How your local public housing authority can reduce barriers for people with criminal records

Millions of people with criminal records likely meet the income eligibility requirements for public housing assistance. But needlessly strict local policies lock them out of housing. We explain how your public housing authority may be overly exclusionary.

by Selena Muñoz-Jones and Emily Widra, February 15, 2023

Housing is a human right: the right to adequate housing is recognized by international law, including the Universal Declaration of Human Rights. But we know that in the U.S., hundreds of thousands of people face homelessness, and there are particularly high rates of homelessness and housing insecurity among formerly incarcerated people across the country. Our previous research found that people who have been to prison just once experience homelessness at a rate nearly 7 times higher than the general public. But people incarcerated more than once have rates 13 times higher than the general public. Inevitably, part of the problem is that public housing policies — which should be a part of a crucial safety net against housing insecurity — actually discriminate against people with criminal legal involvement and criminal records.

For more information on housing and homelessness among the formerly incarcerated, see our report, Nowhere to Go: Homelessness among formerly incarcerated people.

Part I of this briefing delves deep into the policies of the U.S. Department of Housing and Urban Development (HUD) that give local public housing authorities (PHAs) overly broad discretion to deny housing to people with criminal records. We review how PHAs wield this discretion to deny people housing in more ways than required by federal law. Part II of this briefing is a guide to critically reviewing public housing policies to help you identify the criteria your local PHA has chosen to use to exclude people with criminal records and to help you evaluate whether those criteria are necessary or potential targets for local-level reforms.

Part I: An introduction to local public housing authorities’ exclusion of people with criminal histories

We know that access to safe, stable, and affordable housing is crucial for health and well-being, and for formerly incarcerated people, housing is also crucial for successful reentry. The transition from prison to the community is rife with challenges. But before formerly incarcerated people can begin to address health problems, find stable jobs, or learn new skills, they need a place to live.

Across the country, there is a shortage of affordable housing which gives landlords the option of denying housing to people with criminal records (most conduct criminal background checks on prospective renters), leaving public housing, Section 8 vouchers, and other assisted housing as their only choices. But even public housing sets up barriers for people with any involvement with the criminal legal system. At least 79 million Americans have a criminal record¹ and more than a quarter of formerly incarcerated people are unemployed, meaning that millions of people with criminal histories likely meet the income eligibility requirements for public housing assistance:

While the available data do not allow us to determine exactly how many people would qualify for public housing if not for their prior criminal legal system contact, based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people. The criminal legal system disproportionately targets people of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies.

Introduction to public housing authorities

There are over 3,000 public housing authorities (PHAs) granting access to the more than 970,000 public housing units for low-income families and individuals across the country. PHAs are local agencies that determine public housing eligibility based on general guidelines published by the federal Department of Housing and Urban Development (HUD).

In 1968, the Fair Housing Act expanded the Civil Rights Act of 1964, prohibiting discrimination in housing transactions (renting, buying, and selling) on the basis of race, religion, sex, national origin, family status, and disability. Importantly, the 1968 Fair Housing Act — nor any subsequent revision — has not considered criminal history status as a protected class, meaning that housing policies can legally discriminate based on criminal legal system involvement.²

However, in 2016, HUD issued a memo to PHAs clarifying that while having a criminal record is not a protected status, criminal records alone do not justify an automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination. Even without identifying people with criminal histories as a protected class, this memo should have created a pathway to hold PHAs responsible for denials of housing with discriminatory intent or effects as violations of the Fair Housing Act. But although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement, as we explain below.

Doubling down on its 2016 guidance, in June 2022, HUD published the most recent changes to federal public housing policies. These guidelines advocated for PHAs to make their 2023 public housing policies³ as inclusive as possible for people with histories of criminal legal system involvement. It remains to be seen how PHAs will — or will not — incorporate this directive, as there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.

Denial of public housing assistance for people with criminal histories

HUD establishes two types of denials — mandatory and permissive — that local authorities use in making decisions about housing for people with criminal histories. The language in both sections leaves far too much room for discriminatory decision-making by local public housing authorities (PHAs).

Mandatory prohibitions

First, there are automatic reasons for which local PHAs must issue denials, as decreed by HUD (“mandatory prohibitions”) (24 CFR §982.553):

• The PHA determines that any household member is “currently engaging in illegal use of a drug;”
• The PHA determines that it has reasonable cause to believe that a household member’s “illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents;”
• Any household member has ever been convicted of “drug-related criminal activity for manufacture or production of methamphetamine” on the premises of federally assisted housing;
• A household member has been evicted from federally assisted housing for “drug-related criminal activity” in the past three years; or
• Any member of the household is subject to a lifetime registration requirement under “a State sex offender registration program.”

As you can see, throughout these reasons for mandatory denials, there is still significant room for discretion at the local level. For example, there is no definition of what “currently” means and each PHA has the authority to define this timeframe however they want: for example, “currently” could be defined as within the last week, the last six months, or within the last year.

Permissive prohibitions

The second kind of denial issued for people with criminal histories is not federally required, but instead, the PHA elects to expand the criteria for denial. These “permissive prohibitions” often build on the above federal requirements to make public housing access even more restrictive. PHAs “may prohibit admission” if the PHA determines that any household member “is currently engaged in, or has engaged in during a reasonable time before the admission” the following behaviors (24 CFR §982.553):

• “Drug-related criminal activity;”
• “Violent criminal activity;”
• “Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;” or,
• “Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).”

Ultimately, the federal government offers PHAs freedom in determining how to define all of the terms used above, including “currently,” “reasonable time,” “threaten,” and “peaceful enjoyment,” essentially granting PHAs vast autonomy over denials of public housing assistance for virtually any criminal history they choose.

Addressing your local PHA policies

Local PHAs can — and do — exercise a great deal of discretion when crafting and implementing their policies that determine who is and isn’t eligible for low-income public housing. While HUD provides guidelines on criteria for access and denial (24 CFR §982.553), individual PHAs often make their policies even more restrictive than the HUD recommendations. In fact, almost all PHAs use permissive prohibitions to make their policies more restrictive.

Not all public housing policies are created equal, and we encourage you to investigate your local policies. To that end, because these policies often use the same general template, we have looked at general trends across these policies to outline key areas for local advocates to take a closer look at. In Part II below, we offer a guide for analyzing of public housing policies. If you find your local public housing authority is needlessly discriminating against people with criminal histories, we encourage you to advocate for changes to the policies for the coming year. These documents are public and are often updated annually with public comment periods (often in the first few months of the calendar year). This is an opportune time to view the documents, provide necessary feedback, and advocate for fair and just housing policies in your community before they are submitted for approval and implemented.

Part II: How to critically review your local public housing authority policy’s exclusions for people with criminal histories

Local public housing authority policies often limit or completely deny public housing assistance to people with criminal histories. Some of the reasons for exclusion are mandatory and determined by the federal Department of Housing and Urban Development (HUD) (see Part I for more information on these mandatory prohibitions). But most public housing authority policies are even more exclusionary than the federal regulations require, needlessly denying housing assistance to those likely to need it most.⁴

It’s not always clear how or why people with criminal histories are denied public housing assistance, nor which rules could be changed through advocacy efforts. We put together this guide to help local advocates and decision-makers identify questions to consider when looking for ways to make local public housing policies more inclusive and housing more accessible to residents with criminal histories.

Here are 5 major questions to look at in your local policy:

• What actions and behaviors that exclude people from public housing?⤵
• How does the PHA define “current” and “currently”?⤵
• What evidence does the PHA uses to identify prohibited actions and behaviors?⤵
• How does the PHA denial process work?⤵
• Who are the decision makers?⤵

What kinds of actions and behaviors exclude people from public housing assistance?

There are five federally required “mandatory prohibitions”, or behaviors for which PHAs are required by HUD to deny public housing assistance. But there are far more “permissive prohibitions” — i.e., behaviors for which PHAs can choose to deny assistance regardless of federal guidelines — and we find that PHAs exercise significant discretion to make these policies more exclusive than necessary:

1. “Drug-related criminal activity.” HUD defines “drug-related criminal activity” as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug” (24 CFR §5.100). Federal regulations require denial of assistance if there is “current” engagement “in the illegal use of a drug” or “a pattern of illegal drug use [that] may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents” (24 CFR §982.553). However, federal regulations do not require PHAs to look for any history of “drug-related criminal activity” nor does HUD require PHAs to deny assistance to people with such a history.
   
   Importantly, throughout all public housing authority policies, “illegal drugs” refers to federally illegal drugs, including marijuana (the medical use of cannabis has been legalized in 37 states and D.C., and the recreational adult use of cannabis has been legalized in 21 states and D.C.). So, for example, while someone has not participated in the “illegal use of a drug” by using marijuana in the state of Colorado (where it is legalized), for the purposes of public housing assistance, a Colorado PHA can and will consider this “drug-related criminal activity” to deny assistance. At a minimum, PHA policies should be written to be in line with state law, specifying exceptions for drug-related activities in states where those drugs have been decriminalized. A more comprehensive step would be to pass H.R. 3212,⁵ a bill introduced in the House to resolve this discrepancy between state and federal marijuana laws in public housing assistance.
2. “Violent criminal activity.” HUD defines this as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage” (24 CFR §5.100). Federal regulations do not require PHAs to look for any history of “violent criminal activity” nor does HUD require PHAs to deny assistance to people with this history.
   
   While HUD provides this loose definition of “violent criminal activity,” it does not actually specify which criminal offenses may or may not be included, allowing the PHA freedom, again, to decide what behaviors can be considered “violent criminal activity.” This matters because what constitutes a “violent crime” varies between jurisdictions,⁶ and HUD’s provided definition does not even try to clarify what offenses are encompassed by this vague definition. In some states, entering a dwelling that you do not own is a burglary, a “violent” offense.⁷ Similarly, several states consider “purse snatching” and theft of drugs to be “violent” offenses. The reality is that while these offenses may momentarily shock or scare someone, they are hardly indicative of a long-term pattern of “violence” towards people, and certainly not indicative of an inability to safely live in publicly assisted housing, but PHAs are still able to consider them when denying someone housing.
   PHAs currently denying housing on the basis of “violent criminal activity” in an applicant’s past should reconsider. People convicted of violent offenses have among the lowest rates of recidivism, illustrating again that people who have committed a violent act are not inherently violent people and can succeed in the community. People convicted of violent offenses are less likely to be re-arrested in the years after release than those convicted of property, drug, or public order offenses.⁸ An act of violence represents a single moment in someone’s life, and shouldn’t be the only factor that determines their access to housing.
3. Other, unspecified “criminal activity.” HUD permits — but does not require — PHAs to deny public housing assistance if the PHA determines that a household member is engaged in “criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity” (24 CFR §982.553).
   
   HUD provides this purposefully vague language, allowing PHAs to determine what behaviors they consider to “threaten the health, safety, or right to peaceful enjoyment.” Without any definition of what a threat to “the right to peaceful enjoyment of the premises” refers to, PHAs are free to discriminate against people who participate in almost any “criminal activity,” no matter how innocuous.

What does it mean that the PHA is evaluating “current” actions and behaviors?

Some “lookback periods” (that is, the timeframe in which behaviors are evaluated in determining eligibility for public housing assistance) are mandated by HUD (see sidebar). But there are also lookback periods that the PHAs are able to determine on their own, with no minimum or maximum guidelines from HUD. When evaluating “current” behaviors, PHAs have the ability to define what “current” means. While to most people, “current” means “right now,” PHAs define “current” in a number of different ways:

• For example, some PHA policies define “currently engaged in the use of illegal drugs” to include “any use of illegal drugs in the previous six months,” or any other period of time they choose.
• Similarly, “any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol” can mean almost any range of time chosen by the PHA.
• Some PHAs do not even try to define “currently” or “current” in their policies, shifting this significant amount of discretion to individual decision-makers within the PHA, leaving room for inequitable decisions even within the same agency.

Lengthy lookback periods are a serious problem because they cast such a wide net. Looking at drug convictions alone, almost 400,000 people are currently incarcerated for a drug offense, and law enforcement make over 1 million drug possession arrests each year (many of which lead to convictions). The number of people excluded by lengthy lookback periods for “current” or “patterns of” drug use when they apply for public housing is staggering, given these statistics. Stable, safe, and affordable housing is crucial to reducing recidivism for all types of offenses, including drug offenses. To enhance public safety, PHAs should be expanding access to housing for people with criminal histories, not limiting it.

Given what we know about substance use, harm reduction, and the importance of housing in recovery,⁹ HUD should consider removing drug use as a criterion for denial. Until then, local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for “current drug use.” Some PHAs rightly have policies in place to overlook possible drug use in the lookback periods if a person has completed a drug rehabilitation program. Another possibility is for PHAs to create a process of (1) informing applicants who are denied housing for this reason of the PHA’s policies regarding drug use, (2) connecting them with community resources for treatment or supportive housing, if desired, and (3) encouraging them to reapply for public housing assistance after participating in a drug rehabilitation program.

What evidence is the PHA using to identify prohibited actions and behaviors?

Federal guidelines grant PHAs significant discretionary power in determining an individual’s participation in “criminal activity” (whether “current” or within a specific lookback period). PHAs can — and do — use the following “evidence of criminal activity” to determine eligibility for public housing assistance:

• Arrests. PHAs cannot use arrest history alone to deny public housing, but they can use a known arrest as a trigger to look for more “evidence of criminal activity” or to be used in conjunction with other “evidence of criminal activity,” like convictions.
  
  Arrests can’t be used as the sole “evidence of criminal activity” because they are not reliable indicators of actual criminal behavior, as evidenced by the large number of criminal cases that are dismissed or otherwise result in non-conviction. For example, Measures for Justice found case dismissal rates (the percentage of cases filed in court that were dismissed) ranging from 14% (in Pennsylvania) to 46% (in North Carolina) in the 16 states for which they had access to the data. And even before cases are filed in court, many cases referred by law enforcement are rejected by prosecutors; Measures for Justice found that prosecutors rejected 20% of all cases in Missouri, and 22% in Florida (the two states for which they had these data).¹⁰
• Convictions. PHAs can deny public housing assistance based on conviction records. Many PHA policies will state something indicating that a “conviction is more heavily weighted than an arrest,” but it’s important to note that arrests without convictions can — but shouldn’t — still be used in conjunction with a historic conviction to deny public housing.
• Evictions. A history of eviction is not an indicator of “criminal activity,” but a PHA can use an eviction history “related to the use of illegal drugs or the abuse of alcohol” as a reason to deny public housing assistance. And that creates a loophole to the “arrests aren’t evidence enough” rule: Considering that the federal regulation disallowing the use of arrests alone to deny housing is relatively recent (dating back to the 2016 HUD memo), people who were evicted following an arrest prior to the rule change could still be barred from public housing today because of the past arrest and subsequent eviction (regardless of conviction).
  
  In addition, evictions are used to determine whether a household can meet the financial obligations of public housing. But by definition, people applying to public housing are doing so because they have difficulty meeting current financial obligations for housing, so policies that use prior evictions to determine eligibility for housing support are particularly nonsensical.¹¹

What happens when someone is denied public housing assistance?

When a PHA denies housing assistance for a reason other than “mandatory prohibitions”, the individual or family can petition for an informal review process. However, HUD offers a long list of reasons that the PHA does not have to grant an informal review, including “discretionary administrative determinations by the PHA,” which could include almost any reason for the PHA to deny assistance (24 CFR §982.554). Additionally, if an informal hearing is required to determine if the reasons for denial “are in accordance with the law” (24 CFR §982.555), individual PHAs create the parameters of the hearing, including how quickly a family needs to request a review or hearing and instances where the denial automatically stands if the individual or family is late to the hearing. For instance, we’ve found PHA policies that state denials will stand automatically if someone is more than 15 minutes late to the hearing.

The review and hearing process is often impossible for people with criminal histories and low incomes. People with low incomes are less likely to have reliable transportation or child care, and sometimes criminal legal system involvement itself can interfere with daily life in ways that can be disqualifying.¹² For example, people on probation and parole are often required to submit to random, unannounced home or work visits, which could interfere with timely arrival at scheduled hearings.

A standardized, best practice outlined by HUD would offer consistency and clarity to the review and hearing process. Instead of permitting individual PHAs to determine what “discretionary administrative determinations” do not require an informal review, HUD should outline exactly what determinations are not subject to external oversight. Similarly, while certain timelines may inevitably vary between localities based on their infrastructure, it is important for HUD to restrict situations in which denials automatically stand despite the PHA agreeing to an informal review. People with criminal histories should not be forced to jump through countless extra hoops to have the PHA’s decisions reviewed. Again, housing policies should be working towards expanding housing access, not restricting it.

Who makes the decisions?

The decision-makers that determine who gets access to public housing assistance vary by locality, but are almost never specified in the policies. Often, these policies state that “the PHA decides to offer or deny assistance,” which provides no information about who, exactly, is making these critical decisions. While every PHA has a director — and we can assume most decisions go through them — there are often cases where a city or county board of commissioners can be heavily involved in the decision-making process.

Because of the variance — and often the obscurity — of who the decision-makers are, we encourage advocates to reach out to their local PHAs for clarity and to advocate for adding this information to the public housing policy.

Recommendations

The discretionary power of PHAs resides in the ability of these systems to work without much public investment and oversight. Wherever possible, we encourage advocates to participate in public comment periods when these policies are drafted annually and let the PHAs know that you are invested in expanding housing access for all.

While local advocacy efforts can’t change HUD’s mandatory reasons for denial, which of course, should be changed, local advocates can make important changes in how their local PHAs set, interpret, define, and measure criteria for denial:

1. Invest in expanding affordable housing and public housing. Currently, every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability. A 2022 Human Rights Watch report finds that “policy decisions taken by the U.S. federal government have resulted in a housing assistance system that fails to ensure the human right to housing,” in part due to serious reductions in federal funding of public housing. The report proposes two practical recommendations: the federal government should increase funding for affordable housing, expand funding for public housing, and review other housing assistance programs to ensure they are adequately serving the lowest-income families, and state and local governments should allocate more financial support for public housing to maintain safe, affordable low-income housing regardless of federal funding.
2. Eliminate additional reasons for denial beyond those required by HUD. All of the “permissive” denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.
3. Remove local discretion to “look back” into criminal history further than HUD requires. There are two ways to implement this reform:
   • Require PHAs to provide evidence-based justification for lookback periods beyond the few minimums set by HUD. HUD could require PHAs to provide their reasoning and justification for lookback periods that go beyond the HUD requirements. We would encourage HUD to oversee these justifications and only allow those based in fact, rather than in stereotypes of people with criminal legal system contact.
   • A HUD mandated standard lookback period. A mandatory lookback period that is as short as possible — without permitting the PHA to extend the lookback period — would eliminate much of the discretionary, subjective power the PHAs hold over people looking for safe and affordable housing. HUD should provide reasoning and justification for whatever lookback period it imposes.
4. To reduce opportunities for mistakes or discrimination, require PHAs to always issue crystal clear explanations as to why they denied housing. At a minimum, PHAs should provide clear standards for denial, including specific disqualifying offenses, allowable types of evidence, clear and relevant lookback periods, and what person(s) or decision-making bodies have discretionary power.
5. Make the appeal process clear and fair. While HUD does require any denial to include a “notice of denial” that includes “a brief statement of the reasons for the PHA decision,” we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based (24 CFR §982.555). Currently, HUD mandates that any denial “must notify the family that the family may ask for an explanation of the basis of the PHA determination, and that if the family does not agree with the determination, the family may request an informal hearing on the decision” (24 CFR §982.555). HUD provides guidelines on how reviews and hearings operate, but again, a lot of local discretion is built in: for example, the PHA determines the deadline for requesting an informal hearing. Furthermore, HUD states that the family may be represented by a lawyer or other representative “at [their] own expense” (24 CFR §982.555), but we know that people facing discretionary denials of public housing assistance for criminal legal reasons are unlikely to be able to afford an attorney. To make this process clear and fair, advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service (often run by state and local bar associations).

11 of our most important reports, briefings, and tools in 2022

From a deep dive into the bail industry to new tools for advocates, here are the highlights of our work in 2022.

by Wanda Bertram, December 21, 2022

Didn’t catch everything we published in 2022? We’ve curated a list of some of our best work from this year below. From a deep dive into how the bail industry exploits the legal system and deceives the public, to an extensive database showing where people in state prisons come from, to new tools for advocates, here are the highlights of our recent work:

Mass Incarceration: The Whole Pie 2022

Our annual Whole Pie report returned in 2022, after pandemic-related data problems forced us to cancel it last year. The report compiles national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — two years after the COVID-19 pandemic began. It explains how the pandemic has impacted prison and jail populations, and pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

All Profit, No Risk: How the bail industry exploits the legal system

Our report exposes how commercial bail companies and their deep-pocketed insurance underwriters almost always avoid accountability when they fail to do their one job: ensure their clients’ appearance in court. We explain how the bail industry exploits — and works to expand — six loopholes in the system that allow it to avoid paying up when defendants don’t show up. The report reveals the money bail system is not only cruel to defendants — as our 2016 report Detaining the Poor showed — it is also corrupt beyond repair.

Beyond the Count: A deep dive into state prison populations

In a groundbreaking report series, we used a new Bureau of Justice Statistics dataset to provide a demographic picture of the 1 million people in state prisons today. The first report in this series, Beyond the Count, shows that the national prison population comprises people struggling with poverty, substance use disorder, and housing insecurity, people who have been marginalized throughout their lives. (For instance, 38% of people in state prison were arrested for the first time before they were 16 years old.) The data show that not only does this country allow millions of children to grow up in poverty, but many of those children grow up to fill state prisons.

Chronic Punishment: The unmet health needs of people in state prisons

This national report offers the most recent data on the health of people in U.S. state prisons, showing that prisons continue to ignore the plight of people in their care. People in prison suffer from several chronic illnesses and infectious diseases at disproportionate rates — such as hepatitis C, HIV, and mental illness — and prisons fail to get many people the treatment they need. 50% of incarcerated people also lacked health insurance before prison, underscoring the reality that our criminal justice system punishes poverty.

What the end of Roe v. Wade will mean for people on probation and parole

In the 13 states where the fall of Roe is expected to lead to abortion bans (or already has), a total of 216,000 women are on probation or parole. In a short but impactful briefing, we explain why these women are especially affected when states outlaw abortion: Supervision often comes with a ban on out-of-state travel, extending complete state control over someone’s right to choose.

Where People in Prison Come From: The geography of mass incarceration

What communities do people who are incarcerated come from? It’s a simple question with huge implications, and one that, until recently, was impossible to explore. However, thanks to recent reforms to end prison gerrymandering in more than a dozen states, the data is finally available to answer it. We published datasets showing where people in 12 state prison systems come from, down to the county, city, and — in many cases — neighborhood level. We made the data sets publicly available online so that other researchers can use them to better understand how mass incarceration harms communities and correlates with other measures of community well-being.

State of Phone Justice: The problem, the progress, and what’s next

How much should it cost to stay in touch with Mom or Dad when they’re locked up? We built a nationwide database of the (often exorbitant) phone rates in 50 state prison systems, as well as thousands of local jails and other detention facilities of various types. Our data show that while some jails and their phone companies provide calls for as low as 1 or 2 cents a minute, the vast majority charge 10 times that amount or more. Working-class families’ phone call costs are lining the pockets of corporations and boosting jail revenue, and even as regulators and legislators make attempts at reform, companies are finding new ways to price-gouge consumers.

Mail scanning: A harsh and exploitative new trend in prisons

In the last 5 years, prisons in at least 14 states have replaced physical mail sent to incarcerated people with scans, we explained in a short report. The same companies that sell phone services to jails are also encouraging prison and jail systems to ban mail, claiming that it will deter dangerous “contraband” from coming in. But there’s no evidence that this policy — which has a chilling effect on family communication and therefore, quite probably, a negative effect on people’s ability to succeed after prison — does anything to make incarcerated people safer.

Advocacy Toolkit

This year we released our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration. It provides tips on accessing public records, securing and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering.

Insufficient funds: How prison and jail “release cards” perpetuate the cycle of poverty

We’re continuing our work showing how states — often at the encouragement of private companies — look for ways to punish incarcerated people even after their sentence is over. This briefing exposes how prisons and jails are increasingly disbursing the tiny amounts of money people are owed when they’re released via prepaid debit cards. The cards, managed by companies that profit off incarceration, are riddled with fees for everything from checking your balance to making a purchase. Rather than helping people rebuild their lives post-release, these companies are sapping people of the little money they have.

Correctional Contracts Library

Prisons and jails routinely contract with private companies to provide services, such as phone calls, money transfers, commissary, and release cards. Through our work to expose the worst practices in this industry, we’ve developed a large database of contracts and other documents that spell out the terms of the agreements governments have with these companies. For the first time ever, we’ve put these documents together in one place so researchers, activists, policymakers, and journalists can build upon our work to expose the harms of mass incarceration.

This is only a small piece of the important and impactful work we published in 2022. In total, we released 19 reports, more than 35 briefings and blog posts, hundreds of data visualizations, and added hundreds of new items to our Research Library.

Our work is far from over, though. We’ve got big things planned in 2023, when we’ll continue to expose the ways mass incarceration has failed and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.

Mail scanning: A harsh and exploitative new trend in prisons

In at least 14 states, people in state prisons are falling victim to a scan: Prisons are replacing physical mail with scanned copies, a policy that benefits private companies.

by Leah Wang, November 17, 2022

The appendix table was updated on December 1, 2022 to reflect new information about South Dakota.

In recent years, many prison systems have either tried or fully implemented a policy that interferes with incarcerated people’s mail in a way we haven’t seen in our many years fighting to protect family communication behind bars: Prisons are increasingly taking incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients. This practice of mail scanning, either performed at the prison itself or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones.

Prison administrators claim that delivering scanned copies of mail correspondence will stem the flow of contraband — primarily, drugs — into their facilities, but there’s no solid evidence to date that mail scanning has this intended effect. (In fact, some jurisdictions have found the opposite effect with respect to drugs.) We did a policy and media scan of all 50 state prison systems and the federal prison system, and found that mail scanning is quickly becoming widespread, despite the enormous benefits of genuine mail.

Table 1: States scanning mail at all state prisons

We found 14 state prison systems that are scanning all incoming mail, but we’re confident that this number is an undercount, because we couldn’t verify the status of mail scanning in some other states.² Several more states are trialing mail scanning practices in just a few of their facilities, or have correctional policies that allow mail scanning to begin at any facility, at any time.³ Many more states are likely to be scanning mail before long: Even during the course of our research, one state (Minnesota) implemented a six-month alternative mail delivery pilot — which includes mail scanning — in some of its facilities. (For details about every state’s prison mail scanning practices, see the appendix table at the bottom of this briefing.)

Mail scanning happens in locally-run jails, too; in our state-level research, we stumbled upon 15 jails⁴ that have banned incoming mail in favor of digitized copies. While most of the local jails we read about implemented mail scanning in 2021 or 2022, we’ve been receiving reports of jails scanning mail since 2017, and we suspect that dozens more jails across the U.S. have done away with delivering real mail.

How does mail scanning work?

As the table above shows, some prisons pay a vendor to scan mail and deliver copies to incarcerated people, while others manage the process internally.

There are two primary methods for delivering scanned mail. Some prison systems deliver printed copies of mail, often including copies of the envelope. (If there’s a limit on the number of pages that can be copied and delivered, the envelope may count toward that limit, as it does in Arkansas.) Other prison systems scan mail and upload it into a digital database, where it’s then viewable on a tablet or a shared kiosk inside a prison. Most states and third-party vendors hold onto original letters and cards for a period of time — several states have a 45-day holding period, for example — but eventually dispose of or destroy them.

The four biggest problems with scanning mail

1. Prisons and jails often switch to scanning mail not out of any concern for safety, but at the encouragement of the same private companies that dominate the prison technology industry. For years, these companies’ strategy for securing contracts has been to offer facilities multiple services “bundled” together, such as phone calls, tablet computers, and mail scanning. Scanning mail pushes incarcerated people to use other, paid communications services provided by the companies: Compared to mail that’s delayed due to scanning procedures, or scanned incorrectly, incarcerated people and their loved ones often understandably switch to electronic messaging (which requires the purchase of digital stamps), phone calls, or video calls.
   

   A number of prison vendors currently bundle mail scanning with other exploitative communications “services”:

2. Physical mail carries great sentimental value for incarcerated people, which translates into a more hopeful experience behind bars. In one incarcerated person’s words, “Under the new policy of digitizing mail [in Florida], [we] are losing the visceral experience of touching a letter or smelling perfume on an envelope.” Taking that away has real, measurable consequences for mental health, behavior, and even recidivism after release. Incarcerated people return to their mail over and over to be reminded of their support networks; scanned mail, on the other hand, is often low-quality or incomplete, lacking the same meaning. Even if contraband occasionally enters prisons through the mail, the practice of scanning all mail senselessly punishes all incarcerated people and their families for a few infractions.

A screenshot from the Missouri Department of Corrections website explaining that mail is important, but not welcome, in its prisons.

3. This extreme interference with mail will have a chilling effect on correspondence, reducing the overall volume of mail sent into prisons. People who send mail to prisons don’t want their letters and artwork scanned into a searchable database and/or destroyed, two common features of mail scanning. Scanning is a needlessly complicated and costly practice that violates privacy and stifles communication, as we learned when many jails started postcard-only policies. (This effect may be desirable for prison administrators and correctional staff.)
4. Finally, mail scanning doesn’t work to make prisons safer. In fact, early analyses in Pennsylvania⁶ and Missouri⁷ suggest that mail scanning is having little to no effect on the frequency of overdoses and drug use, the type of issues that prisons claim mail scanning will address. “Security” measures like mail scanning (as well as banning in-person visitation) distract from the reality that correctional staff are a major source of contraband in prisons, as a correctional labor union leader himself acknowledged (and as we found in a 2018 survey). Considering half of people in state prisons meet the criteria for a substance use disorder, prisons would be wise to center their budgets and efforts around drug treatment rather than cutting off a lifeline for everyone.

Mail between incarcerated people and their loved ones has long been surveilled by prison staff, but it remains one of the last bastions of communication that is not intercepted and monetized by private telecom companies. As the organization Just Detention International concluded in their 2021 letter to Attorney General Merrick Garland expressing outrage at the federal prison system’s mail scanning pilot: “Banning physical mail harms the well-being of incarcerated people, while offering no meaningful benefits.” Prisons and jails shouldn’t make families work even harder to maintain bonds; like other policies that quash communication, the recent trend toward mail scanning must end.

Both sides of the bars: How mass incarceration punishes families

Government survey results illuminate the broader consequences of locking up people with children.

by Leah Wang, August 11, 2022

We know that family contact can help incarcerated people cope with being locked up and reduce their chances of returning to prison. Yet self-reported data from people in state prisons show just how difficult it is to communicate with loved ones, provide financial support even when legally obligated, and make decisions with and about their families. Millions of families and minor children throughout the country are punished emotionally, economically, and otherwise by a loved one’s incarceration.

The Bureau of Justice Statistics’ Survey of Prison Inmates data provide the deepest nationwide look yet at the challenges and impossibilities of parenting from prison. Conducted in 2016 but released as a limited public dataset in late 2020, the Survey asked people housed in state prisons about a wide range of topics, from their upbringing and childhood, to the offense that led to incarceration, to their life in prison.¹ Here, we offer data and analysis revealing the ways in which prisons fail entire families — and society more broadly — by separating millions of children from their parents, and by enforcing harmful policies that perpetuate cycles of poverty and disadvantage.

Half of people in prison are parents to minors, leaving 1.25 million kids struggling to cope

Nearly half (47%) of the approximately 1.25 million people in state prison are parents of minor children, and about 1 in 5 (19%) of those children is age 4 or younger.² Altogether, parents in state prison reported roughly 1.25 million minor children, meaning the number of people in state prison almost exactly mirrors the number of impacted minor children. Research indicates that children of incarcerated parents face formidable cognitive and health-related challenges throughout their development.

The challenges of parenting from prison are particularly likely to affect women. The Survey reveals that women in state prisons are more likely than men to be a parent of a minor child (58% of women, compared to 46% of men). Women were also more likely to have been living with their children prior to their imprisonment: About 52% of women with minor children report living with their child(ren) at the time of their arrest, compared to 40% of men. Finally, women were more likely to lead a single-parent household, as 39% of incarcerated mothers of minors lived with children but no spouse, compared to 21% of fathers.

And like the state prison population overall, incarcerated parents themselves grew up in struggling households:

• 17% spent time in foster care;
• 43% came from families that received public assistance (i.e., welfare) before they turned 18;
• 19% lived in public housing before they turned 18;
• 11% were homeless at some point before age 18; and
• 32% had (or currently have) an incarcerated parent of their own.³

Many children are uprooted by a parent’s arrest and incarceration

What happens to children when the parent they live with goes to state prison? Most go on to live with other family members: Incarcerated parents who lived with their minor children at the time of their arrest report that their child (or children) is now in the care of the other parent or step-parent (71%), a grandmother (13%) and/or grandfather (4%), or other relatives (5%). Still, other children have been moved into the homes of friends, an “agency or institution,” someone else, or they live on their own (about 4% in all).⁴

A small percentage of these parents (0.3%) reported that their child is currently incarcerated.⁵ While certainly not all children who experience parental incarceration are destined to become incarcerated themselves, the arrest and incarceration of a parent is a painful experience, and has been linked to a child’s own, eventual justice system involvement. The Survey result is too small to break down by gender or race, but research suggests that children of incarcerated mothers are more likely to become incarcerated compared to children of incarcerated fathers.

About 3,400 parents (1.8% of parents living with their minor children before arrest) report that their minor children ended up in the foster care system (separate from the “agency or institution” outcome above). This outcome, in particular, can mean an end to parental rights altogether: 1 in 8 incarcerated parents with children in foster care have their parental rights terminated, according to a Marshall Project analysis of government data.⁶

Currently, federal policy regarding foster children fails to acknowledge the realities of mass incarceration and long prison sentences,⁷ and makes it likely for incarcerated people with children in foster care to lose them permanently. For children, placement in foster care can lead more easily to criminal legal involvement, particularly those in group homes or who experience multiple moves as a foster child. In one study, by the age of 17, more than one-half of all foster care youths (not just those with an incarcerated parent) had experienced an arrest, conviction, or overnight stay in a correctional facility.

The deep despair felt by both parent and child amounts to a colossal but largely invisible crisis: the mass punishment of over 1 million children. Short of the parent being released from prison and being offered needed supports, one of the best ways to mitigate these negative impacts is by limiting barriers to meaningful contact between children and incarcerated parents.

Most incarcerated parents and their children find ways to stay in touch, but prisons make family contact difficult

Many children want, and all children deserve, the opportunity to visit their incarcerated parents. Yet two-thirds of parents in prison with minor children have never received a visit from them. Not only are many prison visitation policies excessively strict, such as onerous pre-approval processes and rules about what visitors can wear,⁸ but many parents are simply incarcerated too far from home for visits to be logistically or economically feasible. A national survey in 2004 revealed that almost two-thirds of people in state prisons were located more than 100 miles from home, and more than 10% were over 500 miles away, and distance is a strong predictor of receiving visits.

This most recent Survey did not ask about physical distance from home to prison, but it did ask parents about why they thought their children had not visited. Among parents in prison who had children under 18, but had not received a visit:

• The most common reason for not receiving a visit, reported by 33% of parents who had not received a visit, was that their child lives too far away.
• About one-fourth (23%) of parents responded that the child’s non-incarcerated parent or guardian did not want the child to visit. This reluctance could stem from a wish to protect the child — it can be painful to witness a parent in prison — but it could also have to do with distance, logistics, strained relationships between the adults, or cost.
• A smaller share of parents (14%) said they did not want their child to visit, possibly for some of the same reasons. Even though research shows positive impacts of parent-child contact during incarceration, it’s understandable that an adult might want to keep a child away from the prison setting.
• Just 3% of parents reported that it’s the child themselves who is reluctant to visit, signaling that most children do want to maintain a connection with their parent.

Despite these challenges, one-third (33%) of parents in prison with minor children have received at least one visit from their child. Prison policies or resources likely play a role in low levels of in-person visitation, such as a lack of visitation assistance (providing transportation to and from prisons), or eliminating visitation altogether — sometimes justifying these restrictions by exaggerating the volume of contraband items that come in through visitors.

Of course, parents in state prison and their children keep in touch in other ways: 60% of parents report phone calls with their kids, and 70% of parents send their children physical mail. (Some of this correspondence appears to be one-sided, however: only 57% report receiving mail from their children.) A smaller number of parents also report sending (10%) or receiving (13%) email from their children via computers or tablets available in prisons, indicating that more modern avenues for communication are available to some incarcerated people.

These remote (rather than in-person) connections happen more frequently than visits. Over two-thirds (72%) of phone calls, and more than one-third (35%) of incoming mail from children, are received daily or weekly, but only one-fifth (20%) of visits happen that often. Still, phone calls, mail, and email are subject to all manner of exploitation by the private companies that run prison communications. Further, prison administrations can change snail mail policies at the drop of a hat, increasingly toward “mail scanning” schemes that reduce sentimental letters and art into blurry scans — that is, if they’re delivered at all.

Child support debt follows parents into prison, despite the impossibility of paying it off

Parents also often enter prison with legal financial obligations to their children: More than one-fourth (27%) of parents in state prisons with minor children owe ongoing child support, and most of those (80%), unsurprisingly, owe back pay. Men are more than twice as likely to owe child support (29% of fathers, compared to 14% of mothers).

However, it’s extremely difficult for incarcerated people to fulfill this legal-financial obligation. People who enter prison are among the nation’s poorest, and even those who do work a prison job earn appallingly low wages. Knowing this, at least 13 states automatically modify child support payments when a noncustodial parent is incarcerated, according to the National Conference of State Legislatures. In other states, however, the parent must act within a narrow time window to submit payment modification paperwork, or else they may accumulate astronomical debt while incarcerated.⁹

If 500,000 people are released from state prisons every year — a conservative estimate¹⁰ — that means about 63,000 of them are parents saddled with this debt, reentering society with little to no savings and lower earning potential due to their criminal-legal involvement. If they manage to land a job upon release, their wages are usually garnished for child support; without employment and automatic payments, however, missing just one child support payment can thwart other reentry steps like obtaining a driver’s license, filing a tax return — and critically, even staying out of jail.

What can be done for families experiencing incarceration?

State policies fail to recognize what so many advocates, researchers, and directly impacted people already know: that state prison incarceration has devastating and far-reaching impacts on family members and entire communities. States and prisons should take steps to ease these burdens, such as making family contact easier through expanded family visitation, visitation assistance, low-cost or free phone calls, and policies that allow real, sentimental mail to be sent from child to parent. What’s more, prisons should ensure that parents are incarcerated as close as possible to their home communities, as in-person visitation may yield some of the most positive impacts on health and behavior. ¹¹

Of course, intervention is possible much earlier than in prison: in some states, primary caregiver laws or family-based sentencing allow for diversion or other community-based alternatives to incarceration for parents or guardians. In Oregon, a family sentencing pilot program kept nearly 400 children out of the foster care system over five years, and led to lower rates of recidivism and revocation compared to similar non-program participants.

Meanwhile, incarcerated parents who maintain a role in their kids’ lives should not have their relationships permanently severed: At the federal level, Congress can repeal the Adoption and Safe Families Act, relieving states of inflexible timelines for terminating parental rights. Further, for noncustodial parents, all states should adopt automatic suspension or modification of child support payments. As we continue to tell the story of incarcerated people through findings from the Survey of Prison Inmates, these data serve as a reminder that the story also belongs to over 1 million children, countless loved ones, and whole communities left behind by harmful state policies.

What the end of Roe v. Wade will mean for people on probation and parole

On any given day in the U.S., 666,413 women are on probation or parole.

by Wanda Bertram and Wendy Sawyer, June 30, 2022

With several states preparing to criminalize abortion now that Roe v. Wade is over, and some states talking about criminalizing traveling out of state to get an abortion, it’s worth remembering that for many people on probation and parole, traveling out of state for abortion care is already next to impossible. On any given day in the U.S., 666,413 women¹ are on probation (a community-based alternative to incarceration) or parole (the part of a prison sentence that someone serves in the community). In many jurisdictions — for instance, Louisiana, Tennessee, Kentucky, Idaho, Texas, and the federal system, as well as some juvenile probation systems — it’s common for people on probation and parole to face restrictions on where they can travel, whether they can move to another county or state, and with whom they can “associate” (including, potentially, people who assist in coordinating abortion access, where such help is criminalized). All of these restrictions will make it harder for people under supervision to get abortion care.

In the last few days, many news outlets have reported on how people in prison can be blocked from seeking an abortion, especially in states where abortion is already illegal. (Ironically, as we’ve discussed before, prisons deny people quality pregnancy care even as they deny abortion access.) The end of Roe v. Wade will create new barriers to abortion care for incarcerated people, since it will likely trigger the criminalization of abortion in thirteen states.

But an even greater number of people on probation and parole stand to be affected: About 231,000 women are in prison or jail on any given day, but several times as many women are on probation and parole, the result of gendered differences in offense types: women are more likely than men to be serving sentences for lower-level property and drug crimes

In the thirteen states with abortion ban “trigger laws” on the way, more than 200,000 women are under probation and parole supervision, which will make it difficult or impossible for many of them to travel out of state for an abortion, or potentially even talk to people coordinating abortion care, given the typical restrictions of probation and parole.

Nationwide, the average probation term is just under two years — far too long for the average individual to “wait it out” until they are no longer under supervision and can seek abortion care across state lines. Meanwhile, parole sentences can be several months to years — typically, up to the remaining time on an individual’s sentence after they are released from prison. Some people are even subject to lifetime supervision, depending on the state and the underlying offense.

A number of probation and parole “conditions” curtail the freedoms of people on supervision: Even though breaking these rules would not be a “crime” in any other context, parole or probation officers are empowered to — and often do — send people back to jail or prison for these noncriminal “technical” violations. (In 2020, at least 67,894 people on probation and 45,878 people on parole went to prison or jail because of a noncriminal violation.) Conditions of supervision can be extremely burdensome, and they fall on people who are already disadvantaged, struggling with unemployment, poverty, and housing insecurity. As we explored in a previous report, conditions of supervision can force people to accept a bad deal in the job market. In the same way, travel restrictions — which are “standard” conditions in many places — will soon force many of these individuals to accept the impossibility of getting an abortion.

People on probation and parole typically have some options for interstate travel, but they have to get formal approval from their supervision officer in order to make specific trips. With the sole authority to approve or deny a trip across state lines for abortion care, a probation or parole officer might choose to prioritize their own personal beliefs about abortion over the desires of the individual under their control. They might also choose to delay the decision until it’s no longer possible — or safe — for the individual they’re supervising to terminate a pregnancy.

These restrictions on travel aren’t the only barriers that might stop someone from getting, or seeking, an abortion. People on probation and parole have low average incomes, and they’re often under-insured: Going to prison usually results in losing one’s health insurance coverage, meaning that formerly incarcerated people face an uphill battle to regain health insurance after their release. They may also struggle to get the time off work necessary to have an abortion — especially since maintaining steady employment is often itself a condition of supervision.

For people on supervision considering moving out-of-state to avoid their own state’s abortion laws, transfer is possible, but not guaranteed, and it’s often very slow: getting the new state to approve the transfer can take six weeks, and that’s in addition to however long the “sending” state takes to review the application. Even then, applicants will need to show their family and/or employment connections to the new state; even if they have the funds, they can’t just move on a whim.

As many others have already noted over the last few days, the growing criminalization of abortion won’t impact everyone equally. The abortions that these new post-Roe laws prevent will disproportionately be among people who are poor and lack access to transportation across state lines. People on probation and parole are a key segment of this demographic. Far too many individuals, having been swept into the criminal legal system by laws that criminalize poverty, will now find themselves without recourse for accessing what should be basic healthcare.

Working in “a meat grinder”: A research roundup showing prison and jail jobs aren’t all that states promise they will be

No wonder prisons and jails face constant understaffing and that communities increasingly resist new facilities: Decades of research show that the physical and mental health problems associated with correctional officers' jobs are inherent to the work, and that new prisons and jails fail to deliver on promises of economic development.

by Prison Policy Initiative, May 9, 2022

As we well know, people incarcerated in jails and prisons experience constant trauma, and are surrounded by brutality and violence that are impossible to escape. This experience has only grown worse in recent months. As we are frequently reminded in media coverage, prison and jail security staff (known as correctional officers or “COs”) have been quitting their jobs and failing to show up for work. This turnover and absenteeism leaves incarcerated people locked down in cells, experiencing minimal freedom of movement and social interaction, lost recreation time, difficulties accessing physical and mental health care, worse and less reliable food and mail services, and fewer programming and education opportunities.

But why are departments of corrections throughout the country complaining that they are unable to hire and retain enough staff?

The simplest and most obvious answer is there are way too many people locked up. States could dramatically reduce the need for additional staff by arresting and booking fewer people and releasing more. In European countries (which incarcerate far fewer people), the ratios of incarcerated people to staff are significantly lower than in the United States. As noted in a 2013 press release from the union representing federal workers, the number of federal correctional workers increased 19% from 2000 to 2013, while the federal prison population grew 41%.

But there is another reason prison and jail jobs sit vacant — a problem exacerbated by the pandemic but long predating it. Any way you look at it, working in a prison or jail is traumatic and harmful to mental health. As a result, people have always quit these jobs at high rates. Nearly 40 years ago, in 1983, a paper warned that “officer stress and burn-out has led to soaring organizational costs due to high rates of absenteeism and turnover.” In 2000, the average national turnover rate among COs was 16% (meaning the number of people quitting was 16% of the average CO headcount that year), a rate one author called “alarmingly high.” And a 2010 report found that the average CO turnover rate was 17% in 2006 and 2007, and 16% in 2008.

Today, as prisons and jails have become vectors of COVID-19, turnover rates have grown higher than ever.¹ But as this briefing shows, long before COVID, corrections work meant being surrounded by trauma and suffering, while working stressful jobs that are both monotonous and require constant vigilance.

Of course, much of the violence behind bars is perpetrated by COs themselves; we know that staff often assault and abuse incarcerated people; encourage, bribe and threaten incarcerated people to abuse others; and watch without intervening when violence breaks out. In fact, Micol Seigel proposes in her book that prison workers — along with police, members of the military, and others employed in security or detention — can collectively be considered “violence workers,” as their roles are designed to exercise the state’s power to use violence for enforcement. Violence in correctional facilities is further exacerbated by stressful, miserable living conditions. But while this violence harms incarcerated people the most, it has life-altering consequences for workers as well. As a result, COs face negative mental and physical health outcomes, including extremely high rates of depression and PTSD. Worst of all, for many COs, the job fundamentally changes the way they relate to others, requiring them to dehumanize the people they supervise and cultivate a brutal authority that is hard to shake even at home.

This creates a vicious cycle. Correctional jobs are stressful and traumatic, leading to high rates of burnout, absenteeism, and staff turnover. But when people quit or don’t show up for work, this makes the job even worse for their colleagues, who are often left working overtime shifts² alongside new, inexperienced coworkers.³

While the trauma and stress faced by incarcerated people dwarfs the experiences of correctional officers, it is important to study the frequently overlooked ways that prisons and jails harm everyone associated with them.

This is particularly crucial because, for years, state and local governments have used the promise of these “good state jobs” to garner support for newer, bigger prisons. For decades, rural towns looked to prisons as a saving grace that would bring economic development, boost local populations, and most of all, replace disappearing jobs. As that prison-building boom cools, now we are seeing pressure to build new, expanded county and city jails. But when officials promote prisons and jails as job creators, it is important to keep in mind what these jobs actually look like, and the effects they have on workers and the community.

To be clear, the problems outlined throughout this article are fundamental to the nature and environment of working in a prison or jail. These problems cannot be solved by increasing budgets, doubling down on hiring efforts, providing additional training, or increasing pay and benefits.

Exposure to trauma is inescapable on the job

Although incidents of violence behind bars are poorly tracked and reported, every count we do have shows that those who spend time in prisons and jails (staff and incarcerated people alike) are surrounded by traumatizing violence:

A 2021 paper analyzing the experiences of 156 correctional supervisors in a northeastern U.S. state revealed that large percentages witnessed or experienced the following traumatic events in a typical month:

• 55% – a suicide attempt by an incarcerated person
• 93% – violence inflicted by one incarcerated person on another

And in a typical year, many reported witnessing or experiencing:

• 61% – suicide of an incarcerated person
• 65% – non-suicide death of an incarcerated person
• 45% – a coworker suicide

Similarly, a team of researchers have published a series of papers based on surveys of Canadian workers in high-stress occupations. They found that institutional corrections workers report high rates of exposure to various traumatic events. For example:

• 45% had witnessed a death in line of duty
• 78% experienced or witnessed serious injuries in the line of duty
• 69% experienced or witnessed incidents that seriously threatened their life or the life of a colleague
• 65% witnessed or learned about the suicide of a close colleague or superior

A correctional officer from Oregon described this on-the-job trauma in a 2015 article in the Guardian: “You’re doing tier count and you’re watching a human being die in front of your eyes because he’s coughing up lungs and screaming with his eyes for help and there’s nothing you can do.” The man’s son, also a CO, recalled that on his first day of work, he witnessed the mutilated body of a man who had been beaten to death.

Correctional officers have high rates of depression, PTSD, and suicide

It is not surprising that many COs struggle with the mental and emotional toll of regular exposure to trauma. A 2021 analysis of thousands of anonymous surveys filled out by COs in California prisons revealed that, among those who answered specific questions about the prior month:

• 48% had felt anxious, nervous, or on edge
• 80% felt tired or fatigued, even right after sleeping
• 28% consumed six or more drinks on at least one occasion
• 28% felt down, depressed, or hopeless
• 4% experienced repeated, disturbing memories
• 11% had suicidal thoughts or had attempted suicide

A 2018 survey of corrections employees in Washington State estimated a PTSD rate of 19%, which is similar to rates among veterans of the Iraq and Afghanistan wars, and higher than that of police officers.

Several studies put the rate of PTSD even higher. A 2013 study of nearly 3,600 corrections professionals from all over the country estimated that 34% of correctional staff in security roles have PTSD and 31% have depression. A 2016 paper studying correctional officers in Michigan estimated that 34% of participants had PTSD, 36% had depression, and 25% had both. Rates of both — as well as the risk of suicide — were higher among people working in high-security units, and among those who had worked in corrections for 10 years or more, indicating that these problems do not get easier with time or experience. And a 2017 Canadian study (again, using the pool of high-stress workers mentioned above) found that more than 54% of correctional workers screened positive for mental disorders including PTSD (29%) and major depressive disorder (31%), compared to a baseline diagnosis rate of 10% of the Canadian population.

Although there are not many studies on correctional officer suicides, one analysis found that COs in New Jersey had more than double the suicide rate of 25-to-64 year old men in the state from 2003 to 2007. A 2016 article tracking CO suicides in Massachusetts found the suicide rate to be about six times that of the general state population. An earlier study from 1997 found that COs have a 39% higher rate of suicide than the rest of the working age population. And the survey of Canadian correctional workers revealed that 35% had experienced suicidal ideation in their lifetimes (including 11% in the prior year), and 8% had previously attempted suicide.

This relentless stress inevitably leads to burnout, which is often associated with workers in healthcare, human services, and education, and is characterized by emotional exhaustion, depersonalization, and a sense of a lack of personal accomplishments. Burnout can lead to depression, and can cause someone to withdraw emotionally, psychologically, and socially from their job. A 2020 Swiss study found that — although violence is infrequent in Swiss prisons — COs who did witness or directly experience violence had more exhaustion and a decreased sense of security, which in turn, led to higher levels of burnout. The paper concluded that “not only serious major incidents, but also the daily grind have an effect.”

A 2013 literature review, which provides a collection of research on the topic, concluded that the implications of stress and burnout are far-reaching:

Workplace stress and burnout among COs can lead to unsafe correctional facilities, high turnover rates, high absenteeism, lower productivity and decreased effectiveness in the workplace as well as negative personal and social outcomes like decreased life satisfaction and work-family conflict.

In fact, a 2014 paper for the National Institute of Corrections proposed a diagnostic category called “corrections fatigue,” which can have implications including “negative personality changes, socially dysfunctional thinking/ideology, and forms of declined health and functioning.” Those researchers further estimated that 20% of correctional officers experience corrections fatigue.

These consistent findings of rampant PTSD and depression among COs are remarkably similar to studies of incarcerated people. Research among incarcerated populations have found rates of PTSD at 48%. And much like corrections fatigue, researchers have identified “post-incarceration syndrome,” a subset of PTSD. In-depth interviews with 25 people who were incarcerated an average of 19 years revealed a “specific cluster of mental health symptoms,” including institutionalized personality traits, social-sensory disorientation, and alienation. These high rates among both prison staff and incarcerated individuals indicate that prisons themselves are unhealthy, dangerous spaces that contribute to serious and lasting mental health problems.

COs experience chronic pain and hypertension, and are exposed to illness and violence

Corrections work can take a physical toll as well. Nearly half (45%) of the surveyed correctional workers in Canada reported experiencing chronic pain, with lower back pain the most common complaint. Correctional officers are also disproportionately exposed to infectious diseases: The Covid Prison Project has tracked 277 deaths of correctional staff due to COVID-19, as of March 2022. (Of course, prison staff have contributed greatly to the spread of COVID behind bars: Throughout the country, staff vaccination rates lag far behind vaccination rates of incarcerated people, and many states failed to require staff to wear masks at the height of the pandemic.)

The stressful nature of the job brings other physical drawbacks. A 1983 study found that correctional officers had higher rates of hypertension (high blood pressure) and heart disease than the general population, both of which are linked to stress. And a 2015 study found extremely high baseline levels of hypertension and pre-hypertension among correctional officers. While hypertension usually shows up later in life, the study revealed high rates among COs ages 20 to 34 and 35 to 44.⁴

While estimates vary regarding the percentage of COs who are victims of violence on the job, it is clear that working in a prison comes with an increased risk of violence. The Bureau of Justice Statistics (BJS), for example, found that from 2005 to 2009, 33 out of every 1,000 COs reported experiencing workplace violence (defined as rape/sexual assault, robbery, and aggravated and simple assault).⁵ Compared to other professions in the study, this rate is lower only than bartenders, police officers, and security guards.⁶

Of course, when considering data on this type of violence, it is important to remember that it is self-reported by correctional officers, making it impossible to know what role they or their colleagues might have played in the reported incidents. COs are incentivized to report every possible incident as an assault, as a way of justifying budget and salary increases.

And it is clear that the constant fear of violence further adds to stress and negative mental health outcomes, and can contribute to job performance and turnover rates.⁷ In this way, too, COs’ risk of violence mirrors the experiences of incarcerated people.⁸

Prisons — no matter how modern — are depressing work environments

Back in 1982, a review of the stresses of prison work stated the obvious:

Any organization or social structure which consists of one group of people kept inside who do not want to be there and the other group who are there to make sure they stay in will be an organization under stress.

Investigative reporter Shane Bauer described corrections work in a similar way. In 2016, Bauer (who was previously incarcerated for two years in an Iranian prison), spent four months undercover as a CO in Winn Correctional Center, a private state prison in Louisiana. He later said of corrections officers, in his experience:

Most of them, when they go in, they want to treat prisoners well. But then you have to face the fact that you’re doing something that is not really within your normal realm of what it means to be a decent human being.

Multiple papers have noted that certain stressors are built into the corrections model, and are sometimes called “occupational” or “work-related.” As the author of an expansive 2013 literature review on wellness and safety among COs explains, much of the job of a correctional officer is boring and repetitive, yet the constant risk of violence and other incidents requires “hyper-vigilance, boundary setting and self-control. The constant state of alertness can be taxing both physically and psychologically.”

“We put on our armour. When you walk through the first gate, it clicks. And so does your back,” another former correctional officer from Oregon told the Guardian. He compared the job to being in a pressure cooker.

On top of the inherently stressful work environment, corrections jobs do not tend to open the door to desirable work in other industries. While former COs may go on to work in law enforcement or private security, these career paths are two of just three identified by the BJS as having higher exposure to workplace violence than corrections. Low wages are also often cited as a drawback of the job.

According to one Canadian corrections officer, who responded to a survey’s open-ended question about the job:

Corrections are a very mentally and physically demanding career that is very difficult to understand. Being keepers of people has demands that should not be misunderstood. This career is a meat grinder.

And in a white paper on correctional wellness titled “I Am Not Okay,” published by One Voice, the authors (who are correctional officers) described the reasons people go into corrections:

During childhood, kids regularly invent games where they imagine what they will be when they grow up. Many pretend to be police officers, nurses, doctors, lawyers, firefighters, or teachers. How many kids in the neighborhood grew up locking their friends in the basement because they wanted to be a correctional officer? How many seniors in the high school yearbook listed “correctional officer” as a career aspiration? Almost no one does that. No one wants to go to prison, even if they have the keys…

Some choose this path because they see it as an opportunity to help people “correct” their wrongdoings and come out better, but those for whom this was their motivation quickly find out that it’s not really an option, because the current system was not designed with this in mind.

But the correctional work environment is worse than it has to be

While some stressors of the job are inherent to the nature of locking people up, others stem from the way prisons are run in the United States. Sometimes called “organizational” or “institution-related” stressors, they contribute to stress and burnout, and can include:

• Low autonomy/ no input into decision making
• Unpredictable shift work
• Overtime demands
• Lack of support from or trust in supervisory staff
• Inadequate benefits and resources
• Inadequate training

Other significant “institution-related” stressors are role conflict and role ambiguity. Role conflict reflects fluctuating expectations over whether prisons are for punishment or rehabilitation. Role ambiguity is the uncertainty created when supervisors instruct COs to go “by the book,” even though it is clear to everyone that the role requires flexibility — and that the culture surrounding prison work encourages staff to carry out violent, informal sanctions that aren’t in any rulebook. As one paper described role ambiguity:

While officers work in a paramilitary organization marked by explicit lines of authority and a host of formal regulations, their task of managing inmates demands flexibility, the judicious application of discretionary justice, and the ability to secure inmate compliance through informal exchanges which deviate from written rules… Ambiguous and conflicting expectations are a likely result and a potential source of stress.

What’s more, negative experiences in prison may be exacerbated by the machismo culture in corrections. The 2013 literature review notes that, “like police officers, COs have subcultural taboos regarding the acknowledgement of a need for medical or psychological assistance, as such admissions are perceived as a sign of weakness.”

Bringing the problems home

Many correctional officers struggle to leave the job behind at the end of a shift, which is described by psychologists as “dual role conflict.” People often bring home the violence, hypervigilance, and command culture they experience all day, importing violence into their homes and communities. As the 2013 literature review explains:

It can be difficult for a CO to override innate and acquired characteristics that are considered functional and professional in the workplace, but are not effective at home or in their personal lives… For example, conflict can occur at home when excessive job stress causes a CO to displace frustration onto spouses and children, ordering family members in the same way he or she issues commands to inmates.

The review further notes that family conflict can be exacerbated by other features of the job, such as “cynicism, pessimism, sarcasm, flattened drama/stress response, and exposure to trauma and other disturbing behaviors.” All of this can lead to withdrawal and isolation at home.

A 2021 study of 156 correctional supervisors found correlations between exposure to traumatic incidents on the job and work-family conflict. And a 2013 paper included first-person accounts from Canadian correctional officers describing the effects the job has on them. As one CO explained it:

Prison staff learn to apply a thin layer of ‘Machismo’ as a result of each incident they respond to. It’s like a Band-Aid… It covers and seals in your emotions and your feelings; otherwise you’re weak, a punk, or a sissy… The only problem is the Band-Aids don’t come off after work. They stay on. So you live your life and miss all the beauty and the real experiences because you are a heartless, emotionally numb, and desensitized a__. You see an awful car accident with injuries, big deal. You have a friend that gets hurt really bad, big deal. Your family member dies in his fifties and you truly love the man, big deal. An inmate gets stabbed 47 times, big deal. You get mad because your kid wrecks his bike and cries because he skinned up his knees, big deal. Tell him to man-up and quit being a baby and walk away.

Shane Bauer, the undercover journalist, described how his personality changed as he worked in a prison:

It is getting in my blood… When I drive home, I wonder who I am becoming. I feel ashamed of my lack of self-control, my growing thirst for punishment and vengeance. I’m getting afraid of the expanding distance between the person I am at home and the one behind the wire. My glass of wine with dinner regularly becomes three. I hear the sounds of Ash unit as I fall asleep. I dream of monsters and men behind bars.

This can lead to dire outcomes. A 2011 study found that work-family conflict can contribute to depression among COs. And in a 2012 survey of 710 correctional officers in Florida, 33% reported they had heard of at least one correctional officer who committed unreported domestic violence.

Nurses, teachers, and other corrections workers face similar challenges

Although there is little research into the experiences of correctional nurses, teachers, and case managers, the little we know suggests that COs are not the only ones experiencing stress and trauma.

A 2019 exploratory study from the United Kingdom found that 57% of participating correctional mental health nurses had listened to people express thoughts of suicide and self-harm more than 30 times. Most had witnessed self-harm or attempted suicide.

Repeated exposure to this type of trauma can build up, just as it can for COs. “Vicarious” or “secondary” trauma can occur in people who are exposed to disturbing images and stories second-hand, and can have similar symptoms to PTSD. A 2019 study from Australia found that 87% of participating health staff at correctional centers experience high or moderate levels of vicarious trauma. Similarly, a 2011 study of educators in youth facilities found that 81% met at least one, 55% met two, and 39% met all three core diagnostic criteria for PTSD.

A 2006 study of workers in two unnamed midwestern prisons found even higher rates of burnout among case workers than correctional officers. And while little research exists on the physical health impact of this work, a study of correctional nurses found that 56% had short sleep duration and 32% had poor sleep quality.

Communities and counties should not seek new prisons and jails as job boosters

The overwhelming evidence shows that correctional work is stressful and traumatic. But for decades, rural communities throughout the country were persuaded to compete for prison contracts, and are now stuck with these jobs.

Not only are individual prison jobs difficult, but prisons as a whole have failed to revitalize the towns where they are built. In a 2002 report, Tracy Huling concluded that “increasing evidence suggests that by many measures prisons do not produce economic growth for local economies and can, over the long term, have detrimental effects on the social fabric and environment of rural communities.”

First, Huling noted that prisons often don’t hire locals. She cited Ruth Wilson Gilmore’s Golden Gulag, which includes a study of prison towns in California that showed that, on average, less than 20% of jobs in new state prisons went to current residents of the local town. Looking specifically at Corcoran, Calif., which housed two prisons, Gilmore further found that just 40% of the people working at those prisons lived within a 75 mile radius of the town. This happens in part because prison systems tend to promote from within.

Prisons can have other negative effects on a town’s economy. Citing work by economist Thomas Johnson, Huling noted that they generate few “linkages to the economy.” Unlike an auto plant, which might lead to the creation of new delivery companies, radio assemblers, and electronic harness makers, prisons do not attract new, related industries to the area. What’s more, prisons tend to attract chain stores, creating a “replacement” effect where locally-owned businesses lose out to the incoming McDonalds and Walmarts. Prison labor carried out by incarcerated people for the municipality or for private industry — which is already exploitative — can also displace local workers.

Too late, communities may find that, with all the small businesses gone, they have become dependent on their prisons — meaning that when states occasionally shutter prisons today, the news can be met with disappointment and fear.

Since Huling’s report, the literature continues to back her up. A 2008 literature review concluded:

“The 1990’s location of prisons in rural areas was based on a high dose of economic development hype and the hopes and expectations of local elected representatives, business and community leaders who believed state prisons were a ‘gold plated’ solution to their economic problems… Once more comprehensive and rigorous impact studies did emerge, they demonstrated that many of the apparent benefits of rural prison location for local communities were invalid.”

A 2010 study lead authored by Gregory Hooks similarly found that prison construction “impedes economic growth in rural counties.” Three Kentucky counties remain among the poorest in the nation after becoming home to federal prisons. And in 2016, an analysis of 25 years of prison building in Appalachia found “little evidence to support the claim that prisons are engines of growth,” and warned: “policymakers would be well served using great caution before pursuing this development pathway.”

Today, the prison-building boom has slowed, and county jails have become the new frontier of carceral expansion. From 2013 to 2019, jail populations grew 27% in rural areas and 7% in small-to-midsize cities, prompting many counties to build newer and bigger jails. In some states, this growth is accelerated by policies in which the state departments of corrections pay counties a per diem to house people serving state sentences. In Kentucky, for example, “at the same time that coal revenues dried up, the state’s criminal justice policies subsidized and incentivized the expansion of carceral capacity at the county level,” explain Jack Norton and Judah Schept. But, like the prison boom jobs before them, jobs in these new, expanded jails should not be desirable to individual workers or communities.

Prisons bring trauma into communities — for the people locked up in them, of course, but for those employed there as well. There are other ways to create better, safer jobs for people in rural communities. In particular, states have the power to create different kinds of jobs — such as jobs in mental health services, youth programming, or health care — that simultaneously help others stay out of jail and prison in the first place.

Insufficient funds: How prison and jail “release cards” perpetuate the cycle of poverty

We examined release card companies’ fee structures to learn how this industry has evolved, and what government leaders can do to stop its worst practices.

by Stephen Raher, May 3, 2022

Every year, roughly 5 million people are released from jail and another half million leave prison. But just because they are released from physical custody doesn’t mean that they are free of the financial exploitation resulting from that experience.

When a person leaves a correctional facility, they often receive their funds — wages earned while behind bars, support from family members, or money the person had in their possession when arrested — on fee-laden prepaid debit cards. As we explain below, there are several ways (six, to be precise) to get money off of a release card, but they are expensive, difficult, or both.

We first put a spotlight on these “release cards” in 2015, when they came on the scene as one of the newer ventures from companies that have traditionally profited by charging incarcerated people and their families exorbitant rates for phone calls, money transfers, or other technological services. While release cards were novel in 2015, they are now ubiquitous. Since then, the Consumer Financial Protection Bureau (CFPB) has reined in some of the industry’s worst practices and cracked down on one of the biggest players in the industry, but these companies continue to line their pockets at the expense of low-income individuals who are trying to navigate the reentry process. As the CFPB’s director recently noted, some release-card companies have made a practice of “siphoning off…people’s own hard-earned money” through abusive practices that sometimes violate federal law.

To better understand how these companies continue to unfairly extract money from consumers — and more importantly, what can be done to stop them — we analyzed the most recent fee disclosures that release-card companies filed with the CFPB. The data (which are summarized in the appendix¹) paint a picture of a complex obstacle course, riddled with pitfalls that deprive formerly incarcerated people of the modest amount of money they have when they are released.

The six ways release-card companies grab people’s money

When someone is given a release card on their way out of a prison or jail, they have up to six ways to use its value, but each option entails different challenges, and most involve fees.

Option #1: Opt out (but the clock starts ticking at the moment of release)

The first way someone can get their money off of a release card is by exercising their right to “opt out” and get a refund.

While this may sound easy, it will come as no surprise that release-card companies make it difficult (or nearly impossible) for recently released people to exercise their opt-out rights. Cardholders face four primary hurdles:

1. First, the cardholder must act quickly. They have to notify the company they want a refund within an arbitrary “grace period” to avoid being hit with maintenance fees. These grace periods are generally between two and thirty days, creating an unnecessary obstacle at a time when the cardholder is trying to secure housing and employment, and (if on parole) comply with terms of supervised release.²
2. Second, opting out generally requires that the cardholder call customer service or make a web-based request to close the account. The problem here is that people recently released from custody frequently lack reliable phone or internet service.
3. Third, the cardholder cannot use the card for even a single transaction, effectively freezing their money at a time when they need it most.
4. Finally, refunds are generally sent via a mailed check, even though recently released people are likely to need time to establish a mailing address and are unlikely to be able to wait for the time required under the U.S. Postal Service’s degraded delivery standards.

A full breakdown of fees charged by each card type is available in the appendix.

If someone receives a release card that charges a periodic maintenance fee and they do not close their account within the grace period, then the maintenance fees will be deducted from their card balance every week or month. Almost three-quarters of the release-cards we reviewed charge “account maintenance” fees.

Option #2: Close the account after the opt-out period has expired

After the grace period has expired, a cardholder can request that the account be closed and receive a refund via mailed check. Seventeen release cards (all managed by Numi Financial) charge a steep $9.95 fee for this service, meaning anyone with a balance of less than $10 can’t take advantage of this option. Someone with a $50 balance can use this option, but effectively has to pay a fee of 20% for a very simple transaction.

Option #3: Transfer the money to a bank account (if you have one)

Some cardholders can transfer their balance to a bank account. Two of the three dominant release card brands (Access Corrections and Numi) appear to allow cardholders to transfer their funds to a bank account without paying a fee.³ However, the companies do not provide much detail about how to do this, beyond referring consumers to the program manager’s website. While this may be useful for cardholders with bank accounts, most people being released from long terms of incarceration don’t have bank accounts, effectively eliminating this option for them.

Option #4: Use the card to make purchases

Holders of release cards can use their balances to make in-store or online purchases. This only works if the business in question accepts Mastercard. While many retailers do, some important businesses (like landlords) do not.

But even if a cardholder wants to use the card at a Mastercard-accepting business, simply using the card for purchases can subject them to a whole new series of fees. Some cards charge users for each purchase (seven cards levy such fees, averaging 71¢ per transaction). These fees are hard to justify because card companies are already compensated for the cost of processing transactions through interchange fees paid by merchants.⁴

Half of the cards we examined charge fees for declined transactions, with an average fee of 62¢. These fees are even more difficult to justify because it doesn’t appear that card issuers incur any expense when a purchase request is declined. These fees seem to be nothing more than corporate enrichment at the expense of consumers who are least able to absorb these costs.

Finally, don’t forget that for cards with periodic maintenance fees, the longer it takes the consumer to spend down their balance, the more they will pay in weekly or monthly maintenance fees.

Option #5: Get cash at an ATM

Getting cash from an ATM also presents its own challenges and fees.

Some card companies offer a network of ATMs where customers can withdraw their money for free, or a relatively low fee. However, if the cardholder uses an ATM outside of this network, they’re likely to be hit with fees by both the card issuer and the bank that operates the ATM. Twenty-nine release cards (60% of our data set) impose fees for ATM withdrawals — with an average fee of $2.58 per transaction. Sometimes these fees apply only to out-of-network ATMs, but some cards charge the fee for all ATM transactions.

Finally, twenty-four cards impose a fee for declined ATM transactions (with an average fee of 62¢). To avoid a declined-ATM-withdraw fee, a cardholder may want to check their available balance, but doing that at an ATM carries a fee — ranging from 50¢ to $1.50 — on thirty-seven release cards (77% of the data set).

A full breakdown of fees charged by each card type is available in the appendix.

Option #6: Withdraw cash at a bank

Over-the-counter withdrawals appear to often be fee-free, but figuring out how to use this option can be nearly impossible. For example, the cardholder agreement for Axiom Bank’s release cards (branded as Access Corrections cards) states that cardholders must perform over-the-counter withdrawals at a “MasterCard principal financial institution,” but neither Axiom or Mastercard itself provides information on how to determine which bank branches fall within this category. Similarly, Central Bank of Kansas City (a partner with Numi Financial) also fails to inform customers where they can make over-the-counter withdrawals, but cardholder materials do warn that banks offering this service may impose their own fees.

Making release cards work for recently released people

All too often, correctional facilities use release cards without giving any thought to the experience of the person being released from custody. For a short stint in jail — a few days or hours — simply returning a person’s cash to them upon release is almost always the best option. If someone spends a longer time in custody, though, and accumulates a balance in their “trust account,” a prepaid debit card may be a convenient way to give someone their money, especially if there are few (or no) fees and cardholders have free and easy-to-use options to transfer the balance or turn it into cash.

The real problem here isn’t release cards themselves; it’s the abusive fees and practices that are common in the industry today.

Correctional agencies can take steps to end some of the most outrageous release-card practices. For example, we identified one release card in the CFPB database that stands out in a good way: the Comerica Bank card used by the North Dakota Department of Corrections. This card has relatively few fees compared to other companies: just an inactivity fee of $2/month that kicks in if the card hasn’t been used for twelve consecutive months, a $10 fee for expedited replacement of a lost card via overnight mail (a replacement card via first-class mail is free), and a few ATM fees.⁵ It’s also the only card we reviewed that doesn’t include a mandatory arbitration provision. How did such a small prison system get such a good deal? Because the North Dakota Department of Corrections joined with other state agencies that use prepaid debit cards (for payments like unemployment benefits) to negotiate a group contract with decent consumer protections. It’s a practice more states can and should adopt.

State legislatures can also crack down on bad release-card deals. We’ve drafted simple model legislation that prevents most of the worst practices in the industry.

Search contractsSee what companies are profiting off of release cards

Finally, the federal government has a role to play in making these cards work better for consumers. The CFPB is currently looking at “junk fees” charged in connection with consumer financial products. These are fees that don’t serve any real purpose other than to pad the bottom lines of the companies that charge them. We filed comments asking the CFPB to finish the work it started when it fined JPay last year. We encouraged the agency to crack down on some of the worst practices across the release card industry, in addition to addressing the equally abusive fees charged for money transfers to incarcerated people.

Release cards shouldn’t be a tool for taking money from those who can least afford it. Prison and jail officials, along with state and federal leaders, have a responsibility to ensure the little bit of money that recently released people have is not quickly drained by hidden or inescapable fees. States and counties should follow the lead of North Dakota by leveraging their power to negotiate a contract that minimizes fees; state legislatures should prohibit the industry’s worst practices; and the CFPB should continue to police companies in this sector.

Untangling why prison & jail populations dropped early in the pandemic

Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased.

by Wendy Sawyer, March 24, 2022

Sections

Crime and arrests

Jail bookings & pretrial detention

Court slowdowns

Prison admissions

Keeping admssions low

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available. Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic. Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change. In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The reduction in prison admissions, which explains most of the drop in incarceration in the early pandemic, was the effect of temporary changes in arrest and jail practices, court slowdowns, and the refusal of some prisons to accept transfers from jails. However, the data do not allow us to distinguish how much of the drop in admissions was due to a given type of change, such as transfer refusals versus slowdowns.

The changes that have had the most impact on incarceration since the start of the pandemic include:

• 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
• 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
• 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
• A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
• 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

Critically, the one thing that we and other advocates demanded from the very start of the pandemic – intentional, large-scale releases to prevent the spread of COVID-19 in the tight quarters of prisons and jails – did not happen. In the first year of the pandemic, prisons actually released 10% fewer people than they did the year before, and among the twelve states that regularly publish more recent data, that trend held throughout 2021 as well. Only three states (New Jersey, California, and North Carolina) released a significant number of incarcerated people from prisons. Parole boards also approved fewer releases in the first year of the pandemic than the year before.

Changes in crime and arrests

Two major factors contributed to the 24% drop in arrests in 2020: widespread changes in behavior and more limited changes in police practices. The shift away from in-person activities towards remote work, learning, commerce, and social contact represented a major change in our usual behaviors. This explains some changes in crime trends: for example, with more people home during work hours and on weekends, there were fewer low-risk targets for home break-ins. And in 2020, there were 18% fewer home burglaries reported than in 2019, and consequently 13% fewer arrests for burglary. With fewer people out, there were also fewer opportunities for thefts that require close contact: reports of pickpocketing dropped 37% and purse-snatching 25%, and arrests for these types of crimes (larceny/theft) dropped 23%. The 24% drop in arrests for driving under the influence (DUI) also makes sense in this context: there were fewer people on the roads, and for a long time, few bars or restaurants open for people to consume alcohol.

Policing changed too, to a lesser degree. Police officers got sick, reducing their capacity to arrest, and some officials directed police to avoid unnecessary contact with the public and to issue more citations in lieu of arrest. This likely explains the dramatic reductions in arrests for “nuisance” crimes like vagrancy and drunkenness.

Some of these changes were extremely short-lived: Philadelphia police suspended “non-violent” arrests in mid-March 2020, but just two weeks later, the police force announced it would resume arrests for property crimes, effectively reversing the earlier policy. Police in Maui, Hawai’i set up a call center early in the pandemic to handle calls that didn’t require in-person responses; it was shut down within just three months, when the Police Chief declared “things are settling down.”

Given that almost all of these changes were in direct response to the pandemic, as opposed to long-term policy changes, we should anticipate a return to pre-pandemic arrest rates as work, school, business, and social life return to “normal.”

Jail bookings and pretrial detention decisions

Jail admissions generally mirror arrest trends, so fewer arrests mean fewer people booked into jail. The drop in arrests in 2020 therefore accounts for most of the 16% drop in jail admissions over the course of the year. But there were also some notable, temporary, pandemic-response policies that contributed to the reduced jail populations we saw in 2020, namely:

• The promises of many prosecutors to decline to prosecute certain low-level offenses or to dismiss pending charges against people arrested for such offenses,
• The suspension of arrests for non-criminal (or “technical”) violations of probation and parole,
• Temporary changes in probation and parole conditions that made it easier for people under community supervision to comply, such as videoconferencing instead of face-to-face check-ins and the waiving of monthly fees, and
• The temporary suspension of arrests on outstanding “bench warrants” for things like missed court dates.

Some courts and prosecutors also made impactful, though temporary, changes to pretrial processes. On any given day, at least two-thirds of the nation’s jails are filled with people who have not been convicted and are legally innocent, many because they cannot afford money bail. But early in the pandemic, we saw changes like the “$0 bail” emergency rule ordered for California’s courts, which eliminated unaffordable bail as a barrier to pretrial release for people accused of misdemeanors and lower-level felonies. In another example, the State’s Attorney in Vermont’s largest county directed her office to stop requesting bail for defendants facing low-level charges.

Together, these changes reduced the use of jails for things other than serious public safety concerns. Most of these temporary policies have long since expired, so, except for those places that have enacted policies to permanently reduce incarceration for these non-dangerous and/or non-criminal violations, we should expect to see more people jailed for these reasons again as the pandemic wanes.

Court slowdowns

Most courts had to dramatically change their operations during the pandemic in ways that led to long delays in case processing. According to the National Center for State Courts, the most common court responses to the pandemic included restricting or ending jury trials, suspending in-person proceedings, restricting entry to courthouses, extended filing deadlines, and encouraging video conferences in place of hearings.

In 2020, 21% fewer criminal cases were filed in state courts than in 2019, which in turn meant fewer people were convicted and sentenced to jail or prison. The most recent data available indicates that the number of criminal case filings were still much lower than pre-pandemic levels as of June 2021. Some of this drop in new cases is explained by changing crime and arrest trends, but prosecutorial decisions also played a key role. For example, the Maricopa County (Arizona) Attorney’s Office began delaying the filing of – but not dismissing – “thousands of charges” in an effort to keep down the number of people in courtrooms and jails (and potentially to avoid problems complying with speedy trial laws). And Seattle’s District Attorney decided early on to briefly stop filing charges except for “priority in-custody violent crimes.”

But the changes in court operations have made an even bigger dent in case dispositions than case filings: in 2020, state courts closed 36% fewer criminal cases than in 2019. Unable to keep pace with incoming cases, the clearance rate for criminal cases across over 30 state court systems dropped from 105% in 2019 (when courts were able to close more cases annually than were added to the docket) to 88% in 2020. Some of this slowdown, too, was the result of attorneys requesting postponements; some was simply due to court closures.

Pandemic caseload data from the Court Statistics Project show that criminal court slowdowns were at their worst between July 2020 and January 2021, but even with fewer new cases coming in, “pending” cases have piled up and will take time to clear. As they do, and as arrests and prosecution return to pre-pandemic norms, we can expect the rate of people convicted and sentenced to incarceration to climb back up.

Prison admissions

The cumulative effect of fewer arrests, temporary changes in probation and parole practices, and pandemic-related delays in trials and sentencing was a dramatic 40% reduction in the number of people who entered prisons in 2020. The number of new court commitments (that is, people admitted to prison to serve a new sentence) dropped almost 43% from 2019 to 2020. And, for the same reasons jail admissions fell for non-criminal violations of probation and parole, the number of people admitted to prisons for these violations fell 35%. The massive decrease in admissions was driven by steep drops in large states like California (down 66%), Florida (down 53%), and New York (down 60%).

Some of the change in admissions to prison, however, was simply because people were left in jails longer before being transferred to prisons. In an effort to prevent the spread of COVID-19 between facilities (a very valid concern), some state prison systems, such as Illinois’, refused to admit people held in local jails who were sentenced to prison. While this may have helped slow the spread into prisons, staff were still bringing the virus into facilities from their home communities. Meanwhile, these delays left thousands of people stuck in local jails, which have fewer programs and far more population turnover than prisons – a miserable situation at any time, but particularly during a pandemic.

Again, because the changes that resulted in fewer admissions in 2020 were temporary responses to the pandemic, we should expect prison populations to rebound to pre-pandemic levels as courts catch up with their backlog of pending cases and probation and parole agencies return to more stringent conditions and harsher punishments for non-criminal violations.

Prison and jail admissions are at historic lows. We can keep it that way.

The changes to the criminal legal system during the pandemic were, for the most part, temporary responses to the immediate public health emergency, not deliberate policy choices to reduce incarcerated populations over the long term. There is little reason to think that incarceration rates will remain at their pandemic-era lows without more intentional changes, particularly since jail and prison populations have already started to rebound. Furthermore, the piecemeal actions that federal, state, and local authorities did take were not nearly enough to protect people in prisons and jails, nor the communities that surround them. To date, almost 600,000 incarcerated people have been infected and more than 3,000 have died behind bars because of COVID-19. And of course, the pandemic isn’t over; still, authorities continue to ignore public health guidance that specifically calls for decarceration.

The fact that many early-pandemic policy changes were so short-lived is particularly frustrating since we know they helped rapidly reduce populations without compromising public safety. Data from the National Crime Victimization Survey show that the number of violent crimes (excluding homicide, which the survey does not cover) fell from about 2 million in 2019 to 1.6 million in 2020; accordingly, the rate of violent victimization fell by 22%. The household property crime victimization rate fell by about 7%. And, as discussed above, arrests and crimes reported by police fell, too.

Government authorities’ willful disregard of the evidence that further, sustained policy changes are both urgently needed and safe is part of a larger problem, of course. The perception (not a reality) that criminal justice reforms have led to upticks in crime over the past few years has fueled pushback against smart policy changes. That perception is powerful, and history shows that reactionary policies can follow: In the 1980s and 1990s, the last time prison and jail populations were as low as they were in 2020, the knee-jerk reaction to (much bigger) increases in crime was to lock more people up, and for longer. Particularly in the context of the ongoing pandemic, we can’t afford to let that happen again.

New data on formerly incarcerated people’s employment reveal labor market injustices

Newly released data doubles down on what we’ve reported before: Formerly incarcerated people face huge obstacles to finding stable employment, leading to detrimental society-wide effects. Considering the current labor market, there may be plenty of jobs available, but they don’t guarantee stability or economic mobility for this vulnerable population.

by Leah Wang and Wanda Bertram, February 8, 2022

How many formerly incarcerated people are jobless at the moment? A good guess would be 60%, to generalize from a new report released by the Bureau of Justice Statistics (BJS). The report shows that of more than 50,000 people released from federal prisons in 2010, a staggering 33% found no employment at all over four years post-release, and at any given time, no more than 40% of the cohort was employed. People who did find jobs struggled, too: Formerly incarcerated people in the sample had an average of 3.4 jobs throughout the four-year study period, suggesting that they were landing jobs that didn’t offer security or upward mobility.

As the data show, not only is reentry difficult in the first months of release from prison, but the struggle to find a job actually grew over time for the study cohort of people leaving federal prison in 2010. We show these increasing jobless rates next to one of the most dire economic moments of recent years — when the US unemployment rate reached its highest point of around 15% in mid-2020.¹

We warn readers that we can’t call the 60% jobless rate an “unemployment rate” — joblessness is different from unemployment, which refers to people actively looking for work. We calculated the first and only national unemployment rate for formerly incarcerated people in our 2018 report Out of Prison and Out of Work, and we can’t update that analysis, because we based it on data that the government only collected once.² Nevertheless, the new BJS data suggest that employment rates among people who have been to prison aren’t improving.

Formerly incarcerated individuals tend to experience joblessness and poverty that started long before they were ever locked up. When they’re released from prison, the pressure is on to get a job: People on parole (or “supervised release”) often must maintain employment or face reincarceration,³ while struggling to access social services, and trying to make ends meet in a job market more hostile to them than ever before. This combination of pressures amounts to a perpetual punishment. And it’s not just formerly incarcerated individuals who are punished: Policies that weaken their ability to turn down jobs with low wages may depress wages for other workers in their industries, as we’ll explain in this briefing.

Harsh parole conditions, a lack of social welfare programs, and a tough job market are forcing formerly incarcerated people — already a low-income, majority-minority demographic — into the least desirable jobs. But not everybody is losing: Businesses have found a way to capitalize on the desperation of applicants with conviction histories and exploit the fact that these these individuals have less bargaining power to demand changes in conditions of employment, such as better wages benefits and protections. This results in lower overall wages and more harmful working conditions in certain industries.

Post-release, months of searching and moving between jobs is common

The overall employment rate over four years after the study population was released hovered between 34.9% and 37.9% — in other words, about two-thirds of the population were jobless at any given time.

For those who did find employment after release, their earnings were lower than the general population: In the first few months, formerly incarcerated people were earning just 53% of the median US worker’s wage. And after four years of seeking and obtaining irregular employment, the study population was making less than 84 cents for every dollar of the US median wage (which, in 2014, was about $28,851 annually).

Earnings were lowest for Black and Native American people released from federal prison;⁵ in fact, racial and ethnic disparities in earnings seemed to grow over time. These findings probably reflect an unfortunate “racialized re-entry” process for people leaving prison, where the stigma of incarceration itself and differences in social networks for job-seekers vary across racial and ethnic groups. Researchers of this concept noted that white people getting out of prison actually appeared more disadvantaged and less employable “on paper” due to higher rates of substance use and longer sentences, but still ended up with better employment and income than Black and Hispanic people leaving prison.

Employment may be one of the most important benchmarks of reentry, yet it took formerly incarcerated people an average of over six months to find their first job after release. As such, many did not maintain employment over the entire four-year study period, and the average person in the study had 3.4 jobs over that time. If that sounds erratic, it is: The average person is employed for 78% of the weeks between ages 18 and 54, while people in the study’s cohort were employed just 58% of the time post-release. When people are moving from job to job, families and the economy suffer, and people risk violating their post-release supervision and being returned to incarceration.

Lastly, though it’s not clear exactly why, people who served less than a year in federal prison actually had a harder time finding and maintaining employment post-release, and spent more time without a job than the other groups.⁶ Given this devastating impact on their long-term employment prospects, it’s evident that people who are given short sentences — and who pose no safety risk — should not be incarcerated to begin with.⁷

The struggle to find a good job

The fact that most people released from prison have spotty, sporadic employment may mean that the jobs they’re getting are difficult jobs to keep, even for an extremely motivated worker. These could be temporary jobs, jobs where workers aren’t protected from wrongful termination, or dangerous or low-wage jobs that are unsustainable.

According to the BJS report, the major industries employing formerly incarcerated people include waste management services, construction, and food service. A 2021 study released by the U.S. Census Bureau affirms this finding. The study analyzed thousands of people with felony convictions, tracking their employment and income in the years around the Great Recession (2006-2018), and found that rebounds in construction and various service industries after the recession were associated with a bump in employment and income levels for these individuals. However, the people in that study saw their employment levels plateau after a few years, even in areas where construction and manufacturing thrived.

It’s true that industries like manufacturing and construction tend to boost employment and reduce recidivism for those leaving prison. But while these jobs did, at one time, allow people to build wealth and support a family, they don’t as much anymore, meaning that they are likely not alleviating poverty among formerly incarcerated people. The fact that formerly incarcerated people are not obtaining steady, reliable work is likely related to the industries in which they’re most commonly employed.

When the workforce is under mass supervision, key industries lose employee bargaining power

Looking more closely at the “low-skill” jobs that formerly incarcerated people tend to get can help us understand how mass incarceration and supervision may be hurting whole sectors of workers. In construction and manufacturing, union membership has declined significantly over the last twenty years.⁸ During the same period — between 2000 and 2019 — the number of people on parole grew by more than 150,000, and the number of people with felony convictions swelled from 13.2 million to an estimated 24 million.

While it’s impossible to draw a causal relationship between these two trends — given the numerous factors at play — there is serious potential for exploitation of formerly incarcerated people. For example, The New York Times has reported that New Yorkers with conviction histories are shuttled into non-union construction jobs with low to no benefits. Formerly incarcerated employees placed at such companies have described being “taken aback” at the low wages, and many have had to work other jobs to supplement their pay from their day jobs in construction.

A rising number of people with felony convictions — which is the result of, among other things, overly punitive sentencing — may be depressing wages and hurting working conditions for all workers in certain industries. Formerly incarcerated workers are not to blame, especially as many have likely been working in these industries for the better part of their adult lives. Prison does nothing to improve their qualifications as workers; meanwhile, the struggle of reentry makes them more desperate for job offers, as the new data make abundantly clear.

Formerly incarcerated people need greater opportunity from today’s labor market

The new BJS data confirm that formerly incarcerated people still suffer from sky-high jobless rates (despite evidence that virtually all want to work), and that those who do find work are getting unstable jobs. Formerly incarcerated people are typically poor before they go to prison, and joblessness during reentry can push them into even deeper poverty and have a permanent impact on their wealth accumulation.

These devastating statistics have implications for workers without criminal records as well. When industries can use vulnerable workers to replace or supplement workers who demand decent wages and benefits, the price of labor declines. When burdensome supervision requirements, unnecessary occupational licensing restrictions, and a lack of social welfare programs combine to make formerly incarcerated people desperate for work, all workers suffer.

Indeed, during the labor shortages we’ve seen in 2021 and 2022, employers are turning to currently or formerly incarcerated people as a convenient solution. (And sadly, a rising awareness of formerly incarcerated people’s unjust barriers to employment has allowed some of these employers to frame their actions as enlightened.) These shifts may manifest in depressed wages, benefits, and worker protections sector-wide.

People leaving prison need expanded access to job opportunities so that successful reentry can begin immediately and provide stability, not uncertainty. Policy solutions like occupational licensing reform and automatic record expungement, as well as “banning the box” on all initial employment applications, are respectable first steps. Even better would be including those with conviction histories as a protected class⁹ in employment non-discrimination statutes. In-prison training programs for jobs in construction and similar industries may also boost employment and wages in some areas, according to some research, but it’s not a universal solution, nor does it solve underlying problems of low educational attainment and economic immobility.

It’s critical that lawmakers support workers with and without criminal records who are working together to end the exploitative practices that hurt them all. Without leveling the playing field for formerly incarcerated people, not only will their jobless rates remain high, but self-serving employers will continue to benefit from a disposable labor pool, with detrimental impacts on everyone.

New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic

Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure. But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed.

by Wendy Sawyer, January 11, 2022

The Bureau of Justice Statistics (BJS) has released a lot of new data over the past few weeks that help us finally see — both nationally and state-by-state — how policy choices made in the first year of the pandemic impacted correctional populations. Unsurprisingly, the numbers document the tragedy of thousands of lives lost behind bars, and evidence of some of the policy decisions that contributed to the death toll. Drilling down, we also see a (very) few reasons to be hopeful and, for those of us paying close attention, a few notable improvements in what the BJS is able to collect and how they report it. Above all, we see how quickly things can change — for better or for worse — when under pressure, and discuss some of the issues and policy choices these data tell us to watch out for.

Key findings from the BJS reports Prisoners in 2020, Jail Inmates in 2020, and Probation and Parole in the United States, 2020:

• Prison, jail, and probation populations dropped dramatically from 2019-2020,¹ but these drops were due to mainly to emergency responses to COVID-19, and correctional populations have already started rebounding toward pre-pandemic levels.
  
• Nationwide, states and the federal government actually released fewer people from prison in 2020 than in 2019.² The decrease in the incarcerated population was not related to releases, but rather the 40% drop in prison admissions and 16% drop in jail admissions.
• Deaths increased 46% in prisons from 2019 to 2020, 32% among people on parole, and 6% among people on probation. Jail deaths in 2020 have not yet been reported.
• Even under the pressure of the pandemic, local jails held a larger share of unconvicted people than ever, and continued to hold far too many people for low-level offenses and technical violations.
• State and federal policy responses to the threat of COVID-19 to incarcerated people varied widely, with a few states appearing to basically ignore the pandemic altogether.

It’s not all bad news: A few “silver linings” for women, youth, and others

While most of the significant changes in correctional populations are unlikely to be sustained after — or even during — the pandemic (more on that in the next section), there are a few positive changes that represent possible tipping points or reversals of seemingly intractable problems. With persistent pressure on policymakers, these changes have the potential to stick:

• Women’s prison and jail populations, and incarceration rates, dropped by a larger percentage than men’s populations did.³ This trend held in all but one state prison system (Alaska), reversing the “gender divide” we’ve observed in the past decade of decarceration efforts.
• Indigenous people experienced the greatest drop, proportionally, in jail populations and jail incarceration rates — nearly 35%. Before 2020, American Indians and Alaska Natives had been a population experiencing disproportionate jail growth, almost doubling between 2000-2019.⁴
• Probation populations were down by over a quarter of a million people in 2020, with far more people going off probation than going on it. With over 3 million people under its thumb, probation is still the leading form of correctional control, and this drop contributed most to the 11% reduction in the overall “footprint” of correctional control.⁵
• The number of youth held in adult prisons dropped by almost half (46%), and three more states joined the ranks of those no longer holding anyone under 18 in adult prisons, bringing the total to 21.⁶ Six other states that held large shares (5% or more) of the roughly 650 youth in prison in 2019 also reduced the number of youth held by at least a third in 2020.⁷

Overall, the “positive trends” in 2020 are nothing to get excited about

In 2020, we did see the kinds of reductions in the number of people under correctional control that we’ll need to see year after year to actually end mass incarceration. And these BJS reports express some of that optimism, with comments like “In 2020, the imprisonment rate was… the lowest since 1992” and “The 15% decrease in persons in state and federal prisons… was the largest single year decrease recorded since… 1926.”

Such dramatic drops in the nation’s use of incarceration would truly be cause for celebration if they weren’t temporary and if they weren’t still “too little, too late” for the thousands of people who got sick or died in a prison or jail ravaged by COVID-19. Unfortunately, there is little reason to think that these drops will be sustained in a post-pandemic world, especially since they have already begun to rebound to pre-pandemic levels, even amid some of the worst outbreaks the U.S. has seen. Above all, we should not expect these trends to hold without sustained reforms, as opposed to temporary “emergency response” changes.

Here, we offer some important context for the trends observed in 2020:

• Nationwide, jail populations have already rebounded to near pre-pandemic levels. While the BJS reports a 25% reduction in jail populations in 2020, that data only covers through midyear 2020 (i.e. the end of June). Because our work trying to shift the nation’s justice system response to COVID couldn’t wait for the official BJS data, we’ve been tracking jail population changes during the pandemic in over 400 county jails using data collected by the NYU Jail Data Initiative. Using that data, we’ve found that the populations of most jails in the sample started climbing back up after July 2020. Overall, the average population change since March 2020 among those jails had diminished to only a 7% decrease by October 2021.
• Jail populations were still too high, even when they were at their lowest in mid-2020. Even in the summer of 2020, after county and city officials had slashed their local jail populations as much as they would at any point in the pandemic (to date, anyway), 1 in 14 jails was still badly overcrowded, holding more people than their rated capacity allows. And in mid-2020, the U.S. still locked up more people per capita in jails alone than most countries do in any type of confinement facilities. That “low” rate of 167 per 100,000 residents is still more than double what it was in 1980.
• The decrease in the prison population was also temporary — and has started to bounce back up. Like the jail population changes, the 15% drop in the nation’s state and federal prison population is explained by temporary conditions caused by COVID-19, not long-term policy changes, nor even particularly intentional changes. The combination of trial and sentencing delays in courts and the refusal of some prisons to accept transfers from jails to prevent COVID transmission resulted in far fewer (40% fewer) admissions than usual. With only a few exceptions, state and federal officials made no effort to release large numbers of people from prison. In fact, there were fewer releases in 2020 than in 2019.

  

• Most of the drop in prison populations occurred within the federal Bureau of Prisons and just three states: California, Florida, and Texas. And even states that reduced prison populations didn’t necessarily reach “safe” population levels (if any prison can be called “safe”). At the end of 2020, 1 in 5 state prison systems were at or above their design or rated capacity. Even California, which reduced its prison population more than any other state (down 25,000) was still locking up more people than its prisons were designed for, and it’s only added more people since then.
• Among people “exiting” parole — either because their sentence was over, they were returned to incarceration, they died, or something else happened — roughly 1 in 5 (over 70,000) were returned to incarceration. This percentage was the smallest it’s been since at least 2005, but during a deadly pandemic that spreads easily in prisons, taking people off of community supervision and returning them to prison should not have been an option. Furthermore, the drop in re-incarceration compared to other years is most likely explained by changes in parole operations, not intentional policy choices: A quarter of agencies responding to a supplementary BJS survey reported suspending reporting requirements for at least a part of 2020.
• As with other forms of correctional control, the reduction in the probation population was due to the COVID-19 emergency, not policy changes, and probation populations were also trending up by the end of 2020. And as with parole, the 35% decrease in returns to incarceration for technical violations, while a welcome change, is largely explained by interruptions in probation operations, and therefore is almost certainly temporary. About half of the agencies responding to BJS’s supplemental survey reported that they suspended all supervision and closed agencies for a period of time in 2020.

Deeply troubling findings: Deaths as “releases” and “exits,” fewer releases amid a pandemic, and bad jail policy choices

Beyond adding context to some of what would otherwise appear to be “positive trends,” our analysis of the 2020 BJS data surfaced some deeply troubling findings about deaths in prison and on community supervision, the failure of states to release more people during the pandemic, and jail policy choices that reveal backwards priorities.

In prisons, BJS reports several disturbing changes from pre-pandemic 2019 to the end of 2020:

• Deaths in prison increased by 46% nationwide. More than 6,100 people died in prison in 2020, which was 1,930 more deaths than in 2019.⁸ California, Florida, Texas, and the federal Bureau of Prisons all saw more than 500 people die in their prisons in 2020 alone (there have been more deaths since).
  
• State and federal prisons released ten percent fewer people during the first year of the pandemic, a significant change compared to the typical 1-3% annual fluctuation in the number of releases. Some of this decrease may be explained by slowdowns in parole board functions (we see a lot of drops in “conditional” releases, which would include releases on parole), but in eight states, at least 2% of “releases” were, in fact, deaths. At a time when vaccines were not available and families, advocates, and public health officials were sounding the alarms about the extreme risks of COVID in and around correctional facilities, far more people should have been released from prisons — not far fewer.

As in previous years, there is a lot of data missing about what happens to people on probation and parole; in many states, BJS reports little about how many people complete supervision successfully, how many are returned to jail or prison, why they are returned, etc. But in 2020, one dismal trend was clear: Many so-called “exits” from probation and parole were actually deaths:

• A total of 22,573 people on probation and parole died in 2020, which represents about 2,800 (14%) more deaths than in 2019.
• Exits from parole due to death increased by 32% (1,945 additional deaths) from 2019 to 2020. This accounted for over 2% of parole “exits.”
• Exits from probation due to death increased in 28 of 38 reporting states from 2019 to 2020, an overall increase of over 6% (891 additional deaths). Additionally (and somewhat mysteriously), the number of “other” exits more than doubled (with over 50,000 more “other” exits), but there is no further detail on what those “other” exits might have been.

Getting state-by-state data, such as the BJS made available in the reports on prisons and on probation and parole populations in 2020, is key to bringing some important facts to light that would otherwise be obscured by the larger, nationwide trends. The state-specific data reported by BJS revealed that some states seemed to largely ignore the urgency and seriousness of the pandemic’s impact on correctional populations:

• Alaska’s incarcerated population actually increased by over 2% (over 100 people) in 2020. It was the only state to show an increase during this time. Worse, most of the increase was among the unsentenced (pretrial or pre-sentence) population, which means authorities made a choice to incarcerate many people who weren’t even serving a sentence.
• Nebraska’s prison population dropped only 6.6%, making it one of only three states with less than a 10% decrease. It also has the dubious distinction of being the one state to exceed its most generous measure of capacity,⁹ at 119% of its prisons’ operational capacity. Perhaps unsurprisingly, Nebraska saw a greater-than-average (71%) increase in deaths in its prisons compared to 2019.
• Five states held more youth under age 18 in adult prisons in 2020 than in 2019: Alaska, Iowa, Nebraska (where their numbers doubled), Pennsylvania, and Tennessee.
• During the pandemic, most states saw reducing incarceration for violations of probation and parole conditions as “low hanging fruit” for depopulating prisons and jails, resulting in a 35% drop in returns to prison for violations nationwide. But six states returned almost the same number of people to prison for technical violations in 2020 as they did in 2019: Arizona, Arkansas, Missouri, Nebraska, Ohio, and Virginia. Not only is locking people up for violations of conditions counterproductive for their success and much more costly, it’s a clearly unnecessary and serious health risk during a pandemic.

Finally, while BJS has not yet released data about deaths in jails in 2020, the jail data suggests some truly confounding policy choices at the local level that year:

• One change likely to have long-term implications is that jail capacity actually grew during the pandemic by quite a bit: The capacity of jails nationwide grew by 6,000 beds in one year (compare that to an increase of 700 beds the year before). With this additional capacity, authorities are able to jail over 5% more people than they were ten years ago.
• In 2020, people in jail spent an average of two days longer locked up in dangerous conditions compared to 2019.¹⁰ Overall, the estimated average jail stay has increased by a whole week (31%) between 2010 and 2020. Like the other changes in 2020, the longer jail stays in 2020 are due to changes in courts and prisons related to COVID-19. But whatever the reason, longer stays meant vulnerable people were more exposed to extremely risky jail conditions, when their exposure should have been minimized.
• People who weren’t even convicted of a crime (i.e., those held in jail pretrial) made up a larger share of the total jail population than they have since at least 1995 — probably more than in any other year. At a time when jail populations should have been reduced to the bare minimum, why were jails holding so many legally innocent people?
• In response to the pandemic, many jurisdictions aimed to reduce the use of jails for low-level offenses. But in the summer of 2020, almost 1 in 4 (23%) people in jail were still held for misdemeanors, civil infractions, or unknown offenses — that is, not felonies. Moreover, the practice of jailing people for violations of probation and parole conditions still accounted for almost 1 in 5 (18%) people in jail in mid-2020.¹¹
• Black people made up a larger share of the jail population than they have since 2015, because the 22% jail population drop among Black people was proportionally smaller than the 28% drop among white people. While the difference was not dramatic, this imbalance should serve as a reminder that decarceration efforts must always prioritize racial equity.

Conclusions

The recent data reported by BJS about prison, jail, probation, and parole populations during the first year of the pandemic drive home just how quickly things can change under pressure. By and large, the changes we saw during 2020 were temporary, but they suggest how much is politically and practically feasible when there is a critical mass of support to save lives put at risk by mass incarceration. It’s encouraging to see rapid population drops of 15-25% in prisons and jails, to see the total “footprint” of the carceral system shrink by over 10% in one year, and to see that, when pressed, states and counties can find ways to function without so much reliance on correctional control. It’s also helpful to see the weaknesses in such decision-making, which are put into sharp relief when under the same pressure: Racial equity is too often an afterthought in decarceration efforts, and local-level authorities, in particular, too often lack alternatives to incarceration for low-level offenses and supervision violations, and are too quick to lock up people accused, but not convicted, of crimes. There are many lessons for policymakers and advocates for reform in the data from 2020.

At the same time, the fact that many positive early-pandemic policy changes were so short-lived is disheartening. After all, the pandemic rages on two years later, and correctional populations continue to climb back up — what has changed? For one thing, the narrative has changed: The perception (not a reality) that criminal justice reforms have led to upticks in crime over the past few years has fueled pushback against smart policy changes. That perception is powerful, and history shows that reactionary policies can follow: In the 1980s and 1990s, the last time prison and jail populations were as low as they were in 2020, the knee-jerk reaction to (much bigger) increases in crime was to lock more people up, and for longer. There’s a lesson in that for us, too.

Ultimately, centering the facts in our ongoing discussions about safety and justice — and grounding them with context — will be key to sustaining support for any progress toward ending mass incarceration. Towards that end, the recent data from BJS summarized here about changes during 2020 are essential resources.