Decarceration

Decarceration

This Note is a brief discussion of a nascent policy that would preempt any difficulties faced by people with criminal records: giving fewer people criminal records in the first place. The term “decarceration” broadly refers to a number of strategies that would move away from “prison as the dominant mode of punishment”106 and towards “imprisonment . . . only as a last resort.”107 Many of these strategies are designed to reduce the severity and frequency of interactions with the criminal legal system—the types of interactions that produce criminal records. Examples of such strategies include declining prosecution of low-level offenses,108 employing prearraignment diversion programs,109 funding social programs that address the economic drivers of crime,110 improving access to mental health resources,111 and decriminalizing or legalizing non-pharmaceutical drugs.112 Not only do these strategies decrease the number of people with criminal records (and the number of people in carceral custody), but there is a growing body of evidence that they do so without compromising public safety.113 Wholesale reimagination of carceral institutions is outside the scope of this Note, but it is worth considering whether poor employment outlooks for people with criminal records is best addressed as a distinct issue or as one symptom of a deeper problem.

106.????ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 110 (2003).

107.????U.N. OFF. ON DRUGS & CRIME, HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT, at 4, U.N. SALES NO. E.07.XI.2 (2007).

108.????Rachael Rollins, Suffolk Cnty. Dist. Att’y, THE RACHAEL ROLLINS POLICY MEMO C1–C9 (2019), https://files.suffolkdistrictattorney.com/The-Rachael-Rollins-Policy-Memo.pdf; see also id. at A1–A3 (listing “[e]fforts . . . being made across the country to increasingly develop and follow evidence-based policies that move resources away from the arrest and prosecution of low-level, nonviolent offenses”).

109.????Daniel F. Conley et al., Successful Alternatives: Juvenile Diversion and Restorative Justice in Suffolk County, BOS. BAR J. (Oct. 4, 2018), https://bostonbarjournal.com/2018/10/04/successful-alternatives-juvenilediversion-and-restorative-justice-in-suffolk-county/ [https://perma.cc/SB6L-SDPS].

110.????Examples of social programs that address the economic drivers of crime include zero-fare public transit, expanded educational opportunities, increased access to housing, and other forms of public assistance designed to cover basic needs. Zero-fare public transit would eliminate arrests for fare evasion, a low-level offense that is often criminalized (“in contrast to the civil penalties enacted against drivers for speeding and parking infractions”) and that often results in police arresting people of color at a disproportionately high rate. Amy Crawford, Here’s What Happens When Public Transit is Free, HUFFPOST (Feb. 22, 2020), https://www.huffpost.com/entry/free-public-transit-kansas-city-estonia_n_5e4f9b49c5b6b82aa651191e [https://perma.cc/3WSJ-NL5M]. Expanded educational opportunities—in particular, early-childhood education programs—“can be an effective tool in the fight against crime by not only increasing educational attainment but also by addressing deficits in non-cognitive skills that are correlated with criminal activity.” Arthur J. Reynolds et al., Preschool Education, Educational Attainment, and Crime Prevention: Contributions of Cognitive and Non-Cognitive Skills, 32 CHILD. & YOUTH SERVS. REV. 1054, 1062 (2010). Housing instability by itself can lead to a variety of potentially criminal behaviors (e.g., landlord-tenant disputes, conflicts with neighboring tenants, drug use) and homelessness results in more interaction with law enforcement, more arrests, and more convictions. Caroline Palmer et al., Does Emergency Financial Assistance Reduce Crime?, 169 J. PUB. ECON. 34, 35 (2019). Studies on public assistance programs suggest property crime increases as monthly allocations of these programs run short. Id.

111.????The reduction in state mental health resources that began in the 1960s has led to police arresting an increasing number of people with mental illness, often for nonviolent, petty offenses. Noman Ghiasi et al., Psychiatric Illness and Criminality, NAT’L CTR. FOR BIOTECHNOLOGY INFO. (June 23, 2020), https://www.ncbi.nlm.nih.gov/books/NBK537064/ [https://www.ncbi.nlm.nih.gov/books/NBK537064/]. Despite popular narratives that mental illness is a significant driver of crime, “there is scant evidence to suggest that mental illness can independently predict criminal behavior.” Id.?

112.????In 2018, one out of every six arrests reported to the FBI involved a drug crime as the most serious offense, and 40% of those drug arrests were over marijuana. CRIM. JUST. INFO. SERVS. DIV.,