January 2007

2006 Year End State Legislative Overview: Focus on Reentry

States Discussed in this Edition:

• Alabama
• California
• Colorado
• Connecticut
• Florida
• Hawaii
• Illinois
• Kansas
• Louisiana
• Minnesota
• New Hampshire
• New York
• Virginia
• Washington

Offender reentry is a hot topic, nationally and at state and local levels. In his 2004 State of the Union Address, President George W. Bush surprised many by proposing a reentry initiative to assist returning inmates with the transition back to their communities. Although the 109th Congress was unable to pass the Second Chance Act—a modest bill to fund state reentry initiatives and addiction treatment services that is expected to be reintroduced in the 110th Congress—states and local communities have taken an active role in studying and addressing the problem. In 2002, the Criminal Justice/Mental Health Consensus Project, a national effort coordinated by the Council of State Governments (CSG), issued an extensive report to help local, state, and federal policymakers and criminal justice and mental health professionals improve the response to people with mental illness who become involved in, or are at risk of involvement in, the criminal justice system. State and local initiatives have multiplied since the release of the CSG report.

This issue of the National Council's State Policy Focus will highlight selected trends in recent state legislative efforts to address reentry, based on a review of legislation enacted in 2006. Although none of the bills that were enacted explicitly target people with serious mental illness, most do recognize the need for mental health and addiction treatment for ex-offenders.

Recognizing the Importance of Successful Reentry
More states explicitly acknowledge that current incarceration patterns, in the absence of rehabilitation and community supports, cannot be sustained financially and cannot be justified by public safety concerns. In a Resolution aimed at encouraging employers and faith-based organizations to do more to help ex-offenders, the Colorado legislature, for example, found that the "epidemic of prison recidivism [52% in Colorado] is directly correlated to the release of ill-prepared inmates who are unable to survive in society through lawful means." (CO HR 1011). Like many states, Colorado projects that they will reach full capacity in their state prisons by the end of 2006, and legislators are considering the extent to which effective reentry programs, often combined with early release, will relieve prison overcrowding by reducing recidivism and technical parole violations. (Technical parole violations include behavior that is not, in and of itself, a criminal offense—e.g., missing an appointment with your parole officer.)

States are responding to corrections capacity issues and rising costs in a variety of ways: by examining sentencing practices; studying the impact of reentry programs on recidivism; targeting special populations, such as women and children; and attempting to remove barriers to successful reentry. A change in New York's sentencing policy reflects some of the new thinking about offenders. In 2006, the legislature passed a bill that adds a new goal to the four traditional sentencing objectives of deterrence, retribution, rehabilitation and incapacitation—the state's penal code now requires that sentencing take into account the "promotion of [offenders'] successful and productive reentry and reintegration into society." (NY SB 7588).

Acknowledging Safety Concerns
Although states may have great financial pressures to reduce prison populations, elected officials must take into account the public's concern for safety. In Washington, the legislature explicitly found that appropriate community programs for ex-offenders may "enhance public safety." (WA SB 6308). Connecticut legislators similarly tied the success of the state's reentry plan to "rates of recidivism and community revictimization," among other measures. (CT HB 5781). When California created a reentry task force, the legislation included a requirement that the task force "[e]ducat[e] the public about reentry programs and their role in public safety." (CA AB 3064). As these and other bills make clear, the connection between successful reentry and public safety is a critical selling point for elected officials, corrections and law enforcement agencies, and the general public.

Offenders who have a history of mental illness or mental health treatment may receive greater scrutiny because of widespread belief that they present a greater threat to public safety. This phenomenon is illustrated by the only state bill enacted in 2006 that specifically targets reentry for ex-offenders who receive mental health treatment while incarcerated. In this bill, the Florida legislature increased community oversight of inmates who receive any mental health treatment while incarcerated. (FL HB 5017). (The bill is not limited to ex-offenders with a serious mental illness—any mental health treatment triggers the bill's provisions.) Effective January 1, 2007, a "complete record" of an inmate's mental health treatment will be provided to the parole board and to the Department of Children and Family Services. If the person is released on parole, the parole officer will assist the ex-offender with applying for mental health services in the community, but the application for treatment may also be made a condition for parole. Any "failure to participate in prescribed treatment may be a basis for initiation of parole violation hearings," and the person could return to prison. It is unclear what role the Department of Children and Family Services will have in this oversight and what the Department will do with the treatment records. Because of privacy concerns and the potentially negative impact of sharing mental health records with parole, this legislation might actually discourage prison inmates from seeking necessary treatment while incarcerated.

Creating Entities to Address Reentry
The majority of reentry bills enacted in 2006 created committees or other entities to study and/or plan for ex-offender reentry or to implement reentry programs. Some of this legislation focused solely on reentry, while others were part of a larger assessment of the criminal justice system, including sentencing practices. In all of these bills, states focused on reentry generally and did not specifically target people with serious mental illness or those who are dually diagnosed with mental illness and addiction disorders. However, most planning efforts implicitly recognized the importance of mental health and addiction treatment services by including one or both state agencies. The Colorado Resolution mentioned above was one of the few pieces of reentry legislation that did not mention mental health or substance abuse. Washington, which created a joint legislative task force on "offenders programs, sentencing, and supervision [including reentry]," explicitly encouraged the task force to consult with "[m]ental health treatment providers who provide alcohol and substance abuse counseling...[and] medical assistance services to offenders." (WA SB 6308).

More common was legislation naming government mental health and addiction treatment agencies—not community providers—as non-voting members or resources. Virginia's legislature, for example, voted to continue a joint legislative subcommittee on reentry and required the participation of the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services. (VA SJ 0126). Illinois established a task force to examine barriers to employment for ex-offenders, naming the state Department of Human Services (which includes both mental health and addiction services) as a non-voting member. California also created a Reentry Advisory Committee, established to advise the Department of Corrections on "matters related to the successful planning, implementation, and outcomes of all reentry programs and services in the department, with the goal of reducing recidivism." (CA AB 3064). In addition to the Department of Mental Health, the California Reentry Advisory Committee did include addiction treatment providers—the County Alcohol and Drug Program Administrators Association and the California Association of Alcohol and Drug Program Executives.

Connecticut took a different approach to reentry planning, establishing a Criminal Justice Policy and Planning Division within the Office of Policy and Management (OPM). (CT HB 5781). The Criminal Justice Policy and Planning Division will join six other divisions within OPM: Budget and Financial Management, Office of Finance, Intergovernmental Policy, Office of Labor Relations, Policy Development and Planning, and the Division of Administration. Prior to the creation of this special division, multiple agencies—corrections, mental health, addiction services, social services, labor, pardon and parole—and the judicial branch were mandated to collaborate on reentry. The new division is charged with "develop[ing] and implement[ing] a comprehensive reentry strategy...[including] identifying and addressing barriers to the successful transition of offenders from incarceration to the community...[and] identifying community-based supervision, treatment, educational and other services and programs that are proven to be effective in reducing recidivism." Identifying effective strategies is a common theme to state reentry legislation—e.g., California's legislation calls for "[d]eveloping a knowledge base of what people need to successfully return to their communities from prison."

Some of the state planning initiatives were much broader than reentry. Washington's task force, for example, was charged with studying programs offered in prison as well as sentencing practices, including the earning of "good time" credits that can lead to early release. The Kansas Criminal Justice Recodification, Rehabilitation and Restoration Project, which received additional time in which to file its final report, was given a very broad mandate that included reviewing the state's criminal code and sentencing policies for the purpose of "reliev[ing] or eliminat[ing] prison capacity issues." (KS HB 2555).

Establishing Reentry Programs
Several of the bills enacted in 2006 actually established reentry programs, although some are subject to appropriations. Illinois passed legislation that would allow counties to create reentry programs for felony offenders. (IL SB 554). The legislation allows the department of corrections to contract with public or private entities to provide transitional housing, mental health and addiction treatment, life skills training, vocational rehabilitation and job skills training, and "any other services required by offenders who are participating in a [reentry] program." "Life skills" are defined as including "without limitation...1) parenting; 2) improving human relationships; 3) preventing domestic violence; 4) maintaining emotional and physical health; 5) preventing abuse of alcohol and drugs; 6) preparing for and obtaining employment; and 7) budgeting, consumerism, and personal finances." The bill requires corrections to provide necessary referrals for the above services and additional services, such as self-help groups and permanent housing. Although not explicitly addressed to offenders with a serious mental illness, the legislation includes services that are traditionally part of a psychosocial rehabilitation program.

Existing California law already requires the Department of Corrections and Rehabilitation to establish three pilot programs to "provide intensive training and counseling to female parolees to help the parolees reintegrate into society." In 2006, two bills were enacted requiring the establishment of specific pilot programs for men and women—one in East Palo Alto and the other in Almeda County. The East Palo Alto reentry program, which refers only to parolees and does not explicitly include women, would conduct pre-release needs assessments on parolees returning to the community and develop a partnership with "local community organizations and service providers to provide support services...such as transitional housing, job training, or placement, or substance abuse treatment." (CA AB 2436). Implementation of the reentry program is contingent upon the availability of resources and the "consent" of the City of East Palo Alto.

The second California bill requires the establishment of a three-year, pre-release parole pilot project in Almeda County for offenders, male and female, who were convicted of a nonviolent offense. (CA AB 1998). The goal of the program is to provide coordination between the Department of Corrections and community service providers to "ensure that parolees transition smoothly from services during incarceration through reentry programs." Any inmate may enroll in the program up to one year prior to their release from a state correctional facility to Almeda County. The program includes, but is not limited to, the following: "a prerelease assessment screening for needed educational, employment-related, medical, substance abuse and mental health services, housing assistance, and other social services." Implementation of the program, which is open to public and private non-for-profit providers, is contingent upon funding for a cost-effectiveness evaluation based on the program's impact on recidivism.

Targeting Women and Youth
Several states developed reentry initiatives targeting the special needs of women and juveniles. As the Hawaii legislature recognized, "[r]esearch establishes that female offenders have different needs from male offenders...[They] are more likely than male offenders to be addicted to drugs [and] suffer from a mental illness." (HI SB 467). As a result, the legislature required the director of public safety to "[r]espond appropriately to the specific health care needs of women, including but not limited to mental health and substance abuse services...[and to o]ffer transitional support for female offenders and their families to promote successful reentry into their families and communities." A study of mothers on parole in Hawaii found that more than a third of the women interviewed were at one time involved with the juvenile justice system. The bill contained similar requirements for female adjudicated youth in the juvenile justice system, with special attention to additional services such as case management, life skills training and peer support. The Hawaii legislature appropriated a total of $200,000 to implement this legislation in fiscal year 2006-07.

Alabama and New Hampshire also passed legislation addressing female offenders. The Alabama legislature created a Commission on Girls and Women in the Criminal Justice System, prompted in part by federal court oversight of the state's women's prison and a rate of incarceration for girls and women that is "rising five times faster" than the rate for boys and men. (AL HJR 15). The Commission includes the state mental health commissioner, a representative of the Alabama Alcohol and Drug Abuse Association, a representative from the Coalition Against Domestic Violence, and a reentry professional. The Commission is required to develop a "comprehensive, evidence based plan" for women and girl offenders, including the following: 1) "reinvestment of...savings into community-based services"; 2) "development of gender-specific parole and work release criteria to ensure gender equity in public risk assessment"; and 3) the "establishment of reporting procedures to ensure incarcerated girls and women are fairly afforded access to programs and services, including...mental health services, rehabilitative programming, and support for re-entry."

The New Hampshire legislature created a new position within the department of corrections, Administrator of Women Offenders and Family Services, and established an Interagency Coordinating Council on Women Offenders. (NH SB 262). In addition to other duties, the Administrator is responsible for "coordinat[ing] continuum and continuation of gender-responsive services to women offenders moving from one setting to another, and re-entering their communities." Similarly, the Interagency Coordinating Council, which includes a representative from the state agency responsible for mental health and addiction services and the New Hampshire Task Force on Women and Addiction, is accountable for coordinating "interagency case management and re-entry planning" for women offenders. In addition, the Council is charged with developing "gender-specific treatment for co-occurring conditions and a continuity of treatment from incarceration to community." The New Hampshire legislation is the only reentry bill from 2006 to specifically address co-occurring disorders.

Although effective reentry programs may save money over time, many states and localities are challenged to come up with revenue sources for new initiatives. Connecticut found a creative solution to funding reentry programs, diverting $350,000 annually from inmate pay telephone revenue to expand both reentry initiatives and inmate educational services. (CT HB 5612).

Targeting Barriers to Reentry
A number of states enacted legislation aimed at reducing various barriers to successful reentry. These bills addresses barriers to communicating with family members and friends, sentencing practices, employment, access to treatment and medical records upon release, and barriers to receiving medications upon release.

Notwithstanding Connecticut's creative use of pay phone revenue, discussed above, correctional systems are coming under increasing scrutiny regarding telephone charges for inmates. In some instances, corrections officials are facing litigation intended to secure more affordable calling rates for inmates and families which usually have no choice about the service provider. In Louisiana, the House issued a request for the Committee on Administration of Criminal Justice to study telephone usage policies used by state and local correctional facilities to address the reasonableness of rates. (LA HSR 6) In the bill's findings, the legislature recognizes that it is "crucial for incarcerated persons to be able to communicate with their family members and friends as a means of sustaining and strengthening those relationships and the enhance the potential for successful reentry into the community." Enhancing communication with families is one of several changes states and local governments are attempting to make prior to an inmate's release that may have an impact on reentry.

Another aspect of reentry preparation involves access to records. Often, ex-offenders leave prison without records that would help them obtain employment, treatment, housing and other services in the community. Virginia amended two laws that address the types of records persons being discharged from prison may obtain upon their release. In one, prison inmates will automatically receive "verification of...work history while in custody...and certification of all educational and treatment programs completed." (VA HB 691). Offenders may also request a copy of their medical records, an opportunity that could improve the continuity of care between prison and community providers. (VA HB 1093). Inmates must request their medical records 60 days prior to the expiration of their term. Access to treatment records, in addition to photo identification and proof of release, are a straightforward but important components in establishing continuity of care for ex-offenders with mental illness and addiction disorders.

One of the most critical continuity of care issues for ex-offenders with mental illness is access to medication upon release. Many jails have changed or created policies to ensure that people receive a sufficient supply of medication upon release to last until they are able to obtain appointments with their community providers, and some states have done the same for the prison population. Some prescribers in correctional settings have expressed concerns about liability should ex-offenders misuse the often 14-day (or more) supply of medication once they are in the community. Minnesota passed legislation that protects qualified prescribers from civil liability based on the use or nonuse of medications by former prisoners. (MN SF 1040). The liability protection applies "during the period from release from confinement until the former prisoner...is scheduled to receive new medicines pursuant to a new prescription written after the release." In order to receive the law's protection, prescribers must have made the prescription "in good faith, within the scope of lawful practice, and with reasonable care."

Employment of ex-offenders is a much more challenging barrier to reentry. While ex-offenders, in general, encounter many barriers to employment, ex-offenders who also have a mental illness face almost insurmountable obstacles. People with mental illness who have not been incarcerated have the lowest employment rate of all people with disabilities. Although some states enacted legislation in 2006 that is aimed to address employment barriers for ex-offenders, it is unclear whether legislation that is not explicitly tailored to ex-offenders with mental illness will actually benefit this population.

Illinois is one example of a state that created a task force to tackle employment barriers for ex-offenders generally. The legislature recognizes the complexity of the issue, including the daunting number of entities involved in such an effort—e.g., public and private employers, labor organizations, public and private licensing and certification bodies, insurers. Although the legislation does not specifically target ex-offenders with serious mental illness, the Illinois Department of Human Services (which includes both mental health and addiction services) is a non-voting member of the Legislative Task Force on Employment of Persons with Past Criminal Convictions. (IL HJR 107). The reports generated by such task forces will provide legislators and others with a sense of how challenging it will be to remove barriers for ex-offenders.

In another example, Connecticut recently created a "provisional pardon," which is designed to remove "barriers or [restore] forfeitures" related to the person's criminal record. (CT HB 5846). For example, if current policies prevent convicted felons from receiving a barber's license, a common barrier, a provisional pardon could lift that barrier for an individual. Because the pardon is provisional, it could be withdrawn at any time based on the ex-offender's actions in the community. The law is specifically intended to "promote the public policy of rehabilitation of ex-offenders through employment," and it prohibits employers from denying employment solely on the basis of a prior conviction for which the applicant has received a provisional pardon.

Conclusion
In 2006, numerous states responded to corrections capacity issues and rising costs by enacting legislation intended to reduce recidivism. Although many of these initiatives take a broad approach, including some initiatives to revise sentencing guidelines, most include or target reentry in some way. Based on the legislation enacted, states are concerned about reentry generally—i.e., for all ex-offenders—albeit a few are devoting special attention to the growing incarceration rates of women and girls. Although people with mental illness or co-occurring disorders were not the focus of most of the legislation, this population of offenders could benefit from many of the reentry approaches initiated or under consideration. It remains for state agencies, providers, consumers and advocates to ensure that people with mental illness and co-occurring disorders are included and accommodated in the nationwide campaign to reduce recidivism through successful reentry programs.

Please contact Tammy Seltzer, Director of State Policy, with questions or feedback on this edition of State Policy Focus. She can be reached at 301.984.6200, ext. 234 or tammys@nccbh.org.

State Policy Focus is a monthly e-newsletter published by the National Council for Community Behavioral Healthcare. Director of State Policy - Tammy Seltzer.