HELP US END MASS INCARCERATION The Prison Policy Initiative uses research, advocacy, and organizing to dismantle mass incarceration. We’ve been in this movement for 22 years, thanks to individual donors like you.

Can you help us sustain this work?

Thank you,
Peter Wagner, Executive Director
Donate

Best of the blog

Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision.

by Wendy Sawyer, June 18, 2024

June 24 marks two years since the Supreme Court stripped Americans of their constitutional right to abortion. The court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization permitted state governments to limit and even ban abortion care — and they did. As a result, the share of patients who cross state lines for abortion care has almost doubled, from about 1 in 10 to almost 1 in 5. Traveling out-of-state for health care, including abortions, is a hardship for anyone, but it is especially challenging for people on probation or parole.

According to The New York Times, since the Dobbs decision, 21 states have implemented abortion rules more restrictive than the standard under Roe v. Wade.1 Fourteen states now ban abortion altogether, and most other states ban abortion after a certain point in pregnancy. And while some of these less-restrictive bans preserve abortion as an option for most people who need one, these bans are nonetheless as obstructive for people who need abortion care after their state’s time limit.2 In all, 41 states have some kind of abortion ban in place post-Dobbs, whether “total bans” or bans based on gestational duration.3 In every one of these states, standard conditions4 of probation and/or parole require permission to travel out of state, county, or another specified area.5

  • map showing states that have abortion bans and also have standard conditions of probation and or parole that restrict interstate travel. The vast majority of states have some kind of abortion ban and both probation and parole conditions that restrict travel

    Map 1 The vast majority of states have some kind of abortion ban as well as standard conditions of both probation and parole that restrict interstate travel. Click here to see a map of abortion bans in place as of May 2024.

  • map showing the number of women on probation in states that have an abortion ban and also have a standard condition of probation that restricts interstate travel

    Map 2 Probation is the most common form of correctional control for women in the U.S., and almost every state has a standard condition of probation restricting travel. Probation populations here exclude federal. Click here to see a map of abortion bans in place as of May 2024.

  • Map 3 While fewer women are on parole supervision compared to probation, nearly all live in states that restrict interstate travel for everyone on parole. Parole populations here excluded federal. Click here to see a map of abortion bans in place as of May 2024.

To understand how this post-Dobbs landscape impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women6 (82%) on probation or parole nationwide.7 That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision,8 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

Every state and D.C. restrict the movement of people on probation or parole
For our analysis, we first looked at rules related to travel in the standard conditions of probation and parole in each state and D.C. (These are summarized in the table below.) We find that probation agencies in all but two states (Ala. and Iowa) generally require permission to leave the state, county, or other designated area. Four of these states empower the court or probation officer to set the boundaries for travel restrictions on an individual basis.9 Rules restricting interstate travel are just as common in the context of parole and post-release supervision: 40 states have a standard condition requiring permission to leave the state. Among the states that do not, five (Ark., Iowa, Mont., N.M., and Pa.) require permission to leave an even smaller area — the county or district.10 West Virginia and D.C. require permission to travel, but individualize the specific geographic boundaries in the supervision contract.

Excluding federal supervised populations, the vast majority of women on probation (98% or 672,000) and parole (96% or 60,000) live in states where their standard supervision conditions require permission to leave the state, if not an even smaller geographic area. Every single state and D.C. require permission to travel for either their probation or parole population — and almost all require permission for both.

It’s important to note that “standard conditions” are just part of the picture of probation and parole conditions, because courts can — and very frequently do — impose any number of additional “special conditions.”11 So even if travel restrictions are not included in the standard conditions that apply to everyone on probation or parole, they may still be imposed at the discretion of the court or community supervision agency.

 

Limited abortion care options are made worse by these standard conditions

We next looked at each state’s abortion bans and restrictions alongside their standard conditions of probation and parole. This analysis gets to how quickly state laws foreclose the possibility of in-state abortion care for women under either form of community supervision, forcing them to request permission to seek care in another state instead.12 We find that the much tighter restrictions imposed by states since the Dobbs decision put over 400,000 more women in this precarious position than there were under the protections of Roe v. Wade. Alarmingly, we find that only 1 in 6 women on probation or parole can access abortion care at any stage of their pregnancy without needing permission to cross state lines.

Delving deeper, our analysis shows that, excluding federally supervised populations:

  • Over half (53%) of women on probation and parole live in the 21 states that the Times identified as banning abortion care at an earlier point than the standard set by Roe v. Wade (i.e., the highly variable point of “fetal viability”). Less than 3% of these women are able to travel across state lines without permission.
  • Nearly one-third (31%) of all women on probation and parole live in states that now have a total abortion ban. Of these, just 4% have no standard condition restricting travel.
  • Another 17% of women on community supervision live in states that ban abortions at six weeks — a point at which more than 1 in 4 women are not yet aware of their pregnancy.
  • Only 16% live in places without abortion bans and can access abortion care at any gestational point without crossing state lines.

Importantly, even when parole or probation authorities approve interstate travel, the process of getting a “travel permit” takes time and logistical coordination — and sometimes even fees.1314 This necessarily delays abortion care, increasing the risk of complications and often further limiting access.15 For example, a woman on probation in South Carolina who only becomes aware of her pregnancy when she’s eight weeks along will have to travel out-of-state for an abortion. But if it takes two weeks for her to get permission to travel, a non-surgical abortion is likely no longer an option, as the necessary medications are only approved for use until 10 weeks’ gestation.

For hundreds of thousands of women, access to abortion care is limited by their state’s abortion laws and community supervision travel restrictions

In reality, even in places that don’t list travel restrictions as standard conditions for people on probation and parole, courts and supervision officers may choose to impose them as “special conditions” anyway.
State Estimated women on probation, 2022 Estimated women on parole or post-release supervision, 2022 Estimated total women on probation and/or parole, 2022 Probation: Need permission to leave state or even smaller area Parole: Need permission to leave state or even smaller area Abortion ban laws (as of May 15, 2024)
Ala. 9,820 810 10,630 No Yes Total ban
Alaska 500 83 583 Yes Yes No ban or gestational limit
Ariz. 14,780 900 15,680 Yes No Ban at 15 weeks’ gestation
Ark. 13,280 4,120 17,400 Yes Yes Total ban
Calif. 36,113 2,900 39,013 Yes Yes Ban at viability
Colo. 19,052 1,190 20,242 Yes Yes No ban or gestational limit
Conn. 6,400 130 6,530 Yes Yes Ban at viability
Del. 2,260 20 2,280 Yes Yes Ban at viability
D.C. 570 60 630 Yes Yes No ban or gestational limit
Fla. 42,798 210 43,008 Yes Yes Ban at 6 weeks’ gestation
Ga. 80,346 1,860 82,206 Yes Yes Ban at 6 weeks’ gestation
Hawaii 3,285 200 3,485 Yes Yes Ban at viability
Idaho 7,612 1,020 8,632 Yes Yes Total ban
Ill. 18,777 1,450 20,227 Yes No Ban at viability
Ind. 24,163 530 24,693 Yes Yes Total ban
Iowa 6,870 850 7,720 No Yes Ban at 22 weeks’ gestation
Kan. 3,834 550 4,384 Yes Yes Ban at 22 weeks’ gestation
Ky. 16,880 2,220 19,100 Yes Yes Total ban
La. 6,660 1,670 8,330 Yes Yes Total ban
Maine 960 No parole program 960 Yes No parole program Ban at viability
Md. 10,014 500 10,514 Yes Yes No ban or gestational limit
Mass. 8,079 90 8,169 Yes Yes Ban at 24 weeks’ gestation
Mich. 28,108 730 28,838 Yes Yes No ban or gestational limit
Minn. 21,270 510 21,780 Yes Yes No ban or gestational limit
Miss. 6,680 1,190 7,870 Yes Yes Total ban
Mo. 10,867 2,910 13,777 Yes Yes Total ban
Mont. 2,435 160 2,595 Yes Yes Ban at viability
Neb. 3,160 100 3,260 Yes Yes Ban at 12 weeks’ gestation
Nev. 2,798 591 3,389 Yes Yes Ban at 24 weeks’ gestation
N.H. 907 182 1,089 Yes Yes Ban at 22 weeks’ gestation
N.J. 25,904 530 26,434 Yes Yes No ban or gestational limit
N.M. 2,375 290 2,665 Yes Yes No ban or gestational limit
N.Y. 13,020 1,260 14,280 Yes Yes Ban at 24 weeks’ gestation
N.C. 15,990 1,050 17,040 Yes Yes Ban at 12 weeks’ gestation
N.D. 1,630 170 1,800 Yes Yes Total ban
Ohio 49,619 1,520 51,139 Yes Yes Ban at 22 weeks’ gestation
Okla. 4,944 480 5,424 Yes Yes Total ban
Ore. 5,940 2,830 8,770 Yes Yes No ban or gestational limit
Pa. 21,752 7,725 29,476 Yes Yes Ban at 24 weeks’ gestation
R.I. 2,355 20 2,375 Yes Yes Ban at viability
S.C. 5,910 260 6,170 Yes Yes Ban at 6 weeks’ gestation
S.D. 1,382 810 2,192 Yes Yes Total ban
Tenn. 14,947 1,550 16,497 Yes Yes Total ban
Texas 91,135 11,452 102,587 Yes Yes Total ban
Utah 2,460 460 2,920 Yes Yes Ban at 18 weeks’ gestation
Vt. 600 100 700 Yes Yes No ban or gestational limit
Va. 14,157 40 14,197 Yes Yes Ban at third trimester
Wash. 16,328 880 17,208 Yes Yes Ban at viability
W. Va. 1,660 730 2,390 Yes Yes Total ban
Wis. 10,010 2,270 12,280 Yes Yes Ban at 22 weeks’ gestation
Wyo. 1,410 160 1,570 Yes No Ban at viability
U.S. total (excluding federal) 712,806 62,321 775,127

A travel restriction is just one of many barriers to healthcare for people on probation and parole

Interstate travel restrictions are just one of the barriers women — or for that matter, everyone on probation and parole — face when it comes to accessing health care. As we’ve already touched upon, some standard conditions restrict travel across much smaller areas, such as counties or court districts. Similarly, people on electronic monitoring — an increasingly common condition of community supervision that amounts to a form of “e-carceration” — are regularly blocked from leaving their home, workplace, or other approved locations. As we have explained before, people on electronic monitoring often report being denied permission to see a doctor or go to the pharmacy to have prescriptions filled.

Even in the few places that don’t impose restrictions on movement, financial costs often put healthcare out of reach for people on probation and parole. As we’ve found in previous research, people on community supervision tend to have lower incomes, with about 60% reporting annual incomes below $20,000. About 25% don’t have health insurance to cover the cost of even basic care — despite reporting worse overall health and greater levels of need.16 Probation and parole conditions often come with additional expenses as well, such as monthly fees and the costs of drug testing or electronic monitoring devices, which leave even less money for healthcare.

Finally, for women on probation and parole who need abortion care, there is a special risk of further criminalization, either for violating the conditions of their supervision or for the abortion itself. A recent law review article details the various laws used historically and currently to criminalize abortion seekers and providers, paying special attention to laws targeting people who choose “self-managed abortions” when they are unable to access care from the formal healthcare system. A report by researchers at If/When/How describes 61 cases, across 26 states, in which people were investigated or arrested for allegedly ending their own pregnancy or helping someone else end theirs. All were from 2000-2020 — in other words, pre-Dobbs. Efforts to criminalize abortion have only gained momentum since.

 

Conclusions

Ultimately, Dobbs not only made abortion care much less accessible for everyone who may become pregnant; it created new risks of criminalization as well. For people under supervision, those risks are intensified by the travel restrictions found in standard conditions across the country. As the Community Justice Exchange and Repro Legal Defense Fund explain in their organizing guide, “In states where clinical abortion is banned or inaccessible … [self-managed abortion] will likely be the abortion option most accessible to people under carceral surveillance, putting them at a risk for criminalization that people who can travel freely do not face.”

For this reason (among others), state legislators, courts, and community supervision agencies should minimize the number and restrictiveness of standard conditions imposed on everyone on probation and parole — and greatly reduce the use of these massive supervision programs in general. Courts should limit who they place on supervision, individualize supervision conditions, and apply those conditions only for as long as necessary to achieve results. This approach is far more likely to set people up for success than relying on restrictive, one-size-fits-all rules that only act as tripwires to further criminalization and punishment.

Certainly, whether it’s appropriate to restrict someone’s movement is among the most situation-dependent decisions supervision authorities can make, whether for work, family, religious, educational, or — as we’ve discussed here — health reasons. Restricting where people can go inevitably blocks many from accessing the resources they need, which in turn creates health and safety risks for both individuals and communities. These very real and life-threatening consequences must be taken into account and not discounted simply because of a criminal legal status.

 

Author’s note: Amelia Wittig and Emily Widra provided the foundational research for our analysis of standard probation conditions by collecting and categorizing the relevant forms, web pages, and statutes that stated whether travel restrictions apply to everyone on probation. These sources are on file with the author. As part of a forthcoming report on probation conditions more broadly, we plan to upload the publicly-accessible documents and those we were given permission to share, and to provide a summary table with links in our Data Toolbox.

 

Our data sources, methodology, and important caveats

For this analysis, we looked at (1) the number of women on probation and parole in each state and in D.C., (2) the standard conditions of probation and parole in each state and D.C., and (3) the abortion laws in each state and D.C. However, none of these data points were straightforward, so we had to create some population estimates and rely on some assumptions, explained here.

Estimating state probation and parole populations by sex: The Bureau of Justice Statistics (BJS) reports the number of people on probation and on parole (or post-release supervision) by state and sex in its annual Probation and Parole in the United States report. These data form the basis of our estimates for the number of women on probation and parole in each state. Unfortunately, some states do not report these populations by sex or are missing sex data for a portion of the population. In all, almost 27% of the probation population nationwide, and almost 8% of the parole population, are missing sex data. We looked for the missing data in publicly available reports from state probation and parole agencies, but only found it for probation populations in Illinois (23.5% female) and Kansas (25.8% female).

To avoid seriously underestimating the number of women impacted by the laws and policies we examine here, we assigned a sex to the nearly 800,000 people on probation whose sex was not reported. We did so by applying the percentage of all people on probation reported as female among those whose sex was known (24%) to each state’s count of people on probation whose sex was unknown. In other words, we assumed that the ratio of males to females among the population whose sex was reported was the same among the population whose sex was not reported. (For Illinois and Kansas, we applied the percentages that we found from state reports.) Finally, we added each state’s reported number of women on probation to our calculated estimate of women on probation whose sex was not reported to arrive at our final estimate for each state’s female probation population.

We repeated the process to assign a sex to the nearly 54,000 people on parole nationwide whose sex was unknown. For parole, the percentage of people reported as female among those whose sex was known was 11%, so we assumed that 11% of each state’s sex-unknown parole population were female. As a last step, we compared the sums of our final estimates of each state’s female probation and parole populations to those published by the Bureau of Justice Statistics in its Correctional Populations in the United States, 2022 report. Our estimates amounted to almost exactly what BJS reported (less than a 0.1% difference), suggesting that our method is similar to what BJS used to estimate these total populations.

Standard conditions of probation and parole: Standard conditions of parole as of 2020, by state, have been collected, categorized, and discussed in Wiggins, et al.’s Parole Rules in the United States: Conditions of Parole in Historical Perspective, 1956-2020. We relied entirely on their analysis when it came to travel restrictions for parole. It’s worth noting, however, that Maine no longer has a parole program as of 2022, according to the Bureau of Justice Statistics. Previously, parole was available to those sentenced before May 1, 1976 — that is, before the state abolished discretionary parole. Despite having no one on parole at this point, Wiggins, et al. (2021) report that as of 2020, Maine had a standard condition of parole restricting out-of-state travel.

Unfortunately, the same comprehensive approach has not yet been applied to standard conditions of probation — largely because of the added difficulty of collecting these documents (which are not always publicly available) from states that have county-run probation systems for felony and/or misdemeanor probation. While some of those states have statewide standard conditions outlined in statute or elsewhere, some of them may have as many variations of standard conditions as there are counties — or even cases. Not to be deterred, we collected standard conditions for felony probation from everywhere that has a single set of standard conditions for the whole state. For those states where the conditions may vary by county, we looked for a sample of documents, prioritizing the most populous counties and felony probation conditions. For the purposes of our analysis — and this is an important caveat – we assumed that the standard conditions we found were representative of the whole state. This means that we may overestimate the number of women on probation in these states impacted by travel restrictions in the standard conditions we found, but we reasoned that those conditions would at least apply to women in the largest population centers for which we could locate documents. Moreover, we found that travel restrictions were the norm, not the exception, and we believe it is more likely than not that standard conditions in the counties from which we did not collect documents also restrict interstate travel.

The states for which we used county or city probation conditions to represent the state’s typical standard probation conditions, and the specific jurisdictions we used as our sample for these states, are summarized in the table below:

State Representative county(s) or city(s) Probation requires permission to leave (county/state/other) Comments
Calif. Los Angeles County
Riverside State
Ind. Hamilton State
Porter Area of the court’s jurisdiction
Monroe None These conditions were revised in 2023 to be minimally burdensome.
Boone State Advance notification is required, not permission.
Kan. Shawnee County
Wyondotte Area within100 miles radius of home, or area within 250 miles of Kansas border Two different standard conditions documents show different travel restrictions, and it is unclear whether these reflect different levels of probation (i.e., felony vs. misdemeanor), changes over time, or something else. The condition referencing 250 miles outside of Kansas requires “notifying” an officer, not obtaining permission.
N.Y. New York City Area of the court’s jurisdiction
Suffolk County Area of the court’s jurisdiction
Ohio Cuyahoga County
Montgomery State
Okla. Tulsa State This appears to be a statewide condition, but we could not confirm that.
Ore. Multnomah State
Clackamas State
Pa. Philadelphia County
Allegheny State
Montgomery Adjoining counties
Bucks Adjoining counties
Delaware State
Tenn. Shelby None
Knox State
Rutherford County
Texas Harris County
Tarrant County
Travis County

Kansas, Kentucky, Mississippi, and Vermont have statutes or standard conditions that empower probation officers or the court to determine the boundaries of an individual’s travel restrictions. The language used in these conditions varies: “My designated area of supervision is [blank] and I will not leave this area without my officer’s permission” (Ky.); “the defendant shall… remain within a specified area as directed” (Miss.); and “Your probation officer may restrict or prohibit travel to any state…” (Vt.). In Kansas, a legislative research memo explains that, “Other than a few statutorily required probation conditions… the conditions of probation, in large part, are left to the discretion of the district court…” The referenced statute lists 14 conditions that the court “may” impose, which include most of the common standard conditions found elsewhere, among them, “remain within the state unless the court grants permission to leave.” Because the conditions we found in each of these states suggest even greater discretionary power than the one-size-fits-all standard conditions, we included these among states that require permission for our analysis.

Abortion access laws: For our categorization of abortion bans, we relied on the work of the Guttmacher Institute (as of May 15, 2024), which breaks down which states have “total bans” and those that ban abortion based on gestational age or “viability.” To distinguish between which states have implemented laws restricting abortions “earlier in pregnancy than the standard set by Roe v. Wade” (that is, “viability”), we relied on The New York Times’ categorization (as of May 1, 2024).

Read the entire methodology

 

Footnotes

  1. The decision in Roe v. Wade protected the right to choose an abortion until the highly variable point of fetal “viability,” which the Court described as “the interim point at which the fetus becomes… potentially able to live outside the mother’s womb, albeit with artificial aid.” That point, the court opinion continues, is “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”  ↩

  2. A recent article from The New York Times noted “… in the first half of 2023, almost a quarter of women living in states with near-total bans – who may have otherwise sought an abortion – did not get one.”  ↩

  3. “Total bans” are laws which only allow abortions in extremely limited circumstances, such as when the pregnancy presents a threat to the life or health of the pregnant person, when it results from rape or incest, or when there is a diagnosed “lethal fetal anomaly.” The specific exceptions to abortion bans vary by state. Bans based on gestational duration – often measured as time since the last menstrual period – range from as early as six weeks to the highly variable point of “fetal viability.”  ↩

  4. “Standard conditions” of probation and parole are the default conditions that everyone on supervision must abide by. “Special conditions” are additional rules and restrictions that may be imposed separately or on an individual basis.  ↩

  5. One important caveat to this finding is that not all states have statewide standard conditions of probation. In some states, probation (or at least misdemeanor probation) is managed at the county or city level instead of by a central state probation agency. In some of these states, standard conditions vary by jurisdiction, or courts may set different conditions for each supervised person. Because collecting standard conditions from every probation department in these states was not feasible, we attempted to gather those from the most populous counties, and used those as proxies – or representatives – of the whole state. See the Methodology for more details.  ↩

  6. The use of “women” reflects the gender binary inherent to the data, which come from administrative sources that report male and female sex as opposed to gender identity. These sources therefore obscure the numbers of intersex, nonbinary, and transgender people on probation and parole who are able to become pregnant but are categorized in the data as “male.” The probation and parole restrictions we detail are not gender-specific, which means they also limit these individuals’ ability to access abortion care in the same ways we discuss in this briefing.  ↩

  7. This figure includes only women on probation in the four states where only probation conditions restrict travel (Ariz., Maine, Mass., and Wyo.), only women on parole in the two states where only parole conditions restrict travel (Ala. and Iowa), and both populations in the 34 states where both probation and parole conditions restrict travel. Our analysis excludes federal probation and post-release supervision populations because we don’t have data showing how women under federal supervision are distributed across the states. The data source for all probation and parole populations is the most recent available (from 2022), the Bureau of Justice Statistics report Probation and Parole in the United States, 2022. See the Methodology for details.  ↩

  8. We excluded federal probation and post-release supervision because people can live in any state under federal supervision, and we don’t have data showing how women are distributed across the states.  ↩

  9. Four states – Kan., Ky., Miss., and Vt. – have statutes or standard conditions that transfer discretionary power to determine the boundaries of an individual’s travel restrictions to probation officers or the court. The language used in these cases varies: “My designated area of supervision is [blank] and I will not leave this area without my officer’s permission” (Ky.); “the defendant shall… remain within a specified area as directed” (Miss.); and “Your probation officer may restrict or prohibit travel to any state…” (Vt.). In Kansas, the statute related to probation conditions lists 14 conditions that the court “may” impose, which include most of the common standard conditions found elsewhere, among them, “remain within the state unless the court grants permission to leave.” This is not listed as a mandatory condition, but the statute is clearly written to give district courts the most control over conditions, and the sample conditions documents we found included travel restrictions. Because the rules in each of these states suggest even greater decision-making power than the one-size-fits-all standard conditions, we include these among states that require permission in our analysis.  ↩

  10. As of 2022, Maine no longer has a parole program, according to the Bureau of Justice Statistics (previously, parole was available to those sentenced before May 1, 1976 – that is, before the state abolished discretionary parole.) We did not count Maine among the states with standard conditions restricting travel for this reason, but Wiggins, et al. (2021) report that as of 2020, Maine, too, had a standard condition of parole restricting out-of-state travel.  ↩

  11. For a 2015 law review article, probation expert Ronald Corbett requested information from members of the National Association of Probation Executives about the standard and special conditions imposed in their jurisdictions. The sample he received showed a range of seven to twenty-four standard conditions in each jurisdiction, plus three to five special conditions. In the same article, Corbett includes this comment from a 2014 interview with a retired Texas Probation Director: “…we have witnessed the growth in the number of special conditions of probation, and now it is not uncommon for offenders to be saddled with up to a couple of dozen.”  ↩

  12. The other option is to arrange a “self-managed abortion” – that is, “an abortion that takes place outside of the formal medical system, through any number of means, such as a medication regimen, herbs, or other long-standing cultural practices,” as the Community Justice Exchange and Repro Legal Defense Fund describe it in Dobbs Was Not The Beginning. Of course, self-managed abortions come with their own legal risks and logistical barriers, which that organizing guide explains.  ↩

  13. A recent article in The New York Times noted that “Many traveling patients faced multiday trips, lost income and child care costs.”  ↩

  14. In Maine, for example, 17-A MRS §1807(8) states, “…the Department of Corrections may impose on a person applying for such permission an application fee of $25. …Permission to leave may not be denied or withdrawn solely because the person is not able to pay the application fee or the additional fee. When a person fails to pay a fee imposed under this subsection, the department may refuse to process the application or may withdraw permission to leave if the failure to pay is attributable to the person’s willful refusal to pay or to a failure on the person’s part to make a good faith effort to obtain the funds required for the payment.”  ↩

  15. For instance, people on probation or parole in Missouri – a state with a total abortion ban – are advised that “you are required to discuss your travels with your Probation and Parole Officer at least 15 days in advance to allow time for the proper paperwork to be prepared.”  ↩

  16. As we detail in the linked briefing based on our analysis of the National Survey on Drug Use and Health (NSDUH), people under community supervision report substance use disorders at four times the rate – and mental health disorders at twice the rate – found in the general U.S. population. Twenty-five percent of people on probation and 27% of people on parole were uninsured at the time of the survey, even though many have incomes low enough to qualify them for Medicaid. Public health researchers Winkelman, Phelps, Mitchell, Jennings, & Shlafer (2020) analyzed the same survey data (but from 2015-2016) and found that people under community supervision are more likely to report fair or poor health, more chronic conditions, a diagnosis of COPD, hepatitis B or C, or kidney disease than people in the general population. The community supervision population also has higher rates of disabilities, with particularly high rates of cognitive disabilities.  ↩

See all of the footnotes


The former president’s conviction spotlights how state policies make it hard for people with felony convictions to find good jobs.

by Brian Nam-Sonenstein, June 5, 2024

Want to get more data, research, and news about mass incarceration in your inbox? Subscribe to our newsletter.

Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony. While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions. Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs. That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.

 

Criminal records lock people out of the job market, making everyone less safe

Most people who have criminal records are not billionaire reality TV stars or real estate moguls with wealth and connections to fall back on. For them, getting a job is a matter of survival, and having a record greatly diminishes their chances of success. That’s because a variety of policies across the country effectively disqualify and deter people with records from obtaining employment.

Chart showing that in 2016, 39 percent of people in state prisons said they were jobless in the month before their arrest, and 78 percent had at least one previous conviction leading to incarceration.

This dynamic traps people in a vicious cycle of poverty and policing that makes everyone less safe in the end. Nearly four out of every 10 people in state prison — most of whom had past convictions — were jobless in the month leading up to their arrest. Black people (46%) and women (53%) in state prisons were especially unlikely to have been employed during that time. Meanwhile, more than 600,000 people return to their communities from prison each year and struggle to secure employment, housing, healthcare, and care for children in large part due to restrictions imposed on those with criminal records. Even though people in this situation are more likely to be actively seeking jobs than the general public, they are far more likely to be rejected by employers and report unemployment at a rate five times higher than the general public. These differences are rooted in discriminatory policy choices, not individual aspirations or capabilities.

Even when people in these circumstances do find work, they are often relegated to the most insecure and low-paying positions. Licensed occupations can provide a path to better job security, but that option is foreclosed by counterproductive policies such as these.

 

State laws ban people with felony convictions from holding many jobs

State laws and policies give employers ample opportunities to reject potential workers simply on the basis of their having been convicted of a crime. Though explicit employment bans that prohibit hiring from these populations have been modified in some states in recent years thanks to tireless advocacy, decision-makers in most places still enjoy wide discretion to exclude people from certain kinds of work on these grounds.

This is especially true for occupations that require professional licensing, such as bartenders, exterminators, healthcare workers, and car salesmen. People who want to work in real estate — either as agents or developers — are often required to submit to criminal background checks as part of the licensing process, too. Though these bans most frequently target people who are convicted of felonies in particular, certain misdemeanors can also preemptively disqualify people as well.

Whether explicit or discretionary, occupational licensing restrictions for people with felonies on their records are widespread. Just a few examples include:

  • Pest control in North Carolina: No one can be issued an ID or work as an estimator, serviceman, salesman, solicitor, or an agent for any licensee if they have been convicted of a felony within three years of their application.
  • Car sales in Mississippi: People who want to sell cars must have “good moral character, honesty,” and “high ethical standards” — qualities that are “presumptively” not met if they were, among other things, convicted of a felony or certain misdemeanors.
  • Bartending in Florida: Licensed bars cannot employ anyone as a manager, person in charge, or bartender who has been convicted of a felony anywhere in the U.S. in the past 5 years.
  • Any health professional in Virginia: Previously licensed healthcare workers face mandatory license suspensions if convicted of a felony. This includes early-career positions like certified nursing assistants, veterinary technicians, and peer recovery specialists. Nurses, in particular, could be prevented from receiving licenses or certifications for any felony or misdemeanor involving “moral turpitude.”
  • Firefighters in Florida: Firefighters must not have been convicted of certain misdemeanors, a felony, or any crime punishable by at least one year of imprisonment.

 

Employment bans need not be explicit to be effective

Even when jurisdictions do not explicitly ban people with felony convictions from obtaining occupational licenses, they typically give licensing agencies so much discretion that they can deter potential job-seekers with records from applying. If you have a record but want to work as a plumber’s apprentice in Texas, you have to fill out an additional extensive “Supplemental Criminal History Information” form. In New York, meanwhile, people with criminal records are not explicitly banned from working in the real estate profession, but they are not entitled to receive real estate licenses without the express permission from the Secretary of State, either. Hurdles such as these are enough to keep most people from applying in the first place.

In other places, discretionary bans are designed to target people who have felony convictions that are “directly related” to the work they would be doing. In Texas, for example, Trump’s convictions for falsifying business records could easily be construed as grounds to deny him a license to handle insurance, taxes, or (as he loves to do) hiring and firing people as an employee for a professional employer organization.

 

Conclusion

It’s important to reiterate that most people with criminal records have to navigate these challenges with far fewer resources and connections, and far less power, than Donald Trump. Though he officially has a felony record, he will not encounter the majority of these barriers to making money, let alone surviving. In the coming months, we will likely see clear examples of how rich and powerful people like Trump are insulated from the consequences of a criminal record that millions of the most vulnerable people in society — typically the primary targets of the criminal legal system — are forced to endure each day. This will ultimately not be a lesson in equality in justice, but a reminder of the freedom from punishment that people in Trump’s position enjoy even in the rare instances that they are convicted of their crimes.

That being said, the lesson we take from Trump’s conviction should not be that the system needs to get tougher. In fact, the opposite is true: the fact that such employment policies are counterproductive to basic safety interests and are so unequally applied are strong reasons to lower barriers to work for the average person with a criminal record — not erect new ones. At the very least, anyone who believes that a felony conviction shouldn’t disqualify someone from the most powerful office on the planet must also agree that it makes no sense to prohibit others with felony convictions from serving in more ordinary roles as plumbers, pest control workers, and bartenders. Fortunately, there are plenty of measures states can take to make life easier for people with criminal records:

  1. Enact occupational licensing reform: States should reform their licensing practices to eliminate the automatic rejection of people with felony convictions.
  2. Ban blanketed employer discrimination: Criminal records are not good proxies for employability. Additionally, because of racially disproportionate incarceration rates, organizations who discriminate against people with criminal records may also be contributing to racial discrimination and are therefore subject to litigation under Title VII of the Civil Rights Act of 1964.
  3. Implement automatic record expungement procedures: Having an automatic mechanism for criminal record expungement that takes into account the offense type and length of time since sentencing would, in the near term, help formerly incarcerated people succeed and would, in the long term, promote public safety.
  4. Issue a temporary basic income upon release: Providing short-term financial stability for formerly incarcerated people would operate as an investment, helping to ease reintegration and provide public safety and recidivism reduction benefits that would result in long-term cost savings.
  5. Make bond insurance and tax benefits for employers widely available: Some governmental bodies offer insurance and tax incentives for employers who hire people with criminal records, protecting against real or perceived risks of loss. Increasing the availability of such programs would provide hesitant employers with added financial security.

For more information about the kinds of policies that prevent people with criminal records from obtaining occupational licenses, the various collateral consequences of those policies, and state-by-state comparisons, the following organizations offer excellent resources:


We've updated the data tables and graphics from our 2017 report to show just how little has changed in our nation's overuse of jails: too many people are locked up in jails, most detained pretrial and many of them are not even under local jurisdiction.

by Emily Widra, April 15, 2024

Table of Contents
Warehousing effect
Renting jail space
COVID’s Impact
Recommendations
State-specific graphics
Methodology
Data appendices
Footnotes

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. In 2017, we published an in-depth analysis of local jail populations in each state: Era of Mass Expansion: Why State Officials Should Fight Jail Growth. We paid particular attention to the various drivers of jail incarceration — including pretrial practices and holding people in local jails for state and federal authorities — and we explained how jails impact our entire criminal legal system and millions of lives every year. In the years since that publication, many states have passed reforms aimed at reducing jail populations, but we still see the same trends playing out: too many people are confined in local jails, and the reasons for their confinement do not justify the overwhelming costs of our nation’s reliance on excessive jailing.

People cycle through local jails more than 7 million1 times each year and they are generally held there for brief, but life-altering, periods of time.2 Most are released in a few hours or days after their arrest, but others are held for months or years,3 often because they are too poor to make bail.4 Fewer than one-third of the 663,100 people in jails on a given day have been convicted5 and are likely serving short sentences of less than a year, most often for misdemeanors. Jail policy is therefore in large part about how people who are legally innocent are treated, and how policymakers think our criminal legal system should respond to low-level offenses.

line graph showing change in the nation's jail population from 1983 to 2019, with pretrial detention driving the bulk of jail growth. Figure 1. The frequent practice of renting jail cells to other agencies makes it difficult to draw conclusions from the little data that is available. This update to our 2017 report offers an updated analysis of national data to offer a state-by-state view of how jails are being used and we continue to find that pretrial populations continue to drive jail growth across the country. The data behind this graph is in Appendix Table 1.

Pretrial policies have a warehousing effect

The explosion of jail populations is the result of a broader set of policies that treat the criminal legal system as the default response to all kinds of social problems that the police and jails are ill-equipped to address. In particular, our national reliance on pretrial detention has driven the bulk of jail growth over the past four decades.

line graph showing that from 1983 to 2019, the driving force of jail expansion as been the rise in pretrial detention across the country

More than 460,000 people are currently detained pretrial — in other words, they are legally innocent and awaiting trial. Many of these same people are jailed pretrial simply because they can’t afford money bail, while others remain in detention without a conviction because a state or federal government agency has placed a “hold” on their release.

Pretrial detention disproportionately impacts already-marginalized groups of people:

  • Low income: The median felony bail amount is $10,000, but 32% of people booked into jail in the past 12 months reported an annual income below $10,000.
  • Black people: 43% of people detained pretrial are Black. Black people are jailed at more than three times the rate of white people.
  • Health problems: 40% of people in jail reported a current chronic health condition. 18% of people booked into jail at least once in the past 12 months are not covered by any health insurance.
  • Mental illness: 45% of people booked into jail in the past 12 months met criteria for any mental illness, compared to only 30% of people who had not been jailed.
  • Experiencing homelessness: While national data don’t exist on the number of people in jail who were experiencing homelessness at the time of their arrest, data from Atlanta show that 1 in 8 city jail bookings in 2022 were of people who were experiencing homelessness.
  • Lesbian, gay, or bisexual: 15% of people booked into jail in the past 12 months identify as lesbian, gay, or bisexual, compared to 10% of people not booked in the past year.

This confinement creates problems for individuals on a short-term basis and also has long-term effects. Research in different jurisdictions has found that, compared to similarly-situated peers who are not detained, people detained prior to trial are more likely to plead guilty, be convicted, be sentenced to jail, have longer sentences if incarcerated, and be arrested again. And these harms accrue quickly: being detained pretrial for any amount of time impacts employment, finances, housing, and the well-being of dependent children. In fact, studies have found that pretrial detention is associated with a decreased likelihood of court appearance and an increased likelihood of additional charges for new offenses. There is no question that wholesale pretrial detention does far more harm than good for an increasing number of people and communities.

 

Renting jail space: a perverse incentive continues to fuel jail growth

There are two different ways to look at jail populations: by custody or jurisdiction. The custody population refers to the number of incarcerated people physically in local jails. The jurisdictional population focuses on the legal authority under which someone is incarcerated, regardless of the type of correctional facility they are in. This means that there are people in the physical custody of local jails, but who are under the jurisdictional authority of another agency, such as the federal government (including the U.S. Marshals Service, immigration authorities, and the Bureau of Prisons) or state agencies (namely the state prison system). For example, immigration authorities can request that local officials notify ICE before a specific individual is released from jail custody and then keep them detained for up to 48 hours after their release date. These holds or “detainers” essentially ask local law enforcement to jail people even when there are no criminal charges pending.

State and federal agencies pay local jails a per diem (per day) fee for each person held on their behalf. For example, in 2024, the state Department of Public Safety and Corrections (prison system) pays local jails in Louisiana $26.39 per person per day, and more than 14,000 people in the Department’s custody were in local jails in 2022. The fees paid by different agencies to confine people in local jails range and depend on the contract between agencies: In 2023, the per diem rate negotiated between Daviess County, Kentucky and the U.S. Marshals Service increased from $55 to $70 per person per day. And these per diem fees can rack up quickly: in fiscal year 2021, the U.S. Marshals Service paid North Carolina counties more than $31 million for jail holds, while the Louisiana Department of Public Safety and Corrections spent more than $123 million on their “local housing of adult offenders” program.

In 28 states and the District of Columbia, more than 10% of the jail population is being held on behalf of a state or federal authority. This both skews the data and gives local jail officials a powerful financial incentive to endorse policies that contribute to unnecessary jail expansion. Local sheriffs — who operate jails that are rarely filled to anywhere near their total capacity with people held for local authorities — can pad their budgets by contracting out extra bed space to federal and state governments. To be sure, sharing some jail capacity can be a matter of efficiency: for example, if one county’s jail is occasionally full, borrowing space from a neighboring county may be better than building a larger jail. And, in some states — like Missouri — state law requires that local jails agree to hold people for state or federal agencies. But the systematic renting of jail cells to other jurisdictions — while also building ever-larger facilities in order to cash in on that market6— changes the policy priorities of jail officials, leaving them with little incentive to welcome or implement reforms.

In our 2017 report, we found this phenomenon was most visible in Louisiana, where the state largely outsourced the construction and operation of state prisons to individual parish (county) sheriffs.7 The most recent data suggests that as of 2022, Louisiana, Kentucky, and Mississippi stand out as the worst offenders. In all three states, at least one-third of the state prison population is actually held in local jails (53% in Louisiana, 47% in Kentucky, and 33% in Mississippi).8

Another major consumer of local jail cells is the federal government, starting with the U.S. Marshals Service, which rents about 26,200 jail spaces each year — mostly to hold federal pretrial detainees in locations where there is no federal detention center. In the District of Columbia, South Dakota, New Hampshire, and New Mexico, more than 15% of the statewide jail population was actually held for the U.S. Marshals Service in 2019. Meanwhile, Immigration and Customs Enforcement rents about 15,700 jail spaces each year for people facing deportation.9 In 2019, New Jersey stood out with 16% of the statewide jail population held for immigration authorities, followed by Mississippi (10%).

We should note there is significant geographic variation in just how much of a jail’s population is held for other authorities: more than a quarter of people in rural jails were held for state, federal, or American Indian and Alaska Native tribal governments in 2019, compared to only 11% of people in urban jails.10 The distribution also varies by state, as each has different levels of “excess” jail capacity, and federal officials have specific needs in different parts of the country.

The practice of holding people in local jails for other authorities carries significant personal, social, and fiscal costs, often exposing detained people to the harms of incarceration for longer periods of time than they would be otherwise. Jails are not designed to hold people for any significant period of time; they lack sufficient programming, services, and medical care to house people for months or years.11 This practice also contributes to jail overcrowding, which fuels jail construction and expansion in turn. As scholars Jack Norton, Lydia Pelot-Hobbs, and Judah Schept succinctly put it: “When they build it, they fill it, and counties across the country have been building bigger jails and planning for a future of more criminalization, detention, and incarceration.”

 

Contextualizing prison and jail population changes during and after the COVID-19 pandemic

Most of the data used in this report come from the Bureau of Justice Statistics’ Census of Jails, which was most recently administered in 2019 and published in 2022 (see the methodology for sourcing details). However, the prison population data used to create our state-specific graphics are from 2022 and reveal the dramatic impact of the COVID-19 pandemic on prison populations in many states over time. They show that state and federal prison admissions dropped 40% in the first year of the pandemic (2020). While not reflected in the 2019 data used in this briefing, we know that by June 2021, jail admissions were down 33% compared to the 12 months ending in June 2019. Before 2020, the number of annual jail admissions was consistently 10 million or more. Because these declines were not generally due to permanent policy changes, we expect that both prison and jail admissions will return to pre-pandemic levels as cases that were delayed for pandemic-related reasons work their way through the court system.

 

Recommendations

Our recommendations from 2017 remain just as relevant today, and can help state and local officials move away from using jails as catch-all responses to problems that disproportionately impact poor and marginalized communities:

Change offenses and how offenses are treated

  • States should reclassify criminal offenses and turn charges that don’t threaten public safety into non-jailable infractions.12
  • For other offenses, states should create a presumption of citation, in lieu of arrests, for certain low-level crimes.13
  • For low-level crimes where substance abuse and/or mental illnesses are involved, states should make community treatment-based diversion programs the default instead of jail.14 States should also fully fund these diversion programs.15

Help people successfully navigate the criminal legal system to more positive outcomes

  • States should immediately set up pilot projects to test promising programs that facilitate successful navigation of the criminal legal system. Court notification systems and other “wrap-around” pretrial services often increase court appearances while also reducing recidivism.16

Change policies that criminalize poverty or that create financial incentives for unnecessarily punitive policies

  • States should eliminate the two-track system of justice by abolishing money bail. States that are not ready to take that step should start by abolishing the for-profit bail industry in their state, and providing technical resources to existing local-level bail alternative programs to help these programs self-evaluate and improve state-level knowledge.17

Address the troubling trend of renting jail space

  • States should evaluate whether the renting of local jail space to state and federal authorities is steering local officials away from effectively addressing local needs.18

 

Updated state-specific graphics

In 2017, we argued that if lawmakers want criminal legal system reform, they must pay attention to jails. Years later, this remains true. To help state officials and state-level advocates craft reform strategies appropriate for their unique situations, this report offers updated data and state-specific graphs on conviction status, as well as changes in incarceration rates and populations in both prisons and jails.

The graphs made for this briefing are included in our profiles for each state:

 

 

Methodology

Jails are, by definition, a distributed mess of “systems,” so accessing relevant data can be a challenge. Jails often hold people for other (state and federal) agencies and, at times, the numbers can be large enough to obscure the results of state- and local-level policy changes. For that reason, this report takes the time to separate out people held in jails for state prison systems or federal agencies, such as Immigration and Customs Enforcement, the Bureau of Prisons, the U.S. Marshals Service, and the Bureau of Indian Affairs.

Our national data come from our own analysis of multiple Bureau of Justice Statistics datasets. The National Jail Census series provides the most complete annual snapshot of jail populations. Our state-level data are from the Census of Jails for the years 1983, 1988, 1993, 1999, 2005, 2013, and 2019, and the Deaths in Custody Reporting series (now called Mortality in Correctional Institutions) for the years 2000-2004, 2006-2012, and 2014-2018. (We considered using the Annual Survey of Jails for our state-level data, but the Bureau of Justice Statistics explains that this dataset was “designed to produce only national estimates” and, after much testing, we concluded that this dataset could not reliably be used for state-level summaries.) There are no comparable data available for state-by-state jail population comparisons published more recently than 2019. 19

Jails — or facilities that serve the functions of jails — operate in all states, but in six states (Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont) most or all of the jail system is integrated into the state prison system, so the “jail” populations in those states are not reflected in the federal data products on which this report relies (they are instead counted in the annual prison data). For that reason, we are unable to report state-specific data for those states, and those states are not included in the national totals reported in this report. Because these six states are relatively small in terms of population, we do not think their exclusion meaningfully impacts the national totals nor the much more important analysis of the trends within the national totals.

Many of our data sources are labeled on the individual graphics, but in some cases we had to combine multiple datasets or perform complicated adjustments where additional detail would be helpful to other researchers and advocates:

National data:

  • National number of people held in local jails for state and federal agencies (also referred to as “boarding” or “renting”):
    • National number of people held in local jails for all of the various federal authorities, including Immigration and Customs Enforcement (ICE), the Bureau of Prisons (BOP), the U.S. Marshals Service, and the Bureau of Indian Affairs: We have national-level data for 1983, 1988, 1993, 1999, 2005, 2013, and 2019. For those years, we used the National Jail Census series for the number of people held in local jails for the Bureau of Prisons or U.S. Marshals Service and for immigration authorities. For 2002-2005, 2007-2013, 2017-2018, and 2020-2022, the number of people held in local jails for immigration authorities comes from the Annual Survey of Jails series. For years between the National Jail Census series — when we were not able to find compatible data — we estimated the populations based on a linear trajectory. The estimates are noted in the appropriate appendix tables to differentiate them from the reported data from the Bureau of Justice Statistics.
    • National number of people held in local jails for state authorities: The Bureau of Justice Statistics, Prisoners series (1983-2022) publishes the number of people held in local jails for state authorities and this data is available for every year from 1983 to 2022. (This data point is also collected in the Census of Jails and the Annual Survey of Jails but we concluded, after much study, that the Prisoners series, based on data collected directly from states’ Departments of Corrections, was more reliable and more frequently collected and published.)20
  • National pretrial and jail sentenced populations: Total numbers for each category are reported in the National Jail Census series (1983, 1988, 1993, 1999, 2005, 2013, and 2019). We then adjusted the reported figures for the convicted and unconvicted populations to remove those held for other agencies from these jail totals. For years between the National Jail Census series — when we were not able to find compatible data — we estimated the populations based on a linear trajectory. The estimates are noted in the appropriate appendix tables to differentiate them from the reported data from the Bureau of Justice Statistics.
    • We removed 100% of people held for state prison systems (all of whom have been convicted and sentenced to prison terms) from the jail convicted totals (everyone else who has been convicted but not sentenced to prison).
    • We removed 34.1% of the people being held under the authority of Immigration and Customs Enforcement from the jail convicted population and removed the balance from the jail unconvicted population. (We based these percentages of the population held for ICE on our analysis of the Survey of Inmates in Local Jails, 2002. We found 34.1% of ICE detainees were there “to await sentencing for an offense,” “to await transfer to serve a sentence somewhere else,” “to serve a sentence in this jail,” or “to await a hearing for revocation of probation/parole or community release.”) This percentage calculation ignored any respondent who did not answer the question, and counted anyone who answered both a “convicted” and “unconvicted” status as convicted. We deliberately used this methodology which counts those awaiting revocation hearings as “convicted” because that matches the methodology used in our main dataset for this project: the National Jail Census. (Not surprisingly, since the people detained for ICE were answering a survey intended for criminal legal system populations, the leading response (41%) for ICE detainees about why they are being held in jail, after being read a list of statuses like “to serve a sentence” or “to await arraignment” was to answer “for another reason.”)
    • We removed 75.9% of the people being held for either the Bureau of Prisons or the U.S. Marshals Service from the jail convicted population and we removed the balance from the jail unconvicted population. (We based these percentages on our analysis of the Survey of Inmates in Local Jails, 2002 as described above for people detained for ICE).

State data:

Our historical, state-specific data on prisons, jails, and the changes in jail composition come from several different data sources:

  • For the state-level graphs on the jail and prison populations, the jail populations are based on the National Jail Census series for the years 1978, 1983, 1988, 1993, 1999, 2005, 2013, and 2019 and the Deaths in Custody Reporting series (now called Mortality in Correctional Institutions) for 2000-2004, 2006-2012, and 2014-2018. For years between the National Jail Census series — when we were not able to find compatible data — we estimated the populations based on a linear trajectory. The estimates are noted in the appropriate appendix tables to differentiate them from the reported data from the Bureau of Justice Statistics. As described above, our jail population totals were adjusted to remove people held for state or federal authorities in order to focus on those held by local authorities under local jurisdiction. The number of people in state prisons comes from the Bureau of Justice Statistics, Correctional Statistical Analysis Tool — Prisoners for 1978-2019 and Table 2 of Prisoners in 2020, Prisoners in 2021, and Prisoners in 2022 for 2020-2022. Of note, people sentenced for felonies in the District of Columbia were transferred to the Federal Bureau of Prisons as of December 2001, so there is no prison population or rate for the District for 2001-2022.
  • For the state-level graphs on jail and prison incarceration rates, for the jail populations in each state we divided the above (adjusted) numbers by the July 1st U.S. Census Bureau’s Census Vintage Population Estimates, which we have published in Appendix Table 6, and multiplied the result by 100,000 to show an incarceration rate per 100,000 people in each state for each year on the graph. The jail populations used in this report were collected on June 30th (“midyear”) for most years, so we used U.S. Census Bureau population estimates from July 1st for each year. Our state prison incarceration rates come from the Bureau of Justice Statistics, Correctional Statistical Analysis Tool — Prisoners for 1978-2019 and Table 7 of Prisoners in 2020, Prisoners in 2021, and Prisoners in 2022 for 2020-2022. Of note, people sentenced for felonies in the District of Columbia were transferred to the Federal Bureau of Prisons as of December 2001, so there is no prison population or rate for the District for 2001-2022.
  • For the state graphs of the number of people incarcerated in local jails by conviction status, we calculated estimates of the number of people held for local authorities by conviction status without including people held for federal or state authorities. The Census of Jails does not report the conviction status of people held for other authorities separately from those held for local authorities, so we based our estimate on the only reported ratio of convicted/unconvicted which includes the entire custody population. (We concluded that our national estimates of the portion of people held for state prisons or various federal agencies that are convicted or unconvicted were not reliable at the state level, so we used a simpler methodology for our state graphs.) To create this estimate, we determined the percentages of all people being held in jails in each state who were convicted and unconvicted in the National Jail Census series (1978, 1983, 1988, 1993, 1999, 2005 and 2013). We then subtracted the number of people held for state or federal authorities from the total statewide jail population, and applied our percentage convicted/unconvicted to the remainder. Because most people in jails being held for other authorities are convicted, we believe, our figures likely undercount the unconvicted/pretrial populations and overcount the convicted populations.

For the six states where the federal government can not provide jail counts or conviction status data, we only graphed the state prison portions.

Read the entire methodology

 

 

Footnotes

  1. Bureau of Justice Statistics, Jail Inmates in 2022, Table 1.  ↩

  2. Pretrial detention — for any amount of time — impacts employment, finances, housing, and the well-being of dependent children. In addition, jail stays are life-threatening: from 2000 to 2019, over 20,000 people died in local jails. In 2019 alone, more than one thousand people died in local jails.  ↩

  3. Jail stays are increasing in length: in 2022, people spent 8 more days in jail (32.5 days) on average than they did in 2015 (Bureau of Justice Statistics, Jail Inmates in 2022, Appendix Table 1).  ↩

  4. When he was 16 years old, Kalief Browder was held in New York City’s Rikers Island jail for three years, including almost two years in solitary confinement, because his family could not afford his $3,000 bail.  ↩

  5. Among the 663,100 people in jail on June 30, 2022, 70% (466,100) were unconvicted and held pretrial (Bureau of Justice Statistics, Jail Inmates in 2022, Table 5). However, 2019 is the most recent year for which jail data can be adjusted to exclude the people being held by federal and state authorities. This adjustment of 2019 jail data reveals that in 2019, 76% of the 604,400 people in jail held for local authorities were unconvicted (pretrial). See Figure 1.  ↩

  6. For example, in Bladen County, North Carolina, a newly built jail had earned the county nearly $2 million in the first 18 months of renting jail beds to the federal government in 2019. At the time of our 2017 report, a clear example of this pattern took place when officials in Blount County, Tennessee used “jail overcrowding” to justify a 2016 proposal for jail expansion. A deeper analysis, however, revealed that the county’s jail was overcrowded in large part because it was renting space to the state prison system. The county then cut back on renting space to the state prison system and reportedly explored other ways to reduce its jail population in place of jail expansions (we have not found evidence of a new jail or expanded jail in Blount County as of March 2024).  ↩

  7. Louisiana’s jail building boom appears to have been entirely fueled by the pursuit of contracts with the state’s prison system. As The Times-Picayune has explained, “In the early 1990s, when the incarceration rate was half what it is now, Louisiana was at a crossroads. Under a federal court order to reduce overcrowding, the state had two choices: Lock up fewer people or build more prisons. […] It achieved the latter, not with new state prisons — there was no money for that — but by encouraging sheriffs to foot the construction bills in return for future profits.”  ↩

  8. In terms of the impact on local jail populations, in 2019 (the most recent year with this data) people held in jails for state prison systems accounted for 29% of jail populations statewide in Mississippi, 30% in Louisiana, and 41% in Kentucky (Bureau of Justice Statistics, Prisoners in 2022, Table 14, and Census of Jails, 2005-2019, Table 12).  ↩

  9. These detainers, or “immigration holds,” request that local officials notify ICE before a specific individual is released from jail custody and then to keep them there for up to 48 hours after their release date, basically asking local law enforcement to jail people even when there are no criminal charges pending. For more details, see our 2020 explainer on these practices.  ↩

  10. Bureau of Justice Statistics, Census of Jails, 2005-2019 — Statistical Tables, Table 13.  ↩

  11. Christopher Blackwell highlights a number of differences in conditions of confinement between jails and prisons in his 2023 editorial for the New York Times: “Two Decades of Prison Did Not Prepare Me for the Horrors of County Jail.”  ↩

  12. For example California, Massachusetts, and Ohio have reduced offenses from minor misdemeanors to non-jailable infractions.  ↩

  13. For example, while all states allow citation in lieu of arrest for misdemeanors, only a handful of states permit citations for some felonies or do not broadly exclude felonies. See the National Conference of State Legislatures, 50 State Chart on Citation In Lieu of Arrest, last updated on March 18, 2019.  ↩

  14. For example, in Pima County, Arizona, as part of the MacArthur Foundation’s Safety and Justice Challenge, officials have begun screening people for mental health and substance abuse concerns who are arrested before their initial court appearance. Other diversion programs, such as Law Enforcement Assisted Diversion (LEAD) programs, coordinate the efforts of local law enforcement agencies with community-based service providers in counties like Multnomah County, Oregon. For more on LEAD programs, see the Addiction Policy Forum, Center for Health and Justice, National Criminal Justice Association “Innovation Spotlight: Law Enforcement Assisted Diversion.”  ↩

  15. For example, diversion programs have been shown to be a cost-saving reform by reducing caseloads, but are often defunded due to budget shortfalls. States creating these programs should also ensure that diversion programs don’t turn into revenue-generating schemes.  ↩

  16. For more examples of practical interventions to improve court appearance rates, see the National Guide to Improving Court Appearances from ideas42, published in May 2023.  ↩

  17. For example, four states have abolished commercial bail: Illinois, Kentucky, Oregon, and Wisconsin.  ↩

  18. For example, a recent California bill would prevent local jails from receiving state grant funding that is intended for expanding and improving jail facilities if those expansions were for the purpose of renting space to Immigration and Customs Enforcement.  ↩

  19. For readers wondering when the next state-level data will be collected and published, the Bureau of Justice Statistics is planning a 2024 Census of Jails collection and has proposed replacing the Annual Survey of Jails with a more concise annual Census of Jails thereafter. The data are typically published about two years after collection.  ↩

  20. Please note that because our methodology is not the same as the Bureau of Justice Statistics, some numbers used in this publication differ from the published data in the Census of Jails, 2005-2019 — Statistical Tables.  ↩

See all footnotes


Despite the common refrain that jails and prisons are "de facto treatment facilities," most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare.

by Emily Widra, January 30, 2024

Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.1 But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be – and can never function as – healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.

 

Substance use disorders in jails and prisons far outpace rates in the general public

The prevalence of substance use disorders at every level of the criminal legal system points to an unavoidable fact: despite the deep unpopularity of the War on Drugs, our society still responds to substance use (and related crimes) as individual failures requiring punishment, rather than as a public health problem — and it’s not working.

Nationally, approximately 8% of people met the criteria for substance use disorders in 2019,2 but such disorders are far more common among people who are arrested (41%) and people incarcerated in federal (32%) or state prisons (49%). This means that approximately three million people with substance use disorders are locked up in any given year: at least two million people with substance use disorders are arrested annually and about half a million people in state and federal prisons meet the criteria for such disorders at the time of their admission.3

Bar chart showing that the percent of people in prison and/or those arrested in the past year with substance use disorders is much higher than the national population. Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.

It’s difficult to see more granular trends in the data – such as the type of substances involved or the health outcomes related to these disorders – but we have some clues from nationally representative jail, prison, and mortality data.

Jails. In 2019, only 64% of all people admitted to jail each month were screened for opioid use disorder, but of those people, about 15% met the criteria for opioid use disorder. It’s likely that in jails where not everyone is screened on admission, people have similarly high rates of opioid use disorder, given the widespread extent of the opioid crisis.4 Because we cannot see the full picture through screenings alone, it’s useful to look at mortality data as well. More than 15% of jail deaths in 2019 were attributed to drug or alcohol intoxication (overdose), a significant increase from 4% in 2000 and 7% in 2009.

Prisons. Many people who use drugs and need care are arrested and jailed over and over until, finally, one event lands them in prison. We estimate that more than 578,000 people (47%) in state and federal prisons in 2022 had a substance use disorder in the year prior to their admission.5 And while the mortality rates for drug and alcohol intoxication are lower in prisons than in jails, almost 7% of all deaths in state prisons in 2019 were due to drug or alcohol intoxication, compared to less than 2% in 2009. Meanwhile, in 2019, only 4% of all adult deaths in the U.S. were attributed to drugs or alcohol.6 All of these measures point to much higher rates of substance use disorders in prisons and jails compared to the total population.

 

Treatment options for opioid use disorder are scarce in jails and prisons

Medication-assisted treatment (MAT) for opioid use disorder

A brief primer on MAT

Medication-assisted treatment (MAT) is widely described in medical literature as the gold standard of care for opioid use disorder. Sometimes referred to as medications for opioid use disorder (MOUD) and opioid substitution treatment (OST), MAT requires the combination of professional counseling or therapy with prescribed medications.7 There are three medications that can be used for MAT for opioid use disorder, and the FDA states that anyone seeking such treatment “should be offered access to all three options”:8

  • Buprenorphine: Partially activates the same brain receptors as opioids, preventing withdrawal symptoms and cravings, but additional doses can have a limited effect (known as the ‘ceiling effect’). An individual is supposed to be in “mild to moderate withdrawal” when beginning treatment. The popular medication Suboxone combines buprenorphine and naltrexone, and can also be highly effective in treating opioid use disorder.
  • Methadone: Fully activates opioid receptors, just like other opioids. It is only available in hospital settings or at federally certified opioid treatment programs.
  • Naltrexone (also known as Vivitrol): Blocks other opioids from having any effect. Importantly, individuals are required to complete withdrawal and remain abstinent for one to two weeks before starting treatment.

A significant body of research shows that MAT is more effective than other treatments – including medications alone or counseling alone – in reducing opioid use, increasing treatment participation, reducing injection drug use, and decreasing transmission of HIV and hepatitis C outside of carceral settings.

The limited – but growing – research regarding MAT in jails and prisons shows similar results. For example, the Rhode Island Department of Corrections became the first state correctional system to institute a comprehensive opioid-treatment program that involved offering MAT with all three medications to incarcerated people in 2016. After the first year of this program, statewide overdose deaths dropped 12% and post-incarceration overdose deaths dropped 61%.

Not every person who uses substances needs or wants treatment, but it is imperative that evidence-based, quality healthcare options be made available for those who do — regardless of their involvement in the criminal legal system. For people with opioid use disorder, this can include psychosocial treatment (including counseling), medication-assisted treatment (MAT), and self-help groups. In correctional settings, the availability of such options pales in comparison to the level of need.

Jails. Of the nearly 3,000 local jails across the country, less than two-thirds (63%) screen people for opioid use disorder when they are admitted. Only half (54%) provide medications for people experiencing withdrawal. An even smaller percentage of jails — 41% — provide behavioral or psychological treatment, and 29% provide education about overdose. In fact, the most effective treatment — medication-assisted treatment (MAT) — is the least commonly provided: just 24% of jails continue MAT for people already engaged in treatment while only 19% initiate MAT for those who are not.

bar chart showing the percent of jails with each kind of opioid use disorder treatment available

Quality medical interventions for people that use opioids are especially urgent in jails because of the rapid and acute risk of withdrawal. Over half a million people9 entering jails across the country each year are experiencing or at risk of this life-threatening medical event.10 Importantly, the percentage of people admitted to jail who receive treatment for opioid withdrawal varies significantly between states, which likely reflects differences in both opioid use and availability of treatment.11 For instance, over 15% of people admitted to jails in June 2019 in four states – New Hampshire, New Jersey, Pennsylvania, and Washington – were treated for opioid withdrawal, compared to less than 1% of admissions in seven other states.12

Prisons. Most state and federal prisons (81%) offered some “drug or alcohol dependency, counseling, or awareness programs” in 2019, but among people in state prisons with a substance use disorder, only 10% had received clinical treatment in the form of a residential treatment program, professional counseling, detoxification unit, or MAT.13 This suggests the “drug or alcohol programming” available in prison facilities is primarily self-help or peer-based.14

bar chart showing that half of people in state prison had substance use disorder, but only 10% received clinical treatment

Unfortunately, MAT is the least common treatment in prisons: only 1% of people with substance use disorders in state and federal prisons reported receiving MAT at any point since their admission. In North Carolina, for example, over 9,000 people admitted to state prisons in Fiscal Year 2021-22 (78% of everyone screened during intake) met the criteria for needing intermediate or long-term substance use treatment, but the clinical director of the Alcoholism and Chemical Dependency Programs reports that they are only able to treat 3,000 cases each year. The state launched a MAT pilot program in 2021, and as of January 2024, only 213 enrollees have received medications prior to release from prison.

Even when correctional facilities do offer necessary treatments, their one-size-fits-all approaches can be limiting, overlooking the specific needs of different populations. For example, women in prison are often expected to participate in treatment programs originally designed for men. Advocates report that because “there are fewer incarcerated women than men… there are fewer programs available for women serving time. If support is available, it is not always effective.”

 

Ineffective and punitive responses to drug use in correctional facilities

Correctional facilities’ preference for punishment does very little to actually reduce drug use and overdoses. It’s not just that officials fail to provide evidence-based healthcare–they actively ignore evidence that punitive drug interdiction policies like mail scanning and visitation restrictions are ineffective and counterproductive, too.

Mail scanning. Prisons and jails are increasingly diverting incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients.15 Administrators claim this practice will stem the flow of contraband — primarily, drugs — into their facilities, but there is no solid evidence to date that mail scanning has this intended effect.16 In addition to the emotional consequences and needless exploitation inherent in mail scanning, these practices result in long mail delays and the disruption of correspondence-based nonprofits, education programs, and ministries.

There are numerous examples of mail scanning failing to produce any meaningful reduction in drug use or overdoses in prisons across the country:

  • Pennsylvania: After instituting mail scanning, the percentage of incoming mail that the Department of Corrections reported as “tainted” only decreased by 0.1% over the course of a year. As of 2023, the rate of positive drug tests in Pennsylvania prisons is now almost 3 times higher than it was before the policy was introduced.
  • Missouri: In Missouri state prisons, the average number of overdoses per month increased from 34 to 39 after mail scanning was introduced in July 2022.
  • Virginia: Every year since the Virginia Department of Corrections began mail scanning in 2017, there have been more overdoses than in the year prior to instituting mail scanning (even while the state’s incarcerated population declined during the COVID-19 pandemic).
  • New Mexico: After a mail scanning policy went into effect in February 2022, a report on the Corrections Department from the state’s Legislative Finance Committee highlighted a nearly two-percentage point increase in positive random drug test results from Fiscal Year 2021 to Fiscal Year 2022 – almost doubling the positivity rate. This essentially “reverse[d] three years of reduced drug use” in the prison system, and the report authors noted that the mail scanning policy “does not appear to have reduced drug use” during the study period.

In fact, several prison systems seem to actively ignore the lack of evidence supporting mail scanning as a drug interdiction effort. The federal Bureau of Prisons has increasingly adopted mail scanning policies, reportedly following a letter from Pennsylvania congressional representatives “urg[ing] the BOP to follow Pennsylvania’s lead,” and such policies are now in place in almost every federal facility.

Visitation restrictions. There are a variety of policies in jails and prisons that restrict visitation and administrators often defend them as anti-contraband (i.e., anti-drug) initiatives. For example, in Virginia, some of these policies have included requiring visitors to change into state-issued jumpsuits without pockets, limiting approved visitor lists to 10 people, millimeter wave body scanners, and banning feminine hygiene products for visitors.17 In Washington, the latest state budget proposal betrays the state’s biases in responding to drugs in prisons: it includes $4.7 million for MAT in prisons, which is only about half of the funding it would take to meet the needs of people in custody. At the same time, the Department requested $6.5 million for body scanner staff and operations, and the budget proposal offers even more than they asked for: $7.9 million. Incarcerated people routinely face humiliating search practices – including strip searches – following visitation, but considering the prevalence of drug use inside prisons and jails, these tactics do not appear to have made a meaningful impact.

Doubling down on failure: misunderstanding drug use inside

Prison and jail administrators often cite contraband medication as the primary reason for restricting access to MAT. While “diversion” of medications18 like buprenorphine can occur in prisons and jails, there are simple, proven diversion prevention strategies that any facility offering MAT could institute, whether they are correctional facilities or community health centers. 19 We know that generally, “illicitly obtained” buprenorphine is most often used to self-treat opioid withdrawal when treatment is not available or has been denied. While there is much concern regarding diversion, an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013 revealed no overdose or death reports mentioning buprenorphine or Suboxone, consistent with previous research on New York City non-incarcerated overdose fatalities. It is clear that – just like in the community – the proven benefits of MAT outweigh the perceived risks of diversion.

Consistent with their punitive approach to drugs, many corrections officials enforce serious sanctions for positive drug tests, medication diversion, and non-fatal overdoses. Sanctions for drug use in prisons can include solitary confinement, denied visitation, 20 delayed parole hearings, loss of “good time,” reduced access to programming, facility transfers, reclassification, and fines.21 There is, unsurprisingly, no evidence that these disciplinary policies actually reduce drug use behind bars. However, it’s easy to imagine how such approaches create a dynamic in which people hide their drug use and engage in riskier, deadlier behaviors. The culture fostered by punishment does not actually address drug use — it just makes it more dangerous.

Public health research has long been clear that punishing addiction does not actually help address substance use disorders, and there is no reason that it would work in jails and prisons. People who need mental health and substance use treatment are better served in voluntary, non-carceral, clinical treatment settings.

 

Overdose interventions and deaths

Jail and prison administrators are right to be concerned about drug overdoses behind bars. Overdose deaths are preventable and substance use disorders are treatable, but in 2019, more than 400 people in jails and prisons died of drug or alcohol intoxication.22

Jails. In response to overdoses, some local jails have increased the availability of naloxone (an opioid overdose reversal medication also known by the brand name “Narcan”). In Maine, correctional staff in some facilities now carry naloxone on their belts rather than in a locked first aid kit. In New York City, all housing areas are required to have naloxone available.

Some jails have gone a step further: in San Diego County, the staff and people in custody have access to naloxone throughout the jail facility. In Los Angeles County jails and the Louisville Metro Department of Corrections jail in Kentucky, staff and incarcerated people have access to naloxone and receive training on how to administer it. The benefits of this dual approach cannot be overstated: in a single day in Los Angeles, two overdoses were reversed when incarcerated people administered naloxone and, over the course of a year, incarcerated people in the Louisville jail dispensed naloxone successfully to at least 24 people who had overdosed in the facility.

Prisons. The rates of death from drug or alcohol intoxication may be lower in prisons than in local jails, but they are still a serious – and growing – problem: from 2001 to 2019, the percentage of state prison deaths attributed to drug and alcohol intoxication increased from 1.2% to 6.6%. A September 2022 directive from the New York State Department of Corrections and Community Supervision requires correctional staff to administer naloxone as well as provide first aid and CPR as necessary, and includes a requirement for each facility to institute a procedure to make naloxone more accessible to staff. In Oklahoma, the State Department of Mental Health and Substance Abuse Services reported that naloxone is available “on every unit” in state prisons, and future initiatives where “every CO will have Narcan on them” are expected as of May 2023.

Making naloxone physically present in correctional facilities is a good first step, but it’s not enough. In April 2023, reporting from Filter detailed that, while correctional staff in Washington Department of Corrections facilities have access to naloxone, many are not properly trained. When interviewed, two correctional officers – incorrectly – told the reporter that “Narcan…doesn’t work on fentanyl.” The Filter story cites at least one Department of Corrections report of an overdose scene where staff were unable to locate, and were unsure how to administer, naloxone. As long as the criminal legal system continues to target and incarcerate people who use drugs, screening new admissions for opioid use, training staff and incarcerated people to use naloxone, and making naloxone available throughout facilities are the least these institutions could do.

 

Making reentry safer for people who use drugs

There are two crucial interventions that every jail and prison should offer upon release: free access to naloxone and appropriate, timely referrals to community-based MAT for people who received treatment while incarcerated. Yet less than one-third of local jails and far fewer prison systems offer either.

Naloxone. While naloxone is relatively inexpensive and easy to administer, in 2019, only 25% of jails provided naloxone to people being released. However, in the years following the 2019 survey, media coverage reveals that many jails – including those in Louisville, Kentucky, and Kershaw County, South Carolina – have added free naloxone vending machines near the facility exits.

In 2020, the California Department of Corrections and Rehabilitation began providing free naloxone kits and training to people preparing for release from prison. By July 2022, 95% of people released from California state prisons had received the kits and training. A handful of other prison systems have publicized similar efforts to provide naloxone on release but with little accompanying data on the success of their projects. For example, the Indiana Department of Corrections announced an initiative in 2020 to offer people released from prison the “opportunity to leave with Naloxone,” but there is little evidence available on the outcome of this program. Meanwhile, some states remain hostile to this very simple and effective intervention. In 2023, Oklahoma Governor Kevin Stitt vetoed a bill that would allow prisons to give Narcan to people upon release.23

Community referrals for MAT. In 2019, only 28% of local jails provided a community link to MAT on release. Jails need to partner with their local public health agencies to identify community-based MAT providers for people returning home. For people who started or continued MAT while in jail, uninterrupted access to that treatment is vital. These efforts must include support in navigating the often-complicated health insurance landscape. In 2019, 27% of people on parole and 23% of people who had been arrested at least once in the past year reported having no health insurance coverage. People leaving jail or prison who need MAT must have primary care providers and Medicaid, Medicare, or other health insurance set up prior to release.

 

Recommendations

It is clear that the criminal legal system is not suited to the task of acting as the de facto mental health and substance abuse treatment provider many claim it to be. There are at least a few areas ripe for intervention to improve this situation: reducing the number of people with substance use disorders entering the criminal legal system, instituting evidence-based practices in correctional facilities that actually reduce the risk of drug overdoses, and expanding treatment availability inside jails, prisons, and during reentry.

Prevent people with substance use disorders from entering the criminal legal system:

  • Address the social determinants of health and substance use. In order to reduce the flow of people with substance use disorders into jails and prisons, communities must prioritize housing, physical and mental healthcare, employment, and education. Increased funding for community-based drug treatment and other social services are crucial.
  • Decriminalize drug use. People should not be confined in jails or sentenced to incarceration for drug possession, drug checking supplies, or drug paraphernalia. Harm reduction efforts like clean syringe exchanges, overdose prevention centers, safety-focused education programs, and regulating the drug supply will more effectively – and humanely – reduce overdose risk among people who use drugs.

Institute effective, nonpunitive responses to drug use behind bars:

  • Screen for all substance use and mental health disorders. All admissions to prisons and jails should be screened for active substance use, substance use disorders, and mental health conditions.
  • Avoid punishments and restrictions as responses to drug use, particularly when there is no evidence that they meaningfully impact consumption and overdose. Reflexively restricting meaningful contact and relationships under the guise of drug prevention is especially harmful and counterproductive. This inevitably requires divesting from ineffective practices like mail scanning, canine drug detection, and electronic scanning equipment for visitation. There should be more focus on treatment than punishment for incarcerated people who struggle with addiction.
  • Invest in comprehensive MAT in jails and prisons including professional, clinical counseling, the availability of all MAT drugs, referrals to community providers upon release, and support reestablishing health insurance during reentry.

Expand treatment availability for substance use disorders:

  • Treatment participation must be voluntary in jail, prison, and the community. When treatment is involuntary or coerced, when people are re-incarcerated for positive drug tests, or when they’re disqualified from participation in diversion programs based on their history of substance use, treatment is less effective. Instead, as the Drug Policy Alliance recommends, treatment should always be voluntary, involve clinicians rather than law enforcement, incorporate positive incentives, and use gold-standard medication and other practices.
  • Treatment should begin as soon as possible. Any kind of treatment for substance use disorders and mental health conditions cannot be limited to the weeks or months leading up to release from jail or prison.
  • Treatment requires informed consent. Healthcare providers should seek out informed consent from all individuals who are eligible for MAT and they must have access to all treatment options.

Substance use disorder treatment — as handed down by the criminal legal system — is not working as advertised. Jails and prisons are not healthcare institutions and their mandate for punishment makes patient-centered care impossible and health outcomes worse. Instead, the United States desperately needs healthcare infrastructure that can support people who use drugs outside of carceral settings. While corrections officials request further investments under the guise of treatment, the stigma, isolation, and punishment that helped foment the present crisis persist. Our communities cannot punish their way out of public health crises, but as long as policymakers insist on incarcerating people with substance use disorders, they need to at least provide evidence-based care to those who want and need it.

 

Footnotes

  1. In December 2023, for example, the Arapahoe County (Colorado) Sheriff justified an expected $46 million jail expansion project by claiming the jail needs more space to provide healthcare services to confined people: “The needs of the people that we are in custody of have changed,” Brown said. “We’re not warehousing individuals anymore. We’re treating them.”  ↩

  2. The National Survey of Drug Use and Health (NSDUH) surveys a nationally representative sample of people aged 12 and older. For the purposes of this analysis, we chose to use data collected in the 2019 NSDUH rather than the more recent 2020 survey results. In the 2020 NSDUH report, the authors cautioned that “care must be taken when attempting to disentangle the effects on estimates due to real changes in the population (e.g., the coronavirus disease 2019 [COVID-19] pandemic and other events) from the effects of these methodological changes.” Because of this warning, we elected to use 2019 NSDUH so that our results could be better compared over time and to the available criminal legal system data, which is primarily from 2016-2019. Researchers updating our work in the future, however, should note one important methodological change occurred in 2020: the 2020 survey was the first year in which substance use disorders were evaluated using criteria defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V), as opposed to the 4th edition (DSM-IV).  ↩

  3. In 2016, 47% of people in state and federal prisons met the criteria for substance use disorders prior to admission. Applying this percentage to the 2022 combined state and federal prison population of 1,230,100, we estimate that at least 578,147 people met substance use disorder criteria prior to admission.  ↩

  4. In small jails (holding less than 50 people), only 36% of admissions were screened, but they still had 15% of people screening positive. In jails with 50-250 people, about half (51%) of admissions were screened, and the percentage screening positive was higher: 19-22%. The largest jail jurisdictions (holding 1,000+ people) had higher screening rates but lower rates of positive screenings, which suggests that some smaller jurisdictions may only be screening people whom they suspected of having an opioid use disorder.  ↩

  5. In 2016, 47% of people in state and federal prison met the criteria for substance use disorders in the year prior to admission. Applying this percentage to the 2022 prison population of 1,230,100, we estimate that 578,147 people met substance use disorder criteria in the year prior to admission.  ↩

  6. 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. Query criteria included ages 18 and older, drug- or alcohol-induced causes of death, and data for 2019.  ↩

  7. Other substance use disorders can be addressed with MAT. For example, there are medications for alcohol use disorder (MAUD) that include acamprosate, disulfiram, and naltrexone. However, for the purposes of this briefing, we are focused on MAT for opioid use disorder (also known as MOUD) as there is little to no information about MAUD in prisons and jails.  ↩

  8. A 2019 study based on interviews with state prison representatives from 21 states found that only 7% of prisons in these states offered all three medications. The most commonly provided was naltrexone, which was provided in 36% of prisons in the survey. While any MAT is better than no treatment, there is some evidence that people who receive buprenorphine have significantly lower risk of opioid overdoses than those who receive naltrexone.  ↩

  9. This estimate is calculated based on the 5% of all jail admissions in June 2019 that were treated for opioid withdrawal with medications and the 894,030 jail admissions in June 2019. This is inevitably an undercount, as not all people admitted to jail in active withdrawal are provided with medical care. If 5% of the people admitted to jail in a single month were treated for withdrawal, that means that at least 536,400 people entering jails in 2019 met the criteria for medical intervention for opioid withdrawal.  ↩

  10. Deaths associated with alcohol or drug withdrawal (which can be lethal, especially among people with multiple health concerns) are not included in the “drug or alcohol intoxication” deaths reported in the Bureau of Justice Statistics mortality data, but rather these deaths are most often included in the counts of deaths attributed to “illness” or “other,” according to the Bureau of Justice Assistance. In an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013, researchers found that drug and alcohol related deaths in jails were likely significantly underreported and that there were “roughly 50% more deaths involving drugs or alcohol than previously estimated,” including at least 87 withdrawal-related jail deaths.  ↩

  11. While no region or state in the nation is immune to the opioid crisis, we do know that there is significant variation in opioid use, overdose rates, and access to treatment across the country.  ↩

  12. Kansas, Nebraska, North Dakota, South Dakota, Alaska, Idaho, Wyoming treated less than 1% of statewide jail admissions for opioid withdrawal in June 2019.  ↩

  13. In the Survey of Prison Inmates, 2016, these treatment options are defined as follows:

    • Detoxification: An alcohol or drug detoxification unit where prisoners spent up to 72 hours to “dry out.”
    • Residential program: An alcohol or drug program in which prisoners lived in a special facility or unit designated for treatment.
    • Counseling and therapy: Counseling sessions with a trained professional while not living in a special facility or unit.
    • Self-help group: Includes peer counseling programs, such as Alcoholics Anonymous, Cocaine Anonymous, or Narcotics Anonymous, and other forms of self-help groups.
    • Education program: An education or awareness program “explaining problems with alcohol or drugs in any setting.”
    • Medication-assisted treatment: A maintenance drug, such as methadone, disulfiram, or naltrexone, that is used to “cut a high or make you sick.”

     ↩

  14. There is nothing inherently wrong with offering self-help, 12-step, or peer-counseling programming in prisons. It is only problematic when facilities only offer these types of interventions to people eligible for MAT and/or other clinical treatments  ↩

  15. Paper mail is often the cheapest and most-used form of communication for people in prison and their loved ones.  ↩

  16. This practice of mail scanning, either performed at the facility or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones. Among other jurisdictions, administrators in the federal Bureau of Prisons, the Pennsylvania Department of Corrections, the New York City Department of Correction, the Virginia Department of Corrections, and the Missouri Department of Corrections claimed that mail scanning policies were instituted to reduce drug contraband.  ↩

  17. In 2018, the Virginia Department of Corrections banned visitors from wearing tampons or menstrual cups because of “many instances” of drug smuggling. The Department never reported a count of these instances, and eventually reversed this unjustified and invasive policy in 2019 following significant pushback.  ↩

  18. Drug diversion, according to the Colorado Department of Public Health & Environment, occurs when a medication is taken for use by someone other than whom it is prescribed or for an indication other than what is prescribed.  ↩

  19. In addition, there are other significant avenues through which drugs flow into prisons – including via correctional officers. The federal Bureau of Prisons reported on staff bringing drugs into facilities as early as 2003. More recently, there have been substantiated reports of correctional officers bringing drugs into an Ohio jail, a federal facility in Atlanta, and New York City jails. A 2018 report from NYC’s Department of Investigation revealed that an undercover investigator smuggled in scalpels, marijuana, and Suboxone into the Manhattan and Brooklyn Detention Centers, passing through “all screening checkpoints at both facilities without being manually searched,” even after triggering multiple metal detection devices. A 2023 report from the Office of the Inspector General in California reported that while all California Department of Corrections and Rehabilitation (CDCR) staff and contractors are supposed to be searched, these searches are often inadequate. The report also cites an agreement between the CDCR and the California Correctional Peace Officers Association that stipulates “enhanced inspections will not include a hands-on, physical search of an employee’s person or the use of canines.”  ↩

  20. In-person visitation is one of the most important factors for maintaining family and community support through incarceration and setting up individuals for successful reentry.  ↩

  21. All prison and jail systems have disciplinary responses to drug use. Some examples can be found in the 2022 Office of the Inspector General’s report, Investigation of New York State Department of Corrections and Community Supervision Incarcerated Individual Drug Testing Program, Kyle Ruggeri’s 2019 reporting on his time spent in solitary confinement while in withdrawal in New York State prison, and recent reporting on a class-action lawsuit against the Washington Department of Corrections. For links to prison system discipline policies for state prisons, the District of Columbia Department of Corrections, and the federal Bureau of Prisons, see our Disciplinary Policies collection.  ↩

  22. The most recent iteration of the Bureau of Justice Statistics’ Mortality in Local Jails and State and Federal Prisons series covers deaths occurring in 2019. This is the most recent national data on cause of death in correctional facilities.  ↩

  23. At the same time, Governor Stitt also vetoed a bill authorizing hospitals to give Narcan to people with opioid use disorders upon discharge.  ↩

See the footnotes


New data on the overuse of probation and parole, insights into the racial disparities in prisons and jails, and much more. Here are the highlights of our work in 2023.

by Danielle Squillante, December 21, 2023

2023 was a big year at the Prison Policy Initiative. We exposed how the overuse of probation and parole serves to extend the prison walls into our communities, produced new datasets and graphics that show just how vast the racial disparities in prisons and jails actually are, and highlighted how the same companies that profited off of over-priced prison phone calls have moved into the e-messaging industry. Didn’t catch everything we published in 2023? We’ve curated a list of some of our best work from this year below.

 

Mass Incarceration: The Whole Pie 2023

We released an update of our flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It 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.

Women experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. To fill these data gaps, we also released an updated Women’s Whole Pie report in partnership with the ACLU Campaign for Smart Justice, which includes richly-annotated data visualizations about women behind bars.

  • pie chart showing national offense types and places of incarceration
  • pie chart showing national offense types and places of incarceration for women

Punishment Beyond Prisons 2023

Our report shows the full picture of correctional control in the U.S., with a particular focus on the overuse of probation and parole. It includes data for all 50 states and D.C. on the number of people under correctional control, including community supervision. We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems. Our findings raise the question of whether probation and parole systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.

bar chart showing the 50 states and D.C. in terms of their overall mass punishment rate

 

SMH: The rapid & unregulated growth of e-messaging in prisons

To better understand the explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation. Our review found that, despite its potential to keep incarcerated people and their families connected, e-messaging has quickly become just another way for companies to profit at their expense.

a map showing which prison telecommunication company has contracts for e-messaging in that state's prison system
 

Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.

We released new data visualizations and updated tables showing the national landscape of persistent racial disparities in state prisons and local jails. Unlike other datasets, ours provides apples-to-apples state comparisons in three formats: counts, rates, and percentages. Using this data, we’ve updated over 100 of the key graphics on our State Profile pages, showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compares to the total state population.

bar chart showing the ratios of black and white imprisonment rates by state using 2021 data

 

What is civil commitment? Recent report raises visibility of this shadowy form of incarceration

Twenty states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex-related offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence. This deep dive into recently-published data from a survey of individuals confined in an Illinois civil commitment facility sounds the alarm about how these “shadow prisons” operate and the high rates of violence and trauma that people detained in the facilities are subjected to.

map of all 50 states with the number of people being held in civil commitment in each state

 

The aging prison population: Causes, costs, and consequences

Our briefing examines the inhumane, costly, and counterproductive practice of locking up older adults. The U.S. prison population is aging at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.

 

How 12 states are addressing family separation by incarceration — and why they can and should do more

Our briefing assesses the legislative action taken by 12 states and the federal government to address the growing crisis of family separation caused when a primary caregiver is incarcerated. All too often, incarceration destroys family bonds as parental rights are terminated or children end up in foster care. We explain how advocates across the country are fighting for creative and holistic solutions.

map of all 50 states showing which have taken legislative action to address family separation by incarceration

 

No Release: Parole grant rates have plummeted in most states since the pandemic started

With parole board practices in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We surveyed 27 states and found only 7 saw an increase in their parole approval rate since the pandemic began, and almost every state held substantially fewer hearings than in years past.

bar chart comparing changes in parole grant rates in 27 states with discretionary parole between 2019 to 2022
 

Breaking news from inside: How prisons suppress prison journalism

In response to a move by New York prison officials in May to introduce a policy to effectively suppress prison journalism, we released a briefing building off of data from the Prison Journalism Project that detailed restrictions on prison journalism in prison systems across the country. 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.

 

A profile of Native incarceration in the U.S.

Adding to our 50 State Profile pages, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate and more than four times higher than the state and federal prison incarceration rate of white people. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.

 

States to the Census Bureau: You created prison gerrymandering, you need to end it.

Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. In a May blog post, we reviewed a new National Conference of State Legislatures report that outlines the experiences and recommendations from states that implemented anti-prison gerrymandering reforms in the 2020 redistricting cycle. The report makes clear that state officials agree that prison gerrymandering is important, worth fixing, and the Census Bureau should be responsible for ending it. With roughly half of U.S. residents now living in a state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear. But will the Bureau listen?

map of all 50 states showing which state and local governments have taken action to address prison gerrymandering
 

Advocacy Toolkit

We continue to update our Advocacy Toolkit, a collection of web-based resources designed to improve advocates’ skills (such as locating data and conducting public records requests) or to plug directly into their campaigns (such as fighting new jail proposals). New this year is a guide to help advocates identify ways public housing policies can be more inclusive to people with criminal histories, as well as a guide that explains why charge-based carveouts are problematic and provides messaging to combat justifications for including them in criminal justice reforms.

 

This is only a small piece of the important and impactful work we published in 2023 and our work is far from over. We’ve got big things planned in 2024, when we’ll continue to expose the broader harms of mass criminalization and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.


Recently published data from the Bureau of Justice Statistics show growing prison and jail populations, but this has little to do with crime. Instead, the trend reflects court systems’ slow return to “business as usual” and lawmakers’ resurrection of ineffective “tough on crime” strategies.

by Wendy Sawyer, December 19, 2023

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

 

Upward trends in prison and jail populations in 2022

Prisons

The new BJS data show that the total national prison population grew by over 2%, with 42 states and the federal Bureau of Prisons (BOP) incarcerating more people at the end of 2022 than 2021. In 14 states, the prison population grew by 5% or more,1 with just 9 states (mostly in the South) and the BOP accounting for 91% of all prison growth nationwide.2 The number of imprisoned women grew proportionally more than the number of imprisoned men (up 5% compared to 2%). At the end of 2022, 16 states held 90% or more of their pre-pandemic (2019) prison populations.

Just like the prison population changes we saw during the early and mid-pandemic (2020 and 2021), these increases were driven by changes in admissions more than anything else: 11% more people — about 48,000 more — were sent to prison in 2022 than in 2021. One narrow silver lining from this update: The number of people released from prisons increased for the first time since 2015; unfortunately, this was only a tiny increase of 1% compared to 2021. (As we recently reported, parole boards have been approving fewer people on discretionary parole in recent years, and compassionate release systems are woefully under-utilized.)

Local jails

Local jail populations grew at an even faster pace than prisons in 2022; jails held 4% more people at the end of June 2022 than at the end of June 2021.3 The women’s jail incarceration rate grew 9% compared to 3% for men, and Black, American Indian or Alaska Native, and Native Hawaiian or Pacific Islander4 rates all rose proportionally more than white and Hispanic jail rates.

As with prisons, jail growth was driven by a nearly 7% increase in admissions over last year. The pretrial population was almost back to its full pre-pandemic size (at 97%); more than 70% of people in jail had not been convicted of a crime. Another contributing factor to jail growth: the use of jail detention as a response to probation violations, up 5% compared to 2021. During the pandemic, many jurisdictions reduced their use of jails for punishing these typically low-level, noncriminal violations, but it appears that costly practice is “back to normal.”

 

A preliminary look at 2023 and beyond: Prison and jail populations continue to grow

In an effort to see whether the growth trend in jail and prison populations has continued since the BJS collected data in 2022, we looked for more recent data. While the data we found are neither complete nor perfectly comparable to those published by the BJS,5 we were able to look at year-to-date 2023 jail data from the Jail Data Initiative and at 2023 prison population data published by 42 states and the federal Bureau of Prisons (BOP). (For the 2023 prison data we found, see the Appendix table.)

What we found was troubling but not surprising:

  • The jail data, collected from 942 jails across the U.S., show another modest (0.7%) increase in the average daily population in 2023 compared to 2022.6
  • In two-thirds (28) of the 43 prison systems for which we found more recent prison data, it appears that even more people were incarcerated in 2023, with at least six states again showing increases of 5% or more over their 2022 populations.7
  • At least two of the eight states where prison populations shrank in 2022 showed increases in 2023 prison populations; in Massachusetts and Arizona, the growth in 2023 erased the population drops in 2022.

Line graph showing the percent change in prison population compared to 2019 for 2020, 2021, 2022, and 2023 in twelve states. All of them are now within 90 percent of their pre-pandemic level, and some are higher. Many state prison systems with available 2023 data have already returned to — if not surpassed — their 2019 pre-pandemic sizes.

 

Explaining recent prison and jail growth

It wasn’t crime

There’s been a lot of ink spilled about relatively modest changes in crime trends over the past few years, but nationally, total crime has remained near historic lows. While the specific factors that influence changes in prison and jail populations vary from place to place and from year to year, we conclude that “rising crime” is among the worst explanations for the growth of incarcerated populations over the past couple of years.

In considering this possibility, we looked at national crime victimization data as well as officially reported crime data.8 We see that the rate at which people reported any personal victimization in 2022 (23.5 per 1,000 people aged 12 or older) was almost exactly what it was five years ago, before the pandemic. Similarly, when we look at crime statistics reported by the FBI over a timeframe longer than one or two years, the rate of violent crime has held remarkably steady (and actually declined). In general, the fluctuations that have made headlines are within the range of what we have observed for the past 15 years or so. We see a similar story with property crime (with the exception of auto theft), which has also remained near its historic low, and is trending more steeply downward overall:

side-by-side charts showing that according to both self-reported victimization data and official crime data, property crime is down and violent crime is flat over the years 2007 to 2022 We looked at two indicators of crime — self-reported victimization and officially-reported crime — and observed the same patterns in both.

Because we are attempting to uncover trends beyond 2022 in this briefing, we also considered preliminary 2023 crime data released by the FBI in advance of its official annual estimates. For this, we turned to crime analyst Jeff Asher’s recent analysis of the available data. Asher concludes:

“Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded. What’s more, every type of [FBI] Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year…. The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.”

We won’t know how accurate Asher’s analysis is for almost another year, when the FBI releases the 2023 year-end data, but we agree that all signs point to crime continuing to trend downward. Of course, incarceration trends do not track directly with crime trends, anyway; they have more to do with how law enforcement, prosecutors, and judges choose to police and punish certain people, places, and behaviors — and how efficiently they can do so.

 

Changes in court processes

The 2022 increase in incarceration is actually exactly what we have been anticipating since the dramatic drops we observed early in the pandemic. When populations shrank in 2020 and 2021, we noted that court data showed what happened when courts suspended jury trials and other operations to slow the spread of COVID-19: The number of incoming (new) cases dropped, dispositions (decisions) dropped, and overall case clearance rates (the ratio of new to disposed cases) dropped, creating massive backlogs in the court system. This was a major reason that prison admissions fell so dramatically in the early pandemic.

To see if these data could explain the increase in admissions in 2022, we revisited the same data source, and found that all of those measures have more or less recovered from the slowdowns. Many court systems are still not fully caught up, but by 2022, they had resolved much of the backlog, which in turn caused the shift of many people from pretrial status to disposition, sentencing, and ultimately, admission to jail or prison.

three side by side charts showing that compared to 2019, new felony cases were up 10 percent, felony cases closed were only down 7 percent, and felony case clearance rates were up 5 percent In 2020, many courts shut down jury trials and other in-person operations, creating a backlog of cases that are still being cleared in many states. As more cases work their way through the courts, more people are sentenced to incarceration, resulting in more prison admissions.

Indeed, when we looked through individual states’ own interpretations of their 2022 population changes, most cited slowdowns and backlogs in the court system:

  • Virginia: “From mid-March to mid-May 2020, an emergency order issued by the Chief Justice of the Supreme Court of Virginia suspended all non-essential and nonemergency proceedings in the state’s courts. During that time, significantly fewer sentencing hearings were held, resulting in fewer offenders being sentenced to a prison term. Reports suggest that court caseloads have not returned to pre-COVID levels.” (October 2022)
  • Wisconsin: “Populations have grown significantly in the past several months as courts are working to address the backlog of cases incurred during the pandemic.” (June 2023)
  • Michigan: “…[I]t is projected the prison population will continue rebounding through 2024 due to processing of the court backlog.” (November 2023)
  • Rhode Island: “[The Rhode Island Judiciary spokesperson] noted that ‘over the last year the courts were still hearing cases that were delayed or carried over due to COVID-19 procedures and protocols….’” (December 2023)
  • Minnesota: “Now, as courts catch up, the prisons are filling to levels not seen in about four years.” (March 2023)

 

State prison systems and the BOP predict future growth

We also found documents showing that at least 22 states and the federal Bureau of Prisons (BOP) have calculated projections for their prison populations, and they almost uniformly predict further growth. Nineteen states and the BOP expect to incarcerate more people in the years ahead. Only California, Hawaii, and New Mexico expect to incarcerate fewer people in the foreseeable future — and even then, New Mexico anticipates a slight increase in its incarcerated women’s population. (For a list of reports with projections, see the Projections Appendix table.)

Screenshot from a Colorado report showing that the state expects male and female prison populations to increase at least through 2029
This example of a prison system’s population projections, from Colorado, shows that correctional authorities expect the male prison population to return to its pre-pandemic (2019) size by 2026; the report also shows the total population is expected to return to its pre-pandemic size by 2027.

The explanations offered by the states that predict further prison growth share a common theme: in addition to courts catching up with any lingering backlogs, they point to recent changes in legislation that will lead to longer sentences. New laws enacted in the past couple of years have increased penalties for some offenses, created new felony offenses, and made it harder to shorten excessively long sentences.

A Wisconsin report puts this plainly: “one additional potential factor that may influence the population projection… is 2021 enacted legislation, which increased penalties and created additional crimes.” The Oregon Office of Economic Analysis was more specific, pointing to a law passed in 2019 that made it easier to convict defendants of unlawful use of a vehicle, which had resulted in an additional 92 people in the annual prison population so far. While we couldn’t find projections for Tennessee, advocates offered similar explanations for the state’s current prison growth: the “Truth in Sentencing” bill enacted in 2022 put the possibility of parole or early release out of reach for many people, even though the Sentencing Commission determined sentence lengths “with the understanding that people would be paroled.” As a result, people are now serving sentences much longer than intended in the original sentencing laws.

Of course, projections are often wrong, but these reports give us some insight into how state correctional and budgetary agencies are contending with the specter of “tough on crime” politics and policy changes. Having seen the results in the 1980s and 90s, these projections may not be far off.

 

Returning to ‘business as usual’

The increase in incarceration in 2022 was the predictable outcome of (a) the criminal legal system return to “business as usual” and (b) the return of 1980s- and 90s-style “tough on crime” legislation. It was not caused by a crime wave. We can expect further growth in prison and jail populations unless states and localities redouble their efforts to safely reduce incarceration through criminal legal system reforms such as abolishing cash bail, eliminating incarceration for lower-level crimes (including non-criminal violations of probation and parole), shortening sentence lengths and making those changes retroactive, and expanding access to earned early release and discretionary parole. State and local governments must also make greater investments in strategies that we know protect people from criminal legal system contact: reinvesting in communities impacted by crime, with a focus on jobs, housing, education, and access to community-based mental health and substance use treatment.

 

Appendix tables

Prison population projections and sources

State and federal prison populations 2019-2023 and sources

 

Footnotes

  1. The states where prison populations grew by 5% or more in 2022 include: Mississippi (14%), Montana (9%), Colorado (8%), Tennessee (8%), Minnesota (8%), North Dakota (8%), Rhode Island (the “unified” prison and jail population grew by 7%), Kentucky (6%), Connecticut (the “unified” population grew by 6%), Maine (6%), Vermont (the “unified” population grew by 6%), Alabama (5.5%), Florida (5%), and Louisiana (5%). Texas’ prison system grew by 4% but this represented the largest number of additional incarcerated people (almost 5,900) in any one state in 2022.  ↩

  2. The federal Bureau of Prisons accounted for 8% of all prison growth in 2022. Nine states accounted for 83% of all growth: Texas (accounting for 23% of the total increase), Florida (17%), Mississippi (10%), Tennessee (7%), Georgia (6%), Alabama (6%), Colorado (5%), Louisiana (5%), and Kentucky (5%).  ↩

  3. The Bureau of Justice Statistics’ annual prison and jail data collections use different reference dates. The prison data typically reflect counts at year-end, or December 31, while the jail data use counts collected at mid-year, on the last weekday in June (typically June 30). Therefore the 2022 prison data cover the 2022 calendar year, while the jail data cover the 12-month period from July 1, 2021 to June 30, 2022.  ↩

  4. Concerningly, the Native Hawaiian/Pacific Islander jail incarceration rate increased by 51% in just one year, and surpassed the white rate for the first time since at least 2010 (we couldn’t locate rates for earlier years).  ↩

  5. We were only able to locate 2023 data from 42 states and the federal BOP, and the reference dates for these data vary quite a bit. Additionally, none are “year-end” data that would be comparable to what the BJS collects. The exact populations included in these counts may also vary from the “jurisdictional” population counts that we compared them to, published by the BJS.  ↩

  6. We examined daily jail populations collected by the Jail Data Initiative, which uses web-scraping to collect and aggregate daily jail information from online jail rosters. We compared year-to-date 2023 data with data for the same period in 2022 (covering the period of January 1 to November 30 for each year), from the same sample of 942 jails that had available data for those dates. As a point of comparison, the BJS jail data and estimates are based on a sample of about 900 jails as well. We were not able to create estimates of the total national jail population that would be comparable to the Bureau of Justice Statistics’ estimates, due to the limited data provided in jail rosters, but instead compared the raw numbers from this sample for each year to get an idea of the relative (percent) change.  ↩

  7. As of November 2023, the prison populations of Mississippi and South Dakota had grown about 8% since 2022; as of October, Tennessee’s prison population had grown 5%; and as of December, the prison populations of North Carolina, Wisconsin, and New York had also grown by 5%.  ↩

  8. We used both indicators of crime — self-reported victimization data and the more frequently-referenced FBI measures of reported crime — for two main reasons. First, the FBI’s data collection method has changed in recent years, and as a result fewer law enforcement agencies have submitted data (83% in 2022 compared to 95% or more before the change to the new system). That has made the annual FBI crime estimates less reliable in the last few years. Secondly, many crimes go unreported to police. Using data from a nationally representative survey that asks people about their experiences of crime victimization in the past year helps to fill that under-reporting gap. This is not a perfect substitute, since it necessarily excludes homicides and doesn’t capture crime that targets businesses or public property, for example. But for the types of crime that capture headlines (i.e., interpersonal violence, theft, burglary, etc.), the victimization data offer a much more reliable picture of people’s experiences.  ↩


Among the 27 states we surveyed, only 7 saw an increase in parole approval rate, and almost every state held substantially fewer hearings than in years past.

by Emmett Sanders, October 16, 2023

Note: On October 18, 2023, we made two edits to this piece : (1) Added data from Massachusetts that was released shortly after our analysis was published, (2) Fixed minor transcription errors to the appendix table.

Earlier this year, Alabama’s Board of Pardons and Paroles made headlines when it denied parole to someone who had died ten days prior to their parole hearing. This is just one of many threads in the Alabama parole board’s tapestry of dysfunction. For months, their three-person parole board operated with just two members despite requiring a majority vote to grant parole. It is no wonder that Alabama is on track to have a parole grant rate — the percent of parole petitions approved — of just 7% for 2023. This also comes as studies show racial disparities in parole grant rates are widening: for example, non-white people in New York were released at a rate almost 29% less than their white counterparts in 2022 (up from a difference of around 19% between 2016 and 2021).

With parole board practices so much in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We filed dozens of records requests and curated the best research to explore whether state parole boards are helping reduce mass incarceration or whether they are disregarding the hard-learned lessons of the pandemic, when they released even fewer people than before the crisis as people died behind prison walls.

 

The state of parole

In the 29 states1 for which we collected 2022 parole approval data, only 8 had grant rates above 50% – Connecticut, Idaho, Massachusetts, Nevada, North Dakota, Utah, Vermont, and Wyoming. Wyoming had the highest grant rate of 78%. At the other end of justice’s sliding scale, Alabama (10%) and South Carolina (13%) have the lowest parole approval grant rates in the nation. And while we don’t yet have data from most states for 2023, South Carolina’s recently updated parole data show that the state’s parole approval rate has dropped to an astonishingly low 7% in 2023.

Graph showing the percent change in parole approval rates in 26 states between 2019 and 2022. All but six states saw grant rates fall. To see full information about parole grant rates by year in each state from 2019-2022, see the appendix.

With few exceptions, parole grant rates dropped significantly from 2019 to 2022

In the 27 states for which Prison Policy Initiative was able to track changes in parole approval rates from 2019-2022, only 6 — Connecticut (+29%), Georgia (+17%), Texas (+11%), Hawai’i (+8%), Massachusetts (+8%), South Dakota (+6%), and Nevada (+1%) — have seen any increase since 2019. In the remaining 20 states from which we received data, parole grant rates have seen either no change or have seen a marked decline, with South Carolina (-63%) and Alabama (-67%) seeing the biggest drop offs in grant rates.

But state parole boards did not only choose to release fewer people. They heard fewer cases as well. With the exceptions of Oklahoma, South Dakota, and Arkansas, parole boards continued to hear significantly fewer total cases in 2022 than they did in 2019. The result is that since 2019, the number of people released through discretionary parole has decreased across the board.

Graph showing percent change in number of parole hearings in 27 states between 2019 and 2022. All but three states saw parole hearings decrease. To see full information about the number of parole hearings by year in each state from 2019-2022, see the appendix.

Ironically, South Carolina’s Department of Probation, Parole, and Pardon Services’ website is quick to highlight the money the state has saved by reducing the number of parole revocations over the past decade. Of course, it would be difficult to have more revocations, given that they released 69% fewer people via discretionary parole in 2022 than they did in 2019. South Carolina is far from alone, however. Alaska has reduced the number of people released through discretionary parole by 79% since 2019; Alabama 70% and Maryland by 66%. In fact, with the exception of South Dakota, every state for which data was provided released fewer people through discretionary parole in 2022 than in 2019, with an average overall decline of around 41% fewer people released per state. South Dakota’s increase is also extremely modest – the state released just 62 more people in 2022 than in 2019.

Graph showing percent change in number of people approved for parole release in 25 states between 2019 and 2022. Only one state, South Dakota, saw an increase in the number of people approved. To see full information about the number of people released on parole by year in each state from 2019-2022, see the appendix.

 

Why are parole boards releasing so few people?

Denial is often effectively the default disposition for parole boards, and the burden of proof is usually on the person who is incarcerated to justify their release. This is problematic, as the board often considers factors that are beyond the applicant’s control, such as the availability of programming or education in the prison, or factors that cannot be changed, such as the nature of the offense for which they were incarcerated. When release rests on these factors, there is very little a person can do to influence the outcome.

Another issue is the general outlook some politicians and parole board members have toward people who are up for parole. State Representative Matt Simpson defended Alabama’s abysmal grant rates, saying “We’ve gotten to a point where the people up for parole are the ones that don’t need to be out; it’s not like it used to be where we had a number of non-violent offenders.” While recent reports have cast doubt on this claim, it still begs the question: how can those with this viewpoint provide a fair hearing to those who come before them? There is nothing fair about a body that decides people’s fates before they ever appear. It’s important to note that the seriousness of an offense is taken into account when a judge first sets a prison sentence. When parole boards solely or exclusively make their release decisions based on the underlying charge, they are continually punishing incarcerated people for a factor they cannot change. Moreover, policies that provide relief only for those with non-violent offenses are simply not impactful enough to address the juggernaut of mass incarceration. And although parole boards are charged with looking at a person’s likelihood of rearrest, they often seem to ignore the fact that people sent to prison for violent charges have the lowest rearrest rate of any group.

Parole Boards are influenced by politics

In 2019, Mississippi had a grant rate of 74% — one of the highest rates in the nation. However, that same year, the parole board made the ethical but unpopular decision to parole a person who had been incarcerated for 30 years. That person had their death sentence commuted on the basis of intellectual disability but the board determined them not to be a threat to public safety. In the aftermath of this decision, Mississippi saw its grant rates freefall 42 percent by 2022. The political outrage at the decision led to increased scrutiny and political pressure which has undermined Mississippi’s presumptive parole system.2

Though parole boards are typically thought of as serving a judicial function (i.e., weighing evidence and rendering a judgment that results in freedom or continued incarceration), they are still bureaucratic bodies beholden to political good will. Parole board members are usually appointed by governors and confirmed by legislative hearings, which often makes their selection fundamentally political. More than a third of states with parole boards in the US mandate no qualifications to sit on the board, meaning no actual knowledge of law, prison, the judicial system, mental health, or even basic social dynamics are required to sit on boards that can prevent a person from ever again experiencing life outside prison walls.

Policy efforts to increase release rates are often stalled or undermined

Efforts to restore discretionary parole in Maine, Virginia, and Illinois led by groups like Parole4ME and Parole Illinois have come achingly close to success in recent years. Some states with discretionary parole have begun to implement presumptive parole in an effort to increase fairness and remove subjectivity and political pressure. While presumptive parole is a key strategy to reduce incarceration, in states that have implemented it, the efficacy of this policy is limited by carveouts — exceptions in policies that exclude certain categories of people from relief. Most states with some form of presumptive parole will not apply the presumption to people with certain offenses, those who have received recent disciplinary infractions, or those who haven’t completed relevant rehabilitative programming. As we noted, offense-based carveouts do not have a strong basis in policy, and programming-related carveouts are problematic because programming is neither universal nor guaranteed and can vary immensely from prison to prison.3 Reports have also shown that Black and Brown people who are incarcerated are more likely to receive disciplinary infractions than their white counterparts, meaning they are more likely to be denied presumptive parole based on this carveout.

 

Conclusion

Despite the dangers of incarceration in a post-pandemic world and the efforts of many to make the parole system more just, fewer people are receiving parole hearings, and fewer still are released through discretionary parole. In fact, discretionary parole accounted for only a small fraction of total releases from prison in 2021.

Expanding access to discretionary parole won’t by itself end mass incarceration; however, expanding its usage in conjunction with presumptive parole while eliminating undermining carveouts could be a powerful tool for decarceration. Hopefully, a review of parole in 2023 will see incarcerated people given a greater chance to be paroled.

 

Footnotes

  1. While we sought to collect data from all 34 states with discretionary parole as a primary mechanism of release, not all states make parole board data publicly available and several were not forthcoming with data via records requests. Arkansas has a residency requirement for records requests that prevented submission; Missouri denied having records responsive to our request, which strains credulity; New Hampshire cited the records as exempt. We are awaiting data for Nebraska, and West Virginia. Kentucky and Idaho provided some information, but were unable to provide statistics for 2019. In the appendix to this briefing, we provide details about each state’s response to our open records requests.  ↩

  2. Presumptive parole is a form of non-discretionary parole in which people are automatically released if they meet certain established criteria.  ↩

  3. New Jersey’s programming requirement for Administrative Parole Release eligibility (that state’s equivalent of presumptive parole), for instance, includes a provision that people will not be disqualified from APR if programming was unavailable.  ↩

 

Appendix tables

Discretionary Parole Grant Rates by state, 2019-2022


New Census Bureau data show the U.S. population is getting older — and at the same time, our prison populations are aging even faster. In this briefing, we examine the inhumane, costly, and counterproductive practice of locking up older adults.

by Emily Widra, August 2, 2023

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.

 

Aging throughout the criminal legal system

Older adults1 are increasingly ensnared in all parts of the criminal legal process: in arrests, pretrial detention, and imprisonment. In 2000, 3% of all adult arrests involved people aged 55 or older, and by 2021, this older population accounted for 8% of all adult arrests.2 According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.3

two bar charts showing people in prison 55 and older as a percentage of adult arrests and people in prison, increasing from 1991 to 2021

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%.4 This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison.

 

The dangers of aging in prison

Prisons are unhealthy places for anyone of any age, but keeping older adults locked up is particularly dangerous. A robust body of research shows that incarceration itself accelerates aging: people face more chronic and life-threatening illnesses earlier than we would expect outside of prison, and physiological signs of aging occur in people younger than expected. In addition, a conservative estimate of more than 44,000 people 45 and older experience solitary confinement in state prisons each year, in conditions that shorten lives and can be detrimental to physical, mental, and emotional health. Years of limited resources, inaccessibility, and understaffing in prison healthcare have created a situation in which each year spent in prison takes two years off of an individual’s life expectancy. The same scarcity of prison healthcare resources that jeopardizes older people’s health is not just ineffective-it’s also exorbitantly expensive.

 

The high costs of incarcerating older people

State and federal governments spend increasingly more money on consistently inadequate healthcare for their growing populations of older adults. While most studies on the steep costs of incarcerating older people date back at least a decade, their findings are consistently dramatic. For example, in California prisons in the 1990s, the state spent three times as much money to incarcerate an older person than someone of any other age group. Considering the proportion of California’s prison population over the age of 50 has risen from about 4% in 1994 to 25% in 2019, and that prison healthcare spending per-person has ballooned in the intervening years, the cost of incarcerating older adults only appears to be growing. In 2013, the federal Bureau of Prisons (BOP) spent 19% of its total budget — or $881 million — to incarcerate older adults. That same year, the BOP reported this group was the “fastest growing segment of its inmate population” with a 25% increase over the course of a single year (as the rest of the population decreased by 1%).

As long as people are in prison, they should receive the care they need to be safe and healthy. But especially at the state and local level, every dollar spent in prisons is a dollar that could have expanded and improved community health services — and provided superior care. It doesn’t make much sense to spend so much money locking people up in places that are not only dangerous to their health, but more costly to care for them — especially when there is little public safety argument to justify doing so.

 

Low risk of re-arrest and re-incarceration for older adults

The older someone is, the less likely they are to be arrested following release from prison, according to the most recent government study of recidivism. In fact, people released at age 65 or older are the least likely of any age group to be re-arrested in the five years following release:

line graph showing re-arrest trends for five years after release from state prison, highlighting people 65 and older as lowest risk

Decades of research reinforces these findings: formerly incarcerated older adults are among the least likely to be re-arrested, re-convicted, and reincarcerated.

 

Decades of “tough on crime” policies contributed to the aging prison population

The incarcerated prison population is getting older much more quickly than the general population because of policy choices throughout the criminal legal system.

Policing

Policing disproportionately targets populations that often include many older adults: unhoused people, people who use drugs or alcohol, and people with cognitive disabilities. Nationally, the unhoused population is growing older. From 2007 to 2014, the number of unhoused people over age 50 expanded by 20%, and in 2014, this age group accounted for more than 30% of people experiencing homelessness. Given that unhoused people are up to 11 times more likely to be arrested than housed people, the likelihood of arrest for older, unhoused people is undoubtedly growing over time. Drug-related arrests among people aged 50 and older nearly doubled from 2000 to 2018, indicating a dramatic increase in criminal legal system involvement.

The criminalization of mental illness among older adults is significant as well. One in nine people aged 65 and older have Alzheimer’s dementia (one of many kinds of dementia). The most recent national data available indicates that people with cognitive disabilities are overrepresented in jails and prisons: 31% of people in jails in 2012 and 24% of people in state prisons in 2016 reported a cognitive disability. As greater numbers of older adults with cognitive disabilities encounter police,5 older prison populations are likely to grow.

Sentencing

State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.

 

Tools to reduce the aging prison population remain underutilized

While attention to this crisis has grown in recent years, many of the available tools — such as parole and compassionate release — have been underutilized. The failure to release older adults from prison has deadly repercussions: from 2001 to 2018, over 30,500 people aged 55 or older died in prison and almost all of these deaths (97%) were due to illnesses.12

Parole

In a study of parole in Maryland, the Justice Policy Institute found that between 2017 and 2021, parole grant rates are highest for people between the ages of 31 and 35 (43%) with rates declining as age increases: people over 60 are paroled at a rate of 28%. Older adults serving long sentences are often denied parole, with boards focusing on the nature of their original offense instead of their preparedness for reentry.13 That being said, parole is not even an option for large swaths of the prison population. Almost half of all people serving life without parole (LWOP) sentences are at least 50 years old, and one in four is at least 60 years old. Even some “geriatric” or “elder” parole laws, intended to facilitate the release of older incarcerated people, needlessly exclude many older people who would otherwise be eligible; for example, the Justice Policy Institute points out that the Maryland law only applies to older people with multiple convictions.

Compassionate release

Compassionate release (often called medical parole) is an important release mechanism for older adults, but is not used nearly often enough. The application process is cumbersome and opaque, and many people die before they ever receive a decision.14 In addition, decisions about medical eligibility for release are often filtered through state parole boards, whose membership often includes former corrections officials, former parole or probation officers, and former prosecutors. These are not vocations particularly invested in release, much less promoting individual health and wellbeing outside of the carceral system. Parole boards’ lack of knowledge about serious and terminal illnesses, as well as the general aging process, can create significant barriers to release. Physician reluctance to offer a prognosis, parole board rejections of medical recommendations, offense carveouts,16 and barriers to discharge planning15 also factor into the underutilization of compassionate release. Some states (like Iowa) do not even have such a release program.

The result: Nursing homes behind bars

As a result of the disastrous failure to make use of existing release systems and increasing public pressure to address the aging prison population, prisons have adapted in very troubling ways. In Connecticut, Kentucky, Tennessee, and Wisconsin, departments of corrections have created “prison nursing homes” to keep people incarcerated even when they are far too sick or frail to represent any kind of public safety threat.17 The continued incarceration of people who would otherwise be receiving residential or long-term care reflects a troubling trend of prisons “gearing up to become nursing homes, but without the proper trained staff and adequate financial support.”

Re-entry barriers

Even when older adults are approved for release from prison, they often face a barrage of challenges in the community.

Many people released from prison — regardless of age — struggle to obtain adequate and affordable housing, employment, and healthcare. For older adults, these concerns can be magnified as any amount of time spent in prison disrupts healthcare services and increases the challenges of (re)connecting with them after release. Older adults also have fewer relationships with people on the outside, face discrimination in healthcare settings like nursing homes, and come up against legal and regulatory barriers to accessing benefits like Supplemental Security Income and Medicare.

The sheer number of complex and overlapping barriers placed before formerly incarcerated older people is staggering:

Housing
barriers
Employment and
income barriers
Healthcare
barriers
Reduced family/friend networks, or reduced connection with family Criminal legal system involvement Logistical barriers for enrollment in Medicare/Medicaid
Untreated mental illness Mental health status Unstable housing
Untreated substance use Physical health status Functional or cognitive disabilities
Costs of housing Prior employment history (gaps) Health literacy
Public housing restrictions Logistical barriers for enrollment in SSI/SSDI Distrust of institutions/public benefits
Landlord discretion Age discrimination
Nursing homes/congregate housing restrictions Lack of (reliable) transportation

Barriers to admission for nursing homes and other necessary healthcare facilities are particularly awful for people who have a terminal illness and are released via compassionate release. In Connecticut, many nursing homes will not even consider admitting people released from prison, and in Florida, people who have been convicted of sex offenses and released from prison often live in motels because they are routinely turned away from nursing homes. Formerly incarcerated older adults facing chronic and terminal illnesses are often forced to rely on an “ad hoc network of care” for their medical needs.

 

Reducing the aging prison population

If we hope to address this crisis, more work needs to be done to curb arrests of older people, to divert them to better community support, and to reduce their numbers behind bars. The decriminalization of homelessness and substance use — as well as expanded diversion services for older adults — can reduce their risk of arrest and detention. States can also send fewer people back to prison by eliminating parole revocations for technical offenses that reincarcerate people for actions that, were the individual not on parole, would not be crimes at all.

To reduce the number of already-incarcerated older adults, state and federal governments can make use of presumptive parole, second-look sentencing, and the retroactive application of sentence reduction reforms, as well as the many other mechanisms to shorten excessive prison sentences outlined in our 2018 report, Eight Keys to Mercy: How to shorten excessive prison sentences. All states should have compassionate release or medical parole available to release older adults and those facing chronic and terminal illnesses. States can also reduce existing barriers to compassionate release by eliminating exclusions based on offense type, relaxing eligibility criteria, and simplifying the application, review, and approval process.18 Elder parole policies that implement automatic parole consideration for older adults who have already served some portion of their sentence can further reduce the number of older people behind bars, simplifying the process of getting out of prison for some of the most medically vulnerable people.19

Finally, states and the federal government need to expand the social safety net to support older adults released from prison. There are numerous interventions to support reentry by reducing housing and employment barriers, encouraging access to healthcare and health insurance (including Medicare and Medicaid), and simplifying application and re-enrollment for Social Security benefits, as well as many more crucial supports outlined in this 2022 issue brief from Justice in Aging.

 

Conclusion

The crisis of our aging prison population is not an accident but the result of policy choices that hurt incarcerated people, their loved ones, families, and communities. Fortunately, we can address these policy missteps.

In order to provide older incarcerated people with adequate healthcare, end of life care, and dignity, we need to find ways to reduce their numbers in all parts of the carceral system. Existing tools — like compassionate release and parole — can help but are not enough to address this problem on their own. States should follow the lead of advocates who are fighting to reduce police encounters, end draconian sentencing like life without parole, and expand release mechanisms like elder parole. Reducing barriers to enrollment in Medicare, Medicaid, Social Security, and ensuring people have safe places to live in our communities can expand the safety net for older adults leaving prisons. Ultimately, the benefits of such changes will not be recognized only by older adults in the system but the broader population as well.

 

Appendix: State prison populations aged 55 and older, 1999‑2019

For the number and percent of people 55 and older in state prisons by state from 1991 to 2019, see the appendix table at: https://www.prisonpolicy.org/data/aging_1999_2019.html.

 

Footnotes

  1. Throughout this report, “older adults” refers to people aged 55 or older.  ↩

  2. Arrests in the United States by age and sex, 2000-2021 from the Federal Bureau of Investigation’s Uniform Crime Reporting Program, Crime Data Explorer.  ↩

  3. At midyear 2020, there were 40,500 people aged 55 or older confined in local jails and by midyear 2021, there were 50,100 people 55 or older in local jails, representing an increase of 24%. Focusing on the oldest age group for which data is collected, the number of people 65 or older expanded from 7,400 to 9,400 (a 27% increase) from 2020 to 2021. See Table 2 in the Bureau of Justice Statistics’ Jail Inmates in 2021 — Statistical Tables for demographic data about people confined in local jails (age data only available in 2020 and 2021).  ↩

  4. An estimated 3.4% of sentenced people in state and federal prison in 1991 were 55 or older. This estimate is calculated based on the data reported in Table 1 of the Bureau of Justice Statistics’ Comparing Federal and State Prison Inmates, 1991: 6.8% of the 54,006 people in federal prison and 3.1% of the 704,203 people in state prison were 55 or older. As a percentage of the combined federal and state prison populations, 3.4% of people in state and federal prisons were 55 or older. An estimated 15.3% of the sentenced state and federal prison population in 2021 were 55 or older, based on Table 10 of the Bureau of Justice Statistics’ Prisoners in 2021 — Statistical Tables.  ↩

  5. Police encounters are often deadly for disabled people but often go unseen in media reports. A 2016 study notes that while disabled individuals make up a third to a half of all people killed by police, their disability often goes unmentioned in news reports.  ↩

  6. For example, the Rockefeller drug laws in New York increased sentence lengths and instituted mandatory minimum sentences. By the end of the 1980s, all 50 states and D.C. enacted some sort of mandatory minimum laws, and this was still the case in 2021.  ↩

  7. By 2000, 24 states and Congress had passed three-strikes legislation.  ↩

  8. By 1995, eleven states had adopted truth-in-sentencing laws. By 1998, 27 states and DC met the eligibility criteria for the Federal Truth-in-Sentencing Incentive Grant Program.  ↩

  9. The Sentencing Reform Act of 1984 abolished federal parole for federal crimes committed after November 1, 1987. By the end of 2000, 16 states had abolished all discretionary parole.  ↩

  10. In 1981, Connecticut lawmakers reduced the amount of “good time” credits that could be earned from 15 days to 12 days per month, resulting in an increase of the average time served by “about 20%.” The Sentencing Reform Act of 1984 also reduced the amount of time that could be earned for good conduct for people in federal prison.  ↩

  11. The federal 1994 crime bill and numerous state laws were passed in the 1980s, 1990s, and early 2000s as part of a “tough-on-crime” campaign to lock people up for longer than ever before.  ↩

  12. The types of illness vary from terminal illness (such as cancer) to illnesses that are often preventable or treatable for some time outside of prison (such as “AIDS-related illnesses,” respiratory disease, liver disease, heart disease, and influenza).  ↩

  13. In some states, the reasons for parole denial can be based on the original offense, no matter how long ago an individual was convicted and regardless of the fact that the seriousness of the crime was inevitably taken into account at sentencing, and that discretionary parole is fundamentally about release based on personal transformation.  ↩

  14. According to The New York Times, between 2013 and 2017, the federal Bureau of Prisons (BOP) approved only 6% of the 5,400 compassionate release applications received; meanwhile, 266 other applicants died in prison. The Times’ analysis of federal prison data shows that it takes over six months, on average, for an incarcerated person to receive an answer from the BOP. In one tragic example, prison officials denied an application for someone because the BOP put aside prison doctors’ prognosis of less than six months and concluded that he had more than 18 months to live. Two days after receiving the denial, he died.  ↩

  15. A 2021 bill in Colorado streamlined the medical release process, but 23 incarcerated people who were approved for parole remained in prison because the state Department of Corrections “could not find a nursing home willing to admit them.” Similarly, in Florida, many older adults with sex offense convictions are denied by nursing homes.  ↩

  16. For example, a 2015 study found many states automatically exclude people convicted of murder (at least 7 states) or “sexually oriented crimes” (at least 11 states). Some states even exclude people based on prior offenses, regardless of the offense they are currently serving time for. Other states only allow compassionate release and medical parole for people who have parole-eligible offenses or for people who have already served a certain portion of their sentence.  ↩

  17. The ad hoc development of “prison nursing homes” is a waste of resources that would be better spent on medical, social, and emotional support outside of the carceral system for aging adults. In Pennsylvania, the state reportedly spends more than $3 million each year just to “medicate” the older adult population housed in their three long-term care prison units.  ↩

  18. For additional recommendations regarding compassionate release, see FAMM’s ongoing work to expand compassionate release across the country.  ↩

  19. For more information on the implementation of elder parole, see RAPP’s advocacy for New York’s proposed elder parole legislation.  ↩

See all footnotes


Building on data from the Prison Journalism Project, we find that most states enforce restrictions that make practicing journalism extremely difficult and sometimes risky.

by Brian Nam-Sonenstein, June 15, 2023

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.

 

Table 1: Restrictions on journalism in prisons.
Explicit ban on journalism Total ban on business and compensation Partial ban on business and compensation Censored correspondence with news media Privileged correspondence with news media Links
Federal Bureau of Prisons X X https://www.govinfo.gov/content/pkg/CFR-2012-title28-vol2/pdf/CFR-2012-title28-vol2-sec540-20.pdf

https://www.law.cornell.edu/cfr/text/28/540.14

Alabama X http://www.doc.state.al.us/docs/AdminRegs/AR439.pdf
Alaska X X https://www.law.cornell.edu/regulations/alaska/22-AAC-05.525

https://www.law.cornell.edu/regulations/alaska/22-AAC-05.130

https://doc.alaska.gov/pnp/pdf/808.02.pdf

Arizona X https://corrections.az.gov/sites/default/files/documents/policies/900/0914.pdf
Arkansas X https://doc.arkansas.gov/wp-content/uploads/2022/10/Arkansas-Division-of-Correction-Inmate-Handbook-Revised-November-1-2022-Director-approved.pdf
California X https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2023/05/2023-DOM.pdf
Colorado X X https://drive.google.com/file/d/1pc4XM1kBW0O40qjXmUZiQx2oAo3FwSoO/view

https://drive.google.com/file/d/1shc0GUkN0AxtkhVytDw-fOrA0a3XaC7H/view

Connecticut X https://portal.ct.gov/-/media/DOC/Pdf/Ad/ad1007pdf.pdf
Delaware X https://doc.delaware.gov/assets/documents/policies/policy_4-0.pdf
Florida X X https://www.flrules.org/gateway/RuleNo.asp?ID=33-602.207
Georgia X X https://rules.sos.ga.gov/GAC/125-3-5-.05?urlRedirected=yes&data=admin&lookingfor=125-3-5-.05

https://rules.sos.ga.gov/GAC/125-3-3-.03

Hawaii X https://dps.hawaii.gov/wp-content/uploads/2012/10/COR.15.02.pdf
Idaho X http://forms.idoc.idaho.gov/WebLink/0/edoc/283201/Mail%20Handling%20in%20Correctional%20Facilities.pdf
Illinois X X https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073000050HCh%2E+III+Art%2E+7&ActID=1999&ChapterID=55&SeqStart=11600000&SeqEnd=12800000

https://casetext.com/regulation/illinois-administrative-code/title-20-corrections-criminal-justice-and-law-enforcement/part-445-committed-persons-business-ventures/section-44520-manuscripts

Indiana X X https://www.in.gov/idoc/files/02-01-101-Off.-Personal-Property-9-1-2021.pdf

https://www.in.gov/idoc/files/02-01-103-Correspondence-8-15-2022.pdf

https://www.in.gov/idoc/files/02-01-116_Offender_Business_Activities_5-16-06.pdf

Iowa X X https://www.legis.iowa.gov/docs/iac/agency/08-01-2018.201.pdf
Kansas X X https://www.law.cornell.edu/regulations/kansas/K-A-R-44-1-102

https://www.law.cornell.edu/regulations/kansas/K-A-R-44-7-108

Kentucky X https://corrections.ky.gov/About/cpp/Documents/16/CPP%2016.2%20-%208-11-21.pdf
Louisiana X https://www.doa.la.gov/media/4eufbn5k/22v01-15.pdf
Maine X X https://www.maine.gov/corrections/sites/maine.gov.corrections/files/inline-files/Adopted%20Rule%20DETENTION%20AND%20CORRECTIONAL%20STANDARDS%20FOR%20MAINE%20COUNTIES%20AND%20MUNICIPALITIES_3.pdf

https://www.maine.gov/corrections/sites/maine.gov.corrections/files/inline-files/39212241_0.pdf

Maryland X https://www.law.cornell.edu/regulations/maryland/title-12/subtitle-02/chapter-12.02.20
Massachusetts X X https://www.mass.gov/doc/cmr-131-news-media-relations/download

https://www.mass.gov/doc/cmr-464-work-release/download

Michigan X X https://www.michigan.gov/corrections/-/media/Project/Websites/corrections/Files/Policy-Directives/PDs-05-Institutional-Placement-and-Programs/PD-0503-Programs-and-Leisure-Time-Activities/05-03-118-Prisoner-Mail-effective-03-01-18.pdf?rev=df5171ef6b6b4039981fc9636f618c6d
Minnesota X X https://policy.doc.mn.gov/DOCPolicy/
Mississippi X https://www.mdoc.ms.gov/sites/default/files/Misc/Inmate%20Handbook%202023_0.pdf
Missouri X X https://doc.mo.gov/sites/doc/files/media/pdf/2019/04/Offender_Rulebook_REVISED_2019.pdf
Montana X X https://cor.mt.gov/DataStatsContractsPoliciesProcedures/Procedures/MSP-Procedures/3.3.4-Media-Access-to-Inmates.pdf

https://cor.mt.gov/DataStatsContractsPoliciesProcedures/Procedures/MSP-Procedures/3.3.6-Inmate-Mail.pdf

Nebraska X X https://www.corrections.nebraska.gov/sites/default/files/files/130/inmate_rule_book_0.pdf

https://www.corrections.nebraska.gov/system/files/rules_reg_files/205.01_2022_-_website.pdf

Nevada X X https://doc.nv.gov/uploadedFiles/docnvgov/content/About/Administrative_Regulations/AR 750 – 121713.pdf

https://doc.nv.gov/uploadedFiles/docnvgov/content/About/Administrative_Regulations/AR 722 Inmate Legal Access Final 11-15-16.pdf

New Hampshire X X https://www.nh.gov/nhdoc/policies/documents/cor-314-resident-mail.pdf
New Jersey X X https://casetext.com/regulation/new-jersey-administrative-code/title-10a-corrections/chapter-4-inmate-discipline/subchapter-4-inmate-prohibited-acts/section-10a4-41-prohibited-acts
New Mexico X X https://www.cd.nm.gov/wp-content/uploads/2023/12/CD-090100.pdf

https://www.cd.nm.gov/wp-content/uploads/2023/12/CD-151200-1.pdf

New York X X https://govt.westlaw.com/nycrr/Document/I4ef2a6a9cd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

https://govt.westlaw.com/nycrr/Document/I4ef2a691cd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

North Carolina X X https://public.powerdms.com/NCDAC/tree/documents/2045236

https://public.powerdms.com/NCDAC/tree/documents/2045023

North Dakota X X https://www.docr.nd.gov/sites/www/files/documents/friends_family/Facility_Handbook.pdf
Ohio X X https://codes.ohio.gov/ohio-administrative-code/rule-5120-9-17

https://codes.ohio.gov/ohio-administrative-code/rule-5120-9-06

https://codes.ohio.gov/ohio-administrative-code/rule-5120-3-04

Oklahoma X X https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section-03/op030117.pdf
Oregon X X https://oregon.public.law/rules/oar_291-119-0015

https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=41402

https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=281238

Pennsylvania X https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%20and%20Incoming%20Publications.pdf

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/009%20News%20Media%20Relations.pdf

Rhode Island X https://doc.ri.gov/news-info/inmate-life.php
South Carolina X X https://doc-dev.sc.gov/sites/doc/files/Documents/policy/PS-10-08.pdf
South Dakota X X https://doc.sd.gov/documents/1.5.D.3Offender Correspondence and Attachments (11.01.2022) REV 05.10.23.pdf

https://doc.sd.gov/documents/Inmate%20Living%20Guide4232021.pdf

Tennessee X https://www.tn.gov/content/dam/tn/correction/documents/103-04.pdf

https://www.tn.gov/content/dam/tn/correction/documents/507-02.pdf

Texas X X https://www.tdcj.texas.gov/documents/policy/BP0391.pdf

https://www.tdcj.texas.gov/documents/cid/Disciplinary_Rules_and_Procedures_for_Offenders_English.pdf

Utah X X https://public.powerdms.com/UtahDOC/tree/documents/1760258

https://public.powerdms.com/UtahDOC/tree/documents/2060763

Vermont X https://outside.vermont.gov/dept/DOC/Policies/Media%20Access%20Directive.pdf
Virginia X X https://vadoc.virginia.gov/files/operating-procedures/020/vadoc-op-022-1.pdf

https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-803-1.pdf

Washington X X https://www.doc.wa.gov/information/policies/default.aspx
West Virginia X https://code.wvlegislature.gov/15A-4-7/
Wisconsin X X https://doc.wi.gov/DepartmentPoliciesDAI/3090052.pdf

https://doc.wi.gov/DepartmentPoliciesDAI/3090401.pdf

https://doc.wi.gov/DepartmentPoliciesDAI/3030004.pdf

https://doc.wi.gov/DepartmentPoliciesDAI/3000079.pdf

Wyoming X https://drive.google.com/file/d/1qOlxFgZYIY5N4pIarueO1HP1c9A04sCc/view
TOTALS 1 14 19 46 4

 

Chilling expression

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:

 

Conclusion

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.

 
 

Footnotes

  1. 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.”
     ↩

  2. 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.”  ↩

  3. 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.”  ↩

  4. 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.”  ↩

See the footnotes


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.

by Emily Widra, June 1, 2023

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.

two charts showing decrease in number of people in prisons with HIV over time and prevalence rate in prisons is still triple that of the U.S. Figure 1.

 

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.

chart showing the number of prison systems with an increase int eh number of people with HIV from 2019 to 2020 and 2020 to 2021

Figure 2.

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

chart showing the racial disparities in deaths of people with HIV in prison compared to deaths of people with HIV in U.S. total population

Figure 3.

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.

Not only do Black people make up 33% of people in prison while only representing about 14% of the entire U.S. population, but they account for more than 40% of people living with diagnosed HIV. Black men in particular are hit the hardest by both imprisonment and HIV: they accounted for 31% of all people in prison in 2021 and 26% of all HIV-positive people in the U.S. in 2019.6

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.

two charts showing three state prison systems with dramatic decreases in HIV prevalence and 3 state prison systems with increases in HIV prevalence from 1991-2021 Figure 4.

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:

  1. HIV-specific laws that criminalize or control actions that can potentially expose another person to HIV. (21 states)
  2. 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)
  3. 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)

map of U.S. showing 35 states with HIV-specific or STI-specific criminalization laws and 4 more states with sentence enhancement laws for HIV or STIs. Figure 5.

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.”

Importantly, all of these statutes are broad enough to criminalize conduct that cannot actually lead to transmission of the virus,16 resulting in charges and convictions based on HIV status alone.

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:

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.

 

Conclusion

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.

 

Footnotes

  1. 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.  ↩

  2. This is based on available data from BJS from 1991-2021.  ↩

  3. This is the rate of persons (aged 13 years old and older) living with a diagnosed HIV infection, year-end 2019, as reported by the Centers for Disease Control and Prevention (CDC) in the annual report: “Monitoring selected national HIV prevention and care objectives by using HIV surveillance data–United States and 6 dependent areas, 2019.”

    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.
     ↩

  4. The National Prisoners Statistics survey does not collect race data for people in prison with HIV, either.  ↩

  5. 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.”  ↩

  6. These percentages were calculated from Table 16a in “Persons living with diagnosed HIV infection, by race/ethnicity and selected characteristics, year-end 2019 – United States.”
    In addition, it is worth noting that almost twice as many Black men are living with HIV than Black women.
     ↩

  7. The HIV in Prisons series collected and published mortality data on HIV up until 2019, but has since stopped publishing this data. In addition, there is an information vacuum regarding deaths in custody, leaving advocates, researchers, reporters, and government officials with little-to-no data to understand trends in, and the causes of, deaths in U.S. prisons and jails. For more about this data gap, see Seven years after the deadline – still no complete data or analysis from DOJ on deaths in custody from the UCLA Law COVID Behind Bars Project and their newest project, the Carceral Mortality Project.  ↩

  8. 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.  ↩

  9. 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.  ↩

  10. 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.  ↩

  11. 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.  ↩

  12. 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.”  ↩

  13. Opt-out testing refers to policies that mandate that everyone is offered a test and will receive a test unless they explicitly decline it.  ↩

  14. 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.  ↩

  15. 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 the relevant survey questions about HIV, see “Section V — HIV/AIDS” of the National Prisoner Statistics Summary of Sentenced Population Movement 2021 (Form NPS-1B).
     ↩

  16. 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.  ↩

  17. 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.  ↩

See the footnotes




Stay Informed


Get the latest updates:



Share on 𝕏 Donate