Amanda Woodrum & Ben Stein

Two criminal justice reform bills under consideration in the Ohio legislature—House Bill 1 and Senate Bill 3—promote treatment rather than incarceration for people struggling with addiction, and reduce felony barriers to future employment opportunities.[1]

• H.B. 1 expands and strengthens the use of “intervention in lieu of conviction” (ILC).
• S.B. 3 reclassifies low-level, non-violent drug possession felonies as misdemeanors.
• Under S.B. 3, violation of low-level drug possession provisions would no longer constitute a criminal record and need not be reported on applications for employment, public housing or assistance.
• Both H.B. 1 and S.B. 3 strengthen opportunities for offenders to have their criminal records permanently sealed.

A review of health-related research suggests these bills, by focusing on expanding opportunities for treatment of addiction rather than incarceration, would likely have positive impacts on the health of Ohio’s residents because they would:

• Decrease drug use and reduce prison populations. There is strong evidence that ILC and drug courts are more effective than conventional approaches to reducing drug use and recidivism.[2]
• Reduce the “collateral consequences” of incarceration and a criminal record, which create barriers to employment, housing and public assistance. The inability to meet these basic needs is linked to poor physical and mental health outcomes for formerly incarcerated individuals and their families.[3]
• Prevent further collateral consequences arising from felony convictions by expanding opportunities for the permanent sealing of criminal records.[4]
• Reduce overcrowding in jails and prisons, a condition that promotes disease transmission and contributes to the wider COVID-19 pandemic.[5]

This paper was largely written before the coronavirus came to Ohio in early 2020. We have updated it to include the impact of this new health crisis in Ohio’s prisons, which has thrown into sharp contrast the significant negative effects of incarceration on health.

Promoting ILC could increase the number of people accessing addiction treatment, sending fewer people into Ohio’s prisons. Incarcerating individuals has not proven to be an effective way to reduce drug use. In fact, within the first two weeks after release from prison, people are much more likely than the general population to die of a drug overdose.[6]

Alternatively, there is strong evidence that ILC and drug courts are more effective than conventional corrections for reducing drug use and recidivism.[7] In theory, this creates cost savings for state and local jurisdictions from lower policing, court and prison costs.[8] Reducing Ohio’s prison population can decrease negative health impacts, including the chronic stress and increased mortality experienced by incarcerated individuals[9]­ and staff[10] working in overcrowded prisons. The dangers of overcrowding are heightened due to the COVID-19 pandemic, and include the possibility of spill-over to hospitals. However, there is a fair amount of evidence that drug courts may be unlikely to significantly affect prison population levels, even if they were to be put in place more broadly, since “a large share” of drug-court participants fail to complete the program and sometimes end up receiving longer sentences than those sentenced in a more conventional fashion.[11]

Sending fewer Ohioans to prison as the coronavirus pandemic continues would help reduce of prison populations, thereby protecting the health of those who would otherwise have been incarcerated as well as those who are incarcerated in less overcrowded conditions.[12]

Two components of these bills would reduce or eliminate some of the collateral consequences of a felony conviction, which include restrictions on access to employment, housing, education and food assistance. Improvements to the record-sealing process and reclassification of low-level drug possession as a misdemeanor could have significant positive health effects on people convicted of these low-level crimes, their families, and communities.[13]

Strong evidence indicates people who have been incarcerated have more difficulty finding work, and tend to work in low-wage, unstable jobs with few benefits.[14] Over the long haul, barriers to employment, housing and public services have the collective effect of creating roadblocks to financial security and housing stability. These factors contribute to poor mental and physical health, as well as heightened rates of addiction and recidivism.[15] Strong evidence indicates that a majority of people who have been incarcerated experience housing instability after release.[16] A fair amount of evidence indicates mothers whose partners have been incarcerated are nearly 50% more likely to face housing insecurity than other mothers.[17] The loss of income resulting from a family member’s incarceration can drive a family into poverty and create toxic stress.[18]

The positive health impacts of S.B. 3 would likely be limited, however, by the provision stating the changes will not be applied retroactively. As a result, those who have already been convicted of relevant felonies will not access the benefits of S.B. 3.

Backdrop

Rates of incarceration increased dramatically because of the nation’s war on drugs, including in the state of Ohio.[19] According to the Prison Policy Initiative, approximately 78,000 Ohioans are incarcerated, almost four times more residents than were incarcerated prior to 1980, when the war on drugs escalated sharply.[20] People of color have been disproportionately impacted during this “tough on crime” era. Black Ohioans are 5.5 times more likely to be incarcerated than white Ohioans.[21] In February 2020, at the beginning of the coronavirus pandemic, the state prison system held more than 49,000 people, over its design capacity by nearly 9,000 people.[22] This overcrowding, already dangerous for the incarcerated and staff alike, became even more dangerous with the onset of the pandemic. As of May 24, 2020, COVID-19 had caused the deaths of 66 incarcerated people and four prison staff, according to daily reports by the Ohio Department of Rehabilitation and Corrections.[23]

The consequences of a conviction extend long after a person’s release from prison. In Ohio, felony convictions carry more than 1,200 collateral consequences,[24] defined by the National Inventory of Collateral Consequences of Conviction as “legal and regulatory sanctions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits and opportunities.”[25] Almost 1 million Ohioans (994,000)—including roughly one in four Black Ohioans—are subject to felony-triggered collateral sanctions.[26] In 2014, more than a quarter of all felonies resulting in prison sentences in Ohio were drug-related.[27]

There is now a growing consensus, along with a fair amount of evidence, that harsh penalties for drug use adopted as part of the war on drugs have not been effective in reducing the availability or use of illicit drugs.[28] The focus on punishment has meant that only a small share of the people suffering from addiction during the war on drugs has actually received appropriate treatment.[29] Collateral consequences compound the damage by permanently limiting employment opportunities, increasing the likelihood of recidivism.[30]

The sponsors of S.B. 3 have stated that their goal is to increase access to treatment rather than incarcerating more people who are struggling with addiction.[31]

Under Ohio law, ILC is a process whereby a court orders an individual charged with one or more drug- or alcohol-related crimes to complete treatment for addiction rather than incarcerating them. If the individual successfully completes the prescribed treatment, the court dismisses the criminal proceedings and those charges do not permanently mar the individual’s record. If the individual fails to fully comply with the treatment program, the court may then find the individual guilty.[32]

To qualify for ILC, an individual must first request and be granted a hearing to determine eligibility, which is reserved for those whose offenses are not violent or sexual in nature, and do not involve the possession of drugs in bulk quantities, drug trafficking or manufacturing.[33]

H.B. 1 promotes the use of ILC by requiring Ohio courts to presume it is appropriate for all eligible individuals, unless a court can demonstrate

specific reasons the process would not be appropriate. It can be used for drug-possession charges, but also offenses where drug and alcohol addiction are seen to be a primary contributing factor driving an individual to undertake said offense.[34]

Incarcerating individuals has not proven to be an effective way to reduce drug use. In fact, within the first two weeks after release from prison, people are much more likely to die of a drug overdose than the general population.[35] Overdose is common, in part, because a person who has detoxed in prison will have a far lower tolerance than they had prior to incarceration.[36]

Alternatively, there is strong evidence that ILC and drug courts are more effective than conventional corrections for reducing drug use and recidivism.[37] In theory, this creates cost savings for the state and local jurisdictions from lower policing, court and prison costs.[38] Evidence is mixed, however, on whether expanded access to drug courts could affect prison population levels. One study finds evidence it would, while noting that “a large share” of drug court participants fail to complete the program. It is unclear how expanded access would affect that high failure rate. Also troubling is the fact that people who fail to complete a drug court program sometimes end up receiving longer sentences than those sentenced in a more conventional fashion.[39]

Studies suggest drug courts have had differing impacts on Black versus white populations.[40] One study found drug courts disproportionately serve white people, while people of color are less likely to be granted access to these courts.[41] Other studies suggest the use of drug courts encourages more arrests for low-level drug possession with a disproportionate impact on people of color.[42] One researcher notes that in order for drug courts to address previous injustices created by the war on drugs, courts must exercise caution to ensure they do repeat those injustices in new ways.[43]

Prison is a stressful place, and navigating life after incarceration exacerbates heightened levels of stress.[44] There is strong evidence suggesting incarceration causes both acute and chronic stress, even well beyond release,[45] and very strong evidence showing chronic stress strains the cardiovascular and immune systems, increasing risk of heart attack and susceptibility to infectious diseases.[46] While social support, such as family and friends, can help mitigate the effects of stress, there is also a fair amount of evidence that incarceration disrupts or destroys those support systems, contributing to higher rates of divorce, strained relations with children, and more stress.[47]

There is strong evidence indicating a relationship between incarceration and premature death for those in prison, those recently released, and for years after release.[48] The link between poor health and incarceration appears to be more closely connected with the experience of being incarcerated, rather than the length of time of incarceration.[49]

One complicating factor is that Black men serving time historically have had a slightly lower mortality rate than Black men on the outside because there are lower overdose and homicide rates in prison than in some of the communities where these men would be living.[50] This finding hinges on quality of care in prison, which is inconsistent, possibly due to overcrowding.[51]

Negative health impacts of overincarceration extend to the staff working in overcrowded prisons. One review found a fair amount of evidence to indicate that working in an overcrowded facility is a risk factor for stress and stress-related illnesses among corrections workers.[52] Among the most common stress-related illnesses is heart disease, the leading cause of death for both men and women in Ohio, according to a 2017 report by the Ohio Department of Health.[53] Another review found strong evidence of workplace stress among corrections officers and a 12-15 year “life-expectancy gap” between corrections workers and the general population, along with increased risk of suicide, post-traumatic stress disorder, cardiovascular disease, and musculoskeletal disorders.[54]

The coronavirus crisis in prisons only compounded the negative health impact of incarceration in an overcrowded system, with at least 4,919 incarcerated people and 749 staff testing positive in ODRC facilities as of June 17, 2020.[55] An unreported number of those displayed serious symptoms and/or were hospitalized. As of June 17, COVID-19 had caused the deaths of 76

incarcerated people and five prison staff, according to daily reports by the Ohio Department of Rehabilitation and Corrections.[56] Individuals not entering the system would not be exposed to the virus in a congregate setting, and a lower population would likely reduce the risk for staff as well.

S.B. 3 reclassifies low-level, non-violent drug possession felonies as either “minor misdemeanors” for marijuana or hashish or “unclassified misdemeanors” for most other controlled substances. If enacted, violation of these provisions will no longer constitute a criminal record and need not be reported as such in response to criminal inquiries found on applications for employment, licenses, public housing or assistance, etc. S.B. 3 does not retroactively reclassify low-level non-violent felonies as misdemeanors (except in very limited circumstances).[57] Both H.B. 1 and S.B. 3 also strengthen opportunities for individuals to have their criminal records permanently sealed.[58] H.B. 1 removes the cap on the number of low-level felonies that an individual can have in order to be considered for record sealing. H.B. 1 also shortens the period of time a rehabilitated person has to wait before they can apply to have records sealed. If eligible, formerly incarcerated people must demonstrate to the court they have been rehabilitated.[59]

Each of these components—reclassification and improved record sealing—could reduce the harm done by collateral sanctions. The health impacts of these components would be due to either (a) fewer people being charged with felonies for low-level drug possession, or (b) more people having felony convictions sealed. Either would reduce or eliminate the impact of some felony-triggered collateral sanctions, which include restrictions on access to employment, housing and education. These health impacts would likely be limited, however, by the provision stating low-level drug possession felonies tried in the years prior to the bill’s passage will not retroactively be changed to misdemeanors. Foregoing retroactive application will also mean that Black Ohioans disproportionately targeted in the war on drugs will also be disproportionately excluded from S.B. 3 remedies.

Collateral sanctions create or exacerbate difficulties finding adequate post-incarceration employment. In a 2018 report, Policy Matters Ohio documented over 500 Ohio laws that bar Ohioans with low-level drug convictions from various employment opportunities; 56% of them apply only to felonies and not misdemeanors.[60] Strong evidence indicates people who have been incarcerated have more difficulty finding work, and tend to work in low-wage, unstable jobs with few benefits.[61] A fair amount of evidence finds that inadequate health insurance and unstable employment combine to predict poor health.[62]

The economic effects of inadequate employment have health impacts of their own. Strong evidence indicates men who have been incarcerated earn between 10% and 20% less after they have been released than before they were locked up.[63] They also experience the added economic stress of court fees, fines, and visitation expenses that add up over time during incarceration. A fair amount of evidence supports a link between economic stress and physical­­­­­ manifestations of that stress, such as hypertension, diabetes and chronic obstructive pulmonary disease.[64] Prolonged financial stress is linked to anxiety, depression and suicide, as well as physical illnesses such as heart disease, hypertension, asthma and diabetes.[65]

When a member of a family is incarcerated, the entire family often suffers, particularly the children. Men who have been incarcerated tend to be paid lower wages and encounter more frequent income disruptions, and thus contribute less financial support to the mothers of their children, even beyond periods of incarceration.[66] As a result, children whose fathers have been incarcerated are more likely to experience hunger and homelessness.[67] They are also more likely to develop post-traumatic stress disorder.[68] Children of incarcerated mothers are far more likely to end up in the foster care system and become depressed.[69] The loss of income resulting from a family member’s incarceration can drive a family into poverty and create toxic stress.[70] One study found that women whose partners are incarcerated are at higher risk for cardiovascular disease, a condition associated with toxic stress.[71] A recent systematic review of the literature shows a fair amount of evidence of negative health impacts on children from incarceration of a parent and poor overall health of these children over the long run.[72] There is strong evidence that parental incarceration also increases the risk of infant and child mortality.[73]

Anxiety, depression, and post-traumatic stress disorder in children experiencing parental incarceration can cause developmental delays and learning disabilities.[74] In turn, there is very strong evidence parental incarceration affects a child’s ability to succeed in school, and his or her level of educational attainment over the long run.[75] There is also strong evidence demonstrating a link between parental incarceration and an increased likelihood of drug use later in the life and the child’s own eventual incarceration.[76] Strong evidence links a father’s incarceration to a child’s physically aggressive behavior.[77]

People who have been convicted of a felony have few opportunities to improve their job prospects through education. In general, they are already at a disadvantage: Incarcerated Ohioans have lower rates of educational attainment than the general population. In 2013, 37.7% of Ohioans admitted to Ohio prisons had never completed high school, compared to 10.5% of the statewide population over age 25.[78] Only 3% of Ohioans who have served time have completed a four-year degree or more education, compared to 35% of the over-25 population in general.[79]

While Ohio allows individuals with low-level drug felonies to access federal public assistance programs, such as Temporary Assistance to Needy Families or the Supplemental Nutrition Assistance Program, barriers to employment may limit the ability to meet work requirements needed to access public assistance.[80] A 2019 study finds a fair amount of evidence indicating that prior incarceration increases a person’s risk of food insecurity, compounding other risk factors common to people experiencing incarceration, such as poverty, depression and limited physical mobility.[81] Strong evidence links food insecurity to diabetes, hypertension, oral health problems, stroke, cancer, asthma, arthritis, and kidney disease.[82]

Collateral sanctions create disincentives to pursue education after release, because many jobs that require a college degree are inaccessible to anyone with a felony conviction.[83] Since low-income and Black and Latinx individuals are overrepresented in Ohio’s criminal justice system, this may also reinforce racial disparities in educational attainment.[84] Very strong evidence indicates a close link between low educational attainment and poor health outcomes, including premature mortality.[85]

Felony convictions create barriers to housing, a crucial element of successful reentry.[86] Federal law allows public housing authorities and private landlords to deny housing to people who carry drug-related convictions.[87] This further limits the housing options for formerly incarcerated individuals.[88]

Strong evidence indicates that a majority of people who have been incarcerated experience housing instability after release.[89] Data from the Bureau of Justice Statistics shows individuals who have been incarcerated once experience homelessness at a rate nearly seven times higher than the general public.[90] Those who have been incarcerated more than once are 13 times more likely than the general public to have experienced homelessness.[91] Although formerly incarcerated Black men have much higher rates of unsheltered homelessness than white or Latino men,[92] prior incarceration is a better predictor of housing insecurity than race, according to a 2017 study.[93]

A study on housing insecurity’s relationship to incarceration finds collateral sanctions that limit job options are closely tied to housing insecurity post-incarceration.[94] Housing instability can also influence the employment process, as applications often require an address and consistent contact with prospective employers.[95]

Factors beyond income influence access to housing. Even with equal annual earnings, a fair amount of evidence indicates that recently incarcerated parents experienced more housing insecurity, particularly residential turnover, than peers with no history of recent incarceration.[96] Credit checks, expensive security deposits, professional references, and other rental application requirements can limit rental opportunities for formerly incarcerated individuals who have been away from the labor market.[97]

A fair amount of evidence indicates that lack of access to stable housing after incarceration can influence recidivism by disrupting contact with parole officers.[98] Manifestations of homelessness, such as sleeping outside, are also violations of public order, and can result in re-arrest.[99] A study on housing opportunities for formerly incarcerated individuals with substance use disorders found a strong association between housing and substance use in settings with less stability and financial obligation, such as homelessness and couch surfing.[100] A reentry survey focused on Boston found respondents with a history of addiction were more likely to experience unstable housing or live outside regular households than the general population.[101] Strong evidence links homelessness to greater use of emergency room services.[102]

Effects of incarceration on housing stability extend to the families of incarcerated people as well. A fair amount of evidence indicates mothers whose partners have been incarcerated are 50% more likely to face housing insecurity than other mothers.[103] A fair amount of evidence suggests stable housing provides better access to healthcare, substance abuse treatment, and mental health services.[104] Housing instability creates chronic stress associated with poor health, according to a fair amount of evidence.[105] When collateral sanctions restrict access to rent subsidies, the increased financial burden has been linked to poor mental and physical health.[106]

Formerly incarcerated people experience negative health impacts from the stress of the prejudice and stigma of criminal convictions that create additional barriers to employment and supportive policies to help them transition into a healthier lifestyle.[107] There is strong evidence to suggest misdemeanor convictions come with less prejudice and stigma. [108]

Harsh sentencing practices have ripple effects that extend beyond the family. Residents living in communities where a relatively high percentage of the population has been incarcerated suffer health consequences even if those residents themselves were never incarcerated.[109] There is strong evidence to indicate that neighborhoods with high rates of incarceration have poor overall population health, poor mental health, and higher rates of sexually transmitted infections.[110] There is some evidence, albeit mixed, suggesting the health of children attending schools in areas with high rates of parental incarceration is also negatively impacted.[111]

Components of S.B. 3 and H.B. 1 would reduce the lasting effects of collateral consequences. Over the long haul, these barriers put long-term financial security out of reach, contributing to poor mental and physical health as well as rates of addiction and recidivism.[112]

Acknowledgements

This health note benefits from the insights and expertise of Stephen JohnsonGrove, Strategy Director for the Ohio Transformation Fund; Gary Daniels, Chief Strategist for ACLU-Ohio; and Piet van Lier, Justice Reform Research Consultant for Policy Matters Ohio. Research was conducted with the invaluable assistance of Policy Matters interns Colleen Gravens, Lillian Platten, Zane Steiber and Morgan Williams.

Tags