HELP US END MASS INCARCERATIONThe Prison Policy Initiative uses research, advocacy, and organizing to dismantle mass incarceration. We’ve been in this movement for 20 years, thanks to individual donors like you.
Today, the Prison Policy Initiative released its latest resource for advocates fighting for impactful reforms that shrink the footprint of the criminal legal system: a guide to avoiding harmful “carveouts” that appear in many reform bills. Carveouts are clauses that serve to exclude large categories of people — often the majority of those who stand to benefit — from reform, by reserving policy changes for people convicted of “nonviolent, non-sexual, and non-serious” offenses.
As our new guide explains, almost all major criminal legal system reforms in the last 20 years have excluded people charged with or convicted of violent or sex-related offenses. Many of these carveouts have been particularly unnecessary because they applied to programs already controlled by prosecutors, ironically limiting prosecutors’ discretion around things like diversion programs. The result has been to limit the impact of reform and further entrench mass incarceration.
Our guide walks through common arguments in favor of excluding all but the “non, non, nons” from reform, offering counterarguments for advocates to respond with. Arguments (and responses) we discuss include:
“We have to start with reforms to nonviolent charges, and we’ll ‘come back’ for more serious charges later.” In fact, as we explain, decades of legislation with carveouts has not led to a wave of legislation “coming back” to address the majority of people in prison. Rather, carveouts make later reform harder by reinforcing the flawed logic of mass incarceration.
“Victims of violent crime want people with violent charges excluded from reform.” Data show that the reverse is true: Victims of violent crime are more interested in alternatives to incarceration than in keeping people locked up.
“Including people charged with violent offenses in reform will harm public safety.” In reality, re-arrest rates are lowest among people convicted of violent offenses, and research shows that only a tiny fraction of people convicted of serious violent offenses who are released from prison later come back to prison for another violent offense.
“People convicted of violent offenses don’t deserve mercy or reform.” This argument assumes that everyone convicted of a serious offense is the same, painting with an extremely broad brush. Even when the crime someone was convicted for was undeniably violent or serious, categorically excluding people from reforms ignores the immense change people can undergo following the worst thing they have ever done.
Recognizing that what counts as a “serious” offense is always changing, our guide includes a section on fentanyl carveouts, which in recent years have excluded people using or selling fentanyl from drug law reforms. For advocates in states where legislatures are considering these carveouts, we lay out a few reasons why they are an ineffective and unjust policy.
Last month, New York prison officials introduced a policy to effectively suppress prison journalism. It went unnoticed for a few weeks until reporters at New York Focus caught wind of it. A righteous backlash ensued, forcing the department to rescind the policy for the time being.
The incident left many people wondering: how common are restrictions on prison journalism? Building on data compiled by the Prison Journalism Project, we scoured handbooks, prison policies, and laws governing every corrections department in the U.S. to try and find out.
We found that while explicit bans on prison journalism are rare, a web of complex and vague policies make the practice extremely difficult and sometimes risky.
Prisons don’t want you to know what happens inside. That’s what makes prison journalism so important. As more news outlets publish incarcerated journalists, more departments will consider policies to control what information makes it out into the world.
The Federal Bureau of Prisons is the only agency we found that explicitly forbids any incarcerated person from acting “as a reporter.” But they are not alone in suppressing prison journalism.
For starters, the standard prison practice of censoring and surveilling snail mail, electronic messages, phone calls, and video visits violates basic principles of free expression and privacy. These principles are central to a journalist’s ability to maintain sources, work closely with editors, and report the news without interference. Only 4 states — Arkansas, Georgia, Michigan, and Texas — treat correspondence with the news media as “privileged communication,” meaning that letters between an incarcerated person and a media outlet cannot be opened or read by prison staff (although they may be searched in the presence of the incarcerated person for contraband).
However, the other 46 states and the federal government maintain the right to read and censor communications with the media. These policies are broadly explained as important to maintaining “security and order” — a vague justification left to the discretion of prison officials.
Other aspects of prison life, such as an incarcerated person’s limited ability to maintain property1, can also conflict with the practice of journalism. Papers, notes, books, and other materials that can be important to reporting are vulnerable to confiscation and destruction by prison officials during cell searches and transfers. Additionally, a lack of access to the internet and heavily restricted use of tablets and computers can make researching, writing, and editing much more difficult for journalists on the inside.
Prohibitions on business and compensation
Fourteen states prohibit imprisoned people from operating or engaging in a business, including being self employed, and from receiving compensation for their work. Even if an incarcerated person were to produce journalism for free, vague restrictions on ‘business activities’ are enough to threaten their work with media outlets.
Prison journalism, free speech, and privacy rights
The Supreme Court’s view on the rights of prison journalists
Unfortunately, the speech and property rights of prison journalists are an open question.
The Supreme Court has largely blessed prison censorship in a pair of decisions known as Turner and Martinez. Turner applies to incoming communications, permitting prisons to censor mail from the outside so long as it is “reasonably related to legitimate penological interests.” Under the ruling in Martinez, outgoing mail can be censored if doing so “furthers an important or substantial government interest,” although it must be “no greater than is essential to the furtherance of that interest.” In both cases, that “interest” is determined through vague legal tests that, over time, have come to heavily favor prison administrators.2
When it comes to property, the Supreme Court has pretty clearly ruled that incarcerated people do not have a right to privacy. Prison officials are within their rights to destroy property so long as there is a “post deprivation remedy,” such as a procedure for incarcerated people to submit grievances.
It is perhaps most important to note that these protections can only really be enforced if they are brought to court. This is not a given. As we note in our report, “Slamming the Courthouse Door,” the Prison Litigation Reform Act makes it extremely difficult for lawsuits initiated by incarcerated people to ever reach court, and reduces their likelihood of success if they do. This arrangement deters people in prison from filing complaints in the first place. The law requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies.
Whether an incarcerated person is the subject of, or a participant in, reporting, the risks they face can be serious: they can lose access to communications services and the commissary, they can be placed in solitary confinement, and they can lose good time credits that factor into their release.
Most incarcerated people are only allowed to work in jobs that support prison operations, prison-approved work release programs, or prison industries. But 19 states allow people to work with outside businesses and organizations if they receive approval from the prison. In some rare cases, they may receive compensation for written work3 or publish writing so long as it is not a regular column.4
Prison journalism is essential work
For as long as there have been prisons, the public has benefited greatly from the work of incarcerated journalists and sources. Much of what is known about incarceration comes from people who have been on the inside and have told their stories at great personal risk.
Incarcerated journalists still face discrimination and rejection from media outlets, but there are some signs of change. Over the last decade, a growing movement of incarcerated journalists — some working with organizations like the Prison Journalism Project and Empowerment Avenue, others with prison newspapers like the San Quentin News — have had their work published. This work is often used in countless investigations, lawsuits, policy reforms, and organizing efforts. This is great news for transparency, accountability, and change. Importantly, it also helps people build relationships and skill sets that can support them once they are released.
There are too many examples of excellent prison journalism to cite, but some examples include:
New York’s anti-journalism policy is gone for now, but may return in a different form in the future. In response to media requests, the department said it will “engage [interested] stakeholders to revise the policy in order to encourage creative art projects, as originally intended.”
In the meantime, it must be said that the benefits of prison journalism are profound and the risks are few, and mostly confined to the system itself. Other states are likely watching what has unfolded in New York, and so a rigorous defense of prison journalism is required. Protecting and expanding prison journalism requires special considerations for incarcerated media workers. It also merits a critical examination of ordinary policies that shape prison life.
Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death. It’s also a potent reminder of the agency and desires of incarcerated people, which are so easily dismissed because they are often largely out of view.
Most prisons have policies limiting the number and type of items an incarcerated person is allowed to keep. For example, according to policies set by the Bureau of Prisons, “Authorized personal property may be subject to numerical limitations” and, if a person is transferred, their property may be moved with them “at the discretion of the sending and receiving institutions’ Wardens.” Pennsylvania prison policies dictate that “limitations on the amount and variety of inmate property may be imposed for security,
hygiene, and/or safety reasons.” In the event of a transfer, PADOC policy explains that “An inmate may not exceed the property limits established by the Department. Excess property, as determined by the Facility Manager/designee, may be shipped out at the inmate’s expense or destroyed.” ↩
According to research by Emily Chiang, in the Turner case, “Justices Stevens, Brennan, Marshall, and Blackmun dissented, arguing that “if the standard can be satisfied by nothing more than a ‘logical connection’ between the [policy] and any legitimate penological concern perceived by a cautious [administrator,] it is virtually meaningless.” They cautioned that “[a]pplication of the standard would seem to permit disregard for inmates’ constitutional rights whenever the imagination of the [administrator] produce[d] a plausible security concern.” ↩
In Oregon, incarcerated people have an explicit right to publish, copyright, and be compensated for written work. However, “equipment, supplies, and other resources that are the property of the State of Oregon cannot be utilized in the production of items offered for sale or other disposition by the inmate.” A separate mail policy states that incarcerated people “shall not conduct business transactions by mail without the prior written consent of the functional unit manager or designee.” ↩
In Illinois, “a committed person may submit a manuscript for publication but shall not enter into contractual agreements with publishers for a regularly published column.” ↩
Poor people in the United States are a primary target for policing, especially those forced to live on the streets. But just how many people who are unhoused are caught up in the thousands of arrests made in cities each year? How many are criminalized for behaviors that stem directly from their extreme poverty? We combed through years of data from a variety of sources to answer these questions for the city of Atlanta.
Atlantans have long criticized their local governments’ reliance on policing over constructive community investments such as safe and affordable housing, medical and mental health care, food, employment, access to quality education, and accessible transportation. People who lack housing in Atlanta are punished for minor offenses that criminalize their survival. Missed court dates generate warrants for rearrest, and criminal records built through aggressive policing erect barriers to housing and employment, which in turn produce barriers to obtaining health care. The ensuing dynamic destabilizes access to what few community services are available. In the end, people who are unhoused are sucked into a gyre of poverty, arrest, and incarceration.
With the goal of informing interventions that will make such policing obsolete through support-oriented responses, the Atlanta Community Support Project (ACSP) set out to explore the scale and nature of policing for those battling homelessness at the city level. The following research represents the first stage of this project, in which we examined two years’ worth of Atlanta Department of Corrections’ daily jail logs to estimate just how disproportionately Atlanta’s unhoused residents are policed, especially for the “low-level,” quality-of-life violations that the Atlanta City Detention Center (ACDC) processes. Then, we matched local court records to a dataset of about 3,000 of these residents to better understand their interactions with the criminal legal system and the kind of access to support resources afforded to them. Using this dataset, we see that Atlanta’s unhoused population is among the most arrested in the city. For details about this study’s data sources, see the Methodology.
Most strikingly, we find that 1 in 8 Atlanta city jail bookings in 2022 — or 12.5% — were of people who were experiencing homelessness.1 That’s more than 30 times greater than the proportion of the city’s full population that is experiencing homelessness. The Atlanta Community Support Project’s analysis of our dataset of people who had recently faced homelessness also found that:
Policing further indebts the unhoused: 41% had outstanding fines and fees in Fulton County and/or Atlanta Municipal Court averaging $536.
Most people who are unhoused struggle to attend court hearings, often because they don’t even know about them: 86% of those who had been incarcerated at the city jail also had bench warrants for failure to appear in court.
People living unhoused and known to law enforcement were disproportionately Black, women, and/or transgender:
78% were Black
30% of those who had been recently incarcerated were women
Of those in the dataset who were able to self-report race and gender identity, 5.7% self-identified as trans, and 89% of trans individuals also identified as Black.2
Service providers don’t have the funding to reach enough people: Only 28% had received wraparound assistance as an alternative to incarceration through a local organization known as the Policing Alternatives & Diversion Initiative (PAD).
While we are considering the extent of the poverty crisis in Atlanta, it’s important to note that available data on homelessness does not capture the extent to which people are dealing with the broader issue of housing insecurity. These data do not account for people living in temporary housing, on the verge of losing their housing, or those living in inadequate conditions.4 That means the real level of precarity is far worse than reflected in available data on homelessness.
Nonetheless, the data show that Atlanta’s policing of homelessness is extensive and deeply concerning. As we mentioned, nearly 13% of all city jail bookings in 2022 were of people who reported or presented as experiencing homelessness even though the homeless population accounts for less than half of a percent (0.4%) of the total citywide population.
We also found that homelessness in Atlanta intersects with age, race, and gender in such a way that concentrates the impact of poverty policing among people who are already experiencing severe neglect and marginalization.
Older people are targeted as their homelessness rate rises
People over the age of 50 composed the largest age group in the Atlanta Community Support Project (ACSP) dataset of people who had recently faced homelessness. Ten percent of this group are or will be 62 years old or older in 2023. This is noteworthy because older adults are the fastest growing group of people experiencing homelessness nationwide.
Criminalizing the homeless elderly population produces significant collateral consequences, compounding health issues for people who are already at higher risk of illness, injury, and disease. Policing the elderly is also deeply disruptive to their receipt of services that can have the biggest impact on their survival, such as Social Security and Medicare benefits.
Black people are overrepresented among those living unhoused, arrested, and jailed in Atlanta
Black people are impoverished and policed at the highest rates throughout America, and that reality was apparent in our research on the city of Atlanta. Among those represented in the ACSP dataset, 78% were Black, compared to 48% of the total city population. The racial disparities are even more extreme among people arrested and jailed: Black people account for 90% of all arrests made by the Atlanta Police Department and more than 90% of the Fulton County Jail population.
Even when taking into account systemic failures to accurately record the ethnicity or race of those who are policed — especially individuals who report two or more races — Black people are disproportionately represented at every step of the criminal legal system.
On the streets, women and trans people are targeted for arrest
Women compose roughly 15% of jail populations nationwide,5 but in Atlanta, they account for nearly a third of those who are both criminalized and homeless: 30% of people in the ACSP dataset who had experienced both homelessness and local incarceration in the past two years identified as women.
As is true with data collection on race and ethnicity, gender identification in the ACSP dataset is imprecise because law enforcement routinely misgenders people. However, 512 people in the dataset self-reported their demographic information with the Policing Alternatives & Diversion Initiative; of these, 29 (5.7%) identified as transgender. These self-reported data also give us a partial view of the intersections of race and gender among people targeted for poverty policing in Atlanta: Of the 29 people in the dataset who self-identified as trans, 89% also self-identified as Black.
Why this research focuses on the Atlanta City Detention Center
The notorious facility is not the only jail in the city, but it is ground zero for poverty arrests
For this briefing’s analysis of poverty arrests, the Atlanta Community Support Project focused on people arrested and processed at the Atlanta City Detention Center (ACDC).
Our focus on ACDC is intentional: Comparatively, ACDC is primarily used to process and/or detain individuals facing minor misdemeanor charges and city ordinance violations, while the larger county jail system is supposed to handle more serious state offenses, including felonies. People who are arrested and brought to ACDC are often facing city public order violations, such as public intoxication, camping, or urination, and traffic-related state offenses, such as driving with a suspended license or without insurance. The policing of such offenses is historically concentrated on Black and poor communities, including people who lack housing, which is reflected in the data on the city’s jail.
ACDC has long been the de facto facility for processing and incarcerating some of the city’s poorest residents. It was built just before the city hosted the 1996 Olympics and accompanied the passage of quality-of-life ordinances, including one banning “urban camping.” In anticipation of the games, the city cleared and renovated a local park where many people experiencing homelessness had encamped, locked many of them up, and quickly filled ACDC before and during the summer games. In 2003, the city transferred responsibility for people charged with higher level state offenses to county jails, leaving ACDC to handle lower-level offenses, largely related to quality-of-life (i.e., criminalization of the city’s poorest residents). From 2010 to 2018, ACDC also leased some bedspace to the federal government to detain immigrants. In 2019, community advocates, largely led by the Communities Over Cages campaign, successfully pushed the city council to close the facility, spurring the creation of the Reimagining ACDC Task Force. The task force’s Policy Workgroup provided recommendations including reclassifying many of the offenses for which people are brought to ACDC as civil infractions to drastically reduce the facility’s population for closure. Three years later, however, the county approved plans to lease some of ACDC’s bedspace to the Fulton County jail system as a supposed remedy to overcrowding, jeopardizing ACDC’s closure.
We did not include Fulton County data in our analysis, though it must be noted that the Fulton County Jail is part of the larger picture of criminalization and punishment in the city, and also jails people experiencing homelessness. Some people facing misdemeanors and what the local courts consider “diversion-eligible” offenses are held there. However, compared to ACDC, the county jail has a much larger population charged with a broader range of state offenses. According to a report to the Atlanta city council by the Jail Population Review Committee, 854 people experiencing homelessness were booked into the Fulton County Jail in 2022, accounting for just under 7% of that system’s bookings. The fact that people living unhoused made up a much smaller share of the county jail’s bookings than the ACDC bookings makes sense, given the city’s reliance on ACDC to process arrests for less serious and quality-of-life related offenses that target people in extreme poverty. Our study does not attempt to reconcile the data from Fulton County jail bookings with the data from ACDC because of the qualitative differences between the two populations and this study’s focus on poverty arrests in particular. However, if we combine all reported bookings of people experiencing homelessness in 2022 across both jail systems, we see that these individuals account for nearly 1 in 10 bookings (9.4%) citywide.6
The 2022 Jail Population Review Committee report provides some context for the findings of our study, insofar as it underscores the aggressive criminalization of people living in poverty. That report showed that people who are unhoused and were arrested for a “violent” offense made up just 1.8% of Fulton County’s total bookings in 2022 — and the number of such arrests had dropped by 23% since 2018. The large number of arrests of people without housing reflected in the ACDC jail logs seems particularly egregious given the minimal public safety threat this population appears to pose in the Fulton County Jail booking data.7
See the Methodology for details on the data used in this analysis.
Although a complete analysis of charge data for people who were unhoused when arrested and processed at the Atlanta City Detention Center (ACDC) was out of scope for this study, 2022 data from the Policing Alternatives & Diversion Initiative (PAD) give us a sense of how this population is routinely criminalized for minor offenses, many of which amount to basic survival, having nowhere to go, and asking others for help.8 In fact, 99.6% of all law enforcement assisted diversions to PAD involved offenses that would have been considered misdemeanors if charged. In 2022, referrals made by law enforcement to PAD for diversion9 were most frequently related to allegations of:
Panhandling or soliciting (12%)
Theft or shoplifting (10%)
Public drinking (9%)
Disorderly conduct (7%)
Pedestrian violations (7%)
Urban camping or loitering (6%)
Despite the high level of need, the frequency of police contact in response to these minor violations, and the efforts of the city to divert more people away from arrest, our analysis of ACDC bookings shows that poverty arrests are still all too common. Only 28% of people in the ACSP dataset — all of whom have likely been eligible for diversion — have actually received assistance from PAD. Greater interventions are needed to meet the level of need. PAD’s monthly report for April 2023 shows immense gaps between the number of diversion-eligible arrests and pre-arrest diversions. For example, APD Zone 2 — which includes some of the city’s wealthiest and whitest neighborhoods — saw 105 arrests that were eligible for diversion that month, but only one pre-arrest diversion took place. Trespassing and panhandling made up the majority of charges at the time of diversion, and housing and food were the services most often provided.
The Superior Court of Fulton County has a “Familiar Faces” initiative aimed at identifying people who “frequently cycle through jails, homeless shelters, emergency departments and other crisis services.” According to PAD, people in the initiative are defined as those who have been “booked three or more times within 24 months for non-violent offenses, who do not have violent offenses in their booking history in Fulton County, and who have a mental health screen score of 5 or greater.” PAD notes that the jail had designated nearly 4,000 people as “Familiar Faces,” amounting to just over 9,000 bookings between 2020 and 2022. The average length of incarceration was 20 weeks.
It’s easy to see how a rise in stigmatizing campaigns led by city and county officials that center “repeat offenders” almost exclusively targets Black Atlantans living in poverty.10 In its 2022 Annual Report, the Atlanta Police Foundation’s “Repeat Offender Commission” disclosed that, of the 1,500+ people it profiled and targeted in 2022, 93% were African American.
Reproducing poverty through criminalization
Making it harder to house people
Arrest and incarceration present significant barriers to housing. Even a recent White House plan to reduce homelessness 25% by 2025 recognized the criminalization of homelessness as a key contributor to the 3% rise in people experiencing unsheltered homelessness across the country.
Nationally, people who have been to prison one time experience homelessness at a rate nearly 7 times higher than the general public, as the Prison Policy Initiative found in a previous study. People incarcerated more than once have rates that are 13 times higher.
Poverty makes it exceedingly difficult to make court appointments, but homelessness makes it even harder. Of those in our ACSP dataset who had ever been incarcerated at the Atlanta City Detention Center, 86% also had at least one warrant on record for failing to appear in court.
If someone accused of a crime misses court, a judge can issue a “bench warrant” for their arrest. In Atlanta Municipal Court, a “failure to appear” entry is automatically accompanied by a bench warrant and a $50 fine (which may be waived at a later time at a judge’s discretion). While there is currently no firm national estimate of the number of active bench warrants, it is widely understood that they make up a significant portion of overall warrant activity.
Bench warrants are a blunt tool that are often unnecessary. Most people who miss court are charged with minor crimes and are not trying to avoid the law; more often, they forget, are confused by the court process, cannot read the handwritten citation, or have a schedule conflict. To complicate matters further, people who are unhoused cannot afford to miss work and often cannot obtain reliable transportation, childcare, and keep consistent cell phone service which would allow them basic communication and access to online resources.
Atlanta, like most cities, chooses to notify people of their court dates via snail mail, which makes it virtually impossible for an unhoused person to reliably comply. Once a warrant is issued for failure to appear, those accused frequently end up living as “low-level fugitives,” quitting their jobs, becoming transient, and/or avoiding public life (including hospitals) due to the risk of police interactions that could further upend their lives.
Existing oppressive practices do not seem to be enough for local lawmakers. A new law in Georgia (SB44, Section 3), passed in 2023, requires cash bail for anyone who has had a failure to appear bench warrant in the past five years. The year before, an in-depth review of case files for 250 people found that 30% were at Fulton County Jail because they couldn’t pay a bond of $15,000 or less. One individual spent nearly 500 days in jail because he couldn’t afford his freedom. As poverty obstructs a person’s ability to make court appointments, unaffordable cash bail essentially ensures that those who are unhoused will be jailed.
Nickeled and dimed
It’s expensive to be poor. Poverty policing assigns fines and fees to the people who can least afford them. Our Atlanta dataset bears this out, as we found 41% of people have outstanding criminal legal debts in Fulton County and/or Atlanta Municipal Court, averaging $536 each.11 This does not include cash bail amounts levied against just the individuals in our dataset by Fulton County State and Superior Courts, which amount to roughly $20 million in total.12
Policing homelessness in Atlanta is essential to maintaining a precarious and patently unjust status quo. Not only is it required to manage the displacement wrought by the city’s rapid gentrification by real estate developers and local leaders’ refusal to enact rent control legislation, but it justifies ever-greater investments in law enforcement and carceral control.
Similar dynamics are at play in cities across the U.S., which makes undertakings like ours in Atlanta a crucial example. Unearthing just how much policing focuses on homelessness, and what that policing looks like, can inform budgetary reorganizations and community interventions that will make poverty policing obsolete.
Atlanta’s residents are currently engaged in a pitched battle against Cop City, which entails the deforestation of the city’s oldest Native lands to build the nation’s largest militarized police training facility, because it is an aggressive escalation in this harmful model — but importantly, one that is not preordained.
Though successful campaigns to close and repurpose the Atlanta City Detention Center (ACDC) have backslid into plans to lease space to the Fulton County Jail, Atlantans remain fighting on all fronts for a different future. The city recently made people with criminal records a protected class, meaning that they cannot be denied housing and employment based on their records. Meanwhile, community interventions like PAD, for example, have drastically reduced rearrest rates among people in this population who are participating in their programs for 6 months or more.
Following through on task force recommendations for closing ACDC could generate an estimated 77% drop in bookings at ACDC by reducing the scope of the city’s “quasi-criminal” code, converting many offenses to civil infractions, and prioritizing diversion and other alternatives to arrest.
As for the ACSP, our next step is to use these findings to mobilize those of us most harshly affected by the criminalization of poverty, to create tools that bolster participatory defense and empower people to advocate for themselves in court, before discriminatory landlords and employers, and to voice concerns to elected representatives. We aim to demystify the legitimate fear associated with showing up to court and being involved in one’s own criminal legal process, so that people can have debilitating fines and fees waived and stale cases closed.
At the most basic level, the strongest pathways to ending homelessness in Atlanta run headlong into police encounters, which must be reduced.
The Atlanta Community Support Project focuses on a broader population than this study’s methods could capture: people living in extreme poverty in Atlanta. This study operationalizes “people living in extreme poverty in Atlanta” as those who have recently experienced homelessness, strictly because of the absence of data about more direct measures, such as income, in local criminal legal system data.
This limitation to the study’s ability to identify the full scope of individuals living in extreme poverty means that its findings (such as the descriptive statistics about the sample) are not necessarily generalizable to everyone living in extreme poverty in Atlanta. Instead, they describe a subset of that population: people who experience homelessness in the city.
This Atlanta Community Support Project study relies on three main sources of information:
Daily jail booking logs from the Atlanta City Detention Center (ACDC). These logs were provided to many local social service providers and include address information for arrested individuals. These address data were used to estimate the percentage of people experiencing homelessness when they were arrested in 2022. All entries, entered by law enforcement and court personnel, were manually coded as experiencing homelessness if they contained “homeless,” “no address,” “no fixed address,” “not given,” “transient,” “Gateway,” “unknown,” “none,” “urban camper,” “park,” or a blank in the address field (“Gateway” refers to a local shelter system). It’s worth noting that the field from which these data were drawn was originally based on self-reported last known addresses or an officer’s observations in interacting with the individual, and therefore the Project’s estimate of the prevalence of homelessness among people arrested excludes those who were experiencing homelessness but gave a prior address or a family member’s address. 1,469 out of 11,731 jail log entries in calendar year 2022 either self-reported or otherwise indicated that they were experiencing homelessness.
A purposive sample of almost 3,000 people. This dataset was selected for study because these individuals were identified as having experienced homelessness in Atlanta between late 2018 and 2022 (most in 2021 and 2022). It was used to examine demographic characteristics and criminal legal system histories of this population. The study sample includes individuals known by various social, health, and legal service providers to have experienced homelessness in Atlanta between late 2018 and the end of 2022. It was drawn from existing lists maintained by the Policing Alternatives and Diversion Initiative (PAD), legal partner agencies, and local health and social service providers. Individuals whose records were missing legal name and date of birth, or who could not be confirmed as having experienced homelessness, were excluded from the final sample. While these lists are not exhaustive and do not include everyone who experienced homelessness in recent years, the sample’s final size was well over the city’s Point-In-Time count of people experiencing homelessness in 2022 (which was 2,017).
Court records from the Municipal Court of Atlanta, Fulton County Jail, and Fulton County Court. These records were scraped from the web and matched to individuals in the Atlanta Community Support Project sample (described above) to examine that population’s past interactions with the local criminal legal system. Individuals were matched to records by first name, last name, and date of birth, and all variants of individual names found in the records were merged to create one unique ID number for each person in the sample with a matching court record(s). Personally identifying information was then removed, leaving a fully anonymized dataset for analysis.
The following table shows the number of diversions referred from law enforcement agencies to the Policing Alternatives & Diversion Initiative (PAD) in 2022 broken out by offense category. According to the organization, “PAD accepts diversion referrals from Atlanta Police Department, MARTA police officers, and Georgia Tech police officers who have probable cause to arrest an individual and identify that there is a need related to substance use, mental health, or extreme poverty.” Law enforcement made 418 diversion attempts, 31 of which had multiple “probable cause” offenses listed, for a total of 451 alleged offenses.
In this report, “city jail” refers specifically to the Atlanta City Detention Center (ACDC) linked to the municipal court system. The facility is used to process arrests for misdemeanors and city ordinance violations and as a detention center; however, not all arrests processed there result in detention. For an explanation of why we chose to focus on arrests processed at ACDC, see the sidebar “Why this research focuses on Atlanta City Detention Center.” ↩
Most of the demographic data for the people in the Atlanta Community Support Project dataset was reported by law enforcement or other government agencies. However, the Policing Alternatives & Diversion Initiative (PAD) has collected more accurate demographic information, giving us a subset of our dataset — 512 out of all 2,859 individuals — who were able to self-report transgender or non-binary identity, and 505 who self-reported race and ethnicity. Of the 512 people with self-reported gender data, 29 reported being trans and 6 reported a non-binary gender identity. Of the 505 who reported their own race or ethnicity data, 407 identified as Black — a greater percentage than was reflected in the overall dataset (81% versus 78%). ↩
This calculation is based on the 2022 point-in-time count of people experiencing homelessness (2,017) and the Census Bureau’s estimate of the number of Atlanta residents living in poverty as of July 2022 (18.5% of 499,127, or about 92,338 residents). The Census Bureau uses a set of varying money income thresholds to determine who is living in poverty, categorized by family composition and counting everyone in a family. ↩
In addition, this data is based on self-reported last known addresses and therefore the Project’s estimate of the prevalence of homelessness among people arrested excludes those who were living unsheltered but listed a prior address or a family member’s address. This is another reason why the 12.5% estimate presented here is almost certainly an underestimate of the real scale of poverty arrests. ↩
As of 2023, approximately 76,000 of the 514,000 people held in jails nationwide for local authorities (i.e., excluding those held in local jails for state, federal, or other authorities) are women. ↩
This was calculated as follows: 1,469 of 11,731 bookings at ACDC and 854 of 12,974 bookings at Fulton County Jail were of people reporting or presenting as experiencing homelessness, the combined 2,323 bookings of people experiencing homelessness was divided by the combined 24,705 bookings in 2022. It should be noted that the Fulton County Jail data only covers the first eight months of 2022 (January through August). Also note that bookings do not necessarily represent unique individuals, as individuals can be arrested and booked multiple times per year. ↩
The Jail Population Review Committee report also showed that 27% of all bookings in the Fulton County Jail were for what the city considers “divertible” offenses, and nearly half (47%) of those bookings were of individuals with no prior bookings in Fulton County in at least the previous 4 years. Moreover, the ACLU analyzed the same jail’s data and found that the county “over-detained 728 people” on a given day, housed or not. In other words, it could easily reduce its jail population by about 25% by appropriately diverting eligible offenses, not setting unaffordable bond, and indicting defendants in a timely manner (i.e., in compliance with state law). ↩
In 2020, the Reimagining ACDC Task Force Policy Workgroup published a limited analysis of ACDC booking data from January 2018 to August 2019. This analysis did not disaggregate people booked by housing status, but did note that of the top 10 “city” charges (that is, ordinance violations) across all ACDC bookings included pedestrian violations, drinking in public, drinking in the vicinity of a liquor store, disorderly conduct while under the influence, etc. Of the top 10 state charges, 8 involved traffic violations. ↩
Law enforcement made 418 diversion attempts, 31 of which had multiple “probable cause” offenses listed, for a total of 451 alleged offenses. Percentages here are based on that total. For the complete breakdown of these diversion attempts and alleged offenses, see the Appendix. ↩
“Familiar Faces” differs from “habitual offenders” or “repeat offenders,” which are specific statutory terms in Georgia that describe individuals with previous convictions for felony offenses anywhere in the United States. ↩
This only includes current amounts owed, as of May 2023. ↩
Of the people in the ACSP dataset, 1,161 had Fulton County court records that included bond amounts set by the court. However, some of these individual records included multiple entries of the same bond amount for the same booking number, and it was unclear how many of these represented separate bond amounts set by the court for separate charges (i.e., we know some individuals in the dataset were given multiple charges for the same offense in a single case), and how many were duplicative entries. We therefore calculated the total bond amounts two ways: first, assuming every bond amount entered for each booking number was a separate bail amount (this totaled over $22 million), and then assuming only unique amounts were separate bail amounts (this more conservative measure totaled over $17 million). ↩
Luci Harrell, whose original research provided the foundation for this report, would like to thank Michael Everett at the COVID Behind Bars Data Project at UCLA School of Law for assistance with court records and coding. The authors also thank Wendy Sawyer and Emily Widra at the Prison Policy Initiative for their support in the writing process for this report.
Research for the Atlanta Community Support Project was supported in part by the Soros Justice Fellowship, which is funded and administered by the Open Society Institute (OSI). The opinions expressed herein are the author’s own and do not necessarily express the views of OSI.
The percent of people in prison with HIV barely budged despite the heightened risks of COVID-19 to immunocompromised individuals. We review the evidence connecting the parallel epidemics of HIV and incarceration, which disproportionately impact Black men in the South.
The rate of new HIV diagnoses in the U.S. has been steadily declining for decades, but people in prisons are still disproportionately living with the virus. New data from the Bureau of Justice Statistics (BJS) report HIV in Prisons, 2021 indicates that some state prison systems are completely out-of-step with the rest of the nation and have experienced an increase in HIV prevalence since 1991.1 Some of this increase reflects vast improvements made in health care that allow people with HIV to live longer than in the early years of the epidemic. More concerningly, some of the increase appears to be tied to the mass incarceration of Black people and the oft-ignored epidemic of HIV among Black men in the South.
In addition to national and regional trends in HIV prevalence in prisons, and the twin epidemics of HIV and mass incarceration, this briefing highlights BJS data on prison testing policies and research on the criminalization of the virus in the U.S.
Nationally, HIV rates in prison greatly outpace the general population
Overall, the percent of the U.S. prison population that is living with HIV steadily declined from the 1990s to 2016. At its peak in 1992, 2.5% of people in all state and federal prisons were HIV-positive.2 By 2016, this had decreased to 1.2%.
New 2021 data from the Bureau of Justice Statistics shows that, while the overall number of imprisoned people with HIV has declined, the portion of the prison population living with the virus has not changed in the past five years. In fact, the recent 0.1% change in the percent of the overall prison population living with HIV is entirely attributable to a change in the percent of HIV-positive people in federal prisons, which decreased from 1% of the federal prison population in 2020 to 0.9% in 2021.
And while we see little change in the prevalence of HIV in prisons in recent years, the comparison to the general U.S. population is startling. The prevalence rate of HIV in the U.S. in 2019 was 380 per 100,000 people,3 while the total U.S. prison population faces a rate that is more than 3 times as high: 1,144 per 100,000 people in prison had HIV in 2021.
In some prisons, HIV prevalence rose as COVID-19 pandemic advanced
The Bureau of Justice Statistics reports that 2019 to 2020 represented the largest one-year decline in the number of people in prison with HIV (down 15%) since data collection began and explains that this was “largely as a result of the COVID-19 pandemic.” Readers might optimistically interpret this as evidence that prisons were rightly concerned about the heightened risk COVID-19 posed to immunocompromised people, such as those diagnosed with HIV. Unfortunately, when we take a closer look at the data, it’s hard to say whether that was the case.
In fact, some states seemed either oblivious to – or, less generously, unbothered by – the additional risks that COVID-19 poses to people with HIV. In 12 states, the number of HIV-positive people in prison actually increased from 2019 to 2020, suggesting significant state-by-state variation during the pandemic. And as states ended COVID-19 emergency responses in 2021, these variations did not improve: From 2020 to 2021, 20 states and the federal Bureau of Prisons saw an increase in the number of imprisoned people with HIV. This suggests that any positive changes made in reducing the HIV-positive prison population during COVID-19 are set to return to pre-pandemic levels.
Nationally, the 15% decline in the number of HIV-positive people in prison amounts to just over 2,000 people. If every one of them were actually released from prison directly as a response to COVID-19, this would be worth noting as an accomplishment in mitigating the risk of deadly disease among immunocompromised people. However, this decrease was proportionally the same as the overall drop in the prison population that year, and the actual percent of the prison population living with HIV did not change in any significant way. Therefore, it seems unlikely that the drop in the HIV-positive prison population was the result of a targeted effort to protect the health of these individuals.
Black men are hit the hardest by HIV and incarceration
The Bureau of Justice Statistics has not provided data on the race of imprisoned people living with HIV since 2004.4 The last time it published this data nearly 20 years ago, BJS reported that, among the more than 15,400 people in state prisons that self-reported positive HIV test results, 53% were Black, 22% were white, and 19% were Hispanic or Latino. Until more recently, the Bureau’s HIV in Prisons series also included a breakdown of HIV-related deaths by race; in 2019, the mortality rate for HIV-related deaths among Black people in prison was three times the rate of HIV-related deaths of all people in prison (1 per 100,000).5
Unfortunately, while there is little other data on the overlap between incarceration, race, and HIV, we do know that Black people are disproportionately affected by both mass incarceration and HIV. This is not a coincidence, as our 2017 briefing on the subject explains. Black people are vastly overrepresented in the U.S. prison population: in 2021, Black people were imprisoned at a rate of 1,186 per 100,000 adults, more than five times the rate of white adults and more than twice the overall adult imprisonment rate of the U.S.
The racial disparities observed in prison HIV prevalence rates are mirrored in prison mortality rates.7 From 2016 to 2019, there were 114 deaths of people with HIV in prison (of any cause), and 74 of these deaths (65%) were of incarcerated Black people (see Figure 3). In 2019, 12 of the 17 deaths of people with HIV in prison (71%) were of non-Hispanic Black men, specifically. These racial disparities persist outside of prisons as well: 43% of people with AIDS8 who died (of any cause) in 2019 were Black.9
Regional differences: HIV prevalence in the South
In 2017, we summarized the limited existing research on the ways in which Black men face the parallel epidemics of HIV and mass incarceration, with a focus on the effect in Southern states. The HIV prevalence rate in the South10 is 379 per 100,000 residents, which is more than twice the rate in the Midwest and well above the national rate of 318 per 100,000.11
This pattern appears to hold true in prisons as well: All seven states with the nation’s highest rates of HIV in prison are in the South: Florida, Mississippi, Louisiana, Maryland, Tennessee, Georgia, and South Carolina. In fact, all of the states with more than 2% of their prison population living with HIV are in the South: Florida (2.8%), Mississippi (2.5%), and Louisiana (2.5%). These Southern state prison systems also have some of the most significant racial disparities in the nation, supporting the correlation between HIV and the incarceration of Black people.
From 1991 to 2014, the New York state prison system was the prison system with the highest HIV prevalence rate in the country.12 But starting in the mid-2000s, while Northern state prisons were seeing major decreases in HIV prevalence, Southern state prison systems witnessed the opposite. States like New York, Connecticut, and Massachusetts saw sizable drops of 12, 4, and 4 percentage points respectively in the last 30 years, while Louisiana, Tennessee, and Mississippi have seen steadily rising HIV prevalence in prisons.
2015 was the last year that New York had the prison system with the largest portion of the population living with HIV. Since then, Louisiana (2016-2020) and Florida (2021) have had the highest in-prison HIV prevalence rates in the country: in 2021, 2.8% of people in Florida prisons had HIV.
HIV testing: Vast differences in prison policies
While most prison systems in the U.S. provide mandatory or “opt-out” HIV testing during admission,13 there are a few concerning gaps in testing policies across the country. Ten of the 50 reporting prison systems14 only offer tests if they are requested (“opt-in”) or based on a clinical medical evaluation. Only 18 states offer HIV testing during routine medical care for all imprisoned people, while all other states and the federal Bureau of Prisons only offer tests by-request during clinical visits for people the prison system has identified as vulnerable to HIV, or when someone is involved in “an incident.”15
Only one state – Texas – mandates HIV testing prior to release. Nine other states (accounting for a total of 20% of all 2021 prison releases) offer optional HIV testing to all people during their discharge planning process. Among the ten states with the highest HIV prevalence in prisons, nine of them offer HIV testing upon release; Mississippi – with the third highest rate of HIV – does not offer testing at all prior to release.
The criminalization of HIV across the U.S.
According to the Centers for Disease Control (CDC), 35 states have laws that criminalize HIV exposure and four more states have sentence enhancement laws for HIV or sexually transmitted infections (STIs). The criminalization of HIV refers to the existence and enforcement of criminal laws that rely on HIV status as the “foundation for criminalizing otherwise legal conduct” or for increasing punishments related to solicitation and sex offenses. The CDC classifies these types of laws in three categories:
HIV-specific laws that criminalize or control actions that can potentially expose another person to HIV. (21 states)
Sexually transmitted infection (STI), communicable, contagious, infectious disease laws that criminalize or control actions that can potentially expose another person to STIs/communicable/infectious disease. This might include HIV. (14 states)
Sentence enhancement laws specific to HIV, or STIs, that do not criminalize a behavior but increase the sentence length when a person with HIV commits certain crimes. (4 states)
HIV disproportionately affects gay and bisexual men (and other men who have sex with men), Black and Hispanic people, and people who inject drugs. Similarly, people identifying as lesbian, gay, and bisexual, Black and Hispanic people, and people with substance use disorders are targeted for policing and overrepresented in the national prison population. We cannot draw conclusions about just how much effect HIV criminalization laws have on the number of people with HIV in prison, in part because HIV or STI-specific laws are not often considered the “most serious offense,” are often a “lesser offense” contributing to sentencing, and therefore are not denoted in most criminal legal system data. However, we know that many of the same people who are most vulnerable to HIV infection are also disproportionately affected by both HIV criminalization laws and mass incarceration.
HIV criminalization in the South: A closer look at Florida
In the South, the overlap between HIV prevalence in prisons, HIV criminalization, and incarceration is stark. Eleven of the 17 Southern states (as defined by the CDC) have HIV-specific criminalization laws on the books. An additional three states have enacted STI-specific laws. Florida presents a particularly egregious example of how these dynamics can coincide.
In 2021, Florida had the highest in-prison HIV rate with 1,800 HIV-positive people in prison (almost 3% of the state’s prison population). The state also has some of the most oppressive HIV-related criminal laws. The Williams Institute at UCLA has reported in-detail about specific statutes that criminalize HIV in Florida, including offenses that criminalize people living with HIV and other sexually transmitted diseases “in the contexts of sex work, donation of blood and other bodily products, and consensual sex without disclosure.” Florida also has sentence enhancements for “certain non-consensual sex offenses where the defendant has a previous positive HIV test.”
From 1997 to 2020, at least 154 people were imprisoned in Florida for HIV-related offenses,17 including those listed above. While this may be a small percentage of the overall Florida prison population (which was the third largest state prison system in 2021), it’s important to note that these 154 people did not have a “more serious offense” other than their HIV-related offense, and that the enforcement of such laws disproportionately targets women, Black people, and people who engage in sex work:
Sex work. Six-in-ten HIV-related convictions in Florida were connected to sex work.
In addition to the criminalization of already-vulnerable people living with HIV, the cost of incarceration associated with Florida’s HIV criminalization laws has been more than $15 million over the past 23 years.
Florida is not the only state that criminalizes HIV, as we discussed above. Other states with the highest rates of HIV in prison – Louisiana and Georgia – have HIV criminal laws on the books, too.
Though some states and the Bureau of Prisons have seen rising prevalence rates of HIV since the pandemic began, the portion of the overall prison population living with the virus has changed little since 2016. There are fewer people living with HIV in prison than there were in the early 2000s, but one-in-seven HIV-positive people still pass through the U.S. prison system each year. Thousands of people across the country who are facing chronic illness, and who require consistent medical care, are locked up in settings where health care is grossly inadequate. This is true not only for people with HIV but anyone with infectious, long-term, or chronic illnesses.
The fact that nearly three times as many imprisoned people are facing HIV compared to the general public creates a critical imperative for targeted public health interventions among these populations, including increased sexual health care and education in prisons, greater access to testing and treatment, and stronger post-release services that help people transition their care into the community. It also underscores the need to address the issue at the front-end of the system by ending the criminalization of people with HIV and addressing the targeted policing of populations that have been made particularly vulnerable to the virus.
Throughout this briefing, “prevalence” is defined as the percent of people living with HIV in the total population. While public health officials often utilize “incidence rate” – the number of new diagnoses per 100,000 – this is unfortunately not compatible with any of the HIV data published by the Bureau of Justice Statistics in the HIV in Prisons series. ↩
This is based on available data from BJS from 1991-2021. ↩
There is 2020 data available from the CDC, although the agency cautions against using this data “due to the impact of the COVID-19 pandemic on access to HIV testing, care-related services, and case surveillance activities in state and local jurisdictions.” In light of this, we opted to exclude 2020 HIV data from the CDC throughout this briefing, and use 2019 to represent the most recent data. ↩
In the 2021 iteration of HIV in Prisons, the Bureau of Justice Statistics states: “Data on deaths are no longer presented in this report. BJS ceased collection of detailed mortality data in state and local correctional facilities after the 2019 data year.” ↩
These data – collected and published by the CDC – provide the number of deaths of “persons with diagnosed HIV infection ever classified as stage 3 (AIDS)” and that these deaths “may be due to any cause.” Of note, this is a different definition than the BJS prison death data, but it is the closest comparison we could find. Centers for Disease Control and Prevention, National Center for Health Statistics. National Vital Statistics System, Mortality 2018-2021 on CDC WONDER Online Database, released in 2021. Data are from the Multiple Cause of Death Files, 2018-2021, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. ↩
Further evidence of the racial disparities and disproportionate effect of HIV among Black men in particular is evident in the 2021 CDC data as well: Black people accounted for 50% of the approximately 5,000 AIDS-caused deaths in the U.S. and 30% of all AIDS-caused deaths were of Black men in particular. ↩
The CDC classifies the South as Alabama, Arkansas, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia & West Virginia. ↩
This trend is also present in the regional differences in incidence rates of HIV: the rate of new diagnoses of HIV is highest in the South, at 15.2 per 100,000 people, which is 60% higher than the incidence rate in the Northeast. ↩
This is not necessarily surprising, as New York City was one of the hardest hit cities by the HIV epidemic in the U.S. And while New York City – and the state of New York – have seen significantly declining rates of new diagnoses, the city “continues to have one of the largest HIV epidemics in the United States.” ↩
Opt-out testing refers to policies that mandate that everyone is offered a test and will receive a test unless they explicitly decline it. ↩
The 50 reporting prison systems include 49 state prisons and the federal Bureau of Prisons. Alaska did not report data on testing practices during the intake process for the 2020 or 2021 survey. ↩
The survey BJS disseminates to compile data for the HIV in Prisons series does not define vulnerable populations (or “high risk” in BJS parlance), nor does it explain what constitutes “an incident.” Instead, BJS permits the responding prison systems to check a box to indicate they offer testing after involvement in “an incident” without further clarification. There is likely significant variation between prison systems with regard to how they determine who is particularly vulnerable to HIV and what “incidents” trigger the offer of HIV testing. For example, the data does not indicate if people are offered HIV tests after working a shift in the infirmary, after having an injury, or after being assaulted by staff or other people in prison. We also cannot be sure who the prison systems are classifying as particularly vulnerable to HIV infection, such as people getting tattoos or people with histories of intravenous drug use.
For example, while we know HIV is transmissible through blood transfusions, the donation process involves thorough testing and it is extremely unlikely that anyone will contract HIV through blood or organ donation. Florida’s law criminalizing the donation of blood or organs for people who are living with HIV is unnecessary given the extent of testing conducted on donated blood and organs. ↩
This means that their “most serious offense” was an HIV-related offense, not something else that would be considered more “serious,” like homicide or burglary. ↩