This article imagines a cohesive, integrated system that shepherds people through and beyond their criminal justice issues and incentivizes the community to assist them.
A Rising Tide Lifts All Boats: Progressive Diversion & Reentry, “Problem-to-Pardon” Case Management
Reprinted from Criminal Justice Volume 36, Number 1, American Bar Association.
On an early turn playing the famous board game The Game of Life, you have a choice to make: go to college or start your career. While this decision sets the tone for the kind of game you’ll play, no matter which option you choose, these distinct paths ultimately merge back together allowing you to spearhead your career, start a family, buy a house, and eventually retire.
In our version of The Game of Life, you have two very different options: You go to prison or you don’t. But the penalties for going to prison are tantamount to playing the rest of the game with both arms tied behind your back.
This article explores ways in which all stakeholders in the criminal justice ecosystem can work together on common goals to help justice-impacted individuals navigate their ways through The Game of Life, provide resources for their incremental success, teach them to avoid and/or elegantly deal with obstacles that formerly resulted in recidivation, and provide a path to exit the game with more joyful, productive, and purposeful lives free of the stigma, shame, and barriers associated with having a felony. This reveals that the underlying purpose is to change The Game of Life into a way of life, one in which all stakeholders, and the community at large, will be lifted up, permanently disrupting the intergenerational cycle of incarceration.
Problem-to-Pardon Case Management
When you are admitted to a hospital, a hospital social worker begins to plan your discharge immediately upon your admission, often before a doctor even meets with you. Why? Because leaving better than you were upon entry is the ultimate goal of a hospital. This is the kind of framework in which legal case management must operate. People entering the criminal justice system are not given the tools and information required to reduce their sentence or prepare for reintegration into the community. Aside from a defense attorney’s guidance from trial to sentencing, justice-impacted people are largely on their own. Abandoning our most vulnerable people in their time of need should not be the standard. Case management should not begin and end in a courtroom or prison; reentry preparation should start immediately after a defendant enters the system and end when the client has completed their pardon application. We have coined the term for this process the “Problem-to-Pardon” case management system.
In our current system, punishment goes way beyond incarceration. American culture normatively accepts prison as a solution to violence and civil disobedience rather than a symptom. What we mean by this is that our collective consciousness and discourse in relation to the purpose of prisons have been limited by our tolerance to the cycle of violence. We must ask ourselves, “on an institutional level, what do prisons do to curb the reproduction of violence?” As it stands now, the answer is, unfortunately, “not much.”
Upon release, justice-impacted people are frequently subjected to visits from their parole officer. Without diving into the functional roles of a case manager versus a parole officer, their presences alone paint a stark contrast. Parole officers are able to show up unannounced, wielding a gun on their hip. They remind their client to find housing and/or a job, terms of their parole, seldom offering any assistance on achieving these requirements. What does this say about how we view justice-impacted people post reentry? A threatening, combative figure cannot be the default for all cases.
When someone is locked away for committing a crime, no matter if the crime is violent or nonviolent, that crime did not happen in an isolation chamber. Until attention is drawn to the root causes rather than the crime itself, rehabilitation and reconciliation remain anomalies. Simply displacing society’s “bad actors” does nothing to combat crime itself; we must engage with justice-impacted people and commit to rehabilitation through hands-on, personalized, evidence-based, and community-oriented casework.
There are several different models for conducting casework. In our opinion, the Transition from Jail to Community (TJC) Initiative launched by the National Institute of Corrections (NIC) in partnership with the Urban Institute in 2007 is the closest representation of a Problem-to-Pardon case management system. This model is based on a significant body of prisoner reentry research and evidence-based practices. The key five elements of the TJC Model are as follows:
Leadership, Vision, and Organizational Culture. Leaders from both the jail and the community must be actively engaged, articulate a clear vision, set expectations, identify important issues, and involve other key constituencies.
Collaborative Structure and Joint Ownership. Effective transition strategies rely on collaboration and information-sharing among jail and community-based partners and joint ownership of the problem and solution.
Data-Driven Understanding of Local Reentry. Regular analysis of objective data, including analysis of the jail population characteristics, informs and drives decision-making and policy formation.
Targeted Intervention Strategies The strategy to improve transition at the individual level involves introducing specific interventions at critical points along the jail-to-community continuum.
Self-Evaluation and Sustainability. Self-evaluation involves the use of objective data to guide operations, monitor progress, and inform decision-making. Sustainability involves planning to maintain initiative progress despite changes in leadership, policy, funding, and staffing. See Kevin Warwick, Hannah Dodd & S. Rebecca Neusteter, Case Management Strategies for Successful Jail Reentry, org (Sept. 2012), https://urbn.is/3sdEI4g.
This model draws on four main principles popularized by Canadians Paul Gendreau and Robert Ross: human service, risk, need, and responsivity.
The human service principle states that punishment alone cannot change an individual’s behavior or prevent the individual from recidivating. See Michael L. Prendergast et al., The Andrews’ Principles of Risk, Need, and Responsivity as Applied in Drug Abuse Treatment Programs: Meta-analysis of Crime and Drug Use Outcomes, 9 J. Experimental Criminology 275 (2013), https://bit.ly/39Bu1jJ. This not only includes incarceration itself, but also parole and additional post-sentence surveillance. Considerable research has supported this principle. In order to reduce recidivism, interventions such as treatment and supportive programming must be accessible. Clients’ improvements are linked more closely to positive reinforcement rather than negative. Interventions should be intensive; every client should be in case management for at least six months.
The risk principle refers to the importance of risk assessment before allocating treatment and additional resources. See id. Many studies have shown that high-risk individuals who receive relevant treatment experience lower rates of recidivism. See Warwick, Dodd & Neusteter, supra. Comparatively low-risk individuals may actually increase their chances of recidivism if treated similarly to high-risk individuals. See Christopher Tyson Lowenkamp, Correctional Program Integrity and Treatment Effectiveness: A Multi-Site, Program-Level Analysis (doctoral dissertation) (on file with University of Cincinnati) (2004), https://bit.ly/39f7PLK. It is important to note that this does not mean that low-risk individuals should not receive any assistance during incarceration and reentry; this means that case management’s focus must be on the individuals who are most likely to benefit from this work. A few examples of relevant areas of risk assessment include age, prior convictions, employment at arrest, and drug use history. Risk also included the type of crime committed; the most recent research has shown that “violent prior offenders were reconvicted at a higher rate (41.3%) than nonviolent offenders (23.3%).” See US Sentencing Comm’n, Recidivism Among Federal Violent Offenders, ussc.gov (Jan. 2019), https://bit.ly/3q7NkYm. Risk should be assessed at multiple points along the case management process and be determined by classification instruments as opposed to clinical judgment. Standardized classification methods would combat rater bias and help support future research.
The need principle is fairly self-explanatory. This principle draws attention to the client’s specific traits, history, and, of course, needs. See Prendergast et al., supra. Research has shown that case management is more effective if the focus is solely or primarily on the client’s criminogenic needs (antisocial personality, pro-criminal attitudes, social supports for crime, substance abuse, family and marital relationships, school and/or work, and prosocial recreational activities). See Warwick, Dodd & Neusteter, supra. Focusing solely or primarily on the client’s non-criminogenic needs, such as stress and self-esteem, has been shown to have no effect or actually increase the client’s likelihood of recidivating. See id. It can be argued that many non-criminogenic needs are mere symptoms of more overarching needs. Figuratively speaking, focusing on non-criminogenic interventions would be like placing a bandage on an infected wound. By concentrating intervention strategies at the root of the client’s needs (their criminogenic needs), the client is more likely to experience positive change overall.
Finally, the responsivity principle can be broken down into two subcategories: the learning style of the client and traits that may affect treatment selection and response, such as mental health issues and/or cognitive disabilities. See Prendergast et al., supra. This principle has also proven to be relevant in constructing case management plans for other “special” populations, or populations that are considered a minority in prisons, such as female prisoners, sex offenders, and prisoners convicted of violent crimes. See id.
According to many experts, the mark of successful reentry is when an individual stays out of prison for three to five years. In our opinion, we feel that five years should be the sole marker of success. After this five-year period, individuals are significantly less likely to recidivate compared to a three- or four-year marker. According to the proposed Problem-to-Pardon case management system, once the individual crosses this five-year threshold, they should have the opportunity to be pardoned for their crime. Adopting this model would actualize the criminal justice system’s original promise to serve justice and foster rehabilitation. (More on this below.) As it stands now, individuals can apply to be pardoned by the state or federal government, but only 17 states “regularly” approve (more than 30%) these applications. See Restoration of Rights Project, 50-State Comparison: Pardon Policy & Practice, ccresourcecenter.org (updated May 2020), https://bit.ly/2MQggWp.
The Problem-to-Pardon case management system looks to make pardons an attainable goal for the justice-impacted community. We believe that by adopting this incentive, individuals would be more likely to cooperate and be more engaged in case management and treatment. Learned helplessness may be an overlooked factor in client responsivity to treatment; if the client perceives their situation as irredeemable, how can we expect them to put in the work to change?
Beyond shifting policies and framework, the foundation of case management is its caseworkers. Their treatment, pay, work-life balance, and physical and mental health directly influence their impact on their clients. Compared to correctional officers, caseworkers experience higher levels of burnout and, consequently, turnover. See Joseph R. Carlson & George Thomas, Burnout Among Prison Caseworkers and Correctional Officers, 43 J. Offender Rehab. 19 (2006), https://bit.ly/3nBPSfH. The three most common reasons for leaving the profession are inadequate payment, lack of support from management, and stress, also known as burnout. See id. Case managers do not want to be underpaid paper pushers; they want to believe their emotional labor and dedication are not only valuable but viable. Furthermore, these adverse working conditions hinder client progress and make case management, as a whole, unsustainable. Lack of support and stress ultimately obstruct interpersonal connections between clients and case managers. No amount of empirical methodology can substitute for rapport; clients need to trust their caseworkers in order for these methods to be successful.
Caseworkers should be selected with consideration of secondary trauma, interpersonal skills, cooperation, and collaboration. Support should always be available to caseworkers, as this job is highly intensive and emotionally draining. Feelings of isolation and an overwhelming workload can lead caseworkers to experience compassion fatigue, which can negatively impact their clients. Creating a work environment that maintains coworker support and promotes opportunities for personal development will make employment more sustainable. Investing in caseworkers is an investment in reentry success.
One of the ways case managers can receive much-needed support is through community ties. Case management should not solely reside in prisons; it is crucial that community-based organizations that are accessible and familiar with the justice-impacted community cosponsor reentry. Additionally, this unburdens caseworkers and ensures a smooth transition into reentry for the client. Depending on the client’s criminogenic tendencies and needs, caseworkers can connect clients to the relevant support systems. Establishing rapport between clients and the community before release is imperative, especially for high-risk clients who are more likely to recidivate. When community-based organizations collaborate with caseworkers and initiate “in-reach,” the transition from prison to freedom looks less like a leap of faith and more like a continuum of care. See Warwick, Dodd & Neusteter, supra.
Social Determinants of Health
Social and community context, access to quality health care, and neighborhood and built environment are three key areas of social determinants of health that are often overlooked during casework. See Ctrs for Disease Control & Prevention, What Are Social Determinants of Health, cdc.gov, https://bit.ly/2K5eS1f. As defined by the CDC, social determinants of health “are conditions in the places where people live, learn, work, and play that affect a wide range of health risks and outcomes.” See id. One’s “cohesion within a community, civic participation, [experiences of] discrimination, and conditions in the workplace, and incarceration” as well as their “quality of housing, access to transportation, [. . .] and neighborhood crime and violence” should all be assessed and considered when planning reentry. See id. Access to affordable, quality physical and mental health care, including an individual’s health literacy, is also crucial to a successful reentry.
Likely community collaborators would include support groups, 12-step programs, housing programs, job assistance, childcare, affordable therapy, psychoeducation programs, as well as many others. It is important to note that people working within these organizations endure similar challenges as caseworkers; these programs are largely underfunded and overworked. Compounded with finding programs that are within an accessible physical proximity to clients, partnering with quality community programs can be an insurmountable task.
While caseworkers and community advocates can develop a relationship of mutual aid, many of the obstacles they face cannot be overcome without adequate funding. The challenges of funding have haunted casework and community interventions since their inception, and by no means will we pretend to have any solution that has not already been proposed. However, we cannot simply ignore this problem. This is where intervention and activism intersect: No systematic change can occur without the backing of a mass movement.
This year, the Black Lives Matter movement held a spotlight on the institutional racism deeply embedded in our country and, by extension, our justice system. This hyperawareness and newly widespread discourse around systematic change make fertile soil for reevaluating and reshaping our case management system. Historically, the quality of case management heavily depends on the client’s race, socioeconomic status, and gender identity. Of course, no policy reflects this discrepancy. However, through self-reported data, we know that these systems favor white, affluent, cisgender, heterosexual clients. Interestingly, casework looks vastly different between mothers and fathers, especially when comparing white parents to Black parents. While childcare seems like an obvious procedure in case management for clients who are mothers, fathers are largely overlooked when it comes to discussing childcare. This oversight stems from gendered and racist stereotypes, particularly the myth of the “missing Black father.”
American case management has operated from a colorblind, heteronormative, ableist, and classist standpoint for too long. See Rose M. Brewer & Nancy A. Heitzeg, The Racialization of Crime and Punishment, Criminal Justice, Color-Blind Racism, and the Political Economy of the Prison Industrial Complex, 51 Am. Behav. Scientist 625 (2008), https://bit.ly/3seyEbE. According to the Sentencing Project, over 60% of people in prison are people of color. See The Sentencing Project, Racial Disparity, sentencingproject.org, https://bit.ly/2LkCIGI. Black men are six times more likely to be incarcerated compared to white men, while Hispanic men are just over two times as likely. See id. While women only make up seven percent of the prison population, these racial discrepancies manifest similarly, as well. See id. It is difficult to estimate the percentage of transgender, genderfluid, nonbinary, and genderqueer people incarcerated given the binary nature of the prison system and its lack of data collection. However, thanks to the 2015 National Transgender Discrimination Survey, we know that Black transgender women were four and a half times more likely to be incarcerated compared to their white counterparts. See Nat’l Ctr. for Transgender Equality, The Report of the 2015 U.S. Transgender Survey, transequality.org (2016), https://bit.ly/2Xv99ov. Additionally, Native American transgender women were three times as likely to experience incarceration compared to white transgender women. See id.
While it is seemingly intuitive to treat all of your clients the same, this does nothing to combat systemic racism, sexism, transphobia, ableism, and classism within our justice and case management systems. By adopting an intersectional framework that draws on critical race theory, multiple schools of feminist theory, and disability studies, caseworkers can begin to implement truly individualized casework and actively combat institutionalized bias. See Brewer & Heitzeg, supra. Integrating theory into practice once again highlights the importance of establishing rapport: How can a client trust their case manager and the process if the process is designed to actively erase, undermine, or overlook their identity?
Today, more and more Americans are viewing incarceration as a race and class issue rather than the previously accepted black and white, good versus bad narrative. The topic of incarceration has quickly become a dinner table conversation rather than a shameful taboo. Now more than ever, caseworkers and advocates alike have the opportunity to seize and hold the public’s attention. Case management and community interventions are a major component in the larger movement of dismantling unjust practices. The more engaged and educated the public is on these issues, the more likely they are to support and push for policies that will allocate adequate funding to these life-changing services.
Funding social services often elicits pushback from concerned politicians and citizens alike: How do we pay for this? When it comes to funding preventative services versus treatment services, prevention is almost always significantly cheaper and more effective than treatment. For example, when Vice President-elect Kamala Harris launched Back on Track in 2005, not only did recidivism reduce from 53% to less than 10%, but costs reduced, as well. The program costs “approximately $5,000 per participant, compared with $10,000 to adjudicate a case and nearly $50,000 per year to house a low-level offender in prison or jail.” See Jacquelyn L. Rivers & Lenore Anderson, Back on Track: A Problem-Solving Reentry Court, bja.ojp.gov (Sept. 2009), https://bit.ly/3oyBLcg. When surveying 45 states in 2015, the Vera Institute of Justice found that the United States spent over $42 billion on prison expenditures in a single year. See Vera Inst. of Just., Prison Spending in 2015, vera.org, https://bit.ly/3nDUBxf. When questioning costs, we should begin with this figure rather than picking apart programs that will likely decrease this immense spending.
Another way caseworkers can simultaneously lighten their caseload and connect the client with their community is by involving the client’s family, whether that is chosen family or blood relatives. As it stands now, families are overlooked in the case management process. Before the individual is released from prison, caseworkers or parole officers will assess the individual’s future residence, mainly checking for weapons and drugs. While this process is necessary, this method alone fails to see the client’s environment as both physical and interpersonal. A family’s role in reentry can be helpful or harmful depending on their relationship with the client as well as their own criminogenic tendencies and needs. Therefore, risk assessment should go beyond the client and include family members, as well. Autonomy is another integral component. What role does the client want their family to serve? The community at large? What are their goals? Their concerns? How do we address these notions realistically and prosocially? While caseworkers are experts on reentry, clients are experts on themselves. Without taking the client’s perceived social support network into account, caseworkers cannot see the full picture. We cannot stress this enough: A reciprocal relationship between client and caseworker is necessary to achieve advantageous outcomes.
Mental Health Support
Whether or not the caseworker deems the family fit to take a more active role in reentry, psychoeducation is crucial. Reentry is often overwhelming for justice-impacted people, and it may be easiest to turn to antisocial coping strategies such as alcohol use, drug use, and crime. This is especially important for families of individuals suffering from mental illness. As defined by Len and John Sperry, “psychoeducation is a broad treatment strategy of educating and training individuals experiencing psychological disturbance [and their families] to increase their knowledge, coping capacity, and skills required to solve their presenting problems.” See Len Sperry & Jon Sperry, Psychotherapy and Psychopathology: Cognitive-Behavioral and Adlerian Treatment Strategies and Interventions, in 2 Abnormal Psychology Across the Ages: Disorders and Treatments 191 (Thomas Plante ed., 2013).
Let’s imagine an actively involved mother who is participating in psychoeducation with her justice-impacted son struggling with schizophrenia. Let’s call this person Josh. Josh insists that the government is out to get him and wants to send him back to prison. This is a textbook example of a delusion, one of the major symptoms of schizophrenia. Before enrolling in psychoeducation, Josh’s mother would try to comfort Josh by telling him that the government could not find him in their home. Despite her good intentions, Josh’s mother learns that her response only validated Josh’s delusion and ultimately contributed to its persistent reoccurrence. Through psychoeducation, both Josh and his mother can learn strategies that soothe Josh when he is experiencing adverse symptoms, such as delusions, without affirming them.
Psychoeducation has been proven to be an effective tool in mitigating symptoms of most mental disorders, regardless of severity. However, like most individual interventions, psychoeducation works best in conjunction with other forms of therapy. By nature, psychoeducation is short-termed and goal-oriented. Other forms of therapy, such as group therapy and cognitive behavioral therapy, help with maintenance. Therapeutic needs are highly individualized, which requires caseworkers to be well versed in psychiatric interventions as well as frequently risk assessing and consulting with the relevant mental health professionals.
Drug and Alcohol Support
Drug and alcohol addiction are common risk factors that contribute to recidivism. During risk assessment, it is absolutely crucial to accurately evaluate the type, severity, and history of the affected individual. The client’s immediate family and community may play an important role in risk assessment: Is the support system encouraging addictive behaviors? Are they encouraging sobriety? Are they ambivalent? What does that reaction look like? Is there a history of substance abuse in the client’s family or support system? If so, is that person sober or seeking treatment? Like therapy, treatment for substance abuse is highly individualized. If the treatment does not suit the client, the effects may be unsubstantial or, even worse, regressive. A 12-step, nonresidential program may be ineffective if the individual goes home to an alcoholic spouse. In this scenario, a rehabilitation facility may be the most appropriate intervention.
However, reconnecting with the individual’s immediate community is the ultimate goal of Problem-to-Pardon case management, and any program that requires additional separation must be chosen only out of absolute necessity for the well-being of the client.
A “Culture of Pardons”
Certainly, not every person who applies for a pardon will be granted one. But what if the real goal is not to obtain a pardon for any particular applicant, but for this tide to lift all boats in the entire community? In doing so, it will increase the opportunity to be granted a pardon for all applicants.
“It takes a village to raise a child” is an African proverb that means that an entire community of people must take responsibility for children in order for them to experience and grow in a safe and healthy environment. This phrase and concept were famously used by Hillary Rodham Clinton in writing and titling her book It Takes a Village: And Other Lessons Children Teach Us, in which she addresses the impact individuals and their community have on a child’s well-being and calls for a society that strives to meet all of a child’s needs. See Hillary Rodham Clinton, It Takes a Village: And Other Lessons Children Teach Us (1996).
The point is, if the entire community subscribes to this endeavor, the benefits will not only inure to the child, but also to the village as a whole. This wider community benefit is exactly what we intend by advocating for a “Culture of Pardons.”
As we mentioned earlier, only 17 states regularly (more than 30%) approve pardon applications from previously incarcerated people. See Restoration of Rights Project, supra. This process looks vastly different state-by-state, with varying degrees of roadblocks. The decision to grant an individual’s request can be decided by the state’s governor, high officials such as the attorney general or chief justice, an independent board, a parole board, or a combination of these powers. Of course, the president also has the ability to grant an individual’s request. The fact that the threshold for deeming a state a “frequent” pardoner is only 30% shows how rare pardoning is. While state legislation is crucial to combatting this anomaly, case management must also educate and prepare their clients for applying.
Case managers should be well versed in federal and state requirements for pardon applications. Eligibility varies state by state, but we recommend waiting five years post-reentry to apply. In the meantime, caseworkers should be tracking the client’s progress. This includes monitoring community engagement, employment status, sobriety (if relevant), and program attendance. Keeping track of progress is also paramount for reentry research. This domain of research is relatively new and has lacked alignment with practitioners. Collaboration with reputable researchers can only advance our understanding and success in reintegrating clients.
Case managers should explain how to apply for a pardon while the client is incarcerated so that they are well prepared upon reentry. We recommend presenting this information as a step-by-step roadmap. Putting together a well-organized and comprehensive application will and should take time. Clients should be encouraged to include as much information as possible, going beyond what is required. The more detailed the application, the better. When in doubt, the best response is “see attached.” Including an up-to-date résumé is always a plus if the client’s state does not already require it. Character letters should be written by reputable and trustworthy peers and family members. It is important to note that many states limit the number of blood relatives when asking for character letters. By including caseworkers in the process of applying for a pardon, the individual is less likely to make mistakes on their application and, therefore, reduces their chance of rejection.
At the writing of this article, we are experiencing a worldwide COVID-19 pandemic of historic proportions. While we are hopeful that a vaccine is soon to be approved, we are reminded that it is not the vaccine that saves lives, but the vaccination that saves lives. One suggestion to overcome public resistance to vaccinations is to create an incentive program. That is, to pay people to be vaccinated. The goal is to have enough people vaccinated so that the entire community benefits from herd immunity.
Similarly, creating a Culture of Pardons not only benefits the individual post-reentry but also motivates individuals entering the justice system to immerse themselves in their rehabilitation and reentry. Granting a pardon is a life-changing moment; it opens the doors so that an individual will not be barred from housing or rejected from a job. A Culture of Pardons would set the tone for a new era of criminal justice, one where reintegration prevails over punishment. We know that punishment does not reduce recidivism, so why must we continue to treat the justice-impacted community inhumanly? Our imagination must go beyond intervention and expand upon opportunity. A Culture of Pardons puts healing above all else; it gives people a second chance. It also breaks down the wall between the justice-impacted community and the community at large.
Restoring one’s dignity, autonomy, and sense of belonging should be the ultimate goal of reentry. To put it in one word, the Problem-to-Pardons case management system and a Culture of Pardons strive for reintegration. By adopting these ideas, players in The Game of Life can see the roads merge on the horizon. Our communities and our caseworkers build this intersection, brick by brick. With their help, the justice-impacted community can catch up with those who have never been affected by the justice system. Reintegration isn’t simply leaving prison; it’s walking side by side with the community, weaving a thread between the justice-impacted and the community at large until the two become indistinguishable.