denying persons adequate access to social and health services is a form of social injustice. The concept of social justice is broad and complex but is generally equated with the notion of equality or equal opportunity in society (Robinson, 2010). This goes beyond mere redistribution of income and encompasses opportunity and freedom from domination by a powerful other, such as the government. Can we truly say we have a criminal justice system when it is marred by such a plethora of social injustices? The criminal justice system has long strayed from its original intent of justice, though as Lacey (2013) argued, we need to move away from a narrow, just-deserts-focused conception of justice to one that includes social justice. The pandemic ofers a unique opportunity to do just that in the criminal justice system broadly, while in this chapter we focus on social justice within institutional corrections. Social justice was not likely the motivating factor for much of the practical response to COVID-19, though efort was dedicated to identifying the most vulnerable inmates (e.g., the elderly, disabled) for early or compassionate release (see Piel, 2020). Many facilities, however, fell short of substantially reducing facility risk and protecting the population at large. Between March and May 2020, for example, the BOP received more than 10,000 requests for compassionate release, yet they granted only 156 petitions and instead emphasized home confnement over outright release and recusal from supervision (see Scott-Hayward, 2021). In England and Wales, the Prison Governors Association and Prison Ofcers Association said that 10,000–15,000 prisoners must be released to reduce overcrowding enough to keep those in custody safe from the virus (Sky News, 2020). England and Wales committed to releasing up to 4,000 prisoners under COVID-19 temporary release schemes (BBC News, 2020a). As of September 2020, however, just 316 prisoners had been released under the scheme (Ministry of Justice, 2020b). Social justice cannot be achieved if the desired outcome drives the means by which their achievement is sought. Rather, a social justice approach would consider the whole environment and all the moving parts to appropriately facilitate protective measures. A holistic approach is not evident. As but one example, prison staf refusing to vaccinate, and institutions refusing to mandate staf vaccination, places persons incarcerated at risk of infections from disease variants (see Tyagi & Manson, 2021). Failing to require vaccinations among prison staf precludes persons experiencing incarceration the opportunity to protect themselves from the virus and does not address the problem of disease transmission.

Infection Control in a Prison Setting Eforts at institutional correctional reform in light of COVID-19 represent an opportunity to address entrenched health inequalities, which are part of the cycle of disadvantage that people in prison face. Nobody is sentenced to worsened health, yet the reality is that overcrowding and under-resourcing means this is too often the outcome ( Justice Committee, 2019). The conditions of confnement frequently lead to ailments and inadequate healthcare which operates as an added punishment above and beyond the actual punishment, the removal of someone’s liberty. Outrage about ethical violations surrounding human research subjects violations brings attention to injustices taking place in carceral settings; particularly those that infringe on the ethical treatment of marginalized populations (see Hornblum, 2007). Just as a sentence to confnement does not equate to permission allowing government actors to endorse unwanted medical tests 258

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or coercive research studies among persons incarcerated, incarceration does not give the government license to overlook their duty to provide adequate preventative and palliative medical care. A global pandemic, and the need to act for the beneft of the whole, therefore elevated the narrative to interrogate the extent to which people with actual or anticipated poor health ought to be incarcerated, and for how long. Provision of healthcare within prisons can be poor, with often patchy long-term health support and delays in booking and attending medical appointments (Penal Reform International, 2020). As noted above, persons who are incarcerated generally have poorer health, present with chronic conditions, and often receive inadequate healthcare compared to the general population (Hurst et al., 2019). Persons in the criminal justice system are less likely to have healthcare prior to their incarceration and the conditions of confnement can exacerbate existing conditions and present new health concerns (see Fazel & Baillargeon, 2011). It ought to be recognized that any closed facility, such as a prison or jail, where the movement of people is limited and many are confned to enclosed spaces, presents an ideal condition for the rapid spread of infectious disease. COVID-19 is by no means the frst instance of disease incubation in prison. In fact, history demonstrates that the prison experience is associated with widespread airborne and bloodborne infectious diseases (e.g., HIV, hepatitis, tuberculosis). Stanley (1919), for example, documented the proliferation of infections in the California State Prison at San Quentin during the 1918 infuenza pandemic. Dolan and colleagues (2016) estimate that among the 10.2 million people incarcerated throughout the world, 2.8% have tuberculosis, 3.8% have HIV, 4.8% have Hepatitis B, and 15.1% have Hepatitis C. The intersection of poor health and physical closeness presented a perfect storm scenario for the spread of an airborne infectious disease such as COVID-19. Bloodborne pathogens can be prevented by unprotected sexual encounters or shared equipment like razors, toothbrushes, needles, or blades used for tattooing or scarifcation. Airborne diseases are harder to manage in controlled settings as droplets permeate shared airspace and opportunities for social distancing may be limited. Carceral adaptations to address COVID-19 risk were wide and varied (see Pettus-Davis et  al., 2021). Our understanding of COVID-19 has not yet informed precautionary measures beyond standard best practices of hygiene, such as frequent and vigorous handwashing, reducing face-touching, and sneezing into one’s elbow. The prison environment often lacks sufcient access to soap, hand sanitizers are verboten because they contain alcohol, and the close contact experienced in carceral settings is the antithesis of newer infectious disease prevention practices like social distancing due to overcrowding and structural design (Coker, 2020; Kajstura & Landon, 2020). Previously forbidden due to security concerns, incarcerated persons may be required to wear masks in common areas with little concern for masking in the close confnement conditions of cells (Pesto, 2020). This is problematic because, for example, the Chief Inspector of Prisons for England and Wales’ latest annual report stated that many prisoners were forced to endure extended periods of time with two people locked in cells designed for one, with beds pushed up against the toilet bowl (HM Chief Inspector of Prisons, 2021). We may therefore look to countries like Norway, where people in prison have individual accommodation and access to personal en-suite bathrooms (The Guardian, 2012). Such accommodation would undoubtedly facilitate social distancing and enable those living and working in prisons to maintain necessary sanitation standards more easily. Learning from these countries can provide an excellent blueprint for prison architecture in the future and help prevent the rapid spread of other infectious diseases going forward. While much information on the COVID-19 mitigation processes adopted by facilities dominates the extant literature, there have been few insights about COVID-19 protections from people housed in correctional facilities. One exception comes from a US study of 31 men in a highsecurity prison conducted during the early months of the pandemic, which revealed that inmates 259

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believed prisons were taking seriously the risk of infection (Pyrooz et al., 2020). Findings also acknowledged that efective infectious disease treatment would be stymied by the existing prison structures (Pyrooz et al., 2020). Not surprisingly, persons released from prison during the pandemic felt safer from the virus in the community (Pettus-Davis et al., 2021). In England and Wales, a thematic review by HM Inspectorate of Prisons (2021) found that prisoners believed the initial lockdown in March 2020, which saw them locked in their cells for over 22 hours a day, was necessary to keep people safe from the virus. When this was still the case many months after the restrictions were introduced, however, they began to question the legitimacy and fairness of the regime. The report found that the most disturbing efect of the continued restrictions in prisons in England and Wales was the damage to prisoners’ emotional, psychological, and physical well-being, which forced some to adopt unhealthy coping strategies of self-harm and drugs (HM Inspectorate of Prisons, 2021). Independent research surveying prisoners across 12 prisons in the England and Wales found that over half of all respondents reported their mental health deteriorated since the start of the pandemic, due to increased time spent in cells, boredom, anxiety about the virus, and wider concerns around physical healthcare (Gipson & Wainwright, 2021; Wainwright & Gipson, 2021). The focus of this chapter is on the ethical treatment of persons who are incarcerated. Though often to make a point, it is necessary to approach the issue from another vantage point. For example, attempts at correctional reform have seen a resurgence in the United States, in response to the US Supreme Court ruling, Brown v. Plata, that overcrowded facilities led to cruel and unusual conditions due to California’s prison system’s inability to provide adequate healthcare (Steiner & Toto, 2017). Rather than taking shape because of altruistic foundational beliefs for more ethical treatment of individuals, reform began operating due to legal rulings. In the continued absence of any genuine political appetite for it, social justice for persons incarcerated, and the reformulation of who should be in prison, may need to operate in a similar manner. Take for example the fact that COVID-19 is an infectious disease that is highly transmittable. While traditionally closed facilities may experience limited movement of their residents, they are hardly completely closed. The term closed facilities implies that nothing permeates a barrier; hard or soft, real or imagined. This is not the case in many traditionally closed facilities, including prisons. Staf and visitors routinely enter these spaces for a period of time and return to the community and their homes at the end of their shift or stay. During COVID-19, this porous nature of such closed facilities amplifed the contagion of the infectious disease and concentrated pockets of illness in correctional facilities and adjacent communities. Lopez and colleagues (2021) describe this phenomenon as “spillover infections” where those who are able to leave the facility (e.g., correctional ofcers) spread infection to the community or other detainees during facility transfers. Nowotny and colleagues (2021) estimate that the risk of correctional workers contracting COVID-19 was substantially higher than among the general community population. While rates of infection are not available and may be nebulous if they were due to factors identifed earlier, as of June 2021, 113,607 staf working in US state prisons contracted the virus and 207 died (The Marshall Project, 2021). Instances of COVID-19 in Cook County Jail (located in Chicago, Illinois, US) were associated with 15.9% of COVID-19 cases in the city of Chicago and 15.7% of cases in the State of Illinois, reiterating the idea that prison health is public health and carceral facilities are porous rather than closed (Reinhart & Chen, 2021). The Prison Policy Initiative estimates that half a million COVID-19 infections in the community can be traced to correctional institutions (Hooks & Sawyer, 2020). Framing prison reform as a public health issue is one side of the proverbial coin to approach the goal of social justice. The conversation on rethinking incarceration must include points relevant to the other side to bridge the gap between those who strive for social justice and those who do not. Prison health as public health is one such avenue. 260

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Access to Information and Information Technology (IT) Pre-COVID, recommendations regarding prisons’ preparedness for a pandemic have included clear and thoroughly prepared communication to prison staf, people in prison, and society (v’ant Hof et al., 2009). This should consist of information regarding what each of these groups can expect and should be honest about the issues faced and decisions made, while simultaneously minimizing panic and social unrest within the closed institution. Disadvantaged populations with limited access to health services, even under normal circumstances, are excessively vulnerable during times of crisis. Additionally, misinformation and miscommunication disproportionally affect individuals with limited access to information channels (Ahmed et al., 2020). With increased time spent in cells and social and legal visits suspended in some jurisdictions, access to the internet (e.g., email) and telephones to maintain contact with family should be made ubiquitous in prisons. Due to prisons no longer admitting any visitors, some people in prison in England and Wales who do not have access to in-cell telephones were being supplied with limited-access mobile phones to enable them to stay in touch with their families – something that would have been unheard of pre-pandemic (BBC News, 2020b). However, anecdotal evidence from families of people imprisoned suggests these mobile phones were not actually handed out consistently. Free monthly video calls introduced some months into the restrictions were greatly appreciated by persons experiencing incarceration; however, one half hour call per month was found to be insufcient for some people, and prisoners reported frequent technical problems and difculty registering family members for the service (HM Inspectorate of Prisons, 2021). Increased use of video-calling with children was an adaptation used in many US facilities as well (Pettus-Davis et al., 2021). This raises the broader question of prisoners’ access to information and IT. England and Wales, for example, have been traditionally reluctant to introduce IT, from internet access to videocalling technology, into the prison system. However, the COVID crisis has prompted a rapid pilot test of technology usage, as announced by the Ministry of Justice (2020c). As noted earlier, emergency mobile phones have also been handed out to those who do not have access to in-cell telephony. This shows that it is possible to introduce such technology into the system and begs the question of why this was not done before (see Lanterman et al., Chapter 9). It also should prompt questions about long-term technological change, such as allowing everyone in prison appropriate access to online educational and rehabilitative resources. Some prisons in England and Wales still rely entirely on paper-based systems for processing applications and complaints, meaning people in prison have slow and restricted access to even basic amenities (HM Chief Inspector of Prisons, 2021). The COVID-19 pandemic ofered a natural experiment to test the utility of IT, such as telehealth. Remote therapy may be less desirable than in-person treatment, though virtual education and medical care for some ailments are clearly viable (see Langabeer et al., 2021; Sadicario et al., 2021). Moving forward it will be imperative to capitalize on the capabilities that, previously impossible or frowned upon, became available and were embraced during the pandemic.

Moral and Ethical Questions Health and social inequalities have plagued prisons in recent decades, and yet the “why” question has rarely been asked – what purposes does incarceration serve and are these purposes actually achieved by imprisoning people? In the context of the COVID-19 crisis, many scholars underscore the low-hanging fruit of releasing elderly and infrm, and generally low-risk individuals, to free up bed space and reduce costs (Phelps & Pager, 2016). Others amplify the ethical argument beyond the carceral space to suggest that addressing infectious diseases in prisons transcends to the community to beneft the public (Brelje & Pinals, 2021). While this is responsible planning, we ought to think about why those who are at very low risk of recidivating by virtue of their age, 261

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poor health, disability, or type of ofense are in prison in the frst place. Further, persons who come into contact with the corrections system through arrest and deemed ineligible for pretrial release are overwhelmingly persons belonging to marginalized groups and many are found not guilty thereby they serve time without having been convicted (Scott-Hayward & Fradella, 2019). Fundamentally, the COVID-19 pandemic also forces us to ask difcult questions about the proportionality of punishment. Some people in jail have not yet been proven guilty of an ofense; rather, they are there because they cannot aford bail (Penal Reform International, 2020). Early release as a mechanism to mitigate risk does not include persons who are incarcerated because of an arrest or pretrial detention (see Reinhart & Chen, 2021). Others are detained in jails on technicalities, awaiting a hearing on the revocation of their probation or parole. This was the case of the frst COVID-19 death on New York City’s notorious Riker’s Island (Blau & Goldensohn, 2020). Such cases are devastatingly tragic and serve as a vital reminder that it is time to reconsider who deserves to be incarcerated and for how long. Is it proportionate to sentence someone to prison knowing there is a high chance they will be exposed to and possibly die of COVID-19? And once imprisoned, what beneft do long sentences serve for meeting the goals of sentencing? In times of crisis, long sentences and incarceration more broadly amplify public health problems and further marginalize people who fnd themselves in the criminal justice system. Indeed, sentencing principles in England and Wales explicitly acknowledged the potentially heavier impact of custodial sentences on ofenders and their families as a result of the further deteriorated conditions in prisons throughout the COVID-19 emergency (Sentencing Council, 2020). We ought to also consider the emotional impact of serving a prison sentence during a pandemic. Arguably, the context makes the sentence all the more punitive than in other times because of the anxiety and restrictions on the already limited freedoms within prisons today. The impact of coronavirus in prisons – including both prisoners being quarantined, and staf shortages due to many self-isolating and not being at work – means that some persons who are incarcerated are being locked in their cells for up to 23 hours per day. These conditions meet the legal defnition for solitary confnement (Crook & Dawson, 2020) and risks contravention of the basic human right not to be subjected to torture or inhumane or degrading treatment and punishment (Finnis & Cockburn, 2020). In the United States, such conditions could constitute violations of the Eighth Amendment pertaining to cruel and unusual punishment (Bernstein et al., 2020). Often, isolation and quarantine involve not only physical confnement but also cognitive, afective, and spiritual isolation due to the limitations in the interactions with, respectively, health workers, relatives, and religious leaders (Calain & Poncin, 2015). Such restrictions should make us question whether imprisonment is truly proportionate to the crimes that have been committed, and the COVID-19 crisis should be used to shed light on prison conditions. It can be an opportunity to strongly rebut the views, often expressed in tabloid media in England and Wales and through uninformed public opinions in the United States, that prisons are disproportionately luxurious “holiday camps” and that persons who are incarcerated have it easy with three hots and a cot. After all, even prior to COVID-19, many prisoners in England and Wales had poor access to meaningful activities, and two-thirds of prisons were overcrowded, and US prisons can be violent places for young and old (Ahlin, 2021; HM Chief Inspector of Prisons, 2019; Wooldredge, 2020). The proportionality question is even more stark when we consider persons convicted of non-violent ofenses and young people in the criminal justice system. During the pandemic, exposure to a deadly virus becomes a collateral consequence to being processed by the criminal justice system. Is this something we, as a society, are willing to tolerate for the gamut of crimes that could result in carceral stays? In England and Wales, the vast majority of women in prison are there for non-violent ofenses such as non-payment of the television license fee. In fact, over 70% of people in prisons in England and Wales are serving sentences for non-violent ofenses (Prison Reform Trust, 2019). Is exposure to the risk of serious illness such as long-haul COVID 262

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and, possibly, death, proportionate to these ofenses? This is a question of justice and fairness, not only a matter of responding to the immediate COVID-19 crisis. More importantly, these issues have existed before COVID-19 – for example, should vulnerable low-risk people even have been in prison in the frst place? Moreover, early in the pandemic, a juvenile detention center made the news as the latest virus hot spot in the Commonwealth of Virginia (Associated Press, 2020). What is society’s obligation to care for and protect youth who run afoul of the law or become entwined in the criminal justice system? Since prison sentences have the potential to be more practically, emotionally, and cognitively onerous for young people compared to adults (Von Hirsch, 2001), as these young people are in their formative years, the questions of proportionality and fairness become even more pressing. Research has found that patterns of development in psychosocial maturity from adolescence to early adulthood are associated with crime trajectories, and that, while ofenders are considered adults, and punished as such, up to the age of 18, the process of maturation actually continues into the mid-twenties (e.g., Monahan et al., 2009, 2013). In light of their reduced culpability and resilience and the interference of a custodial sentence with opportunities for education and personal development (among other developmental interests), are young people not less deserving of punishment and more deserving of tolerance and preservation? If so, “deserved” punishment for juveniles should be scaled below those applicable to adults (Von Hirsch, 2001). Far from the idea of youth as less deserving, in 2021 a second consecutive Urgent Notifcation was issued to Rainsbrook Secure Training Centre in England. Serious and immediate concerns for the safety of the children housed there were raised after joint inspectorates found children were being locked in their rooms for two-week periods and only let out for half hour each day (Ministry of Justice, 2021b). The issues discussed in this chapter go far beyond COVID-19. Incarcerated people are already a marginalized population, and other marginalized populations (e.g., persons of color, Indigenous persons, women) are overrepresented in the criminal justice system. The COVID-19 pandemic has merely, and unfortunately, acted as a magnifying glass for the numerous inequalities that prisons have perpetuated for decades and exacerbated for marginalized populations. As one example, persons presenting with mental health illnesses are less likely to have visitations or contact with friends and family (Connor & Tewksbury, 2015; Lahm, 2016; Stacer, 2012). If it is possible, at short notice, to hand out restricted-access mobile phones to persons incarcerated in response to the pandemic, why do we not enable people in all prisons to make video calls to encourage and maintain family contact during normal operations? It is, after all, well-established that family contact is correlated with lower recidivism rates (Farmer, 2017, 2019). Was it ethical and fair to restrict family contact in the ways England and Wales did pre-COVID, for example, by not allowing access to video calls, when we know many families and people in prison can beneft from more frequent family contact? If it is possible to allow access to restricted mobile phones without serious security problems arising, is the only reason for not doing so earlier a misguided sense of punitiveness and a fear of political backlash? What are we to make of social justice issues pertaining to children and families? It is arguably a form of injustice to disallow children and relatives to properly maintain positive family ties with incarcerated loved ones (Condry et al., 2016). The rapidity with which some institutions released individuals also calls into question the adequacy of reentry eforts prior to their return to the community. Some scholars called for correctional institutions to reconsider the speed at which persons incarcerated are released in response to urgent events (Henry, 2020; Shepherd & Spivak, 2020). Expedited discharge may leave those returning to the community without sufcient plans for housing, mental healthcare, substance use treatment, and suicide prevention (see Binswanger et al., 2007; Mitchell et al., 2021; Pinals, 2019). Reentry planning ideally begins on day one of incarceration, and takes time to be fully realized, especially for those who have been incarcerated for a long period of time and those who may 263

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have weakened or absent social and familial ties on the outside (see Piel, 2020). The COVID-19 pandemic has highlighted the need to reemphasize eforts to maintain and strengthen familial and community ties, while not losing sight of the need to reconsider whether they need to be severed or attenuated by incarceration in the frst place.

A Way Out of Existential Limbo? Arguably, some prison systems, such as those of England, Wales, and the United States, have long sufered from existential insecurity. Since the loss of faith in rehabilitation heralded by Martinson’s (1974) study, it has been argued that prisons are now merely places of (mostly) humane containment alone, with little to no ideological purpose (see King & McDermott, 1992). The Prison Rules 1999 state that prisons in England and Wales ought to help people lead good and useful lives. Yet this is, arguably, a vague statement of purpose – the term rehabilitation is not explicitly used and “good” and “useful” are undefned. We posit that the COVID-19 pandemic crisis ought to be seen as a catalyst for a larger, ideological rethink of the purpose of prisons. Prisons ought to not simply hold people for a defned period of time but instead their purpose should include achieving some rehabilitative outcome. While the word “rehabilitation” is now widely used when referring to the aims and purpose of prisons, there is little evidence of rehabilitative endeavors achieving the desired outcomes (Bullock & Bunce, 2020). Although a full discussion is beyond the scope of this chapter, it should be noted that rehabilitation itself is becoming a contentious issue, with important questions arising about the ethics and potentially instrumental, disciplinary nature of the rehabilitative ideal (Warr, 2016). These complex questions aside, the point stands that the pandemic ought to lead to a wholesale reconsideration about the purpose(s) of our prisons. Does putting people in prisons where conditions are extremely restrictive, even traumatizing, achieve any goal of sentencing? Is incarcerating young people and those convicted of non-violent ofenses helping to rehabilitate them? Considering the very high reofending rates post-prison in England and Wales (Prison Reform Trust, 2019) and the United States (Alper et al., 2018) the answer is obviously no. Could the disruption to already disadvantaged people’s lives and traumatization experienced as a result of being imprisoned actually be having the opposite efect? A 2011 study concluded that there is at least some evidence to suggest that imprisonment is a social experiment that actually deepens illegal involvement, with the significant implication that custodial sanctions may actually make society less safe (Cullen et al., 2011). Refecting on the current situation, are we even meeting our vague goals in corrections to change individuals for the better, equipping them with a fghting chance to pay their debt or lead law-abiding lives? Happenings during incarceration invariably make their way back to the community. Thus, the idea that prison health is public health rings true not only with the current pandemic but also more broadly as we think about the majority of persons who experienced incarceration returning home after serving time. Notably, the problems outlined in this paper have existed for years, with prisons in England, Wales, and the United States doing little by way of addressing social injustice and rehabilitation. Yet COVID-19 should force policymakers to ask these difcult questions about incarceration and its aims. After the immediacy of the crisis has subsided, the emergency measures should be evaluated and the positive innovations – such as release of low-risk people – ought to be shaped into long-term policies buttressed by cross-party consensus. More importantly, this is an opportunity to ask fundamental questions about what prisons are trying to achieve. Rethinking incarceration, not only what its existential purpose but also what its day-to-day operations should look like, is benefcial to all persons who experience incarceration. Persons experiencing incarceration are placed in a marginal position in society when their power is removed; such marginalization efectively renders them unimportant in mainstream society. More impactfully, rethinking the purpose of incarceration could serve to mitigate some of the negative impacts of multiple marginalizations that routinely sideline groups of people from society. 264

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Conclusion Prison health is public health; a holistic type of public health encompassing the physical, emotional, social, spiritual, and intellectual realms of health. Prison health as public health is refected by the principle of equivalence now embedded in policy in England and Wales, which states that people in prison should receive healthcare equivalent to the standard of care provided to those in the community (Public Health England, 2016) – yet prisons are often disregarded within public health eforts. Furthermore, a report from the Health and Social Care Committee concluded that “The Government is failing in its duty of care towards people detained in England’s prisons” (Health and Social Care Committee, 2018, p. 1). During the COVID-19 pandemic’s frst peak, scholars and practitioners stated that to reduce the spread of coronavirus both within prisons and beyond, it would be imperative that responses are more efectively embedded within the wider public health response (Kinner et al., 2020). While prisons are closed systems, there remains transmission between the inside and the outside – and what happens inside is an amplifed microcosm of public health on the outside. Addressing public health concerns such as COVID-19 in prisons and similar facilities (e.g., jails, detention centers) not only focuses attention and care on those who live and work there, the care also transcends into the community (see Brelje & Pinals, 2021; Kinner et al., 2020). COVID-19 demonstrates the rapid transmission of contagious disease; perhaps now is the time for rapid transmission of compassion and justice realignment to reset the goal of institutional “corrections.” The COVID-19 pandemic could be an opportunity to focus attention on the well-being of people in prison, prioritize prevention and social justice, and encourage action regarding the social determinants of health and criminal behavior (Caruso, 2022). Thus, acknowledging the widespread impact carceral settings have on the public may pave the way for more humane and efective social policy superior to the “overemphasis on punitive approaches” that typically comes with just deserts conceptions of justice that has prevailed in our prisons ( Justice Committee, 2018). It is imperative that people in prison and other contexts of confnement are provided with the kinds of caring and supportive measures that can mitigate the negative impact of any quarantine/ isolation/social-distancing measures in response to COVID-19. Increased access to technology, for example, to maintain both connections with loved ones on the outside and with one another, access to distance learning materials and access to mental health resources – given that they are already vulnerable and do not have their liberty – are ways to increase the ethical treatment of persons incarcerated during a pandemic where lockdowns are necessary. Given the evidence that such measures can facilitate prisoner wellbeing (Brunton-Smith & McCarthy, 2016; Woodall et  al., 2014), and that it is evidently possible for them to be made more readily available to prisoners, why can this not be part of the daily regime, as opposed to merely an emergency response to a global pandemic (Paul, 2020)? There has been a deluge of social-media-driven campaigns to provide books, puzzles, and ftness activities for people in prison – if this can be done easily, quickly, and safely, why are these resources not provided as a matter of course? We argue that now is an opportune time to refocus on the so-called “rehabilitation revolution,” by not just considering, but actively pursuing, ways in which our currently overcrowded prisons and inequitable criminal justice system can be reformed – not just for the purposes of disease prevention, but to address the systemic conditions from which poor health and inequality emerge. This could include early/emergency release schemes; alternatives to imprisonment and diversionary approaches such as intermediate facilities, problem-solving courts, and restorative justice; and sentencing reforms such as previous convictions being deemed spent and judicial oversight of recall and sentence monitoring (Centre for Social Justice, 2017). As argued above, the pandemic can and should be used to encourage frank and difcult discussion about and refection on international approaches to incarceration, its purposes, and its failures. The lessons learned during the COVID-19 pandemic ofer a framework to begin serious discussions about who belongs in 265

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a carceral facility and how to ethically treat prisoners who must be physically separated from the community. It is even clearer because of the pandemic that there is much improvement to be made to current correctional policy and practice. Some practitioners and scholars ofer suggestions for fortifying the prison responses for the next pandemic, including increased testing, and limiting transfers of incarcerated people (see Akiyama et al., 2020; Hummer, 2020; Pettus-Davis et al., 2021). Such eforts are required for the portion of the carceral population that cannot be released or diverted from prison. There is much to be said, though, for focusing eforts on the front end of the correctional system to reduce the number of persons who are incarcerated. Ample evidence shows that marginalized populations are overrepresented in institutional correctional settings (see Wakefeld & Uggen, 2010). The pandemic highlighted these inequalities. Henry (2020) aptly states: “Health equity cannot be achieved until incarcerated people have equal access to quality prevention and treatment resources for COVID-19” (p. 537). We suggest this is an umbrella for all treatment of persons who are incarcerated, not just their health. The next step is to seriously consider how these inequalities can be addressed not for the pandemic, but in light of the grave injustices brought to the forefront of the carceral discussion because of the pandemic.

Acknowledgments We would like to thank Tifany Petricini, Maryellen (Ellie) Higgins, Judith Newman, and Brian Onishi, members of the 2021 The Ethics of Representing/Re-presenting Trauma Symposium, The Rock Ethics Institute, for their thoughtful and insightful comments on an earlier draft of this chapter. Eileen Ahlin was accepted to participate in this symposium, which was funded by the Pennsylvania State University’s Ofce of the Senior Vice President for Research (OSVPR) in support of the Commonwealth Campus Center Nodes (C3N) Program.

Note 1 The United Kingdom is comprised of England, Wales, Northern Ireland, and Scotland. The Ministry of Justice has jurisdiction over England and Wales. Northern Ireland and Scotland maintain their own justice system.

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INDEX

Note: Bold page numbers refer to tables; italic page numbers refer to fgures and page numbers followed by “n” denote endnotes. accuracy (ACC) 79–80 Adam Walsh Act (2006) 229 Ad Hoc Native American Advisory Group 229 adjudication 50, 54, 62–64, 66 Adler, J. 120, 125–126 Adverse Childhood Experiences (ACEs) 226 Afghan Allies Protection Act (AAPA) 35–36, 43 aggravated felonies 34–35, 38, 41–42 Alaska Natives 226, 228 American Civil Liberties Union (ACLU) 244 American Comprehensive Counseling Services (ACCS) 192, 195–196 American Immigration Lawyers Association (AILA) 40 American Indian 224–228 American Legion 39–40 American Probation and Parole Association (APPA) 121 American Sign Language (ASL) 140 Americans with Disabilities Act (ADA) 131–133, 136 Amnesty International (2022) 223 Amplifying Voices of Inmates with Disabilities (AVIDs) Prison Project 136–137 ancient history 33–34 Andrews, D. A. 138, 246–247 Ange Samma v. U.S. Department of Defense 36–37, 43 Anti-Drug Abuse Act (1986) 240 anti-homeless laws 9, 11 APEX Screener 194 area under the curve (AUC) 73, 123 asexual 216n1 Assessment Workgroup 193–194 assistant state attorney (ASA) 15 Augustyn, R. 247–248

Austin, J. 226 Australia 232–235 Baglivio, M. T. 74 Belenko, S. 121, 123 Benitez, J. S. 31–32 Berger, R. 242 Berk, R. 76 Biden, J. 39, 41 bisexual 216n1 Bissonette-Lewey, J. 230 Black women and girls 4, 50–51, 53–54, 60–61, 61, 63–66 Board of Immigration Appeals (BIA) 37 Bonta, J. 138, 246–247 Brandt, E. N. 134 broken windows theory 52 Brown, G. 213 Bureau of Justice Statistics (BJS) 131, 207, 240, 242 Burrell, W. D. 121 Bush, G. W. 35 California 125, 176, 250 Campbell, C. 73–74 Camplain, R. 228 Canada 233–235 Carrillo, W. 45 case characteristics 16–17 Case Management Workgroup 193, 196–197 Caudy, M. 13 Center for American Progress (2016) 215 Chui, W. H. 150 cisgender 160, 201n2, 216n1 civilian criminal law 37 Civil War Military Draft Act (1863) 34, 43 Clarke, C. 248–249

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Index Clark, K. 240 Clinton, B. 34 Collins, J. C. 3 Combined Removal Model 78–83 Commissary Fund 196 Community Supervision Screening Tool (CSST) 194, 199 Community Supervision Tool (CST) 194, 199 compassionate release 249–250, 258 complaint stage 12, 14–15, 20 Co-Occurring Disorders Group 196 Correctional Ofender Management Profling for Alternative Sanctions (COMPAS) 124 corrections 1–3, 5, 7, 10, 64, 121, 133, 150, 170–172, 189, 225, 229, 262, 264, 265 court: general 37; defendants and 11; special 37; summary 37 COVID-19 189–190, 201, 232, 234, 244, 250, 255–257, 264–266; information and IT 261; moral and ethical questions 261–264; prison experience 258–260; social and health inequalities 257–258 Crime Information Center (CIC) 197 criminal history 13–14, 20, 27, 73–85, 197 criminal justice system 1–3, 9–10, 12, 27, 32–33, 35, 40, 50, 52–55, 63–64, 120, 122, 126, 131, 138, 142–143, 197–198, 215, 227–228, 232–235, 245, 258–259, 262–263 Criminal Punishment Code (CPC) 15–17 crimmigration policy 35 Cullen, F. T. 149 cumulative case outcomes 17 Danger Assessment for Law Enforcement (DA-LE) 120 Data Tracking Workgroup 193, 197 decision-making 2, 41, 70, 72–73, 121–122, 126, 127n4, 135–136, 193 decomposition models 18, 24, 24–26, 25 DeJong, C. 188 demographics 16 department of corrections (DOCs) 16, 214 Department of Defense (DoD) 36 Department of Homeland Security (DHS) 37–38, 44 Department of Justice (DOJ) 240 descriptive statistics 18, 19, 20 Desmarais, S. L. 120–121, 123, 125–126 diferential enforcement/treatment 72 diferential involvement 72 Dirkzwager, A. J. 150 disability 131–132, 143; ADA 132–133, 143; Expert/Professional Model 135–136; IOM Enabling-Disabling Model 133–135, 134; Medical Model 135; physical and learning 138–139, 141–142; prevalence 132; Rehabilitation Model 137; RNR Model 137–140; Social Model 136–137

discrimination 2, 6, 79–80, 82, 126, 132, 134, 138, 160–161, 172–173, 178, 215 disposition stage 15, 17 disproportionate minority contact (DMC) 70–73 Dobbie, W. 127n5 Dolan, K. 259 domestic violence program 195–196 Donelan, C. J. 189 Duckworth, T. 41, 45 elderly incarcerated populations 248–250 Ellis, P. D. 123 Elzarka, A. A. 76 Estelle v. Gamble (1976) 245 Executive Order 13269 43 Expert/Professional Model 135–136 explained variation 18, 25–26 false positive rate (FPR) 71, 76–85 Farmer v. Brennan (1994) 208–219 Farmer v. Moritsugu (1998) 210 Federal Bureau of Prisons (BOP) 225, 231, 241, 258 Federal Bureau of Prisons Inmate Admission and Orientation Handbook 171 Fenstermaker, S. 163 Feyerherm, W. H. 73 Field Training Ofcer (FTO) program 197 50%+ FPR Removed Model 78–83 folx see transgender folx Forrest, K. B. 121, 125 Fraser, L. 167 Frederick, K. 35 Freedom of Information Act 207 freeze frame approach 164 Freng, A. 231 Full Model 78–83 gay 216n1 Gelbach, J. B. 18, 24 gender identity 7, 160–161, 164–165, 167–169, 172, 174, 176–178, 201n2, 207–208, 214, 216n1 gender non-conforming 216n1 general court 37 general educational development (GED) 195 genitalia-based approach 211 geriatric parole 250 Getting Ahead While Getting Out (GAGO) program 194–195 Giano, Z. 226 grand jury 57 Grant, J. M. 187 Greenberg, G. A. 9 grounded theory approach 165 Guadalupe-Diaz, X. L. 164 Hamilton, Z. 75, 122–123 Hannah-Mofat, K. 122, 124 Hardiman, R. 64

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Index healthcare 213–214, 242–245 Henry, B. F. 266 Hensley, C. 211, 213 Hicklin v Precynth (2018) 217n10 High School Equivalency (HSE) 195–196 Hollins, S. 138 homelessness 9, 26–27; analyses 17–18; decomposition models 24, 24–26, 25; defendants and court 11; descriptive statistics 18, 19, 20; efects of 11–14, 22, 24–27; and incarceration 10–11; logistic regression 20, 21–22; multinomial logistic regression 22, 23; predicted probabilities 22, 24 Home Owners Loan Corporation (HOLC) 51, 59–61, 61 hypotheses address model 76–77 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 34, 44 Immigration and Customs Enforcement (ICE) 31, 33, 37–41 Immigration and Nationality Act (INA) 34–35, 38, 42–44 incarcerated elderly individuals 241–242 incarceration: healthcare 242–245; homelessness and 10–11; inequalities during 141–142; LGBTQ 210–214; of Native Americans 224–225, 230–231; non-health-related treatment and services 245–246 inclusion of persons with disabilities (IPWDs) 131 Indigenous people 223, 232–235 Indigenous populations 231–232; within Australia 232–233; within Canada 233–235 inequality 51, 63–64, 131–133, 141–142, 257–258 information stage 12, 15, 17, 20 Inmate Management Unit (IMU) 190–191 Institute of Medicine (IOM) Enabling-Disabling Model 133–135, 134 International Classifcation of Functioning (ICF) 137 intersex 216n1 Jackowski, K. 74 Jackson, N. 234 Jahner, M. 240 jails and prisons: aging 241, 243, 250–251; AVIDs 136–137; classifcation and housing 187–188; housing practices in 163–164; institutional treatment and programs 188–189, 201; LGBTQ 207–208, 210, 213; misgendering 166–167; placement policy 163; population 148, 225, 230, 232–235, 240–241, 246–248, 250, 257–264; PWD in 143; resident 148, 150–156, 151 Jenness, V. 163, 212 Judge Advocate General ( JAG) 40 juvenile justice system 4, 70–73, 75–76, 207, 216n5 Kaiser, K. A. 119, 127n6 Katsiyannis, A. 226

Kelling, G. L. 10 Kempany, K. G. 119, 127n6 Kerness, B. 230 K-fold cross-validation 79–80 Kim, S. 227 Kingdon, J. W. 174 Kleinberg, J. 121–122, 126 Kruttschnitt, C. 150 Kuang v. U.S. Department of Defense 37, 44 Latessa, E. J. 120, 126n3 lesbian 216n1 lesbian, gay, bisexual, transgender, and queer (LGBTQ) 162–163, 206, 214–215, 215n1; deprivation 210–211; healthcare 213–214; housing 210–211; sexual activity 211–212; sexual victimization 212–213; statistics 207–208; violence against 208–210 LGB 207, 208, 211, 216n6 Ligon, J. 240 Lindesay, J. 242 Liu, L. 150 logistic regression 17, 20, 21–23, 54, 59, 62, 62, 78 Lopez, W. D. 260 Lovell, R. E. 53 Lowenkamp, C. T. 120 Lumsden, S. 224 McDonald, J. 139 McDufe, E. 213 machine learning (ML) algorithms 121–122 McNiel, D. E. 10–11 Major Crimes Act 224 Malkin, M. L. 188 Mancini, C. 149 marginalization 2–3, 6–7, 170, 174, 178, 208, 215, 235, 257, 264; populations 1–5, 7, 50, 132, 186, 215, 256, 258, 263, 266 Marquart, J. 245 Martinez, M. 31–32 Maschi, T. 249 Massey, D. S. 2 mass incarceration 10, 143–144, 225, 240–241, 245, 250 Mattis, J. 36 Mattison, V. 139 Matz, A. K. 123 Mechanic, D. 141 Medical Housing Unit (MHU) 190–191 Medical Model of Disability 135–136 medical parole 249–250 Medication-Assisted Treatment (MAT) program 194, 196, 198 Meek, R. 142 Megan’s Law (1996) 229 mental health conditions 244 Military Accessions Vital to the National Interest (MAVNI) Act 32, 35, 44

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Index Military Personnel Citizenship Processing Act (MPCPA) 42, 44 Miller, W. T. 123 Mitchell, O. 13 modern history 34 Modifed Positive Achievement Change Tool (MPACT) 71, 76–78, 80–82, 84 Mogk, J. 11 Monahan, J. 120–121 Morabito, M. S. 53 multinomial logistic regression 22, 23 multivariable logistic regression 62, 62–63 N-426 policy 44–45 Nagi, S. 133, 135 National Center for Transgender Equality (NCTE) 161, 164, 177 National Criminal Justice Treatment Practices Survey 121 National Inmate Survey (NIS) 208 National Institute of Corrections (NIC) 121 National PREA Resource Center (2021) 176 National Prison Rape Elimination Commission (NPREC) 188–189, 200, 209 National Youth in Transition Database (NYTD) 227 Native Americans: drug- and alcohol-related ofenses and 227–228; isolation and solitary confnement 229–230; populations 84, 224–227, 230–231; reentry experience 231; rights to religion 230–231; and sex ofenses 228–229 neighborhood efect 51–52 net widening 34–35 Nielsen, M. O. 235 Nilsson, S. F. 10 No Criminal History Model 78–83 non-Black women and girls 50, 60, 61, 65–66 noncitizen service member 4, 32–33, 37–40, 43 noncitizen veterans 32–33, 37–38, 40–42 non-heterosexual 207, 210, 212–213 North Carolina Assessment of Risk (NCAR) 73–74 Notice to Appear (NTA) 37 Nowotny, K. M. 243, 260 Obama, B. 32, 35, 43 Ogden, S. 224 Ohio Risk Assessment System (ORAS) 194 Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT) 120 Ohio Youth Assessment System-Disposition Tool (OYAS-DIS) 75, 123 Oliver, M. 136 Olmstead v. L.C. ex rel. Zimring (1999) 143 OLS regression model 18 one-on-one counseling 196 Onifade, E. 73

opioid use disorder (OUD) treatment 189 Organizational Culture and Change Workgroup 193–194 Padilla v. Kentucky 38, 45 Park, R. E. 2 Pennsylvania Department of Corrections v. Yeskey (1998) 133 Perrault, R. T. 74 Personnel Administrator of Massachusetts v. Feeney (1979) 124 persons with disabilities (PWD) 131, 136, 142–143 Petts, J. 39 Pew Research Center 119, 126 physical health conditions 242–243 Pinellas County 3, 9, 14–15, 26 Piquero, A. R. 73 Pisttrang, N. 139 Pope, A. M. 134 Pope, C. E. 73 Positive Achievement Change Tool (PACT) 73–74 post-traumatic stress (PTS) 31 Pretrial Justice Institute (PJI) 120 Prison Policy Initiative 250, 260 Prison Rape Elimination Act (PREA) 6, 171, 176, 186–188, 191, 208–210, 217n8 prisons see jails and prisons Project for Old Prisoners (POPS) 246 psychodynamic psychotherapy 138–139 Public Safety Assessment (PSA) 120 Quality Assurance Workgroup 193, 198 queer 216n1 racial and ethnic disparities (REDs) 70–73 racial/ethnic bias: Combined Removal 78–83; descriptive statistics for 86–115; disproportionality 78–79; DMC and RED 71–73; 50%+ FPR Removed Model 78–83; Full Model 78–83; hypotheses 76–77; limitations 83–84; MPACT 71, 76–78, 80–82, 84; No Criminal History Model 78–83; policy implications 84–85; predictive performance 79–80; risk assessment 73–74; strategies for 74–76; see also false positive rate (FPR) randomized control trial (RCT) 186, 199 receiver operating characteristics (ROCs) 79–80 recruitment policies 35–36 redlining 51–54 reform federal legislation 41–42 Rehabilitation Model of Disability 132, 137 rehabilitation revolution 265 Repatriate Our Patriots Act 45 Restricted Housing Units (RHUs) 165 Ridge regression algorithm 78, 80, 83 risk assessment instruments (RAIs) 119–121, 125–126; accountability and transparency

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Index 124–125; bias and disparate impact 121–122; predictive accuracy 123–124 risk-needs-responsivity (RNR) model 132, 137–140, 191, 246–248, 251 Robin, R. W. 226 Robyn, L. 235 root mean squared error (RMSE) 79–80 Rosenheck, R. A. 9 routine activities theory 52, 65

suspect use of force 57 sustainable funding 196

Sabel, R. 32 Safe Streets Act (1968) 10 St. Petersburg 14 Schwalbe, C. S. 74, 121 Scott, T. 123 securing employment 249 Security Threat Groups (STGs) 230 Senior Ex-Ofender Program (SEOP) 246, 249 sentencing 1–3, 7, 11, 12–15, 27, 42, 50, 64, 120, 121, 124, 151, 223, 233, 241, 262, 265 sexual: identity 160, 211; victimization 6, 50–52, 54, 64–65, 185, 188, 200, 208–209, 212–213; violence 6, 51, 54, 63, 65, 131, 162–163, 170–172, 178, 187, 189, 209–210 sexual assault: Black women and girls 50–51; broken windows theory 52; characteristics of 56–57, 58–59, 60; in criminal justice system 52–54; legal and extralegal factors 52–54; location of 57; multivariable logistic regression models 62, 62–63; neighborhood efect 51–52; redlining 51–54; routine activities theory 52, 65; spatial patterns 60–61, 61; victim-survivors 55–56 sexual assault kits (SAKs) 49–50, 54, 61, 64–65 Singh, J. P. 123 Skeem, J. L. 120–121 Snapp, S. D. 208 Social Model of Disability 136–137 social service providers 64–65 social support 5, 53, 149–150, 155–156, 187, 200 solitary confnement 170–171 Sosin, K. 207 special court 37 special immigrant visas (SIVs) 36, 43 spillover infections 260 Squared error, Accuracy, and Receiver operating characteristic (SAR) score 80–81 Standard Minimum Rules for the Treatment of Prisoners (SMRTP) 244–245 state action 42 Statement of Search Preference Form 191 State v. Loomis (2016) 124 Steuben, F. von 33 Strengthening Citizenship Services for Veterans Act 45 Structured Assessment of Violence Risk in Youth (SAVRY) 73–74 Substance Abuse Program 196 summary court 37

Tanner, J. 141 Taxman, F. S. 121, 123 technology 197–198; DNA testing 49; information and IT 261; treatment and programs 189–190, 201; USCIS 35–36, 39–42, 44 Technology Workgroup 193, 197–198 thematic analysis 166 transgender 160, 201n1, 216n1 transgender folx 5–6, 160–165, 168, 170–173, 175–178 Transgender/Gender Variant Individual Genitalia Search Form, The 191 transgender individuals (transgender people) 159–161, 177–178, 217n9; classifcation 190–191; clothing and toiletries 168–169; gender identity 176–177; housing 187–188; incarcerated 5–6, 159, 161–173, 176–178; in jails/prisons 162–164, 166–167, 173–174; life experiences 187; medical care 164, 169–170, 177; NCTE reports 161; physical safety 170–171; policy and practice 173–174, 175; population 176, 198–200; poverty line 161–162; resident interaction 171–172; sex and gender 160–161; sexual violence 171–172; solitary confnement 170–171; staf training 174–176; in WCDF 186, 190–199, 201 Transition Assistance Program (TAP) 40 trans men 159, 162, 165, 169, 172–173 trans women 159, 161–163, 165, 169, 171–173 traumatic brain injury (TBI) 133 Treatment and Programs Workgroup 193–196 True Grit Program 249 Trump, D. 32, 36–37, 43–44 unexplained variation 18 Uniform Code of Military Justice (UCMJ) 37–38, 45 United States Custom and Immigration Service (USCIS) 35–36, 39–42, 44 University of Cincinnati Corrections Institute (UCCI) 196, 198 University of Nevada, Reno (UNR) 186, 193–199 US Citizenship Assistance Act (2008) 35, 44 U.S. Federal Pretrial Services Risk Assessment (PTRA) 120 Vallas, R. 143 Veterans of Foreign Wars (VFW) 40 Veterans Services Ofcers (VSOs) 40 Veterans Visa and Protection Act 45 victim-survivors 4, 49–53; Black and non-Black 4, 54, 56, 59–63; characteristic of 56–57, 58–59; cooperation 53; credibility 57; demographics of 55–56; vulnerabilities 56 Virginia Pretrial Risk Assessment Instrument (VPRAI) 120

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Index Virtual Housing Unit Pilot Project (VHUPP) 6, 186, 191, 193–199, 201 VISION Act (2021) 42, 45 Wacquant, L. 2 Washington State Juvenile Court Assessment (WSJCA) 77 Washington v. Davis (1976) 124 Washington v. Harper (1990) 135 Washoe County Detention Facility (WCDF) 186, 190–199, 201 Washoe County Sherif’s Ofce (WCSO) 186, 191, 193–199 Watt, T. 227 Wexler, R. 125 Williams, B. A. 243, 250 Williams, J. W. 230 Williams, M. R. 13 Wilson, J. Q. 10 Wilson, W. J. 2

Wingerden, S. van 11 Wodahl, E. J. 231 women jail residents 149–150, 152–153, 155–156, 156n1; coding and analysis processes 152; correctional ofcers 149–156, 156n1; interview protocol 151; limitations 155; sampling strategy and sample characteristics 150–151, 151; semistructured interviewing approach 151 Wool, J. 245 World Professional Association for Transgender Health (WPATH) 164, 177–178 Yang, C. S. 127n5 Youth Assessment and Screening Instrument (YASI) 120 Youth Criminal Justice Act (YCJA) 234 Youth Level of Service/Case Management Inventory (YLS/CMI) 73–75 Zhang, D. 226

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