Earlier this month, President Biden signed the Martha Wright-Reed Just and Reasonable Communications Act of 2022, a bill that we and other advocates for prison phone justice have been supporting for years. Below, we explain what the new law accomplishes and what comes next. While the fight for phone justice is far from over, the bill empowers the Federal Communications Commission to take major steps to bring down communication costs for incarcerated people and their families — and the FCC has indicated that it plans to do so soon.
What does the new law do?
The Martha Wright-Reed Act accomplishes two main things: It clarifies the FCC’s authority to regulate in-state calls placed from correctional facilities, as well as clarifying the agency’s authority to regulate video calls.
For context: The FCC has successfully imposed caps on rates for out-of-state calls from prisons and jails, but not in-state calls. After the agency created regulations in 2015 that lowered the cost of both in-state and out-of-state calls, telecom corporations sued the regulator, and a federal court ultimately ruled that the FCC exceeded its legal authority in capping in-state calls. Since then, the FCC has made no attempt to cap in-state phone rates.
Most incarcerated people today who call loved ones in the same state are likely charged rates similar to out-of-state rates (or just charged the out-of-state rate), as we explain in our recent report State of Phone Justice 2022. But some are charged much higher rates. The Martha Wright-Reed Act will allow the FCC to bring relief to this minority of people still paying higher in-state rates, and protect all people in jail and their families from future attempts by the telecom industry to block regulation.
The Act also clarifies the FCC’s jurisdiction over video calling costs. We and others have long argued to the FCC — over a flood of misinformation from prison telecom companies — that the agency has the authority to regulate the exorbitant cost of video calls behind bars. But the agency has not taken action so far.
Video calls are especially important to regulate, because the companies rapidly pivoted to this technology when the FCC began to restrict what could be charged for phone calls. As a result, video calling rates are much higher than phone rates today. In a four-state survey for State of Phone Justice 2022, we found that families of people in prisons and jails are paying as much as $8 to make a 20-minute video call, for a much lower-quality version of the technology that most people today are able to use for free. Even worse, jails and companies often use video technology as a pretext for eliminating or curtailing in-person family visits, as we exposed in our 2015 report Screening Out Family Time. The new law empowers the FCC to cap the amount that companies can charge for video calls, which will make these harmful contracts less attractive to jails.
When will the law be implemented, and how?
While we don’t know exactly when the FCC will take action to implement the Martha Wright-Reed Act, the law requires the FCC to promulgate regulations “not earlier than 18 months and not later than 24 months after the date of enactment of this Act” — in other words, sometime in the latter half of 2024. In a press release, FCC Chairwoman Jessica Rosenworcel committed to “expeditiously move new rules forward” in light of the bill’s passage.
The FCC already has all the data it needs to begin setting “just and reasonable rates” as soon as the law allows. In 2021, the agency collected rate data from every phone company serving prisons and jails. That data is still current enough for the FCC to use it to set new rate caps that apply to in-state as well as out-of-state calls. (We offer a few more recommendations to the FCC in State of Phone Justice 2022.) Additionally, while data about video calling rates is spotty and hard to come by, there is still plenty of information already in the record that the FCC can use to put initial price caps in place. In fact, there is precedent for doing so: When the agency took steps to rein in the cost of phone calls in 2015, it relied on similarly incomplete data to set initial rates and then revised those rates as it gathered more information. The agency should replicate that successful process now to provide the quickest relief possible to incarcerated people and their families. As the agency gathers more data, it can and should take more fine-tuned action to rein in exorbitant video calling rates.
Is the fight for phone justice over?
In a word: No. The cost of phone and video calls in almost all jails and many state prisons is still way too high, and even when the FCC implements the new law, there is no guarantee that the agency will set caps as low as it should.
One piece of important good news: The phone rate caps that the FCC has set so far (and will set going forward) don’t preempt states that want to pass laws setting even tighter caps. Illinois, for example, capped phone rates from prisons at 7¢ per minute for prisons, and New Jersey capped rates from prisons and jails at 11¢ per minute.
Rather than wait on FCC action, state legislatures should act now to bring down phone and video calling rates to a few cents a minute, or follow the example of California and Connecticut by just making calls free.
In the meantime, even as voice and video calling regulations become stronger, the corporations that dominate the industry are expanding telecom exploitation. Companies are working hard to evade regulation by growing the number of “services” they offer to prisons and jails. People desperate to stay in touch with their incarcerated parents, kids, and other loved ones as much as possible are being squeezed by companies for electronic messaging as well as phone calls and video, and stricter policies around mail and in-person visits are pushing them towards these more convenient, but also more expensive, options. State legislators and regulators should act to make sure that telecom companies are not able to simply replace one exploitative service with another.
The Martha Wright-Reed Act is an important step forward in the fight for prison and jail phone justice, but it doesn’t guarantee effective action at the FCC; nor does it spell the end of this movement. Prisons and jails are still charging exorbitant rates for phone calls, while implementing many other “services” that fleece poor families desperate to stay in touch.
The FCC must act swiftly and set bold caps on both phone and video calls, to ensure that families never again pay hundreds of dollars a month to stay connected to a single loved one. State and municipal governments, meanwhile, should not rest on their laurels. If anything, policymakers, regulators and legislators should recommit themselves to the fight against these exploitative companies. After all, at a time when the price of a phone call outside the walls of a prison or jail is approaching zero, you can’t help but ask yourself, “why are incarcerated people and their families being charged for calls at all?”
Medicare expands enrollment periods for people released from prison after January 1, 2023, but offers no relief for people who have been paying premiums for zero Medicare benefits while incarcerated, nor for those released before 2023 who signed up late and are stuck paying jacked-up premiums for the rest of their life.
As the prison population in the United States gets older, more and more incarcerated people have faced an expensive and unenviable choice when it comes to Medicare: pay for coverage you couldn’t use or afford, or pay increasingly higher premiums for the rest of your life once you were released. People incarcerated when they initially become eligible for Medicare — the national health insurance program for people 65 and older and some younger people with certain disability statuses1 — were expected to enroll and pay monthly premiums without access to any Medicare benefits or coverage. This rule has changed, but formerly incarcerated people released from prison prior to 2023 are left out of this reform and are expected to keep paying penalty fees for not signing up for Part B before release.
While the change marks an important shift in Medicare policy, it does nothing to alleviate the financial stress placed on formerly incarcerated people who are already being charged higher premiums. As one woman whose husband has been struggling with the implications of this unfair policy for years recently told us:
“My husband turned 65 while incarcerated with a long sentence. He signed up as required for Medicare Part A but when he signed up as required for Medicare Part B, he learned he was going to be charged a premium of $135 per month, even while incarcerated and earning just $20 per month. He disenrolled from Part B due to lack of funds. When he was released years later and tried to re-enroll in Part B, he was charged a penaltythat would raise his premiums for the rest of his life – by about $50 per month –because he did not enroll at age 65. The penalty is waived for people who were covered by another group health insurance plan, but apparently, prison medical services don’t count.”
This past November, the Centers for Medicare and Medicaid (CMS) fixed this policy problem — effective January 1, 2023 — to create a Special Enrollment Period for recently released, formerly incarcerated people. The creation of a Special Enrollment Period allows formerly incarcerated people to enroll in Medicare in the 12 months following their release without facing any financial penalties for late enrollment. This is undoubtedly a good change, but it is not retroactive: as written, this policy only applies to people released from prison after January 1, 2023.
Because the letter writer’s husband was released a few years prior to this policy change, he will likely be stuck paying surcharged monthly premiums for his Medicare Part B coverage for the rest of his life. He is one of thousands of individuals released over the years who have found themselves, without warning, charged Medicare premium penalties in perpetuity because they didn’t sign up for a benefit they could neither use nor afford while incarcerated. For advocates and policymakers looking for an impactful way to reduce the collateral consequences of conviction and incarceration, particularly those that impact vulnerable populations like the elderly and disabled, this briefing provides the details you need to know to take action.
For currently incarcerated people and their loved ones: What you need to know
The following information outlines what we know about Medicare enrollment for people released from incarceration after January 1, 2023.
First, you no longer need to enroll in Medicare Part B from prison, even if you first become eligible while incarcerated. Instead, you will have a Special Enrollment Period that starts the day of release and lasts for 12 months, during which you will need to enroll in Part B to avoid a late enrollment penalty. Generally, Medicare coverage will start the first day of the month following enrollment. You will not be assessed a late enrollment penalty when you sign up during the Special Enrollment Period.
Second, if you are currently enrolled in Medicare Part B, you can contact Medicare to disenroll from Part B coverage, since you can’t use it while incarcerated anyway. When you are released, you should re-enroll during the Special Enrollment Period.
Third, if you enroll in the first six months of the Special Enrollment Period (i.e., within six months of release), your coverage can be retroactive to the date of release. And if you enroll in the last six months of the Special Enrollment Period, it can be retroactive to six months after your release.
Finally, and unfortunately, there is currently no way to request repayment for premiums or penalties that you’ve already paid.
Medicare policies prior to the rule change
Medicare Part A is health insurance that covers hospitalizations and usually has no monthly premiums. Medicare Part B covers non-hospital medical care and requires beneficiaries to pay a monthly premium. The lowest monthly premium changes annually: in 2022, the lowest Part B premium was $170.10 per month and in 2023, the lowest Part B premium will be $164.90 per month. For most Medicare beneficiaries, the Part B premium is paid out of their Social Security payments.
Incarcerated people have historically been expected to enroll in Medicare Part A and Part B when they become eligible, usually when they turn 65 years old. This means that incarcerated people over 65 were expected to cover their monthly Part B premiums even though Medicare does not provide coverage for any healthcare services provided in prison2 and Social Security payments are suspended for the duration of their imprisonment. How and why the federal government expected incarcerated people to pay for Medicare that provides no benefits in prison — while withholding the usual means of paying for it (Social Security) — defied all logic. The penalties charged in perpetuity to people who enrolled late because of these policies are a further irrational injustice.
Additional penalties for the incarcerated and formerly incarcerated prior to the rule change
Most people in prison can not afford to pay the monthly premiums for Part B coverage while incarcerated. In the case of our letter writer, her husband was expected to pay $130 per month for Medicare Part B despite his only income being the $20 per month he made working in prison. This was likely the case for most incarcerated people. In our 2017 survey of prison wages, we found that the average wages for an incarcerated person ranges from $0.14 to $1.41 per hour, leaving people in prison with no way to make enough money to pay monthly Medicare premiums.
When people eligible for Medicare are returning to their communities, medical care needs to be accessible and affordable, but if they haven’t been able to afford monthly premiums during their incarceration, the monthly premiums after their release — and for the rest of their lives — will be even higher. This is no way to set already-vulnerable people up for success during reentry.
New Medicare rules for formerly incarcerated people
For people released from prison after January 1, 2023, there are new Medicare enrollment rules that create a 12-month Special Enrollment Period during which recently released people can enroll in Medicare Part A and Part B without any financial penalties for late enrollment (known as “late enrollment penalties” or “LEPs”) due to incarceration. While we applaud this policy change, we are left wondering about the tens of thousands of people released from prison before January 1, 2023. The Centers for Medicare and Medicaid Services (CMS) said that it “does not have the authority” to waive LEPs paid in the past or currently being paid by formerly incarcerated people, because “LEPs are governed by statute.”5
It is unreasonable to expect incarcerated people to be able to pay premiums while incarcerated or to afford surcharged monthly payments after their release, and the regulation changes reflect some understanding of this fact. The next step needed is to apply this same understanding to all formerly incarcerated people, not just those released after 2022. Members of Congress and advocates, take note!
Reforms should cover all people released from prison
The failure to apply these changes to people released from prison before January 1, 2023 inflicts real and lasting financial burdens — and healthrisks — on them and their families. The man whose wife wrote to us was expected to pay at least6 $1,600 a year in Medicare Part B premiums while earning just $240 per year — for benefits he could not even access while he was incarcerated. The alternative — not enrolling until release, and then paying a permanent late enrollment penalty — is no better. If he had been released in January 2022 at age 70 and immediately re-enrolled after disenrolling from Part B at 65, he would have been expected to pay at least7 $2,970 in premiums (including a penalty of a 50% surcharge each month) every year for the rest of his life. Meanwhile, a low-income person who was never incarcerated during their Medicare-eligible years and never disenrolled from Part B would be paying less than $1,980 per year for the same level of coverage. Formerly incarcerated people who were released prior to 2023 should not be forced to pay significantly higher monthly premiums simply because of their release date: this is not only unfair, but counterproductive when it comes to supporting low-income older adults and their reentry success. Congress should take immediate action to make these common-sense changes retroactive.
Medicare is for people 65 years and older, but people with a disability, end-stage renal disease, or ALS may be eligible for Medicare coverage before they are 65 years old. ↩
Medicare Part A may cover community hospitalizations over 24 hours, but not any other medical care provided while in prison. According to the Centers for Medicare and Medicaid Services (CMS), Medicare “generally won’t pay for medical items and services provided to a patient who [is] incarcerated or in custody at the time items and services are provided.” CMS cites regulations stating that Medicare will not cover the following:
Services provided to a patient who has no legal obligation to pay for the service and no other person or organization has a legal obligation to provide or pay for the service (42 C.F.R. § 411.4);
Services provided by a federal service provider or other federal agency (42 C.F.R. § 411.6); or,
This is the 2022 Part B premium, but the premiums change annually, so this is an estimate. ↩
CMS stated, “This suggestion is outside the scope of this rulemaking, and CMS does not have the authority to unilaterally waive LEPs that were paid in the past or are currently part of an individual’s Medicare premium(s) as the LEPs are governed by statute.” CMS went on to state that, while they have the authority to establish a Special Enrollment Period and to provide that those who enroll during this period are not subject to LEPs, those who are being charged LEPs because they registered before the Special Enrollment Period existed (that is, before January 1, 2023) are required to pay LEPs under federal law. CMS does not have the “authority to unilaterally waive” these financial penalties. ↩
New survey data from the Bureau of Justice Statistics on police interactions in 2019 and 2020 provide the broadest look at relations between police officers and the public. The findings leave a lot to be desired (as they’re primarily pre-pandemic), but the message is clear: police are still a massive presence in our communities, and they don’t always provide the solutions and safety we need.
At a time when the public desperately needs accurate, comprehensive data about how the police interface with people in the United States, the Bureau of Justice Statistics has released a new report based on a 2020 survey about interactions between police and the public. Despite a seemingly smaller “footprint” of police interactions in the community that year — fewer people came into contact with police overall — those interactions were still too often racially discriminatory and too often involved improper or harmful conduct.1
You might expect that this survey would tell us about the state of policing amidst the deep social unrest caused by the COVID-19 pandemic and a number of high-profile police killings. Unfortunately, the survey was conducted between January and June of 2020, so many of the responses actually refer to experiences with police in 2019 and in the earliest months of 2020.2 And while the Bureau of Justice Statistics did thoughtfully document certain changes driven by the COVID-19 pandemic in other data collections,3 the police contact survey results fail to provide the public with critical and timely information about how policing changed — or didn’t change — in 2020, particularly during the nationwide reckoning with racialized police violence after the death of George Floyd. Still, some of the findings got our attention.
Of people surveyed4 between January and June of 2020 about their recent experiences with police:
More than 1 in 5 people reported coming into contact with police in the past 12 months. About half of all police contacts were initiated by residents who reached out to the police to report a crime, seek help, or for another reason; the other half were initiated by police, through traffic stops or otherwise approaching or arresting someone. Police actually had less contact with the public in 2020 than in 2018 (the last time this survey was administered), but that is unsurprising given the pandemic-related lockdowns in early 2020.5
Racial disparities in policing persist, particularly in the threat or use of force. Only 2% of people who had any contact with police experienced the nonfatal threat or use of force6 by police in the past year, but this aggression fell disproportionately on Black, Hispanic, and “Other” (non-Asian, non-white) people. Black people were also nearly 12 times more likely than white people to report that their most recent police contact involved misconduct, such as using racial slurs or otherwise exhibiting bias.
During traffic stops, Black and Hispanic people were the most likely groups to experience a search or arrest. Meanwhile, white people were the least likely to receive a ticket and the most likely just to get off with a warning during a traffic stop. The immense discretion — and lack of accountability — police have when making traffic stops leaves too much room for racially biased questioning and enforcement.7
Older people are vulnerable to harmful interactions with police. More than 1 in 7 people age 65 or older reported police contact, and the number of older people experiencing the threat or use of force nearly doubled between 2018 and 2020.8 Meanwhile, the number of people experiencing force declined among all other age groups. Other data show that arrests of people 65 and older have increased over the past decades, too, unlike overall arrests.9 These concerning trends should spark urgent conversations about the role and training of police when it comes to aging populations.
More and more, police are threatening or using force against women. Women accounted for an alarming 31% of all people experiencing the threat or use of force by police, and over half of women (51%) who experienced threat or use of force in their most recent police interaction reported that such conduct by police was “excessive,” a result which is up a significant 8 percentage points from the last survey in 2018. These findings raise the obvious question: Why are women increasingly targeted by police hostility while men’s police encounters, including arrests, continue to plummet?10
Police act “properly” most of the time, but do they provide solutions to people needing help? Of those who initiated contact with police, most (91%) perceived the police as behaving properly when they showed up, and most (93%) were at least equally likely to contact police in the future, varying little by sex, race and ethnicity, or age. But over a third of people (36%) who contacted police for help felt that the police response didn’t improve their situation. The fact that most people would contact police in the future even when they haven’t been helpful in the past is a clear indication of our dependence on police, and the need for alternatives to policing.
Additional context: Data on law enforcement staffing levels in 2020
The Bureau of Justice Statistics also released a number of publications based on regular administrative surveys of law enforcement personnel. These staffing surveys, unlike the Police-Public Contact Survey, actually cover the full calendar year for 2020, when policing was central to national conversations about safety and social justice.
If there’s one timely thing to come out of this recent wave of data, it’s that police were not “defunded” in 2020 — since 2016, the number of full-time staff has barely changed in local police departments (down one-tenth of one percent), and has even slightly increased in sheriff’s offices and federal agencies employing law enforcement. This finding tracks with reports of stagnant or increasedbudgets in the 2021-22 fiscal year in many police departments nationwide, including 34 of the largest 50 U.S. cities.
Sheriffs and police chiefs also continue to be overwhelmingly white (87% each) and male (99% of sheriffs and 96% of police chiefs). If law enforcement agencies continue to operate at current scales without leadership or staff that actually represent the diversity of their communities, how can they hope to equitably protect and serve those communities?
The results of the 2020 Police-Public Contact Survey and other staffing surveys only scratch the surface of how police function in our communities (for example, the data don’t tell us about police contact by sex and race or ethnicity, obscuring the experiences of women of color and of LGBT people with police), let alone how police interactions shifted throughout the tumultuous first year of the COVID-19 pandemic. Still, these data are essential to assessing whether on-the-ground police interactions are actually happening at a scale that is appropriate, and with outcomes that are safe and appropriate, for issues that actually require police. For many people engaged in the reimagining of public safety, police should have a greatly reduced role in areas like traffic safety and crisis response.
Hopefully, future versions of this survey will help paint a clearer picture of how policing has evolved over the past two years and how advocates and lawmakers can continue to push for change, like halting the overuse of police and jails to respond to the needs of people with economic disadvantages or health needs. As the data show, we’ve yet to see meaningful shifts in policing institutions.
The Police-Public Contact Survey (PPCS), which is a supplement to the more widely-known National Crime Victimization Survey (NCVS), followed up with respondents age 16 and older (while the NCVS starts at 12 years old) and asked questions about non-fatal contact with police in the 12 months prior to the interview. ↩
Compared to 2018, in 2020 there were about 1 million fewer traffic accidents with a police response, 2.7 million fewer traffic stops reported, and almost 1.5 million fewer street stops and approaches. ↩
In this survey, nonfatal force refers to being handcuffed, pushed or grabbed, hit or kicked, used chemical or pepper spray on, used an electroshock weapon on, pointed or fired a gun at, or used some other type of physical force on. ↩
For more policy context on “pretextual traffic stops” — when a police officer pulls someone over for a minor violation and uses the stop to investigate an unrelated criminal offense — see this publication from the Pew Research Center. ↩
In 2018, there were 35,200 instances of a threat or use of nonfatal force during a police interaction with someone age 65 or older; in 2020, there were 69,200, a 97% increase. ↩
According to analysis of government data by The Marshall Project, there were 30% more arrests of people 65 or older in 2020 than in 2000, while there were 40% fewer total arrests in 2020 than in 2000. ↩
For example, men’s arrest rates fell by 43% between 1980 and 2019, while women’s arrest rates increased by 19% over the same time period, according to arrest data collected by the Federal Bureau of Investigation (for 1980-2014 and for 2015 onward). ↩
Didn’t catch everything we published in 2022? We’ve curated a list of some of our best work from this year below. From a deep dive into how the bail industry exploits the legal system and deceives the public, to an extensive database showing where people in state prisons come from, to new tools for advocates, here are the highlights of our recent work:
Our annual Whole Pie report returned in 2022, after pandemic-related data problems forced us to cancel it last year. The report compiles national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — two years after the COVID-19 pandemic began. It explains how the pandemic has impacted prison and jail populations, and pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.
Our report exposes how commercial bail companies and their deep-pocketed insurance underwriters almost always avoid accountability when they fail to do their one job: ensure their clients’ appearance in court. We explain how the bail industry exploits — and works to expand — six loopholes in the system that allow it to avoid paying up when defendants don’t show up. The report reveals the money bail system is not only cruel to defendants — as our 2016 report Detaining the Poor showed — it is also corrupt beyond repair.
In a groundbreaking report series, we used a new Bureau of Justice Statistics dataset to provide a demographic picture of the 1 million people in state prisons today. The first report in this series, Beyond the Count, shows that the national prison population comprises people struggling with poverty, substance use disorder, and housing insecurity, people who have been marginalized throughout their lives. (For instance, 38% of people in state prison were arrested for the first time before they were 16 years old.) The data show that not only does this country allow millions of children to grow up in poverty, but many of those children grow up to fill state prisons.
This national report offers the most recent data on the health of people in U.S. state prisons, showing that prisons continue to ignore the plight of people in their care. People in prison suffer from several chronic illnesses and infectious diseases at disproportionate rates — such as hepatitis C, HIV, and mental illness — and prisons fail to get many people the treatment they need. 50% of incarcerated people also lacked health insurance before prison, underscoring the reality that our criminal justice system punishes poverty.
In the 13 states where the fall of Roe is expected to lead to abortion bans (or already has), a total of 216,000 women are on probation or parole. In a short but impactful briefing, we explain why these women are especially affected when states outlaw abortion: Supervision often comes with a ban on out-of-state travel, extending complete state control over someone’s right to choose.
What communities do people who are incarcerated come from? It’s a simple question with huge implications, and one that, until recently, was impossible to explore. However, thanks to recent reforms to end prison gerrymandering in more than a dozen states, the data is finally available to answer it. We published datasets showing where people in 12 state prison systems come from, down to the county, city, and — in many cases — neighborhood level. We made the data sets publicly available online so that other researchers can use them to better understand how mass incarceration harms communities and correlates with other measures of community well-being.
How much should it cost to stay in touch with Mom or Dad when they’re locked up? We built a nationwide database of the (often exorbitant) phone rates in 50 state prison systems, as well as thousands of local jails and other detention facilities of various types. Our data show that while some jails and their phone companies provide calls for as low as 1 or 2 cents a minute, the vast majority charge 10 times that amount or more. Working-class families’ phone call costs are lining the pockets of corporations and boosting jail revenue, and even as regulators and legislators make attempts at reform, companies are finding new ways to price-gouge consumers.
In the last 5 years, prisons in at least 14 states have replaced physical mail sent to incarcerated people with scans, we explained in a short report. The same companies that sell phone services to jails are also encouraging prison and jail systems to ban mail, claiming that it will deter dangerous “contraband” from coming in. But there’s no evidence that this policy — which has a chilling effect on family communication and therefore, quite probably, a negative effect on people’s ability to succeed after prison — does anything to make incarcerated people safer.
We’re continuing our work showing how states — often at the encouragement of private companies — look for ways to punish incarcerated people even after their sentence is over. This briefing exposes how prisons and jails are increasingly disbursing the tiny amounts of money people are owed when they’re released via prepaid debit cards. The cards, managed by companies that profit off incarceration, are riddled with fees for everything from checking your balance to making a purchase. Rather than helping people rebuild their lives post-release, these companies are sapping people of the little money they have.
Prisons and jails routinely contract with private companies to provide services, such as phone calls, money transfers, commissary, and release cards. Through our work to expose the worst practices in this industry, we’ve developed a large database of contracts and other documents that spell out the terms of the agreements governments have with these companies. For the first time ever, we’ve put these documents together in one place so researchers, activists, policymakers, and journalists can build upon our work to expose the harms of mass incarceration.
Our work is far from over, though. We’ve got big things planned in 2023, when we’ll continue to expose the ways mass incarceration has failed and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.
We’re excited to welcome Danielle Squillante, who will serve as our new Development and Communications Associate. In this role, she’ll handle the day-to-day fundraising activities for the organization and help it reach new audiences with its work.
She previously worked for ROCA in Springfield, Mass. as a program manager and education support specialist. Danielle is also a former public school teacher. She has a master’s degree from Mount Holyoke College and a bachelor’s degree from Hampshire College.
The gap in healthcare coverage following incarceration leads to high rates of death just after release: During just the first two weeks after release from prison, people leaving custody face a risk of death more than 12 times higher than that of the general U.S. population, with disproportionately high rates of deaths from drug overdose and illness. A huge contributing factor to this astronomically high death rate following release is the healthcare coverage gap: People lose health insurance coverage while in jail or prison and their lack of coverage continues post-release, leaving many without access to adequate, timely, and appropriate health care in those critical first weeks of reentry.
Fortunately, we have a way to address this healthcare coverage gap, and to improve the health and safety of our communities in general: Medicaid. Research shows that expanding access to healthcare through Medicaid saves lives and reduces crime and arrest rates — along with state spending — making this a reform strategy whose time has come.
How Medicaid’s “inmate exclusion policy” leaves formerly incarcerated people without healthcare
The “inmate exclusion policy” also impacts people jailed pretrial
Excluding pretrial detainees from Medicaid is unfair and dangerous.
The exclusion of incarcerated people from accessing Medicaid coverage does not only apply to people who have been convicted and sentenced, it also applies to people held pretrial who have not been convicted and denies legally innocent people the federal benefits they would otherwise be entitled to, were they not in jail.
People unable to afford bail lose their healthcare coverage, while those who can afford bail remain eligible for Medicaid. People detained in jail pretrial who are unable to afford bail lose their federal health benefits, while people who are released pretrial (because they can afford their bail) do not lose their coverage. Ultimately, this policy puts some of the country’s most vulnerable people – people in poverty, who would likely benefit the most from Medicaid coverage – in a position where they are facing the dangerous healthcare coverage gap upon release from jail until they are able to re-enroll in Medicaid.
When Medicaid was authorized in 1965, the “inmate exclusion policy” was established to prevent state and local governments from receiving matching federal funds to cover the healthcare costs of people in state prisons and local jails. This policy leaves state and local governments solely responsible for financing the healthcare of incarcerated people,1 even when those people were covered by Medicaid prior to their incarceration. This means that in most states, Medicaid coverage is terminated when someone is incarcerated.2
The Center for Medicare and Medicaid Services (the federal agency responsible for Medicare and Medicaid) has advocated that people be returned to the Medicaid eligibility rolls “immediately upon release from a correctional facility,” and has even provided resources to correctional systems, probation officers, and parole officers to help make this happen. Nevertheless, as things stand now – despite most people being financially eligible for Medicaid upon release – connecting with appropriate healthcare providers and reapplying for Medicaid is no easy feat for people going through reentry, leaving too many medically vulnerable and disconnected from healthcare services in the community.
Most incarcerated and formerly incarcerated people are probably eligible for Medicaid
In all states, Medicaid provides health coverage for low-income people who qualify based on income, household size, disability status, and a handful of other factors. Most people in contact with the criminal legal system are likely eligible for Medicaid: People in prisons and jails are among the poorest in the country and have high rates of disabilities, making them likely eligible for Medicaid in almost every state. People in contact with the criminal legal system have drastically lower pre-incarceration incomes than people who are never incarcerated. In fact, 32% of people in state prisons in 2016 who had insurance at the time of their arrest were covered by Medicaid (compared to about 19% of insured people nationwide). As an additional indicator of need among this population, 50% of people in state prisons were uninsured at the time of arrest.
Formerly incarcerated people face low incomes and high rates of unemployment, meaning that they too are likely to be eligible for Medicaid, especially in states where Medicaid eligibility is based solely on income. After incarceration, people experience unemployment at high rates and report low incomes. Formerly incarcerated people are unemployed at a rate of over 27%, which is higher than the total U.S. employment rate during any historical period, including the Great Depression. When formerly incarcerated people do land jobs, they are often the most insecure and lowest-paying positions: the majority of employed people recently released from prison receive an income that puts them well below the poverty line.
Excluding justice-involved people from Medicaid can be lethal
The risk of death is particularly high in the first two weeks following release from prison (12 times higher than the general population), but the lethal consequences of incarceration continue beyond these first two weeks. A 2021 study found that high county jail incarceration rates are associated with high mortality rates, but most acutely with deaths by infectious disease, respiratory disease, drug overdose, suicide, and heart disease. In 2019, a study of people released from North Carolina prisons found that people who spent any time in solitary confinement4 were 24% more likely to die in the first year after release (with an extraordinarily high risk of death from opioid overdose in the first two weeks after release). Another study found that people in their sample who were released from prison were twice as likely to die within 30 days and 90 days of release than those who were not incarcerated.
Many of these deaths following release are preventable with appropriate medical, mental health, and substance use interventions, which usually require health insurance. But because people are released from prisons and jails without insurance, they are less likely to receive the necessary interventions upon release. Uninsured people are less likely to seek medical care (because of the financial costs), and when they do seek out care, the care is likely of poor quality or too late, resulting in worse health outcomes and higher rates of death when compared to insured people.
How states can reform Medicaid to cover people leaving prison
A number of states have utilized Medicaid to start to bridge the healthcare coverage gap, and there are encouraging results. Given that some of the predominant healthcare-related concerns among recently-released people include lack of insurance and difficulty accessing care and medication, bridging this gap is a crucial step to mitigating the harms caused by barriers to healthcare services.
Enroll people in Medicaid before their release from prison
Oklahoma began a program in 2007 to help people in prison with severe mental illness apply for Medicaid benefits during their final months in prison. This program had quick results: after one year, the share of people who were enrolled in Medicaid on their day of release increased by 28 percentage points.
A 2022 study of Louisiana’s Prerelease Medicaid Enrollment Program found that there was a 34.3 percentage point increase in Medicaid enrollment, and of those who were successfully enrolled before release, 98.6% had attended at least one outpatient visit within the first 6 months of release. These findings – along with similar programs in other states – suggest that pre-release Medicaid enrollment programs are a relatively simple way to connect people to necessary healthcare services and bridge the healthcare coverage gap.
In Connecticut and Massachusetts, there are statewide programs that enroll all Medicaid-eligible people who are being released from prison to parole. While incarcerated and waiting for their release date, incarcerated people work with “discharge planners” in correctional facilities to complete and submit Medicaid applications that are then held by the state’s Medicaid agency until they are released on parole. In Massachusetts, the state reports that 90% of people released to parole are covered by Medicaid upon their release.
Suspend – rather than terminating – Medicaid coverage for incarcerated people
In twelve states,5Medicaid coverage is suspended – rather than terminated – when someone is incarcerated in state prison, which makes the process of reinstating Medicaid coverage upon release much simpler and avoids the need for “discharge planners” to help with applications or make other arrangements. In Maricopa County, Arizona, an agreement with the state Medicaid agency allows Medicaid eligibility to be suspended – not terminated – upon jail incarceration in the county.
Request federal Medicaid waivers
States can petition the U.S. Department of Health and Human Services to waive federal guidelines6 to allow states to trial new approaches and pilot new policies.7 At least nine states – Arizona, California, Kentucky, Massachusetts, Montana, New Jersey, Oregon, Utah, and Vermont – have submitted requests for waivers to modify the “inmate exclusion policy” and allow for coverage of certain health services provided pre-release. The proposals vary in what incarcerated populations they are seeking eligibility for, what services they would like to be Medicaid-eligible prior to release, and when coverage would be offered. Some states are seeking eligibility for a specific group of incarcerated people, such as four behavioral health case management visits for those with behavioral health diagnoses (New Jersey) or specific substance use disorder treatment services for incarcerated people with substance use disorders (Kentucky). Other states are seeking the full set of Medicaid benefits for incarcerated people with chronic conditions (Massachusetts) or for all incarcerated people (Utah). As of March 2022, the Center for Medicare and Medicaid Services (CMS) had not yet issued decisions on any of these proposals.
A bill in Congress would allow Medicaid coverage for people leaving prison or jail
In 2021, members of the House of Representatives introduced the Medicaid Reentry Act. This bill would allow Medicaid coverage to begin 30 days before people are released from prisons or jails, allowing medical services during that time period to be covered by Medicaid and for people to be insured the moment they are released from the facility. Legislation like this would vastly expand access to healthcare after incarceration, closing the dangerous healthcare coverage gap and thereby reducing the preventable deaths and health problems that occur in the immediate post-release period.
Other benefits of closing the healthcare coverage gap
The effects of bridging the healthcare coverage gap are far more expansive than one might expect. Increasing access to healthcare appears to have significant effects on reducing arrests, crime rates, criminal-legal system involvement, recidivism, and state expenditures.
Reducing arrests and lowering crime rates
In states with Medicaid expansion (i.e., where eligibility is based solely on income), there have been correlated reductions in crime rates and arrests. Compared to counties in states that had not implemented expanded Medicaid coverage, counties in states with Medicaid expansion saw a 25% decrease in drug arrests, a 19% decrease in “violent offense” arrests, and a 24% decrease in “low-level” offense arrests.8 Looking at more specific types of crimes, researchers also found a 3.7% to 7.5% decrease in burglary, motor vehicle theft, robbery, and violent crime rates in counties with statewide Medicaid expansion.9
Preventing contact with the criminal-legal system
In 1990, the federal government expanded Medicaid to provide coverage for more children and families living below the federal poverty line. Research shows that the expanded Medicaid eligibility among youth actually reduced the incarceration rates in Florida: there was a 3.5% reduction in incarceration for each additional year of population-level Medicaid eligibility. These results suggest that by investing resources in healthcare and expanding Medicaid coverage to as many people as possible up front, we can actually begin to reduce our reliance on the carceral system.
Increased access to healthcare through Medicaid coverage also reduces recidivism. Prior to the Affordable Care Act (ACA), there were eligibility requirements that restricted Medicaid eligibility for formerly incarcerated people, but with expanded Medicaid coverage, most previously incarcerated people who meet the necessary income criteria are eligible for Medicaid. A study published in 2022 found that expanded Medicaid coverage resulted in significant reductions in the rate of rearrest, with a 16% reduction in arrests for violent crime for two years following release.
Reducing state expenditures
The direct costs of incarceration are immense: it costs more than $225 to incarcerate someone in New York county jail for a single night and nationally, it costs an average $31,307 a year to incarcerate a single person in state prison. Meanwhile, 2019 estimates suggest that total annual Medicaid spending per person ranged from a low of $4,970 in South Carolina to a high of $12,580 in North Dakota, suggesting that even where Medicaid is spending the most per person, it is far less expensive than incarceration. While these are just rough estimates of the per capita costs of incarceration and Medicaid coverage, more in depth research implies substantial cost reductions by expanding Medicaid coverage to all Medicaid-eligible formerly incarcerated people. The estimated costs of expanded Medicaid coverage – by reducing the economic and social costs of victimization and the expenditures on multiple incarcerations – are significantly less than state and local governments are currently spending on arrest, jail, court, and imprisonment.
The healthcare coverage gap that threatens the lives of people recently released from prison is not inevitable. Incarcerated people and those released from incarceration face poverty, unemployment, and disproportionately high rates of disability, disease, and illness, but Medicaid is a tool we can use to expand healthcare coverage and reduce the number of preventable deaths after release. Evidence from states with these kinds of Medicaid programs in place suggests that hundreds of thousands of people being released across the country each year would benefit from such efforts. Expanding access to affordable, quality healthcare results in a myriad of benefits to public health, public safety, and public coffers. Perhaps most encouragingly, the drop in arrests and crime following expanded Medicaid coverage offers evidence that by ensuring people’s most basic needs are met, we can begin to reverse our nation’s reliance on mass incarceration.
Medicaid does currently provide coverage for incarcerated people (who would otherwise qualify for Medicaid) only if they are hospitalized outside of the correctional facility for 24 hours or longer. ↩
According to the National Conference of State Legislators, federal law does not require states to terminate Medicaid eligibility status for inmates, but it does prohibit states from obtaining federal matching funds for services provided to people while in jail or prison. But many states do terminate Medicaid eligibility status upon incarceration: according to a 2014 study of 42 state prison systems, individuals on Medicaid are completely removed from their insurance system upon incarceration in two-thirds of these states. ↩
The phrase “solitary confinement” is not used consistently. Some prisons deny that they employ it, instead opting for more administrative-sounding terms, like “Segregated Housing Units” (SHUs) and “restrictive housing.” (See this list from MuckRock for more examples.) While conditions can vary between facilities, for our purposes, “solitary confinement” refers to the practice of segregating individuals from the general population for any reason. Under solitary confinement, individuals are typically forced to remain in small, individual cells for 22 to 24 hours per day with minimal human interaction. ↩
California, Colorado, Florida, Iowa, Maryland, Minnesota, New York, North Carolina, Ohio, Oregon, Texas and Washington. ↩
A good example of how states have used Medicaid waivers in the past is the Coordinated Care Organization program in Oregon. The state received a waiver to create partnerships between managed care plans and community providers to manage health-related services not previously covered by Medicaid, like short-term housing following hospital discharge, home improvements to allow people to remain in the community, and efforts to reduce preventable hospitalizations. ↩
In this study, arrests for “violent offenses” include murder, manslaughter, rape, robbery, and aggravated assault, “drug offenses” include sales and possession, and “low-level” offenses include disorderly conduct, prostitution, suspicion, vagrancy, vandalism, drunkenness, driving under the influence of substances, and possession of stolen property or weapons. ↩
The two studies cited here controlled for other factors, including age, unemployment, poverty, and race. ↩
With the upcoming Senate runoff election in Georgia likely coming down to a few thousand votes, an overlooked form of disenfranchisement deserves attention: The huge barriers to voting for people locked up in locally-run jails (which we explained in depth in our 2020 report Eligible, but Excluded).
Roughly 39,000 people are held in Georgia’s county jails on any given day (a number very close, coincidentally, to the 36,000-vote difference in the general election between Sen. Raphael Warnock and Herschel Walker at the moment). While it’s not known exactly how many of these people meet the qualifications to vote, the number is likely in the thousands because:
Most people in county jails are there awaiting trial, and Georgia does not restrict voter eligibility for people charged with a crime (though people already on probation or parole are ineligible).
Of the minority of people in Georgia jails who are serving a sentence, most are serving a misdemeanor sentence. Georgia does not restrict voter eligibility for people convicted of misdemeanors.
Any of these eligible voters who are already registered qualify to vote in the runoff election.
Incarcerated people’s diverse voices and opinions should be heard in our democracy, yet people in jail will likely be excluded from the close race for this pivotal Senate seat. But there are things sheriffs and local election officials can do to ensure that detainees can cast their votes:
Make people in jail aware of their likely eligibility and the absentee ballot deadlines. One of the main reasons people in jail do not vote (despite being eligible) is because they think they’re not allowed to. Jail and election officials can coordinate to identify people who are incarcerated who are eligible to vote in the county and conduct affirmative outreach to them.
Enable and assist people in requesting an absentee ballot by the November 28 deadline. Jail officials must make sure people have access to ID information, such as their driver’s license number, needed to complete an absentee ballot application. They should also facilitate people in jail being able to submit ballot applications not just by snail mail, but also via the state’s online portal, email, or fax.
Allow incarcerated people to receive absentee ballots in time by ensuring election mail is processed in a timely way, and provided in its original, physical form. (Many jails currently ban postal mail; needless to say, these jails should make an exception for ballots.)
Help incarcerated people submit absentee ballots on time by quickly mailing any absentee ballots cast by incarcerated voters and guaranteeing that commissary is available so people can purchase stamps (or better yet, the jail can provide stamps for free).
Ensure that people in jail have contact information for their local board of elections, can track the status of their ballot, and are able to fix any deficiencies with their absentee ballot.
Barring people in jails from voting “is a social injustice and a civic indignity,” wrote Rev. Jesse Jackson in a 2020 Chicago Sun-Times op-ed. “Not surprisingly,” Jackson noted, “it disproportionately impacts African Americans, Latinos, and the poor.” People in jail are citizens who stand to be affected by laws around things like housing, healthcare, and of course, criminal justice. In Georgia — and everywhere people in jails are effectively disenfranchised — sheriffs and election officials must do everything in their power to ensure these individuals can exercise their basic right to vote.
The appendix table was updated on December 1, 2022 to reflect new information about South Dakota.
In recent years, many prison systems have either tried or fully implemented a policy that interferes with incarcerated people’s mail in a way we haven’t seen in our many years fighting to protect family communication behind bars: Prisons are increasingly taking incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients. This practice of mail scanning, either performed at the prison itself or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones.
Prison administrators claim that delivering scanned copies of mail correspondence will stem the flow of contraband — primarily, drugs — into their facilities, but there’s no solid evidence to date that mail scanning has this intended effect. (In fact, some jurisdictions have found the opposite effect with respect to drugs.) We did a policy and media scan of all 50 state prison systems and the federal prison system, and found that mail scanning is quickly becoming widespread, despite the enormous benefits of genuine mail.
Table 1: States scanning mail at all state prisons
Data was gathered via a survey of correctional departments’ websites. See the appendix table at the end of this briefing for more details.
We found 14 state prison systems that are scanning all incoming mail, but we’re confident that this number is an undercount, because we couldn’t verify the status of mail scanning in some other states.2 Several more states are trialing mail scanning practices in just a few of their facilities, or have correctional policies that allow mail scanning to begin at any facility, at any time.3 Many more states are likely to be scanning mail before long: Even during the course of our research, one state (Minnesota) implemented a six-month alternative mail delivery pilot — which includes mail scanning — in some of its facilities. (For details about every state’s prison mail scanning practices, see the appendix table at the bottom of this briefing.)
Mail scanning happens in locally-run jails, too; in our state-level research, we stumbled upon 15 jails4 that have banned incoming mail in favor of digitized copies. While most of the local jails we read about implemented mail scanning in 2021 or 2022, we’ve been receiving reports of jails scanning mail since 2017, and we suspect that dozens more jails across the U.S. have done away with delivering real mail.
How does mail scanning work?
As the table above shows, some prisons pay a vendor to scan mail and deliver copies to incarcerated people, while others manage the process internally.
There are two primary methods for delivering scanned mail. Some prison systems deliver printed copies of mail, often including copies of the envelope. (If there’s a limit on the number of pages that can be copied and delivered, the envelope may count toward that limit, as it does in Arkansas.) Other prison systems scan mail and upload it into a digital database, where it’s then viewable on a tablet or a shared kiosk inside a prison. Most states and third-party vendors hold onto original letters and cards for a period of time — several states have a 45-day holding period, for example — but eventually dispose of or destroy them.
The four biggest problems with scanning mail
Prisons and jails often switch to scanning mail not out of any concern for safety, but at the encouragement of the same private companies that dominate the prison technology industry. For years, these companies’ strategy for securing contracts has been to offer facilities multiple services “bundled” together, such as phone calls, tablet computers, and mail scanning. Scanning mail pushes incarcerated people to use other, paid communications services provided by the companies: Compared to mail that’s delayed due to scanning procedures, or scanned incorrectly, incarcerated people and their loved ones often understandably switch to electronic messaging (which requires the purchase of digital stamps), phone calls, or video calls.
A number of prison vendors currently bundle mail scanning with other exploitative communications “services”:
We found four third-party vendors scanning incoming mail for state prisons. These companies all offer other services as well as mail scanning, often bundled into one contract. Not listed here, prison telecom giant ViaPath Technologies (formerly Global Tel*Link, or GTL), offers a mail scanning service branded as “GettingOut,” but we didn’t find evidence of a prison system using it.
Services offered to prisons other than mail scanning
Electronic messaging and greeting cards, video calling, other financial services
Electronic messaging, video calling, phone calls, “MailGuard Tracker” (for senders to track mail delivery), tablets and/or kiosks with educational materials, simplified commissary ordering
Electronic messaging and greeting cards, phone calls, other financial services
Electronic messaging and greeting cards, electronic kids’ drawings
Physical mail carries great sentimental value for incarcerated people, which translates into a more hopeful experience behind bars. In one incarcerated person’s words, “Under the new policy of digitizing mail [in Florida], [we] are losing the visceral experience of touching a letter or smelling perfume on an envelope.” Taking that away has real, measurable consequences for mental health, behavior, and even recidivism after release. Incarcerated people return to their mail over and over to be reminded of their support networks; scanned mail, on the other hand, is often low-quality or incomplete, lacking the same meaning. Even if contraband occasionally enters prisons through the mail, the practice of scanning all mail senselessly punishes all incarcerated people and their families for a few infractions.
A screenshot from the Missouri Department of Corrections website explaining that mail is important, but not welcome, in its prisons.
This extreme interference with mail will have a chilling effect on correspondence, reducing the overall volume of mail sent into prisons. People who send mail to prisons don’t want their letters and artwork scanned into a searchable database and/or destroyed, two common features of mail scanning. Scanning is a needlessly complicated and costly practice that violates privacy and stifles communication, as we learned when many jails started postcard-only policies. (This effect may be desirable for prison administrators and correctional staff.)
Finally, mail scanning doesn’t work to make prisons safer. In fact, early analyses in Pennsylvania6 and Missouri7 suggest that mail scanning is having little to no effect on the frequency of overdoses and drug use, the type of issues that prisons claim mail scanning will address. “Security” measures like mail scanning (as well as banning in-person visitation) distract from the reality that correctional staff are a major source of contraband in prisons, as a correctional labor union leader himself acknowledged (and as we found in a 2018 survey). Considering half of people in state prisons meet the criteria for a substance use disorder, prisons would be wise to center their budgets and efforts around drug treatment rather than cutting off a lifeline for everyone.
Mail between incarcerated people and their loved ones has long been surveilled by prison staff, but it remains one of the last bastions of communication that is not intercepted and monetized by private telecom companies. As the organization Just Detention International concluded in their 2021 letter to Attorney General Merrick Garland expressing outrage at the federal prison system’s mail scanning pilot: “Banning physical mail harms the well-being of incarcerated people, while offering no meaningful benefits.” Prisons and jails shouldn’t make families work even harder to maintain bonds; like other policies that quash communication, the recent trend toward mail scanning must end.
Appendix: What we know about mail scanning in state and federal prisons
Data in this table is from our November 2022 survey of state department of corrections policies and media coverage related to mail scanning. If available, we recorded information about whether mail scanning is occurring for some or all facilities, as well as how scanned mail is processed and delivered. You can see some prison and jail contracts for mail scanning in our Correctional Contracts Library.Note: Our information about Alaska, Kentucky, and Mississippi comes from people directly impacted by mail scanning policies, and not from our survey of Department of Correction websites or news coverage.
Status of mail scanning
Effective date of mail scanning policy or contract
Method of mail delivery
Link to policy, press release, or media
No mail scanning in effect
Scanning incoming personal mail at one or a few facilities
In Virginia, mail sent to “Security Level 2 facilities and above” is photocopied; the majority of prisons in Virginia include security level 2 and above populations. ↩
For example, we’re aware that Massachusetts prisons scan incoming mail in at least some of its facilities, but we couldn’t locate a policy, contract, or other reference showing that all prison mail is subject to scanning or copying. ↩
We found that correctional policies in Illinois, Maine, Massachusetts, Montana, Ohio, South Dakota, and Vermont are written in a way that allows incoming mail to be scanned if the mail meets certain criteria, or if a commissioner or equivalent identifies ongoing security risks from mail. ↩
Jails we identified doing mail scanning are: Marin County, Calif.; Mesa and Pueblo counties, Colo.; Bartholomew and Elkhart counties, Ind.; Shawnee County, Kansas; Calcasieu Parish, La.; Montgomery County, Maryland; Essex County, Mass.; Genesee, Oakland, and Jackson counties, Mich.; Medina County, Ohio; and Rock and Brown counties, Wisc. Contracts between some of these jails and private companies for mail scanning are viewable in our Correctional Contracts Library. ↩
It’s worth noting that Securus, which holds more mail scanning contracts with prison systems than any other company, did not pioneer the concept of mail scanning as a service. Securus is known for aggressively gobbling up its corporate competitors and its dominant spot in the prison phone market likely made it easier for the company to add mail scanning to its contracts. ↩
According to a 2020 article in Prison Legal News, the Pennsylvania DOC claimed that 0.7% of incoming mail was tainted with drugs in August 2018, right before mail scanning was implemented. In July 2019 (nearly a year after implementing mail scanning), 0.6% of mail was tainted with drugs, according to the DOC. ↩
An October 2022 article in the Riverfront Times reports that data requested by the organization Missouri Prison Reform shows mail scanning has had no effect on the number of drug overdoses in state prisons: In July, August and September 2022, the three months after mail scanning began, the average number of drug overdoses increased from 35 to 39. ↩
Despite millions of dollars in TV advertisements and countless hours of hyperbolic news coverage, last week, voters across the country rejected fearmongering about efforts to overhaul the nation’s broken criminal legal system. They made clear they are interested in solutions and that the scare tactics that have been a staple of American politics for generations no longer resonate as they once did.
Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states. While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have a significant impact without further investments in the carceral system and point to policy reforms that have gained momentum in the past year. We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails. We made a conscious choice not to include critical reforms unique to just a few states or important reforms for which we don’t yet have enough useful resources to be helpful to most states.
We sent this guide to hundreds of lawmakers across the country — from all parties — who have shown interest in fixing the criminal legal system in their state. As they put together their legislative agendas for the upcoming session, legislators can use this guide to develop solutions to make their state’s criminal legal system more just, equitable, and fair.
Most of the more than 600,000 people locked up in jails are detained pretrial, and therefore, legally innocent. And, in most states people detained in jails on a misdemeanor conviction remain eligible to vote. This means that those who met the voter registration qualifications in their state at the time of their incarceration remain eligible to vote in elections. In fact, the Supreme Court has ruled that not only are they eligible to vote, they have a right to cast an absentee ballot just like any other voter who cannot vote in person. However, as we detailed in our report Eligible but Excluded: A guide to removing the barriers to jail voting, an insurmountable series of obstacles1 and a lack of awareness2 prohibit most of them from doing so.
In recent years, advocates have successfully pressured a small but growing list of governments to address some of these obstacles by establishing polling locations inside local jails where eligible, detained voters can cast their ballots. We have found seven jails that make in-person voting available:
Data about voter turnout at these jails is hard to come by, so it is difficult to know exactly how many eligible, detained voters have used these polling locations. However, the emerging evidence shows, when combined with outreach and education to ensure incarcerated voters know what steps they must take to cast their ballots, jail-based polling locations are not only feasible, they’re effective: when people know they can vote from jail, they will vote.
Cook County, Illinois
The Cook County Jail first established its jail-based polling location in 2020.
In the June 2022 primary, roughly 25% of people detained at the jail (1,384 of the 5,560 people) cast their ballots. This location was so successful that people at the jail actually voted at a higher rate than registered voters in the city of Chicago (20%).3 About half of these voters were able to cast ballots because same-day registration was also available.
The District of Columbia has facilitated voting at the D.C. jail for more than a decade. In 2012, 88 men voted in-person at the D.C. jail.
In 2020, the D.C. Council also passed legislation to abolish felony disenfranchisement and allow D.C. residents incarcerated for a felony conviction to vote, further expanding the number of people eligible to cast their ballots from jail. While this was unquestionably the right thing to do, it makes it a bit difficult to trace turnout patterns. Recent data about incarcerated voting does not break down the number of D.C. residents who have voted in person at the jail versus in prison. In November 2020, 562 incarcerated D.C. residents registered to vote and 264 of them cast ballots — but we don’t know how many of these voted while detained in jail.5
In 2020, voters confined in Denver, Colorado, could cast ballots in person for the first time. On November 2 and 3, 136 eligible voters in the Denver County Jail and Van Cise-Simonet Detention Center cast in-person ballots.
Harris County, Texas
In November 2021, Harris County, Texas established a pilot program to allow people in the county jail to vote at a jail-based polling place. To be eligible, voters had to have been arrested on or after the absentee ballot request deadline (October 22, 2021), already be registered to vote, not be on probation or parole, and meet all other voter qualification requirements.6
In 2020, the Los Angeles County Registrar-Recorder and Sheriff announced the “We All Count” campaign, which aimed to provide voter education information to people detained in LA County jails and assist eligible voters with registration and the voting process.
Unfortunately, shortly after it was launched, the CRDF’s jail-based polling location was suspended because of the COVID pandemic. However, it returned in June 2022 for the primary election. Several women voted in person8 and the LA County Clerk plans to continue and expand the program for the November 2022 election.
Will County, Illinois
In June 2022, Will County became the second Illinois county to establish a polling location at its jail. Approximately 600 people are detained in Will County Jail, and according to county election officials, in June 2022, 48 people in the jail (approximately 8%) voted. 28 of these individuals cast ballots in the Democratic primary and 20 cast ballots in the Republican primary.
What to make of this data?
The early results from these seven facilities show the promise and possibilities of jail-based voting locations. However, they also make clear that simply setting up jail voting sites is not enough. Awareness of voter eligibility requirements, access to voter registration, the rules that determine who qualifies to use the polling location, and when voting is available can significantly impact turnout.
Local governments seeking to establish or improve jail-based voting locations should:
Do more to raise awareness of the availability of the polling location and any voting eligibility requirements.
Allow all eligible voters detained at the jail — regardless of when they were first detained — to cast a ballot at the polling location.
Provide in-person voting at the jail on Election Day, not merely during the early voting period.9
Take advantage of same-day registration if it is available.
Work to ensure that any ID requirements are able to be satisfied by eligible voters who are attempting to register or cast a ballot in jail.
It is time to act to ensure that eligible voters who find themselves behind bars on Election Day are able to exercise their fundamental right to vote.10 As the examples above show, there is increasing momentum to make democracy more accessible to people behind bars. To maximize the impact and use of jail-based polling sites, jurisdictions should ensure anyone detained on Election Day is eligible to both register and vote at the jail, and that voter ID or other requirements do not act as obstacles to voting.11
Note: After publication of this piece, we learned there is also a jail-based polling location in Flint, Michigan.
Are there places we missed?
If there is a jail-based polling site in your county not referenced here, let us know.
For example, in some states, people who are incarcerated may have difficulties meeting absentee ballot voter ID or notary requirements. Many additional logistical details, such as whether a person is detained near or after the absentee ballot request deadline, whether they can access commissary in time to obtain stamps and mail the absentee ballot request form, whether they can contact their local board of elections with any questions, whether they are able to meet the mailing and postage requirements for their absentee ballot, and whether they are able to be informed of any problems with their ballot and fix those problems, also impact whether a person who is detained can participate in the political process. ↩
Across multiple states, advocates and government officials noted that qualified voters detained in jail were often unaware that they were allowed to cast a ballot. For example:
A representative of Speak Up and Vote in Illinois noted that people detained in jail frequently “didn’t realize they’re eligible to vote, so they didn’t try.”
An individual working with the Denver Sheriff Department stated that many people in jail “told us this was their first time voting and they had no idea they had the right the vote.”
The Sheriff in Harris County, Texas noted that the “majority of people involved in the justice system don’t vote due to a lack of information on voting.” ↩
Because Illinois is one of the states that bars people who are serving time for a misdemeanor conviction from voting, in addition to those in custody who are serving a sentence for a felony or who have been found guilty of a felony but not yet sentenced, some of the jail’s total population may not have been eligible to vote. ↩
Given that groups in Chicago have actively worked to facilitate voting and registration in Cook County Jail for a number of years, this level of participation is higher than what would be expected in many other jails in the country that do not have a polling place. ↩
Correspondence with the LA County Registrar’s Office indicated that “[t]he majority of those that voted also utilized Conditional Voter Registration,” otherwise known as same-day registration, and “were able to register and vote on the spot.” ↩
Even when there is a jail-based polling location in place, some detained people may still be prevented from voting, depending on their circumstances. For example, in places where in-person voting is only available to people who were arrested after the deadline to request an absentee ballot, individuals who were arrested before that deadline but didn’t request an absentee ballot because they anticipated being released before Election Day would find themselves unable to vote if they remain in custody on Election Day. Similarly, in places where the jail polling site is only operational before Election Day (such as on weekends during an early voting period), people who are taken into custody after the polling site closes and remain detained through Election Day would find themselves unable to vote. ↩
While establishing jail-based polling locations may at times require a change to state law (as was the case Illinois), other times no legislative change is necessary (as was the case in Harris County, Texas). ↩
For example, the Harris County Sheriff noted that “[c]asting a ballot while incarcerated also has extra hoops to jump through: Texas requires a photo ID to vote, but the jail confiscates incarcerated people’s possessions, including photo ID.” Further, the Office of the Clerk and Recorder in the City and County of Denver stated that accessibility to IDs was an obstacle preventing people in jails from meeting a prerequisite for voting (registration), so legislation was passed to create a new form of identification for people who are confined in the jail by placing requiring jail administrators to provide necessary identification information to election officials. ↩