What Is Jail?

The history of jails in English-speaking countries, including the United States, can be traced back to 12th-century England during the reign of King Henry II, who ordered the construction of jails and placed them under the control of the crown’s local government representative, the county sheriff. Their primary purpose was to detain people awaiting trial and those convicted but awaiting punishment. The earliest reference to U.S. jails is to the construction of a “people pen” in 1632 in pre-Revolutionary Boston. Mirroring the brutal British penal codes and practices of the day, the dominant form of criminal punishment in Colonial America was corporal—with serious crimes punishable by death, physical mutilation, branding, or whipping, and lesser offenses by public ridicule and humiliation through the use of the stocks, the pillory, the public cage, or the ducking stool. But with the conversion of Philadelphia’s Walnut Street Jail into the country’s first penitentiary in 1790—as part of penal reform championed by the Quakers—incarceration as punishment soon became the default response for serious lawbreaking and with it the modern prison system was born.

Today jails are, with few exceptions, municipal or county-level confinement facilities that are administered by local law enforcement agencies or departments of correction. Like their historical antecedents, they are used to detain people awaiting trial who are deemed a flight risk or a danger to public safety. But many also house a range of other people caught up in the criminal system as described below. Jails range in size from small “lockups” that hold no more than a handful of people to networks of facilities, such as the eight jails in Los Angeles County that house approximately 20,000 inmates. Their costs are mainly paid for by a municipality or county, with reimbursements sometimes coming from the state or federal governments.

Unlike state prisons, which almost exclusively hold people serving state sentences, jail populations are heterogeneous, making them particularly challenging to manage.

Jails may house the following people:

  • Pretrial detainees, held from the time they are arrested until they post bail, are released on their own recognizance or to some form of pretrial community supervision—or until the cases against them are settled by trial or plea.
  • Locally sentenced inmates convicted of minor crimes, serve short custodial sentences, typically a year or less, but longer in some states.
  • State-sentenced inmates convicted of more serious crimes may be in jail awaiting transfer to a state prison or are serving their sentence in a local facility due to prison overcrowding. Local jurisdictions are paid to house these overflow inmates. That trend is most significant in California, where the state department of correction is under court order to reduce crowding in prisons.
  • Apprehended probation violators may either be awaiting a hearing on an alleged violation of the terms of their supervision in the community or serving the remainder of their sentence in local confinement.
  • Apprehended parole violators are often in jail awaiting a hearing on an alleged violation or a transfer back to state prison.
  • Pretrial federal detainees may be in jail awaiting trial on federal charges in jurisdictions where no federal detention beds are available. Local jurisdictions are paid to house these inmates.
  • Apprehended pretrial or sentenced inmates from other jurisdictions may be awaiting transfer or be housed at the jail due to unavailability of beds in another state or local jurisdiction.
  • Immigration and Customs Enforcement detainees are sometimes held at the request of the U.S. government pending deportation or adjudication of immigration violations. Local jurisdictions are paid to house these inmates.

This is excerpted from Vera’s 2015 report Incarceration’s Front Door: The Misuse of Jails in America.

The Challenges of Reentry

Although most people admitted to jail over the course of a year are released within hours or days, rather than weeks or months, even a short stay is more than an inconvenience. Being detained is often the beginning of a journey through the criminal justice system that can take many wrong turns. Just a few days in jail can increase the likelihood of a sentence of incarceration and its harshness, reduce economic viability, promote future criminal behavior, and worsen the health of those who enter—making jail a gateway to deeper and more lasting involvement in the justice system at considerable costs to the people involved and to society at large. These costs are also borne by the families and communities of those in jail, in turn depressing economies, contributing to increased crime, and breaking familial and social bonds. For the disproportionately high number of those who enter jails from communities of color or who suffer from mental illness, addiction, or homelessness—or some combination of those—time spent in jail exacerbates already difficult conditions and propels many people into a cycle of incarceration that is extremely hard to break.

Prior to the late 1990s, jail reentry and jail discharge planning were virtually unheard of, and few jails provided services to support people as they left custody. In the past decade, however, jails have begun to implement new service models with the aim of reducing recidivism. For example, in collaboration with the New York City Department of Correction, Vera’s Substance Use and Mental Health Program developed and validated a low-cost and easy-to-implement tool for men—called the Service Priority Indicator—that jail officials can use to identify those who would benefit most from access to the system’s limited discharge planning resources.

Unfortunately, even in jurisdictions that are committed to providing jail reentry services, demand often outstrips available funding and programming.

But despite their high inmate turnover and heterogeneous populations, jails are well situated for reentry efforts. They are typically located near the communities to which people in jail will return, making outreach efforts easier to accomplish. Using a risk-and-needs-assessment instrument, jail reentry staff can work with community providers to develop reentry plans for people leaving jail that target their specific needs. Jurisdictions such as Douglas County, Kansas, and Davidson County, Tennessee, have introduced case planning and evidence-based programming in jail, and have developed networks of reentry providers that meet people while they are still in jail, work with them to build their case plans, and meet them on their release day to assist with the transition home.

With or without formal community supervision, people released from jail need basic reentry support. Most immediately, many people may need valid identification cards, particularly if they were homeless prior to incarceration. This is necessary to give them access to any benefits to which they may be entitled, such as Medicaid. They may also need assistance opening a bank account and applying for housing and job opportunities. For example, nearly 30 percent of people in U.S. jails reported unemployment in the month before their arrest. An additional 18 percent had only occasional employment and 11 percent had part-time employment before incarceration. Because so many people who find themselves in jail may be living with mental illness or a substance use disorder, providing them with medications and referrals to medical care in the community are imperative.

Although many factors can diminish a person’s chances of successfully reentering the community, debt is one of the most toxic. People often leave jail and prison responsible for criminal justice fines and fees and, combined with other financial burdens, those debts can become a major barrier to finding and maintaining employment, housing, and to family relationships, community ties, and stable mental and physical health—the very conditions known to support success. In some jurisdictions, non-payment of fines and fees results in immediate arrest and additional jail time. There are accounts of people who deliberately skip supervision appointments or miss court dates because they cannot pay their fines, setting in motion a process that will eventually lead them back to jail. When fines and fees loom large, some people may choose to return to jail if they cannot pay their debts.

Recent legislation in a growing number of states aims to tackle the issue of criminal justice debt and the barriers it creates for people trying to get back on their feet. For example, community supervision agencies in South Carolina now have the authority to restructure payment plans, stretching a person’s criminal justice debt over more years as a way to reduce monthly payments. In Washington state, judges can waive the interest people have accrued on debt to the criminal justice system that is not restitution, when people show that the payment of the accrued interest will cause hardship for them and their family, or if they have made a good faith effort to pay. Maine allows community service in lieu of cash payments, and Ohio, West Virginia, and New York allow for modified child-support payments following a period of incarceration.

Even where such options exist, people may not know about them or be able to navigate the administrative and court processes to take advantage of these rights. That’s why volunteers like CeCe Gannon can be so helpful to the reentry process. For many people, especially those without strong family connections, it’s necessary to have support in place to learn about and access the services already available while the system works to adjust and improve the reentry process as a whole.

Adapted from Vera’s 2015 report Incarceration’s Front Door: The Misuse of Jail in America.

Changing the Culture of Corrections

As jail populations nationwide have grown dramatically over the past three decades and the needs of incarcerated individuals have become increasingly acute, resources and staffing levels have not kept pace. In particular, jail administrators have elevated workforce-related issues as a top priority. Even as baby-boomer retirements are diminishing the ranks of management and experienced line staff, jails are confronting unprecedented challenges in recruiting and retaining qualified candidates for correctional staff positions at all levels.

Several factors make recruiting and retention difficult. First, correctional officers have one of the highest rates of injuries and illnesses of all occupations, due to confrontations with incarcerated people and exposure to contagious diseases. The threat of violence can cause hypervigilance and anxiety. Officers often work long hours in a closed environment, and though some jails are modern and temperature-controlled, others are “old, overcrowded, hot, and noisy.” Studies have found that among correctional officers, there are high rates of stress, depression, suicide, obesity, and cardiovascular risk factors. In addition to the potential for violence and injury, sources of stress include understaffing, shift work and overtime, and work/family conflicts that can arise due to family members’ lack of understanding of the job’s demands.

A second barrier to recruitment is competition for qualified candidates from other criminal justice agencies, specifically those in law enforcement, the federal government, and the private sector, which offer more appealing opportunities, pay, and benefits. In most cases, correctional officer pay is not comparable to that of other protective service positions. In 2014, the median annual pay for correctional officers working in both jails and prisons was $39,700, as compared to $58,630 for police officers and detectives, and $45,970 for firefighters, according to the U.S. Bureau of Labor Statistics.

The changing civilian labor force has contributed to reduced jail staffing levels as well. Historically, jail correctional employees have been predominantly white, non-Hispanic, moderately educated males in their mid-30s. With women and people of color making up a growing share of the U.S. workforce, different recruitment strategies and messaging may be necessary to reach the entire pool of qualified candidates.

These factors, along with media coverage of corruption and violence among some correctional staff, have created “cultural stigma” about the corrections field. As such, potential applicants may avoid it altogether, and those who are hired may view a position in corrections as merely a steppingstone to a more attractive job in law enforcement, rather than as a career.

Limited officer training, mentoring, and advancement opportunities further impede retention. Staffing shortages prevent extensive ongoing officer training, and what programming does exist tends to focus on security and survival, which leaves officers unequipped for interactions with a diverse population of incarcerated people—pretrial defendants, convicted offenders, people charged with felonies, those charged with misdemeanors, and probation and parole violators—with varying needs, particularly those who are in crisis and experiencing mental illness. Finally, because the management style of many jails is paramilitary and hierarchical, line officers must often comport with strict—sometimes arbitrary—rules and discipline, and seniority dictates assignments and promotions. With decision making concentrated at the top, initiative and creativity among lower-ranking officers are not often encouraged.

Just as the needs of the people detained in jails have changed over time, so too must the culture of the jails responsible for supervising them. With growing recognition that focusing on punishment instead of treatment and rehabilitation is contributing to the cycle of mass incarceration and not public safety, some jails are working to build partnerships with social workers, other treatment and service providers, and the larger community. Establishing new, more effective correctional approaches will foster healthier individuals, families, and communities—for those on both sides of the justice system.


Incarceration’s Impact on Kids and Families


s the overuse of jail becomes more common—although the majority of people are held there pretrial and presumed innocent—its growing impact extends to the children, families, and communities outside its bars, people who must also manage the financial, economic, and emotional effects. For example, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17 and 2.7 million children nationwide have one or both parents behind bars, according to a 2010 Pew Charitable Trust report.

Studies show that the growth in incarceration of men with children contributes to higher rates of homelessness among black children in particular by thinning family finances and placing additional strains on mothers. When a mother is incarcerated, her children often end up in foster care, separated from their family. Furthermore, while a stay in jail may cause a person to lose wages or work, the stigma of an arrest record—even without a conviction or charge—continues after release, with a negative effect on his or her pursuit of employment. These issues are further exacerbated by policies that ban people with certain convictions from receiving cash welfare and food stamps, and broader policies that limit their access to subsidized housing.

Such instabilities can take an emotional toll on children, especially if their parent is going in and out of jail. The cycles of jail time create uncertainty for children regarding how long their parent will be gone and when their parent will return, potentially causing more stress than if the parent went away to serve a long-term prison sentence, according to a report by the Urban Institute’s Justice Policy Center.6. 2.7 Million children

The center also reports that, to cope, children may act out in school—becoming aggressive or losing focus—or simply stop attending. These early behaviors may lead to more serious misbehavior or further mental and physical health problems in their adult years. Because higher rates of incarceration tend to occur among residents of neighborhoods already ravaged by poverty and heightened police presence, the effect on children’s education and income as they grow into adulthood creates a cycle of lagging opportunities and resources for entire communities.

However, there is growing recognition of and effort toward diminishing this problem—Sesame Street’s Little Children, Big Challenges: Incarceration initiative is a prime example. With increased opportunities for children to maintain relationships with an incarcerated parent and through better support for these parents—and other types of caregivers in the community—children and their families can be better protected and tap into their own resiliency against the effects of incarceration.

The Burden of Mental Illness Behind Bars

A lthough people in correctional facilities are mostly excluded from national health surveys, an extensive literature review reveals that this population has dramatically higher rates of disease—especially mental illness and substance use disorders—than the general population, and that correctional facilities too often serve as ill-equipped treatment providers of last resort for medically underserved and marginalized people.

Mental Illness

For nearly a century, state psychiatric hospitals were the primary institutions for treating people with mental health problems. These state asylums were established as the result of a 19th-century national crusade to decrease the extent that people with mental illness were being housed and abused in jails and poorhouses. Unfortunately, these institutions created additional problems, often warehousing patients in deplorable living conditions against their will. In the late 1950s, states began closing their asylums in large numbers with the promise that they would be replaced with a robust network of behavioral health care centers where people could receive the services they needed, while continuing to live in the community—a movement known as deinstitutionalization.

Deinstitutionalization was the result of advances in psychotropic medication, stronger due-process protections against civil commitment, the growing influence of community psychiatry, and the enactment of Medicaid in 1965. The newly created community centers were envisioned to offer a range of services: inpatient, outpatient, emergency, partial hospitalization, and consultation and education on mental health.

The promise of the community mental health movement fell short of its ambitions due to underfunding at the federal and state levels, preventing many people from accessing the services they needed. Dramatic cuts to a variety of social safety-net programs in the 1980s—which led to increases in homelessness and the number of people with untreated mental illness on the street—coincided with massive government spending on the War on Drugs and prison construction.

These changes contributed to a disproportionate number of underserved people with mental health problems becoming entangled in the criminal justice system and correctional facilities becoming their default treatment providers. Today, about 14.5 percent of men and 31 percent of women in jails have a serious mental illness, such as schizophrenia, major depression, or bipolar disorder, compared to 3.2 and 4.9 percent, respectively, in the general population. While estimates vary, the prevalence of serious mental illnesses is at least two to four times higher among state prisoners than in community populations.

Substance Use Disorders

The punitive sentencing laws and aggressive policing practices that emerged from the national War on Drugs were perhaps the single greatest factor responsible for surging prison populations. Starting in the early 1970s and accelerating over the following decades, a series of new state and federal policies led to unprecedented numbers of people being sent to prison to serve long custodial sentences for drug offenses. The concentration of drug arrests in urban communities of color is a primary driver of pervasive racial disparities in the criminal justice system. African Americans are significantly more likely to be arrested, 13 times more likely than whites to go to prison for a drug conviction, and represent 62 percent of people imprisoned for a drug conviction, despite negligible differences in reported drug use. The increase in incarceration following arrest on drug charges accounted for about two-thirds of the increase in the federal prison population and one-half of the increase in the state prison populations from 1985 to 2000.

Today, nearly 68 percent of people in jail overall and more than 50 percent of those in state prisons have a diagnosable substance use disorder, compared to 9 percent of the general population. Moreover, most people who have a serious mental illness also have a co-occurring substance-use diagnosis. For instance, in jails an estimated 72 percent of people with a serious mental illness also have a substance use disorder.

Despite this high need, less than 15 percent of people who are incarcerated receive appropriate treatment. For instance, although a significant body of research shows that pharmacological treatments such as methadone and buprenorphine effectively treat opioid addictions, most correctional facilities choose not to offer them, subjecting people with chronic addictions to higher risk of withdrawal while in custody and of overdose when released to the community.

from Vera’s 2014 report On Life Support: Public Health in the Age of Mass Incarceration, pages 5-10.

For a discussion of how law enforcement can help ensure that the people they encounter with mental illness and substance use disorders get treatment, rather than arrested, see Vera’s 2015 report First Do No Harm: Advancing Public Health in Policing Practices.

What Is Diversion?

Not all criminal cases go through the typical process of arrest, detention, trial, or guilty plea. Nor do all end in criminal sanction. Many are routinely screened out of the criminal justice system through a process called “diversion”—an array of informal and formal practices that effectively remove criminal cases from the justice system and may place selected defendants out of the reach of criminal sanctions. Formal diversion programs first evolved from the informal discretionary practices of the police, prosecution, and judiciary. These programs were meant to remove certain cases without resorting to arrest, charge, trial, or resolution, and grew to become a now widely endorsed—if less well-known—feature of the criminal justice system in every state and on the federal level. It includes the authority of a police officer to issue a summons rather than make an arrest, as well as the decision by prosecutors or judges to offer an eligible defendant entry into an established diversion program in lieu of proceeding with a criminal case.

Diversion grew in response to a budding perception that punitive measures could not achieve a number of important objectives. For one, diversion offered an opportunity to remove minimal-risk cases from overloaded court dockets and ease the pressures of jail and prison overcrowding. It could also be used as a mechanism to avoid burdening people with the lasting negative consequences of criminal convictions—such as limited access to public benefits, employment, or housing—particularly when justice-system involvement would cause greater harm than the alleged offense. Finally, diversion could be used to identify and treat higher-risk defendants whose criminal behaviors might be better influenced by the delivery of targeted services, such as treatment for substance use disorders or mental illness.

Over the past two decades, one form of diversion in particular—the treatment or “problem-solving” court—has become commonplace within the U.S. criminal justice system. In jurisdictions across the country, nearly 3,500 drug courts and more than 300 mental health courts are now operating, with other types of problem-solving courts—veterans courts, community courts, DUI courts, homeless courts, and prostitution courts, for example—also developing rapidly.

The growth of these programs has been driven, in part, by research indicating that problem-solving courts reduce recidivism and associated criminal justice costs. Other studies and cost analyses have challenged these claims, particularly because defendants are often mandated to longer-term or more-secure treatment settings than clinically necessary. Because these courts hold the promise of addressing problems faced by many people who come into contact with the criminal justice system, experts counsel that courts should partner with and follow the guidance of those who are trained in clinically appropriate methods, to avoid ordering inadequate or misapplied treatment.

To that end, many states are creating laws to provide better support to and regulation of these programs and the services they provide. In Oregon, for example, programs must follow evidence-based standards and best practices prepared by the state’s criminal justice commission; in Illinois, courts are required to partner with advocates, survivors, and service providers. Through the Community Alternatives Program and Crossroads, which are rooted in harm-reduction approaches to behavioral change and run in accordance with community-based partners, Judge Charbonnet helps set a similar standard in New Orleans. With such measures in place, these and similar programs have the potential to relieve an overburdened criminal justice system, improving outcomes and transforming lives along the way.

The Discretionary Power of Prosecutors

The majority of crimes are prosecuted by lawyers who hold local (mostly county, but sometimes city) positions. This type of prosecutor is frequently known as a district attorney (DA), but in some places as a prosecuting attorney, state’s attorney, or county attorney. In most jurisdictions, the public elects district attorneys. Most district attorney offices are responsible for prosecuting felony and misdemeanor crimes committed in their jurisdictions, although some places have separate prosecutorial offices for misdemeanors and felonies. The U.S. Department of Justice, which is divided into 93 federal districts, prosecutes federal crimes.

After someone has been arrested (and possibly detained) on suspicion of committing a crime, a prosecutor must decide whether to file charges. He or she determines whether there is sufficient cause by reviewing information contained in the arresting officer’s complaint. The prosecutor looks in particular at the quality of evidence presented—and at other factors surrounding the incident. He or she may increase, reduce, or dismiss the charges brought by the police. In some cases, the prosecutor may request more information from law enforcement or investigators before making a final decision.

In most circumstances, prosecutors enjoy broad discretion and affect the trajectory and outcome of criminal cases more than other actors in the justice system do. An analysis of prosecutorial decision making conducted by the Vera Institute of Justice found that while prosecutors’ decisions are guided by criminal statute, other factors influence the charging process. For instance, restricted resources, such as limited court hours, may prompt a DA’s office to prioritize some charges over others, dismissing those of lower priority.

Plea bargains, which prosecutors have the discretion to offer to defendants, are ubiquitous in the U.S. criminal justice system. In fact, very few criminal cases make it to trial, where a judge and jury are the primary decision makers. An estimated 94 to 97 percent of cases end in a negotiated plea bargain, a process in which the prosecutor retains much of the negotiating power. These negotiations vary from individual to individual, from office to office, and from jurisdiction to jurisdiction, so that cases involving similar charges and even similar defendants may have decidedly different results.

Research shows that people who are in custody before their trials are more likely to accept plea bargains and are less likely to have their charges dropped by prosecutors. For some defendants held in jail during the pretrial phase, including those who pose little threat to public safety but are too poor to afford bail, a guilty plea is the fastest way to resolve their cases and get out of jail—even though a guilty plea will also saddle them with the myriad collateral consequences of a criminal conviction. In this way, jail detention can serve as a powerful leverage mechanism for prosecutors, placing poor people at greatest disadvantage.

Plea bargains can also exacerbate racial disparities in the criminal justice system. Studies have shown that African Americans are less likely to receive reduced charges and reduced sentences than are white defendants who accept plea bargains. Vera’s study of race and prosecutorial decision making in the New York County District Attorney’s Office found that black and Latino defendants were more likely to be detained in jail at arraignment and receive a sentence of incarceration with their plea bargains than similarly situated white defendants were.

Frequently elected on tough-on-crime platforms, prosecutors have historically been judged by how high their conviction rates are. However, prosecutors in growing numbers are broadening the scope of their role in their communities by integrating more holistic measures of success—such as declining crime rates and positive community relations—into internal performance metrics.

Many prosecutors are using their discretionary power to help reduce the use of incarceration and improve outcomes for people involved in the justice system. For example, many jurisdictions now have diversion programs that require certain defendants—often those who are assessed to be at low risk of reoffending and suffer from substance use disorders or mental illness—to undergo community-based treatment and/or abide by other conditions, such as staying arrest-free for a designated period of time in lieu of criminal prosecution. Some programs intervene before formal charges have been filed—known as pre-charge or pre-filing diversion programs—while others occur once charges are filed (a post-charge program), though charges may be dropped or reduced if defendants successfully complete the program. Some post-charge programs require an individual to plead guilty upon admission.

As an example of how perceptions of the prosecutor’s proper role are shifting, more than 150 current and former law enforcement leaders—police chiefs, prosecutors, sheriffs, and attorney generals—formed the group Law Enforcement Leaders to Reduce Crime and Incarceration. They have committed themselves to providing leadership in four broad areas of reform: 1) increasing alternatives to arrest and prosecution—especially diversion to mental health and drug treatment; 2) restoring balance to criminal laws; 3) reforming mandatory minimum sentencing laws; and 4) strengthening community–law enforcement relations. Similarly, the National Network for Safe Communities, a project of John Jay College of Criminal Justice, and the District Attorney of New York County recently established the Institute for Innovation and Prosecution (IIP). IIP aims to serve as a think tank for prosecutors and other criminal justice experts to explore and promote prosecutorial practices that reduce unnecessary incarceration, reduce crime, and foster public trust in the U.S. justice system.

The Right to Counsel

In 1961 Clarence Earl Gideon was a poor man living in Florida and facing felony charges for breaking and entering a local pool hall. Because he could not afford to hire a lawyer, he asked the court to provide one. The judge assigned to his case denied his request. Gideon went on to defend himself at trial. He lost and was sentenced to five years in state prison.

Although the Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence,” it took more than 170 years after its ratification before the right to counsel could be exercised by people too poor to pay for a lawyer.

From prison, Gideon, again without the assistance of a lawyer, wrote a five-page petition to the U.S. Supreme Court in which he argued that because he was too poor to hire a lawyer he could not exercise his constitutional right to counsel and due process. The Court accepted his case and, in 1963, ruled unanimously in Gideon v. Wainwright that under the due process requirements of the 14th Amendment, state courts must provide an attorney at public expense to defendants who are too poor to pay for counsel and are facing felony charges. The ruling granted Gideon a new trial. This time, he had the assistance of counsel and was acquitted.

In the 50 years since Gideon, the Supreme Court has upheld and greatly expanded the right to counsel to include indigent children in juvenile delinquency proceedings; indigent defendants facing misdemeanor charges; and indigent adults at critical stages in criminal case processing or post-conviction proceedings. However, despite Gideon and its progeny, the reality on the ground remains troubled. Across the country, there are jurisdictions where a poor person can be arrested and held in jail for days or even weeks without seeing a lawyer, where public defenders are forced to carry caseloads well beyond the American Bar Association professional standards, and where the budgets of prosecutor offices are several times greater than the budgets available to fund the public defense system.

The right to counsel encompasses much more than the mere appointment of a lawyer in an individual case. It requires the provision of adequate legal representation, which involves both adequate funding and independence from funding sources, reasonable caseloads (on par with prosecutors), and access to experts, investigators, transcripts, and other resources to assist in a person’s defense. Taken together, these requirements amount to what The Constitution Project and the National Legal Aid & Defender Association’s National Right to Counsel Committee calls “a significant high-cost, unfunded mandate imposed upon state and/or local governments.” Not surprisingly, most state and local governments have struggled and often fail to fulfill Gideon’s promise—even though there are countless unsung public defenders who strive every day on behalf of their clients, despite crushing caseloads and insufficient resources.

A July 2015 lawsuit filed by the American Civil Liberties Union against the County of Fresno and the State of California provides a stark illustration of the wide gap between Gideon’s promise and reality. Attorneys for the plaintiffs maintain that due to systemic problems in the county’s underfunded public defense system, Peter Yepez, a plaintiff, did not see a public defender until he had spent almost a month in jail and was represented by nine public defenders between his arraignment and sentencing, some of whom told him they did not have time to work on his case and advised him to plead guilty despite strong evidence that he was innocent.

There is a new model of providing public defense that injects hope into a system that otherwise falls short of Gideon’s mandate. Holistic defense, an approach to representing defendants in criminal proceedings that looks at each person as more than just their criminal case, is changing the way public defenders protect their clients’ rights and represent them in court. Using a holistic defense model, lawyers work with other advocates—social workers, civil lawyers, and others—to address the circumstances and reasons people are involved in the justice system and the devastating consequences of court involvement. In Texas, the Harris County Public Defender office, created in 2010 and featured in the “Defense Mechanisms” story, is based on this promising model. Although the effectiveness of this new model of public defense is not yet fully known, research is under way that aims to understand whether and how it secures for indigent defendants adequate legal representation and/or addresses the underlying circumstances leading to involvement in the justice system.

Legal Perils of Homelessness

According to the National Law Center on Homelessness and Poverty, poverty and troubled family environments are among the reasons that upward of 3.5 million people in the United States experience episodes of homelessness in the course of one year. Many of them also disproportionately have social, educational, economic, medical and mental health challenges. Because people are often unable to access public services, they may commit “survival crimes” or regulatory offenses—such as sleeping on the street—that lead them into a cycle of punishment and incarceration that is difficult to overcome.

For instance, homeless people who are arrested for sleeping on the street will not likely be released on the promise to return to court, because they do not have an address. They may also be unable to pay even low bail amounts, leading to time behind bars while awaiting a trial. (Twenty-six percent of people in jail reported being homeless within a year before incarceration, according to the Corporation for Supportive Housing.)

After release, a criminal record may make it even harder for homeless people and their families to acquire or retain public benefits, housing, or employment, given the common practice by government agencies, potential landlords, public housing authorities, and potential employers of screening for and excluding those with criminal histories. These consequences are further exacerbated by some states’ policies—often described as public health, public safety, or quality-of-life measures—that focus solely on removing the visibility of homelessness by pushing homeless people out of tourist, commercial, or more affluent districts, and at times by legally restricting where people can perform certain basic behaviors, such as sitting, lying down, or sleeping.

Fortunately, a number of places have embraced strategies that better address homelessness. For example, Utah recently adopted a “housing-first” approach, which places homeless people as quickly as possible into their own shelter and provides wraparound services necessary to help them maintain housing stability. With these policies, Utah has decreased its rate of chronic homelessness by 74 percent, with significant savings to the state: from $20,000 a year—aggregating the cost of shelters, emergency room visits, ambulances, and police and jail stays per one homeless person—to just $8,000. A similar program in Albuquerque, New Mexico, has seen comparable benefits. After one year in operation, a housing-first approach saw a dramatic reduction in emergency room costs and criminal justice expenses, including a 64 percent reduction in the city’s jail costs.

Police departments in different cities have also created outreach efforts to connect homeless people with services upon initial contact. For example, Santa Monica’s Homeless Liaison Program has a specially trained unit of six police officers who reach out to homeless people and refer them to necessary resources, such as short- and long-term housing providers, job placement services, and mental health and substance use treatment programs.5. Utah has decreased FINAL 2.1.2016-01

These programs have the potential to keep people from an endless cycle of homelessness and incarceration that leads to ever-shrinking opportunities for stability. With policymakers and law enforcement agencies increasing outreach efforts, people without housing can better access public services that improve their quality of life and affirm their human dignity.

The Value of Visitation

When incarcerated people have the opportunity to nurture relationships with family and friends in the community, everyone benefits. Research suggests that the health and well-being of incarcerated parents and their children improve when they are able to maintain contact within a structured family intervention. Some studies also indicate a correlation between visitation and a decrease in violence and rule breaking in correctional facilities, making them safer for both staff and those who are incarcerated. Other research shows that visitation ultimately makes communities safer, because incarcerated people who receive visits are less likely to commit another crime upon release.

Visitation takes place in different ways across the country’s roughly 3,000 jail jurisdictions and can be denied or suspended, based on an incarcerated person’s behavior. While prisons still offer face-to-face contact, many jails have implemented video instead of or in addition to in-person visitation. Some jurisdictions provide at-home videoconferencing through a private company, which often requires a fee, while others offer the service within the facility or at a community location, which requires travel and planning.

The logistics of any of these options can be difficult for families to manage. Even when jails are nearby, the price of bus tickets for a family without a vehicle can be prohibitive. Limited visiting hours and long waiting times for processing mean that visiting a family member in jail may also require time away from work or school. Despite these challenges, many families go to great personal and financial expense to keep in touch with their incarcerated loved ones.

Indeed, families like April’s in “Fighting for Face Time” implicitly know the value of visitation—that it helps incarcerated loved ones maintain and strengthen their relationships to family and community. Visits can especially help ease the strain on the children who have lost parents to incarceration. Visits can also provide opportunities to create new connections, such as with clergy members or community volunteers; this can not only help support someone’s successful return to the community upon release but also maintain hope and a sense of stability while in jail, whether that person’s length of stay is a few days or several months.

Women Behind Bars

As with all measures of mass incarceration, the incarceration rate of women is drastically higher in the United States than in any other nation. For instance, compared to our neighbor to the north, 127 out of 100,000 American women are incarcerated, compared to just 11 per 100,000 Canadian women.

Although many more men than women are incarcerated in the United States, recent analysis done by Vera’s Incarceration Trends project reveals how much the jail incarceration of women has grown in recent decades—from fewer than 8,000 in 1970 to nearly 110,000 in 2014, a fourteenfold increase, with midsize and small counties having the highest rates. According to the U.S. Department of Justice’s Bureau of Justice Statistics, while the number of men confined in county and city jails decreased by 3 percent from 2010 to 2014, the number of women held increased by 18 percent during this period. Yet the unique challenges that women and girls face when they become involved in the justice system—as well as the circumstances that lead them there—are often markedly different from those for men and have until recently been largely overlooked in discussions of mass incarceration and justice reform.

The demographics of women in jail and prison mirror the racial disparities of the broader incarcerated population. In 2014, African American women were incarcerated at nearly three times the rate of white women, according to The Sentencing Project, although the rate of incarceration for African American women has been declining during the past 15 years while the rates for white women have increased.

Women in the criminal justice system are more likely than men to have experienced violence and exploitation—such as sexual or intimate partner abuse or trafficking—and to have co-occurring substance use or mental health issues. Additionally, women, particularly women of color, are more likely than men to be impoverished. A report by the Insight Center for Community Economic Development concludes that single African American and Hispanic women ages 19-24 have a median wealth of $100 and $120, respectively, while the median wealth of unmarried white women is $41,500. Poorer people face many disadvantages in the criminal justice system, especially at the pretrial phase. Most U.S. jurisdictions use a cash bail system, which means the economically disadvantaged often remain in jail through their trials simply because they are too poor to make bail.

Jail incarceration can push a woman and her family further into poverty, as she may lose her job or access to public benefits. Furthermore, most people accumulate criminal justice debt as they move through the system. Many jails charge inmates—most of whom have not been convicted of a crime and are awaiting trial—fees for basic services such as laundry or medical appointments, and phone calls home are often exorbitantly expensive. Some jails charge inmates a per diem fee during their incarceration—sometimes called pay to stay, which can leave an individual with thousands of dollars of criminal justice debt upon release.

Women, prior to incarceration, are often caretakers and financial providers for their families. A survey of state prisoners found that 4 in 10 mothers in prison had been the sole parent in their household at the time of their arrest and half of mothers reported being the primary financial provider for their children. Research shows that parental incarceration—which can result in frequent moving of residence, school changes, and divorce—is destabilizing for children.

Once behind bars, women experience substandard medical and living conditions, due to policies that were originally designed only with men in mind, and because of continued abuse and exploitation. For example, in Amador v. Andrews, women in custody of the New York State Department of Correctional Services filed a class-action lawsuit against the department for sexual abuse. (The case, filed in 2003, was reinstated in 2011 following a decision by the state court of appeals.)