We offer five areas where quick action could slow the spread of the viral pandemic in prisons and jails and in society as a whole.

by Peter Wagner and Emily Widra, March 27, 2020

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect people in prisons, in jails, on probation, and on parole.

Below, we offer five far-reaching interventions that policymakers can use to slow the spread of the virus in the criminal justice system and broader society. We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons. In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus.

Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population. Pregnancy data come from our report, Prisons neglect pregnant women in their healthcare policies, the CDC’s 2010 Pregnancy Rates Among U.S. Women, and data from the 2010 Census. Cigarette smoking data are from a 2016 study, Cigarette smoking among inmates by race/ethnicity, and all other data are from the 2015 BJS report, Medical problems of state and federal prisoners and jail inmates, 2011-12, which does not offer separate data for the federal and state prison populations. Cigarette smoking may be part of the explanation of the higher fatality rate in China among men, who are far more likely to smoke than women.
Prevalence of health condition by population
Health condition Jails State prisons Federal prisons United States
Ever tested positive for Tuberculosis 2.5% 6.0% 0.5%
Asthma 20.1% 14.9% 10.2%
Cigarette smoking n/a 64.7% 45.2% 21.2%
HIV positive 1.3% 1.3% 0.4%
High blood pressure/hypertension 30.2% 26.3% 18.1%
Diabetes/high blood sugar 7.2% 9.0% 6.5%
Heart-related problems 10.4% 9.8% 2.9%
Pregnancy 5.0% 4.0% 3.0% 3.9%

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders. With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

 

1. Reduce the number of people in local jails.

State leaders must remember that local jails are even less equipped to handle pandemics than state prisons, so it is even more important to reduce the burden of a potential pandemic on jails. Generally speaking, there are two ways to reduce jail populations: reduce admissions or release more people.

Reduce admissions. This may be the simplest strategy that would show quick results because of the high turnover in jails.1 If a typical jail stopped admitting people entirely, its population would be cut by 54% in just 7 days. More realistically, if that same jail could reduce admissions by just half, its population would be more than 25% smaller in a week.2
Different actors within the system can achieve this using their discretionary powers:

  • Police can reduce the number of arrests, particularly for what they determine to be “petty offenses.”
  • Prosecutors can refuse to prosecute certain offenses and consent to release on one’s own recognizance3 (ROR) for most or all people charged with crimes. They can defer prosecution, dismiss charges outright, or instead refer defendants to social services or other alternatives to incarceration or detention.
  • Courts can vacate “bench warrants” (warrants for unpaid court fines/fees and for failure to appear for hearings) so that law enforcement can focus on public safety concerns and so that people with active bench warrants do not avoid seeking medical attention for fear of arrest. Recognizing the extreme economic stress that most low-income people will experience during this time, courts should refuse to jail anyone for unpaid fines and fees, automatically postpone any court hearings related to fines and fees, or just proactively forgive these debts.
  • Jails can refuse to rent space to other agencies. In some states, as much as 8% of the capacity is dedicated to USMS4, 10% to ICE5, and 66% to state prisons.6 In addition, jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, technical violators can make up a huge part of a jail’s population.
  • State and local legislatures can expand the list of “non-jailable” offenses, which are not subject to arrest but can only be fined or cited.

Release more people. Jail administrators can also accelerate releases of people currently in custody. In situations where administrators and sheriffs may not have the authority7 to do this on their own, they are still well positioned to suggest to courts, prosecutors and defense attorneys who could be released. Here are some suggested categories for release eligibility:

  • People nearing the end of their sentence. 35% of people in jails are serving a sentence, typically under a year. That means that nationally, roughly 75,000 people in jail today are within 3 months of their release date.
  • People who are medically fragile, including older people (there are 20,000 people over the age of 60 in jails) and people with chronic illnesses, especially those that have higher mortality risks from COVID-19, like chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, renal failure, liver disease and the immunocompromised, including those undergoing cancer treatment. Facilities should also release pregnant women.8
  • People held on low bail amounts. Sadly, bail is often used as a wealth test for freedom rather than a test of dangerousness or likelihood to show up for court. But consider this: if your facility is currently holding people who would be released if they could come up with a small 9 amount of money, why are you still holding them? Once bail has been set, the court has already concluded that the individual is not a threat to public safety, since bail is meant to incentivize court appearance, not to detain people the court considers dangerous. Prosecutors, defense attorneys, judges, and the jails — preferably in cooperation with each other — need to generate a list of people whose bail should be lowered to $0 and then make sure those people are released as soon as possible.
  • People held for offenses that would not result in detention if they were arrested today, now that some offense-based changes have already been implemented in response to the pandemic.

 

2. Reduce the number of people in state and federal prisons.

This can be done through some restrictions to admissions and most dramatically by increasing releases.

The simplest way to reduce admissions is to refuse admissions for technical violations of probation and parole rules. In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.

The decision to reduce admissions for technical violations can be made at the level of individual parole or probation officers, at the supervisory level, at the level of parole and probation boards, or at the level of state and county executives and legislatures. Any and all of these actors should take immediate action.

Other groups that states should immediately consider for release include:

  • People nearing the end of their sentence. Approximately 600,000 people are released from prison every year. If they are going to be released within the next few months anyway, why not release them now? 10
  • People in minimum security facilities and who are on work-release.
  • People who are medically fragile or are older. Prisons house large numbers of people with chronic illnesses and complex medical needs that make them more vulnerable to becoming seriously ill and requiring more medical care for COVID-19. (There are 132,000 people who are at least 55 years old in state prisons. The prevalence rates of chronic health conditions that put people at risk for serious complications from COVID-19 are higher in state and federal prisons than the general population.)
  • Anyone whose offense is considered “minor” or anyone who has a “low likelihood” of committing another serious offense.11

States have many options for how to release these individuals. Mechanisms for increasing releases include:

  • Parole boards can parole more people who are parole-eligible. They can also accelerate the normal review process, reduce the time between parole reviews, and eliminate the often months-long delays between parole decisions and actual release. (For instance, such delays are often the result of parole boards requiring people to complete program requirements, but under the circumstances, these requirements can and should be waived.)
  • Governors can grant partial clemency to people who are a short period away from parole eligibility so that the parole board can consider them for release now.
  • Governors, legislatures and other agencies can change good-time formulas to allow people additional credit for time served. Commonly called things like “good time,” “meritorious credit” or something similar, these systems shorten the time incarcerated people must serve before becoming parole eligible or completing their sentences. Many states give correctional agencies some discretion on awarding good time. The maximum allowed should be granted, and the formulas should be changed to make the rewards more generous.
  • Governors can explore letting some people go on temporary furloughs who already meet most other criteria for release. (This used to be common in the U.S., and in response to the pandemic, Iran temporarily released 85,000 people and Ethiopia released 4,000 people.)
  • Judges can resentence individuals to make them eligible for release on parole or on completion of the revised sentence.
  • ICE, the U.S. Marshals Service and other agencies that send detainees to local jails for confinement can order their release, just as they should do for the people confined in the facilities that they run. These systems should not think for a moment that just because they have outsourced the jailing of these detainees, they are exempt from their moral and public health duty to reduce the density of correctional facilities.

For a model plan for releasing people from prisons, see this emergency plan developed for Indiana by a coalition of formerly incarcerated people and current volunteers and employees of the Indiana correctional system. The plan answers logistical questions such as how people can be quarantined outside of prisons before reentering their communities, how the reentry system can manage the release of thousands of people on short notice, and how to protect correctional staff and their families throughout the process.

 

3. Eliminate unnecessary face-to-face contact for justice-involved people.

The criminal justice system makes it difficult for people on probation, parole, and registries — and the staff of those systems — to practice the social distancing necessary to prevent the spread of COVID-19. There are at least 7 strategies that probation, parole, registries and the courts can implement to promote social distancing:

  • Judges should postpone as many court sessions as possible. They should do so automatically and in advance. Courts should be reluctant to try cases or hold hearings over video monitors,12 and they should never consider detaining someone they do not feel comfortable — for public health reasons — having in their court room.
  • Reduce the number of people on the probation and parole rolls. This would reduce the number of people subject to the conditions of probation and parole, which often contradict social distancing guidelines (i.e. required in-person meetings with parole or probation officers), and would free up probation and parole staff to focus limited resources on the higher-need people who remain under their supervision. This may require help from the governor via mass clemency, the legislature, or the courts, and could also involve strategies like applying time-served credits for successful past compliance with probation or parole restrictions.
  • Reduce, rather than expand, use of GPS/electronic monitoring. Electronic monitoring requires correctional staff to install (and maintain) the devices and thus to violate social distancing guidelines. Because these devices require monitored people to request permission to leave their designated areas — a process which can take days — electronic monitoring will restrict people from seeking appropriate medical treatment, not to mention imposing additional user fees payable to the monitoring companies that low income people struggle to pay during the best of times.
  • Minimize in-person requirements. Parole and probation offices should limit face-to-face meetings (especially in crowded offices), suspend on-site drug testing, and limit home visits.
  • Courts should cancel pretrial meetings, court-ordered classes, collection of court debt, and all collateral consequences for failure to pay fines and fees.
  • Courts, probation offices, and parole offices should eliminate supervision fees, including those that are paid to third-party monitoring services. Under the additional financial pressure created by the pandemic, many more people under supervision will be unable to afford fees, which will put them at risk of arrest and incarceration. This isn’t a good use of criminal justice resources right now.
  • When faced with technical violations of parole or probation rules — behaviors that, for people not on parole or probation, would not warrant incarceration — police should refuse to arrest, jails should refuse to admit, and parole/probation boards should not consider revocation. If necessary, alternative sanctions should be imposed that can be complied with from home, such as completion of an online course or more frequent phone/video check-ins.

 

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity.

Both incarcerated people and staff would benefit from a health care system that prioritizes human life and dignity over money. Here are some ideas:

  • Eliminate medical copays that deter people from seeking healthcare in prison and jail. As of March 27, Hawaii, Kansas, and Nevada state prisons are still charging copays, and Delaware, Maryland, Oklahoma, and Utah have at least twice failed to respond to our inquiries about their copay policy during the pandemic. (For the current status of all states see the copays section of our virus response page.)
  • Ensure that staff have sufficient paid sick leave and encourage staff to stay home if they or anyone in their family shows symptoms. Making the necessary changes to reduce overcrowding (and confinement overall) will greatly reduce the need for over-burdened administrators to ask staff to work when sick.
  • Provide for basic healthcare needs behind bars, starting with the basic requisites for effective hand-washing. Stop charging incarcerated people for basic products that can protect them from illness. People in prison should not be reliant on COVID-19 fundraisers for necessities such as soap.
  • Ensure that facility overcrowding never reduces the quality of the health care provided. When overcrowding or budget concerns impact health care, the first response should always be to reduce the facility population until health care can meet constitutional standards.
  • Staff in courts, prisons, and jails should ensure that incarcerated people’s health concerns are taken seriously.
  • Ensure that the physical and mental health–and human dignity–of people who remain in prison is protected. Particularly helpful is the 40 point checklist prepared by the Washington State Office of Corrections Ombuds, based on the CDC’s guidance to correctional facilities.

 

5. Don’t make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary.

For people in the free world, communication is almost free, but for the families of incarcerated people, phone calls, video calls and emails are quite expensive. At this time of great stress for everyone, the facilities need to do better:

  • Provide unlimited, free phone calls so that families can maintain contact throughout the pandemic when visitation is suspended. Allowing people to assure themselves that their families are safe will greatly reduce stress and anxiety, which, due to the pandemic, are sky-high inside prisons and jails.
  • Facilities that do not have video calling systems already in place should temporarily refit the now-empty visiting rooms to support free video calling options with publicly available services like Zoom and Skype. These services can often be installed quickly without the involvement and costs of the prison telephone industry giants.

~

Since our first coronavirus briefing at the beginning of March, we have been tracking how federal, state, and local officials have responded to the threat of COVID-19 in the criminal justice system. A number of jurisdictions have taken quick and laudable actions to protect the most vulnerable justice-involved people, including reducing the number of arrests and bookings, releasing people held pretrial, reducing admissions to state prisons, and suspending medical copays in most states. Given the toll COVID-19 has already taken on our jails and prisons, as well as our society at large, the time is now for federal, state, and local officials to put public health before punishment.

 

Footnotes

  1. Although national numbers of jail releases per day are not available, the number of jail admissions — 10.6 million annually — is relatively stable, with the jail population turning over quickly, at an average rate of 54% each week. Assuming, then, that the number of admissions is about the same as the number of releases, we estimate that about 29,000 people are released from jails in the U.S. every day (10.6 million divided by 365 days per year). In comparison, in 2017, state and federal prisons admitted and released over 600,000 people, averaging about 12,000 releases a week or 1,700 per day. For state-by-state data, we estimated the number of releases in a similar fashion — we divided the number of annual admissions and releases, obtained from the Census of Jails, 2013, by 365 days. Governors of other states may want to see this table based on data from the Census of Jails, 2013:

    State Jail Admissions Jail Releases
    Alabama 286,843 249,418
    Alaska 5,392 3,686
    Arizona 210,399 202,484
    Arkansas 258,321 232,255
    California 1,102,972 995,338
    Colorado 211,397 197,866
    District of Columbia 12,008 12,238
    Florida 732,602 680,801
    Georgia 602,648 537,857
    Idaho 104,539 50,384
    Illinois 315,553 290,264
    Indiana 270,415 277,994
    Iowa 127,179 123,693
    Kansas 153,914 142,759
    Kentucky 548,733 509,413
    Louisiana 317,091 334,730
    Maine 37,995 33,934
    Maryland 156,659 164,736
    Massachusetts 58,115 76,253
    Michigan 359,631 348,584
    Minnesota 188,662 180,393
    Mississippi 125,961 119,682
    Missouri 252,131 239,562
    Montana 48,418 39,179
    Nebraska 72,616 72,687
    Nevada 144,256 146,657
    New Hampshire 20,841 22,187
    New Jersey 147,088 134,407
    New Mexico 150,488 142,035
    New York 219,320 201,939
    North Carolina 417,199 433,700
    North Dakota 39,367 35,979
    Ohio 405,313 395,648
    Oklahoma 409,293 261,454
    Oregon 176,549 172,476
    Pennsylvania 209,732 213,319
    South Carolina 301,594 325,976
    South Dakota 56,477 56,851
    Tennessee 461,375 439,364
    Texas 1,144,687 1,083,223
    Utah 97,509 98,651
    Virginia 355,549 304,466
    Washington 283,627 305,963
    West Virginia 47,439 46,210
    Wisconsin 227,243 208,406
    Wyoming 29,384 30,803

     ↩

  2. In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.
     ↩

  3. Release on own recognizance, or ROR, is essentially when someone charged with a crime is not required to pay any money for pretrial release or comply with other conditions such as pretrial supervision. For example, a prosecutor may consent to ROR when it is someone’s first arrest and there is no reason to think that the person would not show up for future court dates.
     ↩

  4. In 2013, 8% of Texas jail capacity went to U.S. Marshalls Service detainees. The figure was 7% in New Hampshire, 6% in Missouri, and 5% in Arkansas, Illinois, Kentucky, Maine, Montana, and North Carolina. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  5. In 2013, 10% of New Jersey jail capacity went to immigration detainees. The figure was 5% in Wisconsin, Massachusetts and Arizona, and 4% in Utah, Nevada, New York and Colorado. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  6. In 2013, 68% of Louisiana jail capacity went to housing people for the state prison system. The figure was 51% in Kentucky, 50% in Mississippi, 39% in Arkansas, 36% in Tennessee, and 32% in West Virginia. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  7. Professor Aaron Littman at the UCLA School of Law has compiled a spreadsheet [.pdf download] to help readers understand which local officials have the power to release people from jails. The information in the spreadsheet is state-specific.  ↩

  8. Policymakers should also double their efforts — without slowing down actual releases — to plan for a continuity of health care after release, including getting people signed up for Affordable Care Act coverage and giving them referrals for other treatment as needed.  ↩

  9. One way the Los Angeles County Sheriff’s Department is reducing its jail population is by allowing deputies to cite and release anyone whose total bail would amount to less than $50,000.  ↩

  10. We know that some will ask about where these people will go. As is always the case, some have a home and support system waiting for them. Others will experience homelessness or housing instability. Unfortunately, the current struggle of formerly incarcerated people to secure housing is still likely safer than a possible death sentence from forced confinement in one of the densest housing situations on the planet.  ↩

  11. Note that people convicted of violent crimes and sex offenses are the least likely to commit a similar offense in the future.  ↩

  12. Holding court hearings via video may violate due process rights and other rights afforded under the federal and state constitutions, and it has been proven to change the outcomes of judicial decisions for the worse. For example, using video to set bail has been shown to increase bail amounts by 65%. Policy makers considering video should also consider the chilling findings from 2015 study by Ingrid Eagly of the impact of using video during federal immigration proceedings:

    “Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process — they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure.”
     ↩


The Prison Policy Initiative's new "Whole Pie" report reveals what's at stake if prisons and jails do not take immediate steps to decarcerate.

March 24, 2020

As advocates urge prisons and jails to slow the spread of COVID-19 by releasing as many incarcerated people as possible, it’s more important than ever to understand how many people are locked up across the country, where, and why. The Prison Policy Initiative’s new edition of Mass Incarceration: The Whole Pie, released today, answers these essential questions with the most recent data.

Pie chart showing how many people are locked up in the United States, for what offenses, and in what facilities.

The data and 24 visuals in the report contain significant implications for how the criminal justice system should respond to the pandemic:

  • Local jails hold 631,000 people on any given day, including 470,000 people still awaiting trial. Jail overcrowding poses a serious public health risk in light of COVID-19, making it essential that courts, police, and prosecutors reduce jail populations to slow the spread of the virus.
  • Low-level infractions like misdemeanor charges, technical violations of probation and parole, and failure to appear in court account for millions of jail and prison admissions each year – admissions that should be put on hold immediately to improve public health outcomes.
  • 39,000 immigrants are currently being held by ICE for no reason other than their undocumented status. Unless they are released, their incarceration will put them at a heightened risk of contracting COVID-19.
  • While the majority of people in state prisons are convicted of violent crimes, federal and state officials can still take measures such as expanding parole and compassionate release to allow these individuals – many of whom are elderly or medically vulnerable – to go home.

“Now that COVID-19 is entering prisons and jails, our failure to end mass incarceration is making itself known as a public health crisis,” said Executive Director Peter Wagner. “If policymakers want to prevent a human tragedy from taking place in prisons and jails, they need to do what they’ve been refusing to do since we published our first Whole Pie report: shrink the incarcerated population to a fraction of what it is today.”

Even under normal circumstances, the lack of available data about the criminal justice system poses a significant obstacle to policymakers and advocates seeking to reform that system. In the face of the current crisis, clear facts are essential to quickly and safely downsizing prison and jail populations. This year’s Whole Pie report answers that need, providing the comprehensive view of mass incarceration necessary to make sound decisions today and, when this crisis passes, to plot a long-term path forward.

The Prison Policy Initiative also recently published policy recommendations for criminal justice systems to slow the spread of COVID-19. Its recommendations include releasing medically vulnerable adults from jails and prisons, reducing jail admissions, and ending parole and probation revocations for technical violations. The organization is tracking jails, prisons, and other agencies that take these essential steps.

The full report and graphics are available at https://www.prisonpolicy.org/reports/pie2020.html.


Even in the best of times, jails are not good at providing health and social services.

by Alexi Jones, March 19, 2020

With jails considering major policy changes as part of the response to the COVID-19 pandemic, we’re seeing a troubling question from allies with a little less experience on criminal justice issues: Given that jails provide valuable social services, wouldn’t it be bad to release people who need services? Aren’t the homeless, the mentally ill, or people with substance use disorders better off in jail?

In a word: No.

The longer answer is that even in the best of times, jails are not good at providing health and social services. Although local jails are filled with people who need medical care and social services, jails have repeatedly failed to provide these services. As a result, many people end up cycling in and out of jail without ever receiving the help they need. For example, even though a disproportionate number of people in jails have mental health disorders, jails have repeatedly failed to provide adequate mental healthcare. People with mental health disorders are often put in solitary confinement, have limited access to counseling, and not checked on regularly due to staffing shortages. The tragic result of these failures is that suicide is the leading cause of death in local jails.

Similarly, jails consistently fail to provide adequate medical care to incarcerated people. Notably, although two-thirds of people in local jails have a substance use disorder, most jails and prisons refuse to provide medication assisted treatment (MAT) for opioid use disorder—the gold standard for care. Moreover, substandard healthcare has had lethal consequences. For example, CNN recently published a scathing investigation into WellPath (formerly Correct Care Solutions), one of the country’s largest jail healthcare providers. They found that WellPath provides substandard healthcare that led to more than 70 preventable deaths in local jails between 2014 and 2018.

It’s absolutely true that people in the criminal justice system have a lot of ignored needs. But we shouldn’t misconstrue the “services” offered in jails as reasons to keep people confined in what are always harmful conditions. Given that many people in local jails have health conditions that make them especially vulnerable to this new coronavirus, and simple precautions like social distancing are nearly impossible behind bars, it is vital that we release anyone from jail who doesn’t need to be there. For many, it will be a matter of life or death.


How ICE and probation and parole detainers (or “holds”) contribute to unnecessary jailing

by Wendy Sawyer, Alexi Jones and Maddy Troilo, March 18, 2020

By now, most people paying attention to the U.S. criminal justice system have heard about problems with the overuse and misuse of local jails. Chief among these problems are the serious, even deadly, harms caused by even brief periods of jail detention. But one problem has escaped the attention of the public and policymakers alike: the unnecessary jail detention caused by “detainers,” which account for as much as one-third of some jail populations, if not more. This briefing explains how detainers (also often called “holds”) contribute to unnecessary jailing, and offers a preliminary analysis of available national, state, and local data as evidence of a widespread policy problem that demands greater attention.

Detainers, explained

Typically, people in jails are categorized as unconvicted (65% nationally) or convicted (35%). In our Mass Incarceration: The Whole Pie report, we have been able to go one step further, breaking apart the roughly 16% who are held for other agencies that pay to keep them boarded there. But another group of people are still obscured by this breakdown of the jail population: people who are in jail for more than one reason, who have what we’ll call a “dual status.” A significant number of people are locked up because of some kind of “detainer” or “hold” for their probation or immigration status, for example, which renders them ineligible for release. These people aren’t brought into jail on a detainer, but the detainer can keep them there when they otherwise could have gone home.

For example, if someone who is on probation is charged with a new low-level offense, they can be held in jail without bail if the probation department has issued a detainer for violating their probation. In fact, this is a critical part of Kalief Browder’s story: initially held on unaffordable bail, he was later denied bail because the Probation Department filed paperwork saying the new charge meant he had violated probation. It was the “violation of probation” – or “probation hold” – that kept Browder at Riker’s so long, causing irreparable harm that led to his eventual death. Without his dual status as a probationer, he probably wouldn’t have had money bail set in the first place: his friend, who was arrested along with him but was not on probation, was allowed to go home the next day. Even with his probation status, the judge was willing to set bail. It was only when the Probation Department stepped in to make their claim on his freedom that the judge remanded him without bail.

A detainer by any other name

States give them different names, but all detainers jail people for reasons other than public safety.

Before describing various types of detainers, it’s worth noting that jurisdictions don’t all use the same terms to describe the same scenario. For example, the administrative request that a person be held in jail until a probation or parole violation gets cleared up might be called a “detainer” in Pennsylvania, a “violation of probation” in New York, a “blue warrant” in Texas (for technical violations), and, in other places, more generally referred to as a “probation or parole hold.” Further complicating matters, people who are boarded in jails are often described as being “held” for other agencies, like ICE, state Departments of Corrections, the U.S. Marshals, etc. – these should not be confused with detainers or the other kinds of “holds” discussed here. That is another important, but separate, issue that we have written about elsewhere.

Detainers or “holds” are an overlooked policy problem that carries significant personal, social, and fiscal costs. They often expose detained people to the harms of incarceration for longer periods of time than they would be otherwise. This includes innocent people like Browder, whose case was dismissed three years into his time at Riker’s, after tremendous damage had already been done. By delaying jail releases, detainers also contribute to avoidable public costs by filling up local jails, often with people who are accused of low-level offenses. Detainers undermine the work of local jurisdictions trying to reduce unnecessary detention through pretrial reform, keeping people locked up for essentially administrative reasons rather than public safety reasons.

Detainers that impact jail populations most: Probation & parole holds and ICE detainers

As we touched upon above, probation and parole violations account for a lot of detainers. These can be for either “technical violations” or new violations of law. Technical violations are behaviors that break probation or parole rules, such as missing curfew, failing a drug test, or missing a check-in meeting; they are not behaviors that would count as “crimes” for someone not under community supervision. However, when people who are under community supervision are charged with a new crime, that also constitutes a violation of their probation or parole, and typically must be reported.1 Individuals can be kept in jail without bail for either type of violation on a probation or parole detainer.

In a 2019 report, the Council of State Governments (CSG) found that “45% of state prison admissions nationwide are due to violations of probation or parole.” Technical violations alone account for 25% of prison admissions; even less (20%) are for new criminal offenses. There is no comparable analysis for jails, but the fact that community supervision violations contribute so significantly to prison populations is suggestive that these violations could be responsible for large numbers of people locked up in jails as well.

U.S. Immigration and Customs Enforcement (ICE) also uses detainers to keep people in local jails to give ICE time to take them into federal custody for eventual deportation. These detainers, or “immigration holds,” request that local officials to notify ICE before a specific individual is released from jail custody and then to keep them there for up to 48 hours after their release date. These detainers essentially ask local law enforcement to jail people even when there are no criminal charges pending.

Detainers that apply to people in prison

In addition to ICE and probation parole holds, many people in prison have detainers for unresolved charges in other jurisdictions.

Detainers also apply to people in prisons with dual statuses – including ICE detainers for those the federal government believes may be “removable” – but in prison, it is less likely that someone would be kept in custody solely because another agency wants them to stay behind bars. More often, people serving state prison sentences have detainers for untried charges in other states or in the federal court system. These other jurisdictions lodge detainers so they have the chance to take custody of people with unresolved cases, in order to prosecute them, before they are released.

Unlike people in jails with detainers, though, people aren’t typically held in prison solely because another agency wants them held for their own purposes. And unlike people in jails, people in prison can resolve their outstanding cases while they serve their sentence, thanks to the Interstate Agreement on Detainers. That Agreement allows either the incarcerated person or a prosecutor from another jurisdiction to initiate disposition of the unresolved charges, so that they don’t have to wait until the sentence is over. This also means that the person in prison may be able to serve any new sentence concurrently or have all their outstanding court issues cleared up before they are released.

Because these detainers have such a different effect than the ICE detainers and probation and parole holds keeping people in jails, we focused our attention on the jail detainers for this analysis.

These detainers are the subject of heated debate, as many local jurisdictions are reluctant to take on the risk of litigation and liability associated with the constitutional concerns they raise (and/or reluctant to support the Trump administration’s immigration policy), which is reflected in the growing number of detainer refusals. Part of their reluctance may be that these risks are often taken on unnecessarily: ICE doesn’t consistently take these individuals into its own custody, even when it issues a detainer for them. The last time ICE released data on this point, the agency was only assuming custody in 35% of all cases where they issued a detainer – meaning that most of the time, jails that kept people locked up on ICE detainers did so for no reason at all.

How many people are in jail because of probation and parole detainers?

(The short answer: it varies, but in some places it’s over a third of the jail population, and we need better data to really answer this question.)

Continue reading →


Send our letter to your local jail, asking them to make video and phone calls free.

by Bernadette Rabuy and Wanda Bertram, March 17, 2020

As jails and prisons across the country suspend in-person visits to slow the spread of COVID-19, families are being rapidly cut off from their incarcerated loved ones. Phone calls and video calls are now the only option for anxious families trying to stay in touch. It’s more important than ever that these calls be available at no cost.

We prepared a template letter for local advocates fighting to preserve family contact in jails during the COVID-19 pandemic. Advocates are encouraged to customize our letter as needed and send it to their county sheriff or jail warden or administrator. The full text of the letter is below, and a shorter version of the letter follows (for people in counties where public comments must be under 300 words).

Dear [Sheriff/Warden name],

Your office recently took the step of [suspending/restricting] in-person visitation at [jail name] to prevent the spread of COVID-19. While there is no question that in-person visitation can be risky at this time, incarcerated people and their families must be able to communicate in order to endure this trying, confusing, and constantly evolving pandemic.

We are writing to request your leadership in protecting incarcerated people and their loved ones by providing phone and video calls free of cost for at least thirty days – as sheriffs have done in the past on special occasions, such as Christmas, and as has been recommended by prosecutors nationwide. Other counties, such as Shelby County, Tennessee, have already taken this simple and critical step.

As you know, there is a general panic as cases of COVID-19 spread. Incarcerated people’s loved ones are even more likely to be concerned. Correctional facilities are filled with people with chronic illnesses and complex medical needs; these people are at a particularly high risk for serious complications from infections like COVID-19. Moreover, it can be difficult for correctional facilities to prevent unsanitary and overcrowded conditions, which also put people at risk for COVID-19.

While the decision to halt visits may be best for public health reasons, it puts loved ones in a bind. Families are forced to check in with their incarcerated loved ones by paying for phone or video calls. But incarcerated people and their loved ones are disproportionately low-income, and likely to be employed in fields most impacted financially by social distancing. Unless you make changes, families will likely have to choose between purchasing essential groceries or a phone call with Mom or Dad.

If [jail name] has a welfare fund for incarcerated people or has otherwise collected commissions from the fees charged for communication services, instituting a policy of free calls would be the best immediate use of that funding. You may even discover unexpected benefits to a temporary policy of free calls: For example, increased communication with loved ones has been shown to reduce misconduct in facilities by lowering anxiety and tension. Stability may be one reason jurisdictions like New York City have shifted to free phone calls permanently.

With tensions running high in [jail name] as well as in our communities, waiving the costs of phone and video calls is a simple step your office can take to provide comfort to families and protect public safety, both in and outside of the jail. Thank you for your attention to this matter.

Shorter version:

Dear [Sheriff/Warden name],

Your office recently took the step of [suspending/restricting] in-person visitation at [jail name] to prevent the spread of COVID-19. While in-person visitation can be risky at this time, incarcerated people and their families must be able to communicate in order to endure this constantly evolving pandemic.

We are writing to request your leadership in protecting incarcerated people and their loved ones by providing phone and video calls free of cost for at least 30 days – as other counties have done, and as has been recommended by prosecutors nationwide.

With visitation halted, families are forced to check in with their incarcerated loved ones by paying for phone or video calls. But incarcerated people and their families are disproportionately low-income, and likely to be employed in fields most impacted financially by social distancing. Unless you make changes, families will likely have to choose between purchasing essential groceries or a phone call with Mom or Dad.

If [jail name] has a welfare fund for incarcerated people or has otherwise collected commissions from communication services, a policy of free calls would be the best immediate use of that funding. You may even discover unexpected benefits, like how increased communication with loved ones has been shown to reduce misconduct in facilities by lowering anxiety and tension. Stability may be one reason jurisdictions like New York City have shifted to free phone calls permanently.

With tensions running high in [jail name] and in our communities, waiving the costs of phone and video calls is a simple step your office can take to provide comfort to families and protect public safety, both in and outside of the jail. Thank you for your attention to this matter.


We offer five examples of policies that could slow the spread of a viral pandemic in prisons and jails - and would mitigate the everyday impact of incarceration on public health.

by Peter Wagner and Emily Widra, March 6, 2020

This briefing has been updated and expanded on March 27 with Five ways the criminal justice system could slow the pandemic. We recommend reading that one instead.

Since publishing this article, we have been tracking which prisons, jails and other criminal justice agencies are making meaningful policy changes to slow the spread of COVID-19. See our tracker, which we update daily, at https://www.prisonpolicy.org/virusresponse.html.

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers think about how a viral pandemic would impact people in prisons, in jails, on probation, and on parole, and to take seriously the public health case for criminal justice reform.

Below, we offer five examples of common sense policies that could slow the spread of the virus. This is not an exhaustive list, but a first step for governors and other state-level leaders to engage today, to be followed by further much-needed changes tomorrow.

Quick action is necessary for two reasons: the justice-involved population disproportionately has health conditions that make them more vulnerable, and making policy changes requires staffing resources that will be unavailable if a pandemic hits.

The incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19, the novel coronavirus. Protecting vulnerable people would improve outcomes for them, reduce the burden on the health care system, protect essential correctional staff from illness, and slow the spread of the disease.

Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population. Pregnancy data come from our report, Prisons neglect pregnant women in their healthcare policies, the CDC’s 2010 Pregnancy Rates Among U.S. Women, and data from the 2010 Census. Cigarette smoking data are from a 2016 study, Cigarette smoking among inmates by race/ethnicity, and all other data are from the 2015 BJS report, Medical problems of state and federal prisoners and jail inmates, 2011-12, which does not offer separate data for the federal and state prison populations. Cigarette smoking may be part of the explanation of the higher fatality rate in China among men, who are far more likely to smoke than women.
Prevalence of health condition by population
Health condition Jails State prisons Federal prisons United States
Ever tested positive for Tuberculosis 2.5% 6.0% 0.5%
Asthma 20.1% 14.9% 10.2%
Cigarette smoking n/a 64.7% 45.2% 21.2%
HIV positive 1.3% 1.3% 0.4%
High blood pressure/hypertension 30.2% 26.3% 18.1%
Diabetes/high blood sugar 7.2% 9.0% 6.5%
Heart-related problems 10.4% 9.8% 2.9%
Pregnancy 5.0% 4.0% 3.0% 3.9%

The other reason to move quickly is that, on a good day, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. If a pandemic hits and up to 40% of government lawyers are either sick or taking care of sick relatives and most of the rest are working from home, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to start:

  1. Release medically fragile and older adults. Jails and prisons house large numbers of people with chronic illnesses and complex medical needs, who are more vulnerable to becoming seriously ill and requiring more medical care with COVID-19. And the growing number of older adults in prisons are at higher risk for serious complications from a viral infection like COVID-19. Releasing these vulnerable groups from prison and jail will reduce the need to provide complex medical care or transfers to hospitals when staff will be stretched thin. (In Iran, where the virus has been spreading for several weeks longer than in the U.S., the government just gave temporary release to almost a quarter of their total prison population.)1
  2. Stop charging medical co-pays in prison. Most prison systems have a short-sighted policy that discourages sick people from seeking care: charging the free-world equivalent of hundreds of dollars in copays to see a doctor. In the context of COVID-19, not receiving immediate, appropriate medical care means allowing the virus to spread across a large number of people in a very confined space. These policies should all be repealed, but at a minimum should be immediately suspended until the threat of pandemic is over. (This will also reduce the administrative burden of processing and collecting these fees.)
  3. Lower jail admissions to reduce “jail churn.” About one-third of the people behind bars are in local jails, but because of the shorter length of stay in jails, more people churn through jails in a day than are admitted or released from state and federal prisons in 2 weeks. In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.2 As we explained in a 2017 report, there are many ways for state leaders to reduce churn in local jails; for example, by: reclassifying misdemeanor offenses that do not threaten public safety into non-jailable offenses; using citations instead of arrests for all low-level crimes; and diverting as many people as possible people to community-based mental health and substance abuse treatment.3 State leaders should never forget that local jails are even less equipped to handle pandemics than state prisons, so it is even more important reduce the burden of a potential pandemic on jails.
  4. Reduce unnecessary parole and probation meetings. People deemed “low risk” should not be required to spend hours traveling to, traveling from, and waiting in administrative buildings for brief meetings with their parole or probation officers. Consider discharging people who no longer need supervision from the supervision rolls and allow as many people as possible to check in by telephone.
  5. Eliminate parole and probation revocations for technical violations. In 2016, approximately 60,000 people were returned to state prison (and a larger number were arrested), not because they were convicted of a new criminal offense, but because of a technical violation of probation and parole rules, such as breaking curfew or failing a drug test. States should cease locking people up for behaviors that, for people not on parole or probation, would not warrant incarceration. Reducing these unnecessary incarcerations would reduce the risk of transmitting a virus between the facilities and the community, and vice versa.

There is one more thing that every pandemic plan needs to include: a commitment to continue finding ways — once this potential pandemic ends — to minimize the number of confined people and to improve conditions for those who are incarcerated, both in anticipation of the next pandemic and in recognition of the every day public health impact of incarceration.

None of the ideas in this briefing are new. All five are well established criminal justice reforms that some jurisdictions are already partially implementing and many more are considering. These ideas are not even new to the world of pandemic planning, as we found some of them buried in brief mentions in the resources listed below — albeit after many pages about the distribution of face masks and other technical matters. Correctional systems need to be able to distribute face masks to the people who need them, of course, but making urgent policy decisions about changing how and where you confine people is not something that should be relegated to a sentence about how agencies may want to “consider implementing alternative strategies.”

The real question is whether the criminal justice system and the political system to which it is accountable are willing to make hard decisions in the face of this potential pandemic, in the face of the one that will eventually follow, and in the context of the many public health costs of our current system of extreme punishment and over-incarceration.

 

Appendix: Other resources for practitioners

While preparing this briefing, the Prison Policy Initiative identified some resources that may be helpful for facilities and systems that may be starting from scratch on a COVID-19 response plan, which we share below. This list is not intended to be comprehensive, and will hopefully soon be out of date as other agencies update and share their own plans:

 

Footnotes

  1. Earlier this week, Iran reportedly released about 54,000 incarcerated people with sentences under five years, which is almost a quarter of their total prison population of 240,000 people, based on 2018 data from the World Prison Brief.  ↩

  2. Although national numbers of jail releases per day are not available, the number of jail admissions — 10.6 million annually — is relatively stable, with the jail population turning over quickly, at an average rate of 54% each week. Assuming, then, that the number of admissions is about the same as the number of releases, we estimate that about 29,000 people are released from jails in the U.S. every day (10.6 million divided by 365 days per year). In comparison, in 2017, state and federal prisons admitted and released over 600,000 people, averaging about 12,000 releases a week or 1,700 per day. For state-by-state data, we estimated the number of releases in a similar fashion — we divided the number of annual admissions and releases, obtained from the Census of Jails, 2013, by 365 days. Governors of other states may want to see this table based on data from the Census of Jails, 2013:

    State Jail Admissions Jail Releases
    Alabama 286,843 249,418
    Alaska 5,392 3,686
    Arizona 210,399 202,484
    Arkansas 258,321 232,255
    California 1,102,972 995,338
    Colorado 211,397 197,866
    District of Columbia 12,008 12,238
    Florida 732,602 680,801
    Georgia 602,648 537,857
    Idaho 104,539 50,384
    Illinois 315,553 290,264
    Indiana 270,415 277,994
    Iowa 127,179 123,693
    Kansas 153,914 142,759
    Kentucky 548,733 509,413
    Louisiana 317,091 334,730
    Maine 37,995 33,934
    Maryland 156,659 164,736
    Massachusetts 58,115 76,253
    Michigan 359,631 348,584
    Minnesota 188,662 180,393
    Mississippi 125,961 119,682
    Missouri 252,131 239,562
    Montana 48,418 39,179
    Nebraska 72,616 72,687
    Nevada 144,256 146,657
    New Hampshire 20,841 22,187
    New Jersey 147,088 134,407
    New Mexico 150,488 142,035
    New York 219,320 201,939
    North Carolina 417,199 433,700
    North Dakota 39,367 35,979
    Ohio 405,313 395,648
    Oklahoma 409,293 261,454
    Oregon 176,549 172,476
    Pennsylvania 209,732 213,319
    South Carolina 301,594 325,976
    South Dakota 56,477 56,851
    Tennessee 461,375 439,364
    Texas 1,144,687 1,083,223
    Utah 97,509 98,651
    Virginia 355,549 304,466
    Washington 283,627 305,963
    West Virginia 47,439 46,210
    Wisconsin 227,243 208,406
    Wyoming 29,384 30,803

     ↩

  3. Policymakers should also double their efforts — without slowing down actual releases — to plan for a continuity of health care after release, including getting people signed up for Affordable Care Act coverage and giving them referrals for other treatment as needed.  ↩



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