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Nearly 5,000 transgender people are incarcerated in state prisons, but we know very little about their lives before prison or their experiences during incarceration. To add to this limited body of research, we’ve analyzed the Survey of Prison Inmates, 2016 data, released in late 2020, which provides a glimpse into this overrepresented but understudied population. The small number of trans respondents to the Survey of Prison Inmates — only 29 trans people — limits our ability to generalize the data; however, the results from this study are worth exploring given the lack of information about trans people in prisons. Our findings help give greater visibility and understanding about the respondents’ lives, experiences, and challenges before and during their incarceration.
Because of the small sample of 29 trans respondents, we elected to avoid presenting percentages that could lead to misleading generalizations and instead focused on the raw data we could access from the Survey of Prison Inmates.
Here’s a glimpse into what we were able to learn from these 29 individuals:
Most of the trans people surveyed were people of color, lesbian, gay, or bisexual (LGB), and relatively young.
The trans people surveyed reported experiencing a variety of adverse experiences before turning 18, such as homelessness, foster care placements, arrest, and incarceration in juvenile facilities.
We know trans people in prison exist at the intersection of a number of oppressed identities. But beyond that, before this data was released, what we knew about the trans population in prison was limited to the reports published by the National Center for Transgender Equality.1 The Survey of Prison Inmates data adds to this previous work to provide a clearer picture of the actual lived experiences of incarcerated trans people, giving us a window in which to observe — and subsequently address — what trans people face behind bars and what factors may contribute to the likelihood trans people will come into contact with the criminal legal system.
Demographics of the 29 incarcerated trans people surveyed
The LGBTQ+ population is overrepresented at every stage of the criminal legal system. To look more specifically at the transgender population — which is often not distinguished from the LGB population in available data — we need to look at the demographics and see just how the trans population compares to the general prison population. From what we can tell from this small sample, the trans people surveyed tend to be more diverse in terms of their race/ethnicity and sexual orientation, and skewed younger in age.
Race and ethnicity. The vast majority (23) of the trans people surveyed were people of color. Eight were Hispanic, eight were Black, and seven identified with two or more races. Meanwhile, the overall prison population is about 32% white, 34% Black, 21% Hispanic, and 11% two or more races. This is generally in line with other studies which have found that trans people of color have especially high lifetime rates of incarceration.
Sexual orientation. Additionally, more than half (17) of the incarcerated trans respondents identified as lesbian, gay, bisexual, or something else other than straight. By contrast, 96% of the entire state prison population identifies as straight, according to the Bureau of Justice Statistics’ analysis of the same data.
Housing and poverty. About a quarter (8) of the trans respondents reported homelessness before age 18 and 13 trans respondents lived in foster care or an institution (like a group home) before age 18. Additionally, 12 of these trans people’s families received welfare/public assistance before they were 18, adding another layer of disadvantage, as children who grow up in poverty are at greater risk for behavioral problems, chronic health issues, and poor academic achievement.
Arrests and juvenile facilities. Most (16) trans people surveyed reported being arrested for the first time when they were 18 or younger, and many (12) spent time in a juvenile facility. Involvement in the criminal legal system at a young age is a fairly common experience for LGBTQ+ youth who are overrepresented in the juvenile justice system. Juvenile detention can be especially dangerous for trans youth who overwhelmingly report feeling unsafe in these facilities, and can be subject to solitary confinement ”for their protection.”
Education. The majority (19) of the trans people surveyed did not finish high school. Other studies have shown that outside of prison, trans students are more likely to report that they may not complete high school. Over 84% of trans students surveyed in 2019 reported feeling unsafe in school because of their gender, and a similar portion of trans students said they had been victimized in school because of their gender and gender expression. Interestingly, three of the trans people who responded to the Survey of Prison Inmates reported graduating from college. While we advise against generalizing this finding too broadly, this is a notable share of the trans respondents (12%). In comparison, only 4% of the entire surveyed state prison population reported earning a college degree.
Employment. Given that so many of the trans respondents were excluded from educational opportunities, it’s unsurprising that they also report low rates of pre-prison employment:2 less than half (13) of the trans people surveyed were employed in the month before their arrest.
Past criminal justice history. When asked about past involvement with the criminal legal system, the vast majority of trans people surveyed (23) reported having been on probation before, and over a third (11) had served time in jail at least twice before. Even short stays in jail can have detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. And previous research has shown that trans people are at an elevated risk of unemployment, unstable housing, and being disconnected from their families even without the added layer of criminal justice involvement.
It’s perhaps unsurprising that many of the trans people surveyed reported prior interactions with the criminal legal system given that trans people are criminalized and discriminated against for simply being trans. For example, the National Center for Transgender Equality and the National Gay and Lesbian Task Force’sInjustice at Every Turn: A Report of the National Transgender Discrimination Survey, found that trans people — especially trans people of color — are disproportionately harassed by police and experience high rates of unequal treatment and harassment interacting with government agencies/officials, judges or courts, and legal services clinics.
Experiences while in prison
Trans people outside of prison are less likely to have access to necessary health care and services, and more likely to have negative interactions with police and experience unemployment. The trans respondents to the Survey of Prison Inmates suggest these experiences happen behind bars, too.
Substance use treatment. Previous studies of incarcerated trans people have found that trans people were frequently denied routine healthcare in prison. Data from the Survey of Prison Inmates suggests this may also be true of drug treatment. While there was no direct question about a substance use disorder diagnosis in the survey, a possible proxy measure is whether someone had ever received drug treatment in their lifetime.3 Of the trans people surveyed, about one-third (9) reported ever receiving such treatment. But of those individuals, only 2 had received treatment since admission to prison.
Discipline. Many of the trans people surveyed had received a rule violation in the previous 12 months (12), and half of those individuals (6) had received multiple rule violations over the same time period.4 Of those who reported receiving disciplinary action, five reported being confined to their cell, and three were sent to solitary confinement.
Unfortunately, the survey does not ask the important questions about being violated or harassed in prisons. This is of particular concern for trans incarcerated people, given that 35% percent of previously incarcerated trans people surveyed by the National Center for Transgender Equality reported harassment by other incarcerated people and 37% reported being harassed by correctional officers or staff.
Work assignments. Unemployment outside of prison among trans people is a serious concern. Given the reality that trans people are frequently discriminated against by employers, it’s important that they have equal access to employment opportunities when they are incarcerated. At the time of the survey, 18 trans respondents had work assignments. Three trans people surveyed reported that they worked in goods production/correctional industries which tend to pay more than jobs supporting the prison itself (though all prison wages are exceptionally low). Other common jobs for trans people in prisons were hospital/medical duties, working in libraries, barber and beauty shops, and food service, which may be preferred jobs in prisons because of their relevance to post-release job prospects.
Programming. Nearly half of the trans survey respondents reported participating in job training or educational programming opportunities since admission. Given that trans people are often excluded from or pushed out of educational and job opportunities before incarceration, they may be trying to make up for lost opportunities while confined. Incarceration shouldn’t be trans people’s only opportunity to access job training and education, though; they would be better served by having more support at earlier intervention points, and through the rest of their lives.
Transgender people in prisons have multiple, intersecting marginalized identities that make them more vulnerable to traumatic experiences throughout their lives. Although this survey included only 29 trans people, it provides some valuable insights about their needs and will hopefully be the foundation of more in-depth research by government agencies, scholars, and advocacy groups. But the existing research makes it clear that there is an urgent need for trans people to be provided with more support during incarceration, more support after incarceration, and more help avoiding contact with the criminal legal system in the first place.
The 2015 U.S. Transgender Survey report provides a breadth of information about trans people’s life experiences, including a section that is particularly useful for understanding the prevalence of assaults and access to hormone therapy for people incarcerated in jails, prisons, and juvenile facilities, which is not available in any Bureau of Justice dataset. We hope this analysis of the Survey of Prison Inmates’ 2016 data provides additional context about the experiences of trans people incarcerated in state prisons specifically. ↩
Of course, past treatment is not evidence of an ongoing or current disorder, but this is the closest measure available with the Survey of Prison Inmates data we analyzed. ↩
In our analysis, we did not analyze types of rule violations by gender, but people could be “written up” for everything from minor offenses such as failing to follow sanitary regulations, to major offenses like work slowdowns. Of note, the individuals reporting a rule violation in the past 12 months were limited to respondents who had been in prison for at least 1 year and had reported at least one rule violation since admission (instead of the sample of 29 used throughout this briefing, the number of respondents to this survey question was limited to 16 trans people). ↩
What prompted Harris County’s pretrial reform efforts?
How a federal court ruling lead to significant pretrial reform.
In 2017, a federal courtfound that the money bail system in Harris County was likely unconstitutional and ordered that misdemeanor defendants unable to pay bail be released on unsecured bonds (as opposed to money bonds). Previously, Harris County, as well as Dallas and Galveston counties, relied on “fixed” bail schedules, which set bails at predetermined amounts and fail to consider an individual’s ability to pay. Because of this, in Harris County almost 60% of people arrested for misdemeanors (lower-level charges) in 2015 were jailed pretrial, while limited data from other states shows that 22-48% of misdemeanor defendants are detained pretrial. Moreover, prior to the federal court ruling, people arrested for misdemeanors in Harris County had no defense attorney present at bail hearings, a procedural injustice that contributed to the excessive pretrial detention in the county.
Because of the federal court’s decisions, in November 2019, Harris County courts agreed to make major reforms to the county’s bail system, to be monitored by an independent, court-appointed team. The monitoring team is composed of legal scholars and researchers who submit reports to the federal court every six months.
New data is out that supports bail reform efforts to end reliance on cash bail, minimize the number of people charged with misdemeanors and detained pretrial, and improve misdemeanor bail hearings. The recently published findings come from researchers charged with monitoring misdemeanor pretrial reform as it is implemented in Harris County (Houston), Texas.
In the most recent report on Harris County’s pretrial reform, the monitoring team reviewed the results of the changes implemented so far, and generally found that the reforms are successfully addressing some of the most pressing issues with misdemeanor pretrial detention. We highlight some of the most significant results they report about Harris County’s misdemeanor bail reform so far:
Fewer people charged with misdemeanors and detained pretrial
Most people in city and county jails across the country are detained pretrial, meaning they are legally innocent and have not been convicted of the crime they are held for: too often, they are jailed because they cannot afford the cash bail set by the court. In Harris County, the percent of misdemeanor defendants detained pretrial dropped from 47% in 2015 to 22% in 2021. Unfortunately, a number of people are still detained despite the Consent Decree and subsequent reforms, for felony cases or because of “holds” for other agencies such as probation, parole, or immigration. (See report, Figure 12, p. 37)
Fewer misdemeanor convictions
Pretrial detention increases the odds of misdemeanor conviction, largely because detention pressures people to take plea deals when otherwise their case would likely be dismissed or they would be acquitted. By reducing the pretrial detention rate, the percentage of misdemeanor cases resulting in conviction dropped 54% from 2015 to 2020 in Harris County. Conversely, the percentage of misdemeanor cases resulting in dismissal or acquittal increased from 31% to 68% between 2015 and 2020. (See report, Figure 16, p. 43)
Shorter periods of being locked in jails
Because pretrial detention can have disastrous consequences for employment, housing security, and families, reducing the amount of time defendants spend behind bars is crucial. From 2015 to 2021, the percent of misdemeanor defendants detained pretrial in Harris County for 2-7 days dropped 14% and those detained for more than 7 days dropped 12%. Shorter stays became more common, with the share of defendants released within 2 days increasing by 27%. (See report, Table 3, p. 35)
Fewer “failures to appear” and no increase in pretrial arrests for new offenses
Two of the most commonly cited goals of pretrial detention and cash bail are to guarantee court appearances and reduce the likelihood of re-arrest before trial. But in Harris County, reducing the number of people detained pretrial actually decreased the rate at which people either missed their court date or had their bond revoked for some other reason (such as re-arrest) by 5%. Additionally, the share of misdemeanor arrestees with a new case filed within 90 days, 180 days, and 365 days remained unchanged following the reforms, suggesting that pretrial detention does not increase court appearances or reduce the chances of pretrial re-arrest. (See report, Table 6, p. 46 & Figure 14, p. 40)
Millions of dollars saved by the county and defendants
Conservative financial estimates suggest that Harris County saved $6.6 million per year from these changes and that individuals arrested for misdemeanors saved $314 million as a group over the past seven years. (See report, p. 51)
No increase in racial disparities
Unlikesome other pretrialreform efforts, there is no evidence that racial disparities widened following the Harris County bail reforms. From 2015 to 2021, 58-59% of misdemeanor defendants in Harris County were Black. The reforms have not yet reduced disparities, either: The share of Black people arrested for misdemeanors in Harris County is still substantially higher than for misdemeanor arrests nationally (26%) and significantly higher than the share of Black residents of Harris County (20%). (See report, Figure 4, p. 26)
These new findings clearly support the bail reform efforts taken so far in Harris County, and should serve to embolden policymakers to take similar action in their own jurisdictions. Unfortunately, Texas officials themselves seem to be ignoring the evidence that bail reform can safely reduce unnecessary jailing. Just before these findings were published, Texas Governor Abbott signed Senate Bill 6 into law, eliminating the possibility for release on personal bond for “violent” crimes (or for those who are charged with any felony, misdemeanor assault, deadly conduct, or gun charges while out on bail for a “violent” offense).1
While the Harris County reforms focused on misdemeanors and this new law is concerned with felonies, previous research offers a plethora of evidence supporting bail reform at both the misdemeanor and felony levels. In fact, 2017 research from Harris County suggests that pretrial detention can actually increase the odds of future offending and reviews of pretrial reform across the country reveal that increased pretrial release does not result in increased crime. On an individual level, pretrial detention often has detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. The evidence from Harris County and from other states that have implemented more robust pretrial reforms — like Kentucky and New Jersey — demonstrates that these reforms are common-sense changes that save money, protect individuals and families, and uphold justice and community safety alike.
Senate Bill 6 — or “the Damon Allen Act” — is named after a state trooper who was killed during a 2017 traffic stop. The suspect in his death was out on a $15,500 bond (meaning he paid the amount of cash bail set by the court), and therefore the reactionary efforts of this bill would not have changed the conditions of his release back in 2017. (And, it’s important to note, his release was prior to the 2017 lawsuit that resulted in the Harris County misdemeanor bail reforms discussed above.) ↩
Updated March 29, 2022 with a graphic that more clearly shows the changes in outcomes for misdemeanor defendants, and with text changes that reflect the relative (percent) change in rates rather than the net change in rates for these outcomes.
Last week, we released the latest edition of our Mass Incarceration: The Whole Piereport, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available. Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic. Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change. In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.
It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”
The reduction in prison admissions, which explains most of the drop in incarceration in the early pandemic, was the effect of temporary changes in arrest and jail practices, court slowdowns, and the refusal of some prisons to accept transfers from jails. However, the data do not allow us to distinguish how much of the drop in admissions was due to a given type of change, such as transfer refusals versus slowdowns.
The changes that have had the most impact on incarceration since the start of the pandemic include:
24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.
Critically, the one thing that we and other advocates demanded from the very start of the pandemic – intentional, large-scale releases to prevent the spread of COVID-19 in the tight quarters of prisons and jails – did not happen. In the first year of the pandemic, prisons actually released 10% fewer people than they did the year before, and among the twelve states that regularly publish more recent data, that trend held throughout 2021 as well. Only three states (New Jersey, California, and North Carolina) released a significant number of incarcerated people from prisons. Parole boards also approved fewer releases in the first year of the pandemic than the year before.
Changes in crime and arrests
Two major factors contributed to the 24% drop in arrests in 2020: widespread changes in behavior and more limited changes in police practices. The shift away from in-person activities towards remote work, learning, commerce, and social contact represented a major change in our usual behaviors. This explains some changes in crime trends: for example, with more people home during work hours and on weekends, there were fewer low-risk targets for home break-ins. And in 2020, there were 18% fewer home burglaries reported than in 2019, and consequently 13% fewer arrests for burglary. With fewer people out, there were also fewer opportunities for thefts that require close contact: reports of pickpocketing dropped 37% and purse-snatching 25%, and arrests for these types of crimes (larceny/theft) dropped 23%. The 24% drop in arrests for driving under the influence (DUI) also makes sense in this context: there were fewer people on the roads, and for a long time, few bars or restaurants open for people to consume alcohol.
Policing changed too, to a lesser degree. Police officers got sick, reducing their capacity to arrest, and some officials directed police to avoid unnecessary contact with the public and to issue more citations in lieu of arrest. This likely explains the dramatic reductions in arrests for “nuisance” crimes like vagrancy and drunkenness.
Some of these changes were extremely short-lived: Philadelphia police suspended “non-violent” arrests in mid-March 2020, but just two weeks later, the police force announced it would resume arrests for property crimes, effectively reversing the earlier policy. Police in Maui, Hawai’i set up a call center early in the pandemic to handle calls that didn’t require in-person responses; it was shut down within just three months, when the Police Chief declared “things are settling down.”
Given that almost all of these changes were in direct response to the pandemic, as opposed to long-term policy changes, we should anticipate a return to pre-pandemic arrest rates as work, school, business, and social life return to “normal.”
Jail bookings and pretrial detention decisions
Jail admissions generally mirror arrest trends, so fewer arrests mean fewer people booked into jail. The drop in arrests in 2020 therefore accounts for most of the 16% drop in jail admissions over the course of the year. But there were also some notable, temporary, pandemic-response policies that contributed to the reduced jail populations we saw in 2020, namely:
The promises of many prosecutors to decline to prosecute certain low-level offenses or to dismiss pending charges against people arrested for such offenses,
The suspension of arrests for non-criminal (or “technical”) violations of probation and parole,
Temporary changes in probation and parole conditions that made it easier for people under community supervision to comply, such as videoconferencing instead of face-to-face check-ins and the waiving of monthly fees, and
The temporary suspension of arrests on outstanding “bench warrants” for things like missed court dates.
Some courts and prosecutors also made impactful, though temporary, changes to pretrial processes. On any given day, at least two-thirds of the nation’s jails are filled with people who have not been convicted and are legally innocent, many because they cannot afford money bail. But early in the pandemic, we saw changes like the “$0 bail” emergency rule ordered for California’s courts, which eliminated unaffordable bail as a barrier to pretrial release for people accused of misdemeanors and lower-level felonies. In another example, the State’s Attorney in Vermont’s largest county directed her office to stop requesting bail for defendants facing low-level charges.
Together, these changes reduced the use of jails for things other than serious public safety concerns. Most of these temporary policies have long since expired, so, except for thoseplaces that have enacted policies to permanently reduce incarceration for these non-dangerous and/or non-criminal violations, we should expect to see more people jailed for these reasons again as the pandemic wanes.
Most courts had to dramatically change their operations during the pandemic in ways that led to long delays in case processing. According to the National Center for State Courts, the most common court responses to the pandemic included restricting or ending jury trials, suspending in-person proceedings, restricting entry to courthouses, extended filing deadlines, and encouraging video conferences in place of hearings.
In 2020, 21% fewer criminal cases were filed in state courts than in 2019, which in turn meant fewer people were convicted and sentenced to jail or prison. The most recent data available indicates that the number of criminal case filings were still much lower than pre-pandemic levels as of June 2021. Some of this drop in new cases is explained by changing crime and arrest trends, but prosecutorial decisions also played a key role. For example, the Maricopa County (Arizona) Attorney’s Office began delaying the filing of – but not dismissing – “thousands of charges” in an effort to keep down the number of people in courtrooms and jails (and potentially to avoid problems complying with speedy trial laws). And Seattle’s District Attorney decided early on to briefly stop filing charges except for “priority in-custody violent crimes.”
But the changes in court operations have made an even bigger dent in case dispositions than case filings: in 2020, state courts closed 36% fewer criminal cases than in 2019. Unable to keep pace with incoming cases, the clearance rate for criminal cases across over 30 state court systems dropped from 105% in 2019 (when courts were able to close more cases annually than were added to the docket) to 88% in 2020. Some of this slowdown, too, was the result of attorneys requesting postponements; some was simply due to court closures.
Pandemic caseload data from the Court Statistics Project show that criminal court slowdowns were at their worst between July 2020 and January 2021, but even with fewer new cases coming in, “pending” cases have piled up and will take time to clear. As they do, and as arrests and prosecution return to pre-pandemic norms, we can expect the rate of people convicted and sentenced to incarceration to climb back up.
The cumulative effect of fewer arrests, temporary changes in probation and parole practices, and pandemic-related delays in trials and sentencing was a dramatic 40% reduction in the number of people who entered prisons in 2020. The number of new court commitments (that is, people admitted to prison to serve a new sentence) dropped almost 43% from 2019 to 2020. And, for the same reasons jail admissions fell for non-criminal violations of probation and parole, the number of people admitted to prisons for these violations fell 35%. The massive decrease in admissions was driven by steep drops in large states like California (down 66%), Florida (down 53%), and New York (down 60%).
Some of the change in admissions to prison, however, was simply because people were left in jails longer before being transferred to prisons. In an effort to prevent the spread of COVID-19 between facilities (a very validconcern), some state prison systems, such as Illinois’, refused to admit people held in local jails who were sentenced to prison. While this may have helped slow the spread into prisons, staff were still bringing the virus into facilities from their home communities. Meanwhile, these delays left thousands of people stuck in local jails, which have fewer programs and far more population turnover than prisons – a miserable situation at any time, but particularly during a pandemic.
Again, because the changes that resulted in fewer admissions in 2020 were temporary responses to the pandemic, we should expect prison populations to rebound to pre-pandemic levels as courts catch up with their backlog of pending cases and probation and parole agencies return to more stringent conditions and harsher punishments for non-criminal violations.
Prison and jail admissions are at historic lows. We can keep it that way.
The changes to the criminal legal system during the pandemic were, for the most part, temporary responses to the immediate public health emergency, not deliberate policy choices to reduce incarcerated populations over the long term. There is little reason to think that incarceration rates will remain at their pandemic-era lows without more intentional changes, particularly since jail and prison populations have already started to rebound. Furthermore, the piecemeal actions that federal, state, and local authorities did take were not nearly enough to protect people in prisons and jails, nor the communitiesthat surround them. To date, almost 600,000 incarcerated people have been infected and more than 3,000 have died behind bars because of COVID-19. And of course, the pandemic isn’t over; still, authorities continue to ignore public health guidance that specifically calls for decarceration.
The fact that many early-pandemic policy changes were so short-lived is particularly frustrating since we know they helped rapidly reduce populations without compromising public safety. Data from the National Crime Victimization Survey show that the number of violent crimes (excluding homicide, which the survey does not cover) fell from about 2 million in 2019 to 1.6 million in 2020; accordingly, the rate of violent victimization fell by 22%. The household property crime victimization rate fell by about 7%. And, as discussed above, arrests and crimes reported by police fell, too.
Government authorities’ willful disregard of the evidence that further, sustained policy changes are both urgently needed and safe is part of a larger problem, of course. The perception (notareality) that criminal justice reforms have led to upticks in crime over the past few years has fueled pushback against smart policy changes. That perception is powerful, and history shows that reactionary policies can follow: In the 1980s and 1990s, the last time prison and jail populations were as low as they were in 2020, the knee-jerk reaction to (much bigger) increases in crime was to lock more people up, and for longer. Particularly in the context of the ongoing pandemic, we can’t afford to let that happen again.
In a new piece in Inquest, our general counsel Stephen Raher and Ariel Nelson of the National Consumer Law Center expose the cycle of exploitation that saps money from incarcerated people and their loved ones. The piece provides a big-picture overview of how government agencies and private corporations are profiting off of this system. It explains there are three stages in the cycle:
First, companies and governments take a cut of money coming into prisons. Even in prison, a person needs money to survive, and because prison wages are so low, many incarcerated people rely on money transfers from loved ones to survive. At a time when people in the free world can instantly send money through their smartphones for free, prison money transfers still come with a whopping 20% average fee.
Next, while in prison, incarcerated people are subjected to outlandish rates and prices for essentials — like communications services, food, and hygiene products — and burdened with mandatory fees for things like medical care and the general cost of confinement.
Finally, when a person is released, they often receive a release card, a prepaid debit card that contains money they had when entering prison, money they earned while locked up, and money they had in their trust account. These cards are rife with fees — many of them unavoidable — that quickly drain the money on the card and line the pockets of the companies that administer these programs.
People increasingly recognize this cycle of exploitation is morally problematic and makes poverty — one of the main drivers of criminalized behavior — worse. That’s why some government agencies are increasingly crackingdown on this behavior, and through our research and advocacy, we’re pressuring more states to join them.
The report includes 31 visualizations of criminal justice data, exposing long-standing truths about mass incarceration in the U.S.
March 14, 2022
Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2022, compiling 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 — since the COVID-19 pandemic began. The report 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.
Highlights from the report include:
Prison populations fell by about 16% during the pandemic. However, 10% fewer people were released from prison during 2020 than in 2019, and preliminary data suggests that fewer still were released in 2021, meaning that people leaving prison did not drive the population drop. Instead, the reduction was due to reductions in prison admissions, largely due to pandemic-related slowdowns in the criminal legal system.
Local jail populations fell about 13% during the pandemic. Since then, a sample of over 400 jails shows that jail populations are returning to pre-pandemic levels and more than a quarter of jails have higher populations today than before COVID-19.
In total, roughly 1.9 million people are incarcerated in the United States.
“Even when the U.S. prison population was at a historically low point in the pandemic, we were still locking up far more people per capita than any other country on earth,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “It’s important for people to understand that the temporary population drops during the pandemic were due to COVID jamming the gears of the criminal justice system — not because of any coordinated actions to reform the system.”
The report includes 31 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:
The U.S. continues to lock up hundreds of thousands of people pretrial every day. A rise in the use of money bail over the last 40 years has driven an increase in pretrial populations.
Black people are still overrepresented behind bars, making up about 38% of the prison and jail population.
At least 113 million adults in the U.S. (or over 40%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.
The report also tackles frequent misconceptions about mass incarceration related to prison labor, the war on drugs, private prisons, what victims of crime want, and community supervision.
“As the pandemic eases, and with incarceration rates as low as they’ve been in decades, elected leaders face a choice. They can take bold action to continue to reduce the number of people behind bars and invest in community responses that address the core causes of crime — poverty, addiction, and mental health struggles — or they can return to business as usual with incarceration rates stubbornly stuck at globally high rates and ballooning correctional budgets that burn through tax dollars without making communities safer and stronger,” said Sawyer. “The Whole Pie should serve as a call to action for government to finally end our nation’s failed experiment of mass incarceration.”
The Prison Policy Initiative traditionally releases a new version of its Whole Pie report annually however, COVID-related delays in the release of government-produced data prevented the organization from releasing a new version in 2021.
A new report from the Correctional Association of New York reveals why some people in prison are reluctant to get the COVID-19 vaccine and a lot of it has to do with distrust in the correctional system.
Over 3,000 incarcerated and detained people in the United States have died of COVID-19 in the past two years, with over 588,000 cumulative cases behind bars. With little sign of COVID-19 quietly fading away, public health officials have been clear, consistent, and accurate that vaccinations are our strongest defense against existing and future variants of COVID-19. But despite widespread vaccine availability across the country, many people continue to be hesitant about the COVID-19 vaccination.1
While the vaccine refusal rates are not generally worse in prisons than in the general population, vaccination is even more critical in prisons. Incarcerated people can’t employotherstrategies to avoid getting COVID-19, they have higher rates of medical conditions that make them more vulnerable to severe illness and death, and if they do fall ill, they don’t have the same access to prompt, effective medical care as people outside of prison do. Behind bars, the risks of non-vaccination can be even more deadly, with a COVID-19 death rate of more than double that of the general U.S. population.2
An insightful new report from the Correctional Association of New York offers the only survey data we know of that explains why incarcerated people are hesitant to accept the COVID-19 vaccination. 3 A report focusing on New York is particularly valuable nationally because New York State was one of the least successful states (by our data4) at vaccinating incarcerated people.5 The report finds that vaccine hesitancy in prison is rooted in general distrust and suspicion of healthcare in prison, and that the solutions to overcome vaccine hesitancy behind bars are more complicated than in non-carceral settings.
Researchers have determined that the best practice for addressing vaccine hesitancy – in general and in the context of COVID-19 – is to promote transparency, equity, and trust between individuals, communities, and healthcare providers.6 In addition, we know that community engagement,7 messaging and education,8 and timely and accurate information about vaccines are critical for responses to vaccine hesitancy.
The reality is that the prison context inherently undermines almost all of the best practices for responding to vaccine hesitancy.
The erosion of trust in prison healthcare undermines vaccination efforts
The major finding of the Correctional Association report is that the primary reason people behind bars are hesitant to get the vaccine is a lack of trust in the prison medical system.
Before COVID-19, incarcerated people were suspicious and critical of prison healthcare: they reported poor quality of care, difficulty accessing medical care, and a distrust of prison medical care. Some incarcerated people in New York cited the Tuskegee syphilis experiment and the water crisis in Flint, Michigan as reasons to be suspicious of state public health initiatives, stating, “My greatest fear is to be a lab rat for the state” and “Communities of color have always been experimented on; why are state officials going to stop now?”
But the distrust is particularly poignant in the context of COVID-19 vaccinations. A slight majority of incarcerated people surveyed by the Correctional Association reported that they generally “trust vaccines” (52%). A similar number (49%) of respondents reported that they generally trust doctors and healthcare providers to make medically correct judgements, but only 9% of respondents trust doctors or healthcare providers in a prison to make medically correct judgments.
Figure 1: Responses regarding trust of healthcare providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that incarcerated people are much more likely to distrust prison healthcare providers than non-prison-affiliated healthcare providers.
Given that general distrust of prison medical providers, it’s unsurprising that a significant portion of survey respondents were less likely to accept the COVID-19 vaccination if offered by the New York Department of Corrections and Community Supervision’s (DOCCS) medical staff.
Figure 2: Responses regarding likelihood of accepting the COVID-19 vaccine if administered by correctional staff and correctional health care providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that 42.7% of respondents are less likely to accept the vaccine if it is administered by correctional staff, again emphasizing the inherent lack of trust between incarcerated individuals and the correctional healthcare system.
“What works” to overcome vaccine hesitancy hasn’t worked in prisons
Public health experts have established best practices for addressing vaccine hesitancy, but the persistence of this distrust among incarcerated people underscores how the prison setting itself undermines these practices:
Trusted communicators are crucial to expanding vaccine acceptance. Most recommendations for addressing vaccine hesitancy emphasize the need for “trusted communicators,” but with limited visitation and suspended programming and volunteers, who are the trusted communicators in prisons? The reality is that most information about the vaccines in prisons comes from prison administrators and correctional staff. In May 2021, a month after vaccines were available to people in congregate living situations (like prisons), John J. Lennon (incarcerated in New York) recommended in a New York Times op-ed that the DOCCS “tap influential prisoners to disseminate accurate vaccine information” and even suggested utilizing the preexisting inmate liaison committees established after the Attica uprising. According to the recentCorrectional Association report, the New York DOCCS instead “developed a video featuring Tyler Perry and incarcerated people attesting to the benefits of the vaccine.” The reality is that trust, transparency, and equity have long been eroded by the criminal legal and prison systems, which this video had little hope of repairing.
Community engagement is often limited in prisons, where interactions between incarcerated people are regularly restricted. During COVID-19, community engagement behind bars all but disappeared. Programming – including education courses, work-release, treatment programs, and group activities – were suspended in every state prison system (as far as we’ve been able to tell) at some point during COVID-19. Many prisons stopped programming and in-person visits entirely for the better part of the past two years. Additionally, incarcerated people have experienced unnecessary use of solitary confinement during the pandemic. Correctional institutions in the United States have long been distanced from “mainstream” society and community, and in many ways, the pandemic has only furthered that isolation. So while having community members and volunteers who aren’t part of the prison system come in to informally discuss vaccination concerns might have helped improve vaccine acceptance, incarcerated people saw even fewer people from the outside during the pandemic.
Disseminating timely and accurate information has proven difficult in correctional facilities. Contact with those outside prison walls has been limited throughout the pandemic, with suspended or limited visitation, increasing restrictionson mail, expensivephone calls, and interrupted programming. But relying on information from only within the prison comes with a high cost for vaccine acceptance: misinformation and distrust of the vaccine can run rampant and unchecked. John J. Lennon reported for the New York Times that corrections officers where he is incarcerated told him that the vaccine was “not tested enough” and that COVID-19 was just “the flu.” A sergeant in the Florida Department of Corrections told The Marshall Project, “If I’m wearing a mask, gloves, washing my hands and being careful — I’d still feel better working like that than putting the vaccine in my body.” Other correctional officials in Florida told The Marshall Project that some of their colleagues believe the vaccine could give them the virus or that the vaccine contains some kind of tracking device.9
The responses to the Correctional Association survey point to a lack of trust in prison medical care providers based on the quality and inaccessibility of care, limited access to information about their healthcare, and the tension between healthcare professionals meeting their duty to their patients while enforcing and complying with directives of the prison administration (sometimes referred to as “dual loyalty“). The DOCCS’ mishandling of the COVID-19 pandemic and subsequent traumatic experiences during COVID-19 in prison, only served to erode incarcerated people’s trust further.
In many ways, the pandemic has served to highlight just how opaque the prison healthcare system is and just how wary incarcerated people are of prison medical care. Moving forward, prison systems must do better, not only by providing better, more accessible, more transparent health care, but also by recognizing their inherent limits when it comes to responding to public health concerns, and adopting better strategies.
Specifically, when faced with the current and future health emergencies, prison systems should:
Release more people from prisons. Nationwide, states and the federal government actually released 10% fewer people from prison in 2020 than in 2019, despite the consensus among public health officials and advocates that decarceration is crucial to protecting public health and limiting the spread of COVID-19. To reverse this trend, departments of corrections, state governments, and courts need to work together to release people from prison using any tools they have at their disposal, including large-scale releases like we saw in New Jersey, California, and North Carolina. The Correctional Association report recommends increasing the use of pretrial release, alternative sentencing, early release, medical parole, parole board release, and commutation to rapidly reduce prison populations.
Address issues of transparency and equity in correctional health care. To address these issues in the context of COVID-19, the Correctional Association report recommends expanding the provision of adequate and timely information about COVID-19 and the vaccine, and alleviating gaps in the quality of medical services by expanding preventative care (routine screenings, education, and outreach). To improve general correctional healthcare, the Correctional Association report recommends that the state designate an independent correctional ombuds to investigate and resolve complaints related to incarcerated peoples’ health, safety, welfare, and rights, as well shift oversight of correctional healthcare to the state department of health.
Ensure that corrections officials are dedicated to reducing our reliance on incarceration and improving the health and welfare of those under their care. Corrections officials and decision makers need to take COVID-19 – and the subsequent deaths of over 3,000 incarcerated people – seriously. Incarcerated people’s connection to up-to-date news is tenuous at best, and during COVID-19 (with limited visits and changes in phone call and mail policies), they’ve been even more reliant on information directly from corrections departments. Mixed messages about the realities of COVID-19 from corrections departments (we’ve heard at least one report of a PA system announcement in a Pennsylvania prison facility stating that the pandemic is “over”) and corrections officers’ own vaccine hesitancy and misinformation leave incarcerated people in the dark to the detriment of everyone.
While COVID-19 vaccinations and booster doses are some of our strongest defenses in the face of the continued pandemic and new variants, it’s increasingly clear that prison systems need to prioritize decarceration. No amount of public health education and vaccine messaging will, on their own, dismantle decades of distrust and suspicion of prison health care. Prisons are no place for a public health crisis and government officials should be prioritizing releases and decarceration as both a first response and an ongoing response to emergencies like COVID-19.
The World Health Organization (WHO) defines “vaccine hesitancy” as a “delay in acceptance or refusal of vaccines despite availability of vaccine service” and in 2019 – before COVID-19 – vaccine hesitancy was one of the ten greatest risks to global health. ↩
The COVID-19 death rate in prisons at the end of April 2021 stood at a staggering 200 deaths per 100,000 incarcerated people, much higher than the death rate among the general U.S. population of 81 deaths per 100,000 residents. These rates, calculated by the UCLA Law COVID Behind Bars Data Project, were adjusted to account for differences in age and sex between the prison population and the general U.S. population. For more details about how these rates were calculated, see “COVID-19 Incidence and Mortality in Federal and State Prisons Compared With the US Population, April 5, 2020, to April 3, 2021” published in the Journal of the American Medical Association. ↩
Although it is outside the scope of the Correctional Association report and this briefing, it is important to mention that there are still instances of incarcerated and detained people requesting COVID-19 vaccines and/or boosters and being denied. For example, a 2022 lawsuit filed by the ACLU on behalf of people detained in ICE facilities reported that detainees had been repeatedly denied booster doses despite obvious medical vulnerabilities. ↩
Comparative data on vaccination in prisons is very hard to come by as many states do not publish the data, do not publish it frequently, or calculate it differently. But as of our December 2021 survey, New York had one of the lowest rates – 52% as of December 5, 2021 – and almost all of the states with lower rates of vaccination had much older data, dating as far back as June 2021 when the vaccine itself was in short supply. (The Correctional Association reports a figure of 48.3% as of September 2021, which they presumably received directly from the state prison system.) ↩
New York’s vaccination plan implied that incarcerated people would be eligible early, with “those living in other congregate settings.” However, as of early March 2021, vaccine eligibility had not yet been expanded to all incarcerated people. Availability to people younger than 65 in prison was made possible by a late March 2021 New York State Supreme Court ruling, after which the New York Department of Corrections and Community Supervision began the vaccine rollout to the entire incarcerated adult population. The ruling noted that incarcerated people had been arbitrarily and unfairly excluded from the vaccine rollout plan: state officials “irrationally distinguished between incarcerated people and people living in every other type of adult congregate facility, at great risk to incarcerated people’s lives during this pandemic.” ↩
Our new advocacy department created this toolkit as part of our expanded effort to support the people and groups on the ground doing the hard work to end mass incarceration.
While most advocacy departments organize campaigns, mobilize volunteers, and pressure decision-makers for change, ours is a bit different. We’re not looking to replicate the amazing work that thousands of people and hundreds of organizations are already doing to reform the criminal legal system. Instead, as a research organization known for using data visualizations and easy-to-understand narratives, our advocacy work aims to help these organizations leverage our expertise to strengthen their campaigns. That’s why our advocacy department will focus on:
connecting state and local movement partners and decision-makers to data that can fuel their campaigns for criminal justice reform;
identifying and filling gaps where new research would support reform efforts;
producing training materials, like the Advocacy Toolkit, for use by criminal justice reform advocates; and
providing technical assistance, including identifying reform opportunities (such as our annual list of winnable state criminal justice reforms), giving messaging support, offering expert review of documents and legislation, and connecting partners working in similar spaces.
We hope these new resources will help to strengthen the movement to end mass incarceration. If you use the Toolkit in your work, tell us about it. Let us know what worked, what didn’t, and what other resources we can provide. And, if you’re an organization seeking assistance from our new advocacy department, drop us a line to let us know how we can help.