A new report from the Vera Institute of Justice finds that the number of people subjected to electronic monitoring in the U.S. increased fivefold between 2005 and 2021 and nearly tenfold by 2022.
In their new report, People on Electronic Monitoring, the Vera Institute of Justice completes a massive undertaking. Collecting data from all 50 states, more than 800 counties, and the federal court and immigration systems, this report offers the most comprehensive picture of the U.S.’s electronic monitoring population to date. Ultimately, their findings provide concrete evidence to support what activists and impacted people have long argued: Electronic Monitoring (EM) is not an effective way to reduce reliance on incarceration but is “often a crucial component of highly punitive, deeply entrenched criminal legal systems.” In other words, Electronic Monitoring is a form of incarceration, not an alternative to incarceration.
Vera’s data collection reveals that EM usage has increased significantly in all sectors since 2005, culminating in more than half a million adults under surveillance nationwide by either the criminal legal system or the immigration system.
EM usage in the criminal legal system is up significantly, with more than 150,000 people on EM at any given time in state and local monitoring systems. At the state and local level, EM is most heavily used in the Midwest, at a rate of 65 per 100,000 residents, more than a third higher than in the South, the next highest region of use, where it is used at a rate of 41 per 100,000 people. However, every region across the country has seen an increase in EM usage.
Immigration accounts for roughly two-thirds of the total EM population, with around 360,000 people monitored under ICE’s Intensive Supervision Appearance Program (ISAP). Much of this astounding increase occurred between 2021, when ICE monitored around 103,000 people, and 2022. This expansion is particularly concerning as ISAP’s EM conditions can be dehumanizing and physically and mentally taxing for people seeking asylum.
Overall, this increased usage has translated to big business for the 11 EM companies that control roughly 99% of the EM industry. Vera notes this translated to more than $1.2B spent on EM in 2023 alone. In many jurisdictions, EM programs are “primarily sustained by user fees,” which can range upward of $900 per month and shift the burden of funding to those least positioned to pay it – low-income individuals and families. As we have noted, however, this massive investment in digital incarceration has not replaced our reliance on more traditional “brick and mortar” incarceration in jails but rather serves as an expansion of overall state surveillance. Vera’s researchers note that an increase in EM usage can often accompany an increase in jail population, as in the case of Detroit, Michigan, which saw a 41 percent increase in EM use coincide with a 60% increase in jail population. Indeed, the report finds that “the majority of local jurisdictions with a high EM rate also had a high jail incarceration rate.”
While some EM expansion can be traced to COVID-19 pandemic response, Vera also notes that evolving technology is a large driver of increasing EM usage. The report points out that the use of GPS devices 1 increased thirtyfold between 2005 and 2021. Advancing technology has also increased the use of programs like cell phone apps to track and monitor people, which has impacted EM populations while raising new areas of concern, such as the potential for highly personal data to be shared and compromised.
Vera finds that other problems with EM usage include limited public accountability due to the “patchwork nature” of EM programs, which operate at multiple often tangled levels; this makes it difficult to track where public jurisdiction ends and private control begins, limiting programmatic accountability to the public and elected officials. Minimal oversight, heavy privatization, and lack of regulation also enable potential corruption, and some claim opens the door for abuses and extortion.
Ultimately, Vera finds that, though EM is touted as an alternative to incarceration, this massively expanding technology “acts as another form of incarceration, relies on technology rife with defects, shifts costs onto people with low incomes, and creates harm for directly impacted people and their loved ones.” We hope advocates can use Vera’s groundbreaking research to oppose the expansion of EM in their own communities.
Footnotes
GPS monitoring devices use global positioning satellite technology to continually track and monitor movement. This is opposed to Radio Frequency devices which are generally connected to a centrally-based monitoring unit and send an alert when someone leaves its proximity. ↩
We analyzed prison policies for all 50 states and the federal prison system, and found that 16 prison systems actually impose fines — in addition to other punishments — when someone violates a prison rule. We explain why disciplinary fines and fees are bad policy, putting excessive hardship on incarcerated people and their loved ones.
In yet another example of how the criminal legal system extracts wealth from the poorest families, at least one-third of prison systems nationwide charge fines as a punishment for a rule violation. Prison administrators claim that imposing disciplinary fines, along with other punishments, helps to maintain order and reduce violence in correctional facilities. They also argue that the fines simulate outside-of-prison processes for dealing with misconduct, such as parking tickets.
Though rule violations1 and their corresponding sanctions are a common feature of incarceration, disciplinary fines and fees aren’t the way to create safe environments where people can prepare for their release. On the contrary, when prisons impose these charges and subsequently help themselves to the funds in people’s prison accounts, incarcerated people are often left with little to no money for purchasing essential items and services that the prison doesn’t provide.2 As a result, their mental and physical health suffers, creating a more volatile environment inside. Loved ones also pay the price of these fines — often literally, as a primary source of financial support.
Like medical “co-pays” and exceedingly low wages in prison, disciplinary fines and fees are little more than a means to exploit incarcerated people. Whether they’re tiered fines or flat “administrative” fees, they are an undue burden; prison is already one big financial sanction for those who are already on the lowest rungs of the economic ladder. By focusing on punitive measures that deprive people further, prisons miss the mark on what actually makes prisons safer — providing opportunity rather than taking it away. We hope advocates and policymakers will understand how disciplinary fees, which exist alongside other excessive punishments, undermine the rehabilitative goals of corrections, the safety of people inside, and the odds of success during reentry.
In the 16 prison systems we found that impose fines for disciplinary violations, it would take anywhere from a full day of work to multiple years to pay off a single fine.
Disciplinary fines and fees are used in about one-third of all prison systems
To determine just how common disciplinary fines and fees are, we combed through the publicly available policies on prison disciplinary procedures in each state and the federal prison system. We also looked at policies related to prison-controlled bank accounts (often called “inmate trust accounts”) and related fees, as well as practices relating to collecting debts. We found that at least 16 prison systems charge incarcerated people disciplinary fines or fees:
Prison disciplinary fines and fees
We examined prison discipline and “inmate account” policies in all 50 states and the federal Bureau of Prisons to determine where fines or fees are charged to incarcerated people who are found guilty of (or accept responsibility for) a rule violation. Sixteen jurisdictions either impose fines as a sanction, or charge a questionable “administrative” fee for processing a violation.
First, second, or third violations of types (02A, 03B, 05A, 16A, AND 19A) which include assault on staff, unauthorized access, having a communication device
Charge D-3(j), having a cell phone or similar device allowing communication with the outside
Account is temporarily frozen pending the outcome of disciplinary proceedings; if person is found guilty, account is permanently frozen for the amount ordered and a check for the amount ordered is written if enough funds exist.
No account deductions are made below an account balance of $10.
In addition to any other medical costs assessed, the fee is imposed for trips to the Univ. of Iowa Hospitals and Clinics (UIHC) or a local hospital caused by an incarcerated individual’s self-injurious behavior, willful neglect, etc.
Class A (most serious) violation, specifically for assault on a non-incarcerated person, “deadly instrument,” gang-related or substance-related violations
Funds may be withdrawn without a signature to meet financial obligations; all available money in spending account will be applied. If the obligation is greater than what’s available in account, future pay and money received by outside sources are garnished.
If unable to pay debts owed at release from custody, the debt will remain active should individual return to custody.
Class C offense (only assessed if three Class C offenses occur in a 30-day period)
Funds are withdrawn from account anytime balance exceeds zero. Individual with confirmed rule violation will be required to fill out a form authorizing withdrawal. Presumably, funds are withdrawn even if they refuse to sign the form, but policy does not state this explicitly.
Every jurisdiction that charges disciplinary fines or fees does so a bit differently, but taken together, a few findings stand out:
Disciplinary fines and fees are common. In 16 prison systems, we found policies referencing fines and/or fees related to confirmed disciplinary violations (where someone is found guilty or pleads guilty). In many cases, the severity level3 of the rule violation determines the amount of the fine, but in other cases there is a “flat” charge for any violation. In either case, charging fines means that some of the most innocuous behaviors — like making “loud or disturbing noises” in Kansas prisons — have a price tag.
Most prison systems impose disciplinary fines between $5 and $25, but some charge hundreds or thousands of dollars. Incarcerated people in five jurisdictions (Alabama, Arizona, Maine, Oregon, Utah, and the federal prison system) can face triple-digit fines for a single disciplinary charge: For example, Arizona’s fines start at a shocking $500 for the first instance of what they consider the most serious violations4 and go as high as $2,000. Utah state prisons impose up to $600 for a more serious “A Code” offense, and up to $300 for a “B code” offense — which can be for things like “horseplay,” or any conduct deemed “disorderly.”
Some prison systems insidiously present these charges as “administrative” fees. We found five prison systems that charge “administrative” or “processing” fees for disciplinary violations. We include them here because they’re just as punitive and unaffordable as fines. In Georgia, for example, each guilty finding for a disciplinary violation comes with a $4 fee, unless the violation is for having a cell phone or similar communication device, a harshly-punished violation in several states;5 that specific act will set someone back a $100 “administrative processing fee.” People incarcerated in North Carolina prisons, who are charged a $10 administrative fee per disciplinary infraction, collectively lost $313,000 in fees to the state’s general fund in Fiscal Year 2022 alone.6
For incarcerated people, even “small” fines and fees can be huge setbacks
Do local jails have disciplinary fines too?
Yes, at least some of them do
Although we didn’t look specifically at jail discipline policies, we’re aware of two jail systems where disciplinary violations lead to fines: In Lancaster County, Pa., records we obtained through a Freedom of Information Act request show the enormous and arbitrary range of fines collected from people locked up in the jail. Accounts showed deductions from $0.01 to over $160.
A snippet of Lancaster, Pa. jail records categorized as “Misconduct Fees” levied on people incarcerated there throughout 2022.
Meanwhile, New York City jails impose a harsh $25 fee on all disciplinary tickets, a policy unearthed by a 2015 New Republic article focused on the backwards practice of charging people for being thrown in solitary confinement.
Outside of prison, a $5 or $10 fine might seem pretty inconsequential, or even surprisingly low. (Parking tickets, for example, are generally much more costly.) But to a typical person behind bars, a loss like this represents a serious change in financial circumstances; the value of money is simply different in prison. Prisons charge people for necessities like food and hygiene products, communication with loved ones, health care, and in some cases, “room and board.”7 And prison wages hardly cover these expenses, averaging less than one dollar per hour in most jurisdictions:
Someone in Kansas, for example, would have to work for over two months in the lowest-paying prison job to pay off a $20 disciplinary fine, the maximum charged there.8
In Virginia, where any rule violation comes with a flat $15 fine, it could take 33 to 55 hours (or one to two weeks) of work to cover that cost. Of course, this math only applies to the roughly 50% of the prison population with jobs; those earning no wages have to rely on financial support from loved ones. 9
It’s also important to note that prison disciplinary and labor systems alreadydisadvantage some more than others: Black and Indigenous people, women, and those with disabilities10 tend to face prison discipline disproportionately. And research shows racial, gender and disability disparities in how prisons assign jobs. Considering disciplinary fines in this context, it makes little economic or administrative sense to continue picking these pockets.
Almost all prison systems also order restitution, but some states’ policies are excessive and inappropriate
We also found that nearly all prison systems have a policy about facility-owed restitution, or the reimbursement of costs incurred for damaged property or medical expenses that result from a rule violation. We often think of restitution as court-ordered reimbursement to civilian crime victims — and many incarcerated people face this type of debt, too — but in a prison setting, restitution serves as little more than a running tab for the state.
Many prison restitution policies require that the amount being sought reflects the actual cost of an item or service, like the requirement to present an “itemized list of expenses and/or items damaged and costs to repair or replace” in Georgia state prisons. Such efforts to justify restitution amounts might sound reasonable to an outsider, but these “reimbursements” are to state agencies for largely budgeted costs.11 For example, some prison systems pursue restitution for things like staff overtime, vehicle mileage, and workers’ compensation costs.1213 And in a shameless move only the carceral system could devise, four states (Iowa, Georgia, Nevada, and New Mexico) seek reimbursement for medical charges related to self-harm and/or suicide. The financial cost of events that happen in prisons, which are inherently violent and mentally damaging places, shouldn’t be billed to incarcerated people and their families.
Prison systems often help themselves to the money they charge incarcerated people
In order to collect monetary sanctions, prisons will garnish (deduct) a portion — in some cases, up to 100% — of money credited to an incarcerated person’s account, whether it’s their hard-earned wages, money transfers from loved ones, or economic stimulus payments.14
Fines, fees, and restitution
Learn about the differences between these financial obligations
The fines, fees, and restitution charged to incarcerated people for breaking prison rules are often rationalized by correctional agencies as parallels to the legal-financial obligations ordered by courts outside of prisons. Indeed, courts routinely impose these costs for punitive and revenue-generating purposes. But just what are prison disciplinary systems trying to imitate when they impose these costs on incarcerated people?
Fines refer to monetary punishments. Most instances of breaking the law — from felonies to misdemeanors to municipal code violations — come with some sort of fine handed down from a court system. Like other forms of punishment, fines are meant to deter people from future rule-breaking activity.
Fees are additional costs imposed on people going through legal proceedings that are meant to raise revenue. Fees shift some of the cost of court services directly to impacted people, particularly where governments are wary of raising taxes to fund basic services such as those found in a judicial branch.
Judges are supposed to impose fines and fees after considering individuals’ ability to pay, but policy and discretion vary widely. And because they’re handed down indiscriminately, many people can’t actually pay them off, especially once they’ve accumulated. The cost of pursuing collection on these legal-financial obligations, which includes jailing people for their failure to pay, has proven to be an incredibly inefficient way for governments to raise money.
Restitution, in contrast to fines and fees, is intended to compensate victims of a crime for related loss or injury. Courts will collect restitution from people whose punishment includes it, and distribute it to known victims. Like fines and fees, restitution amounts may be unaffordable to people who owe them — especially once someone enters prison. Research suggests that only a small portion of restitution is ever collected.
A common deduction rate we found in our survey of state policies was 50%: Seven states (Iowa, Kentucky, Minnesota, Oklahoma, Pennsylvania, California, and Rhode Island) deduct up to half of incoming deposits and apply it to a debt. That means, for example, that someone with a disciplinary fine debt in Pennsylvania who earns 50 cents per hour (near the maximum prison wage there) would only receive 25 cents per hour. Some of these states further complicate matters by just taking everything: Rhode Island prisons will begin collection on a debt by taking as much of the amount owed as possible, leaving an account balance of $10, and then begin garnishing 50% of subsequent deposits to cover the rest. This means that money sent in by a loved one may never actually reach its intended recipient, but instead go straight into the prison’s pocket.
A few other states’ policies (Oregon, Texas, and Wisconsin) suggest that 100% of funds are garnished (sometimes referred to as a “freeze” on an account) to cover a debt, without leaving any amount to cover basic necessities. And while nearly all prison systems claim to provide assistance to people who are extremely poor, or “indigent,” we found that prison indigence policies are too narrowly defined and limited to be very helpful.
Prison debt collection policies can also apply post-incarceration: Some prisons hold debts like disciplinary fines or facility-owed restitution on file in case of a future return to custody. And a few cases we found, corrections departments turn into collection agents — or at least threaten to do so: In Iowa prisons, for example, if someone who owes has signed an agreement, staff may pursue debts in small claims court or by seeking to garnish their state tax refunds. In Wisconsin, transfer or release “shall not terminate the inmate’s obligation to pay ordered restitution.” It’s hard to know whether prison systems actually enforce these collection policies, but the possibility looms large over people who work hard to be truly free of prison once they’re released.
Disciplinary fines and fees are just one part of an illegitimate ‘kangaroo court’ system in prisons
Disciplinary fines and fees are only a microcosm of a much larger problem with how prisons treat behaviors and “discipline.” The comprehensiveness of prison policies on rules, sanctions, collecting debts, and disciplinary hearings might suggest that prisons offer incarcerated people transparency and due process when they’re accused of a rule violation, but evidence suggests the opposite.
In fact, incarcerated people are not entitled to many aspects of due process when it comes to disciplinary hearings, like calling witnesses and obtaining counsel. Further, disciplinary hearings in prisons only require “some evidence” (in other words, any small amount of evidence) of misconduct, a much lower standard of proof than courts require in outside legal decision-making.15 This arbitrary and shadowy adjudication process only leads to hurt and mistrust; take this scenario, based on a case observed in a 2015 study of prison discipline:
A male prisoner tosses a plastic cup half-full of liquid toward a prison officer, nearly hitting her…. [T]he result, almost inevitably, will be cellular confinement (segregation) and a loss of privileges of some sort… During this time, the prisoner’s anger at the officer will potentially increase, exacerbated by the painful conditions of solitary lockdown. When the prisoner returns, he or she will make life difficult for the officer and the officer may in turn make life difficult for the prisoner. The cycle continues.
The legitimacy and credibility of prison disciplinary hearings — or lack thereof — matter because the stakes can be high. Being found guilty of a more serious violation, in particular, can change the course of someone’s incarceration drastically, through solitary confinement, the loss of earned good time, restricted access to necessary commissary items, and the potential impact on parole decisions. Prison systems should consider how this “kangaroo court” system of disciplinary hearings unfairly and harshly punishes people for behaviors that, asmountingevidencesuggests, are often brought about by the prison environment itself. When harm does occur inside, restorative justice practices present an alternative way to problem-solve, and could lead to a more trusting, safer climate.
Disciplinary fines and fees in prisons are not “accountability”
While they may imitate the broader “justice” system in some ways, disciplinary fines and fees arguably do nothing to promote a sense of accountability or safety inside of prisons. The current approach to handling prison misconduct, in which fines play just a supporting role, is infantilizing and creates bleak conditions like solitary confinement and deprivation, which in turn lead to violence and mental health problems. To make prisons safer for everyone, administrators should overhaul disciplinary processes and provide more access to and opportunities for family contact, education, healthcare, treatment, and repairing harm.
By pulling back the curtain on murky aspects of everyday prison life like discipline, we hope prison administrators and policymakers will see that incarcerated people are starved for opportunities to achieve economic, professional, and personal growth, and that disciplinary sanctions undermine these goals.
Footnotes
There are many terms for alleged rule violations in prisons: tickets, writeups, infractions, violations, disciplinary reports (or D-reports), bookings, etc. Once they are confirmed violations, through a guilty finding or plea, the corresponding punishments are typically called sanctions, or sometimes penalties. ↩
The punishments for rule violations in prison typically include other losses that put goods and services out of reach, such as being banned from commissary, visitation and/or phone use, and recreation for a period of time, removal from programs, solitary confinement, or confinement to one’s own cell. In states that do impose disciplinary fines, a combination of other sanctions is often handed down at the same time. ↩
Many prison systems have categorized rule violations in some hierarchy ranging from least to most serious, using letters, numbers, or words like “major” and “minor.” Our disciplinary policies resource page explains these categories where information is available. ↩
Arizona’s steep prison disciplinary fines are imposed for a strange subset of violations, which include assaults on staff (whether resulting in injury or not), arson, possession of a communication device or a component of one, and tampering with a lock or door. They’re not imposed for other instances of grave misconduct like assault on other incarcerated people, sexual assault, or possessing a weapon. ↩
Though having a cell phone is essential for navigating the world today, many state prisons treat possession of contraband cell phones and similar devices as one of the most serious types of misconduct, represented in some cases (like Georgia) by a heavy fine. Alabama and Arizona also come down hard on people with cell phones, at least when it comes to disciplinary fines and fees; we haven’t done a 50-state scan of states that treat this violation harshly with non-monetary sanctions. ↩
This figure came from the response to a public records request we filed with the North Carolina Department of Adult Corrections in October 2023. ↩
According to analysis from the Brennan Center, as of 2015, at least 43 states authorize room and board (or “pay-to-stay”) fees to incarcerated people. ↩
According to the ACLU’s report Captive Labor: Exploitation of Incarcerated Workers, the lowest wage paid to incarcerated workers in Kansas’ state prison system is just $0.45 per day; a $20 fine, then, would take 44 work days to pay off, assuming wages aren’t garnished for other reasons. ↩
A report from Human Rights Watch explains in detail how incarcerated people with mental disabilities have several aspects of prison environments working against them when it comes to behavior and discipline. Many correctional officers are not trained to recognize signs of mental illness and may find certain behaviors frightening or threatening; as a result, people with mental illness are punished for disciplinary violations at higher rates than general prison populations. And when those people are placed in solitary confinement for disciplinary or other reasons, they are less likely to receive treatment and more likely to engage in misconduct (or perceived misconduct) in the future. Regarding economic status, though not covered in our own report Prisons of Poverty, people with disabilities are much more likely to live in poverty or face economic hardship compared to the average American. ↩
For example, the Connecticut Department of Corrections budgets included “workers’ compensation claims” as a line item until it was consolidated with other state agencies’ claims, and the Department is required to report to the legislature its “estimated costs associated with staffing deficiencies [and] overtime costs.” In another example, Arizona’s Department of Corrections budget includes “mileage – private vehicle” in several sections. See footnote 11 for similar items in Iowa’s budget. ↩
These are just a few things included in Iowa’s far-reaching policy on prison-owed restitution. Notably, travel, workers’ compensation reimbursement, and “state vehicle operation” appear throughout the department’s budget as budgeted expenditures. ↩
While it’s easy to assume that correctional employees hurt on the job are typically injured by incarcerated people (which might justify these restitution policies to some), this may not be the case. An Inspector General report investigating the New York prison system found that “from 2015 through 2021, on average, 66 percent of all workers’ compensation injury claims did not involve contact with an incarcerated person. That is, year after year, on average, the number of claimed injuries not involving contact with an incarcerated person is almost double those injury claims that do.” ↩
Prison debt collection policies exist even in jurisdictions that don’t charge disciplinary fines, because they collect other fees not related to discipline, and collect debt on behalf of other agencies, like court systems. ↩
The standard of proof used in legal decision-making is called a “preponderance of the evidence,” which means proving that something is more likely than not to be true. ↩
Last week, the Prison Policy Initiative filed an Amicus Curae brief in a suit filed by Rights Behind Bars, who are representing Demmerick Brown, a man incarcerated in Virginia’s Red Onion State Prison.1 In August of 2020, Mr. Brown went to the prison barbershop to get a haircut and a shave. It was the height of the pandemic, and Mr. Brown was wearing a protective mask as required. Naturally, the barber asked him to remove his mask so he could shave his face. There were guards around; none of them said anything. But the next day, he received a disciplinary ticket fining him $15 for failing to wear a mask.
This truly Kafka-esque series of events led Mr. Brown to ask for a hearing to dispute the fine. When he was denied, he sued. But the District Court found that he wasn’t entitled to a hearing. The prison could take his money without ever having to justify themselves. The court said that this was because $15 was too small an amount of money to trigger constitutional protections.
What the court failed to understand is that $15, while just being the cost of a sandwich outside prison walls, represents dozens or hundreds of hours of labor inside, and people rely on the money they make behind bars to fill their basic needs and contact their families. In our brief, we drew on our years of work studying the economics of life behind bars to help the fourth circuit understand that $15 inside doesn’t mean the same thing as $15 does on the outside. In our brief, we show that:
In Virginia, the minimum wage in prison is $0.27 an hour, which means it takes 33 hours of work to earn $15. A person earning Virginia minimum wage outside of prison who worked 33 hours would earn $396. In other Fourth Circuit states, the wages are even lower: In North Carolina, $15 inside is the equivalent of 375 hours worked – on the outside, that would be $2,719.
Taking away money from someone’s account inside means taking away their ability to pay for the basic things they need to live with dignity. In Virginia, as in prisons around the country, incarcerated people rely on commissary to supplement their diets because prison diets don’t provide the necessary calories and nutrients people need, and to buy hygiene items. $15 represents multiple weeks’ worth of soap, deodorant, and other essentials. Losing $15 could also stop people from seeking health care: it represents 3 or more visits to the doctor in states that charge medical co-pays.
$15 represents hours of communication with loved ones, since almost all incarcerated people must pay in order to communicate with their loved ones on the outside. High communication costs put immense pressure on incarcerated people and their families to save every penny possible to put towards paying for the basic human right of communicating with the people that they love. This makes the money charged in arbitrary disciplinary fines and fees uniquely valuable for incarcerated people.
We hope that the Fourth Circuit will make the right decision in this case to give due process rights to incarcerated people when their money is taken away from them. It is one important step in recognizing the lived experiences of people behind bars, and their constitutional rights.
Footnotes
The Prison Policy Initiative is grateful to Covington and Burling LLP, who assisted us with drafting and filing the amicus brief. ↩
Despite the common refrain that jails and prisons are "de facto treatment facilities," most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare.
Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.1 But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.
This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be – and can never function as – healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.
Substance use disorders in jails and prisons far outpace rates in the general public
The prevalence of substance use disorders at every level of the criminal legal system points to an unavoidable fact: despite the deep unpopularity of the War on Drugs, our society still responds to substance use (and related crimes) as individual failures requiring punishment, rather than as a public health problem — and it’s not working.
Nationally, approximately 8% of people met the criteria for substance use disorders in 2019,2 but such disorders are far more common among people who are arrested (41%) and people incarcerated in federal (32%) or state prisons (49%). This means that approximately three million people with substance use disorders are locked up in any given year: at least two million people with substance use disorders are arrested annually and about half a million people in state and federal prisons meet the criteria for such disorders at the time of their admission.3
Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.
It’s difficult to see more granular trends in the data – such as the type of substances involved or the health outcomes related to these disorders – but we have some clues from nationally representative jail, prison, and mortality data.
Jails. In 2019, only 64% of all people admitted to jail each month were screened for opioid use disorder, but of those people, about 15% met the criteria for opioid use disorder. It’s likely that in jails where not everyone is screened on admission, people have similarly high rates of opioid use disorder, given the widespread extent of the opioid crisis.4 Because we cannot see the full picture through screenings alone, it’s useful to look at mortality data as well. More than 15% of jail deaths in 2019 were attributed to drug or alcohol intoxication (overdose), a significant increase from 4% in 2000 and 7% in 2009.
Prisons. Many people who use drugs and need care are arrested and jailed over and over until, finally, one event lands them in prison. We estimate that more than 578,000 people (47%) in state and federal prisons in 2022 had a substance use disorder in the year prior to their admission.5 And while the mortality rates for drug and alcohol intoxication are lower in prisons than in jails, almost 7% of all deaths in state prisons in 2019 were due to drug or alcohol intoxication, compared to less than 2% in 2009. Meanwhile, in 2019, only 4% of all adult deaths in the U.S. were attributed to drugs or alcohol.6 All of these measures point to much higher rates of substance use disorders in prisons and jails compared to the total population.
Treatment options for opioid use disorder are scarce in jails and prisons
Medication-assisted treatment (MAT) for opioid use disorder
A brief primer on MAT
Medication-assisted treatment (MAT) is widely described in medical literature as the gold standard of care for opioid use disorder. Sometimes referred to as medications for opioid use disorder (MOUD) and opioid substitution treatment (OST), MAT requires the combination of professional counseling or therapy with prescribed medications.7 There are three medications that can be used for MAT for opioid use disorder, and the FDA states that anyone seeking such treatment “should be offered access to all three options”:8
Buprenorphine: Partially activates the same brain receptors as opioids, preventing withdrawal symptoms and cravings, but additional doses can have a limited effect (known as the ‘ceiling effect’). An individual is supposed to be in “mild to moderate withdrawal” when beginning treatment. The popular medication Suboxone combines buprenorphine and naltrexone, and can also be highly effective in treating opioid use disorder.
Methadone: Fully activates opioid receptors, just like other opioids. It is only available in hospital settings or at federally certified opioid treatment programs.
Naltrexone (also known as Vivitrol): Blocks other opioids from having any effect. Importantly, individuals are required to complete withdrawal and remain abstinent for one to two weeks before starting treatment.
A significant body of research shows that MAT is more effective than other treatments – including medications alone or counseling alone – in reducing opioid use, increasing treatment participation, reducing injection drug use, and decreasing transmission of HIV and hepatitis C outside of carceral settings.
The limited – but growing – research regarding MAT in jails and prisons shows similar results. For example, the Rhode Island Department of Corrections became the first state correctional system to institute a comprehensive opioid-treatment program that involved offering MAT with all three medications to incarcerated people in 2016. After the first year of this program, statewide overdose deaths dropped 12% and post-incarceration overdose deaths dropped 61%.
Not every person who uses substances needs or wants treatment, but it is imperative that evidence-based, quality healthcare options be made available for those who do — regardless of their involvement in the criminal legal system. For people with opioid use disorder, this can include psychosocial treatment (including counseling), medication-assisted treatment (MAT), and self-help groups. In correctional settings, the availability of such options pales in comparison to the level of need.
Jails. Of the nearly 3,000 local jails across the country, less than two-thirds (63%) screen people for opioid use disorder when they are admitted. Only half (54%) provide medications for people experiencing withdrawal. An even smaller percentage of jails — 41% — provide behavioral or psychological treatment, and 29% provide education about overdose. In fact, the most effective treatment — medication-assisted treatment (MAT) — is the least commonly provided: just 24% of jails continue MAT for people already engaged in treatment while only 19% initiate MAT for those who are not.
Quality medical interventions for people that use opioids are especially urgent in jails because of the rapid and acute risk of withdrawal. Over half a million people9 entering jails across the country each year are experiencing or at risk of this life-threatening medical event.10 Importantly, the percentage of people admitted to jail who receive treatment for opioid withdrawal varies significantly between states, which likely reflects differences in both opioid use and availability of treatment.11 For instance, over 15% of people admitted to jails in June 2019 in four states – New Hampshire, New Jersey, Pennsylvania, and Washington – were treated for opioid withdrawal, compared to less than 1% of admissions in seven other states.12
Prisons. Most state and federal prisons (81%) offered some “drug or alcohol dependency, counseling, or awareness programs” in 2019, but among people in state prisons with a substance use disorder, only 10% had received clinical treatment in the form of a residential treatment program, professional counseling, detoxification unit, or MAT.13 This suggests the “drug or alcohol programming” available in prison facilities is primarily self-help or peer-based.14
Unfortunately, MAT is the least common treatment in prisons: only 1% of people with substance use disorders in state and federal prisons reported receiving MAT at any point since their admission. In North Carolina, for example, over 9,000 people admitted to state prisons in Fiscal Year 2021-22 (78% of everyone screened during intake) met the criteria for needing intermediate or long-term substance use treatment, but the clinical director of the Alcoholism and Chemical Dependency Programs reports that they are only able to treat 3,000 cases each year. The state launched a MAT pilot program in 2021, and as of January 2024, only 213 enrollees have received medications prior to release from prison.
Even when correctional facilities do offer necessary treatments, their one-size-fits-all approaches can be limiting, overlooking the specific needs of different populations. For example, women in prison are often expected to participate in treatment programs originally designed for men. Advocates report that because “there are fewer incarcerated women than men… there are fewer programs available for women serving time. If support is available, it is not always effective.”
Ineffective and punitive responses to drug use in correctional facilities
Correctional facilities’ preference for punishment does very little to actually reduce drug use and overdoses. It’s not just that officials fail to provide evidence-based healthcare–they actively ignore evidence that punitive drug interdiction policies like mail scanning and visitation restrictions are ineffective and counterproductive, too.
Mail scanning. Prisons and jails are increasingly diverting incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients.15 Administrators claim this practice will stem the flow of contraband — primarily, drugs — into their facilities, but there is no solid evidence to date that mail scanning has this intended effect.16 In addition to the emotionalconsequences and needless exploitation inherent in mail scanning, these practices result in long mail delays and the disruption of correspondence-based nonprofits, education programs, and ministries.
There are numerous examples of mail scanning failing to produce any meaningful reduction in drug use or overdoses in prisons across the country:
Pennsylvania: After instituting mail scanning, the percentage of incoming mail that the Department of Corrections reported as “tainted” only decreased by 0.1% over the course of a year. As of 2023, the rate of positive drug tests in Pennsylvania prisons is now almost 3 times higher than it was before the policy was introduced.
Missouri: In Missouri state prisons, the average number of overdoses per month increased from 34 to 39 after mail scanning was introduced in July 2022.
Virginia: Every year since the Virginia Department of Corrections began mail scanning in 2017, there have been more overdoses than in the year prior to instituting mail scanning (even while the state’s incarcerated population declined during the COVID-19 pandemic).
New Mexico: After a mail scanning policy went into effect in February 2022, a report on the Corrections Department from the state’s Legislative Finance Committee highlighted a nearly two-percentage point increase in positive random drug test results from Fiscal Year 2021 to Fiscal Year 2022 – almost doubling the positivity rate. This essentially “reverse[d] three years of reduced drug use” in the prison system, and the report authors noted that the mail scanning policy “does not appear to have reduced drug use” during the study period.
In fact, several prison systems seem to actively ignore the lack of evidence supporting mail scanning as a drug interdiction effort. The federal Bureau of Prisons has increasingly adopted mail scanning policies, reportedly following a letter from Pennsylvania congressional representatives “urg[ing] the BOP to follow Pennsylvania’s lead,” and such policies are now in place in almost every federal facility.
Visitation restrictions. There are a variety of policies in jails and prisons that restrict visitation and administrators often defend them as anti-contraband (i.e., anti-drug) initiatives. For example, in Virginia, some of these policies have included requiring visitors to change into state-issued jumpsuits without pockets, limiting approved visitor lists to 10 people, millimeter wave body scanners, and banning feminine hygiene products for visitors.17 In Washington, the latest state budget proposal betrays the state’s biases in responding to drugs in prisons: it includes $4.7 million for MAT in prisons, which is only about half of the funding it would take to meet the needs of people in custody. At the same time, the Department requested $6.5 million for body scanner staff and operations, and the budget proposal offers even more than they asked for: $7.9 million. Incarcerated people routinely face humiliating search practices – including strip searches – following visitation, but considering the prevalence of drug use inside prisons and jails, these tactics do not appear to have made a meaningful impact.
Doubling down on failure: misunderstanding drug use inside
Prison and jail administrators often cite contraband medication as the primary reason for restricting access to MAT. While “diversion” of medications18 like buprenorphine can occur in prisons and jails, there are simple, proven diversion prevention strategies that any facility offering MAT could institute, whether they are correctional facilities or community health centers. 19 We know that generally, “illicitly obtained” buprenorphine is most often used to self-treat opioid withdrawal when treatment is not available or has been denied. While there is much concern regarding diversion, an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013 revealed no overdose or death reports mentioning buprenorphine or Suboxone, consistent with previous research on New York City non-incarcerated overdose fatalities. It is clear that – just like in the community – the proven benefits of MAT outweigh the perceived risks of diversion.
Consistent with their punitive approach to drugs, many corrections officials enforce serious sanctions for positive drug tests, medication diversion, and non-fatal overdoses. Sanctions for drug use in prisons can include solitary confinement, denied visitation, 20 delayed parole hearings, loss of “good time,” reduced access to programming, facility transfers, reclassification, and fines.21 There is, unsurprisingly, no evidence that these disciplinary policies actually reduce drug use behind bars. However, it’s easy to imagine how such approaches create a dynamic in which people hide their drug use and engage in riskier, deadlier behaviors. The culture fostered by punishment does not actually address drug use — it just makes it more dangerous.
Public health research has long been clear that punishing addiction does not actually help address substance use disorders, and there is no reason that it would work in jails and prisons. People who need mental health and substance use treatment are better served in voluntary, non-carceral, clinical treatment settings.
Overdose interventions and deaths
Jail and prison administrators are right to be concerned about drug overdoses behind bars. Overdose deaths are preventable and substance use disorders are treatable, but in 2019, more than 400 people in jails and prisons died of drug or alcohol intoxication.22
Jails. In response to overdoses, some local jails have increased the availability of naloxone (an opioid overdose reversal medication also known by the brand name “Narcan”). In Maine, correctional staff in some facilities now carry naloxone on their belts rather than in a locked first aid kit. In New York City, all housing areas are required to have naloxone available.
Some jails have gone a step further: in San Diego County, the staff and people in custody have access to naloxone throughout the jail facility. In Los Angeles County jails and the Louisville Metro Department of Corrections jail in Kentucky, staff and incarcerated people have access to naloxone and receive training on how to administer it. The benefits of this dual approach cannot be overstated: in a single day in Los Angeles, two overdoses were reversed when incarcerated people administered naloxone and, over the course of a year, incarcerated people in the Louisville jail dispensed naloxone successfully to at least 24 people who had overdosed in the facility.
Prisons. The rates of death from drug or alcohol intoxication may be lower in prisons than in local jails, but they are still a serious – and growing – problem: from 2001 to 2019, the percentage of state prison deaths attributed to drug and alcohol intoxication increased from 1.2% to 6.6%. A September 2022 directive from the New York State Department of Corrections and Community Supervision requires correctional staff to administer naloxone as well as provide first aid and CPR as necessary, and includes a requirement for each facility to institute a procedure to make naloxone more accessible to staff. In Oklahoma, the State Department of Mental Health and Substance Abuse Services reported that naloxone is available “on every unit” in state prisons, and future initiatives where “every CO will have Narcan on them” are expected as of May 2023.
Making naloxone physically present in correctional facilities is a good first step, but it’s not enough. In April 2023, reporting from Filter detailed that, while correctional staff in Washington Department of Corrections facilities have access to naloxone, many are not properly trained. When interviewed, two correctional officers – incorrectly – told the reporter that “Narcan…doesn’t work on fentanyl.” The Filter story cites at least one Department of Corrections report of an overdose scene where staff were unable to locate, and were unsure how to administer, naloxone. As long as the criminal legal system continues to target and incarcerate people who use drugs, screening new admissions for opioid use, training staff and incarcerated people to use naloxone, and making naloxone available throughout facilities are the least these institutions could do.
Making reentry safer for people who use drugs
There are two crucial interventions that every jail and prison should offer upon release: free access to naloxone and appropriate, timely referrals to community-based MAT for people who received treatment while incarcerated. Yet less than one-third of local jails and far fewer prison systems offer either.
Naloxone. While naloxone is relatively inexpensive and easy to administer, in 2019, only 25% of jails provided naloxone to people being released. However, in the years following the 2019 survey, media coverage reveals that many jails – including those in Louisville, Kentucky, and Kershaw County, South Carolina – have added free naloxone vending machines near the facility exits.
In 2020, the California Department of Corrections and Rehabilitation began providing free naloxone kits and training to people preparing for release from prison. By July 2022, 95% of people released from California state prisons had received the kits and training. A handful of other prison systems have publicized similar efforts to provide naloxone on release but with little accompanying data on the success of their projects. For example, the Indiana Department of Corrections announced an initiative in 2020 to offer people released from prison the “opportunity to leave with Naloxone,” but there is little evidence available on the outcome of this program. Meanwhile, some states remain hostile to this very simple and effective intervention. In 2023, Oklahoma Governor Kevin Stitt vetoed a bill that would allow prisons to give Narcan to people upon release.23
Community referrals for MAT. In 2019, only 28% of local jails provided a community link to MAT on release. Jails need to partner with their local public health agencies to identify community-based MAT providers for people returning home. For people who started or continued MAT while in jail, uninterrupted access to that treatment is vital. These efforts must include support in navigating the often-complicated health insurance landscape. In 2019, 27% of people on parole and 23% of people who had been arrested at least once in the past year reported having no health insurance coverage. People leaving jail or prison who need MAT must have primary care providers and Medicaid, Medicare, or other health insurance set up prior to release.
Recommendations
It is clear that the criminal legal system is not suited to the task of acting as the de facto mental health and substance abuse treatment provider many claim it to be. There are at least a few areas ripe for intervention to improve this situation: reducing the number of people with substance use disorders entering the criminal legal system, instituting evidence-based practices in correctional facilities that actually reduce the risk of drug overdoses, and expanding treatment availability inside jails, prisons, and during reentry.
Prevent people with substance use disorders from entering the criminal legal system:
Address the social determinants of health and substance use. In order to reduce the flow of people with substance use disorders into jails and prisons, communities must prioritize housing, physical and mental healthcare, employment, and education. Increased funding for community-based drug treatment and other social services are crucial.
Institute effective, nonpunitive responses to drug use behind bars:
Screen for all substance use and mental health disorders. All admissions to prisons and jails should be screened for active substance use, substance use disorders, and mental health conditions.
Avoid punishments and restrictions as responses to drug use, particularly when there is no evidence that they meaningfully impact consumption and overdose. Reflexively restricting meaningful contact and relationships under the guise of drug prevention is especially harmful and counterproductive. This inevitably requires divesting from ineffective practices like mail scanning, canine drug detection, and electronic scanning equipment for visitation. There should be more focus on treatment than punishment for incarcerated people who struggle with addiction.
Invest in comprehensive MAT in jails and prisons including professional, clinical counseling, the availability of all MAT drugs, referrals to community providers upon release, and support reestablishing health insurance during reentry.
Expand treatment availability for substance use disorders:
Treatment participation must be voluntary in jail, prison, and the community. When treatment is involuntary or coerced, when people are re-incarcerated for positive drug tests, or when they’re disqualified from participation in diversion programs based on their history of substance use, treatment is less effective. Instead, as the Drug Policy Alliance recommends, treatment should always be voluntary, involve clinicians rather than law enforcement, incorporate positive incentives, and use gold-standard medication and other practices.
Treatment should begin as soon as possible. Any kind of treatment for substance use disorders and mental health conditions cannot be limited to the weeks or months leading up to release from jail or prison.
Treatment requires informed consent. Healthcare providers should seek out informed consent from all individuals who are eligible for MAT and they must have access to all treatment options.
Substance use disorder treatment — as handed down by the criminal legal system — is not working as advertised. Jails and prisons are not healthcare institutions and their mandate for punishment makes patient-centered care impossible and health outcomes worse. Instead, the United States desperately needs healthcare infrastructure that can support people who use drugs outside of carceral settings. While corrections officials request further investments under the guise of treatment, the stigma, isolation, and punishment that helped foment the present crisis persist. Our communities cannot punish their way out of public health crises, but as long as policymakers insist on incarcerating people with substance use disorders, they need to at least provide evidence-based care to those who want and need it.
Footnotes
In December 2023, for example, the Arapahoe County (Colorado) Sheriff justified an expected $46 million jail expansion project by claiming the jail needs more space to provide healthcare services to confined people: “The needs of the people that we are in custody of have changed,” Brown said. “We’re not warehousing individuals anymore. We’re treating them.” ↩
The National Survey of Drug Use and Health (NSDUH) surveys a nationally representative sample of people aged 12 and older. For the purposes of this analysis, we chose to use data collected in the 2019 NSDUH rather than the more recent 2020 survey results. In the 2020 NSDUH report, the authors cautioned that “care must be taken when attempting to disentangle the effects on estimates due to real changes in the population (e.g., the coronavirus disease 2019 [COVID-19] pandemic and other events) from the effects of these methodological changes.” Because of this warning, we elected to use 2019 NSDUH so that our results could be better compared over time and to the available criminal legal system data, which is primarily from 2016-2019. Researchers updating our work in the future, however, should note one important methodological change occurred in 2020: the 2020 survey was the first year in which substance use disorders were evaluated using criteria defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V), as opposed to the 4th edition (DSM-IV). ↩
In 2016, 47% of people in state and federal prisons met the criteria for substance use disorders prior to admission. Applying this percentage to the 2022 combined state and federal prison population of 1,230,100, we estimate that at least 578,147 people met substance use disorder criteria prior to admission. ↩
In small jails (holding less than 50 people), only 36% of admissions were screened, but they still had 15% of people screening positive. In jails with 50-250 people, about half (51%) of admissions were screened, and the percentage screening positive was higher: 19-22%. The largest jail jurisdictions (holding 1,000+ people) had higher screening rates but lower rates of positive screenings, which suggests that some smaller jurisdictions may only be screening people whom they suspected of having an opioid use disorder. ↩
In 2016, 47% of people in state and federal prison met the criteria for substance use disorders in the year prior to admission. Applying this percentage to the 2022 prison population of 1,230,100, we estimate that 578,147 people met substance use disorder criteria in the year prior to admission. ↩
Centers for Disease Control and Prevention, National Center for Health Statistics. National Vital Statistics System, Mortality 2018-2021 on CDC WONDER Online Database, released in 2021. Data are from the Multiple Cause of Death Files, 2018-2021, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. Query criteria included ages 18 and older, drug- or alcohol-induced causes of death, and data for 2019. ↩
Other substance use disorders can be addressed with MAT. For example, there are medications for alcohol use disorder (MAUD) that include acamprosate, disulfiram, and naltrexone. However, for the purposes of this briefing, we are focused on MAT for opioid use disorder (also known as MOUD) as there is little to no information about MAUD in prisons and jails. ↩
A 2019 study based on interviews with state prison representatives from 21 states found that only 7% of prisons in these states offered all three medications. The most commonly provided was naltrexone, which was provided in 36% of prisons in the survey. While any MAT is better than no treatment, there is some evidence that people who receive buprenorphine have significantly lower risk of opioid overdoses than those who receive naltrexone. ↩
This estimate is calculated based on the 5% of all jail admissions in June 2019 that were treated for opioid withdrawal with medications and the 894,030 jail admissions in June 2019. This is inevitably an undercount, as not all people admitted to jail in active withdrawal are provided with medical care. If 5% of the people admitted to jail in a single month were treated for withdrawal, that means that at least 536,400 people entering jails in 2019 met the criteria for medical intervention for opioid withdrawal. ↩
Deaths associated with alcohol or drug withdrawal (which can belethal, especially among people with multiple health concerns) are not included in the “drug or alcohol intoxication” deaths reported in the Bureau of Justice Statistics mortality data, but rather these deaths are most often included in the counts of deaths attributed to “illness” or “other,” according to the Bureau of Justice Assistance. In an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013, researchers found that drug and alcohol related deaths in jails were likely significantly underreported and that there were “roughly 50% more deaths involving drugs or alcohol than previously estimated,” including at least 87 withdrawal-related jail deaths. ↩
Kansas, Nebraska, North Dakota, South Dakota, Alaska, Idaho, Wyoming treated less than 1% of statewide jail admissions for opioid withdrawal in June 2019. ↩
Detoxification: An alcohol or drug detoxification unit where prisoners spent up to 72 hours to “dry out.”
Residential program: An alcohol or drug program in which prisoners lived in a special facility or unit designated for treatment.
Counseling and therapy: Counseling sessions with a trained professional while not living in a special facility or unit.
Self-help group: Includes peer counseling programs, such as Alcoholics Anonymous, Cocaine Anonymous, or Narcotics Anonymous, and other forms of self-help groups.
Education program: An education or awareness program “explaining problems with alcohol or drugs in any setting.”
Medication-assisted treatment: A maintenance drug, such as methadone, disulfiram, or naltrexone, that is used to “cut a high or make you sick.”
There is nothing inherently wrong with offering self-help, 12-step, or peer-counseling programming in prisons. It is only problematic when facilities only offer these types of interventions to people eligible for MAT and/or other clinical treatments ↩
Paper mail is often the cheapest and most-used form of communication for people in prison and their loved ones. ↩
In addition, there are other significant avenues through which drugs flow into prisons – including via correctional officers. The federal Bureau of Prisons reported on staff bringing drugs into facilities as early as 2003. More recently, there have been substantiated reports of correctional officers bringing drugs into an Ohio jail, a federal facility in Atlanta, and New York City jails. A 2018 report from NYC’s Department of Investigation revealed that an undercover investigator smuggled in scalpels, marijuana, and Suboxone into the Manhattan and Brooklyn Detention Centers, passing through “all screening checkpoints at both facilities without being manually searched,” even after triggering multiple metal detection devices. A 2023 report from the Office of the Inspector General in California reported that while all California Department of Corrections and Rehabilitation (CDCR) staff and contractors are supposed to be searched, these searches are often inadequate. The report also cites an agreement between the CDCR and the California Correctional Peace Officers Association that stipulates “enhanced inspections will not include a hands-on, physical search of an employee’s person or the use of canines.” ↩
In-person visitation is one of the most important factors for maintaining family and community support through incarceration and setting up individuals for successful reentry. ↩
Unfortunately, this year saw the return of many types of failed criminal legal system policies that would be more at home in 1993 than 2023. Here are some arguments to make if these zombie laws come to your state.
For the first time in over a decade, prison and jail populations increased in 2022, and state prison systems and the federal Bureau of Prisons are predicting future growth. Although there are many reasons for this – including courts returning to normal operations after the height of the pandemic – at least some of this expected rise will be the direct result of regressive policy choices made by state legislatures.
The politics we have seen surrounding crime and punishment are eerily reminiscent of 1990s “tough on crime” rhetoric: in Florida, Governor Ron DeSantis suggested that his political opponents are “pro-crime,” throughout the country; while Democrats attacked parole reform, reform-minded prosecutors, and bail reform in their 2022 mid-term election challenges. This rhetoric contradicts the facts: crime across the nation remains at record low levels, including a likely dramatic decrease in violent crime in 2023.
As our partner organizations around the country decry this resurrection of bad policy, we looked at recent legislation passed around the country to identify trends in this most recent crop of throwback laws. In this briefing, we present some of the most common kinds of tough-on-crime laws passed in 20231 and the best arguments against them, so that advocates can be ready if these trends appear in their state.
Renewing the War on Drugs
In recent years, substantial progress has been made to address and begin to reverse the harmful policies from the War on Drugs. The authors of these policies, passed between the 1970s and 2010s, created draconian mandatory minimum sentencing laws, established a racist sentencing disparity between crack and powder cocaine, and led to the incarceration of millions of people. Despite spending billions each year to enforce these policies, the drug war has not reduced drug use rates, drug prices have dropped, and overdose deaths have risen. Based on our experience with the Drug War, there is no reason to think that arrest and incarceration can stop drug use or trade.
Fentanyl now permeates the United States drug market, leading to higher risks of overdose. Experts and advocates consistently urge a public health approach to fentanyl, but, unfortunately, too many states are treating it as “Crack 2.0“, pursuing the same failed policies that sent millions of people to prison. This includes penalty enhancements for both possession and distribution of fentanyl and increased penalties for homicide charges leveled against people who provide drugs to a person who subsequently dies of an accidental overdose – often called “drug-induced homicide” laws. These laws are often levied against people using drugs together, who may or may not know that fentanyl is present in what they are using.
This year, a number of states passed laws resurrecting failed war on drugs policies:
Alabama (HB 1) created mandatory minimums for possession of fentanyl. This bill was especially concerning because it passed the legislature unanimously, suggesting that there was no meaningful debate about whether the policy would be effective.
Iowa (HB 595) increased penalties for both possession and distribution of fentanyl.
Wisconsin (AB 68) increased penalties to 60 years for reckless homicide involving delivering fatal drugs. The law would apply to people using drugs together.
Arizona and the federal government have also come close to passing retrograde drug legislation. Arizona’s legislature passed a presumptive 10 year mandatory minimum sentence for possession of as little as 2 milligrams of fentanyl; that bill was vetoed by the governor. At the federal level, the HALT Act would trigger new and increased mandatory minimum sentences for fentanyl; it has passed the House and currently sits in the Senate.
Fighting back against zombie drug policies
Advocates facing regressive drug policy changes have the benefit of decades of research showing that these policies do not work, have never worked, and cause massive harm to communities.
First, advocates can rely on the mountain of evidence showing mandatory minimums and longer prison terms do not reduce crime, drug use, or overdoses. Families Against Mandatory Minimums has compiled a wealth of resources on sentencing reform, including a handy guide to arguments against mandatory minimums. They argue that mandatory minimums create racially biased outcomes – Black people are 65% more likely to face mandatory minimum charges. Advocates can also point to the ways that lengthening prison sentences will expand prison populations in the long run.
Second, advocates can educate lawmakers on how carceral approaches fail to address the fentanyl crisis. In particular, many lawmakers believe that jails and prisons will provide treatment for opioid users – in fact, incarceration increases overdose risk, and few people receive treatment inside. Policymakers also believe they can target drug dealers with harsh penalties without harming people who use drugs. In fact, drug users and drug suppliers are most often the same people; sentencing enhancements are unlikely to affect so-called drug “kingpins” and will more likely target users and low-level sellers. Drug Policy Alliance has a great video on this subject.
Lastly, advocates can provide lawmakers with alternatives to these carceral policies. Kneejerk penalty increases are often the product of a desire to “do something” about the very real devastation that fentanyl and overdoses are wreaking in communities across the country. But doing things differently during this overdose crisis means taking a public health approach to drug use. Drug Policy Alliance has created a comprehensive toolkit on such health-centered approaches, including increasing access to treatment and harm reduction approaches like safe consumption sites and fentanyl test strips.
Criminalizing the homeless
The United States has a long history of responding to the problem of homelessness with criminalization and punishment. Homelessness has risen in recent years, driven by economic factors like increased housing costs, as well as by the COVID-19 pandemic.
As concern about homelessness rises, some jurisdictions are trying to criminalize their way out of a problem that can only be addressed with social services and housing.
In Georgia (SB 62), the state legislature passed a law requiring that municipalities enforce anti-camping laws.
Alabama (HB 24) expanded the definition of loitering to encompass more unhoused people.
Arizona also came disturbingly close to passing similar policies. A vetoed bill in Arizona (SB 1024) would have created an anti-camping law, and two other bills proposed further criminalized homeless encampments but failed.
There are dozens of ways that policymakers have targeted people experiencing homelessness. In 2021, the National Homelessness Law Center published a guide to laws around the country criminalizing homelessness; they note that as of 2021, almost every state has at least one law restricting behaviors associated with the experience of being homeless.
Protecting unhoused people from backwards policies
There’s no denying that rising housing insecurity is a genuine concern. Unfortunately, the solutions are complex, and can’t be solved by simply outlawing living outside. Advocates can help lawmakers understand the feedback loop between criminalizing homelessness and increasing mass incarceration. Further criminalizing homelessness is likely to increase jail populations – and jails are ill-equipped to address the poverty, mental health, and substance use related reasons why people are experiencing homelessness. The National Homeless Law Center’s comprehensive guide notes that criminalization harms the health and wellbeing of unhoused people, and is an extremely expensive reaction to homelessness. Incarcerating someone costs over $47,000 a year; a week in a jail cell might cost the equivalent of a month or more of housing.
Advocates can also help lawmakers find and implement successful, humane, and non-carceral approaches to this crisis. “Housing First” policies, which give people housing as the first step in holistically addressing their challenges, have been shown to interrupt cycles of criminalization and give people a path to long-term, stable housing. Housing First is part of a suite of innovative approaches to homelessness cataloged by the National Homelessness Law Center; other approaches include expanding access to affordable housing subsidies, embracing innovative housing solutions like “tiny home” communities, and preventing homelessness before it happens by reforming eviction laws and prohibiting discriminatory housing policies.
Lastly, the Homelessness Law Center notes that some policies criminalizing homelessness violate constitutional rights, and can be challenged in the courts. The Ninth Circuit has ruled that imposing criminal penalties for people who cannot obtain shelter violates the Eighth Amendment prohibition on cruel and unusual punishment. Sweeps of tent cities have been found to violate due process rights when governments destroy or confiscate personal property without notice. The courts may provide another avenue for protecting the basic human rights of people experiencing homelessness
Resurrecting failed sentencing policies
2023 saw a resurgence of so-called “Truth in Sentencing” laws. In the 1990s, federal legislation established funding incentives that encouraged states to pass laws requiring that people charged with certain offenses serve at least 85% of their sentences in prison. In the mid- to late 90s, 21 states passed these laws. These policies sometimes as much as doubled people’s actual prison terms overnight, as states that had historically allowed people access to parole after half or less of their sentences were suddenly requiring much more time in custody before parole. Notably, these sentencing structures reduce the ability of people to earn time off their sentences for good behavior or for completing programming, and therefore remove powerful incentives that support prison safety and reentry success. In 2022 and 2023:
Louisiana (HB 70) reduced the ability of people convicted of repeated non-violent offenses to earn time off their sentence for good behavior.
South Dakota (SB 146) eliminated parole eligibility for many offenses and reduced the ability to earn sentencing credit.
Arkansas (SB 495) changed sentence structures and made certain felonies ineligible for sentence credits.
In 2022, Tennessee’s SB 2248 served as a cautionary tale. Tennessee’s Department of Corrections projects that the resulting increases in incarceration will cost taxpayers at least $40 million over the next 8 years. Chillingly, when asked about these costs, the Speaker of the House simply said, “if we need to build more prisons, we can.”
The truth about “Truth in Sentencing”
Because Truth in Sentencing has been tried before, advocates have lots of resources showing that it is a failed and counterproductive policy. Research consistently shows no public safety benefit to increased incarceration, and that longer sentences do not deter crime. Research also shows that Truth in Sentencing reduces incentives for incarcerated people to complete rehabilitative programming, increases safety risks for people in prison and corrections officers, and increases recidivism. Truth in Sentencing leads directly to prison overcrowding, which causes immense suffering.
Truth in Sentencing and other “tough-on-crime” policies are often enacted in the name of crime victims. Advocates can help policymakers understand that most victims of violence prefer that money be spent on violence prevention, not incarceration.
Lastly, because of the immense expense of Truth in Sentencing policies, progressive advocates may find unlikely bedfellows in the fight against these laws. In Tennessee, the American Conservative Union opposed the Truth in Sentencing bill; voices on both sides of the aisle understand that investing in prisons is an ineffective, wasteful, and dangerous approach to public safety.
Building more prisons
States continue to invest hundreds of millions of dollars into building new prisons instead of pursuing decarceration strategies. These efforts often cite prison overcrowding or aging buildings to justify this immense expenditure – but fail to explore proven strategies to reduce the number of people behind bars. In 2023, states made major moves towards prison construction:
Arkansas (SB 495) appropriated $470 million for 3,000 new prison beds.
South Dakota (HB 1016) appropriated $60 million for a new women’s prison and $340 million for a new men’s state prison.
Montana (HB 817) appropriated $211 million for capital improvements at Montana state prisons.
Combatting prison construction
Demands for new or expanded prison construction are constant features of the criminal legal reform landscape. Often, these efforts are sold to lawmakers as either necessary or actually progressive, when in fact they are neither. Although it may be true that prison buildings are aging and that prisons are overcrowded, the most straightforward – and most cost-effective – approach to addressing these problems is decarceration. Substantially reducing prison populations can allow states to close decrepit buildings instead of spending millions renovating or rebuilding them. Around the country, states have successfully reduced their prison populations enough to close facilities; twenty-one states fully or partially closed prisons between 2000 and 2022.
Advocates arguing against prison construction can look to the detailedplans created by activists to close 10 prisons in California by 2025. They may also find the Prison Policy Initiative’s anti-jail expansion materials helpful – many of the arguments against building new jails also translate to the prison context. Even in states where active plans to build prisons are not on the table, advocates can argue for prison and jail construction moratoriums, which can give state policymakers time and space to genuinely pursue decarceral solutions, instead of investing in our failed mass incarceration system.
Undermining reform prosecutors
In recent years, many jurisdictions have elected reform-minded prosecutors (sometimes called “progressive prosecutors”) who are interested in changing the tough-on-crime policies behind mass incarceration. The American criminal legal system is designed to give substantial discretionary power to prosecutors, and prosecutors are increasingly using this discretion to roll back some of the most damaging parts of the system. These prosecutors have taken a range of approaches, from increasing access to diversion programs to creating conviction integrity units that examine the cases of incarcerated people asserting their innocence. Although some reform prosecutors have seen pushback from voters in recent years, most still enjoy widespread support.
Unfortunately, conservative state legislatures continue to try to undermine these democratically elected local officials with legislation designed to take their discretionary power away and force them to adhere to carceral policies – or risk being removed from office.
Florida Governor DeSantis has continued a trend of removing popular States Attorneys – including the state’s only Black woman state prosecutor – because of complaints about sentencing decisions and statements opposing his attacks on reproductive rights and gender-affirming health care.
In Georgia (HB 231), the state legislature created a “Prosecuting Attorneys Oversight Commission” empowered to investigate and remove local prosecutors.
In Texas (HB 17), the legislature passed a bill allowing courts to remove district attorneys for failing to pursue certain types of prosecutions.
Protecting local control of prosecutions
Advocates can help policymakers and the media understand that state legislative efforts like these undermine local elections and reduce confidence in the democratic process. Although rhetoric against reform prosecutors has been loud and sometimes extreme, it can be helpful to point to evidence that Americans are still broadly supportive of criminal legal system reform, and continue to support it at the polls. Reform prosecutor races are often high profile and hard-fought, and voters have made a clear and intentional choice to go against the status quo of harsh criminal legal system policies. Those choices should be respected.
Importantly, there is no evidence that crime has worsened under reform prosecutors. In fact, between 2015 and 2019, cities with reform prosecutors were less likely to experience a rise in homicides than those with traditional prosecutors.
Conclusion
We unfortunately couldn’t possibly cover all of the “zombie policies” cropping up around the country. Other notable examples include bills to enshrine cash bail more deeply in state law (Wisconsin), and expanding the use of non-unanimous jury verdicts for the death penalty (Florida), among many others. And by highlighting these setbacks, we don’t intend to diminish the real progress made around the country in 2023. Our Winnable Battles report details some of these successes; the Sentencing Project’s roundup of 2023 trends in criminal legal system reform highlights even more.
But the forces that seek to entrench and expand mass incarceration remain active across the country. We hope that this guide helps arm advocates with some of the arguments they need to avoid history repeating itself.
Footnotes
For the sake of brevity, this piece considers only legislation that actually passed into law in 2023. This narrow focus is not meant to discount the ongoing fights going on around the country to protect reform efforts from repeal and fight back retrograde laws that were proposed but ultimately not passed. This focus is also not meant to diminish or ignore the real progress on criminal legal system reform that has been made around the country in 2023. ↩
Child protective service agencies position themselves as providers of welfare, but their relationship to the criminal legal system demonstrates their shared role in punishing families and exacerbating the conditions that lead to system involvement in the first place.
The harmful effects of the criminal legal system on children are well-established. For years, evidence has shown that a parent’s involvement with the criminal legal system can harm kids, and incarcerating children has lifelong consequences. We’ve reported on efforts in several states to mitigate the negative impact of the criminal legal system on children but seldom discussed how the criminal legal and child welfare systems are deeply interwoven. A growing number of advocates and experts are bringing these connections to light and are organizing for momentous change. This briefing draws attention to their work to argue that, by expanding our view beyond jails and prisons to include these related systems, advocates and policymakers can safeguard against creating prisons by another name.
By the numbers: involvement in each system
Presently, the child welfare system surveils millions of families each year, many of whom are also impacted by the criminal legal system. Though data about the overlap between the two systems are faulty and likely underreported,1 data about strictly parental incarceration or child protective services2 involvement are more accessible. In our August 2022 briefing, Both sides of the bars: How mass incarceration punishes families, we explained the magnitude of the criminal legal system’s impact on children and families, noting that nearly half of people in prison are parents to minors and that 1.25 million children are impacted by parental imprisonment on any given day.3
Annual government reports illustrate the size and scope of child protective services. In 2021, nearly 4 million calls were made to those agencies, alleging that around 7.2 million children were being neglected or abused. Each year, approximately half of these calls are immediately determined to be illegitimate, lack enough information, or otherwise fail to meet the criteria for a child maltreatment report. In other words, rampant overreporting is the norm. Even when such reports are screened out, mere contact with the child welfare system can have damaging effects on families that last for decades, much like collateral consequences from brushes with the criminal legal system.
The consequences of dual-system involvement
Child welfare investigations bring parents and children in closer contact with the criminal legal system, increasing the likelihood of dual-system involvement. A 2010 study noted that there are four likely pathways to a family becoming involved with the child welfare and criminal legal systems simultaneously:
A parent’s arrest coincides with child welfare system involvement, such as an arrest leading to a maltreatment report;
A parent’s record is determined to compromise their child’s safety;
Relatives who might ordinarily be considered for next-of-kin placement (placement of a child in the temporary or long-term custody of a non-parent relative) are determined ineligible due to their record;
A child enters foster care because of issues with the temporary guardian they are staying with while their parent is incarcerated.
The limited data on dual-system involvement show that parental incarceration was listed as the reason for entry for 6% of children who entered foster care in 2022.4 Estimates range, but one 2017 study estimated that 40% of children who have been in foster care have also had a parent incarcerated in their lifetime. Parental incarceration is just one pathway to criminal legal system involvement: over half of youth in foster care will have an encounter with the juvenile legal system by age 17, a phenomenon that some have dubbed the foster care-to-prison pipeline.
Beyond quantitative data, several recent publications expose the connective tissue between the criminal legal and child welfare systems. In her recent piece for In These Times, Roxana Asgarian writes:
Critics say [the child welfare system] is more akin to law enforcement than social services, given its ability to surveil parents and hand down the ultimate punishment — terminating the legal bonds between parent and child.
Estimated percent of Black children, compared to all U.S. children, who experience each successive stage of the child welfare system’s process to separate children from their families before age 18, from investigation to out-of-home placement and termination of parental rights. To see the estimated rates for other racial and ethnic groups, see the appendix table.
Just as Black and Brown people are overrepresented in jails and prisons, their families are overrepresented at every stage of a child protective services case. Black and Indigenous parents, in particular, are over-reported and over-investigated and are more likely to have their children removed and their parental rights terminated. Black and Brown youth are also overrepresented in the foster system: In California, for example, Black children are represented in foster care at a rate of 3.7 times their proportion in the population.5 Further, Black and Indigenous children enter foster care at roughly double the rate of white children nationally. These systems not only target the same communities, but the same individuals: incarcerated people are more likely to have been in foster care previously than others, and youth in foster care are more likely to become incarcerated as adults. Involvement in one system makes families vulnerable to becoming involved with the other.
Dual punishment: Incarceration and termination of parental rights
Service plans — the behavioral modification programs that child protective services can impose on families who are involved in an active case — often require that parents attend mandated classes, see specific counselors, engage in supervised visits, and take other steps to regain their custody, all of which is nearly impossible when a parent is incarcerated. But prisons and jails are not required to accommodate the service plans that parents must follow in order to regain custody, and child welfare agencies are not required to accept available prison programming as “reasonable progress” towards reunification. Meanwhile, the clock is ticking: federal legislation mandates that states must move to terminate a parent’s rights when a child is out of their parent’s custody for 15 out of 22 consecutive months during a child welfare case, even if that separation is due to a parent’s incarceration.6
According to a 2023 study called The Relationship Between Black Maternal Incarceration and Foster Care Placement, “Parental incarceration can also qualify as an ‘aggravated circumstance,’ relieving child welfare agencies from the [statutory requirement] to make ‘reasonable efforts’ to reunify families or limiting the number of months in which ‘reasonable efforts’ must be made.” These systems intensify the impacts of each other in a feedback loop, causing parents and their children to experience multiple forms of punishment, often for the same offenses.
The same problems pervade both systems
In the absence of flourishing social safety nets, both the criminal legal and child welfare systems have become catch-all nets to address social issues that they’re not equipped to deal with. Just as many adults who are experiencing intimate partner violence call the police not to report a crime, but because they need crisis management, child welfare reports are often used to mediate interpersonal conflict. Reports of people weaponizing child welfare reports during disputes, or making retaliatory reports to gain leverage during custody battles, are common.
Both systems respond to substance use or mental health challenges with punishment, not treatment. Much like treatment mandates handed down by drug courts ignore research indicating treatment is less effective when it’s coerced,7 the same ineffective requirements are imposed on parents in child welfare cases. These requirements often feel more like punishment than help, and they fail to give parents real agency or choice. If the alternative to accepting treatment is becoming incarcerated or losing custody of your child, who is in a position to refuse? Child welfare agencies don’t make treatment affordable or accessible, failing to consider a parent’s schedule, life responsibilities, and transportation options. Further, parents are frequently required to pay for their mandated treatment, even though financial insecurity often leads to their involvement with the system in the first place.
State registries, much like those in the criminal legal system, have become commonplace, too. However, the threshold for appearing on a child welfare registry in many states is even lower: state central registers document substantiated and unsubstantiated allegations, not just findings of guilt. As is the case with an arrest or conviction record, or being listed on the sex offense registry, inclusion in the state central register can create future obstacles to accessing employment and child custody. In this way, both systems operate as agents of surveillance, not justice.
Over three-quarters of child welfare cases in 2021 alleged neglect, a vaguely-defined term that is often used to blame to parents for having insufficient resources to care for their children.8 Rather than using the child welfare and criminal legal systems to punish parents who are facing resource scarcity, advocates are tackling the resource gaps that led families to become system-involved in the first place by providing direct cash assistance. Family policing abolitionists want to confront child abuse while providing solutions that resource parents and communities and keep them united with their children. They question the true function of the family regulation system and point to how it worsens many of the issues seen in the criminal legal system.
In the last several years, anumberofgroups have emerged to formalize Black mothers’ longstanding efforts to resist state interventions and family separation and repeal the Adoption and Safe Families Act. These and other coalitions of advocates have been working towards expanding representation for impacted parents and attempting to create Miranda Rights for those under investigation by New York’s Administration for Children’s Services. In 2019, New York passed legislation to limit the scope of its state central register by raising standards of evidence for being placed upon it, creating new and shorter pathways to sealing a record, and options to mitigate its effects on employment.
Universal basic income pilots for formerly incarcerated people, such as those in Chicago and Durham, show promise at improving post-release outcomes and decreasing recidivism rates.10Financial assistance for families reduces rates of child maltreatment, and California is exploring how basic income programs can improve outcomes for young adults leaving foster care.
Breaking the cycle: applying lessons from both systems
Dispelling the myth that most harm against children is caused by “criminally-minded” individuals whom courts can pathologize and punish away requires addressing the material causes of child maltreatment. In the 70% of child welfare cases that are strictly for neglect, that means addressing poverty. In every case, that means contending with the barriers that prevent people from obtaining quality mental and physical healthcare and the structures that bar parents from getting the support they need to be their best selves for their kids. If child maltreatment is a structural issue rooted in poverty and interpersonal violence, then structural solutions are necessary to alleviate both.
The child welfare and criminal legal systems are failing to provide families with the safety and transformative resources that they need. Both systems surveil, regulate, and punish people, and do nothing to transform their conditions. Both are fraught with racist and bureaucratic structures that formalize the repression of Black and Brown families. And neighborhoods that have frequent contact with child protective services and police often suffer from fraught and less trusting community relationships, pushing them further from, not closer to, true public safety.
Because they are so intertwined, each system’s damaging impacts can and should be remedied concurrently: advocates are fighting to better resource families before they ever come in contact with them; they are shrinking their footprint in schools, healthcare, and other public services that surveil them; and they are ensuring better representation for families who are already ensnared. Policymakers must look to these advocates as leaders and respond to their calls for more resources and less punishment.
Criminal legal system reformers’ work can be strengthened through solidarity with people who are fighting family policing and regulation. They provide prescient guidance about the pitfalls of investing in supposed “helping” alternatives to incarceration that produce more mandated programs, surveillance, and criminal legal system involvement. Their work inspires advocates to think more critically about the true meaning of community safety and invites us all to expand our focus from “fixing prisons and jails” to ending the systems of oppression that built jails, prisons, and their welfare system counterparts in the first place.
We are using “child protective services” and “child welfare agencies” to refer to state agencies that respond to alleged acts of child abuse and neglect. However, we should note that these agencies often go by a variety of names in different states; for example, Wyoming’s agency is called the Department of Family Services, and in Ohio, it’s called the Ohio Department of Job and Family Services. ↩
On a given day, an estimated 1.25 million minor children have a parent incarcerated in a state prison. This estimate excludes those with parents in federal prisons and locally-operated jails, and overlooks the ongoing impacts of prior parental incarceration and collateral consequences from past arrests or convictions. ↩
This data covers Federal Fiscal Year 2021, which ranges from October 1, 2021 to September 30, 2022. ↩
Black, multiracial, and Indigenous (i.e., American Indian or Alaska Native) youth are overrepresented nationally, compared to their shares of the total youth population. White, Asian, and Latino (or Hispanic) youth are underrepresented nationally, though Latino (or Hispanic) youth are overrepresented in some states. By using this Adoption and Foster Care Analysis and Reporting System Data Dashboard, you can change the “Data Display” to look at different rates of disproportionality by area and race. ↩
Six states prohibit filing for termination of parental rights solely due to incarceration. ↩
The literature is mixed but largely inconclusive as to whether compulsory treatment for substance use disorder is effective. A large meta-analysis from 2008 revealed that voluntary treatment, as compared to mandatory or coerced treatment, produced the largest treatment effect (non-recidivism) in participants. Meanwhile, the advocacy group Physicians for Human Rights has pointed out that mandatory treatment can be ordered for people for whom it’s not appropriate, and take opportunities away from people who are seeking it voluntarily. ↩
According to an analysis of statutory definitions of child neglect that looked at laws in all 50 states, “in many cases, neglect definitions contain vague or subjective descriptions of parental acts or omissions and do not require evidence of serious harm or imminent risk of serious harm.” Often, these subjective descriptions are suggestive of scarcity more than anything else: In New Jersey, for example, this includes “failure to provide ‘clean and proper home.'” ↩
The concept of “mandatory supporting” is an idea that was initially conceptualized by Joyce McMillan of JMAC for Families. ↩
Cumulative prevalence of child welfare system contact before age 18 by race or ethnicity
Estimated percentages of U.S. children, by race or ethnicity, who experience each successive stage of the child welfare system’s process to remove children from their families, from investigation to out-of-home placement and termination of parental rights, before the age of 18 (“cumulative prevalence” rates).
All U.S. children
American Indian or Alaska Native children
Asian or Pacific Islander children
Black children
Hispanic or Latino children
White children
Source
Investigation of alleged maltreatment before age 18
New data on the overuse of probation and parole, insights into the racial disparities in prisons and jails, and much more. Here are the highlights of our work in 2023.
2023 was a big year at the Prison Policy Initiative. We exposed how the overuse of probation and parole serves to extend the prison walls into our communities, produced new datasets and graphics that show just how vast the racial disparities in prisons and jails actually are, and highlighted how the same companies that profited off of over-priced prison phone calls have moved into the e-messaging industry. Didn’t catch everything we published in 2023? We’ve curated a list of some of our best work from this year below.
We released an update of our flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.
Women experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. To fill these data gaps, we also released an updated Women’s Whole Pie report in partnership with the ACLU Campaign for Smart Justice, which includes richly-annotated data visualizations about women behind bars.
Our report shows the full picture of correctional control in the U.S., with a particular focus on the overuse of probation and parole. It includes data for all 50 states and D.C. on the number of people under correctional control, including community supervision. We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems. Our findings raise the question of whether probation and parole systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.
To better understand the explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation. Our review found that, despite its potential to keep incarcerated people and their families connected, e-messaging has quickly become just another way for companies to profit at their expense.
We released new data visualizations and updated tables showing the national landscape of persistent racial disparities in state prisons and local jails. Unlike other datasets, ours provides apples-to-apples state comparisons in three formats: counts, rates, and percentages. Using this data, we’ve updated over 100 of the key graphics on our State Profile pages, showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compares to the total state population.
Twenty states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex-related offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence. This deep dive into recently-published data from a survey of individuals confined in an Illinois civil commitment facility sounds the alarm about how these “shadow prisons” operate and the high rates of violence and trauma that people detained in the facilities are subjected to.
Our briefing examines the inhumane, costly, and counterproductive practice of locking up older adults. The U.S. prison population is aging at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.
Our briefing assesses the legislative action taken by 12 states and the federal government to address the growing crisis of family separation caused when a primary caregiver is incarcerated. All too often, incarceration destroys family bonds as parental rights are terminated or children end up in foster care. We explain how advocates across the country are fighting for creative and holistic solutions.
With parole board practices in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We surveyed 27 states and found only 7 saw an increase in their parole approval rate since the pandemic began, and almost every state held substantially fewer hearings than in years past.
In response to a move by New York prison officials in May to introduce a policy to effectively suppress prison journalism, we released a briefing building off of data from the Prison Journalism Project that detailed restrictions on prison journalism in prison systems across the country. Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death.
Adding to our 50 State Profile pages, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate and more than four times higher than the state and federal prison incarceration rate of white people. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.
Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. In a May blog post, we reviewed a new National Conference of State Legislatures report that outlines the experiences and recommendations from states that implemented anti-prison gerrymandering reforms in the 2020 redistricting cycle. The report makes clear that state officials agree that prison gerrymandering is important, worth fixing, and the Census Bureau should be responsible for ending it. With roughly half of U.S. residents now living in a state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear. But will the Bureau listen?
This is only a small piece of the important and impactful work we published in 2023 and our work is far from over. We’ve got big things planned in 2024, when we’ll continue to expose the broader harms of mass criminalization and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.
More than 9,000 people were eligible for hearings in California last year, though the state abolished discretionary parole in 1977. With grant rates among the lowest in the nation and people forced to wait up to 15 years between hearings, the Golden State's parole system is far from glittering.
In 2019, we graded parole release systems across the US. Though no state performed particularly well, the 16 states that have mostly abolished discretionary parole since 1976 received our lowest grade, an F-. California was among them. Advocates from California asked us, however, to take a closer look at California’s parole system. Unlike other states that have abolished discretionary parole, California’s discretionary parole system since 2014 has significantly expanded eligibility for a large number of incarcerated people who meet certain criteria, and more become eligible each year.
We revisited California’s existing parole system to see how it would score using criteria we reserved for states with discretionary parole. In keeping with our more recent parole research, we also examined recent trends in the state’s parole process to see how it is being (mis)used and how often parole hearings actually result in release. While California may score slightly better this time around, ultimately, it still merits a solid “F.”
What makes California different from other states that have abolished parole?
California replaced parole with determinate sentencing for most people in the state’s prison system in 1977.1 As in the 15 other states that have done this, discretionary parole was not entirely abolished. Almost all states that have abolished discretionary parole still retained it for small slices of their prison populations. However, California differs from other states that have abolished parole because it largely determines who is still eligible for parole based on criteria other than the the date that someone was sentenced. When California moved to a determinate sentencing scheme in 1977, it retained life sentences with the possibility of parole for the most serious offenses, such as murder and kidnapping with ransom.
In the other states that abolished discretionary parole, the only people still eligible for parole are those who were “grandfathered in” — that is, who were sentenced before parole was abolished.2 In these states, the number of people eligible for parole shrinks every year, as people are released or die in prison. This is not true in California, where people sentenced for certain very serious felonies and some people sentenced under the Three Strikes Law can still receive life sentences with the possibility of parole. Every year, new people are sentenced who will eventually become eligible for parole. Due to new laws since 2014 that have significantly expanded parole eligibility, including for the elderly and people sentenced as youths, other people can also now become eligible for parole based on factors like their current age, age when convicted, and the amount of time served. As a result of these new laws, almost all incarcerated people now have an opportunity for parole release during their lifetime.
What does parole look like in California?
Every state differs, though elements of California’s parole process are similar to others. In a nutshell,3 the Board of Parole Hearings determines when a person becomes parole-eligible and sets an initial parole suitability hearing. Like in other states, the Board considers factors such as the offense, institutional records, and the results of a comprehensive risk assessment. They often consider input from the DA and survivors of violent crimes. People have access to legal representation, though in 2021, those with state-appointed attorneys were granted parole at half the rate of those with private counsel, which many cannot afford. Unlike Alabama, which denies incarcerated people any access to the parole board, California interviews the person, generally via video. If the Board makes a decision,4 they either grant release or deny it, in which case the person won’t get another hearing for between 3 to 15 years. The number of times the board may see a person is bound only by the duration of their sentence, so those with lengthy or life sentences are often reviewed and denied many, many times.
How many people does this affect?
In 2022, there were 9,017 scheduled hearings, up 49% since 2019, when there were 6,061. Meanwhile, the prison population in the state dropped by around 21%. Not only did the percentage of the prison population that was eligible for parole actually increase from around 5% in 2019 to more than 9% by 2022, but it made up almost a quarter of everyone who was eligible for release from California prisons by any means that year. Because of California’s low grant rate, however, people released on parole accounted for just 4% of all people released from California prisons in 2022.
Parole grant rates 2019-2022
California has made several recent moves to expand parole eligibility. However, these efforts appear to have been undermined by a parole board reluctant to release anyone. California’s actual grant rate,5 the percentage of scheduled parole suitability hearings that resulted in parole approval, was just 14% in 2022, barely above South Carolina (13%) and Alabama (10%) for the worst among those we examined.6
From 2019 to 2022, California’s actual parole grant rate fell 29%. Additionally, while hearings increased significantly, the vast majority of new hearings resulted in non-decisions, which increased by 75%, and denials, up by 41%. Ultimately, nearly 3,000 more hearings resulted in only 75 more people being released in 2022 compared to 2019, making the likeliest outcome of a parole hearing in California, by far, continued incarceration.
Grading California
Even adjusting for its limited use of discretionary parole, California’s parole system is more box office bomb than Hollywood hit. Overall, the state scored just 60 out of 120 possible points, earning only a slightly higher F than in the original report. While there were a number of issues here, three stood out as particularly egregious:
Prosecutorial influence: Prosecutors often attend hearings and heavily influence the outcome. In 2022, prosecutors attended 60% of hearings held. The hearings attended by prosecutors resulted in about 24% fewer grants than when prosecutors did not attend.
Extremely lengthy time between hearings after denials: Incarcerated people have to wait a minimum of three years and sometimes up to 15 years between denials.
Unequal weighting of risk-assessment results: While California does issue a detailed annual report, there are massive deviations between the risk-assessment results, which are supposed to weigh heavily on the guidelines, and actual hearing outcomes. In 2022, people deemed “Low Risk” were paroled only 65% of the time, while folks with “Moderate Risk” were granted parole only 22% of the time, and those deemed “High Risk” were almost never paroled <1%. This suggests that negative risk assessments weighed far more against people than positive risk assessments did in their favor.
Moving forward: Ways California could improve its system
Reduce the time between all hearings to no more than 1 year: Setting time between denials to up to 15 years fails to take into account changing policies, people, or parole board compositions. Additionally, the discrepancy in time between denials vs. time between waivers (1 to 5 years) encourages people to self-select.
Eliminate reliance on “fixed-moment factors” and increase focus on objective factors that are better suited to measure personal growth and mitigated risk. Like many parole boards, California’s guidelines for parole consideration place heavy emphasis on “fixed-moment factors” — such as the crime of conviction, the person’s actions, and even their mental state during the commission of the crime — which are unchangeable regardless of effort on the part of the incarcerated person or the passage of time. These are ill-suited to measure things like personal growth or the risk a person might pose if released.
Conclusion
Though partially abolished almost 47 years ago, California’s discretionary parole system is alive and unwell as 2023 draws to a close. More and more people find themselves parole-eligible each year, and many are denied their chance at freedom and are forced to wait a decade or more before applying again. Ultimately, though parole does exist in some form in California, it is far from being at the head of the class.
Footnotes
Determinate Sentencing describes a fixed-sentence system where people have a set number of years to do, and do not have the ability to be individually evaluated for early release. Their release date may be modified by awarding time credits for things such as good conduct or program completion or by revoking them generally for disciplinary reasons. Truth-in-sentencing laws have severely limited and, in many cases, have eliminated entirely the amount of time credit that can be earned. ↩
Some states have more recently expanded discretionary parole, largely for juvenile lifers after a set amount of years. While this work is certainly worth noting, these moves have generally had a more limited effect. ↩
In 2022, only 49% of scheduled hearings resulted in grants or denials. The majority resulted in “non-decisions,” outcomes where no decision is made to grant or deny parole, either due to continuances or to “voluntary” waivers and stipulations — 29% of all outcomes in 2022. For context, a “voluntary waiver” allows a person to waive their hearing for between 1-5 years. In contrast, a denial at a parole hearing means they must wait 3, 5, 7, 10, or even 15 years for another chance at parole. This disparity creates a coercive situation for incarcerated people that is akin to a plea bargain system — if a person fears they are likely to be denied parole, they are strongly incentivized to waive a hearing rather than risk a far lengthier time in custody. While these waivers are described as “voluntary,” we think it would be disingenuous to ignore the coercive nature of the system. ↩
“Actual Grant Rate” is determined by dividing the number of parole applications granted by the number of scheduled hearings in which release is a possible but not mandated outcome. While California notes both actual grant rates and “grant rates for hearings held”–which only include approvals and denials–in annual reports, like in many states, the latter metric is more publicly used. Omitting outcomes where no decision was reached (non-decisions) artificially raises the reported grant rate. Non-decisions, however, always result in continued incarceration. ↩
Neither Alabama nor South Carolina includes non-decisions in their calculations, meaning that their actual parole grant rates are likely considerably lower. ↩
Recently published data from the Bureau of Justice Statistics show growing prison and jail populations, but this has little to do with crime. Instead, the trend reflects court systems’ slow return to “business as usual” and lawmakers’ resurrection of ineffective “tough on crime” strategies.
The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?
To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.
Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decadesofevidence that such policies don’t enhance public safety.
Upward trends in prison and jail populations in 2022
Prisons
The new BJS data show that the total national prison population grew by over 2%, with 42 states and the federal Bureau of Prisons (BOP) incarcerating more people at the end of 2022 than 2021. In 14 states, the prison population grew by 5% or more,1 with just 9 states (mostly in the South) and the BOP accounting for 91% of all prison growth nationwide.2 The number of imprisoned women grew proportionally more than the number of imprisoned men (up 5% compared to 2%). At the end of 2022, 16 states held 90% or more of their pre-pandemic (2019) prison populations.
Just like the prison population changes we saw during the early and mid-pandemic (2020 and 2021), these increases were driven by changes in admissions more than anything else: 11% more people — about 48,000 more — were sent to prison in 2022 than in 2021. One narrow silver lining from this update: The number of people released from prisons increased for the first time since 2015; unfortunately, this was only a tiny increase of 1% compared to 2021. (As we recently reported, parole boards have been approving fewer people on discretionary parole in recent years, and compassionate release systems are woefully under-utilized.)
Local jails
Local jail populations grew at an even faster pace than prisons in 2022; jails held 4% more people at the end of June 2022 than at the end of June 2021.3 The women’s jail incarceration rate grew 9% compared to 3% for men, and Black, American Indian or Alaska Native, and Native Hawaiian or Pacific Islander4 rates all rose proportionally more than white and Hispanic jail rates.
As with prisons, jail growth was driven by a nearly 7% increase in admissions over last year. The pretrial population was almost back to its full pre-pandemic size (at 97%); more than 70% of people in jail had not been convicted of a crime. Another contributing factor to jail growth: the use of jail detention as a response to probation violations, up 5% compared to 2021. During the pandemic, many jurisdictions reduced their use of jails for punishing these typically low-level, noncriminal violations, but it appears that costly practice is “back to normal.”
A preliminary look at 2023 and beyond: Prison and jail populations continue to grow
In an effort to see whether the growth trend in jail and prison populations has continued since the BJS collected data in 2022, we looked for more recent data. While the data we found are neither complete nor perfectly comparable to those published by the BJS,5 we were able to look at year-to-date 2023 jail data from the Jail Data Initiative and at 2023 prison population data published by 42 states and the federal Bureau of Prisons (BOP). (For the 2023 prison data we found, see the Appendix table.)
What we found was troubling but not surprising:
The jail data, collected from 942 jails across the U.S., show another modest (0.7%) increase in the average daily population in 2023 compared to 2022.6
In two-thirds (28) of the 43 prison systems for which we found more recent prison data, it appears that even more people were incarcerated in 2023, with at least six states again showing increases of 5% or more over their 2022 populations.7
At least two of the eight states where prison populations shrank in 2022 showed increases in 2023 prison populations; in Massachusetts and Arizona, the growth in 2023 erased the population drops in 2022.
Many state prison systems with available 2023 data have already returned to — if not surpassed — their 2019 pre-pandemic sizes.
Explaining recent prison and jail growth
It wasn’t crime
There’s been a lot of ink spilled about relatively modest changes in crime trends over the past few years, but nationally, total crime has remained near historic lows. While the specific factors that influence changes in prison and jail populations vary from place to place and from year to year, we conclude that “rising crime” is among the worst explanations for the growth of incarcerated populations over the past couple of years.
In considering this possibility, we looked at national crime victimization data as well as officially reported crime data.8 We see that the rate at which people reported any personal victimization in 2022 (23.5 per 1,000 people aged 12 or older) was almost exactly what it was five years ago, before the pandemic. Similarly, when we look at crime statistics reported by the FBI over a timeframe longer than one or two years, the rate of violent crime has held remarkably steady (and actually declined). In general, the fluctuations that have made headlines are within the range of what we have observed for the past 15 years or so. We see a similar story with property crime (with the exception of auto theft), which has also remained near its historic low, and is trending more steeply downward overall:
We looked at two indicators of crime — self-reported victimization and officially-reported crime — and observed the same patterns in both.
Because we are attempting to uncover trends beyond 2022 in this briefing, we also considered preliminary 2023 crime data released by the FBI in advance of its official annual estimates. For this, we turned to crime analyst Jeff Asher’s recent analysis of the available data. Asher concludes:
“Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded. What’s more, every type of [FBI] Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year…. The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.”
We won’t know how accurate Asher’s analysis is for almost another year, when the FBI releases the 2023 year-end data, but we agree that all signs point to crime continuing to trend downward. Of course, incarceration trends do not track directly with crime trends, anyway; they have more to do with how law enforcement, prosecutors, and judges choose to police and punish certain people, places, and behaviors — and how efficiently they can do so.
Changes in court processes
The 2022 increase in incarceration is actually exactly what we have been anticipating since the dramatic drops we observed early in the pandemic. When populations shrank in 2020 and 2021, we noted that court data showed what happened when courts suspended jury trials and other operations to slow the spread of COVID-19: The number of incoming (new) cases dropped, dispositions (decisions) dropped, and overall case clearance rates (the ratio of new to disposed cases) dropped, creating massive backlogs in the court system. This was a major reason that prison admissions fell so dramatically in the early pandemic.
To see if these data could explain the increase in admissions in 2022, we revisited the same data source, and found that all of those measures have more or less recovered from the slowdowns. Many court systems are still not fully caught up, but by 2022, they had resolved much of the backlog, which in turn caused the shift of many people from pretrial status to disposition, sentencing, and ultimately, admission to jail or prison.
In 2020, many courts shut down jury trials and other in-person operations, creating a backlog of cases that are still being cleared in many states. As more cases work their way through the courts, more people are sentenced to incarceration, resulting in more prison admissions.
Indeed, when we looked through individual states’ own interpretations of their 2022 population changes, most cited slowdowns and backlogs in the court system:
Virginia: “From mid-March to mid-May 2020, an emergency order issued by the Chief Justice of the Supreme Court of Virginia suspended all non-essential and nonemergency proceedings in the state’s courts. During that time, significantly fewer sentencing hearings were held, resulting in fewer offenders being sentenced to a prison term. Reports suggest that court caseloads have not returned to pre-COVID levels.” (October 2022)
Wisconsin: “Populations have grown significantly in the past several months as courts are working to address the backlog of cases incurred during the pandemic.” (June 2023)
Michigan: “…[I]t is projected the prison population will continue rebounding through 2024 due to processing of the court backlog.” (November 2023)
Rhode Island: “[The Rhode Island Judiciary spokesperson] noted that ‘over the last year the courts were still hearing cases that were delayed or carried over due to COVID-19 procedures and protocols….’” (December 2023)
Minnesota: “Now, as courts catch up, the prisons are filling to levels not seen in about four years.” (March 2023)
State prison systems and the BOP predict future growth
We also found documents showing that at least 22 states and the federal Bureau of Prisons (BOP) have calculated projections for their prison populations, and they almost uniformly predict further growth. Nineteen states and the BOP expect to incarcerate more people in the years ahead. Only California, Hawaii, and New Mexico expect to incarcerate fewer people in the foreseeable future — and even then, New Mexico anticipates a slight increase in its incarcerated women’s population. (For a list of reports with projections, see the Projections Appendix table.)
This example of a prison system’s population projections, from Colorado, shows that correctional authorities expect the male prison population to return to its pre-pandemic (2019) size by 2026; the report also shows the total population is expected to return to its pre-pandemic size by 2027.
The explanations offered by the states that predict further prison growth share a common theme: in addition to courts catching up with any lingering backlogs, they point to recent changes in legislation that will lead to longer sentences. New laws enacted in the past couple of years have increased penalties for some offenses, created new felony offenses, and made it harder to shorten excessively long sentences.
A Wisconsin report puts this plainly: “one additional potential factor that may influence the population projection… is 2021 enacted legislation, which increased penalties and created additional crimes.” The Oregon Office of Economic Analysis was more specific, pointing to a law passed in 2019 that made it easier to convict defendants of unlawful use of a vehicle, which had resulted in an additional 92 people in the annual prison population so far. While we couldn’t find projections for Tennessee, advocates offered similar explanations for the state’s current prison growth: the “Truth in Sentencing” bill enacted in 2022 put the possibility of parole or early release out of reach for many people, even though the Sentencing Commission determined sentence lengths “with the understanding that people would be paroled.” As a result, people are now serving sentences much longer than intended in the original sentencing laws.
Of course, projections are often wrong, but these reports give us some insight into how state correctional and budgetary agencies are contending with the specter of “tough on crime” politics and policy changes. Having seen the results in the 1980s and 90s, these projections may not be far off.
Returning to ‘business as usual’
The increase in incarceration in 2022 was the predictable outcome of (a) the criminal legal system return to “business as usual” and (b) the return of 1980s- and 90s-style “tough on crime” legislation. It was not caused by a crime wave. We can expect further growth in prison and jail populations unless states and localities redouble their efforts to safely reduce incarceration through criminal legal system reforms such as abolishing cash bail, eliminating incarceration for lower-level crimes (including non-criminal violations of probation and parole), shortening sentence lengths and making those changes retroactive, and expanding access to earned early release and discretionary parole. State and local governments must also make greater investments in strategies that we know protect people from criminal legal system contact: reinvesting in communities impacted by crime, with a focus on jobs, housing, education, and access to community-based mental health and substance use treatment.
The states where prison populations grew by 5% or more in 2022 include: Mississippi (14%), Montana (9%), Colorado (8%), Tennessee (8%), Minnesota (8%), North Dakota (8%), Rhode Island (the “unified” prison and jail population grew by 7%), Kentucky (6%), Connecticut (the “unified” population grew by 6%), Maine (6%), Vermont (the “unified” population grew by 6%), Alabama (5.5%), Florida (5%), and Louisiana (5%). Texas’ prison system grew by 4% but this represented the largest number of additional incarcerated people (almost 5,900) in any one state in 2022. ↩
The federal Bureau of Prisons accounted for 8% of all prison growth in 2022. Nine states accounted for 83% of all growth: Texas (accounting for 23% of the total increase), Florida (17%), Mississippi (10%), Tennessee (7%), Georgia (6%), Alabama (6%), Colorado (5%), Louisiana (5%), and Kentucky (5%). ↩
The Bureau of Justice Statistics’ annual prison and jail data collections use different reference dates. The prison data typically reflect counts at year-end, or December 31, while the jail data use counts collected at mid-year, on the last weekday in June (typically June 30). Therefore the 2022 prison data cover the 2022 calendar year, while the jail data cover the 12-month period from July 1, 2021 to June 30, 2022. ↩
Concerningly, the Native Hawaiian/Pacific Islander jail incarceration rate increased by 51% in just one year, and surpassed the white rate for the first time since at least 2010 (we couldn’t locate rates for earlier years). ↩
We were only able to locate 2023 data from 42 states and the federal BOP, and the reference dates for these data vary quite a bit. Additionally, none are “year-end” data that would be comparable to what the BJS collects. The exact populations included in these counts may also vary from the “jurisdictional” population counts that we compared them to, published by the BJS. ↩
We examined daily jail populations collected by the Jail Data Initiative, which uses web-scraping to collect and aggregate daily jail information from online jail rosters. We compared year-to-date 2023 data with data for the same period in 2022 (covering the period of January 1 to November 30 for each year), from the same sample of 942 jails that had available data for those dates. As a point of comparison, the BJS jail data and estimates are based on a sample of about 900 jails as well. We were not able to create estimates of the total national jail population that would be comparable to the Bureau of Justice Statistics’ estimates, due to the limited data provided in jail rosters, but instead compared the raw numbers from this sample for each year to get an idea of the relative (percent) change. ↩
As of November 2023, the prison populations of Mississippi and South Dakota had grown about 8% since 2022; as of October, Tennessee’s prison population had grown 5%; and as of December, the prison populations of North Carolina, Wisconsin, and New York had also grown by 5%. ↩
We used both indicators of crime — self-reported victimization data and the more frequently-referenced FBI measures of reported crime — for two main reasons. First, the FBI’s data collection method has changed in recent years, and as a result fewer law enforcement agencies have submitted data (83% in 2022 compared to 95% or more before the change to the new system). That has made the annual FBI crime estimates less reliable in the last few years. Secondly, many crimes go unreported to police. Using data from a nationally representative survey that asks people about their experiences of crime victimization in the past year helps to fill that under-reporting gap. This is not a perfect substitute, since it necessarily excludes homicides and doesn’t capture crime that targets businesses or public property, for example. But for the types of crime that capture headlines (i.e., interpersonal violence, theft, burglary, etc.), the victimization data offer a much more reliable picture of people’s experiences. ↩
"ReEntry" was created by formerly incarcerated people to communicate the contradictions, difficult decisions, and unexpected events that make staying out of prison nearly impossible for people under community supervision.
It’s not easy leaving prison. Most people go through the reentry process with little to no preparation, planning, or support and face a barrage of rules that turn everyday activities into trapdoors to incarceration. But because many people have no idea what it’s like to live under supervision, it’s easy for the media, politicians, and law enforcement to capitalize on the fiction that recidivism rates1 reflect personal – and not institutional – failure.
The “ReEntry” simulator presents a variety of no-win dilemmas that people on probation have to navigate on a regular basis. In this screenshot, you have to decide which presents a bigger risk: missing an appointment with your probation officer or missing work.
In “ReEntry,” you have seven minutes to navigate life on probation while adhering to the terms of your release. Unfortunately, three violations of your probation conditions will send you back behind bars. Such non-criminal or “technical” violations are a significant engine of incarceration for people on probation and parole and, indeed, the system as a whole: supervision violations account for 42% of prison admissions nationwide.
You start the simulator with $60 in your pocket and instructions to meet with your probation officer at regular intervals. But within seconds of your journey, the simulator asks you to “spin the wheel,” which presents you with difficult decisions and circumstances out of your control — many of which pose imminent threats to your freedom. Your $60 disappears quickly, of course, as various fees and everyday costs start to pile up.
For example, the simulator demonstrates how, in many states, a single monthly probation fee would eat up your entire $60, and you’ll be hit with a violation if you can’t pay. What happens when a traffic accident blocks the road on your way home, and you miss curfew? Do you spend your last few dollars getting an ID or try to wing it without one? Do you take your friend’s under-the-table job offer and make the money you desperately need, or turn it down to avoid being punished for unreported income? These scenarios demonstrate the contradictory nature of reentry and shed light on the artificial roadblocks facing those simply trying to get their lives on track.
Soon, it’s time for your appointment with your probation officer. They’re running behind, but you can’t afford to be late for work. Do you wait for your meeting, or do you leave for work? As the simulator continues, it becomes clear why, in states like Colorado, two-thirds of people who had their probation revoked in 2019 had at least one missed appointment (as compared to less than a quarter of those who successfully completed probation).
Reentry is an inherently insecure and uncertain experience; you never quite know which twist or turn might lead you back to jail or prison. Spinning the wheel is, on some level, a profound metaphor for the lack of control and agency afforded to criminalized people.
We’ve run through the simulator dozens of times and have yet to successfully navigate probation—a taste of how “unwinnable” it is for people in the system. Anyone who spends time with “ReEntry” will find themselves feeling frustrated and defeated because that’s the experience of being under supervision. Give it a try and see if you can make it through unscathed.
Footnotes
Recidivism rates are an often-used but problematic measure; there are various definitions and none of them say much about any actual risk individuals pose to public safety or their likelihood of success after release. ↩
