New, expanded data on Indian country jails show concerning trends extend to tribal lands

In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands.

by Emily Widra, October 8, 2024

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.¹ More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people. Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.²

Native incarcerationSee more data and graphics on our profile page.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country.³ In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land. They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

Jail populations in Indian country — like in jails across the country — were generally trending upward before a sharp decrease during 2020, which was the result of fewer arrests and slowed court processes during the pandemic; they have quickly resumed their upward trajectories in the years since.

Indian country jail populations continue to rise after COVID-19

Jail populations across the country — including local and Indian country jails — dropped dramatically during the first year of the COVID-19 pandemic (30% from 2019 to 2020). This temporary decline was primarily explained by fewer people being arrested and booked into jails, as well as slowed court processes. In 2020, Indian country jails saw their first decline in total jail populations since 2013.⁴ But jail populations on Native land and across the country quickly surged after the first year of the pandemic: from 2020 to 2023, the Indian country jail population grew by 19%, consistent with the 21% growth seen in local jail populations nationwide over the same time period. However, from 2022 to 2023, other local jail populations only ticked up by 0.2%, while the Indian country jail population rose by 7% over that single-year period. In other words, while rebounds in local jail populations are slowing, Indian country jail populations are rising more dramatically.

Women and older adults increasingly incarcerated in Indian country jails

Much like other parts of the criminal legal system, the growth of the women’s and older adult populations in Indian country jails has outpaced the growth among men and younger adults.

Women: Native women are disproportionately affected by almost every part of the criminal legal system. They are incarcerated at higher rates than women of any other racial or ethnic group. Additionally, women account for a larger portion of the Indian country jail population than they do in other local jails across the nation: in 2023, women represented over a quarter (26%) of adults incarcerated in Indian country jails, but only 14% of people incarcerated in other local jails. In the last three years, the number of adult women in Indian country jails has grown 37%, compared to only 15% for men. Prior to the COVID-19 pandemic, however, we saw this dynamic in reverse: from 2016-2019, the number of women in Indian country jails only rose by 5%, while the number of men rose by 19%. This suggests an alarming shift in the incarceration trends of women in Indian country since the pandemic began, in line with the escalating incarceration rates of women throughout the nation.

Older adults: There are limited historical data on the age of people incarcerated in Indian country jails: the Bureau of Justice Statistics only began collecting and publishing this information in 2021. But over this three-year period, the rise in the number of older adults incarcerated in Indian country jails has been consistent with national trends: between 2021 and 2023, the number of people 55 and older in Indian country jails grew by 38%, while the number of adults under 55 years old only grew by 9%. To be sure, these populations are fairly small in scale — the overall population increase from 2021 to 2023 was 220 people — but any upward trend in the incarceration of older people is worth examining.

Jailing increasing numbers of older adults is part of a terrible national trend of policing unhoused people, poor people, people who use drugs and alcohol, and people with cognitive disabilities. Housing instability, chronic diseases, poverty, and substance use all disproportionately impact Native people, and older Native adults are particularly vulnerable to arrest, detention, and the serious and harmful consequences of incarceration.

New offense data reveals troubling trends on the overuse of jails in Indian country

This iteration of the Jails in Indian Country series provides more data than previous years, including more specific categorizations of the offenses for which people have been detained. These additional details are welcome, especially in light of the limited offense data among jail populations in general.⁵ In previous years, large portions of the Indian country jail population were lumped together in an “other unspecified” offense category. In 2022, for example, 29% of offenses reported to the BJS were “other unspecified,” and this catchall category has been as high as 37% of offenses in 2015. The inclusion of additional offense categories⁶ in the most recent survey significantly reduced “other unspecified” offenses to only 8% of the total. Additionally, this is the first iteration of the survey to include mental health and civil commitment holds, unspecified warrants, and status offenses for youth. These additions clarify what’s driving population growth in Indian country jails, while illuminating troubling trends about the overuse of these jails at the same time:

• Holds: The addition of the mental health and civil commitment holds⁷ in Indian country jails offers new insight into how often jails are used for questionable reasons. As we’ve argued before, detainers and “holds” contribute to unnecessary jailing, often keeping people in detention longer than necessary while awaiting psychiatric treatment or substance use treatment. Given the heightened prevalence of substance use disorders among Native people,⁸ the fact that people are in jail for mental health and civil commitment holds instead of receiving crucial healthcare reflects a serious dearth of treatment access on Native land.
• Unspecified warrants: About 20% of people in Indian country jails are detained for warrants without a specified offense. Many of these detentions are likely for bench warrants related to a “failure to appear” in court given the lack of specific offense data. We know that many court responses to “failure to appear” — including jailing — do not actually promote public safety and are often a misuse of resources. That’s because most people who “fail to appear” are not actually evading justice or threatening public safety: nationally, 87% of people who miss criminal court dates are facing “nonviolent” charges for property, drug, and public order offenses. Considering around a quarter of all cases are eventually dismissed, many people who miss court face punishment even though they would likely not be convicted of the alleged crime that brought them into contact with the system in the first place.
• Youth status offenses: More than 1 in 10 youth in Indian country jails are held for a status offense, or a “noncriminal act that is considered a law violation only because of a youth’s status as a minor.” This can include missing school, underage drinking, violating curfew, or running away. Native youth are disproportionately represented in status offenses across the country: in 2021, Native youth accounted for 4% of all status offense cases in juvenile court, while only 1.3% of the total U.S. population is Native. Status offenses carry serious consequences beyond jail detention: in 2021, 1,400 youth with status offenses were ordered to out-of-home placements including youth prisons, residential treatment, or group homes, separating them from family and community support systems.
• “Crimes against vulnerable populations:” In this iteration of the survey, a sample of jails in Indian country were asked to report if they had any admissions (but not the actual number of admissions) for “crimes against vulnerable populations,” including human trafficking, kidnapping, or elder abuse over the course of a single month (June 2023). The Bureau of Justice Statistics (BJS) characterizes these additional questions as responsive to the “interest expressed by Congress, tribal leaders, and federal agencies” to illuminate “the types of persons being held.” At least 17% of all Indian country jails report admitting at least one person for elder abuse and at least 6% of Indian country jails reported admitting someone for kidnapping, while no facilities reported admissions for human trafficking in that month.⁹ We hope to see further innovations in future iterations and in the larger national BJS surveys as well. For now, it’s hard to put these findings in any kind of context as there is little data on the prevalence of these types of victimization, nor any detail about the people held on these charges in Indian country facilities.

Conclusion

The inclusion of new, more detailed data on jails in Indian country offers the public important insights into the incarceration of Native people on tribal lands. While these trends mirror what’s happening in jails elsewhere across the country, having this level of detail is nonetheless crucial to understanding how the criminal legal system impacts Native people and communities.
More transparency must be provided in the coming years to better inform and target advocacy that reduces Native incarceration and confronts glaring racial disparities in the criminal legal system. This is especially true considering much of this data has only become available in recent years, unfortunately limiting the historical record of Native incarceration.

Ultimately, we hope the Bureau of Justice Statistics will continue and expand the collection and dissemination of such detailed information — including detailed offense and demographic data — for people in Indian country jails and jails across the nation.

Candidates for office use jail and prison as “one size fits all” policy solutions. Here’s how to push back

Ahead of the November elections, we packaged up the facts you need to push for community safety, not cages.

by Wanda Bertram, September 24, 2024

Whether on the presidential debate stage or in races for governor, state legislatures, or city councils, candidates for elected office are falling back on an old tactic: Making spurious claims that “crime is up” and pitching more jail and prison time as solutions to social problems. Not only are claims of higher crime demonstrably untrue; incarceration is never the simple fix that it appears to be. Jails and prisons — even when they are rebuilt and branded as “humane” — are still places of punishment, and investing in them consistently fails to produce safer communities or, obviously, to dismantle mass incarceration.

The arguments for more jail can seem endless. But if candidates campaigning for office in your community or state push the narrative that more incarceration is a good idea — or even a necessary evil — we’ve got you covered. Below, we lay out facts you can use to oppose bogus claims about what criminalization can achieve, whether in regard to homelessness, the fentanyl crisis, or public safety in general.

FACT 1: Jailing people who use drugs is counterproductive.

Amid an overdose crisis, many lawmakers and candidates for elected office are campaigning on arresting more people for drug use, especially in public spaces. These reforms are a blatant repackaging of policies from the “war on drugs,” and a step backward for public health.

Importantly, although they push for police interventions as a means of getting drug users into treatment, public officials often ignore that there may not be enough substance use treatment resources in the community to begin with. Oregon, which re-criminalized drug possession earlier this year, only has 50% of the treatment resources that the state needs. Once in jail, people who have been engaging in harmful drug use are not likely to get treatment, much less genuine care. In a briefing earlier this year, we showed that less than one-fifth of all county jails in the U.S. initiate medication-assisted treatment for substance use disorder, and scarcely half of all county jails even provide medication for withdrawal.

What’s more, being in jail can make substance use dangerous or even fatal. Data from 2018 show that drug- and alcohol-related deaths in jails have increased nearly fourfold since 2000, and the median time spent in jail before an intoxication death is just one day. While arresting people who use drugs publicly may help move some of them into treatment, for others, it makes their addiction more deadly — not a sensible public health policy.

FACT 2: More housing, not criminalization, is the answer to the homelessness crisis.

Many local and state leaders are beginning to harshly enforce their anti-camping laws in the wake of the Supreme Court case Grants Pass v. Johnson, which held that states have the right to sweep homeless encampments even when shelter beds aren’t readily available. But contrary to what many of these lawmakers say, punitive responses to the homelessness crisis are not “common sense.”

On the ballot19 elected offices that can help end mass incarceration.

A lot of unhoused people are already carrying criminal convictions, which can make it prohibitively hard to find a place to live. We’ve discussed before how public housing authorities have — and use — wide discretion to deny housing to people with records or even just histories of arrest. For these individuals, homelessness may be the result of past encounters with police. For others, a brush with law enforcement or a stint in jail could make finding future housing less likely. In our 2018 report Nowhere to Go, we found that people who had been to prison were more likely to be homeless depending on how many times they had been incarcerated — each lockup increasing the likelihood of ending up on the street without housing prospects.

As others have pointed out, rising rates of homelessness across the U.S. are the result of a genuine housing crisis. Formerly incarcerated people and those at risk of incarceration are particularly in need. But there are policy responses that work. In a 2023 briefing, we found that long-term supportive housing programs that aren’t conditional on people being sober or accepting treatment have incredible rates of success at keeping people housed and out of jail.

FACT 3: The solution to overcrowded, inhumane jails is pretrial reform and community healthcare.

In counties and cities where jails are crowded or facing a long list of maintenance and repair costs, local officials up for election this fall will likely be pressed to vote on whether to build new, often bigger jails. (And in some counties, jail construction measures themselves are on the ballot.)

Elected officials at the county and city level often claim they “have no choice” but to expand or replace their jails (for instance, recently, in Cleveland and Sacramento). But these hugely expensive projects can fail to produce the results local governments want. In counties with overcrowded jails, building a bigger jail is supposed to make the incarcerated population easier to supervise and care for. But all too often, these projects lead to more incarceration — and the new jail becomes overcrowded as well.

In fact, counties do have a choice in how they deal with issues in their jails. Local courts and county sheriffs can work together to reduce the jail population through pretrial reform, something that we have shown can be achieved at no detriment to public safety. And in the many, many counties where the majority of people in jail have a substance use disorder, expanding community healthcare options is a lower-cost — and more effective — way to tackle addiction that also reduces the number of people behind bars.

FACT 4: “Truth in Sentencing” reforms turn prisons into overcrowded nursing homes with little to no public safety benefit.

Earlier this year, Louisiana’s “tough on crime” governor, Jeff Landry, and its legislature pushed through “Truth in Sentencing” laws that eliminated parole in the state’s prisons and barred people from earning time off their sentences. His regressive reforms are part of a recent wave of legislation, mainly in the South. However, bills similar to Landry’s have come to states like Colorado and Iowa as well.

Calling for more people to spend decades and likely die in prison is a popular campaign strategy. But the reality of Truth in Sentencing is brutal and counterproductive. The U.S. prison system is already becoming geriatric as people sentenced in the ’70s, ’80s, and ’90s get older. Eliminating parole and other mechanisms for early release (like good time, which Landry dismissively called “a participation trophy for jail”) will accelerate that trend. It will also swell prison populations, as in Louisiana, where the Crime and Justice Institute projects that the regressive reforms will double the state prison population. And as a consequence both of overcrowding and of the “greying” of prisons, more people in prison will get sick, leading to the type of ghastly medical situations that prisons are known for.

Given these massive drawbacks, it may be surprising that forcing people to serve more time in prison does not, in fact, improve public safety. If candidates for state legislator or governor propose these “tough” reforms in your state, remind them that “Truth in Sentencing” reduces incentives for incarcerated people to complete programming that can help them and their communities. And the Vera Institute’s research on the ineffectiveness of longer prison sentences may be helpful to have on hand, too.

FACT 5: Crime is down, not up.

Crime is not surging — even though candidates for elected office, including Donald Trump and others from both major parties up and down the ballot, pretend otherwise. Claims of crime hikes can be very persuasive: In October 2023, 77% of surveyed Americans believed there was more crime in the U.S. than there was the year before. But as both old and new data show, this is simply not true. New data from the Bureau of Justice Statistics on criminal victimization in 2023 shows that crimes of almost all types were down from 2022, and many types of violent crime were equal to or lower than their reported rates in 2019.

To be sure, crime can fluctuate rapidly in short periods of time. But elected officials spend several years in office, and should be campaigning on their ability to protect public safety in the long term. So what do the long-term crime data say? In short, in 2023, crime hit a 60-year low. Candidates for office shouldn’t be centering their campaigns around increases in crime that, in this long view, are momentary and quite modest.

Ending misinformation about safety goes beyond ending bogus claims about crime, too. Lawmakers should take a broad view of public safety by addressing real, harmful trends, like the housing shortage, economic inequality, and public health concerns. The people we elect to govern our communities have a wealth of information about the diverse drivers of crime and safety — and they should use it.

Conclusion

Lawmakers pushing for Truth in Sentencing, bigger jails, and other policies that expand the criminal legal system tend to claim that there is no alternative to these methods for making communities safer. But the alternatives that have been shown to work — housing first, harm reduction, expanded parole and “good time” — are often passed over by these same lawmakers, or are not given the chance to serve more than a handful of people in a pilot program. Meanwhile, the criminal legal system continues to consume hundreds of billions of dollars, even as prisons appear to become more and more inhumane.

It’s never too late to push your elected officials — and the candidates running to replace them — to try public safety strategies that focus on care, not cages. More or less every elected official has a role to play in dismantling mass incarceration, and the movement for that change must start with pressure from below.

Prison Banned Books Week: Books give incarcerated people access to the world, but tablets are often used to wall them off

Instead of taking advantage of their possibilities, the companies that got rich off prison phone calls offer limited book selections on tablets, as part of their continued efforts to sap money from incarcerated people and their families.

by Mike Wessler and Juliana Luna, September 16, 2024

Books have long served as a bridge to the outside world for incarcerated people. They allow people cut off from their normal lives — and often from their families — to engage with thinking and ideas that can open their mind and stories that transport them anywhere on earth and beyond. But carceral authorities have also always restricted access to books, and reading behind bars has only become harder in recent years.

This year’s Prison Banned Books Week highlights the role tablets are ironically playing in further restricting incarcerated people’s access to reading materials. To better understand these changes, we looked at data collected by the Prison Banned Books Week campaign on prison book bans, policies around books, and the availability of ebooks on tablet computers.¹ What we found is that tablets limit access to important modern writing and knowledge behind bars.

Tablets are nearly everywhere

When we last looked at the availability of prison tablets in 2019, they were relatively new and rare behind bars. Only 12 states had them. Since then, the technology has quickly spread. Today, at least 48 prison systems indicate they have tablets or, as in the case of Alaska and Nevada, are in the process of implementing tablets.²

The two companies providing tablets to the most state prisons are Securus/JPay and ViaPath/GTL. Perhaps this should come as no surprise since these two companies have long been the largest providers of telecommunication services for incarcerated people. They control roughly 80% of both the phone and e-messaging markets behind bars.

Importantly, these companies have shifted their focus to tablets as the prison and jail voice and video calling market has come under increasing scrutiny and regulation. Tablets behind bars have not undergone the same oversight, leaving companies like these free to use the devices to continue squeezing money from incarcerated people and their families for services like e-messaging, digitized mail, and music streaming.

Physical books are increasingly rare behind bars

The rapid expansion of tablets behind bars has occurred at a time when access to physical books in prisons has become increasingly rare.

Books have always been hard to come by behind bars. While it is true that most prisons technically have libraries, they are often under-resourced, strictly regulated, and have limited and outdated selections of books making them unreliable for accessing books and information. And increasingly frequent lockdowns often keep them entirely out of reach.

Search contractsFind tablet contracts in our database

This situation has become even more dire in recent years as more states have implemented content-neutral book bans that restrict families and friends from sending books directly to their incarcerated loved ones. These policies mandate that books sent to people in prison can only come from a limited selection of approved vendors. This means that friends, family, churches, libraries, nonprofit organizations, and others who want to send books directly to people in prison can no longer do so. Instead, they must purchase titles from the vendor hand-picked by the prison and have that vendor send the books directly to the facility. A 2023 study by PEN America found 84% of prison mailrooms they surveyed had implemented these sorts of bans, even when it was not the statewide policy.

Of course, even facilities that still allow people to send books to their incarcerated loved ones dramatically restrict what they can read. A 2023 review by the Marshall Project found that state prisons explicitly ban over 50,000 books. However, that only tells a part of the story. At least 23 states, along with Washington, D.C. and the Federal Bureau of Prisons, do not have written lists of explicitly banned books but instead say they evaluate books on a case-by-case basis, providing mailroom staff with immense discretion to implement already vague rules, with little oversight.

It will come as little surprise that one of the most frequently cited reasons for a prison to ban a book is “security.” However, it is clear this reasoning is applied indiscriminately and often in situations where no reasonable security threat exists. For example, in 2022, Texas prisons banned the second edition of Merriam-Webster’s Visual Dictionary on security grounds because it contained a picture of a gun. And it would likely surprise many that the most banned book in American prisons is a cookbook. Prison Ramen details how incarcerated people can use ingredients often sold at commissaries to add flavor to ramen (another common item in prison commissaries). Perhaps prison authorities worry that the book’s recipe for “Shawshank Spread” might serve as inspiration for people behind bars. And of course, it goes without saying that there is little to no evidence that any of these books explicitly banned in prisons have ever led to any actual security incident.

Tablets aren’t filling the gap

Prisons often claim that the addition of tablets behind bars will increase access to books, despite other book bans they have implemented. Unfortunately, though, because of limited and outdated ebook selections, tablets are not living up to their potential and likely aren’t even filling the emerging book-gap.

The companies behind these tablets often boast that they offer access to tens of thousands of free books, which sounds quite impressive until you examine their offerings more closely. For example, none of the best-selling books released since the year 2000 are available on Securus/JPay tablets in Georgia. It is hard to imagine that prisons can attribute this to security concerns since many Harry Potter books — which are considered a rite of passage for many young readers — and The Purpose Driven Life — a bible study book written by Pastor Rick Wilson — are among those best-sellers that are not available.

Instead, most of the books that are available on tablets come from Project Gutenberg, a collection of free ebooks. Importantly, these books are free because their copyright expired when they reached 100 years old.³ Undoubtedly, this collection includes some important classic books. However, their age — and the companies’ decisions not to offer newer books — creates some significant problems. For example, you likely won’t find books by author and civil rights activist James Baldwin on these tablets. However, you’ll likely find Yankee Girls in Zulu Land, a book that is over 130 years old and is known for its racist ideas and sentiments.

Additionally, not all tablets even offer ebooks. Michigan’s tablets have no reading material and the state has a statewide approved vendor policy that limits incarcerated people’s book purchases to four booksellers, making reading costly and inaccessible in Michigan prisons.

Making tablets work for incarcerated readers

Prison tablets are not inherently bad, but the ways that facilities and companies have implemented them are. Tablets can and should provide new opportunities for incarcerated people to engage with high-quality books and other content in ways that don’t sap them of what little money they have.

The single most important step that prisons can take to make tablets work in the best interest of incarcerated readers is by forcing the companies to offer other apps that give incarcerated people access to the catalogs at their local libraries. Apps like Hoopla offer free access to selected ebooks, audiobooks, movies, and more from local libraries. Communities are already paying to provide access to these materials to people outside of the prison walls, it only makes sense to expand that access to people locked up in prisons, too.

The companies behind these tablets will certainly resist this effort because it would likely cut into their bottom line. Their track record shows that profit, not the well-being of incarcerated people, is their driving force. However, prison officials have the upper hand in contract negotiations. If a few states band together to demand access to materials from the local library on tablets, the companies would be forced to respond or else risk devastating revenue losses.

Of course, prisons all too often collude with telecom providers to make money by squeezing incarcerated people for goods and services they can’t refuse. But even if prisons aren’t moved by a desire to help the people in their care, state lawmakers should pay attention to prisons’ policies around reading. We know that when people who are incarcerated stay connected to the outside world, it improves their mental and physical well-being and prepares them for their release. States should do more to ensure that tablets are operating in the best interest of the people who use them.

Mass incarceration is on the ballot

A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America.

by Mike Wessler, September 11, 2024

Elected Offices

Local Offices

District Attorneys

Sheriffs

County Commissioners

Mayors and City Commissioners

City Auditors

Local Judges

Coroners

City Clerks

School Board Members

State Offices

Governors

Attorneys General

Secretaries of State

State Legislators

State Auditors

Utility Commissioners

Appellate Court Judges

Supreme Court Justices

Federal Offices

President

Members of Congress

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November. We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area. Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system. This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing. With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

Local Offices

Most of the day-to-day interactions that people have with the criminal legal system involve local governments. Local governments are responsible for a wide swath of related activities, including policing and law enforcement, the prosecution of criminal laws, and conditions and policies at local jails.

District/County Attorneys

Because of their immense power, government prosecutors known as district attorneys (sometimes called county attorneys) loom large in any discussion about the criminal legal system and what can be done to reform it. And it is important to remember that the person who holds this office has immense discretion in how to use this power.

They oversee the vast majority of criminal cases in their jurisdiction. Not only do they determine which types of offenses to prioritize for prosecution, but in individual cases, they also determine whether to bring charges against someone and, if so, for what crime.

Additionally, while they don’t directly set bail conditions — judges generally do that — they usually recommend whether a person should be offered bail and, if so, whether they must pay money to go free before their trial. Their recommendations hold immense weight in these judicial decisions.

They also serve as gatekeepers to diversion programs. These programs allow people charged with crimes to resolve their cases without a criminal conviction and, in many cases, without incurring charges. The district/county attorney decides what those diversion programs look like, whom they are offered to, and what happens when someone completes it.

While this explanation covers the most prominent parts of the district attorney’s job, it is certainly not exhaustive. To learn more, we recommend reading Fair & Just Prosecution’s report, 21 Principles for the 21st Century Prosecutor, which goes into much greater detail.

Sheriffs

Sheriffs play many roles in the criminal legal system that can vary greatly from state to state and county to county. Generally speaking, though, their core responsibility is running the county jails, making them responsible for managing the conditions in which people are detained pretrial.¹ Importantly, in this role, they’re responsible for the health and safety of people who are in their custody, including what health services they have access to while incarcerated. Additionally, they enter into contracts with private companies that provide services, such as phone calls, commissary sales, and tablet computers. They decide what people detained in their jails are charged for these services.

Additionally, many sheriffs also conduct law enforcement activities and criminal investigations. This gives them wide latitude in determining who is arrested and for what offenses.

Finally, some sheriffs also oversee probation programs and officers. In this role, they have a huge impact on the lives of people on probation. They can prioritize the person’s successful completion of the program in a way that keeps them from being arrested or incarcerated again, or they can prioritize punishment by strictly enforcing arbitrary and often expensive conditions that set people up to fail.

County Commissioners

County commissioners² generally have two primary responsibilities when it comes to the criminal legal system.

First, they provide oversight of the county jail, including setting budgets and approving contracts for services. Notably, they are also often responsible for considering proposals for new jail construction. During debates about building a new jail or expanding an existing one, county commissioners have powerful leverage that they can and should use to ensure that prosecutors and law enforcement are doing everything they can to reduce the number of people stuck in jails unnecessarily.

Second, they allocate funding and, in some jurisdictions, provide oversight of the county sheriff’s department. This can influence the law enforcement presence in the community and the activities the department is tasked with prioritizing.

Mayors and City Commissioners

These offices are responsible for supervising the local police department. This includes determining its funding, providing some oversight of its activities, and selecting its chief. Through these choices, they determine the size, scope, and priorities of the police departments in their communities.

Additionally, they set funding levels for other community resources that can prevent law enforcement interactions in the first place. For example, they could direct funding to expand mental health services, drug treatment options, or pre-police diversion programs in their area.

City/County Auditors and Controllers

City and County Auditors do far more than just monitor the spending of agencies (although they can, in fact, do that). They also look at the overall performance of key departments. For example, they can look at how jails are administering their welfare funds, how police departments are responding to the needs of the communities, jail conditions, the administration of the county’s bail practices, how public housing and health care providers are delivering services, and much more. Through their work, auditors and controllers can act on behalf of residents of their community to provide much-needed transparency and ensure their government is properly and effectively serving them.

Local Judges (including Justices of the Peace)

Local judges play multiple roles in the criminal legal system. While they are intended to be unbiased arbiters between the prosecution and defense in criminal cases, their decisions can have a huge impact on whether a person is convicted and whether they serve time behind bars — both before and after a conviction. They preside over a person’s initial court appearance after their arrest, at which time they’ll determine whether they can be released from jail, whether they have to pay cash bail to be released, and if there are any other conditions of their release. They also oversee criminal proceedings in the courtroom when a person goes to trial. In this role, they participate in decisions around who is selected as jurors, what evidence can be admitted, how the trial is run, and determining their sentence (if convicted). Importantly, they also set conditions a person must abide by when they are on probation.

Coroners

When someone dies unexpectedly, coroners often conduct medical examinations to determine the person’s manner and cause of death. Their findings and reports are often pivotal in criminal investigations and hold immense weight in criminal trials. Coroners can help expose the truth in criminal cases. Conversely, though, their mistakes can also send people to prison for crimes they did not commit. Importantly, corners are also often responsible for investigating the deaths of incarcerated people.

City/County Clerks (sometimes known as Supervisor of Elections)

This office, which has many different names across the country, has a key interaction with the criminal legal system: jail voting. Most people in jails are still eligible to vote but are prevented from doing so by a complex set of barriers. This office can help clear those barriers. They can work with local jails to make it easier for people detained there to register to vote and cast their ballots. A growing number of places in the country have even established polling locations in jails to make it easier for incarcerated people to have their voices heard.

School Board Members

The intersection of education and incarceration is complex. In short, we know that people with lower educational attainment are more likely to be incarcerated. So, in essence, every choice school board members make can help reduce incarceration in the community in the long run.

There are additional — more direct — choices that school board members make related to the criminal legal system. The first is whether or not police have a presence in schools as school resource officers. Second, school boards also set disciplinary policies, many of which are directly linked to the “school-to-prison pipeline,” such as when a student is suspended or expelled and when law enforcement is called for disciplinary activities in the schools. Both of these choices can result in children being tangled in the criminal legal system at a young age. Finally, in some places, they also are responsible for ensuring students in the juvenile justice system have equitable access to quality education.

State Offices

State government looms large in the criminal legal system. Not only are state prisons the largest incarcerators in the country, locking up over 1 million people every day, but states also write and enforce the laws that most frequently result in people being locked up in the first place.

Governors

Governors lead their state’s government, so naturally, their power and responsibilities are far-reaching. However, there are several specific areas that have a particularly dramatic impact on the size, scope, and conditions of the criminal legal system in their state.

One of the most important things they do is appoint the head of their state’s Department of Corrections, which runs state prisons.³ This agency is responsible for the health and safety of people incarcerated, how those facilities operate on a day-to-day basis, and how much incarcerated people (and their families) pay for things like phone calls, commissary items, and more. It also shapes policies around the use of good time credits, parole, and compassionate release.

An underappreciated role of governors is appointing people to state boards and commissions. The people appointed to these bodies can have a huge influence on how state government runs, and their decisions often go unnoticed by the public and the media. Notably, in many states, governors appoint people to their state’s parole board, a body that determines whether people who have served time behind bars are released or not. Additionally, in states that have prison ombuds, the governor often appoints the person who serves in that position.

Similarly, governors have the power to issue pardons and commutations for people convicted of state crimes. These can result in a person being released from prison early or undoing some of the worst collateral consequences of their conviction. Unfortunately, though, governors have woefully underused this important power.

Finally, governors sometimes appoint state judges to the bench. We discuss the role of judges in other parts of this guide, but in general, they are responsible for presiding over criminal cases, including determining the sentence for people found guilty and, in some instances, determining whether laws passed by the state are unconstitutional.

Attorneys General

Attorneys General are often called the top law enforcement officer in the state, and for good reason. While the specific duties and responsibilities vary significantly from state to state, generally speaking, this office plays an oversight or coordinator role for county/district attorneys in their state, often helping to set standards for criminal prosecutions. In addition, they can investigate and prosecute some serious criminal cases on their own. If a person is convicted of a crime and appeals that conviction, this office generally argues against those appeals.

Importantly, this office also represents the state when it faces civil lawsuits. For example, if a family sued the state government over poor prison conditions, the attorney general would likely represent the state in that case.

An often overlooked responsibility of many attorneys general is enforcing their state’s public records law. Prisons, jails, and court systems routinely unfairly deny requests for public records that should legally be accessible. In many states, advocates and journalists who have had their requests denied can often ask the attorney general of their state to intervene and force the facilities to produce the records.⁴

Secretaries of State

Secretaries of State generally oversee elections in their state. In this role, they can take action to improve ballot access for people who are currently in jail (and, in a few states, for people in prison, too). A motivated secretary of state can prioritize voter registration in these facilities and proactively address problems people who are incarcerated may face when attempting to cast their ballot. Additionally, they often provide guidance to local election officials, which gives them the chance to further improve ballot access.

State Legislators

State legislators have one of the most important and often overlooked roles in the criminal legal system. It is not an exaggeration to say that the only constraints on their abilities are state and federal constitutions, money, and their imagination. Their primary responsibility is writing and passing laws. They determine what is a state crime, the punishment for those offenses, the conditions a person will face after they are released, and much more. State lawmakers have so much power, in fact, that we put out an annual report highlighting dozens of actionable steps they can take to reform the criminal legal system without making it bigger.

In addition to passing laws, state legislators are also responsible for developing a state government budget that allocates money to state prisons and many law enforcement agencies. Through this action, they can influence the size and number of prisons in their state, the conditions in those prisons, and the role of law enforcement in their communities.

Notably, state lawmakers also can serve on legislative oversight committees that review the activities of government agencies, including state prisons.

State Auditors and Comptrollers

While the exact responsibilities and titles differ significantly from state to state, state auditors and comptrollers are generally tasked with assessing how well state agencies are doing their jobs and spending money. This goes beyond simple accounting. They can look at any number of activities of their Department of Corrections or state law enforcement officials. For example, a 2020 audit by the Massachusetts State Auditor found the state’s Department of Corrections was not processing sick-call requests from incarcerated people as quickly as required and was not fulfilling its obligations to incarcerated people upon their release. Used correctly, these can be powerful offices for exposing the mistreatment of people in the criminal legal system and the mismanagement of public dollars.

Utility Commissioners

Utility Commissions are tasked with regulating the state’s utility companies, such as electric providers, phone companies, and similar businesses. While it may seem like this has little to do with prisons and jails, in some states, these officials have played a critical role in reducing phone rates behind bars. For example, changes made by the Iowa Utilities Board to jail phone rates saved the loved ones of incarcerated people roughly $1 million every year. While the Federal Communications Commission recently approved rules that will significantly reduce voice and video calling rates in prisons and jails, the work of Utilities Commissions is not done. They can still take action to address the rapidly expanding presence of tablets and other telecom services behind bars to ensure that incarcerated people are not taken advantage of.

Appellate Court Judges

After a person is convicted of a crime, they have a right to appeal their conviction. That’s where appellate court judges come in. They oversee these appeals to determine whether the trial was held in a manner that was fair and respected the constitutional rights of the person convicted of a crime. They have the power to affirm or overturn a person’s criminal conviction or sentence.

Supreme Court Justices

State supreme courts are generally considered the most powerful court in their state. If a person convicted of a crime is unsuccessful at appealing their case in front of the appellate court judge, they can ask the state supreme court to hear the case as well.

Additionally, these courts are tasked with assessing the constitutionality of laws and policies related to the criminal legal system. This can include a wide variety of issues, such as policing practices, prison and jail conditions, and whether state laws violate a person’s constitutional rights.

Federal Offices

The federal government’s role in mass incarceration is vast and complex. Even though the federal prison system holds only about one-quarter as many people as state prisons collectively do, the federal government is still responsible for 98 federal prisons and 142 immigration detention facilities. Also, through the Department of Justice, it oversees federal law enforcement and criminal prosecutions.⁵

President

Like governors, the ways the president can impact the criminal legal system are vast.

One of the most consequential decisions they make is who they appoint to be Attorney General of the United States. This person will oversee the Federal Department of Justice, which prosecutes all cases involving allegations of federal crimes. Similarly, the president appoints U.S. Attorneys who oversee those prosecutions. The Attorney General and U.S. Attorneys have considerable latitude on which cases to pursue, which crimes are prosecuted, and the desired punishment if a conviction is secured. Additionally, the Attorney General oversees the Bureau of Prisons (BOP), which operates all federal prisons. The BOP is responsible for a wide range of prison conditions, including the health and safety visitation policies and communication options for people incarcerated at its facilities.

Presidents are also responsible for signing (or vetoing) bills passed by Congress. And even before a bill makes it to their desk, they work with lawmakers to shape that legislation. These laws can have far-reaching effects, as we discuss below when talking about the responsibilities of members of Congress.

One of the president’s most long-lasting impacts comes through his or her appointments of federal judges, including U.S. Supreme Court Justices. In addition to hearing federal criminal cases, federal judges often also interpret laws to determine whether they violate the U.S. Constitution.

The president also appoints members to boards and commissions focused on a wide range of issues. For example, the president appoints commissioners to the Federal Communications Commission, which recently slashed calling rates in prisons and jails. The president also appoints members to the Federal Trade Commission, which oversees many consumer issues, including junk fees in prisons and jails. They also appoint members to the U.S. Sentencing Commission, which has a hand in determining the severity of sentences for people convicted of federal crimes.

Finally, presidents have the power to issue pardons and commutations for people convicted of federal crimes. Unfortunately, though, they rarely use this power. Through these acts, the president can either reduce the sentence of someone convicted of a crime or undo some of the worst consequences of that conviction.

Members of Congress

Like state legislators, the principal responsibility of members of Congress is passing laws. Through these laws, they determine what actions are considered federal crimes and the potential sentences for people convicted of those crimes. They can also pass legislation to address issues related to prisons and jails at the federal, state, and local levels of government. For example, members of Congress have brought forward a bill to end prison gerrymandering nationwide.

The other principal responsibility of members of Congress is developing and passing a budget that determines how much money is allocated to federal agencies, including the Department of Justice and the Bureau of Prisons. These budgets can have wide-ranging implications for the number of people incarcerated, the number and condition of prisons, and the availability of community-based services and health care.

Notably, members of the U.S. Senate are also responsible for considering and confirming many appointments made by the president — including the appointment of federal judges and the U.S. Attorney General. This allows them to affirm or deny whether a person has the experience, temperament, and priorities to serve in that position.

Making your voice heard

No single elected official built America’s broken system of mass incarceration. And no one officeholder can end it singlehandedly. Accomplishing that will require a wide focus on elected offices up and down the ballot.

This guide is not all-encompassing. America’s elections are diverse and complex, so it would be impossible to cover every office that influences the criminal legal system and every responsibility of those offices. Instead, as you prepare to head to the polls, we hope this guide helps you better understand how the offices you’ll be asked to vote for can use their power to reduce the number of people behind bars and improve conditions for those who remain incarcerated. After the election, we hope you’ll use it to hold those elected officials accountable, too.

With Election Day approaching, visit Vote.org to register to vote (or check your registration status) and make your plan to make your voice heard at the ballot box.

(Author’s note: We’d like to thank the team at Bolts Magazine for their insights as we put together their guide. Bolts is a nonprofit newsroom that covers issues related to elections and the criminal legal system.)

Mass Incarceration 101: Resources to help students and teachers understand the carceral system

It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system.

by Danielle Squillante, September 3, 2024

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion. It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why. In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Additional reading assignments:

• Our briefing on states’ reliance on excessive jailing explains the drivers of jail growth including the practice of renting jail space to state and federal agencies like the U.S. Marshals Service. The appendices include useful data on jail trends and population data over time.
• Our Punishment Beyond Prisons report looks at how many people in each state are on probation or parole. Notably, some of the states that are the least likely to send people to prison are among the most punitive when other methods of correctional control are taken into account.
• States of Incarceration: The Global Context shows how incarceration rates in the U.S. compare to countries across the globe. Although El Salvador has the highest incarceration rate of any country, the U.S. still has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.

An essential lesson: Disparities in the system

No lesson about mass incarceration in America is complete without covering the stark racial disparities inherent in the system. Black people, for example, not only have higher incarceration rates than white people but are also more likely to receive harsher sentences, including life without parole and the death penalty.

To help teachers and students understand these disparities better, we produced a dataset containing over 100 state-specific graphics showing the number of people in state prisons and jails by race, ethnicity, and sex. Our data compares Black and white imprisonment rates by state, finding that every state locks up Black people at a rate at least double that of white people — and, on average, at six times the rate of white residents.

Every state incarcerates Black residents in its state prisons at a higher rate than white residents. For comparisons to other race/ethnicity categories, see individual state profile pages.

Additional reading assignments:

• Our Native incarceration page contains current data on the incarceration of Native people in jails, prisons, and Indian country jails. In jails, Native people have more than double the incarceration rate of white people, and in prisons, this disparity is even greater.
• Racial disparities aren’t the only disparities in the system. Our 2021 briefing on the system-involvement of LGBTQ people details how they are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women.

Gender studies: Women’s incarceration

Students and teachers looking to examine the carceral system must understand the unique ways that women experience mass incarceration in America.

Our Women’s Mass Incarceration: The Whole Pie report provides the most recent and comprehensive data on how many women are incarcerated in the U.S., in what kinds of facilities, and why. The report also includes rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences behind bars. It examines why women’s incarceration has grown so rapidly in recent decades and explains that, because they are often primary caregivers to children, they’re not the only ones harmed by incarceration.

Additional reading assignments:

• Our briefing on how the fall of Roe v. Wade impacts women on probation and parole includes state-level data on how many women are under community supervision in states with abortion restrictions.
• Our 2020 briefing highlights the role that drug enforcement has played in the rise of women’s incarceration and makes clear why we need to pay attention to the ways that women are uniquely impacted by the legal system.

Care not cages: Incarceration and public health

People in prisons and jails are disproportionately likely to have chronic health conditions as well as substance use and mental health problems. Medical care in correctional facilities is notoriously inadequate, and because most prison systems charge copays for medical care, it also deters incarcerated people from seeking the care they need.

Our Chronic Punishment report shows that instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, state prisons are full of ill and neglected people.

Additional reading assignments:

• Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare. But as our briefing on the lack of drug treatment in jails and prisons makes clear, most systems fail to provide evidence-based treatment options and instead rely on punitive responses to substance use.
• In our briefing on the aging prison population, we examine the inhumane, costly, and counterproductive practice of locking up older adults that is the consequence of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century.
• Our briefing on environmental injustice in prisons highlights how toxic detention facilities put the health of incarcerated people at risk. From having contaminated water to being sited near federal Superfund sites, prisons expose incarcerated people to hazardous substances that create additional health issues behind the wall.

Extra credit

Our website is chock full of data that can be used to further explore incarceration trends or dive deeper into issues related to mass incarceration:

• State Profile pages: contain current state-level data and visuals on a range of issues, including racial disparities and incarceration rates
• Data Toolbox: provides links to our unique datasets, including national and state-level population data
• Research Library: the nation’s largest online database of empirical and policy research about criminal legal issues, including mental health, community impacts of incarceration, and conditions of confinement
• Data Sources guide: includes descriptions of data sources we use to produce research exposing the harms of mass incarceration

New research links medical copays to reduced healthcare access in prisons

Using our prior research on prison wages and medical copays, researchers found that higher copays obstruct access to necessary healthcare behind bars, even as prison populations face increasing rates of physical and mental health conditions.

by Emily Widra, August 29, 2024

In most states, people incarcerated in prisons must pay medical copays¹ and fees for physician visits, medications, dental treatment, and other health services. While these copays may be as little as two or five dollars, they still represent massive barriers to healthcare. This is because incarcerated people are disproportionately poor to start with, and those who work typically earn less than a dollar an hour and many don’t work at all. A new report published in JAMA Internal Medicine builds on our analyses of prison copay and wage policies across all state prison systems and the findings are clear: medical copays in prisons are associated with worse access to healthcare behind bars. These unaffordable fees are particularly devastating because they deter necessary care among an incarcerated population that faces many medical conditions — often at higher rates than national averages — and routinely faces inadequate health services behind bars.

In their recent publication, Dr. Lupez and her fellow researchers analyzed nationally representative data from state and federal prison populations published in the Bureau of Justice Statistics’ Survey of Prison Inmates, 2016.² While we previously published our own analysis of the same dataset in 2021, this new research goes further by analyzing changes from the 2004 data and mapping our copays and wages data onto health data from people in prison. The researchers compared the 2004 and 2016 iterations of the Survey and found that, overall, people in prison are facing more chronic physical and mental health conditions than they were in 2004.

Additionally, Dr. Lupez and her colleagues measured the effect of prison medical copays on access to specific healthcare services (including pregnancy-related care), access to clinicians for people with chronic physical conditions, and the continuation of medications for mental health. For each state,³ they used our 2017 copay and wage data to categorize each survey participant into one of three categories: no copays, copay amounts less than or equal to one week’s prison wage, and copay amounts greater than one week’s prison wage.⁴ Their results provide further evidence that medical copays limit access to care among the most vulnerable people in the system.

Many people in prison do not receive even the most basic, necessary healthcare

We already know that prison healthcare regularly falls short of the constitutional duty to care for those in custody. While most people in state prison report having seen a healthcare provider at least once since admission, nearly 1 in 5 have gone without a single health-related visit since entering state prison. Accordingly, the authors first examined general access to healthcare among three groups of people in state and federal prisons: people who were pregnant when admitted to prison, people with chronic physical conditions, and people with mental health conditions. They found that even the most basic care — like obstetric exams for pregnant people or any visit with a healthcare provider for people with chronic conditions — is not provided to surprisingly large portions of the affected population.

Treatment for chronic physical conditions. More than 1 in 10 people (14%) with at least one chronic condition in state and federal prisons had not been seen by a clinician since they were incarcerated. Within their first year of imprisonment, more than a fifth of people with chronic conditions (22%) had not yet been seen by a healthcare provider. Chronic diseases — by definition — require ongoing medical attention, and for the 62% people in state and federal prisons⁵ who have them, the lack of consistent, adequate medical treatment can have disastrous and fatal consequences.

Mental healthcare. Among the almost 400,000 people in state and federal prisons with chronic mental health conditions,⁶ one third (33%) had not received any clinical mental health treatment since entering prison. Again, those who were within their first year of incarceration were even more likely to report no treatment: 39% had not yet received any mental health treatment compared to 29% of people incarcerated for more than one year. Similarly, more than 41% of people experiencing severe psychological distress⁷ in state and federal prisons had not received mental health treatment.⁸ And more than one third (34%) of people who had been taking prescription medication for a mental health condition at the time of their offense had not received their medication since entering prison.⁹

Pregnancy-related healthcare. Standard prenatal healthcare for pregnant people involves monthly doctor’s appointments at minimum, as well as screenings, tests, vaccinations, and patient education usually conducted by a perinatal specialist. But a shocking proportion of pregnant people in state prisons did not receive so much as an obstetric examination (9%), see any outside providers or specialists (26%), or any pregnancy-education from a healthcare provider (50%) after entering prison.

Medical copays and fees block access to necessary healthcare

When healthcare needs come up against an arduous and expensive sick call process, people are forced to jump through arbitrary hoops just to see a doctor — or delay or forgo medical care altogether — as their health deteriorates. The researchers found that prison systems with more expensive medical copays (relative to prison wages) limit access to necessary healthcare for incarcerated pregnant people and those with chronic conditions more than prisons with no copays or copays equivalent to or less than one week’s prison wage.

Healthcare in prisons is subpar for almost any medical condition, and chronic physical conditions are often more prevalent behind bars than in the general population. The researchers found that medical copays clearly impact access to healthcare for the more than 500,000 people incarcerated in state and federal prisons who have conditions like heart disease, asthma, kidney disease, and hepatitis C. This is particularly alarming considering many of these conditions require regular medical management or can even be cured.

People with chronic conditions in state prisons where copays exceed a week’s wage are less likely to have seen a healthcare clinician while incarcerated than those in prisons that charge no copays or lower copay amounts. Among people with chronic physical conditions who have been incarcerated for more than one year, 12% of incarcerated people who face more unaffordable copays have not seen a clinician. Meanwhile, in prisons with relatively lower copays or no copays, less than 8% of people with chronic physical conditions have not yet seen a clinician after being incarcerated for more than one year.

Among people incarcerated in state prisons for any amount of time, more unaffordable copays were associated with worse access to the necessary healthcare, like obstetrical examinations for pregnant people and seeing a medical provider for people with chronic medical conditions.

Similarly, pregnant people in state prisons do not receive standard prenatal care and medical copays make this situation worse. Pregnant people in state prisons without medical copays or with lower copays relative to their wages were more likely to have received an obstetrical examination and clinical pregnancy education than those in prisons with copay amounts more than a week’s prison wage.¹⁰

Copay waivers and exemptions. Researchers also identified prison policies granting copay exemptions for some healthcare services for some people: at least 25 state departments of corrections and the federal prison system have copay waivers for chronic conditions, while 13 states have waivers for pregnancy-related care. However, as correctional health expert Dr. Homer Venters explains: “many chronic care problems aren’t detected when a person arrives [at the jail or prison], so to get treatment… requires the sick call process… Many systems have a practice of requiring two or three nursing sick call encounters before a person sees a doctor.”¹¹ In other words, someone who meets the exemption criteria likely will still need to pay copays for the initial two or three nursing sick call visits before clinicians identify them as someone who should be exempt from copays.

It’s worth noting that the researchers repeated their analysis of how copays impact access to healthcare services among people without any reported chronic conditions in state prisons. If the chronic care waivers were working as intended, they reasoned, people who do not have chronic conditions would experience even lower rates of healthcare access compared to people with chronic conditions who have their copays waived. Instead, they found people who do not have chronic conditions appear to face similar rates of healthcare access as those who do, suggesting that these waivers are not routinely and consistently applied in a way that actually promotes healthcare access for the most vulnerable people in prison.

From 2004 to 2016, rates of chronic illness and mental illness increased in state and federal prisons

In addition to finding that higher copays restrict healthcare access, the researchers delved into demographic and health-related changes among the prison population between 2004 and 2016.

Demographics. People in prison in 2016 were more likely to be older; identify as Hispanic, multiracial, or some race other than white or Black;¹² and to have been incarcerated multiple times compared to those incarcerated in 2004. These are groups of people that already face significant barriers to healthcare and often have poor health outcomes, even outside of prison. Older adults are more likely to have more medical conditions, which are already more prevalent behind bars. Outside of prison, Hispanic adults report less access to regular medical care and higher rates of uninsurance, while Black, Hispanic, and American Indian or Alaska Native people are less likely to receive necessary mental healthcare and have faced larger declines in life expectancy than their white counterparts. Ultimately, multiple periods of incarceration can negatively affect health status, and experiencing years of limited resources, inaccessibility, and understaffing in prison healthcare creates a situation in which each year spent in prison takes two years off of an individual’s life expectancy.

Chronic physical conditions. As we discussed in our 2021 report, Chronic Punishment: The unmet health needs of people in state prisons, chronic physical conditions and infectious diseases are more prevalent in prisons than among the nation at large. This newest analysis from Dr. Lupez and her colleagues reveals that these chronic conditions are more common in state and federal prisons than they were in 2004. For example, the percentage of the prison population facing at least one chronic condition increased from 56% in 2004 to 62% in 2016, and the percentage facing three or more chronic conditions increased from 12% to 15%. In other words, a larger portion of the prison population is facing chronic illness, and in many cases multiple chronic illnesses.

Mental health conditions. The researchers also found that mental health conditions were more common in 2016 than in 2004. The Bureau of Justice Statistics’ Survey offers data on the proportion of the state and federal prison population who have ever had depression, anxiety, psychotic disorders, manic disorders, post-traumatic stress disorder (PTSD), and personality disorders. The prevalence of every one of these conditions increased in the prison population between 2004 and 2016: in 2004, nearly a quarter of the prison population reported one mental health condition and by 2016, this had increased to more than 40% of people in prison.¹³ Not only are mental health conditions more common, but more people are facing chronic mental health conditions in particular: the proportion of people in prison with chronic mental health conditions practically doubled from 2004 to 2016 (14% to 27%).

This study ultimately underscores the urgency of ending medical copays and healthcare fees in prisons and jails, and provides evidence that unaffordable copays put necessary medical care out of reach for far too many incarcerated people. Generally speaking, this study shows that incarcerated people are sicker than ever, the healthcare options available to them are grossly inadequate, and people are not getting the constitutionally-guaranteed care that they need — regardless of whether prisons charge copays or not.

As a final note, we are gratified whenever our work is repurposed by other researchers like this — it’s why we publish our detailed appendix tables and other data collections, many of which can be found in our Data Toolbox. If you are a researcher using our data, we encourage you to reach out with any questions and to let us know how you are using our work.

10 ways that mass incarceration is an engine of economic injustice

The fight for a fair economy and the movement against prisons are one and the same.

by Eric Seligman and Brian Nam-Sonenstein, August 27, 2024

Table of Contents

Mass incarceration traps low-income communities in poverty

#1: Sentencing poor people to deeper poverty

#2: Impoverishing the families and communities of incarcerated people

#3: Deepening poverty in rural prison towns

Mass incarceration weakens all workers

#4: Raising the stakes of unemployment for all workers

#5: Weakening formerly incarcerated workers — harming all workers

#6: Making it harder for all workers to unionize

Mass incarceration undermines movements for economic justice

#7: Suppressing political engagement and representation

#8: Weakening unions, removing a key player in movements for economic justice

#9: Inflaming social tensions that undermine worker solidarity

#10: Hiding economic injustice, making it harder to organize against

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t. As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed. The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities. Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions. Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice. Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice. We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

Mass incarceration traps low-income communities in poverty

First, it’s important to understand how incarceration makes and maintains poverty. Criminalizing the poorest people, saddling them with debt, and destroying their financial futures has grave consequences for their families and wider communities. Additionally, prisons are economically depressing for the poor rural towns that host them, leaving them in financial ruin for years to come. It turns out that struggling urban and rural communities have a shared interest in ending our country’s reliance on prisons to address poverty and unemployment.

#1: Incarceration sentences poor people to deeper poverty

As the saying goes, it’s expensive to be poor, and in the U.S. the criminal legal system makes this emphatically so. At every stage of the criminal legal process — from pretrial detention, to incarceration, to reentry — already-poor people are faced with ever-harsher conditions of poverty.

Poverty traps people in jail. About 83% of people in local jails are legally innocent and awaiting trial, and many of them are too poor to make bail.¹ At the same time, jail traps people in poverty: it prevents people from working and immediately increases the chances they’ll be fired, leading to long-term job instability and lost government benefits. People in jail must also pay high prices for phone calls, medical fees or “copays,” and essential goods purchased in the commissary.² Even those who are released pretrial can still take a big financial hit when they’re forced to make nonrefundable payments to bail bond companies and pay expensive user fees for pretrial electronic monitoring.

In prison, periods of employment³ are replaced with low-wage prison labor⁴ — wages that are quickly consumed by expensive communications, medical care, and commissary goods, not to mention fines for alleged misconduct in many states. Release and reentry provide little reprieve, as people on post-release supervision (who are disproportionately poor⁵ to begin with) are forced to pay monthly fees for things like regular urinalysis tests, electronic monitoring devices, mandatory programs, and more for years on end.⁶

#2: Incarceration impoverishes the families and communities of incarcerated people

Families of incarcerated people lose household income and assume astronomical new expenses related to supporting a loved one on the inside. It bears repeating that these families are often already struggling with poverty,⁷ and prison makes their survival significantly harder. According to a survey by the Ella Baker Center, roughly 65% of families with a loved one in prison were unable to meet their basic needs because court-related fines and fees sent them into debt over $13,000 on average. In particular, 58% of families living in poverty were unable to afford the costs associated with a conviction. Meanwhile, an estimated 1 in 3 families went into debt because of communication and visitation costs alone. Women were most often responsible for covering these costs: another survey conducted by the Essie Justice Group found that 35% of women experienced homelessness, eviction, or struggled to make rent or mortgage payments as a result of bail, court fees, and lost economic opportunities. Incarceration cost one-third of women their household’s primary source of income, and 43% were forced to work more hours, get a different job, or turn down an educational opportunity as a result.

These harms spill over into the larger community. Lost wages and barriers to employment among the formerly incarcerated reduce their purchasing power, which in turn deflates demand for local goods and services. As a result, local businesses can’t afford to hire as many people, exacerbating unemployment for those returning there from prison and the broader community. The high concentration of policing and incarceration in poor communities creates a feedback loop of economic consequences, creating and worsening poverty at the very same time.

#3: Prisons don’t fix rural poverty — they deepen it

Towns suffering from unemployment and deindustrialization, especially rural communities, are often sold the idea that prisons can help turn things around.⁸ But this story could not be further from the truth: prisons actually deepen poverty in the communities where they are built — and, they deepen poverty the most in the towns that are the most impoverished to begin with. Rather than create local jobs, most openings are filled by senior corrections workers⁹ from other areas. In fact, local workers are often rejected from these jobs because of symptoms of local poverty: bad credit histories, low levels of education, criminal records, drug use, age, and even a lack of prior experience puts locals at a disadvantage compared to those from other areas. There are decades of examples of this dynamic at work:

• After California’s state prison in Corcoran was built in 1988, fewer than 10% of the jobs went to local residents.¹⁰
• Residents of Malone, New York were promised 750 jobs when a state prison opened there in 1999, but those jobs went mostly to people from outside of the town because of prison system seniority rules.¹¹
• When a federal prison opened in McCreary County, Kentucky in 2003, only an estimated 10% of the new jobs were filled by local residents, amounting to about 30 jobs total.¹²
• Ruth Wilson Gilmore’s 2007 study of California’s prison boom reported that under 20% of jobs from new state prisons went to local residents on average.

Additionally, using prisons to chase community investment is often a race to the bottom. In fact, new prisons can discourage investment in several important ways:

• Many businesses avoid new prison towns because they tend to lack local amenities and fear the incoming criminalized population.
• Communities spend tons of money to convince, for example, the federal government to site a prison in their locality. They offer steep discounts on land and resources with the hope of making the money back in the future. Instead, rents and land values eventually plummet when the promised economic boom never arrives, devastating home values.¹³
• Prisons attract large chain stores that strategically site themselves nearby, driving out the smaller local businesses that provide similar goods and services. While the profits for smaller local businesses reliably circulate within the community, the profits for chain stores are largely distributed throughout their operations elsewhere.¹⁴
• Prisons are a blight on the environment. Their construction destroys local habitats, they’re often built on dangerously polluted land, and, once built, they generate significant waste that is expensive to remediate.¹⁵

Mass incarceration weakens all workers

One of the ways that mass incarceration traps people in poverty is by raising the stakes of unemployment for all workers, creating immense obstacles to organizing for better terms of employment. Rather than alleviate poverty through jobs, housing, education, and healthcare, the U.S. uses criminalization to force people to comply with a deeply unequal economy.

#4: Mass incarceration raises the stakes of unemployment for all workers

Mass incarceration emerged as the U.S. economy grew more unequal and work became more precarious: In 1973, the wealthiest 10% of Americans captured one-third of all income, but nearly 40 years later they had captured one-half of it. In that time, the ultra-rich top 1% went from holding 9% of all income to nearly a quarter of it. Meanwhile, at least 17% of workers toiled under unstable work schedules in 2015.¹⁶ The growth of the criminal legal system, combined with rising inequality and the demise of the social safety net, has made unemployment riskier and weakened workers’ bargaining position. If losing your job means you’ll receive meaningful financial support before your next job, you’ll be more likely to risk retaliation from an angry employer to demand higher wages and better conditions. If losing your job may lead to an indefinite period of austerity, stress, and surveillance that could end in arrest and incarceration, you’ll be less likely to risk making such demands. In a recent study of labor markets in high-incarceration communities, Adam Reich and Seth J. Prins find that the more incarceration there is in a community, the less likely people are to risk their jobs demanding better terms of work, regardless of prior experiences with incarceration. In other words, in neighborhoods where incarceration is more common, workers — formerly incarcerated or not — are more inclined to play it safe at work than risk unemployment and incarceration.

The U.S. incarceration rate has closely tracked the rise in the share of national income held by the wealthiest 1% of Americans. For most of the 1950s, 60s, and 70s, the top 1% held about 10% of the total national income while the U.S. imprisoned about 100 people per 100,000. By the 2000s, the share held by the top 1% had doubled to around 20% while the incarceration rate grew to five times the historical norm.

#5: Suppressing the wages of formerly incarcerated people harms all low-wage workers

As mass incarceration restricts job opportunities for formerly incarcerated people, it creates a feedback loop that suppresses wages for everyone. Here’s how it works: limited job options threaten formerly incarcerated workers with deeper poverty, criminalization, and re-incarceration, and makes them especially dependent on those few employers who are willing to hire them. As a result, they are compelled to accept nearly whatever wages or conditions are offered to them. Employers can then use this group of precarious workers to threaten others with replacement if they dare to demand higher wages and better conditions. Among the more than 50,000 people released from federal prisons in 2010, a staggering 33% found no employment at all over four years post-release and no more than 40% were employed at any given time. Successfully landing a job also had limited benefits: formerly incarcerated workers averaged 3.4 jobs between 2010 and 2014 — in other words, they secured jobs that didn’t offer security or upward mobility. These jobs tended to be the lowest-paying positions. An analysis of IRS data by the Brookings Institution found most employed people recently released from prison receive an income well below the poverty line. Everyone suffers when employers can readily threaten to fire a worker and hire from the highly vulnerable formerly incarcerated pool, forcing everyone to accept less money and worse treatment.

Incarceration erodes a worker’s ability to quit — an important measure of worker power. Additionally, formerly incarcerated workers have lost their say in which jobs they accept: while “before prison” workers can exhibit a preference for more satisfying jobs, “after prison” workers have to accept high- and low-satisfaction jobs at similar rates.

#6: Mass incarceration makes it harder for all workers to unionize

Higher unionization rates lead to higher wages throughout the economy because, in places where businesses have unionized, other employers must pay more to compete for local workers. Unions are also an equalizing force, reducing racial and gender economic disparity and increasing political participation. Mass incarceration undermines these benefits by preventing workers from leveraging their collective power through unions or other worker associations that can more safely and effectively make demands of employers. Reich and Prins’s 2020 study offers the first large-scale documentation of this effect: they found individuals with a history of incarceration were 85% less likely to join the OUR Walmart workers association. They also discovered people who had experienced any contact with the criminal legal system (including felony convictions, probation or parole, or incarceration) were 76% less likely to join the organization. According to their analysis, as prison admissions rose, the odds of signing an OUR Walmart membership card fell.. Union approval elections were also less likely to succeed in communities with higher incarceration rates regardless of whether the workers involved in that particular election had been previously incarcerated. The chilling effect of mass incarceration on labor organizing pervades throughout the entire low-wage labor market, affecting all workers. Beyond the increased risk associated with losing one’s job, there are likely other reasons for this dynamic, such as incarceration’s suppressing effect on the community networks and institutions where labor organizing often takes place.

Mass incarceration weakens political movements for economic justice

Finally, mass incarceration’s coercive power, rooted in its ability to exclude and impoverish, seriously undermines political movements for the rights of the most marginalized, who have the most at stake in economic reform. By reframing systemic inequalities as individual failures and criminality, the narratives built around prisons stoke the flames of racism and pit people with similar economic interests against one another. In this environment, our weakened political movements cannot win or maintain the social programs that would help nearly all of us, and that the vast majority of people want.

#7: Mass incarceration is anti-democratic, suppressing political engagement and representation

Disenfranchisement laws prevent people who have the most intimate understanding of poverty in the U.S. — and the most at stake in economic reform — from participating in elections. According to the Sentencing Project, as of 2020, an estimated 5.17 million people — 1 out of every 44 adults in the entire eligible voting population — lost their right to vote due to a felony conviction. Prison gerrymandering also disempowers the communities from which people are incarcerated: by counting incarcerated people where they’re imprisoned instead of where they’re from, the Census Bureau dramatically distorts political representation at the state and local level, and paints an inaccurate picture of community populations for research and planning purposes.

Incarcerated people and their communities are also shunned from the political process in ways beyond legal disenfranchisement. The many stresses of returning from prison lead many individuals — and entire high-incarceration communities — to significantly retreat from formal politics and from the more informal processes of shaping the institutions that structure their lives. According to a 2010 study by scholars Vesla Weaver and Amy Lerman, contact with the criminal legal system is strongly and consistently associated with declining trust in government and a reduction in one’s likelihood of voting, even when the sample is restricted to those who have not been legally disenfranchised. Other research confirms this effect encourages not just individual disengagement from politics but the withdrawal of entire communities from politics and more informal forms of neighborhood involvement.

#8: Mass incarceration weakens labor unions, removing a key player in broader movements for economic justice

Organized labor has traditionally been a key player in movements for just economic policies. Beyond providing a gateway for members to build confidence in the possibility of organizing around shared interests to change policy, unions have often provided the actual institutional structure that organizes the public for economic justice. According to a 2021 study from the Economic Policy Institute, the 17 states with the highest union densities have, on average:

• State minimum wages that are 19% higher than the national average — 40% higher than low-union-density states,
• Median annual incomes $6,000 higher than the national average,
• A higher share of unemployed workers receiving unemployment insurance,
• An uninsured population 4.5 percentage points lower than that of low-union-density states,
• A higher likelihood of passing paid sick leave laws and paid family and medical leave laws than states with lower union densities, and
• Significantly fewer restrictive voting laws.

Police and corrections officers provide stark examples of how powerful organized workers can be, though these unions’ relationship with the criminal legal system tends to lead to positions that do not serve the interest of all workers. In some states, law enforcement organizations play a very significant role in electoral politics, often as main contributors to major campaigns. The California Correctional Peace Officers Association, for example, has contributed more than $9.3 million to political campaigns in the last 20 years — $3.8 million of which was spent across 32 state legislative races since the year 2000 alone. Over the past year, the California guards union negotiated a $1 billion raise over three years and got a new, additional state-funded retirement perk. In addition to pushing legislation directly responsible for expanding California’s prison system, the organization bankrolled particular victims rights groups that have helped stoke fears of criminalized people. Imagine if those sectors of the workforce that articulate more progressive policies for economic justice were as organized and politically active as the California prison workers union. By making it harder for most workers to unionize — while also empowering those segments of labor with a vested interest in the criminal legal system — mass incarceration removes a key player from political movements for economic justice.¹⁷

#9: Mass incarceration inflames social tensions that undermine worker solidarity

Throughout U.S. history, racism has prevented the development of a fully united movement for workers rights. Mass incarceration has continued this tradition by reinforcing divisions that obscure a shared interest in policy reforms. Prisons are home to racially disproportionate outcomes and a heated debate about their causes¹⁸ that plays out in media, exacerbating racism in society. Labor market research that finds that employers more frequently assume criminality in Black job applicants, whether they have a criminal record or not, exemplifies how mass incarceration influences society’s ideas and relationships around race in the workplace. Relatedly, the monumental scale of punishment in the U.S. leads to a hardening of ideas about workers who are “law-abiding” and those who are not, creating deep cultural rifts that leave less room for organizing around common grievances. While many workers and incarcerated people often share very similar needs for economic reform — like more affordable housing, education, or healthcare — the strength of their divisions along the lines of “criminality” tend to overpower the possibility of solidarity around shared needs.

#10: Mass incarceration hides economic injustice, making it harder to organize against

While mass incarceration creates some very visible economic injustices, others remain hidden, and when the public can’t readily see injustice or accurately pinpoint its source, it is harder to organize people against it. For example, mass incarceration artificially lowers official unemployment rates as incarcerated people go uncounted. Bruce Western and Katherine Beckett show that, in the 1990s, mass incarceration lowered the unemployment rate for Black men by 7 full percentage points. The ’90s are generally celebrated as a booming time for the U.S. economy with increasing employment opportunities for people of color. However, if incarcerated people were included in these statistics, the jobless rate for Black men would have stayed at an appalling 40% between the official unemployment peak in the early 1980s and the “inclusive” mid-1990s. Furthermore, if these figures and economic policy targets were recalculated to include the prison population, it would be even clearer just how little our society spends on social programs to address dire economic problems.

Beyond statistical misrepresentation, mass incarceration also gives rise to narratives that displace blame for criminalized poverty entirely onto the individual. Despite the vast amount of research on the role of economic conditions in causing crime, criminal legal proceedings present many symptoms of poverty, unemployment, and homelessness not as economic problems to be alleviated through systemic policy changes, but as personal failings that must be forcefully punished. This “individualization” of structural problems is also very clear in reentry. One can only counsel so many exceptionally persistent formerly incarcerated job applicants — who are indeed more “active” in the labor market than their general population peers¹⁹ — on how to beat out other workers before it becomes clear that the lack of economic opportunities that would allow them (and all workers) to meaningfully support themselves is really to blame. Bruce Western’s Homeward and Jamie Peck and Nik Theodore’s “Carceral Chicago” are full of painful stories of individuals stuck in these situations, making heroic individual efforts amid a scarcity of opportunities. In this situation, a certain percentage of people are guaranteed to end up unemployed, and demanding fiercer competition among them will not change this fact. It will, however, continue the pattern of filling prisons by blaming individuals for structural economic problems.

Conclusion

As these ten points show, mass incarceration is a major obstacle to movements for economic justice. The vast majority of people in the United States have a stake in dismantling this engine of inequality, which not only impoverishes people but traps the poorest communities in poverty. Through a combination of financial sanctions and legal disenfranchisement, criminalized people, their families, their communities, and eventually all low-wage workers become economically and politically disadvantaged. Mass incarceration presents a looming threat that deters all workers from risking unemployment by demanding better wages and working conditions, undermining both individual bargaining power and union organizing. Broader movements for economic justice suffer from the loss of unions as important incubators for political organizing, and people become discouraged from engaging in political participation altogether. Rather than address structural conditions by investing in what most people need — which the nation has the resources to do — the United States has chosen to blame and punish the individuals who are most harmed by them. As a result, mass incarceration stokes racism and pits people with similar economic interests against one another. In the end, these facts make clear that movements to end inequality and mass criminalization are in fact one and the same, and solidarity between all workers — criminalized or not — is necessary to progress toward a more economically just future.

An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform

Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar “zombie policies” are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety.

by Emmett Sanders, August 21, 2024

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons. Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country. These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024. Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Louisiana’s moves are remarkably out of touch, coming at a time when many states are engaging in genuine efforts to reform sentencing and parole, including expanding release through discretionary parole for all or some part of their prison populations. Since the Supreme Court’s 2012 decision in Miller v. Alabama, which found that judges must consider age and maturity when imposing life without parole sentences, 28 states and Washington D.C. have eliminated juvenile life without parole, with states like Minnesota implementing new juvenile parole review boards. Meanwhile, at least 46 states and Washington D.C. have established either medical parole, geriatric parole, or both, creating new release pathways for the elderly and chronically infirmed. Even in states where discretionary parole has long been abolished, such as Illinois, Virginia, and Maine, there have been strong pushes to see it restored. Louisiana itself had been slowly moving in the right direction, having seen an almost 30% reduction in its prison population over the past twelve years largely thanks to previous sentencing reforms that have driven down the number of people entering prisons. Now, however, Louisiana is reversing a decade of progress under the cover of false narratives.

Louisiana’s parole system was bad, but it was better than nothing

Louisiana is already a world leader in incarceration. The Pelican State holds the dubious distinction of having the highest incarceration rate in the United States, and is second only to El Salvador for the highest incarceration rate among the world’s independent democracies.¹

Their parole system, which earned an “F” in our 2019 report grading parole systems across the country, is partially to blame: In 2023, the board held only 790 hearings, and granted only 387 people parole. Discretionary parole hearings declined 52% from 2019 to 2022 — a period of time which also saw a staggering 59% drop in the number of people released via discretionary parole, and a 15% reduction in parole grant rates. In short, fewer and fewer people were already being released from prison in Louisiana, and those with violent crimes were already serving 25% more time in 2022 than they were in 2018. Nevertheless, discretionary parole remained a ray of hope for many in Louisiana’s prisons. Now, that meager but meaningful release mechanism will be available to far fewer people.

Keeping people in prison longer harms public safety, rather than helping it

Proponents of “tough on crime” bills like HB 9 and HB 10 often depict them as efforts to improve public safety. However, their arguments that more time in prison leads to more public safety are not only misleading, they are costly and dangerous.

Louisiana’s historical and projected prison population, 2012-2034.

According to estimates from the Crime and Justice Institute, HB 9 and 10 are poised to almost double Louisiana’s prison population by 2034. HB 10 alone will double the number of people convicted of non-violent crimes in Louisiana’s prisons and triple the state’s prison budget. The resulting growth in prison populations will almost certainly require new prison construction, which could come at a price tag of $2 billion.

These costs represent billions of dollars that could be spent on actually-effective means of improving public safety, like investments in better community-based violence interruption, crisis response, and youth programs. The ACLU of Louisiana has noted that savings generated by the state’s decarceral reforms over the past decade were successfully reinvested in innovative programs that prevented recidivism. As Louisiana lawmakers should know by now, communities are safest when the state invests money in proven violence solutions, not harsh sentences.

In addition, overcrowded prisons are dangerous prisons for those who are incarcerated as well as prison staff. Overcrowding is often cited as a primary reason for chronic severe understaffing in prisons and jails because it creates deadly conditions for staff and incarcerated people alike. Studies abound that show overcrowding and understaffing are associated with high levels of prison violence. To make matters worse, taking away discretionary parole and the ability to earn good conduct credits inside crowded prisons only adds fuel to the fire by eliminating a major incentive for people in prisons to engage in programming, avoid confrontations, and adhere to prison rules, all of which improve safety for those who are incarcerated, their families, and the communities to which they return. Indeed, another state has experimented with similar law changes to Louisiana’s, with disastrous results: Tennessee’s decision to implement truth-in-sentencing laws lead to numerous riots in the state’s prisons. Given that at least 95% of people confined in state prisons will eventually be released, subjecting them to increased violence and doubling down on trauma — rather than addressing it — ensures that these experiences will follow people home.

Conclusion

Ultimately, abolishing discretionary parole and imposing truth-in-sentencing in Louisiana is a backward move that essentially guarantees the state will remain one of the worst incarcerators in the world for years to come. Politicians who are truly concerned about public safety should focus on making sure that people in prison have access to programming, education, and the resources they need to make a successful transition into society as soon as possible, and that communities are well-supported to help them once they get out, rather than spending billions of dollars to ensure that incarceration is as long and as traumatic an experience as possible.

Advocacy Spotlight: Texas Jail Project

How one small organization in Texas is fighting to get answers for families of people who die in jails and forcing accountability from the jails they die in.

by Emmett Sanders, August 6, 2024

Across the country, people are dying in jails. Often, these deaths are used as the basis of arguments to spend millions or even billions of dollars on jail construction. As our research has shown, however, a new jail is by no means a guarantee that jail deaths won’t continue or even increase. Meanwhile, far less scrutiny is being paid to whether all jail deaths are even being reported. Some jails have implemented policies of not reporting deaths to media outlets, intentionally obscuring transparency. Many jails do not adhere to rules requiring jail death reporting; one report found that at least 990 in-custody deaths went unreported to the federal government in 2021 alone.

Texas, which saw at least 95 reported in-custody jail deaths in 2019, has a dark history of disguising deaths in custody and failing to report them, leaving the public and families without answers. Texas Jail Project, a small non-profit largely made up of advocates who have had family members incarcerated in the state’s county jails, has been working tirelessly to find who is missing from the in-custody death reports, and to compel accountability from jails.

About Texas Jail Project

Texas Jail Project, whose work Prison Policy Initiative’s advocacy department is proud to support, is a tiny, women-of-color-led organization whose impact is far larger than its team of four full-time employees. For more than 17 years, Texas Jail Project has worked to inform, educate, empower, and liberate communities and people impacted by incarceration in 244 county jails across the state of Texas. Under the guidance of Executive Director Krish Gundu, their goal is not only to, as one of their clients phrased it, “end the investment in death-making facilities such as jails” but to “redirect that investment into life-affirming” community-based resources. Responsivity to the needs of the community they serve has led them to tackle a wide range of issues from opposing the shackling of pregnant women in jail while giving birth, to advocating for people in jail with disabilities or who have mental health or substance use needs, to providing a wide array of direct aid to individuals in jails and their families. For years, they have also been relentless champions for those whose deaths in Texas’ county jails have gone unreported.

The Problem: A strategic lack of accountability

Although Texas has a detailed statute surrounding the reporting of jail deaths in the state, many deaths in jails go unreported. When the system is working as it should, deaths are supposed to be reported to the Texas Commission on Jail Standards within 24 hours. This triggers a third-party investigation, and a custodial death report from that investigation must be filed with the Attorney General’s Office within 30 days. This process is vital not only for public accountability but for families and loved ones – these reports are sometimes the only source of information about the circumstances of jail deaths.

However, through their work directly with families of people incarcerated in jails, Texas Jail Project learned that this process is not being consistently followed. Although some failures to report are an administrative oversight, not all lack of reporting is accidental. Places like Harris County have a record of issuing personal recognizance bonds to critically ill people in their custody and releasing them shortly before they die to avoid being responsible for their deaths. This practice of issuing “medical bonds” is often a way for jails to get off the hook for the costs associated with treating those who are in their care, and happens in many counties in Texas. Texas Jail Project discovered that in Ellis County, for example, two women had died in a period of just two weeks, both shortly after having been issued medical bonds.

In addition, some counties in Texas regularly ship people in their custody to jails in other states, citing overcrowding concerns. Once there, if the person dies, the jail that sent them will often claim to have no responsibility to report their deaths, as the deceased is no longer in their custody.

How Texas Jail Project is making a difference

Texas Jail Project developed a strategy for finding and correcting failures to report jail deaths. By scouring the list of in-custody deaths submitted to the Texas Commission on Jail Standards and comparing them to the Attorney General’s records, the organization began to identify missing cases. They then issued letters of notification to the jails that had failed to report these deaths, copying both the Commission on Jail Standards and the Attorney General, and citing the jail’s violation of state law. Often, this simple act of notification alone was enough to have the person added to the list and provide families with information they’d been denied. Since 2023, Texas Jail Project has discovered 18 unreported jail deaths and has successfully forced reports to be issued in 14 of them.

In one of these cases, a woman named Ruby McPeters died in Hood County Jail from complications following a C-section she underwent while in custody. Her death went unreported for nearly 5 years due to simple clerical error before Texas Jail Project discovered the omission. After Texas Jail Project contacted the jail, Ms. McPeters was added to the Office of the Attorney General’s list of in-custody deaths that very day. Making sure that deaths like Ms. McPeters’ are reported is vital to exposing medical maltreatment in jails and forcing changes.

The organization has also worked tirelessly to correct the problem of unreported out-of-state deaths. Harris County, for instance, regularly outsources its incarceration to jails in other states, such as LaSalle Parish, Louisiana, and when someone dies while being held there, Harris County has steadfastly refused to acknowledge responsibility for their death. Texas Jail Project is making progress in holding Harris County accountable; The Texas Commission on Jail Standards is holding a session on August 8th and has put the issue on their agenda.

Although reporting requirements for jail deaths vary by state, advocates throughout the country can follow Texas Jail Project’s lead to ensure jail deaths are more consistently and thoroughly reported. The first step is to develop a deep understanding of what the reporting requirements are for jail deaths, and, if there are gaps in that accountability framework, to lobby regulatory bodies and state legislatures to impose additional requirements. When it comes to making sure the laws on the books are actually followed, Texas Jail Project’s work shows how publicly and consistently informing jails of their oversight responsibilities can be highly effective in forcing jails to actually follow the rules.

Deep Impacts

For the family members of those who die in pretrial detention in Texas jails who have sometimes waited years to learn what happened to their loved ones, Texas Jail Project’s work is profound. Lack of transparency can bring a lack of resolution that can devastate families. Krish Gundu recalls one mother whose 32-year-old son died just six days after being arrested during a mental health crisis and who was “stonewalled” for answers for months. “It nearly killed her,” Gundu notes. In another instance, a family member was so visibly upset over the lack of transparency that they were nearly escorted out of a public meeting with the Jail Commissioners before Texas Jail Project intervened. Texas Jail Project not only compels people in positions of power to follow the statutes, but their efforts provide relief for grieving families and ensure people are not forgotten. As Gundu notes, “This is an essential piece of history that needs to be written.”

Learn More

See more of Texas Jail Project’s work and find out how you can support their efforts here.

Visit our work on jails and jail deaths, and resources for advocates in counties considering jail expansion. You can also use our toolkit to learn how to respond when officials try to avoid transparency by citing HIPAA laws and get better information about jail deaths in your county.

Research roundup: Evidence that a single day in jail causes immediate and long-lasting harms

Recent research suggests the onset of pretrial detention’s criminal legal system, social, and economic harms is earlier than previously thought.

by Brian Nam-Sonenstein, August 6, 2024

The criminal legal system views pretrial detention as a necessary sacrifice that prioritizes crime prevention and court attendance over personal liberty. However, detention is demonstrably ineffective on both fronts: when compared to releasing people pretrial, jail counterintuitively worsens these outcomes on day one while making the system decidedly more unjust for those behind bars. These failures come at a steep cost, as detention also immediately disrupts a person’s ability to work and increases their risk of death. Horrendous jail conditions are only partially to blame; on a more basic level, pretrial detention’s disruptive and stigmatizing effects help explain why it fails to live up to its promises, and no amount of newer, nicer jails can change that.

Judges contemplate the risk a person poses to the community if released, but — crucially — not the risk detention poses to individuals and the community. What are the risks of detention, how quickly do they materialize, and what might the system look like if they mattered in bail determinations? To answer these questions, we examined recent studies that measure pretrial detention’s impact on people, particularly within the first 72 hours in jail.¹ Building on our investigations into pretrial detention’s role in destructive cycles of arrest and incarceration, the benefits of pretrial release, and the dangers of jail expansion, we find that there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves and their communities.

As we discuss below, if judges considered these harms and their implications for public safety when deciding whether to initially release or detain people, far fewer people would be jailed pretrial, shrinking the system to a tiny fraction of its current size.

Each day a person spends in pretrial detention was strongly associated with a consistently higher likelihood of a new arrest pending trial compared to those who are not detained.

Pretrial detention doesn’t deter crime or ensure court attendance, but it does undermine basic fairness in the legal process

At arraignment, judges are tasked with quickly deciding whether the defendant is likely to commit a new crime and whether they are likely to return to court if they are released.² However, they do not consider detention’s impact on those outcomes. For many defendants, a judge’s decision to initially detain means they will be forced to remain in jail for the duration of the pretrial period simply because they cannot afford their bail. But roughly two-thirds of people who are initially detained (62%) spend a week or less in jail according to the most recent data available.³ In other words, some people are immediately released while others are initially detained and later released while their trial is still pending. Researchers have compared these two groups to try and measure the impact of decisions to release or detain on public safety and court appearance. In doing so, they have unearthed a baffling contradiction at the core of this routine process: pretrial detention is seen as tough medicine but it is often a completely unnecessary and short-sighted approach to safety and justice — one that can quickly have opposite, unintended effects.

Despite its rationale, pretrial detention does not deter crime

In general, there is no evidence to support detaining people in the name of public safety before they’ve been convicted of a crime. In fact, just a day or two in pretrial detention makes communities less safe. One 2022 study, for example, examined a robust dataset collected from 1.5 million people booked into a Kentucky jail between 2009 and 2018. Researchers found that each day a person spent in pretrial detention was strongly associated with an escalating risk of a new arrest when that person was later released before the end of their trial. After one day in jail, the risk of rearrest was 24%; after the third day, it jumped to 45%, eventually reaching nearly 60% by the 12th day. Other studies with longer timelines produced similar results: researchers investigating Harris County, Texas — home to some of the most sweeping pretrial reforms in recent memory — found that detention increased the number of new charges. Compared to people who had been released, misdemeanor defendants who had been detained for at least a week were charged with 11% more new misdemeanors within a month of their bail hearings.⁴

Consistent with these findings, and contrary to fears that releasing people pretrial will lead to more crime, communities that have reformed their pretrial processes have repeatedly reported successful outcomes. New Jersey, for example, implemented a risk-informed approach to pretrial release and virtually eliminated the use of cash bail in 2017. Serious crime rates fell and the percentage of people arrested for new crimes while awaiting trial only increased by one percentage point. In Illinois, early results indicate re-arrests have not substantially increased for people awaiting trial after the state ended money bond, even as jail populations have declined. Another study examining 421,850 cases from Philadelphia (Pa.) and Miami-Dade (Fla.) counties also concluded release had no detectable effect on new crime in the two years after the initial bail hearing.

There are better ways to ensure court attendance than pretrial detention

It may seem intuitive that short jail stays can “scare someone straight” and deter them from missing court when they’re later released before the end of their trial. But detention does not work this way.⁵ This is because, for the most part, people who miss court are not trying to evade the legal process. On the contrary, when people are jailed, they can lose their housing, jobs, and transportation, making it harder for them to get to court. The same Kentucky study, for example, found that the chances a person would miss court were actually higher for those who were detained: they were 6% more likely to miss court after being held for just one day and 26% more likely after eleven days of detention. Overall, though, the degree of increased risk varied, leading researchers to conclude that detention doesn’t have a consistent relationship with court attendance. Again, we see similar results in other studies examining detention’s impact on court appearance: in New Jersey, court attendance dropped only 3% after the state drastically reduced the use of cash bail. In short, the evidence shows that pretrial detention has no meaningful benefit for court appearances.

Detention is a very blunt tool for ensuring court attendance. There are other, more effective, and less destructive alternatives that directly address the barriers people most often face.⁶ Court reminders, flexible scheduling, transportation and language support services, and simplified court procedures attend to the causes of failure to appear without exposing people to the toxic effects of jail.

Detention undermines fairness in the legal process

Pretrial detention is a source of injustice in the legal process because it puts people under enormous pressure to plead guilty and resolve their cases, regardless of actual guilt or innocence. As a result, people who are detained pretrial are more likely to be sentenced to jail or prison — and receive a longer sentence — than those who are released. The Kentucky study found that people released pretrial were about 25-50% less likely to receive a sentence of incarceration than people who were detained. This dynamic endures even for people who are released pretrial and fail to appear in court or are rearrested — this group still had better case outcomes on average compared to those who were detained. The Philadelphia/Miami-Dade study similarly found release reduced both the likelihood of pleading guilty (by 25%) and conviction (by 24%) compared to the average person in detention.

It’s easy to understand why release leads to better case outcomes: it strengthens defendants’ bargaining positions, particularly for those charged with less serious crimes and who have no prior offenses. The stressful, disruptive, and dangerous experience of detention pressures many people into simply pleading guilty⁷ in hopes that doing so will more quickly end their contact with the system. Furthermore, it is very, very hard to defend oneself from criminal charges while in jail, where it is much harder to contact people who can help. The final analysis is exceedingly grim: the research suggests that pretrial detention fails to produce safety and encourage court attendance at the immense cost of undermining the basic fairness of the criminal legal process.

Part of what makes this all so baffling is that detaining people unnecessarily and subjecting them to the harms of jail degrades their belief in the criminal legal system as a legitimate institution, which studies of “procedural justice” have linked to law-abiding behavior. In other words, when people are treated unjustly by the police or courts, they see less reason to comply with them. Judges and prosecutors may believe detention is a safer choice, even despite the research, but this impulse may actually set off a chain reaction that puts justice further out of reach and makes everyone less safe all at once.

Employment, health, housing, government benefits, and more are jeopardized by detention

Even a day or two in pretrial detention can destabilize a person’s life for years to come, contributing to its counterproductive influence on safety and justice. Courts should consider these outcomes in their pretrial calculus. One study looking at participants in two San Francisco pretrial diversion programs between 2013 and 2018 found that nearly half reported suffering a “material loss” from detention, including legal debt (36%), missed work (40%), lost jobs (18%), and lost property (18%). Focusing specifically on employment, this study suggests that people’s livelihoods are at stake within the first three days behind bars: 7% of people held for just one to three days, and 30% of people held for four to seven days, reported losing their jobs.⁸ Black (64%) and multiracial (50%) workers who missed work due to detention fared the worst, losing jobs more often than white (36%) and Latino (33%) workers because they were held in detention longer on average.

People who were detained, but who had been employed most if not all of their adult lives, were dramatically more likely to lose their jobs due to missing work than those released. This risk only got worse the longer they were in detention.

Even those with strong work histories are no match for the destructive power of pretrial detention. The same study found people who lost their jobs or whose vehicles were seized when they were detained struggled to maintain stable employment, even years later. Twenty-five percent of people with strong work histories who lost their jobs or vehicles while they were detained reported being unemployed immediately after detention and three years later — more than twice the rate of those who didn’t lose their jobs or cars. Black and Latino defendants suffered vehicle loss at disproportionately high rates, further contributing to employment instability.

Regardless of the amount of time spent behind bars, pretrial detention poses other serious threats to people’s livelihoods when they are eventually released. One survey of over 1,500 people arrested and charged in New York City between 2019 and 2021 found:

Lost jobs and barriers to employment. People who have been detained pretrial lose jobs more frequently than those who are released, while also struggling to get new jobs, encountering transportation issues, and contending with more “job issues” like fewer hours, demotions, and lost clients. In particular, detained people were 34% more likely to report that they had job issues than those who were released. Stigma and discrimination against people who have been detained, regardless of whether they had a record of prior convictions, deterred employers from hiring this group. Some people internalized this experience and were discouraged from job-seeking and participating in the labor market at all.

Loss of government benefits and housing. People who are detained pretrial are more likely to lose government benefits than those who are released. Those who were detained were around 30% more likely to lose benefits since their arrest than released respondents. People who were detained were also more than four times (420%) more likely to become unhoused than those who were released.

Pretrial detention raises the risk of death, including suicide, almost immediately upon admission. Twenty percent of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year, and most suicides in jails occurred shortly after entering detention.

Other research shows that pretrial detention can be immediately life-threatening. Suicide becomes a serious risk very quickly: even our nation’s top officials acknowledge that “certain features of the jail environment enhance suicidal behavior.” A recent study estimated that 20% of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year.

For suicide and deaths linked to drugs or alcohol, those first few days in jail are the deadliest. Most suicides in jail occurred shortly after admission: 12% of jail suicides between 2015 and 2019 occurred in the first 24 hours, 44% occurred within the first week, and two-thirds (66%) occurred within the first 30 days of incarceration. From 2000 to 2019, the median time in jail before a drug or alcohol intoxication death was just one day. Jail’s lethality has been trending upward over the years: from 2000 to 2019, the number of jail deaths occurring within the first 7 days of detention rose by nearly 44%.

This growing body of research refutes the rampant myths and fear-mongering that suggest pretrial detention is a bitter pill that is ultimately in everyone’s best interests. They show that even a day or two in jail can cause immense and long-lasting harm — harm that judges tragically and systematically ignore when deciding whether to release or detain someone. If detention’s costs were considered, however, they would almost certainly tip the scales toward release in nearly every case, leading to better public safety outcomes, improved court attendance, a more just legal process, and fewer destructive effects on people’s livelihoods.

If judges considered detention’s risks to our communities, they would detain far fewer people

Under our current system, judges only weigh the government’s interest in public safety and court appearance against an individual’s constitutional right to liberty and due process. In other words, judges are entirely focused on the risks of release and whether they outweigh someone’s right to freedom — ignoring detention’s serious, immediate risks to individuals and public safety.

But what would happen if judges considered the costs of detention more holistically, as anyone facing detention naturally would? Recently, scholars have tackled this exact question in a novel way. In Pretrial Detention and the Value of Liberty, researchers asked survey respondents to compare spending time in jail to being the victim of a crime, to gauge how much future crime would have to be avoided to reasonably justify preventative detention.⁹ They asked questions like, “If you had to choose between spending a month in jail or being the victim of a burglary, which would you choose?” Their results show that people see pretrial detention as an extremely bad experience:¹⁰ Most said that spending just one day in jail would be as bad as being the victim of a burglary, and a month would be as bad as an aggravated assault.¹¹ This finding held across subgroups, including those who have experienced victimization and incarceration, and across racial and ethnic groups.¹²

The results show that the public has a much higher risk threshold for detention than courts do. If it were up to a typical respondent, even a day of pretrial detention would only be justified on public safety grounds if the defendant was virtually certain to commit a serious crime if released. In reality, even people considered to pose the highest risk of committing a violent offense if released (according to a risk assessment tool) have a relatively low risk of rearrest.¹³ By this study’s measure, then, detaining even the “highest risk” defendants would prevent too little crime to justify the immense human cost of detention. If courts also recognized that the harms are so severe that detention can rarely be justified, and other, less costly alternatives are available, society’s current investment in pretrial detention would make a lot less sense.

There are better alternatives for public safety than pretrial detention

As argued earlier in this briefing, judges are generally absolved of having to consider the dangers posed by detaining people. That’s awfully convenient because, from the perspective of prosecutors and judges — largely elected officials whose own statuses are at stake when they make decisions — the risks of releasing the “wrong person” far outweigh those of detaining the “wrong person.” If the dangers of even a few days in detention were part of the cost-benefit analysis, however, this tradeoff would be far less of a commonsense slam dunk.

Given the immediate, long-lasting, and sometimes irreversible harms of pretrial detention, reforms that prevent as many people as possible, as early as possible, from being detained can have significant, positive downstream effects on public safety. Such reforms include:

• Creating diversion opportunities at multiple points in the legal process, especially before and directly after arrest;
• Ending cash bail;
• Providing public defenders at first court appearance to ensure people’s unique circumstances are communicated to decision-makers;
• Developing more robust, voluntary, community-based pretrial supports that help people navigating the system; and
• Encouraging judges and prosecutors to be less punitive by educating them on the risks of pretrial detention, carefully and publicly monitoring their decision-making, and removing judges and prosecutors who continue to overuse pretrial detention.

Interventions earlier in the legal process can also make a meaningful difference by heading off the risk of detention from the start — especially interventions that reduce the frequency and seriousness of police contact and prevent jail capacity from expanding. These include:

• Reducing police contact and reclassifying offenses and how they’re treated, such as reducing misdemeanors to non-jailable infractions and implementing a presumption of citation in lieu of arrest;
• Reducing reliance on pretrial detention by limiting jail capacity. This can be done by, for example, preventing the construction of new jails and ending bedspace rental (which increases demand beyond pretrial detention and fuels jail growth); and
• Decriminalizing drugs, poverty, sex work, and homelessness.

Taking risks to public safety seriously requires an accounting of the harms of detention. The data show that jurisdictions can much more heavily favor release without sacrificing public safety and may be more likely to improve safety over the status quo by doing so. The logic of pretrial detention does not stand up to scrutiny, and its mythical power to protect public safety should be abandoned in favor of less harmful alternatives.