Decarcerating America

by Ernest Drucker

  22. Sonja B. Starr, “Evidence-Based Sentencing and the Scientific Rationalization of Discrimination,” Stanford Law Review 66, no. 4 (April 2014): 809.

  23. O’Donnell and Zebrowski, “Re: Proposed Rule.”

  24. “More than 10,000 people are denied parole annually in New York State and only one in five have it granted.” Andrew Cuomo, 2016 State of the State, www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/2016_State_of_the_State_Book.pdf, 194.

  25. New York Judiciary Law § 75.

  26. Matter of Hawkins v. New York State Department of Corrections and Community Supervision, 521536, Index No. 0011-15, Sullivan County (2016).

  27. Alejo Rodriguez v. New York State Board of Parole, Decision and Order, Index No. 8670/2015, returnable January 14, 2016, Orange County.

  28. Matter of Cassidy v. New York State Board of Parole, Index No. 2255/14 2015-06927 28 NY.3rd 1128 (2017); 68 NY.3rd 97; 45 N.Y.S.3rd 368; 2017 NY Slip Op 60593.

  29. John MacKenzie v. Tina M. Stanford, Decision and Order, Index No. 2789/15, Dutchess County.

  30. Ibid.

  31. From transcript of hearing provided to the authors by MacKenzie.

  32. Ibid. Emphasis added.

  33. See Victoria Law, “Suicide of 70-Year-Old John MacKenzie After Tenth Parole Denial Illustrates Broken System,” Village Voice, August 9, 2016.

  34. Samuel K. Roberts, ed., Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety (New York: Center for Justice at Columbia University, 2015).

  35. Jonathan Simon, “Proposition 47: A Simple Step Toward Reducing Mass Incarceration,” Governing Through Crime, October 21, 2014, quoted in Jean Trounstine, “A Moral Imperative: Releasing Aging and Long-Term Prisoners,” Truthout, February 10, 2015 (an article that profiles RAPP).

  36. In June 2017, again in response to community pressure, the governor appointed six new parole commissioners and declined to reappoint three of the most intransigent current commissioners. Simultaneously, the Board of Parole promulgated new regulations directing commissioners to consider risk and needs assessments as an overarching element, rather than one item on a list (those regulations will be made public by the end of September). While these steps indicate progress, it remains to be seen what impact the changes will have on parole release rates.

  37. Marian Wright Edelman, “The Cradle to Prison Pipeline: An American Health Crisis,” Preventing Chronic Disease 4, no. 3 (July 2007): A43.

  38. James Kilgore, “What the Movement Against Mass Incarceration Can Learn from the Struggle for Climate Justice,” Truthout, September 24, 2014.

  39. Drucker, A Plague of Prisons, 189.

  40. Ernest Drucker, “Drug Law, Mass Incarceration, and Public Health,” Oregon Law Review 91 (2013): 1097–128.

  41. Contact RAPP c/o Correctional Association of New York, 22 Cortlandt Street, 33rd Floor, New York, New York 10007, office: (646) 793-9082 ext. 1014, cell: (347) 395-9700, email: nyrappcampaign@gmail.com, website: http://www.rappcampaign.com.

  PART III

  Tertiary Prevention

  11

  Health Care as a Vehicle for Decarceration

  DALIAH HELLER

  The case for health care as a vehicle for decarceration is rooted in a public health vision for the health care system. It emerges in part from the history of psychiatric deinstitutionalization and the subsequent (though unrelated) war on drugs. It recognizes that the carceral consequences of these shifts in the public health and criminal justice landscape were both exacerbated and facilitated by economic displacement and a shrinking social safety net during this era. A public health vision counteracts these historical social forces. It prioritizes wellness over sickness, addresses mental illness and addiction1 as chronic health conditions, and orients to the social determinants of health—the conditions in which people live and work—at its core. This vision of health care is a strategy for decarceration because it promotes health and social equity.

  Making the Case

  In context, the U.S. plan for psychiatric deinstitutionalization after World War II was well-intended. A shrinking mental health care system, based on a network of antiquated psychiatric hospitals, was to be replaced by an expanded community-based system. But as this plan was executed in practice it became an example of the squishy-balloon effect: when you squeeze the air in one part of the balloon, it simply puffs up in another place. During the 1970s and 1980s, the last of the psychiatric hospitals closed, but sufficient investment never materialized for the proposed community-based system. Without it, people with mental illness have been placed at great risk for incarceration, as the scarcity of health supports expanded to become a problem of unattended mental illness and homelessness. Public behaviors viewed as antisocial, threatening, or inappropriate attract the attention of law enforcement: first responders who are equipped with criminal justice tools, and acting in the absence of mental health care resources. The criminal justice system became the destination for many people with mental illness.

  Coincident with the final wave of state hospital closures, in 1971, President Richard M. Nixon declared drug abuse “public enemy number one,” and the decades-long national war on drugs was launched. Over the years, the war on drugs provided the foundation and rationale for a tough-on-crime approach, and the investments followed. Intensifying law enforcement activity and escalating criminal penalties were accompanied by the introduction of lengthy sentences, including mandatory minimums and truth-in-sentencing laws. Under these conditions, the criminal justice system experienced massive growth. Low-income Black and Latino communities became sites of hyperincarceration, the geographic concentration of mass incarceration.2

  These developments were accompanied by the stunted development of public health care systems and the further unraveling of the social safety net, with profound effects on the nation’s poorest populations and serious implications for people with mental illness. Reductions in federal aid to cities combined with the loss of manufacturing jobs to cheaper foreign markets to increase local poverty rates. In the mid-1990s, federal income support effectively ended with welfare reform, while funding for many critical social programs continued to be systematically cut. It was no coincidence that the communities most affected by these changes—low-income, predominantly Black and Latino—also experienced higher rates of preventable injury, disease, and death. Health inequalities are preserved and reinforced by punitive social policies under inequitable conditions in a form of structural violence.3 For more than four decades, the combination of hyperincarceration and vanishing public resources has contained and perpetuated these conditions in affected communities.4

  In 2008, a combination of forces propelled Barack Obama to the presidency with a strong mandate for social change. While his administration didn’t foreground the problem of mass incarceration until well into Obama’s second term, the Patient Protection and Affordable Care Act of 2010 became an early and signature accomplishment of his presidency. This successful effort incorporated a public health vision for health care, unlike the Clintons’ attempt to reform the U.S. health care system fourteen years earlier,5 albeit with continued reliance on a private health insurance marketplace and a system that remains largely for-profit. Elements of the act, however, suggested opportunities for decarceration, with significant investments in broader coverage, including for behavioral health care, and in supportive services. Beyond the act, other developments in health care have further strengthened these opportunities, including the promotion of health information technology via 2009 legislation, and capacity expansion for substance use disorder treatment and mental health services via 2016 legislation.

  A comprehensive, sustained effort to develop a robust, public-health-oriented health care system could help to reverse-engineer the squishy-balloon effect. By expanding and improving coverage and care in the community, we could shrink the criminal justice system as a consequence. The rationale, therefore, for this notion that health care is a vehicle for achieving decarc
eration is reflected through the practical experience of mass incarceration and the potential of a public health imperative to redress some of the health care failings it has exposed. At a minimum, this health care decarceration vehicle must include three features:

  •Universal health insurance coverage, and targeted enrollment and retention in coverage for justice-involved individuals and their families. Research shows that as many as nine out of ten people entering jail are uninsured,6 and at least 80 percent lack health care coverage at the time of their release.7

  •Investment in mental health and substance use disorder care and treatment—behavioral health care—as a core component of the general health care system. Approximately half of prisoners and two-thirds of jail inmates, respectively, meet clinical criteria for alcohol and/or drug abuse or dependence. The prevalence of diagnosed mental illness among the incarcerated hovers around 50 percent; among jail inmates, the rate may be as high as two-thirds of the population. Not surprisingly, serious mental illness is also disproportionately high, affecting at least one in ten prisoners in the United States. Among jail inmates with serious mental illness, an estimated 70 percent have a co-occurring substance use disorder.8

  •Supportive services to address the social determinants of health. A wealth of evidence demonstrates that housing, legal, family, income, and employment issues can make or break a successful return to community life after incarceration. Problems in one or more of these domains increase the risk of arrest, and also exert a considerable influence on health outcomes.

  This vision of health care interrupts the negative feedback loops created by individual unmet health problems and worsening social conditions, and saves lives and money with early, preventive, community-oriented interventions. Aside from these broader benefits to population health, if such health care investments are directed, for the long term, to those same communities suffering the dominance of the criminal justice paradigm, they offer considerable potential for dismantling the carceral state. From a systems perspective, this health care decarceration vehicle offers a transformative conceptual and practical framework for improving health and social equity in the United States.

  Universal Health Insurance Coverage

  Because the incarcerated are excluded from official poverty statistics, the scale of economic disadvantage in this population is not routinely reported.9 Studies suggest that between one-third and one-half of people held in federal, state, and local jails earned incomes prior to incarceration no higher than the federal poverty level.10 Health care coverage could help to counteract some of the negative consequences of incarceration by facilitating access to health care and services, and securing a social safety net that could prevent future incarceration.

  While the U.S. health care system has not yet embraced a universal coverage model, government-led programs have offered some semblance of this approach, beginning with Medicare and Medicaid in 1965, and more recently with the health care marketplaces and Medicaid expansion provided by the Affordable Care Act in 2010. For current and former prisoners, many of whom are single adults, this latest development was particularly notable: for the first time, low-income, nondisabled individuals without dependents became eligible for Medicaid coverage. Federal guidance released in 2016 clarified how, when, and where correctional authorities could facilitate access to Medicaid coverage and health care for individuals transitioning back to their communities. Some jurisdictions already recognized this opportunity; as of January 2015, sixty-four programs provided Medicaid enrollment in correctional settings. Most were located in states opting for Medicaid expansion, and the vast majority of these programs were implemented in jails.11

  The intricacies of establishing Medicaid eligibility and enrollment were simplified with policy changes incorporated into the act, and accompanied by additional federal funding for upgrading state information systems and automating eligibility and connectivity processes for the jail population. For correctional agencies, establishing eligibility could produce internal cost savings, because revised federal policies under the act allowed Medicaid payment to cover hospitalizations occurring during the period of incarceration.12 Several states reported annual savings of up to $19 million with this arrangement.13

  Although federal law already allowed states to suspend rather than terminate Medicaid coverage during the period of imprisonment, few chose to implement this option due to limitations in their information-sharing capacity. These limitations made their systems vulnerable to inappropriate payments to insurance companies, because they were unable to verify patient status in real time. Among the sixty-four criminal-justice-based Medicaid enrollment programs in January 2015 mentioned earlier, two-thirds were suspending instead of terminating Medicaid coverage upon incarceration. This arrangement simplifies the process for ensuring coverage upon release, because it requires simple reactivation rather than the more complex, time-consuming steps of reapplication. For health plans, it suggests the longer-term promise of health care cost containment, because individuals who are incarcerated for shorter periods of time will be more easily retained in care.

  In a true public-health-oriented health care system, these provisions would be unnecessary. Health insurance should remain active through any period of incarceration and available to cover all health care delivered inside. In addition to improving the continuity of care for individuals detained in prisons and jails, this alignment would reduce expenses to the criminal justice system, and likely also improve the care delivered in these settings.

  The quality of health care inside prisons and jails remains unacceptable by modern standards, and legal judgments seeking to improve it go largely unenforced. Because there is no national accreditation mandate or oversight monitoring, there is no assurance that prisoners will receive preventive health care during their incarceration, or even care that is sufficiently timely for addressing chronic health conditions. In 1976, the U.S. Supreme Court established in Estelle v. Gamble that failure to address the medical needs of a prisoner constitutes “cruel and unusual punishment,” a violation of the Eighth Amendment, but this case law has not produced a U.S. prison health care system. Obtaining coverage before leaving the criminal justice system does nothing to address the problem of underinvestment in prison health care, where effective and meaningful health interventions are still lacking. In 2016, the Centers for Disease Control released findings from the first-ever report on prison health care in the United States, including results from correctional authorities in forty-five participating states.14 This information could help to set an agenda for future improvements in the structure and delivery of health care to the incarcerated, and a basis for preserving coverage through the period of incarceration.

  Under a single-payer plan, universal coverage facilitates the sharing of health information among providers, which is crucial to ensuring the continuity and coordination of care. In the absence of a single-payer model, electronic health records provide a functionally similar method for achieving this arrangement, if implementation is sufficiently widespread. In 2009, a federal law offered incentives for providers instituting such health information technology to promote this approach, including in correctional health care settings. Health care connectivity between criminal justice and community-based settings is a critical step toward health care engagement and retention for individuals who have been justice-involved. But for this to occur, health plans need to work with criminal justice settings to develop procedures for record-sharing. The Affordable Care Act created health information exchanges—networks of providers agreeing to share patient electronic health records—to structure this type of relationship.

  Ultimately, the participation of prisons and jails in health insurance exchanges provided a critical opportunity for improving health care connectivity and coordination between the criminal justice setting and community-based care. As systems prepare for or undergo larger structural changes, correctional agencies can help to carve the relational pathways for building these ki
nds of partnerships. In Connecticut, state agencies representing both the health and human services and the criminal justice systems, respectively, established an agreement to accept each other’s release-of-information forms in order to authorize the sharing of health—including behavioral health—information.15 Ideally, policy standards for data collection and information exchange between the health care and criminal justice systems are established in a data governance structure.16

  In the absence of a single-payer plan, who are the health care providers with whom jails and prisons should develop information-sharing agreements and foster technological connectivity? In Multnomah County, Oregon, 80 percent of health care providers are using the same electronic health record as the jail.17 Achieving this level of integration could be a goal for some jurisdictions, but community health centers, known as federally qualified health clinics, offer a natural starting place for building this relationship. These sites are structured to provide safety net care and are located in many of the same neighborhoods experiencing hyperincarceration.

  The transitions clinic model formalizes this role by explicitly identifying itself as a primary-care-coordinated care service for formerly incarcerated individuals with chronic health conditions, and incorporates community health workers with similar lived experience.18 Participants in this model have lower rates of emergency room visits in comparison with their counterparts receiving regular primary care, demonstrating effective care engagement and suggesting improved health outcomes.19

  Investment in Behavioral Health Care as a Core Component of the General Health Care System

  Coverage brings the opportunity for health care access. Given the prevalence of mental illness and addiction among prisoners in the United States, improving access to behavioral health care is a significant opportunity for reducing and preventing incarceration. In a public health vision, behavioral health care is part of general health care. This represents an approach distinctly different from its historical relegation to the realm of specialty care, where it has remained isolated and underfunded, in contrast to the enormous investment made in a criminal justice response to drug use. Through the process of psychiatric deinstitutionalization, the mental health care system lost critical funding that could have developed a community-based approach.