CHAPTER NINEMedicating ChildrenThis chapter is divided into se.docx

CHAPTER NINE
Medicating Children
This chapter is divided into seven sections. Section One is an
overview that discusses current trends in medicating children,
problems the trends cause, and directions for the future. It also
discusses developmental issues. Section Two focuses on
stimulant medication and the diagnosis of attention deficit
hyperactivity disorder (ADHD). Section Three focuses on
research on combined interventions and particularly the
Multimodal Treatment Study (MTA study) of Children with
ADHD. Section Four focuses on children taking mood
stabilizers. Section Five focuses on antipsychotics and children.
Sections Six and Seven focus on anxiolytics and antidepressants
in children, respectively.
SECTION ONE: PERSPECTIVES, DILEMMAS, AND FUTURE
PARADIGMS
Learning Objectives
• Understand the problematic increase in psychotropic
medications for children despite a dearth of evidence of the
effectiveness of these drugs.
• Have a general understanding of the impact of the FDA
Modernization Act and the Best Pharmaceuticals Act for
Children.
• Be able to state the “developmental unknowns” associated
with giving kids psychotropic medications.
Thus far, we have explored the medical model and
psychological, cultural, and social perspectives as they relate to
psychopharmacology. In this chapter, we demonstrate that using
psychotropic medications with children and adolescents raises
particular problems and concerns from several perspectives. As
discussed in Chapter Three, we frequently see explanations and
justifications from the medical model perspective used to
reduce childhood disorders to chemical and genetic problems,
excluding crucial consideration of environmental traumas,

developmental foreclosures, or life stressors.
We explore child and adolescent psychopharmacology primarily
from the medical model perspective but complement this
approach with information from the other perspectives
(psychological, cultural, and social). We set the stage by
exploring the current status of the treatment of children and
adolescents with mental and emotional disorders. This chapter
is structured differently from the others in this book. We begin
by discussing the context from the social and cultural
perspectives and the problems with prescribing psychotropic
medications to children. Then we cover an introduction to
stimulants used to treat symptoms of ADHD. Finally, we give
the status of their current use since the last edition of the book
if that is possible.
THE COMPLEX STATE OF THERAPY
Dr. Frank O'Dell, Professor Emeritus of Counseling in the
College of Education and Human Services at Cleveland State
University, has argued in all his lectures on counseling children
and adolescents that the United States is an “anti-kid” society
(Personal Communication, 2001). By that he means fewer and
fewer therapists and psychiatrists choose to treat or continue to
work with children in counseling. To support his argument,
O'Dell points out that resources for children, including the
number of hospital beds in mental health wards for children,
have been shrinking. He believes the rules of managed care
companies, dwindling personnel resources, and increasing
difficulty in working with parents or guardians and their
struggling children all contribute to the current trend. This has
been a problem for at least 45 years. The American Academy of
Child & Adolescent Psychiatry (AACAP) (2001) summarized
the following facts, which support O'Dell's assertion, indicating
little has changed:
• There is a dearth of child psychiatrists. Satcher (2001) stated
further that many barriers remain that prevent children,
teenagers, and their parents from seeking help from the small
number of specially trained professionals who are available and

that places a burden on pediatricians, family physicians, and
other gatekeepers to identify children for referral and treatment
decisions (U.S. Department of Health and Human Services,
2001).
• The AACAP's report projected that between 1995 and 2020,
the need for child and adolescent psychiatrists will increase by
120%, whereas the need for general psychiatry is projected to
increase at 22% for the adult population.
• McCarty, Russo, and Rossman (2011) demonstrated that only
13% of youth with suicidal behaviors and ideation receive
mental health services.
• In November 2010, the Coalition for Juvenile Justice
estimated that up to 75% of teenagers in the juvenile justice
system nationwide have a diagnosable mental disorder, and
these numbers continue.
• One in 10 children suffers from mental illnesses severe
enough to impair development. Fewer than 1 in 5 children get
treatment for mental illness.
The U.S. Department of Health and Human Services (2001)
concluded that burgeoning numbers of children are suffering
needlessly because their emotional, behavioral, and
developmental needs are not being met by the institutions and
systems created to care for them. As the number of children and
adolescents needing psychological treatment rises and the
number of service providers falls, the primary treatment
modality becomes psychotropic medications rather than therapy.
Imagine if you were a parent of one of these children.
Debner (2001a) reported that in a one-year period, 350 children
needing hospitalization were turned away from hospitals in the
Boston area. This phenomenon is occurring in most major U.S.
cities and is exacerbated by hospitals holding onto children who
are ready to be discharged, because there is no suitable
placement for them. In another article, Debner (2001b) noted
that the chief pediatricians from the five major academic health
centers in Massachusetts indicated there is a serious crisis in
psychiatric services for youth in the state. The doctors said they

and their staffs could not find appropriate therapy and other
mental health services for mentally ill children. As a result,
many such children deteriorate to the point of crisis. Thomas
and Holzer (2006) reported that America suffers from a serious
long-term shortage of child psychiatrists that is taking a toll on
young people, their parents, and their doctors. It is further
recognized that the demand for psychotropic drugs is intense in
spite of dangerous side effects.
The Washington Post (2002) published an article about a woman
who desperately needed a psychiatric evaluation for her teenage
daughter and who left 36 phone messages for various
psychiatrists. She received only four replies. All the replies
were from practitioners who refused to take the case because
they did not treat adolescents. The article further detailed how,
more and more, in-network providers (clinicians) prefer not to
take patients covered by managed care plans, because
reimbursements are so low and restrictions so numerous. The
article also highlighted the disparity and arguments between the
treating professionals and spokespeople from managed care
companies. It is more than fair to say that desperate parents and
anguished children are caught in the political policy dilemma
over the cost and reimbursement of mental health treatment for
children and adolescents.
Since the first edition of this book, there has been a movement
to train more primary care physicians in pediatric mental health
services to try to address the shortage of pediatric mental health
professionals. Aupont et al. (2013) describe a model called
Targeted Child Psychiatric Services designed for primary care
physicians as well as child psychiatrists. This was associated
with improved access to the child psychiatric services that exist,
helped identify optimal care settings for patients and helped
pediatricians be more likely to accept a patient back after that
patient had been under psychiatric care.
Another problematic topic is who dispenses medications in
schools. Most states have a policy on this and many states have
a Nurse Delegated Medication Administration program (Ryan,

Katsiyannis, Losinski, Reid, & Ellis, 2014). Most standardized
curricula include trainings of approximately 30 hours with 8-
hour updates every two years or so. These are by and large
directed by professional nurses (Spector & Doherty, 2007).
Nationwide lists of states and their programs can be found
at http://www.nasbe.org/healthy_schools/hs/bytopics.php?topici
d=4110&catExpand=acdnbtm_catD and http://www.healthinscho
ols.org/health-in-schools/health-services/school-health-
services/school-health-issues/medication-management/state-
policies-on-administration-of-medication-in-schools.aspx.
THE EXPLOSION OF PSYCHOTROPIC MEDICATION
PRESCRIPTIONS FOR CHILDREN AND ADOLESCENTS
With diminishing psychological supports for children and
adolescents, using psychotropic medications with them has
become the treatment of choice, even though the majority of
medications used with them lack FDA “on-label” approval for
them (Werry, 1999). Researchers currently estimate that
between 7.5 and 14 million children in the United States
experience significant mental health problems (Riddle, Kastelic,
& Frosch, 2001; Wozniak, Biederman, Spencer, & Wilens,
1997). These statistics vary a little from Satcher (2001), cited
earlier; clearly, millions of children in this country require
mental health services. Children are increasingly prescribed
psychotropic medications as part of their treatment; in many
cases, the medications replace the therapy (Jensen et al., 1999;
Phelps, Brown, & Power, 2002). Given the explosion in the use
of psychotropic medication with children, it is important also to
note that this population has been excluded from clinical trials
of these drugs. Hence, decisions about juvenile medication
obviously rest more on extrapolation of adult data to children
and adolescents than on direct research and evaluation of the
safety and efficacy of psychotropic medication with children
(Riddle et al., 2001; Vitiello & Jensen, 1997).
Coyle (2000) indicated that 80% of all medications prescribed
to children and adolescents in the United States have not been
studied for the safety and benefit of these populations. As of

2011, The National Institutes of Health indicated that
methylphenidate, lithium, all atypical antipsychotics,
lorazepam, and amitriptyline were still on the highest priority
list of needs in Pediatric Therapeutics of drugs to be studied in
pediatric populations.
Even though there is a black box warning related to the risk of
increased suicidality in children and adolescents prescribed
SSRIs and SNRIs, the use of these psychotropic agents has
increased with children and adolescents (Markowitz & Cuellar,
2007). The trend in treating children and adolescents with off-
label psychotropic medications, mostly in lieu of counseling and
psychotherapy, has triggered concern both in the general public
and the mental health community. Coyle (2000), Furman (1993),
and Zito (Zito et al., 2000, 2003) argue that there is little or no
evidence to support psychotropic drug use with very young
children and conclude that such treatment could have harmful
psychological, developmental, and physical effects. In a
multinational study, American youths were three times more
likely to be on an antidepressant medication than their peers in
Denmark, Germany, and the Netherlands (Zito et al., 2006). In
2010, the pharmaceutical companies research protocols were
really challenged when uncovered pharmaceutical studies on
many highly utilized psychotropics were found to be no more
efficacious than the placebo. In fact, the second author has
personal communications with several psychiatrists in their
fourth or fifth decade of practice who question the overall
effectiveness of psychopharmacology with patients, especially
children (Ramirez, Personal Communication, 2014).
In another multinational study, Zito et al. (2008) found that the
annual prevalence of youth taking psychotropic medication was
threefold greater in the United States than in the Netherlands
and Germany. The atypical antipsychotics represented 5% of
antipsychotic use in Germany but 66% in the United States.
Interestingly, though, anxiolytics were twice as common in
Dutch youth than as in U.S. or German youth.
With proper research, mental health professionals may be able

to head off disasters such as aspirin precipitating Reye's
syndrome or valproate leading to sudden death in infants
(Riddle et al., 2001). Given the lack of knowledge about the
long-term and adverse effects of psychotropic medication on
children, it is crucial that mental health clinicians be alert to the
impact of these drugs on children and advocate for youth when
the evidence that such drugs would be helpful is questionable
(Ingersoll, Bauer, & Burns, 2004). At this point, we would like
to introduce a case that highlights many of the treatment and
medication dilemmas children and adolescents encounter.
THE CASE OF PHILLIP
Phillip is a 7-year-old first-grader from a single-parent home.
His mother is on public assistance, and he is the oldest of four
boys. Although some of the details of his developmental history
are sparse, Phillip began to exhibit impulse control problems at
the age of 2 years and 4 months, shortly after his father moved
out of the house. He was hyper-vigilant, easily distractible,
aggressive with his younger sibling, and frequently irritable.
Initially, his mother believed he was going through a stage of
rebelliousness, but after several months she became concerned
about his behavior and mentioned this to the pediatrician. After
a brief examination, the pediatrician indicated that Phillip was
likely suffering from ADHD and recommended against
medication unless his behavior got too out of control at home.
However, she felt he would need a course of
methylphenidate/Ritalin, a prescription stimulant, once he
began preschool. Phillip's mother accepted this recommendation
and planned to have him evaluated when he began preschool.
Phillip's behavior improved slightly over the next several
months, without therapy or psychotropic medication.
When he began preschool, it took only a few days before all his
active symptoms returned. After observing him for several
weeks, the teacher recommended to Phillip's mother that he see
a physician to be assessed for a stimulant medication. After the
evaluation, the physician prescribed 10 mg of
methylphenidate/Ritalin daily for Phillip.

Methylphenidate/Ritlain is one of the most common stimulants
used for symptoms of ADHD in children. It is intended to
reduce inattentiveness, distractibility, impulsivity, and motor
hyperactivity, with a goal of improved academic productivity.
Phillip's symptoms slightly improved over the next eight weeks,
but his aggressive behavior toward other children increased.
Phillip's mother noticed more unpredictable behavior at home,
as well as sleeplessness and restlessness followed by long
periods of lethargy. She took him back to his physician, who
referred them to a psychiatrist. The psychiatrist, after a three-
session assessment, diagnosed Bipolar I (BPI) Disorder, took
him off the methylphenidate/Ritalin, and prescribed 50 mg of
carbamazepine/Tegretol daily and 0.01 mg of
clonazepam/Klonopin. The carbamazepine/Tegretol was used to
reduce his manic symptoms. This antiseizure medication has
over time been found very effective with Bipolar Disorder
(Phelps et al., 2002).
The clonazepam/Klonopin was used to address Phillip's anxious
and agitated symptoms. This anti-anxiety medication often
relaxes children and reduces anxiety without inducing sleep.
Many of Phillip's symptoms diminished, but his mother noticed
both a sluggishness and apathy in him that were new. Over the
course of the next year, Phillip's teacher addressed several of
his learning and cognitive processing problems. Up to
this point, the focus of Phillip's treatment had been
psychopharmacologic. No psychosocial interventions were
given to Phillip, as is often the case (Phelps et al., 2002). No
one seemed to have any awareness or discussion about the
optimal level of medication for Phillip, and there was no
referral for a psychosocial assessment. As his symptoms
worsened, he was evaluated by a psychiatrist schooled in
prescribing adult psychotropic medications off label to children.
Finally, Phillip's mother took him to see a therapist, who
focused on Phillip's attachment issues, his phobic anxiety
triggered by sudden loss or the anticipation of sudden loss, and
his physiologic symptoms, which the therapist considered

powerful side effects of the pharmacologic therapy.
Analysis of Phillip's Case
Analyzing the case, Phillip was treated by pharmacology in the
medical model method and rational thinking centered on
pharmacology dominated the case. The combination of
methylphenidate/Ritalin and carbamazepine/Tegretol on
Phillip's system was supposed to reduce some of his
externalizing symptoms in the constellation of ADHD or
Bipolar I disorders, but the psychological aspects of his
personality were ignored. Not until much later in the course of
his illness did Phillip get some assistance in those domains.
Culturally, Phillip's mother had little power in society and was
torn between accepting the opinion of the medical experts, and
watching the negative impact the medications were having on
her son. As mental health professionals, we need to understand
the medical psychiatry's rapid efforts to address most disorders
of childhood and adolescents with psychotropic medication. Far
too often, medicating professionals view talk therapy and other
psychosocial interventions as ineffective and second rate.
Because medical professionals hold more power in our society
than mental health professionals, their medical opinions are
frequently given more weight. Today, psychiatrists burdened by
enormous caseloads are open to what is known as split-
treatment, a joint effort by the mental health professional and
psychiatrist to plan and integrate treatment and be vigilant for
client manipulation. We must integrate care into a larger model
of treatment that addresses each of the four perspectives equally
and where mental health professionals' opinions on mental
health treatment are given more weight. In addition, the power
of pharmaceutical companies must be monitored. Bodenheimer
(2000) has documented numerous cases where companies
prevented important research findings from being published
because they were not favorable regarding the compounds being
tested. To what extent may such situations affect clients like
Phillip? This will be discussed later in the chapter.
Remember, Phillip was in the 4 to 7 age range when he began

treatment. Coyle (2000) comments that there is “no empirical
evidence to support psychotropic drug treatment in very young
children and that such treatment could have deleterious effects
on the developing brain” (p. 1060). Furman (1993) posited that
psychiatrists in the United States are recklessly “out of control”
in prescribing methylphenidate/Ritalin and other stimulants for
children, in contrast to the extreme caution that physicians in
almost all European countries use in recommending this
treatment approach. With the increasing trend to medicate a
younger and younger population (Zito et al., 2000), mental
health professionals not only need to understand the impact and
therapeutic effectiveness of these medications, but also their
limitations and potential for harming children.
THE MEDICATION OF CHILDREN AND THE FEDERAL
LAWS
As we have noted in previous chapters, the laws of the land hold
great influence over cultural and social paradigms. To a large
extent, laws are the result of a dynamic interaction of forces
that influence other areas such as socioeconomic status and the
fiscal systems of a society. Socioeconomic status and fiscal
systems shape laws in very powerful ways, and people with
financial resources are able to buy influence with lawmakers.
This is nothing new, but bears stating in this chapter. Although
recent legislation has been introduced to address the many
problems of prescribing psychotropic medications for children,
most such laws require only voluntary testing of psychotropic
drugs, diminishing any real impact. In this section, we
summarize recent laws and comment on them, beginning with a
summary in Table 9.1.
TABLE 9.1 Major Emphases of Recent Legislation on Pediatric
Pharmacology
Law/Rule
Summary
FDA Modernization Act
Recognizes rights of children as patients
(Public Law Number 105–115, 1997)

Sets specific standards for research of pediatric drugs
Encourages pediatric labeling
Best Pharmaceuticals for Children Act
Voluntary pediatric studies of currently marketed drugs
(Public Law Number 107–109, 2002)
Created list of all pediatric drugs needing documentation
Requires timely labeling of pediatric drugs
Establishes a mandate to include children of all cultures in
studies
Voluntary studies of new drugs
Pediatric Rule Bill of 2002a
Required timely pediatric studies and adequate labeling
aChild & Family Services Improvement Act: Language on how
the use of medications is to be monitored.
© Cengage Learning®
FDA Modernization Act
Buck (2000) traced the unfolding need for greater specific
labeling of drugs used with patients less than 18 years of age.
The burgeoning use of almost all drugs approved for children by
the FDA compelled pediatric health care providers to use these
drugs off label without a clear knowledge of dosing,
administration, or adverse-effect information. In 1992, the FDA
took steps to improve both pediatric labeling and research,
which resulted in support for building a network of
pharmacologic research by the National Institutes of Health
(NIH). These efforts began to address the problem, and passage
of the FDA Modernization Act (1997) for the first time set
specific requirements to tighten regulations relating to pediatric
pharmacology. This law encouraged pediatric labeling on drugs
used widely with children and adolescents where the lack of
labeling might lead to serious misuse. However, the FDA
website (2013) warns that users of methylphenidate/Ritalin may

have an erection lasting many hours. This from an agency that
still cannot conduct pediatric studies that evaluate the full
impact of the drug on that population.
This law goes a long way toward recognizing the rights of
children as patients, protecting their health, and assisting
pediatric providers with essential information. Unfortunately,
the law did not go far enough. Many practitioners and
lawmakers felt the need for a comprehensive law to mandate
pharmacologic research, monitor it, and further protect children.
The Best Pharmaceuticals for Children Act
On January 4, 2002, President George W. Bush signed Public
Law Number 107–109, the Best Pharmaceuticals for Children
Act (Dodd, 2001), with the anticipation that it would address
many of the dilemmas and controversies surrounding the
eruption in use of pharmaceuticals for children. This law aims
to initiate critical studies with pharmaceuticals already
prescribed to a population for whom there exists little research,
and it tightens the monitoring and development of new drugs
released for children and adolescents. The law seeks to integrate
viewpoints on medicating children with the medical, cultural,
and social perspectives. Unfortunately, its most powerful
provisions regarding the conduct of pharmaceutical companies
are voluntary.
The Best Pharmaceuticals for Children Act (BPCA) has 19
sections that can be viewed
at http://www.fda.gov/RegulatoryInformation/Legislation/Feder
alFoodDrugandCosmeticActFDCAct/SignificantAmendmentstot
heFDCAct/ucm148011.htm). This law encourages voluntary
pediatric studies of already marketed drugs, the so-called off-
label psychotropic drugs in widespread use with children, and it
creates a research fund for studying these drugs
(see http://blogs.fda.gov/fdavoice/index.php/tag/best-
pharmaceuticals-for-children-act-bpca/). Both efforts are
critical to understanding the effectiveness and efficacy of
psychotropic medications for children and adolescents. Further,
the law establishes an ongoing program for the pediatric study

of drugs, including a list of all drugs for which documentation
is needed. This aspect of the law is monitored by the
commissioner of the FDA and the director of the National
Institutes of Health, who have the power to make written
requests to pharmaceutical companies for pediatric studies. The
law requires timely labeling changes for pediatric drugs under
study.
As of this edition, the status of most pharmaceuticals for
children and adolescents remains similar to what it was in 2006.
There was the black-box effort with SSRIs and SNRIs, but they
are prescribed at rates higher than in 2006 (Cummings &
Fristad, 2007) and most other psychotropics are used with
children and adolescents to quiet anxiety, agitation, and rage.
However, the pharmaceutical companies continue to challenge
the Pediatric Rule on all fronts and now it is 2014 and most
important drugs for children have not been studied with a
pediatric group. So goes the Pediatric Rule. On October 17,
2002, the U.S. District Court for the District of Columbia ruled
that the FDA did not have the authority to issue the Pediatric
Rule and has barred the FDA from enforcing it. The Pediatric
Rule would have required timely pediatric studies and adequate
labeling of all human drugs.
Child and Family Services Improvement Act
The Child and Family Services Improvement Act of 2011
(Public Law 112–34) includes new language that addresses the
social-emotional and mental health of children who have been
traumatized by maltreatment. State Child and Family Services
Plans now have to include details about how emotional trauma
associated with maltreatment and removal is addressed. They
also have to describe how the use of psychotropic medications
is monitored.
A WORD ON CROSS-CULTURAL PERSPECTIVES
Tseng (2003) proposed many variables and differences in
prescribing psychotropic medications to children and
adolescents from various cultures. He stressed that one must
consider not only the physician's attitudes about treating people

from different cultures, but also the patients' perspectives on
how they feel about psychotropic medications. Thus, the giving
and receiving of medications has many implications. This factor
is greatly enhanced for children and adolescents, because the
physician must not only communicate with the parents about the
diagnosis and the psychotropic medications (neither of which
may make sense in the parents' worldview) but must also weigh
carefully the cultural issues that the family brings to treatment.
Tseng (2003) also addresses the enculturation issues of
children. His research has described how not every culture
emphasizes the fast-paced and often accelerated approach to
growing up that characterizes the United States. Enculturation is
defined as a process through which an individual, starting in
early childhood, acquires a cultural system through the
environment, particularly from parents, school, and so on. Some
cultures, such as many Asian cultures, have a laid-back attitude
toward babies and toddlers that is more indulgent. Yet later,
they show a dramatic shift for these children, who, when they
arrive at latency, the developmental period between the ages of
6 and 11 or 12, experience enormous pressure to be diligent and
to achieve. Thus, as clinicians treat children and adolescents
from all cultures, they need to reconsider cross-cultural
adjustment and revise the psychosocial stages of Erikson
(1968), which depended on developmental understandings in a
particular culture.
With the upsurge in the use of psychotropic medications, it is
impossible to monitor the expected and unexpected adverse
effects. Given the expanding knowledge of the varying
developmental trajectories of children from other cultures,
mental health practitioners and psychiatrists need to exercise
further caution when prescribing psychotropic medications for
these children. Lin and Poland (1995) described in detail the
remarkably large interindividual variability in drug responses
and side effect profiles. This can be partially accounted for in
differences of ethnicity and/or culture apart from physiological
pace. Some cultures are very suspicious of medication and may

delay the decision for more than a year.
Lin and Poland (1995) have made significant contributions to
the understanding of cultural psychiatry and to the fact that
genetic factors associated with individual and ethnic
backgrounds contribute greatly to responses to medication in
children, adolescents, and adults. Kirmayer and Ban (2013) note
that cultural differences in self and personhood are equally
important. All researchers we reviewed point to variations
within the same ethnic group and variations among ethnic
groups. This further complicates the integrative dilemma, which
is how to view psychopharmacology and cases from the four
perspectives outlined in Chapter One as well as consider
important developmental lines and levels. Mental health
professionals recognize that researchers have much to learn
about psychopharmacology with children and adolescents, as
shown by the research cited in this chapter. We need to
integrate our growing understanding of cultural psychiatry with
our limited understanding of how psychotropic medications
work in children. The Best Pharmaceutical Act for Children
(2002) provided …
AJPH PUBLIC HEALTH DIALOGUE
Understanding Police Violence as a
Mutual Problem
See also Morabia, p. 421, and Gilbert, p. 457.
This past Thanksgiving, I was
in Chicago visiting family when
a cellphone video of a police
officer taking down a man hit
the local airwaves. The images
showed an officer using an emer-

gency maneuver that resulted
in the man’s head hitting the
pavement. There was an imme-
diate outcry; it was said that the
takedown was unwarranted, yet
another case of “rogue policing.”
Lost in the clamor was that the
man was intoxicated and had
verbally threatened, licked, and
spit on the officer. The man
further refused ambulance
transport, and the officers them-
selves took him to the hospital
for care. At the time of this writ-
ing, two officers remain under in-
vestigation, while the man was
bailed out of jail (he had out-
standing parole violations) amid
claims that he was “thrown onto
the sidewalk with no regard for
his life” (https://bit.ly/37piikW).
Is this another example of
police violence or simply an of-
ficer trying to protect himself? If
all politics are local, then most
opinions are personal. I will freely
admit that my view of law en-
forcement comes from more than
20 years of working night shifts
in the emergency department,
watching officers and deputies
protect society’s most vulnerable.
To be quite honest, I am most
often impressed at the restraint
police officers exhibit when

dealing with violent and abusive
people and when faced with
imminent threats to life and limb.
The idea that unthinking vio-
lence is somehow basic to law
enforcement system seems con-
tradictory to my lived experi-
ence. Individuals and institutions
within the law enforcement
community want to do right, and
while one might argue that they
do so not out of goodness but out
of fear of public backlash, every-
one recognizes that law enforce-
ment officers can only dotheir job
well if they do so with restraint,
impartiality, and integrity. There
are bad cops, just as there are those
ill-suited to any profession, and
sometimes people who clearly do
not belong in police work can slip
through the cracks. But it is a
certainty that within law en-
forcement nobody likes a bad
cop.
WHAT IS POLICE
VIOLENCE?
Part of the problem is that we
do not know what “police vio-
lence” really is or the true scope
of the problem. Obasogie and
Newman note that the exact
definition of police violence

is vague, and is most often a
subjective interpretation of
the constitutional minimum
that the “use of force must be
reasonable.”1(p286)
Statistics on police violence as
a whole are hard to come by, but
data on police shootings are more
available. The 2015 Police Vio-
lence report from the Mapping
PoliceViolenceWebsiteindicates
that there were 1152 people
killed in police shootings that
year. The context of the event
is also important: more than
1000 of these fatalities were
reported to be armed (https://
mappingpoliceviolence.org). In
these cases, a true threat may
well have been perceived at the
moment of the use of deadly
force. The threat to law en-
forcement officers is real; 42
officers were killed by gunfire in
2015 (https://n.pr/2rEKFg8).
While research clearly shows
that racial minorities are dispro-
portionately more likely to be the
recipients of deadly force, other
works describe the disparity in
prevalence as a result of the as-
sumption that Blacks and Whites
are equally likely to encounter
police. It seems a reasonable

middle ground to presume that
these disparities, while unques-
tionably present, themselves are
a function of the population
encountered by law enforce-
ment; unfortunately, this
population is highlighted by
overrepresentation of racial and
ethnic minorities rooted in so-
cioeconomic factors also com-
mon to disparities in income,
education, and health.
What is “reasonable force” is
in the eye of the beholder, and
more often than not that be-
holder is a Monday-morning
quarterback of a situation they
never truly understand. It is
easy to jump on the bandwagon
that police are agents of vio-
lence while one is sitting in the
stands.
NEEDING EACH OTHER
That is why I am surprised that
the public health community,
which places value in commu-
nity, collaboration, and under-
standing stakeholders’ views,
writes in the first sentence of the
2018 American Public Health
Association (APHA) policy
“Addressing Law Enforcement

Violence as a Public Health
Issue,” that “Physical and
psychological violence that is
structurally mediated by the sys-
tem of law enforcement results in
deaths, injuries, trauma, and stress
that disproportionately affect
marginalized populations . . .”
ABOUT THE AUTHOR
Howard Rodenberg is physician advisor for clinical
documentation integrity, Baptist Health,
Jacksonville, FL.
Correspondence should be sent to Howard Rodenberg, Physician
Advisor, Clinical Docu-
mentation Integrity, Baptist Health, 3563 Philips Highway,
Building A, Suite 108, Jack-
sonville, FL 32207 (e-mail: [email protected]). Reprints can be
ordered at http://
www.ajph.org by clicking the “Reprints” link.
This editorial was accepted January 16, 2020.
doi: 10.2105/AJPH.2020.305585
Note. The opinions expressed herein are those of the author and
do not reflect those of Baptist
Health.
456 Editorial Rodenberg AJPH April 2020, Vol 110, No. 4
https://bit.ly/37piikW
https://mappingpoliceviolence.org/
https://n.pr/2rEKFg8
mailto:[email protected]

http://www.ajph.org
http://www.ajph.org
(https://bit.ly/37iFrFD). The
text of the document reinforces
this adversarial message while
failing to recognize any of the
challenges of police work.
While the position state-
ment does make positive rec-
ommendations, most notably the
need to address the underlying
social determinants of health,
those points are lost in the rhet-
oric sure to set law enforcement
on the defensive. That is not the
way to build collaboration. It is
no wonder that the Statement of
Policy on Police Violence and
Racism from the National As-
sociation of County and City
Health Officials (NACCHO), a
group comprising public health
leaders who work with law en-
forcement on a daily basis, takes a
much different tone, emphasiz-
ing understanding of police roles
and mutual collaboration while
making similar points (https://
bit.ly/2TBrYW8). Surprisingly,
the hostility espoused by the
APHA does not seem to exist
on the law enforcement side,
with works highlighting ways

in which our worlds can align
and support one another through
growing awareness of our
interconnections.2–5
SOLUTIONS
There is no doubt that police
departments can do better.
Obasogie and Newman provide
a content analysis of use-of-force
policies that provides a theoreti-
cal grounding for terms and
conditions that apply to these
critical incidents.1 The Mapping
Police Violence project has also
demonstrated that changes in
use-of-force policies can de-
crease the numbers of fatalities
that result from police shootings.
Effective measures include re-
quiring officers to use all other
means before shooting, requir-
ing that all use of force be re-
ported, banning chokeholds and
strangleholds, establishing a con-
tinuum for the use of force, and
requiring that de-escalation tech-
niques be brought into play
(https://mappingpoliceviolence.
org). Each of these measures has
its own implications for officer
selection and training, and they
appear to be measures that may be

agreed to by all parties with a
minimum of disruption to cur-
rent law enforcement program-
ming. More importantly, they
can be promoted in a spirit of
collaboration to concurrently re-
duce risks to both police officers
and the community. I believe that
thesemeasuresarebestadvocatedat
the community level, where rela-
tionships between local officials
already exist, with public health
agencies taking the lead in estab-
lishing community consensus
around workable solutions.
A few years ago, NACCHO
developed a badge-shaped logo
torepresentpublichealth (https://
bit.ly/37mfWnh). The shape
linked us to the other members
of the public protection family
who wear the badge, including
fire safety, emergency medical
services, and law enforcement.
And the family does a lot bet-
ter around the Thanksgiving
table engaging in mutually
supportive dialogue than in
hurling invective at the quality
of the stuffing.
Making police violence an
issue of inherent bad faith and
racism, where one party is

thought morally superior to the
other, does not facilitate solu-
tions. Understanding police vi-
olence as a mutual problem to be
resolved just might.
Howard Rodenberg, MD, MPH
CONFLICTS OF INTEREST
The author has no conflicts of interest to
declare.
REFERENCES
1. Obasogie OK, Newman Z. Police vio-
lence, use of force policies, and public health.
Am J Law Med. 2017;43(2-3):279–295.
2. Robert V. Wolf Center for Court In-
novation. Law enforcement and public
health.February2012.Availableat:https://
www.courtinnovation.org/sites/default/
files/documents/LawEnfPubHealth.pdf.
Accessed February 12, 2020.
3. Shepherd JP, Sumner SA. Policing and
public health—strategies for collabora-
tion. JAMA. 2017;317(15):1525–1526.
4. van Dijk A, Crofts N. Law enforcement
and public health as an emerging field.
Policing Soc. 2017;27(3):261–275.
5. van Dijk AJ, Herrington V, Crofts N,
et al. Law enforcement and public health:
recognition and enhancement of joined-
up solutions. Lancet. 2019;393(10168):

287–294.
Keon Gilbert Comments
See also Morabia, p. 421, and Rodenberg, p. 456.
Police-involved shootings
challenge our thinking about the
intersections of race, gender,
class, and place, which are em-
bedded in everyday practices and
policies governing law enforce-
ment. The Mapping Police
Violence (MPV) Web site
estimated that 1164 people in
the United States were killed
by police in 2018.1 Howard
Rodenberg’s essay (p. 456) re-
flects a collective cognitive dis-
sonance that comes with new
reports of officer-involved
shootings that structure four
socially accepted views: (1) po-
lice are good and serve our
communities to ensure safety;
(2) police have dangerous and
stressful jobs; (3) training, ethics,
and values guide police behav-
iors; and (4) if you are arrested,
hurt, or killed by police—these
“justify” use of force.
Evidence documenting
police-involved shootings chal-
lenge these views and are less

understood because of the lack of
data collected over time and
across all police agencies, limiting
the precision and magnitude of
estimates. MPV reported 104
unarmed Black people being
killed by police in 2015. What
is not reported in Rodenberg’s
comments is that unarmed Black
people are five times more likely
than White people to be killed by
police. In 2015, 50 police officers
were shot and killed, while many
more died resulting from other
causes such as suicide.2 Is it the
general community or just Black
and Brown residents who are the
risk to police? As crime rates
decline, policing in poor, Black,
and Brown neighborhoods in-
creases, and this becomes a fatal
risk for being killed by police in
those neighborhoods.3
Rodenberg’s essay stems from
an incident with Bernard Kersh
in Chicago, Illinois, which exem-
plifies the lack of police training to
ABOUT THE AUTHOR
Keon L. Gilbert is with the Department of Behavioral Science
and Health Education at Saint
Louis University, College for Public Health and Social Justice,

3545 Lafayette Ave, St Louis,
MO 63104 (e-mail: [email protected]). Reprints can be ordered
at http://www.ajph.
org by clicking the “Reprints” link.
This comment was accepted January 14, 2020.
doi: 10.2105/AJPH.2020.305590
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awEnfPubHealth.pdf
awEnfPubHealth.pdf
awEnfPubHealth.pdf
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524
DEMOCRACY, BUREAUCRACY, AND
CRIMINAL JUSTICE REFORM
LAUREN M. OUZIEL*
Abstract: American criminal justice systems blend elected or
politically appointed leaders
with career civil servants. This organizational hybrid creates
challenges at the intersection of
democratic accountability and enforcement discretion. In
moments of stasis in the politics of
criminal justice, those challenges are largely invisible: the
public, elected officials, and civil
servants generally share a unity of interest, borne of like-
minded policy commitments that
have developed over time. But in moments of political
transition—that is, when public pref-
erences on criminal justice policy are in flux—the relationship
between bureaucracy and
democracy can be fraught. Public demand for change may or
may not accord with the com-
mitments, ideals, and culture of the bureaucracy’s front-line
actors. Elected leaders are voted
in with high expectations for transformative change, but may be
stymied by institutional re-
sistance to it. The bureaucracy, in turn, may seek to alter the
political narrative that is fueling

the political transition, further complicating the democratic
process. And in a system in
which criminal lawmaking and enforcement power is spread
across three different levels of
government—local, state, and federal—with overlapping
authority yet different constituen-
cies, the complexity of interplay between “public” and
bureaucracy deepens.
Across America, a growing number of jurisdictions are entering
moments of political transi-
tion in criminal justice. This Article explores the political and
institutional arrangements that
alternatively impede, permit, or even accelerate a resulting
change in criminal enforcement
on the ground. Drawing on the democracy/bureaucracy
framework developed in the fields of
political theory and public administration, the Article considers
how these fields and others
can enrich our understanding of current political and
institutional dynamics in American
criminal justice. The Article then reflects on these dynamics’
implications for democratic re-
sponsiveness and systemic legitimacy, arguing,
counterintuitively, that the very features of
the democracy/bureaucracy relationship capable of slowing
democratically sanctioned
change in criminal enforcement can also end up hastening
political shifts; and that, properly
leveraged, the criminal enforcement bureaucracy can help
realize deliberative and participa-
tory democratic ideals.
© 2020, Lauren M. Ouziel. All rights reserved.
* Associate Professor, Temple University Beasley School of

Law. For helpful comments and
conversations, thanks to Stephanos Bibas, Craig Green, Bernard
Harcourt, Lisa Miller, Dan Richman,
Richard Re, Rachel Rebouche, Andrea Roth, Jocelyn Simonson,
David Sklansky, Seth Stoughton,
Ron Wright, Chuck Weisselberg, and participants at the
Criminal Justice Roundtable at Yale Law
School, the Junior Faculty Forum at the University of Richmond
School of Law, the Junior Criminal
Justice Roundtable hosted by Brooklyn and St. John’s Law
Schools, CrimFest! at Cardozo Law
School and presentations at Temple University Beasley School
of Law, UC Berkeley School of Law,
and New York Law School. Thanks as well to the editors of the
Boston College Law Review.
2020] Democracy, Bureaucracy, and Criminal Justice Reform
525
INTRODUCTION
Public attitudes towards crime and punishment are in flux.
Voters have
passed state referenda reducing prison terms, decriminalizing
certain offenses,
strengthening police oversight, and re-enfranchising convicted
felons.1 They
have pushed mayors to commit to police reform, both with
respect to who is
policed and how they are policed.2 Prosecutorial elections over
the last several
cycles have seen candidates increasingly campaigning—and
winning—on plat-
forms of reforming bail, charging, and plea-bargaining

practices.3 And alt-
hough these electoral outcomes and pressures have yet to gain
broad traction,
neither are they geographically or culturally limited: they have
touched juris-
dictions from north to south and from east to west, from major
cities to rural
counties, and from more punitive regions to more merciful
ones.4 These results
1 See Daniel Gotoff & Celinda Lake, Voters Want Criminal
Justice Reform. Are Politicians Lis-
tening?, MARSHALL PROJECT (Nov. 13, 2018),
https://www.themarshallproject.org/2018/11/13/
voters-want-criminal-justice-reform-are-politicians-listening
[https://perma.cc/RU7H-YXXV] (sum-
marizing a series of criminal justice reforms passed by voters in
2018 elections); Nicole D. Porter, The
State of Sentencing 2014: Developments in Policy and Practice,
SENTENCING PROJECT (Feb. 1, 2014),
https://www.sentencingproject.org/publications/the-state-of-
sentencing-2014-developments-in-policy-
and-practice [https://perma.cc/U8EW-6ZMF] (describing voter
initiatives that decriminalized specific
crimes).
2 See JR Ball, Baton Rouge Mayor Vows Police Reform
Despite Justice Department Changes,
NEW ORLEANS TIMES-PICAYUNE (Mar. 3, 2017),
https://www.nola.com/archive/article_4681177c-
b09e-5af0-b2bf-ccb291ca315f.html [https://perma.cc/QL5N-
NEY4] (detailing the Baton Rouge
mayor’s campaign promises and plans to enhance the police
department’s relationship with the pub-
lic); Lynh Bui & Peter Hermann, Baltimore Mayor, Police
Commissioner Pledge to Move Forward on

Reform Efforts, WASH. POST (Apr. 4, 2017),
https://www.washingtonpost.com/local/public-safety/
baltimore-police-commissioner-pledges-reform-despite-justice-
dept-action/2017/04/04/5b745ce8-
b88b-4b5e-a14b-
4f9f84376168_story.html?noredirect=on&utm_term=.a63a8328f
3d3 [https://perma.
cc/G8RL-BG3Q] (relaying the Baltimore mayor’s public
remarks on continued efforts to reform the
city’s police department); Mayor Rahm Emanuel, Our Next
Steps on Road to Police Reform, CHI. SUN
TIMES (May 13, 2016),
https://chicago.suntimes.com/opinion/mayor-emanuel-our-next-
steps-on-road-
to-police-reform/ [https://perma.cc/Z5VW-7MKD] (pledging to
improve accountability in the Chica-
go Police Department); Maura Ewing, A Reckoning in
Philadelphia, THE ATLANTIC (Mar. 3, 2016),
https://www.theatlantic.com/politics/archive/2016/03/a-
reckoning-in-philadelphia/472092/ [https://
perma.cc/4MH6-TLCF] (making note of the Philadelphia
mayor’s claims that he seeks to reduce in-
carceration rates and address the cash bail issue).
3 David Alan Sklansky, The Changing Political Landscape for
Elected Prosecutors, 14 OHIO ST.
J. CRIM. L. 647, 650 (2017); Maurice Chammah, These
Prosecutors Campaigned for Less Jail Time—
And Won, MARSHALL PROJECT (Nov. 9, 2016),
https://www.themarshallproject.org/2016/11/09/these-
prosecutors-campaigned-for-less-jail-time-and-won#.Rj6p3Dhd8
[https://perma.cc/B9VD-CRDE];
Daniel Nichanian, Voters Beyond Big Cities Rejected Mass
Incarceration in Tuesday’s Elections, THE
APPEAL (Nov. 7, 2019),
https://theappeal.org/politicalreport/voters-beyond-big-cities-
rejected-mass-

incarceration-in-tuesdays-elections/ [https://perma.cc/H952-
SD9T] (describing a “wave of decarceral
candidates” emerging victorious in prosecutor races across the
country in 2019).
4 See Ben Austen, In Philadelphia, a Progressive D.A. Tests
the Power—and Learns the Limits—
of His Office, N.Y. TIMES MAG. (Oct. 30, 2018),
https://www.nytimes.com/2018/10/30/magazine/
larry-krasner-philadelphia-district-attorney-progressive.html
[https://perma.cc/5ZE8-9LN3] (“[B]egin-
526 Boston College Law Review [Vol. 61:523
also accord with national public opinion polls over the last
several years show-
ing strong public support for reducing incarceration for non-
violent offenses,
reforming the bail system, and increasing police oversight and
accountability.5
A Congress that has struggled to achieve bipartisan legislative
achievements
recently passed, by a wide bipartisan margin, a federal criminal
justice reform
bill that, among other things, reduces (or in some cases
eliminates) mandatory
minimum penalties for certain offenses and offenders and
improves conditions
of confinement.6 Though modest in its reforms, the legislation
adds to the ac-
cumulating evidence of a changing politics of crime.
ning in 2013, when the late Ken Thompson unseated a 23-year
incumbent in Brooklyn, voters have

elected 30 reform-minded prosecutors, in municipalities as
varied as Corpus Christi, Kansas City and
San Francisco.”); Justin Miller, The New Reformer DAs, AM.
PROSPECT (Jan. 2, 2018), http://
prospect.org/article/new-reformer-das [https://perma.cc/HFR4-
PGDN] (stating that reform-oriented
prosecutors have won office in Florida, Louisiana, Mississippi,
Texas, New Mexico, Colorado, and
Illinois); Joseph Neff, How Prosecutor Reform Is Shaking Up
Small DA Races, MARSHALL PROJECT
(May 1, 2018),
https://www.themarshallproject.org/2018/05/01/how-prosecutor-
reform-is-shaking-up-
small-da-races?ref=collections [https://perma.cc/BYK4-LFWU]
(arguing that reform platforms among
prosecutors running in Philadelphia, Chicago, and Houston have
now spread to Durham, North Caro-
lina as well); Nichanian, supra note 3 (describing victories for
progressive prosecutors in 2019 in rural
and suburban districts in Virginia, Mississippi, and
Pennsylvania).
5 See RICH MORIN ET AL., PEW RESEARCH CTR.,
BEHIND THE BADGE: AMID PROTESTS AND
CALLS FOR REFORM, HOW POLICE VIEW THEIR JOBS,
KEY ISSUES AND RECENT FATAL ENCOUNTERS
BETWEEN BLACKS AND POLICE 75, 81 (Jan. 11, 2017),
https://assets.pewresearch.org/wp-content/
uploads/sites/3/2017/01/06171402/Police-
Report_FINAL_web.pdf (surveying 4,538 adults and
finding sixty percent of the public, including a majority of
whites, believes deaths of blacks during
police encounters in recent years are signs of a broader
problem); PEW RESEARCH CTR., AMERICA’S
CHANGING DRUG POLICY LANDSCAPE 1 (Apr. 2, 2014),
https://www.pewresearch.org/wp-content/
uploads/sites/4/legacy-pdf/04-02-14-Drug-Policy-Release.pdf

(surveying 1,821 adults and finding
67% favored treatment over prosecution for those who use
cocaine and heroin, and 63% favored states
moving away from mandatory drug penalties); Black, White,
and Blue: Americans’ Attitudes on Race
and Police, ROPER CTR. FOR PUB. OPINION RESEARCH
(Sept. 22, 2015), https://ropercenter.cornell.
edu/blog/black-white-and-blue-americans-attitudes-race-and-
police [https://perma.cc/AG55-L6ZM]
(reviewing a variety of recent polls by major mainstream news
outlets and finding that large majorities
of both whites and blacks support investigations of police
misconduct by outside, independent prose-
cutors, better training for police on civilian confrontations,
public videotaping of police/citizen en-
counters, and use of police bodycams); Gotoff & Lake, supra
note 1 (“[S]olid majorities of voters
support major reform of the criminal justice system in the
United States (57 percent), including nearly
one-in-five voters (19 percent) who support a complete overhaul
of the system. This sentiment crosses
partisan lines, too, with majorities of Democrats (64 percent)
and independents (58 percent) and near-
ly half of all Republicans (48 percent) backing the call for
major reform of the criminal justice sys-
tem.”); New Survey: With Increased Understanding of Current
Practices, Americans Support Reforms
to Pretrial and Money Bail Systems, CHARLES KOCH INST.
(July 12, 2018), https://www.charleskoch
institute.org/news/new-survey-americans-support-reforms-
pretrial-money-bail-systems/ [https://perma.
cc/M4AW-EX5L] (surveying 1,400 registered voters and finding
57% favor ending cash bail for those
who cannot afford it in all but the most extreme circumstances
and 72% favor limiting time in pretrial
detention for those who cannot afford bail).

6 See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194; John Wagner & Philip Rucker,
House Backs Bipartisan Criminal Justice Overhaul, Sends Bill
to Trump, WASH. POST (Dec. 20,
2018), https://www.washingtonpost.com/powerpost/house-
backs-bipartisan-criminal-justice-overhaul-
527
To be sure, significant change in who and how many are
policed, charged,
and imprisoned will require deeper adjustments in public views,
particularly
with respect to violent offenders.7 Still, it is not too early to
begin asking the
critical next questions: how responsive is the criminal justice
enforcement ap-
paratus to changes in public preferences, and how responsive
should it be? Or,
to put the question more broadly: what is, and what should be,
the relationship
between democracy and bureaucracy in American criminal
justice?
The relationship is complex. The thousands of criminal justice
systems
that collectively comprise American criminal justice exist
within, and are sub-
ject to, both democratic and bureaucratic processes.
Comparative work tends
to highlight the extent to which American criminal justice is
relatively un-

bureaucratic, at least as compared to democracies with
inquisitorial criminal
justice systems.8 That it is. But strong bureaucratic elements
exist here, too.
Chief prosecutors (local district attorneys and state attorneys
general) are
mostly elected; but they take the reins of an office filled with
career civil serv-
ants, many of whom began their careers long before the election
and will re-
main long after. Police commissioners are appointed by elected
mayors, and
sheriffs are elected; but they lead departments of career law
enforcement offic-
ers. And on the federal side, the chief law enforcement officer
of the nation and
sends-bill-to-trump/2018/12/20/111e57e2-0448-11e9-b6a9-
0aa5c2fcc9e4_story.html [https://perma.
cc/V76U-C74R]. The First Step Act’s penalty-reduction
measures are relatively modest: it makes
retroactive a 2010 amendment to penalties for distribution of
crack cocaine, expands safety-valve
eligibility (allowing certain drug offenders to be sentenced
below the otherwise-applicable mandatory
minimum), reduces mandatory minimum penalties for certain
recidivist drug offenders, and eliminates
a steep penalty increase that applied to defendants charged with
multiple counts of using a firearm in
furtherance of a drug trafficking crime or crime of violence. See
U.S. SENTENCING COMM’N, FIRST
STEP ACT (Feb. 2019),
https://www.ussc.gov/sites/default/files/pdf/training/newsletters
/2019-special_
FIRST-STEP-Act.pdf (summarizing the sentencing reforms of
the First Step Act of 2018). Still, the

law accomplished the most significant federal penalty
reductions in a generation, and its passage and
title—implying the start of something more—reflects a
widening political space for de-incarceration
reform. See id.; see also Maggie Astor, Left and Right Agree on
Criminal Justice: They Were Both
Wrong Before, N.Y. TIMES (May 16, 2019),
https://www.nytimes.com/2019/05/16/us/politics/criminal-
justice-system.html?searchResultPosition=1
[https://perma.cc/6D25-9AQ9] (describing criminal jus-
tice reform proposals laid out by politicians and political
activists from both left and right in a 2019
Brennan Center report, which collectively “show how
profoundly the debate has changed,” revealing
“a wholesale reversal of [the] bipartisan consensus” on criminal
enforcement).
7 See JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF
MASS INCARCERATION—AND HOW TO
ACHIEVE REAL REFORM 185–86 (2017) (arguing that
politicians and reformers focus mostly on re-
ducing penalties for nonviolent crimes but need to seek reforms
for violent crimes to achieve real
progress).
8 See, e.g., Erik Luna & Marianne Wade, Prosecutors as
Judges, 67 WASH. & LEE L. REV. 1413
(2010); Michael Tonry, Prosecutors and Politics in Comparative
Perspective, 41 CRIME & JUST. 1
(2012); cf. Ronald F. Wright & Marc L. Miller, The Worldwide
Accountability Deficit for Prosecu-
tors, 67 WASH. & LEE L. REV. 1587 (2010) (highlighting both
the differences and similarities in forms
of prosecutorial accountability between the U.S. election-based
system and civil law bureaucratic
systems).

of each district is appointed by the democratically elected
President; but they
lead thousands of attorneys who spend their careers within the
Department of
Justice (DOJ).
Ours is a blended system. This Article explores its fault lines at
a moment
of political transition. I use the term “political transition” to
describe a period
in which public preferences on criminal justice policy are
shifting, causing
palpable electoral effects—not radically, and not everywhere,
but to a degree
and across a sufficient number and diversity of jurisdictions
that serious ob-
servers can reasonably describe as new political trends.9
Whether these trends
mark a short-term or longer-term shift remains to be seen. I use
the term “tran-
sition” here to describe the present, not predict the future (or,
with limited ex-
ceptions, to recall the past).10 For now, at least, the “one-way
ratchet” towards
severity that once defined the politics of crime in America no
longer applies
uniformly.11
But shifts in the politics of criminal justice, even those that
yield change
to penal laws, may not translate into changes in enforcement
practices. How
and why they do, or do not, is the key puzzle our blended

system presents. In
the face of changing public preferences on criminal justice, how
do current
political and institutional arrangements enable or impede
change in law-on-
the-ground?
To begin to unpack this question, this Article takes on three
primary tasks.
The first is to highlight the absence of answers in the last
several decades of
scholarship, which by and large has charted the relationship
between democra-
cy and the criminal enforcement bureaucracy in an era of nearly
uniform penal
9 See, e.g., David Cole, The Changing Politics of Crime and
the Future of Mass Incarceration, in
1 REFORMING CRIMINAL JUSTICE: INTRODUCTION AND
CRIMINALIZATION 13, 13 (Erik Luna ed.,
2017) (“For too many years, it seemed that the only possible
stance a politician could take on crime
was to be tougher than his opponent. . . . Today, however,
‘smart on crime’ has replaced ‘tough on
crime.’ Rather than simply being tougher than the next guy,
politicians and government officials in-
creasingly seek solutions that are based on evidence and reason
rather than heated rhetoric and dema-
goguery.”); James Forman, Jr., Justice Springs Eternal, N.Y.
TIMES (Mar. 25, 2017), https://www.
nytimes.com/2017/03/25/opinion/sunday/justice-springs-
eternal.html [https://perma.cc/HZ3R-5D5J]
(observing that, after fifty years of tough-on-crime politics, a
“movement for a more merciful criminal
justice system” is “stronger than ever” as evidenced by the

results of local prosecutor elections and
state referenda in numerous jurisdictions in 2016); Sklansky,
supra note 3, at 650 (surveying a number
of recent elections in which the electorate chose reform-
oriented prosecutors over more traditional
ones).
10 See infra notes 139–142 and accompanying text (describing
reactions by career enforcers dur-
ing the earlier shift to harsher sentencing regimes).
11 See David Michael Jaros, Perfecting Criminal Markets, 112
COLUM. L. REV. 1947, 1960 &
n.57 (2012) (“Scholars have long observed that the criminal law
seems to act as a ‘one-way ratchet’
perpetually expanding its scope and enhancing its penalties.”)
(footnote omitted) (citing Erik Luna,
The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703,
719 (2005); William J. Stuntz, The
Pathological Politics of Criminal Law, 100 MICH. L. REV. 505,
547 (2001)).
529
severity. The second is to identify the starting points of an
updated inquiry: the
key features of electoral politics, enforcement agency dynamics,
and federal-
ism that can hasten or slow political transition in criminal
justice and exacer-
bate or mitigate its effects. The third task is to consider the
implications of cur-
rent institutional and political arrangements for democratic
responsiveness and
systemic legitimacy. In particular, I explore whether

bureaucratic resistance in
the criminal justice space is necessarily anti-democratic, or
whether it is—or
can be—a feature of democratic criminal justice.
Updating our assessment of the relationship between democracy
and the
criminal enforcement bureaucracy raises a subset of new
questions, among
them:
• How does the composition of the “public”—which varies both
by juris-
diction and level of government (local, state, federal)—and the
influences
on voter choice affect elected leaders’ responsiveness in matters
of crimi-
nal enforcement?
• How do the incentives and interests of elected leaders on the
one hand,
career enforcers on the other, and the interaction of the two
affect the way
voters’ choices are translated down through enforcement
bureaucracies?
• How do vertical bureaucratic arrangements (i.e., those
between federal,
state, and local enforcers) within the criminal justice arena
alternatively
fuel or stymie shifts in public preferences?
These questions go to the heart of a tension long observed in the
democ-
racy/bureaucracy relationship. Max Weber first conceptualized
democracy’s

dependence on bureaucracy to implement democratically chosen
policies, and
the tax on democracy this dependence exacts.12 This tension
has generated rich
inquiry in the fields of organizational sociology,13 political
theory,14 public
administration,15 and administrative law.16 But scholars of
criminal justice ad-
ministration have yet to fully mine its implications for criminal
justice reform.
12 FROM MAX WEBER: ESSAYS IN SOCIOLOGY 224–26
(H.H. Gerth & C. Wright Mills eds. &
trans., 1958) (1946) (observing that “bureaucratization in the
state administration itself is a parallel
phenomenon of democracy,” yet one that ultimately exacts a
“leveling of the governed in opposition
to the ruling and bureaucratically articulated group, which in its
turn may occupy a quite autocratic
position, both in fact and in form”).
13 See, e.g., PETER M. BLAU, THE DYNAMICS OF
BUREAUCRACY: A STUDY OF INTERPERSONAL
RELATIONS IN TWO GOVERNMENT AGENCIES 249, 250–
65 (1963) (asking “[h]ow . . . a democratic
society assure[s] that the direction and speed of changes in its
bureaucracies conform to the common
interest, regardless of the personal ideals and interests of their
members?” and concluding the “para-
dox” of democracy and bureaucracy “is the crucial problem of
our age”).
14 See generally KENNETH J. MEIER & LAURENCE J.
O’TOOLE, JR., BUREAUCRACY IN A DEMO-
CRATIC STATE 21–26 (2006) (surveying the literature).
15 See id. at 26–30 (surveying the literature).

That is because the literature straddling democratic theory and
criminal
justice administration over the last half-century has been
captivated by a par-
ticular political narrative, of overly punitive voting majorities
and a criminal
enforcement bureaucracy eager to do their bidding. Whether
scholars have ap-
proached democracy and bureaucracy in criminal justice more
from the former
side17 or the latter,18 or even right down the middle,19 the
focus has been al-
most exclusively on those aspects of the relationship that
increase penal severi-
ty.20
16 See generally Peter H. Aranson et al., A Theory of
Legislative Delegation, 68 CORNELL L. REV.
1 (1982) (discussing the implications for political
accountability of lawmaking delegation to agen-
cies); Gerald E. Frug, The Ideology of Bureaucracy in American
Law, 97 HARV. L. REV. 1276 (1984)
(critiquing how the fields of administrative law and corporate
law have treated the bureaucra-
cy/democracy tension).
17 See generally MARIE GOTTSCHALK, CAUGHT: THE
PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS (2016) (focusing on the American
political system’s appetite for heavy criminal
enforcement); MICHAEL O’HEAR, THE FAILED PROMISE
OF SENTENCING REFORM (2017) (same);

DAVID ALAN SKLANSKY, DEMOCRACY AND THE POLICE
(2008) (same); Nicola Lacey, American
Imprisonment in Comparative Perspective, DAEDALUS,
Summer 2010, at 102 (same); Samuel Walker,
Governing the American Police: Wrestling with the Problems of
Democracy, 2016 U. CHI. LEGAL F.
615,
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?articl
e=1577&context=uclf [https://
perma.cc/XQT7-PCDC] (same).
18 See generally Rachel E. Barkow & Mark Osler, Designed to
Fail: The President’s Deference to
the Department of Justice in Advancing Criminal Justice
Reform, 59 WM. & MARY L. REV. 387
(2017) (discussing the U.S. Department of Justice’s (DOJ)
influence on federal crime policy). A large
chunk of the policing literature focuses on organizational
challenges. See, e.g., Avlana K. Eisenberg,
Incarceration Incentives in the Decarceration Era, 69 VAND. L.
REV. 71, 93 (2016) (arguing that
those with a stake in the prison industry are currently
incentivized to favor high imprisonment); Ste-
phen D. Mastrofski & James J. Willis, Police Organization
Continuity and Change: Into the Twenty-
First Century, 39 CRIME & JUST. 55 (2010) (collecting the
literature); Marcia L. McCormick, Our
Uneasiness with Police Unions: Power and Voice for the
Powerful?, 35 ST. LOUIS U. PUB. L. REV.
47, 54–59 (2015) (noting that police unions may impede reform
measures and general accountability).
19 See generally STEPHANOS BIBAS, THE MACHINERY OF
CRIMINAL JUSTICE (2015) (ascribing
America’s penal severity in part to an escalating cycle in which
“insiders”—the criminal justice pro-
fessionals, including prosecutors, defense attorneys, and
judges—operate largely without public input,

invoking attempts by “outsiders”—the general voting public—to
constrain insiders’ discretion
through harsh penal laws, the evasion of which by insiders in
turn invokes even harsher legislative
response); Daniel Richman, Institutional Coordination and
Sentencing Reform, 84 TEX. L. REV. 2055
(2006) (discussing challenges of head prosecutors in
implementing uniform sentencing policies in the
post-Booker age); Stuntz, supra note 11 (exploring how a unity
of interest between politicians and
prosecutors, particularly in the federal system, generated
harsher penalties in the latter quarter of the
20th century).
20 Darryl Brown’s work has challenged the dominant narrative,
at least as respects criminaliza-
tion. See generally Darryl K. Brown, Democracy and
Decriminalization, 86 TEX. L. REV. 223 (2007)
[hereinafter Brown, Democracy and Decriminalization]; Darryl
K. Brown, Prosecutors and Over-
criminalization: Thoughts on Political Dynamics and a
Doctrinal Response, 6 OHIO ST. J. CRIM. L.
453 (2009) [hereinafter Brown, Prosecutors and
Overcriminalization]. But Brown distinguishes crim-
inalization from punishment, arguing that although certain
features of the democratic process have
reduced or kept in check the scope of substantive criminal law
over time, the law of punishment has
become more severe. See Brown, Democracy and
Decriminalization, supra, at 267–68. Increasingly,
531

The prescriptions for this arrangement (or “pathology,” as Bill
Stuntz fa-
mously described it) have varied.21 Some scholars call for
broadening forms of
public input, through extra-electoral mechanisms22 or
redistricting.23 Others
call for de-emphasizing the role of politics in criminal justice
by giving greater
power to courts and experts.24 Collectively, though, these
accounts have paid
scant attention to two increasingly urgent questions. First, can
voting majori-
ties within the existing political structure ratchet down criminal
enforcement?25
Second, are enforcement institutions, comprised of politically
accountable en-
forcement leaders and career civil servants, responsive to
political change?26
To be sure, until very recently such inattention was justified. In
moments
of stasis in the politics of criminal justice, political
accountability and en-
forcement discretion may operate largely in tandem. A given
jurisdiction’s vot-
…
WHY ARE WE (STILL) DISCUSSING
CORRECTIONAL HEALTH AND THE
COMMUNITY ?
ROBERTO HUGH POTTER
University of Central Florida

ABSTRACT
This article provides a brief overview of some of the issues in
the
relationships among correctional health issues and community
health
that lead to the original draft Surgeon General’s Call to Action
on
Corrections and Community Health. Unfortunately, more than a
decade
later, we continue to see the health disparities observed in the
early 2000s
persist. A systemic approach to problems presented by
correctional
populations is provided. This is followed by an intervention
approach
that might assist public administrators and non-profit mangers
to
improve the health of communities by targeting health and
disabilities
observed in those who process through our criminal justice
system.
INTRODUCTION
In the introductory comments to this issue it was
noted that the original Surgeon General’s Call to Action on
Corrections and Community Health (CTA) was developed
in the 2003-2005 time-frame. One of the first questions
some will ask is why are we still discussing this topic? After
all, it would seem that developments in the 12-15 years since

have addressed the problem. Since then, we have seen the
passage of the Affordable Care Act and Medicaid expansion
in at least half of the states. We could probably do a whole
special issue on the impact of these policy and practice
changes alone.
286 JHHSA WINTER 2018
Unfortunately, as the contribution from analysts at
the Bureau of Justice Statistics (BJS) and Research Triangle
Institute (RTI) will demonstrate, we started from a situation
of high burden, much of which has not been addressed
systematically. Exactly how much of a “sentinel”
population for physical and behavioral health disorders
criminal justice populations represent remains an open
question (Akers, Potter, and Hill, 2013). In this symposium
issue, we hope to explore a range of diseases, disorders, and
disabilities to assist public administrators in their
understanding of the relationships among these “maladies”
that come from our community, enter our correctional and
court systems, and return to the community in a mostly rapid
fashion.
To do this, we will begin by examining the processes
of the criminal justice system, the scope of individuals who
are processed through the system, and the organizational
characteristics of the system itself. The articles contained it
this issue span the entire process, including an analysis of
deaths within and after release from correctional facilities
and control. It is our hope that this information will reinforce
the connections between corrections and community health
in a way that assists public administrators to better harness
the tools of governance to reduce disease and disability
burden in both the community and the criminal justice

process.
Debunking Some Harmful Notions
First, however, I will ask the reader to indulge an old
Sociologist in what we call some “debunking” activities.
One of the first questions we have to address when
discussing the importance of correctional health care is why
only incarcerated individuals are “entitled” to health care?
The simple answer is because the Supreme Court has said
they do. The longer answer has to do with the lack of control
over their own movement and access to services that typify
JHHSA WINTER 2018 287
the life of an individual in a jail or prison. That is, they
cannot decide to schedule an appointment with their
physician or go to the local urgent care or emergency room
facility when they wish to. While we do not have time to
outline the various ways in which medical or dental health
care is sought and delivered in correctional facilities, suffice
it to say that it is a controlled process that is not as easy as
some would like you to believe. Care must be provided, but
the way in which it is provided varies widely (Anno, 2001;
Chari, Simon, DeFrances & Maruschak, 2016).
A related false perception among many in the
community is that once someone is incarcerated, they have
an open door to any health care they desire. Few things are
further from fact. As has been outlined by both popular and
academic writers, the care provided in correctional facilities
needs meet only a “community standard” of health care.
Many facilities provide inmates with a list of the commonly

provided services available while one is incarcerated, along
with a description of the “sick call” process. Of course, if a
medical professional recommends that a higher level of care
is required, correctional administrators are obliged to follow-
up on that recommendation. There are avenues of appeal on
both sides, naturally. Care that is ordered must be given;
unless there is a second medical opinion (Anno, 2001).
Health care in correctional facilities is not “free.”
Whether a “co-pay” is required of the inmate or prisoner is
another area where processes vary widely. In the end,
someone must pay for the care of the individual. It is likely
to be those who pay the range of property and sales taxes in
the community. For that reason alone, members of the
community should be interested in correctional health care.
We have seen that such concerns have helped motivate some
of the “Smart on Justice” movements around the nation over
the past decade.
Several years ago, Potter (2010b) wrote an opinion
piece to suggest that the jails and prisons of the United States
offered a model for thinking about universal health care.
Since at least the late 1970s, correctional facilities have
managed a universal health care system – but only to those
incarcerated (not for their employees). Once state and local
prisoners and inmates leave confinement, they are on their
own (see the Matz article). With the advent of the
Affordable Care Act and Medicaid expansion in around half
of the States, we have seen attempts to utilize Medicaid for
those receiving Medicaid when they were detained, and to
enroll qualified others in Medicaid when they were being
released back into the community. Because these linkage

systems are relatively new, it is still too early to assess how
effective they are in getting correctional populations
accessing and utilizing community-based health care (see
the Butler article). And, as we will point out below, these
would still likely impact only a small proportion of the total
number of individuals who process through the criminal
justice system annually.
In many ways, this is what we were told stopped the
original CTA from being published. We had pointed out that,
before confinement and upon release, an adequate public
health treatment structure was absent from much of the
nation. While we had avoided the “unfunded mandate” of
requiring correctional health to do more, we had identified
the lack of a public health medical system. This, we were
told, created an “unfunded mandate” to the health care
system to develop a national public health care
infrastructure. This raised the specter of something like the
British National Health Service (NHS) in the minds of some.
As an aside, it has been a relatively recent development that
the NHS started to deliver health services inside Her
Majesty’s Prisons. In most Australian states, on the other
hand, the state-level public health care provider is likely to
operate in-facility health services for the combined remand
and prison system.
In the end, much of the mythology surrounding
correctional health care and the health burden of inmates and
prisoners is less about the burden than it is about the
presumed advantage given to inmates and prisoners relative
to the general community. In the next section, we examine

briefly how the entry and return of community members into
the correctional system reflects the community need, rather
than just the needs of those incarcerated on any given day.
Stock, Flow, and Churn – The Nature of Criminal Justice
Populations and Associated Problems
Many individuals are familiar with the “system”
model of the decision-points in the criminal justice system
(CJS) popularized by the 1967 President’s Commission on
Law Enforcement and Administration of Justice (see Figure
1). While instructive, this model does not provide a clear
picture of how populations move through the CJS, and how
those cases are “disposed of” at various points. To address
this processing information, we have provided a “funnel
model” (see Figure 2) that uses 2015 data as an exemplar.
We do need to caution that using one year as an exemplar is
not ideal, as the process elements of the CJS do not fit neatly
into an annual framework. However, as a way of explaining
how populations leave the community for correctional
facilities and return to the community from corrections, it
will be illustrative.
Figure 1

Sequence of Decisions in the United States Criminal
Justice System
For our purposes, the advantage of the funnel model
is that it demonstrates that the bulk of criminal justice
activity occurs at the local level, certainly at the county level.
Most of the approximately 10.8 million arrests in 2015 were
likely processed through county or regional jail facilities
(some may have gone directly to Federal Detention Centers).
The data on jail entries (“bookings”) for 2015 shows more
cases entering jails (10.9 million) than arrests made. This
may be due to two factors. First, not all of those processed
into a jail were arrested in 2014, but perhaps earlier.
Likewise, not all persons arrested in 2015 might have been
admitted to a jail, but had their cases dealt with through
diversion or automatic bond programs. Second, some
individuals may be admitted to a jail multiple times based on
the same arrest charge, and certainly those who violate terms
of their probation from a sentence issued prior to 2015.
If we overlay the data in Table 1 on the funnel model,
we also see that local law enforcement agencies (municipal
and county policing agencies) are the most numerous
criminal justice agencies (CJAs) in the environment. Their
range of employees is also great, from a handful of officers
and support personnel to the very large policing agencies
encountered in major metropolitan areas. It is important to
remember that sworn officers and some administrative
personnel are likely to come into contact with the health
issues presented by those with whom they interact, and
especially those they arrest and detain.

Figure 2
A “funnel” model of criminal justice processing 2015
Arrests1 10,797,088
Jail Admissions2 10,900,000
Jail Releases 10,900,000
Average Daily Population 721,300
Weekly Turnover Rate 57%
Community Corrections
Populations3 4,650,900
Prison Admissions4 608,300
Prison Discharges 641,100
Total Population 1,526,800
State 1,338,292
Federal 187,618
Sources:
1Arrest data: https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-
in-the-
u.s.-2015/tables/table-29
2 Minton, T.D. & Zeng, Z. (2016). Jail Inmates in 2015.
Washington,
DC: Bureau of Justice Statistics.
3 Kaeble, D. & Bonczar, T.P. (2016). Probation and Parole in
the
United States, 2015. Washington, DC: Bureau of Justice
Statistics.
4Carson, E.A. & Anderson, E. (2016). Prisoners in 2015.
Washington,
DC: Bureau of Justice Statistics.

Interestingly, while there are many more jails than
prisons, the number of individuals employed in jails is
smaller than the number employed in prisons. Partly this is
due to the “flow” or “turnover” issue we will discuss in this
section. It is important to note is that almost as many people
leave jails as enter them in any given year. In most states
this is due, in part, to the fact that jails generally incarcerate
individuals with sentences up to 365 days; prisons take those
with sentences longer than one year. There are enough
variations in how county jails are defined in state laws that
our caution of “local results may vary” needs to be invoked.
Massachusetts provides a good exemplar of a state where
jails may hold certain individuals for periods of longer than
one year. In 2005, just over half (57%; n = 1850) of all jails
held fewer than 100 individuals daily; with just over 5
percent holding five or fewer inmates. It is important for
administrators to be familiar with the respective roles of
jails, probation, and prisons in their jurisdiction to assist in
health interventions with correctional populations (Potter
and Akers, 2010).
Analyses of data on individuals arrested for felony
(indictable) crimes (Reeves, 2013) nationally indicates that
more than half of individuals charged with such crimes are
released from jail within 48 hours on some form of
conditional release (e.g., bonded out, released on
recognizance, etc.). In Florida, where there is a 24-hour first
appearance rule for bond decision-making, it has been

demonstrated that up to 60 percent of those booked into jail
are released within 24 hours (Potter, Lin, Maze & Bjoring,
2012). Issues of how bond release decisions are made and
funded have become policy topics in the past several years.
Forty-four of fifty states in the United States utilize a
combination of bonding mechanisms that include
commercial bonding. Internationally, among those nations
with a bail/bonding process, only the United States and the
Philippines employ commercial bonding. In most parts of
the world this way of promoting appearance at court
hearings is handled by civil authorities. We mention this
because of the potential impact on using jails for public
health surveillance and/or interventions when they have
rapid turnover (Akers, 2013).
Table 1
Organizational Entities Involved at Each Segment of the
US Criminal Justice System
Agency Type Total
Agencies
(LE) or
Facilities
(Corrections)
Total
Employees
Full-time
Sworn

Part-
time
Sworn
Total
Civilian
Employees
Non-Federal
Law
Enforcement*
Local Police 12,501 593,013 461,063 27,810 162,269
Sheriffs 3,063 353,461 182,979 11,334 181,816
State Police 50 93,148 60,772 54 33,269
Special
Jurisdiction**
1,733 90,262 56,968 4,451 43,524
LE Totals 17,347 1,129,884 761,782 43,649 420,878
Non-Federal
Corrections
Corrections
Officers
Other Staff
Jails*** 2,851 213,200 169,200 NA 44,000
Prisons**** 1,719a 389,882 264,233 NA 125,649
Totals 603,082 433,433 169,649
*2008 data; Reaves, B.A. (2011). Census of State and Local

Law
Enforcement Agencies, 2008. Washington, DC: Bureau of
Justice
Statistics.
** Excludes “County Constable Offices in Texas”
*** 2015 data; Minton, T.D. & Zeng, Z. (2016). Jail Inmates in
2015.
Washington, DC: Bureau of Justice Statistics.
2005 data; Stephan, J.J. (2008). Census of State and Federal
Correctional Facilities, 2005. Washington, DC: Bureau of
Justice
Statistics. aCombines public and private prisons operating at
the State
level.
Note: Probation agencies are not included in this Table because
of the
variations across States and Counties with regard to how
probation
supervision is delivered. For more explanation, please see the
methodology notes (p.8) in Kaeble, D. & Bonczar, T.P. (2016).
Probation and Parole in the United States, 2015. Washington,
DC:
Bureau of Justice Statistics.
While this symposium issue is focused on the
populations who process through the criminal justice
system, public administrators must also be concerned with
the health of the employees in the CJAs. The writers’ first

experience with such concerns among public administrators
came during the early days of the severe acute respiratory
syndrome (SARS) outbreak in 2002-2003. Individual jail
and prison administrators had been worried about issues
such as tuberculosis (TB) for several years, but it was the
broader concerns with pandemics such as SARS and variants
of the influenza virus that seemed to have made CJA
employee health an area of critical concern (Blackmore,
Potter, Schwartz, & May, 2010). The concerns were focused
on those who had to occupy closed space with potentially
infected clientele, such as in jails and police vehicles.
Around 95 percent of all criminal cases are resolved
by a plea (BJS), regardless of whether felony (indictable) or
misdemeanor (summary) charges are involved. This varies
by states, so some are slightly lower and some slightly
higher. Most of the convictions result in some form of
sentence to supervision by a probation agency. Probation
generally includes some form of restriction on behavior,
often involving restrictions on substance use. Our funnel
model notes that, during 2015, at least 4.6 million
individuals were placed on probation, generally within the
county (or counties) where they were arrested.
Probation is carried out in perhaps the most
diversified manner of any CJS component. In some states
and the federal government, probation is overseen by an
agency within the court system. In other states, probation is
operated by the state correctional agency or a separate
agency under the Executive Branch. The role of felony and
misdemeanor conviction(s) may also play a role in whether
probation is handled at the state or county level. In some
states, misdemeanor probation may be contracted-out to
local governments and non-government organizations
(NGOs). This is another area where knowledge of
organizational control is of vital importance to planning

health-related interventions. And, as will be detailed in the
Matz contribution to this volume, it is one where we know
very little about health-related issues or interventions. It is
difficult to quantify exactly how many probation agencies
and employees there are, which is why that information is
missing from Table 1. If we were to modify our funnel, it
would be to have the widening at probation level more
evident.
Prisons, our most extreme form of punishment short
of execution, absorb most of the public and NGO attention.
The prison population in 2015 decreased to the lowest level
since 2005. Using our funnel model, we can see that the
number of entrants to the combined state and federal prison
systems represented less than 10 percent of those who
entered the county and regional jails. Again, because there
is no actual count of unique individuals entering jails (one
estimate was nine [9] million out of a year with
approximately 13 million arrests; Spaulding, et al. 2009), it
is difficult to say what proportion of unique individuals,
progress from a local jail to a state or federal prison system.
The prison population decreased in 2015 with more
individuals returning to the community than coming in from
the community. The majority of prisoners were held in state
prisons, with the federal system accounting for 13 percent of
the total population. Among those sentenced to prison in
2006, the average sentence length was four years and 11
months (Rosenmerkel, Durose, and Farole, 2009), with
about one percent of all sentences being for life. The length
of the sentence to be served was reported to be about 87

percent of the original sentence as more states moved to
“truth in sentencing” laws requiring substantial service
before possible release back into the community. Thus,
there are fewer prisons than jails (see Table 1), but prisons
hold individuals for longer periods of time than do jails.
Partly due to the more serious crimes committed by
those sentenced to prisons, requiring closer supervision, the
number of employees in prisons is also larger than those
found in jails (see Table 1). Given that prisons traditionally
have been located in more rural areas of states, there may be
limited health resources for the correctional employees to
access than in more urban areas. Again, the concern with the
health status of correctional personnel is a relatively new
phenomenon. However, as many of these individuals are
covered by state pensions and health care, developing
knowledge about how their interactions with those they
process and house impact the employees’ physical and
behavioral health may be an area where new research will be
of value to public administrators.
Corrections professionals have turned to the retail
grocery sector to find terms to explain how individuals are
processed through the system. As the funnel model
suggests, the “flow” dimension of the total CJS is quite
substantial and rapid, especially at the county level. This
rapid turnover is referred to as “churn.” The churn within
jails is estimated to be 57 percent of admissions
(“bookings”) monthly. That is, more than half of those
admitted to a jail were discharged within one month (most

within 48 hours!). This churn effect means we have
relatively little time to intervene with those who are arrested
while we have them in custody. The “stock” population of
interest is generally going to be found in prisons because of
longer sentences. Yet, if our interest is in the health of the
communities from which most of our churning population
enters our correctional facilities, we need to be able to better
understand the health issues that enter our jails and return to
the community in relatively short order. As pointed out in
just about every contribution to this symposium, these
problems will return to the community.
Modeling Interventions
The Substance Abuse and Mental Health Services
Administration (SAMHSA) GAINS (Gather, Assess,
Integrate, Network, and Stimulate) Center has developed an
intervention model that fits nicely the funnel model of
criminal justice processing. It is presented here as a way of
thinking about planning health interventions at the multiple
intersections of the CJS and the community. The quoted
material here is taken from the SAMSHA website
(https://www.samhsa.gov/criminal-juvenile-
justice/samhsas-efforts). The “sequential intercept model”
consists of five points of intervention:
Intercept 1 – Community and Law Enforcement. These
programs are efforts to divert persons with “mental health,
substance use, or co-occurring disorders from the criminal
justice system and into community services without the
leverage of the court. The program focuses on the role of

law enforcement officials working collaboratively with
community behavioral health providers to prevent arrest and
adjudication. Through this partnership law enforcement and
behavioral health agencies design, implement, and oversee
comprehensive strategies for diversion and engagement
practices.”
Intercept 2 – Arrest and Initial Detention/Court
Hearings. Examples of programs at this stage of the process
aim “to allow local courts more flexibility to collaborate
with multiple criminal justice system components and local
community treatment and recovery providers to address the
behavioral health needs of adults who are involved with the
criminal justice system and provide the opportunity to divert
them from the criminal justice system.”
Intercept 3 – Jails and Specialty Courts. Many readers
will be familiar with the variety of specialty/problem-
solving courts that have developed in the criminal courts.
According to SAMHSA, the “focus of these courts is to
address the underlying mental health and substance use
issues and related needs of offenders by using the
sanctioning power of the court to connect with treatment and
other alternatives to incarceration.”
Intercept 4 – Re-entry from Jails and Prisons to the
Community. The focus of programs at this intercept is to
expand and enhance “substance use treatment and related
recovery and reentry services for adult offenders who are
returning to their families and community after incarceration

in state and local facilities including prisons, jails, or
detention centers. The program encourages stakeholders to
work together to give adult offenders with co-occurring
substance use and mental health disorders the opportunity to
improve their lives through recovery.” We would add that
the two re-entry points outlined here present very different
challenges for health planners. As noted earlier, the “churn”
element of local corrections is especially challenging.
Intercept 5 – Community Corrections. At this time,
SAMHSA has no formal programs with probation agencies.
Almost all states have some requirement for medical
screening of new detainees in jails and prisons within
specific time frames. Many of these reflect the standards set
by the American Correctional Association (ACA) and the
National Commission on Correctional Health Care
(NCCHC). Both of those professional organizations require
an initial medical screening within 48 hours of admission.
Using Florida as an example again, some states require an
“immediate” medical screening at intake/booking. This may
be a simple set of questions and a quick blood pressure, heart
rate, and respiration observation. Even such a requirement
in facilities with multiple first appearance hearings during
the day may result in missed detainees, and detainees whose
medical situation is known, but are released before any
action can be taken by jail medical staff.
Because the process by which people come into a jail
varies around the nation, making generalizations about
physical and mental health, as well as substance use
information that can be utilized for interventions is risky
(Potter, 2010a). The availability of the information gathered

in jails for new or continued interventions in the community
is also problematic, as detailed in the Butler contribution to
this issue. While most of those processed through the early
stages of the criminal justice process will spend their
supervised time on probation in the community, we know
little about their health status (see the Matz contribution).
There appears to be an almost unbridgeable gap between
what health information might have been collected in a jail
and intervention planning in the community (see Butler). It
is not too strong to say that a great deal of revenue and talent
is spent annually gathering information and beginning
treatments squandered when detainees return to the
community with little or no follow-through.
CONCLUSION
Because the issues that will be covered in this
symposium tend to be siloed, and because they are often
phenomena with which people just don’t want to deal, we
hope that this system-wide, community-integrated
information will assist you in getting a better grasp on the
situation. As public administrators, you deal with
developing more effective and accountable programs to
address community issues. We believe that correctional
health care is one of those keystone program areas where we
can begin to intervene with effectiveness to address physical
and behavioral health issues in the community.
The multi-disciplinary, publicly- and privately-
employed contributors to this symposium illustrate the need
for an integrated and system-wide approach to reducing the
health problems observed among those who enter and

process through our correctional facilities and probation
offices. In the final analysis, the health burden of
incarcerated individuals will be reduced only when overall
community health is improved. This is a common good to
which we hope this symposium makes a positive
contribution.
Figure 1
Sequence of Decisions in the United States Criminal
Justice System
REFERENCES
Akers, T.A., Potter, RH, and Hill, C. (2013).
Epidemiological Criminology: A Public Health
Approach to Crime and Violence. San Francisco:
Jossey-Bass/Wiley and Sons.

Akers, T.A. (2013). Criminological Epidemiological or
Epidemiological Criminology: Integrating National
Surveillance Systems. In Waltermaurer, E. and
Akers, T.A. (Eds.). Epidemiological Criminology:
Theory to Practice. London: Routledge/Taylor and
Francis.
Anno, B. (2001). Prison Health Care: Guidelines for the
Management of an Adequate Delivery System.
Chicago: National Commission on Correctional
Health Care.
Blackmore, J., Potter, R.H., Schwartz, R. D. & May, R.L.
(2010). Corrections Response to Pandemic
Influenza. Hagerstown, MD: Association of State
Correctional Administrators.
Carson, E.A. & Anderson, E. (2016). Prisoners in 2015.
Washington, DC: Bureau of Justice Statistics.
Chari, K.A., Simon, A.E., DeFrances, C.J. & Maruschak, L.
(2016). National Survey of Prison Health Care: …
27

EXCESSIVE FORCE, BIAS, AND CRIMINAL
JUSTICE REFORM: PROPOSALS FOR
CONGRESSIONAL ACTION
Maurice R. Dyson*
INTRODUCTION: A NATIONAL EPIDEMIC OF
TARGETED HARASSMENT & KILLINGS .......................27
1. A ROUTINE OCCURRENCE
...................................................29
2. MYOPIC MENTALITY & DIVISIVE RHETORIC
...................30
3. COUNTERARGUMENTS TO THE POPULAR
RHETORIC
..........................................................................33
4. EVEN WHEN THE OFFICER IS A MINORITY, IT IS
STILL INSTITUTIONALLY ENFORCED RACIAL
OPPRESSION
......................................................................34
5. BRAINWASHED & WHITE WASHED: SOCIETAL &
MEDIA PERCEPTIONS OF RACE & CRIMINALITY ......35
6. THE COLOR OF OUR MENTAL SKY: PROTECTIVE

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