Deaths in state prisons are on the rise, new data shows. What can be done?

Prison systems have shown they are unprepared and unwilling to care for an aging prison population - whether by improving healthcare or expanding compassionate release.

by Emily Widra, February 13, 2020

A new Bureau of Justice Statistics report released yesterday shows that from 2015 to 2016, the number of deaths in U.S. state prisons increased from 296 to 303 per 100,000 people. What accounts for these deaths?

Chronic illnesses continue to be the leading cause of death in state prisons, according to the report — far outpacing drug- and alcohol-related deaths, accidents, suicides, and homicides combined. The number of deaths from chronic illness — including a growing number of deaths from cancer in prison, at a time when overall deaths from cancer are going down — is a testament to the extremely poor healthcare incarcerated people receive. It also highlights the ways that prisons are unable and unwilling to care for their elderly residents, who comprise a growing share of the prison population.

Sources: Bureau of Justice Statistics, Mortality in State and Federal Prisons, 2001-2016 and Mortality in Local Jails and State Prisons, 2000-2013

Prison accelerates aging and increases the risk of early death from illness

As we’ve written about previously, each year of time served in prison takes two years off an individual’s life expectancy. Evidence suggests that the reason for this is that incarcerated people experience “accelerated physiological aging.” Prison ages incarcerated people by 10 to 15 years on average, which in turn makes them more vulnerable to chronic health conditions earlier in life than would be expected. As we see in the new prison mortality data, these chronic conditions – cancer, heart disease, liver disease, and respiratory diseases – are among the most frequent causes of death in state prisons.

Researchers have identified a number of reasons why prisons increase the risk of illness and early death (for a concise review, see Novisky 2018). These include, but are not limited to: varying degrees of health literacy and capital among incarcerated people; constraints on transportation to necessary appointments outside the prison; and inadequate healthcare in prisons due to insufficient resources, limited medical providers, restrictions on medication administration, and treatment bias because of stigmas attached to incarcerated patients. And – particularly for older or otherwise more vulnerable people – punitive practices like solitary confinement compound existing physical and mental health concerns and risks.

Prisons are not prepared for the health problems and mortality of their aging populations

Nationally, the imprisonment rate for people over 45 years old has more than doubled over the past three decades while the rate for those under 45 has actually dropped slightly. Mortality has become an urgent issue in places like the Louisiana State Penitentiary (“Angola”), where the average age is over 40 and the average sentence is longer than 90 years. With thousands of aging adults facing the prospect of dying in prison in the coming years, how are prison systems preparing to handle the increased physical and psychological needs of the graying prison population? In short, they’re not preparing at all.

While the country incarcerates more older adults for longer sentences, prison systems have not adapted to the changing needs of the prison population. Despite examples of increased spending on prison healthcare, access to necessary healthcare remains inadequate. There are frequently lapses between prescription refills, as well as unmet dietary needs and unaffordable medical copays. We know that copays jeopardize the health of incarcerated populations, staff, and the public because when healthcare is unaffordable, sick people avoid the doctor, and diseases are likely to worsen and require more aggressive care. Yet most states still require copays to see medical staff behind bars. And even when incarcerated people do see medical staff, they face long waits: older adults in federal prisons wait an average of 114 days to see needed medical specialists in cardiology and pulmonology, which also puts them at risk for late diagnoses or no treatment at all.

Recent research from Prof. Meghan Novisky reveals how older incarcerated adults cope with the difficulties of accessing healthcare in prison. In her extensive qualitative study, Novisky finds that older incarcerated adults must rely on their networks – both in and outside of prison – and strategically use the limited resources available to them. Specifically, these older adults try to access health information from outside, from the prison library, and from other incarcerated people with medical backgrounds; they use the commissary and access to the kitchen to supplement the insufficient diet provided them; and they doggedly advocate for themselves with providers and through the grievance process, all in an effort to get their basic health needs met.

Beyond individual health outcomes, the financial burdens of the aging prison population can’t be overlooked: care for this population costs 2-3 times more than for their younger counterparts. The federal prison system reports spending 5 times more on medical care and 14 times more on medications per inmate in facilities with higher percentages of older inmates.

Bringing a measure of dignity to death in prison: Hospice programs

As the recent BJS report reminds us, mortality rates in prison are unlikely to slow, given the aging population and systemic healthcare problems. This reality begs the question: what does mortality behind bars actually look like for the people who are dying?

Currently, less than 4% of prisons have hospice programs. Most prisons and jails were not built with any consideration for the fact that they would house people dying of cancer, pulmonary diseases, liver failure, and dementia. But hospice has become one of the few humane attempts to address mortality in prison.

Hospice care involves a team of providers who care for people with life-limiting illnesses and their families with medical care, pain management, and emotional and spiritual support. The hospice model of care, based on a belief that every person has the right to die pain-free and with dignity, has made strides to fit into what Fleury-Steiner (2008) calls “the prison’s ‘natural environment’ of aggressive discipline and custody.”

“When speaking on end-of-life care, no one should be excluded. Dying with dignity is an essential component of our humanity and needs to be extended even into the shadows of our society.”
– Marvin Mutch, Human Prison Hospice Project

About half of these prison hospice programs use incarcerated people as volunteers or as employed (and underpaid) caregivers. They become a crucial part of the care team, given that medical staff are often spread thin and correctional officers don’t have the necessary training to provide end-of-life care. (Incarcerated volunteers who work in hospice do receive appropriate training.)

While having access to hospice care in prison is certainly better than dying there without such care, dying in prison is a bleak scenario no matter what. One hospice patient at the California Medical Facility expressed this succinctly to a New York Times journalist entering the hospice unit, greeting her with, “Welcome to death row.”

The alternative: Compassionate release

For terminally ill incarcerated people, the other option is compassionate release: the early release of individuals who are facing imminent death and do not pose a threat to the public. Compassionate release was created by Congress to release incarcerated people “when it becomes ‘inequitable’ to keep them in prison any longer.” This option allows incarcerated people to seek hospice care outside of prison, a chance for dignified death, and time with family. Moreover, it has the practical benefit of reducing medical costs to the state and federal government.

However, this more humane release mechanism is extraordinarily underutilized, for a number of bad reasons: narrow eligibility requirements, a burdensome application process, protracted hearings, third party veto power, a lack of formal timelines, reluctance of providers to provide a prognosis, lack of medial knowledge of parole board members, and no systematic procedures for tracking applications and decisions. According to The New York Times, between 2013 and 2017, the federal Bureau of Prisons approved only 6% of the 5,400 compassionate release applications received; meanwhile, 266 other applicants died in prison. Their analysis of federal prison data shows that it takes over six months, on average, for an incarcerated person to receive an answer on their compassionate release application from the BOP. In one tragic example, prison officials denied an application for someone because the BOP determined he had more than 18 months to live, despite prison doctors’ prognosis of less than six months. Two days after receiving the denial, he died. With a timeline like that, it is no wonder that the number of older adults dying behind bars continues to grow.

New BJS report reveals staggering number of preventable deaths in local jails

In 2016, over 1,000 people died in local jails - many the tragic result of healthcare and jail systems that fail to address serious health problems among the jail population, and of the trauma of incarceration itself.

by Alexi Jones, February 13, 2020

A new Bureau of Justice Statistics report reveals that over 1,000 people died in local jails in 2016, underscoring the dangers of jail incarceration. Most troublingly, the report finds at least half of these deaths are preventable, with suicide remaining the leading cause of death. These preventable deaths are the tragic result of healthcare and jail systems that fail to address serious health problems among the jail population – both inside and out of the jail setting – and of the trauma of incarceration itself.

The new report reveals that half of all deaths in jails are due to suicide, accident, homicide, and drug or alcohol intoxication, all of which are largely preventable. Once again, suicide was the leading cause of death in jails. The jail suicide rate is far higher than that of state prisons or among the American population in general.

The other half of deaths in jails are due to illness, such as heart disease or liver disease, many of which likely could have be prevented if not for the abysmal healthcare in jails.

People in jail often have serious physical and mental health needs. They are five times more likely than the general population to have a serious mental illness, and two-thirds have a substance use disorder. They also are more likely to have had chronic health conditions and infectious diseases. Moreover, many people experience serious medical and mental health crises after they are booked into jail, including withdrawal, psychological distress, and the “shock of confinement.”

Yet despite their serious needs, people in jail rarely have access to adequate healthcare. History has shown that jails are unable to provide effective mental health and medical care to incarcerated people.

For example, CNN recently published a scathing investigation into WellPath (formerly Correct Care Solutions), one of the country’s largest jail healthcare providers. The investigation found that WellPath provides substandard healthcare that has led to more than 70 preventable deaths in local jails between 2014 and 2018. WellPath, like other correctional healthcare companies, has been accused of prioritizing cost-cutting over patient health, with little governmental oversight. CNN found that WellPath doctors and nurses often denied specialized testing, medication, and treatments. They have also failed to diagnose and treat psychiatric disorders, denied emergency room transfers for urgent cases, and allowed common infections and conditions to progress to the point of fatality.

Previous research also shows that the jail environment itself can lead to serious health crises. As a report from the Department of Justice explains, “certain features of the jail environment enhance suicidal behavior: fear of the unknown, distrust of an authoritarian environment, perceived lack of control over the future, isolation from family and significant others, shame of incarceration, and perceived dehumanizing aspects of incarceration.” People in jails are regularly denied contact with family and friends through the elimination of in-person visits and the high cost of phone calls, denied access to adequate medical care and nutritious food, exposed to unbearable heat and cold, and often subjected to the torturous conditions of solitary confinement.

Moreover, jails are often understaffed and/or have inadequately trained staff, and the vast majority of people working in jails are trained as correctional officers, not health providers or social workers. Despite years of evidence that suicide is the leading cause of jail deaths, many jail staff are not even trained in suicide prevention. Worse, some jail staff display indifference toward incarcerated people’s lives, often refusing to take their health concerns seriously and cutting off access to healthcare – with fatal consequences. For example, Clackamas County Jail workers were caught on camera laughing and joking about a military veteran overdosing in his cell. Even a nurse on duty reportedly spent less than five minutes with the man, who died after authorities finally took him to a hospital.

The Bureau of Justice Statistics data released yesterday emphasizes, yet again, the dangers of even short jail stays: 40% of jail deaths occur within the first week of a person’s incarceration. Given how just a few hours or days in jail can turn deadly, the report underscores the need to divert people away from jail – especially those with mental health and substance use disorders who are at increased risk – as well as the urgency of reducing the use of pretrial detention.

Our new “best practices” guides show counties how to strike fairer contracts for jail services

Most "consumers" of telecom services in jails are families in poverty. Counties can and should negotiate contracts that treat them more fairly.

by Prison Policy Initiative, February 7, 2020

The average cost of a phone call from a Texas county jail is 44 cents per minute¹ — which can add up to hundreds of dollars a month for families trying to stay in touch — but Dallas County may soon lower its rates to 1 cent per minute. How? The county is aggressively renegotiating its contract with jail phone provider Securus, prioritizing getting the lowest rate possible for the families making the calls.

For other counties wondering how to negotiate contracts that treat consumers more fairly, we’ve just published three “best practices” guides. Our three guides cover the three most common types of telecommunications contracts in jails: contracts for phone services, contracts for video calling technology, and contracts for electronic tablets.

The simplest and best policy for a county is to pay for these services out of its general fund, thus making communication free. (Otherwise, personal wealth determines which families can stay in touch and which families can’t.)

For counties that won’t go that far, though, it’s still possible to write a jail contract that holds the vendor accountable, and allows families to stay in touch without paying dearly. Our best practices guides show how smart agencies can:

• Get the lowest rates possible for families by refusing commissions
• Protect customers from predatory fees, such as unnecessary “account maintenance” fees or high deposit fees.
• Make sure that vendors return customers’ unspent funds
• Ensure that expensive technology is never used to “replace” vital (and free) existing services
• Avoid excluding good providers from the bidding process by accident

During the contract award process, county procurement officials are often outmatched by their counterparts in the jail telecom industry — highly experienced businesspeople intent on maximizing their returns. Because of this imbalance, far too many poor families end up paying hundreds or thousands of dollars a month to stay in touch. But county governments that do their homework can get families a fairer deal.

To learn more, see our new best practices guides about:

• Phone services
• Video calling technology
• Electronic tablets

And if you are new to these issues, see our research and advocacy about phone services in prisons and jails, protecting in-person visits from the video calling industry, and exploitation on prison tablets.

Footnotes

“What percent of the U.S. is incarcerated?” (And other ways to measure mass incarceration)

Nearly one out of every 100 people in the United States is in a prison or jail.

by Peter Wagner and Wanda Bertram, January 16, 2020

We’re often asked what percent of the U.S. population is behind bars. The answer: About 0.7% of the United States is currently in a federal or state prison or local jail. If this number seems unworthy of the term “mass incarceration,” consider that 0.7% is just shy of 1%, or one out of a hundred. And a little more context shows that this fraction is actually incredibly high.

Because talking about portions of a percentage can be confusing, this concept is more often expressed as a rate: The United States currently incarcerates 698 per 100,000 people. (The rate is out of 100,000, rather than 1,000 or 10,000, because back when incarceration was much rarer you needed a larger denominator to express the rate in whole numbers. But either way, these are all different ways of expressing the same percentage.)

In some ways, though, looking at the portion of a country that is incarcerated understates the sheer size of mass incarceration, because the denominator includes many groups that are infrequently incarcerated. For example, no toddlers, few adolescents, and not very many teenagers are incarcerated.

Rather than calculating how many people in the U.S. are incarcerated, you could calculate how many adults are incarcerated (0.88%), or how many working-age adults are incarcerated (1.07%). These statistics are rhetorically useful, but are often difficult to pair with compatible data from other countries, states or topics, so they’re not used very often.

There is another way to look at the scale and uniqueness of the U.S mass incarceration experiment: Less than 5% of the world’s population is in the United States, but 20% of the world’s incarcerated people are right here:

For more perspectives on the scale of mass incarceration, see:

• Our report Mass Incarceration: The Whole Pie, which breaks down how many people are locked up in the United States, where, and why
• Our related reports looking specifically at how women and youth are locked up and why: Women’s Mass Incarceration: The Whole Pie and Youth Confinement: The Whole Pie
• States of Incarceration: The Global Context, our report showing that all U.S. states have incarceration rates higher than most independent countries
• Our state profiles pages with data about mass incarceration in your state

New report: State-level criminal justice reforms that can win in 2020

We list 24 high-impact policy ideas for state legislators looking to reform their criminal justice systems.

by Wanda Bertram, December 12, 2019

State legislatures can determine the future of mass incarceration. That’s why we just published — as we do every December — a report on 20+ winnable criminal justice reforms that state legislators can take on.

We publish this report as a PDF with links to more information and model bills, and we’ll soon send it to state legislators across the country. This year, our list of reforms ripe for legislative victory includes:

• Eliminating probation fees and regulating privatized probation services
• Banning Departments of Corrections taking kickbacks from prison retailers
• Decreasing state incarceration rates by reducing jail populations
• Repealing ineffective and harmful “sentencing enhancement” zones
• Offering medication-assisted opioid treatment to reduce deaths in prison
• Protecting in-person visits and letters from home in local jails
• Ending automatic driver’s license suspensions for nonpayment of fines and fees, and for drug offenses unrelated to driving
• Capping maximum probation terms
• Reducing or eliminating jail time for technical violations
• Reducing barriers to housing for formerly incarcerated people

Our full report on winnable criminal justice reforms includes more ideas for reducing state prison populations, eliminating burdensome costs for incarcerated people, supporting people leaving prison, and promoting public health and community safety.

Will your state be working on any of these reforms? We’re looking forward to the progress we can make together in 2020!

Prisons neglect pregnant women in their healthcare policies

Our 50-state survey finds that in spite of national standards, most states lack important policies on prenatal care and nutrition for pregnant women.

by Roxanne Daniel, December 5, 2019

This past August, released surveillance footage showed 26-year-old Diana Sanchez alerting Denver County Jail deputies and medical staff that she was in labor just hours before she gave birth to her son, alone in her cell. With her pleas ignored by staff, Sanchez was forced to give birth without any medical aid or assistance. Her experience is not isolated, as a number of reports by women in prisons and jails across the country have revealed a similar disregard for pregnant women’s basic needs.

What’s more, the documentation of pregnancies and pregnancy care is sparse, sometimes anecdotal, and rarely generalizable on a national level. The most recent data from the Bureau of Justice Statistics (BJS) was collected more than 15 years ago. In 2002, BJS found that 5% of women in local jails were pregnant when admitted. For prisons, BJS reported that in 2004, 4% of women in state prisons and 3% of women in federal prisons were pregnant upon admission. The government has not released any further national data since.

These estimates are based on the number of women under local, state, and federal jurisdiction in 2017 and the percentages of women in prisons and jails who were pregnant when admitted, as reported by the Bureau of Justice Statistics. *Note that the estimate for women in local jails is based on the jail population on a single day, not the much greater number of women admitted to jail over the course of a year.

A recent study of 22 U.S. state prison systems and all U.S. federal prisons, published in the American Journal of Public Health, found a similar pregnancy rate; roughly 3.8% of the women in their sample were pregnant when they entered prison from 2016-2017. While the rate of pregnancy in prison may have remained stable since the early 2000s, the additional 10,000+ women imprisoned since then indicates that the number of women who are incarcerated while pregnant has grown, too. As long as the mass incarceration of women endures, incarcerated pregnancies will continue to rise.

Given the scale and stakes of this issue, it is imperative that correctional systems set policies that ensure the health and well-being of pregnant women in their custody. Provisions for adequate nutrition and prenatal medical care must be codified in policy to protect against negative health outcomes, such as miscarriages and low fetal birth weights, that can impact mothers and their children for the rest of their lives.

To see the extent to which these concerns are currently being addressed, we evaluated the policies of each state’s prison system and the federal Bureau of Prisons (BOP) to screen for adherence to nationally recognized guidelines. Troublingly, many states fail to meet even basic standards.

The law is supposed to protect consumers from exploitation, but it’s not protecting people in prisons and jails

When the only way to get necessities in prison is to buy them from a single retailer, exploitation is the result.

by Wanda Bertram, November 14, 2019

As John Oliver explained in a recent episode of Last Week Tonight, people in prison are consumers too: Incarcerated people must pay for basic necessities such as phone calls, soap, and medicine, to say nothing of “luxury” items such as books. But how are consumer rights and protections different for people behind bars, and what can be done to protect these consumers from exploitation?

The Hastings Race and Poverty Law Journal has just published an article by Prison Policy Initiative volunteer Stephen Raher, presenting a comprehensive survey of consumer law issues in prisons and jails. Raher will speak about his article, The Company Store and the Literally Captive Market, at this weekend’s Consumer Rights Litigation Conference, sponsored by the National Consumer Law Center. Raher’s article explains:

• How incarcerated consumers are denied basic aspects of customer care – such as refunds for shoddy products, meaningful warranties, or even the expectation that a product will be well made. (pp. 72-76)
• How prison retail companies attempt to justify the high prices they charge incarcerated customers. For instance, prison retailers often claim that high prices are necessary because of the overhead costs associated with security. But these overhead costs — to the extent that they are real–are likely canceled out by common business functions that prison retailers don’t have to spend money on, such as advertising and operating a network of brick-and-mortar stores. (p. 25)
• How prison retail companies have avoided regulation. For instance, some prison phone companies are attempting to brand themselves as “information services” companies, a class of company subject to fewer regulations and less oversight. (p. 52)
• How prisons and jails themselves exacerbate the problem. Not only have a growing number of correctional facilities shifted the costs of incarceration onto incarcerated people (for example, by making people pay for medical supplies or clothing), they also frequently garnish portions of family members’ deposits into their loved ones’ trust accounts, making it even more expensive for people on the outside to support their loved ones. (pp. 81-82)
• What sources of protection are available. Incarcerated people and their family members may have rights under existing laws like the Communications Act, the Electronic Fund Transfer Act, or state consumer-protection statutes. Some activist groups have scored major victories under these laws, but often legal action is impossible or impractical given ubiquitous arbitration clauses and class-action bans that appear in companies’ terms of service. (p. 33)

There are also detailed discussions of data breaches impacting incarcerated people (pp. 40-44), deceptive advertising practices (pp. 36-40), and the rapidly-expanding practice of utilizing computer tablets inside prisons and jails (pp. 21-23).

Historically, there was little need for consumer protection in correctional facilities because the facilities used to provide basic necessities and incarcerated people had little need to engage in commercial transactions. But as more essential goods and services — toothpaste, phone calls, socks, etc. — are accessible only via purchase, people are faced with commercial exploitation while they are incarcerated.

Unfortunately, incarcerated people are uniquely vulnerable because in many segments of American law (like telecommunications), government regulators have taken a hands-off approach under the belief that consumers will choose companies that don’t treat them unfairly, and therefore the market will self-police. This logic has no place in correctional facilities, where phone and commissary vendors enjoy monopoly powers, and consumers have one choice: submit to an unfair transaction, or go without toothpaste or a phone call with family.

The article concludes with eight concrete policy proposals that describe how state and local governments, and federal lawmakers, can take modest but meaningful steps to protect incarcerated people and their families from unfair and oppressive commercial transactions.

The article is long and detailed, so we prepared a table of contents for it with links to the individual sections:

Table of contents

1. Background p. 5
2. Surveying the Landscape of Prison Retailing p. 9
   1. End Users p. 9
   2. Payers p. 10
   3. Facilities p. 12
   4. Vendors p. 15
      1. Telecommunications p. 16
      2. Commissary p. 17
      3. Money Transmitters, Correctional Banking, and Release Cards p. 18
      4. Tablets: The New Frontier p. 21
3. Unfair Industry Practices p. 23
   1. Masquerading as Cream: Inflated Prices and Inefficient Payment Systems p. 24
   2. What Law Applies? p. 30
   3. Terms of Service: Carrying a Bad Joke Too Far p. 33
   4. Advertising, Privacy, and Consumer Psychology p. 35
   5. Data Insecurity p. 40
4. Potential Sources of Protection p. 46
   1. Telecommunications Law p. 46
      1. Technology Has Outpaced the Regulatory Framework p. 51
      2. The New Cross-Subsidies p. 54
      3. Advocacy and Activism p. 56
   2. Financial Services Law, Money Transmitters, and Prepaid Accounts p. 58
      1. Categorizing Prepayments p. 60
      2. Financial Services Law and Prison-Related Transfers p. 61
      3. Legal Issues Related to Release Cards p. 64
   3. UDAP Statutes p. 66
      1. Prices p. 68
      2. Terms and Conditions p. 70
      3. Sales of Goods p. 72
   4. Antitrust p. 75
5. Policy Recommendations p. 76
   1. State and Local Governments p. 77
      1. Reimagine Procurement Practices p. 77
      2. Foster Competition p. 78
      3. Conduct Rulemaking Proceedings to Protect Consumers p. 80
      4. Provide Protection for Trust Account Balances p. 81
      5. Develop Independent ADR Systems p. 82
   2. Federal p. 83
      1. CFPB Regulation of Correctional Banking p. 83
      2. Congressional Action p. 84
      3. Wright Petition, Post-Remand p. 85
6. Conclusion p. 86

Welcome Jenny Landon!

Welcome Jenny Landon, our new Development & Communications Associate!

by Wendy Sawyer, November 1, 2019

Please welcome our new Development & Communications Associate, Jenny Landon.

Jenny is a 2016 University of Massachusetts graduate, with a degree in Social Thought and Political Economy. She previously worked on anti-corruption campaigns as an organizer with Represent.Us. Most recently, she honed her development and communications skills at Tapestry, a local community health organization. We’re excited to grow our team’s capacity to take on more projects with Jenny’s help.

Welcome, Jenny!

Will the Postal Service ignore its most vulnerable customers?

The Prison Policy Initiative submits a comment letter calling on the USPS to stop rounding up postage costs and to remember that low-income incarcerated people are reliant on the postal service for communication.

by Peter Wagner, October 29, 2019

Today, the Prison Policy Initiative submitted a comment letter to the regulatory agency that oversees the Postal Service’s rates. The Postal Service is proposing to round the price of a first class stamp up to the nearest 5 cents.

Our objection is not to the specific rate charged, but to the policy of rounding up to the nearest nickel. We specifically objected to the Postal Services argument that the rounding is appropriate because the annual impact on the average “household” is small. In our nine-page letter, we explain:

• Why the 2.3 million people incarcerated in the U.S. are disproportionately reliant on the Postal Service for communication.
• How much mail the typical incarcerated person sends (in perhaps the first ever national estimate of how many stamps incarcerated people purchase).
• Why the Postal Service is obligated to serve all people, not just “households.”
• Just how little income incarcerated people have, and how many hours of prison labor it would take to pay for a 3 cent rate increase caused by the Postal Service’s rounding policy.
• Why it is inappropriate to propose a rule that disproportionately impacts incarcerated people — who do not have ready access to the Internet — and only allow a narrow two week comment period.

In our letter, we explain that incarcerated people and their families represent a constituency that is uniquely dependent on letter mail sent via the U.S. Postal Service. We argue that the Postal Service’s five-cent rounding policy imposes substantial negative effects on this constituency. Unless the Postal Service is willing to create a new classification to provide reduced rates for mail sent by or to an incarcerated person, the needs of incarcerated customers should be accounted for in determining how rates are calculated.

The five-cent rounding policy has already come under fire from the federal courts. In September, a federal court rejected the Postal Service’s rationale for its January 2019 rate increase to 55 cents. (The Postal Service’s data showed that a stamp should cost 52 cents in 2019, but their new rounding rule made a stamp cost 55 cents in 2019.) Unfortunately, despite the Postal Service’s loss in court, the proposal for rates in 2020 invents a new flawed rationale to justify the discredited rounding policy. (Without the rounding policy, stamp prices would probably be 52 or 53 cents in 2020.)

How race impacts who is detained pretrial

The government hasn’t collected national data on the race or ethnicity of people awaiting trial in jail since 2002. We review the academic literature published since then to offer a more current assessment of racial disparities in pretrial detention.

by Wendy Sawyer, October 9, 2019

Being jailed before trial is no small matter: It can throw a defendant’s life into disarray and make it more likely that they will plead guilty just to get out of jail.¹ As advocates bring national attention to these harms of pretrial detention, many places – most recently New Jersey, California, New York, and Colorado – have passed reforms intended to dramatically reduce pretrial populations.

But it’s not enough to simply bring pretrial populations down: Another central goal of pretrial reform must be to eliminate racial bias in decisions about who is detained pretrial and who is allowed to go free. Historically, Black and brown² defendants have been more likely to be jailed before trial than white defendants. And recent evidence from New Jersey and Kentucky shows that while some reforms have helped reduce pretrial populations, they’ve had little or no impact on reducing racial disparities.

As of 2002 (the last time the government collected this data nationally), about 29% of people in local jails were unconvicted – that is, locked up while awaiting trial or another hearing. Nearly 7 in 10 (69%) of these detainees were people of color, with Black (43%) and Hispanic (19.6%) defendants especially overrepresented compared to their share of the total U.S. population. Since then, pretrial populations have more than doubled in size, and unconvicted defendants now make up about two-thirds (65%) of jail populations nationally. With far more people exposed to the harms of pretrial detention than before, the question of racial justice in the pretrial process is an urgent one – but the lack of national data has made it hard to answer.

While pretrial jail populations have grown to make up almost two-thirds of jail populations nationally, and Black and Hispanic defendants were overrepresented in the 2002 population, no national data have been collected since then to assess how racial disparities may have changed.

So what, exactly, is the state of racial justice in pretrial detention? And how can advocates assess racial justice in their county or state? What data do they need, and where can they find it? This briefing reviews findings from recent studies of racial disparities in pretrial decisions – including both national and more geographically-limited analyses – and then suggests sources for further research to understand and address the problem.

To assess the state of racial justice in pretrial detention since the last national survey was conducted nearly 20 years ago, I reviewed more recent academic literature – studies that utilize other data sources and offer more nuanced analysis.

Overall, the available research suggests that:

• In large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial.
• Across the country, Black and brown defendants are at least 10-25% more likely than white defendants to be detained pretrial or to have to pay money bail.
• Young Black men are about 50% more likely to be detained pretrial than white defendants.
• Black and brown defendants receive bail amounts that are twice as high as bail set for white defendants – and they are less likely to be able to afford it.
• Even in states that have implemented pretrial reforms, racial disparities persist in pretrial detention.

National data is limited and outdated

Only one publicly-accessible study uses a nationally representative sample to measure pretrial detention status by race: the Survey of Inmates in Local Jails (SILJ), which was last conducted in 2002. Considering that jails and policing practices have changed significantly since 2002, an update to this dataset – now slated for 2021 – is long overdue.

Since 2002, national studies have been limited to felony cases in large urban counties. These studies are based on the Bureau of Justice Statistics’ (BJS) State Court Processing Statistics (SCPS), data which were last collected in 2009. The data include both demographic and case characteristics for each defendant, allowing researchers to control for legally-relevant factors like offense type, number of arrest charges filed, prior criminal record, and whether the defendant had failed to appear in court before. While BJS’ own publications based on this dataset (the Felony Defendants in Large Urban Counties series) do not provide a breakdown of pretrial detention by race or ethnicity, some academic researchers have used it for that purpose. (For a full list of their studies, see the appendix to this article.)

These national studies of felony cases in large counties generally conclude that the direct impact of race on pretrial decisions is weak, but that racial bias acts cumulatively to affect outcomes, and indirectly via factors like ability to pay for bond or a private attorney. McIntyre & Baradaran’s analysis of 1990-2006 SCPS data concludes that Black defendants are over 25% more likely to be held pretrial than white defendants. The most recent SCPS data, from 2009, supports that finding: Even after controlling for age, gender, and a number of conceivably legally-relevant factors (most serious charge, prior arrests, etc.), Dobbie & Yang (2019) find that over half (58%) of the 39 sampled counties had higher rates of pretrial detention for Black defendants than for white defendants. In 5 counties, the unexplained racial gap was over 20%.

More recent, but geographically-limited, studies help fill in the gaps

More recent analyses shed further light on racial justice in pretrial decision-making, even though their samples are not nationally representative. I looked at 16 of these more geographically-limited studies, with subjects ranging from federal drug cases in the Midwest to misdemeanor cases in Harris County (Houston), Texas. In all, they include samples from 11 states spread across the U.S., and major cities including New York City, San Francisco, Philadelphia, and Miami.

Of course, no single estimate of racial disparity in pretrial detention will apply to all counties nationwide. In the studies I reviewed, the racial gap in pretrial detention between Black and white defendants ranges widely, from about 10% to 80% depending on the study and jurisdiction (that is, the county or city).

However, these studies most frequently confirm that unexplained racial disparities continue to plague the pretrial process.³ Throughout the literature, researchers report that rates of pretrial detention and receiving financial conditions of release (i.e. money bail) are consistently higher for Black and Latinx defendants (and often Native American defendants, when they are included in the analysis). Bail bond amounts, too, are consistently higher for Black and brown defendants, even though they are less able to afford money bail. Rates of release on recognizance or other nonfinancial conditions of release, such as pretrial supervision, are likewise lower for Black and brown – versus white – defendants. Furthermore, the studies that included sex and age in their analysis found that young Black males face the greatest disadvantages.

Specifically, these studies report significant racial disparities, such as:

• Most of these studies find that Black and brown defendants are 10-25% more likely to be detained pretrial or to receive financial conditions of release.
• Median bond amounts, when compared, are often about $10,000 higher for Black defendants compared to white defendants. In at least one study, the median bond set for Black defendants was double the median bond set for white defendants.
• The most recent analyses of racial disparities in pretrial detention – assessing the effects of reforms in New Jersey and Kentucky – show that pretrial assessment tools have not reduced these disparities as much as advocates hoped. After New Jersey essentially ended the use of money bail for most defendants in 2017, the total pretrial population dropped significantly, but the racial composition of the pretrial jail population changed very little. And in Kentucky, the racial disparity in pretrial release rates actually worsened after the state enacted a law requiring the use of a pretrial assessment tool.

Advocates may be able to find data about their local jails

Of course, county or city jail administrators may collect and maintain data on the racial/ethnic composition of their pretrial populations. Advocates in some jurisdictions may be able to request data about their own local pretrial jail populations, which they can compare with the overall local population for a simple measure of racial disparity. Such a comparison, however, will exclude other relevant characteristics (such as seriousness of offense or past failures to appear in court) and won’t identify what stage(s) of pretrial decision-making are affected by race (such as the decision to set a money bail amount, or how high bail was set). Nevertheless, even a crude estimate of racial disparity in local pretrial detention can help advocates draw attention to the issue and raise important questions with decisionmakers.

Where to look next for more data

Jailing Black and brown pretrial defendants more often than white defendants isn’t just unfair; it also contributes to racial disparities later in the justice process. But in order to solve this problem, local advocates and policymakers need current data about who is held pretrial in their counties and states. And in order to identify broader patterns in pretrial decision-making, we need more data at the national level as well.

Until the Bureau of Justice Statistics updates its Survey of Inmates in Local Jails – which, unfortunately, is not guaranteed to happen on schedule in 2021 due to chronic underfunding – advocates and policymakers must rely on independently-produced local studies. Academic researchers (including those referenced in this briefing) have already developed models for these local studies.

In places where there appears to be little or no data published about racial disparities in the pretrial process, advocates can partner with local academic institutions or ask state Statistical Analysis Centers for assistance. Several large-scale projects led by non-governmental organizations are also actively working to assist local jurisdictions in using their data to inform policy changes that will reduce unnecessary incarceration. For example, the MacArthur Foundation’s national Safety and Justice Challenge supports initiatives in 52 jurisdictions across the U.S. to reduce the misuse and overuse of jails. And Arnold Ventures recently launched the National Partnership for Pretrial Justice, advancing a variety of pretrial justice projects across 35 states. Measures for Justice is developing a broad, publicly-accessible database of county criminal justice data; currently it offers data from 6 states, with data from 14 more states expected in 2020. And of course, community bail funds across the country have been collecting data as they bail low-income defendants out of jail – no strings attached – and reporting high success rates that underscore just how unnecessary money bail is. These kinds of resources can help local advocates and future researchers find the data they need to measure racial disparities in pretrial justice processes, and work to eliminate them.

See the Appendix for a list of all of the sources reviewed for this briefing, with links and summaries of their findings related to racial disparities in pretrial detention.

Footnotes