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We review how federal courts are modifying their procedures in the face of the COVID-19 pandemic.

by Wendy Sawyer, May 6, 2020

As we have argued recently, in order to prevent more unnecessary COVID-19 related deaths among incarcerated people, authorities must minimize the use of pretrial incarceration. In the case of local jails, “authorities” means a complex web of jurisdictions and officials who have the authority to release people from jail. The federal system is a different story. Unlike local jails, federal pretrial detention is governed by a single set of laws, but that doesn’t simplify matters much when the actual decision-makers are spread out among 94 judicial districts.

So what are federal courts doing to reduce pretrial incarceration? We looked at some of the orders that federal courts have issued to deal with pretrial populations during the COVID-19 pandemic, and identified some important issues, promising approaches, and places where more dramatic action is needed.

Judges are traditionally hesitant to involve themselves with carceral operations, given the central role of separation-of-powers in American governance. But pretrial detention is a special situation, since people who are not convicted are in the custody of the court, and judges must decide whether or not defendants should be incarcerated pending trial.

Every federal court in the country has issued general orders modifying their operations during the current pandemic. Dozens of these orders address the treatment of pretrial detainees, but most of these provisions are disappointing in their narrow scope: Many orders simply require screening of symptoms, or encourage the use of video appearances, but do nothing to actually address the public health crisis posed by incarceration during a viral pandemic. Most notably, many orders instruct the US Marshals Service (which operates federal pretrial detention) to develop procedures for monitoring the health of incarcerated people, despite the Marshals’ well-documented indifference to the health of the people in its custody.

However, a handful of court orders — ranging from generalized statements of goals to specific policy changes — stand out as actually addressing the problem, and are worthy of discussion:1

Statements of policy. On the more generalized end of the spectrum, Minnesota’s district court has entered an order directing its office of pretrial services to “reassess whether alternatives to detention exist that in its judgment will reasonably assure the appearance of the defendant and the safety of the community.” This approach is commendable, but without careful attention to the details, it runs the risk of widening the use of troublesome “alternatives” like electronic monitoring.

Protecting health one case at a time. In the middle of the spectrum of judicial responses are courts that have decided to make case-by-case decisions on pretrial detention, but have provided new procedures for speeding up the process. The federal court for Alaska has created an expedited procedure to rule on requests from people seeking release from custody prior to trial or sentencing, which includes a procedure for defendants to obtain their own medical records for use as evidence. The courts in Massachusetts and the Eastern District of Michigan have entered similar orders, with the Michigan court specifically noting the need to “reduc[e] population density in BOP and detention facilities.”

Anticipating how facilities may undermine justice. The federal court in Montana has recognized that social distancing measures will inevitably lead to more defendants being forced to communicate with their lawyers via phone or video. Accordingly, that court’s general order specifies that when that happens, “the attorney-client privilege…is not waived by the presence of third parties or the existence of monitoring.” Importantly, these protections apply whether or not facilities or phone companies advise callers that their communications are being monitored.

The court for the Eastern District of New York has taken the most comprehensive approach, by emphasizing the need for meaningful information on the conditions in facilities where people are held. The court has identified the four facilities that hold most pretrial defendants in the Eastern District, and has ordered the wardens of those facilities to provide twice-weekly reports on mitigation measures and test results. The court order goes on to direct that such reports be posted on the court’s public website.

As one can see from reading the reports submitted to the New York Court, they are sparse on details and use the bureaucratic jargon common among correctional administrators. Nonetheless, this reporting requirement is an important first step in combatting one of the pandemic’s most important drivers of fear: the lack of information.

As a currently incarcerated author noted in an article published last week, “The only way to significantly reduce inevitable deaths from an outbreak inside is to reduce the number of people inside.” While none of the court orders discussed here directly release anyone from custody, they highlight some of the issues that we will have to address when pushing for large-scale reductions in incarceration: facilitating judicial decision-making about releases, preserving privacy in an age of digital communications, and prying factual information out of correctional bureaucracies that are generally hostile to transparency.

Footnotes

  1. This is not to say that every court that hasn’t issued a general order on pretrial detention is failing to do something. Some courts may be addressing the issue informally, through robust case-by-case determinations, or through amendments to local rules. This briefing focuses on general orders because they are comparatively easy to locate.  ↩


Problems with data collection - and an unfortunate tendency to group Native Americans together with other ethnic and racial groups in data publications - have made it hard to understand the effect of mass incarceration on Native people.

by Roxanne Daniel, April 22, 2020

The scarcity of data on Native Americans in the U.S. criminal justice system comes up a lot in our conversations with activists and reporters, who rightly wonder why Native populations are often excluded from comparisons with other racial and ethnic groups. While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse. So, we compiled the information that does exist — which is fractured and hard to locate — in one place below.

Preface: What the Census data says

We’ve previously used data from the 2010 Census to analyze incarcerated populations by race/ethnicity and sex for each state. In our analysis, data on prisons and jails were combined. We found that, in 2010, there were a total of 37,854 American Indian/Alaskan Natives in adult correctional facilities, including 32,524 men and 5,132 women (and 198 who were 17 or younger). That is equivalent to a total incarceration rate of 1,291 per 100,000 people, more than double that of white Americans (510 per 100,000). In states with large Native populations, such as North Dakota, American Indian/Alaskan Native incarceration rates can be up to 7 times that of whites. Once the 2020 Census data is released, we will update our analysis, since it is 10 years old now.

Other data on Native Americans in the criminal justice system

Prisons: In 2016, 19,790 Native men and 2,954 Native women (22,744 total) were incarcerated in U.S. state and federal prisons, according to the Bureau of Justice Statistics’ (BJS) National Prisoner Statistics (NPS) series. The NPS series reports the population of state and federal prisons – but not local jails – by race/ethnicity and sex, but the most recent data available with that level of detail is from 2016. However, other sources supplement these findings:

  • BJS reports an increase to 23,701, in Prisoners in 2017. Oklahoma tops the list as the state with the highest number of American Indian/Alaskan Natives incarcerated, followed by Arizona, Alaska, and California. However, this data is not broken down further by sex and race.
  • Limited state-level data is also available from some state Departments of Corrections, like Alaska’s, which identifies Alaskan Native populations in its annual Offender Profile. However, many other states, even those with large Native populations like California and Texas, group these populations into an “other” category when reporting demographics. (More on that in our discussion of data limitations below.)

Jails: The BJS annual report on jail inmates estimates 9,700 American Indian/Alaskan Native people – or 401 per 100,000 population – were held in local jails across the country as of late June, 2018. That’s almost twice the jail incarceration rates of both white and Hispanic people (187 and 185 per 100,000, respectively). Frustratingly, this data is also not reported by sex.

The 2016 BJS Jails in Indian Country report identifies 80 facilities operating on tribal lands, holding 2,540 people – 1,750 men and 620 women – in mid-2016. The number of inmates admitted to Indian country jails was 9,640 during the month of June 2016, giving us an idea of “jail churn” in facilities on tribal lands. Additionally, this report is one of the very few sources for this population’s offense data, although even here, about 35% of offenses are unhelpfully categorized as “other.”

Youth: People under the age of 21 make up 42% of American Indian/Alaskan Native populations in the United States, so Native youth confinement is a special concern. With a detention rate of 255 per 100,000 in 2015, Native youth are approximately three times more likely to be confined than white youth (83 per 100,000). In Indian country jails, approximately 6% of the confined population was 17 or younger in 2016; unfortunately, the number of youth held in other adult prisons and jails is not broken down by race/ethnicity. The Census of Juveniles in Residential Placement reports data on Native youth in juvenile justice facilities across the U.S., most recently for 2017, including details about offense type, facility type, sex, age, and more.

Contributing to these confinement rates is disproportionate police contact: Native youth are arrested at a much higher rate than white youth. The 2018 arrest rate for Native youth was 2,251 per 100,000 while white youth were arrested at a rate of 1,793 per 100,000.

Data collection from Native populations suffers from a number of limitations

Data collection efforts in tribal communities face a number of problems that limit the data’s accuracy and comprehensiveness.

According to the National Institute of Justice, issues such as difficulty in outreach, overlapping jurisdictions, and differences between tribal justice systems make the collection of data from these communities especially challenging. U.S. government policies and priorities also limit the data it collects and reports about Native populations:

  • The DOJ has moved slowly: A Department of Justice (DOJ) oversight report in compliance with the 2010 Tribal Law and Order Act (TLOA) states that the “TLOA requires the Department’s BJS to collect data related to crimes in Indian country. However, 7 years after TLOA became law, its data collection and reporting efforts are still in development.”
  • Reporting is voluntary: According to the same report,“…because participation in the FBI’s Uniform Crime Reporting (UCR) Program is voluntary, not all tribes report crime statistics into the UCR database. As a result, Indian country crime statistics are so outdated and incomplete as to be virtually useless.” The BJS derives most of its crime data from the UCR program, which is especially incomplete when it comes to tribal jurisdictions’ data. The DOJ report found that while “207 tribes reported to the UCR in 2014, only 115 tribes submitted complete information that was included in the final UCR report.” It’s worth mentioning that there are, as of 2017, 226 tribal law enforcement agencies recognized by the federal government. Assuming the same number existed in 2014, that means 19 (8%) did not report crime data at all.
  • Data collection does not distinguish between tribes: According to the DOJ report, the National Crime Victimization Survey “does not allow the calculation of separate crime statistics for each American Indian tribe.” A report from the United States Sentencing Commission’s Tribal Issues Advisory Group also cites a lack of accurate databases in tribal courts, consistent and comparable disaggregation, and data sharing between federal and tribal entities.
  • Data aren’t used to help Native communities: The U.S. Sentencing Commission’s Report notes that the limited data that is collected has not been used to “evaluate and improve” law enforcement activities in Indian country. This adds to the strain caused by the general lack of cooperation between U.S. and tribal justice systems: According to a report by the National Tribal Judicial Center, federal and state correctional facilities “do not notify tribes of inmate release to parole or probation.” The report notes that tribal “protection orders are not validated by or enforced by state courts or state law enforcement. No outside agencies honor tribal court subpoenas.” This lack of reciprocity worsens the already countless issues with data collection and sharing.
  • Cultural and socioeconomic barriers lead to undercounting: More broadly, a “distrust of the U.S. government, a youth-heavy population, nontraditional addresses, low internet access, language and literacy barriers, weather and road access issues, and high rates of poverty and houselessness” create a deeply problematic undercounting of American Indian/Alaskan Native people. (A report by Rewire.News examines the consequences of this undercounting, including lower representation in Congress, funding deficits in health and human services, and a decline in tribal recognition and enrollment.)

“Other” data obscurities

Criminal justice data often uses racial and ethnic categories to break down the disproportionately high representation of Black and Hispanic populations in prisons and jails. Beyond these categories, however, lies the illusive “other” designation, which lumps together Asian Americans, Pacific Islanders, Native Hawaiians, and of course, American Indians and Alaskan Natives. However, as the Census data reveals, disproportionate incarceration rates for these groups are not negligible. This practice obscures differences between these groups and makes it difficult to determine how the justice system plays a role in Native communities. Specifically:

  • The Bureau of Justice Statistics categorizes American Indian/Alaskan Natives as “other” in their Felony Sentences in State Courts data series. According to research by the Native American Voting Rights Coalition, several Native women surveyed mentioned that their husbands/partners were ineligible to vote due to felony convictions, contributing to a variety of barriers that hinder Native American political participation. The lack of disaggregated data makes it difficult to determine the exact proportion of Natives who are disenfranchised.
  • According to the American Indian and Alaskan Natives in Local Jails report, there were 31,700 individuals in jail – in addition to those categorized as American Indian/Alaskan Native – who identified as American Indian/Alaskan Native and another race(s), suggesting higher rates of incarceration nationwide if multi-racial individuals were included in Native population counts or rates.
  • Rewire.News’s report also highlights how gender categorization of Native populations can often obscure those who identify as Two Spirit, non-binary, or transgender.

As it stands, there are many more questions than answers about Native Americans in the criminal justice system. Until criminal justice agencies overcome the limitations on data collection — and until the offices that publish the data are willing to list Native Americans as a distinct demographic group, rather than a member of an “Other” category — informational gaps will continue to make it difficult to understand how overcriminalization has impacted Native populations.


We sent state prison systems a 5-question survey, and the answers – largely – are not encouraging.

by Emily Widra and Peter Wagner, April 10, 2020

Many local jails and pretrial systems are taking action to reduce their populations in advance of the COVID-19 pandemic, but state prison systems are not, raising the question: Are state prisons prepared to handle a pandemic within their walls? We set out to survey prison systems on the capacity of their health facilities, their plans for any necessary external hospitalizations, their levels of equipment, their staffing levels and their general priorities.

Unfortunately, our April 3-10 survey shows that state prisons are still largely unprepared for a global pandemic that can reasonably be expected to hit their entire state prison system — and their supporting state government — all at the same time.

Most prisons are still aiming to keep the virus out of their facilities, rather than focusing on how to minimize the harm to incarcerated people, to their staff and to society as a whole. Containment might be a reasonable goal when it comes to outbreaks of flu, tuberculosis, or MRSA – diseases that prison systems know how to guard against by vaccinating people, screening, and so on. But COVID-19 is different both in terms of how it spreads and by the fact that it is already stressing the public hospital system that state prisons historically rely on for back-up support.

Given the number of large number of staff required to run a facility1 and the apparent ease with which asymptomatic people can infect others, no combination of security restrictions — such as suspending family visitation, checking the temperature of incoming staff, or confining the entire population to their cells — can keep out the virus that causes COVID-19 for long.2 And once the virus enters a facility, the density and lack of sanitation will allow it to spread quickly to all incarcerated people and staff, and will accelerate the spread to the surrounding community.

Ideally, state prisons’ first response to the pandemic should have been to do like many jails and reduce the number of people incarcerated. But at the very least, we expected to see them developing plans that acknowledged the inevitability of a COVID-19 outbreak and its unique challenges. Their plans should anticipate the need to isolate vulnerable people, work around staffing shortages, and navigate shortages of medical supplies and hospital beds. But except for a few notable exceptions — particularly North Dakota — most states have not even gotten that far.

The good news is that in some states, the spread of the virus is several weeks behind other states, so some of the states that are the least ready still have the potential to learn from other states and improve their planning.

The state of pandemic planning in state prisons

In our survey of state Departments of Corrections, we sought to gather more information about how states are preparing for the pandemic to breach the prison gates. We asked about five major topics of pandemic preparedness:

  1. the capacity for isolating particularly vulnerable individuals and quarantining people with suspected cases of COVID-19 within facilities,
  2. protocols for people requiring hospitalization,
  3. equipment (including ventilators, medical-grade PPE, COVID-19 tests) accessible to facilities,
  4. anticipated staffing changes and availability of healthcare staff within facilities, and
  5. what the most immediate priorities are in planning for a COVID-19 outbreak in correctional facilities.

You can read the individual responses, but let’s jump to what the answers should have been.

We hoped to hear from each state that steps were being taken to prepare facilities to navigate the inevitable: a positive COVID-19 test among the hundreds of people living in close proximity to one another in prison. We expected each facility to have designated cells, units, or wings that could be easily isolated from the rest of the facility to allow either isolation of people who are particularly vulnerable to complications from COVID-19, or quarantine of people who test positive for COVID-19.

Given the recommendation from expert Dr. Homer Venters that facilities establish a plan for hospitalizations that recognizes that staff will be in short supply, and thus does not require the usual 2:1 ratio of correctional officers to patients, we expected correctional departments to have established new pathways and protocols for hospitalization.

We also expected that because prisons have finite resources for respiratory support (such as oxygen), facilities would have realistic plans to transfer people to hospitals while protecting staff from exposure. We hoped prisons could tell us how they would secure sufficient equipment and supplies, and how they will respond when supplies run out or when hospitals refuse to admit. (For example, there is already a shortage of COVID-19 tests, restrictions on who can be tested, and personal protective equipment (PPE) for medical professionals is already in short supply.) This planning, unfortunately, was largely absent.

Given the rate of infection and the length of hospitalization for severe cases of COVID-19, it is reasonable to assume facilities will encounter staffing shortages and that plans need to be in place for making sure the essential services behind bars continue in the face of staff calling out sick (i.e. food, medical care, telephone access, etc.). Given that most correctional staff are already stretched thin, departments should have begun planning for a staffing shortage weeks ago by reducing the number of people incarcerated and reducing the burden on staff. Most departments did not, but we still expected that they were preparing for the medical challenge created by that inaction.

The responses we received were largely disappointing. Rather than developing plans to mitigate the harm of an inevitable outbreak, most states are still focusing on restricting the movements of incarcerated people within facilities — in other words, attempting to “contain” the virus, which is all but impossible with COVID-19.

Even worse, some state departments of corrections informed us that no changes to their existing medical capacity were needed, suggesting that their established medical facilities and staff were sufficient to combat a disease that is overwhelming entire city infrastructures across the nation. Other states notified us that because no positive cases had occurred in their prisons, many changes have not yet been implemented. A number of states referred us back to their websites, which although providing up-to-date information on some aspects of their COVID-19 response, did not answer the specific questions about policy and planning changes in the past few weeks.

The good news is that many states still have time to do a far better job. At this point, on April 10, state Departments of Corrections need to be focused on mitigating the disastrous consequences of the COVID-19 pandemic entering prisons, rather than sticking to the belief that their high prison walls can effectively keep a global virus at bay.

 

Footnotes

  1. Every facility is different, but outside observers can roughly estimate the number of staff that go in and out of a facility by dividing the incarcerated population by 4.6 for jails and 4.7 for prisons. (The typical jail has one staff member for every 3.3 incarcerated people, and the typical prison has one staff member for every 3.4 incarcerated people. If you assume that the staff work 5 days out of 7, you can divide the incarcerated population by 4.6 or 4.7 to get an estimate of how many staff enter and leave the facility every 24 hours.)

    The initial incarcerated to staff ratios of 3.3 and 3.4 were calculated from the Bureau of Justice Statistics’ Jail Inmates in 2018 and Census Of State And Federal Correctional Facilities, 2005, Appendix Table 14.  ↩

  2. We are separately tracking press releases and updates from state departments of corrections on visitation suspension, changes in communication costs, screening policies for staff and new admissions, and facility lockdowns.
     ↩


We provide a spreadsheet showing what each state DOC has chosen to tell the public about its virus response plan.

by Tiana Herring and Emily Widra, April 8, 2020

To accompany our work on what the criminal justice system is doing — and should be doing — to respond to the COVID-19 pandemic, the Prison Policy Initiative today released a spreadsheet showing what each state Department of Corrections has told the public about its virus response plan. Prepared for internal use, we’re sharing it in the hopes it will save other advocates, journalists and policymakers time looking up the same information.

The spreadsheet includes:

  • Links to each state’s COVID-19 page or its archive of press releases
  • Links to the infection and fatality trackers for each state (about half of all states have this)
  • Notes on whether each state is addressing 15 separate topics, including the suspension of visits, changes in telephone policies, increased access to hygiene materials, employee screening, staffing changes, isolation plans, etc.

This spreadsheet is a useful view into what the state prison systems see as important to communicate to the public, although it is not necessarily the definitive statement on what state prisons are doing. (For example, some states may think that suspending unaffordable medical copays during a global pandemic was too obvious to announce, and other states may be planning to accelerate parole releases but are choosing to be quiet about it. By the same token, states that are stubbornly refusing to change their copay policies,1 for example, are predictably not going to trumpet that fact on their websites.)

Other advocates looking for information on what state prison systems are doing should look at:

We will continue to update the spreadsheet as long as we find it useful internally, and the spreadsheet will always have the last modified date at the top.

 

Footnotes

  1. We are looking at you, Delaware, Hawaii, and Nevada.  ↩


The report includes an interactive map showing where people convicted of violence have been "carved out" of recent criminal justice reform laws.

April 7, 2020

As the threat of a COVID-19 disaster in U.S. prisons looms, people serving time for violent crimes may be most at risk, as states like California and Georgia exclude them from opportunities for rapid release. “Violent offenders” — even those who are old and frail — are being categorically denied protection in a pandemic.

Letting people convicted of violence apply for life-saving opportunities requires political courage, just as it has for decades. But denying relief to people based exclusively on their crime of conviction is as ineffective as it is unjust. In a new report, Reforms Without Results, we review the existing research on violent crime, explaining six major reasons why states should include people convicted of violence in criminal justice reforms:

  1. Long sentences do not deter violent crime.
  2. Most victims of violence, when asked, say they prefer holding people accountable through means other than prison, such as rehabilitative programs.
  3. People convicted of violent offenses have among the lowest rates of recidivism — belying the notion that they are “inherently” violent and a threat to public safety.
  4. People who commit violent crimes are often themselves victims of violence, and carry trauma that a prison sentence does nothing to address.
  5. People age out of violence, so decades-long sentences are not necessary for public safety.
  6. The health of a person’s community dramatically impacts their likelihood of eventually committing a violent crime — and community well-being can be improved through social investments rather than incarceration.

Demonstrating how common it is for people convicted of violence to be left behind, our report includes an interactive U.S. map showing 75 examples of state criminal justice reform laws that have excluded them. The map reveals that:

  • At least 16 states have passed laws excluding people convicted of violent crimes from veterans’ courts, mental health courts, diversion programs, and other alternatives to incarceration.
  • In at least 10 states, people convicted of violent crimes have been “carved out” of laws designed to ease the reentry process.
  • At least 20 states have passed laws that expand parole, good time, and other mechanisms for early release — but offer no relief to people convicted of violent offenses.

Preview of map showing where states have passed criminal justice reforms that exclude people convicted of violence.

Unless states are willing to change how they respond to violence, reducing U.S. incarceration rates to pre-1970s levels will be impossible: Over 40% of people in prison and jail are there because of a violent offense. Lawmakers serious about ending mass incarceration — or limiting the toll COVID-19 takes behind bars — can no longer afford to ignore people serving time for violent crimes. In Reforms Without Results, we provide the data and arguments they will need to craft more courageous and effective criminal justice reforms.

See the full report and interactive map at https://www.prisonpolicy.org/reports/violence.html.


The short answer is no - social distancing is even harder behind bars than in nursing homes or on cruise ships.

by Aleks Kajstura and Jenny Landon, April 3, 2020

Jails and prisons are often overcrowded, and their residents are disproportionately likely to have chronic health conditions that make them especially vulnerable to viral infections. So as the COVID-19 pandemic unfolds, we’ve been asked: Is social distancing (as recommended by the CDC and other public health agencies) even possible behind bars? Can incarcerated people maintain 6 feet from each other, and from correctional officers and other staff?

In short, the answer is no.

To answer this question, we looked at how the physical space of jails and prisons compare to that of cruise ships and nursing homes, two of the most prominent incubators of the virus.

Illustration comparing the average amount of space people can take from each other on cruise ships, in nursing homes, and in U.S. jails and prisons. Graphic by Mona Chalabi.

The Grand Princess and Diamond Princess, two cruise ships implicated in the outbreak of COVID-19 in the United States, have typical cabins that range from 73 to 79 square feet per person (with furnishings like beds, dressers, chairs, desks, and tables).

And generally, any shared bedroom in a nursing home is required to have 80 square feet of space per resident (including necessary furnishings, like a bed, dresser, table, and chair).

We found that incarcerated people are living in quarters that are similarly sized, if not smaller. According to the American Correctional Association (ACA), cells in correctional facilities should have at least 25 feet of space per person in each cell that are “unencumbered,” meaning they are not taken up by the bunk, desk, or other furnishings.

That’s a 5X5-foot space for each person, leaving almost no room for maneuvering while maintaining the recommended 6 feet of distance between people. And we know that in some facilities, beds can be as close as 3 feet apart.

COVID-19 is hammering cruise ships and nursing homes because social distancing is impossible. Incarcerated people are living in comparable if not smaller quarters, but with a notable difference: On cruises and in nursing homes, people have in-room access to the necessary hygiene products and water – something that is often missing in correctional facilities.

We’re already seeing the appalling result in city and county jails nationwide, most notably on Rikers Island in New York City, where the coronavirus infection rate is already nearly 8 times higher than the rest of the city.

Incarcerated people are disproportionately affected by underlying health conditions known to exacerbate COVID-19, and social distancing is impossible. There is no time to waste: State and local governments must take swift action to reduce prison and jail populations.

For our virus response tracking and other jurisdiction-specific information, see our virus response pages.


We offer five areas where quick action could slow the spread of the viral pandemic in prisons and jails and in society as a whole.

by Peter Wagner and Emily Widra, March 27, 2020

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect people in prisons, in jails, on probation, and on parole.

Below, we offer five far-reaching interventions that policymakers can use to slow the spread of the virus in the criminal justice system and broader society. We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons. In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus.

Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population. Pregnancy data come from our report, Prisons neglect pregnant women in their healthcare policies, the CDC’s 2010 Pregnancy Rates Among U.S. Women, and data from the 2010 Census. Cigarette smoking data are from a 2016 study, Cigarette smoking among inmates by race/ethnicity, and all other data are from the 2015 BJS report, Medical problems of state and federal prisoners and jail inmates, 2011-12, which does not offer separate data for the federal and state prison populations. Cigarette smoking may be part of the explanation of the higher fatality rate in China among men, who are far more likely to smoke than women.
Prevalence of health condition by population
Health condition Jails State prisons Federal prisons United States
Ever tested positive for Tuberculosis 2.5% 6.0% 0.5%
Asthma 20.1% 14.9% 10.2%
Cigarette smoking n/a 64.7% 45.2% 21.2%
HIV positive 1.3% 1.3% 0.4%
High blood pressure/hypertension 30.2% 26.3% 18.1%
Diabetes/high blood sugar 7.2% 9.0% 6.5%
Heart-related problems 10.4% 9.8% 2.9%
Pregnancy 5.0% 4.0% 3.0% 3.9%

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders. With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

 

1. Reduce the number of people in local jails.

State leaders must remember that local jails are even less equipped to handle pandemics than state prisons, so it is even more important to reduce the burden of a potential pandemic on jails. Generally speaking, there are two ways to reduce jail populations: reduce admissions or release more people.

Reduce admissions. This may be the simplest strategy that would show quick results because of the high turnover in jails.1 If a typical jail stopped admitting people entirely, its population would be cut by 54% in just 7 days. More realistically, if that same jail could reduce admissions by just half, its population would be more than 25% smaller in a week.2
Different actors within the system can achieve this using their discretionary powers:

  • Police can reduce the number of arrests, particularly for what they determine to be “petty offenses.”
  • Prosecutors can refuse to prosecute certain offenses and consent to release on one’s own recognizance3 (ROR) for most or all people charged with crimes. They can defer prosecution, dismiss charges outright, or instead refer defendants to social services or other alternatives to incarceration or detention.
  • Courts can vacate “bench warrants” (warrants for unpaid court fines/fees and for failure to appear for hearings) so that law enforcement can focus on public safety concerns and so that people with active bench warrants do not avoid seeking medical attention for fear of arrest. Recognizing the extreme economic stress that most low-income people will experience during this time, courts should refuse to jail anyone for unpaid fines and fees, automatically postpone any court hearings related to fines and fees, or just proactively forgive these debts.
  • Jails can refuse to rent space to other agencies. In some states, as much as 8% of the capacity is dedicated to USMS4, 10% to ICE5, and 66% to state prisons.6 In addition, jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, technical violators can make up a huge part of a jail’s population.
  • State and local legislatures can expand the list of “non-jailable” offenses, which are not subject to arrest but can only be fined or cited.

Release more people. Jail administrators can also accelerate releases of people currently in custody. In situations where administrators and sheriffs may not have the authority7 to do this on their own, they are still well positioned to suggest to courts, prosecutors and defense attorneys who could be released. Here are some suggested categories for release eligibility:

  • People nearing the end of their sentence. 35% of people in jails are serving a sentence, typically under a year. That means that nationally, roughly 75,000 people in jail today are within 3 months of their release date.
  • People who are medically fragile, including older people (there are 20,000 people over the age of 60 in jails) and people with chronic illnesses, especially those that have higher mortality risks from COVID-19, like chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, renal failure, liver disease and the immunocompromised, including those undergoing cancer treatment. Facilities should also release pregnant women.8
  • People held on low bail amounts. Sadly, bail is often used as a wealth test for freedom rather than a test of dangerousness or likelihood to show up for court. But consider this: if your facility is currently holding people who would be released if they could come up with a small 9 amount of money, why are you still holding them? Once bail has been set, the court has already concluded that the individual is not a threat to public safety, since bail is meant to incentivize court appearance, not to detain people the court considers dangerous. Prosecutors, defense attorneys, judges, and the jails — preferably in cooperation with each other — need to generate a list of people whose bail should be lowered to $0 and then make sure those people are released as soon as possible.
  • People held for offenses that would not result in detention if they were arrested today, now that some offense-based changes have already been implemented in response to the pandemic.

 

2. Reduce the number of people in state and federal prisons.

This can be done through some restrictions to admissions and most dramatically by increasing releases.

The simplest way to reduce admissions is to refuse admissions for technical violations of probation and parole rules. In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.

The decision to reduce admissions for technical violations can be made at the level of individual parole or probation officers, at the supervisory level, at the level of parole and probation boards, or at the level of state and county executives and legislatures. Any and all of these actors should take immediate action.

Other groups that states should immediately consider for release include:

  • People nearing the end of their sentence. Approximately 600,000 people are released from prison every year. If they are going to be released within the next few months anyway, why not release them now? 10
  • People in minimum security facilities and who are on work-release.
  • People who are medically fragile or are older. Prisons house large numbers of people with chronic illnesses and complex medical needs that make them more vulnerable to becoming seriously ill and requiring more medical care for COVID-19. (There are 132,000 people who are at least 55 years old in state prisons. The prevalence rates of chronic health conditions that put people at risk for serious complications from COVID-19 are higher in state and federal prisons than the general population.)
  • Anyone whose offense is considered “minor” or anyone who has a “low likelihood” of committing another serious offense.11

States have many options for how to release these individuals. Mechanisms for increasing releases include:

  • Parole boards can parole more people who are parole-eligible. They can also accelerate the normal review process, reduce the time between parole reviews, and eliminate the often months-long delays between parole decisions and actual release. (For instance, such delays are often the result of parole boards requiring people to complete program requirements, but under the circumstances, these requirements can and should be waived.)
  • Governors can grant partial clemency to people who are a short period away from parole eligibility so that the parole board can consider them for release now.
  • Governors, legislatures and other agencies can change good-time formulas to allow people additional credit for time served. Commonly called things like “good time,” “meritorious credit” or something similar, these systems shorten the time incarcerated people must serve before becoming parole eligible or completing their sentences. Many states give correctional agencies some discretion on awarding good time. The maximum allowed should be granted, and the formulas should be changed to make the rewards more generous.
  • Governors can explore letting some people go on temporary furloughs who already meet most other criteria for release. (This used to be common in the U.S., and in response to the pandemic, Iran temporarily released 85,000 people and Ethiopia released 4,000 people.)
  • Judges can resentence individuals to make them eligible for release on parole or on completion of the revised sentence.
  • ICE, the U.S. Marshals Service and other agencies that send detainees to local jails for confinement can order their release, just as they should do for the people confined in the facilities that they run. These systems should not think for a moment that just because they have outsourced the jailing of these detainees, they are exempt from their moral and public health duty to reduce the density of correctional facilities.

For a model plan for releasing people from prisons, see this emergency plan developed for Indiana by a coalition of formerly incarcerated people and current volunteers and employees of the Indiana correctional system. The plan answers logistical questions such as how people can be quarantined outside of prisons before reentering their communities, how the reentry system can manage the release of thousands of people on short notice, and how to protect correctional staff and their families throughout the process.

 

3. Eliminate unnecessary face-to-face contact for justice-involved people.

The criminal justice system makes it difficult for people on probation, parole, and registries — and the staff of those systems — to practice the social distancing necessary to prevent the spread of COVID-19. There are at least 7 strategies that probation, parole, registries and the courts can implement to promote social distancing:

  • Judges should postpone as many court sessions as possible. They should do so automatically and in advance. Courts should be reluctant to try cases or hold hearings over video monitors,12 and they should never consider detaining someone they do not feel comfortable — for public health reasons — having in their court room.
  • Reduce the number of people on the probation and parole rolls. This would reduce the number of people subject to the conditions of probation and parole, which often contradict social distancing guidelines (i.e. required in-person meetings with parole or probation officers), and would free up probation and parole staff to focus limited resources on the higher-need people who remain under their supervision. This may require help from the governor via mass clemency, the legislature, or the courts, and could also involve strategies like applying time-served credits for successful past compliance with probation or parole restrictions.
  • Reduce, rather than expand, use of GPS/electronic monitoring. Electronic monitoring requires correctional staff to install (and maintain) the devices and thus to violate social distancing guidelines. Because these devices require monitored people to request permission to leave their designated areas — a process which can take days — electronic monitoring will restrict people from seeking appropriate medical treatment, not to mention imposing additional user fees payable to the monitoring companies that low income people struggle to pay during the best of times.
  • Minimize in-person requirements. Parole and probation offices should limit face-to-face meetings (especially in crowded offices), suspend on-site drug testing, and limit home visits.
  • Courts should cancel pretrial meetings, court-ordered classes, collection of court debt, and all collateral consequences for failure to pay fines and fees.
  • Courts, probation offices, and parole offices should eliminate supervision fees, including those that are paid to third-party monitoring services. Under the additional financial pressure created by the pandemic, many more people under supervision will be unable to afford fees, which will put them at risk of arrest and incarceration. This isn’t a good use of criminal justice resources right now.
  • When faced with technical violations of parole or probation rules — behaviors that, for people not on parole or probation, would not warrant incarceration — police should refuse to arrest, jails should refuse to admit, and parole/probation boards should not consider revocation. If necessary, alternative sanctions should be imposed that can be complied with from home, such as completion of an online course or more frequent phone/video check-ins.

 

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity.

Both incarcerated people and staff would benefit from a health care system that prioritizes human life and dignity over money. Here are some ideas:

  • Eliminate medical copays that deter people from seeking healthcare in prison and jail. As of March 27, Hawaii, Kansas, and Nevada state prisons are still charging copays, and Delaware, Maryland, Oklahoma, and Utah have at least twice failed to respond to our inquiries about their copay policy during the pandemic. (For the current status of all states see the copays section of our virus response page.)
  • Ensure that staff have sufficient paid sick leave and encourage staff to stay home if they or anyone in their family shows symptoms. Making the necessary changes to reduce overcrowding (and confinement overall) will greatly reduce the need for over-burdened administrators to ask staff to work when sick.
  • Provide for basic healthcare needs behind bars, starting with the basic requisites for effective hand-washing. Stop charging incarcerated people for basic products that can protect them from illness. People in prison should not be reliant on COVID-19 fundraisers for necessities such as soap.
  • Ensure that facility overcrowding never reduces the quality of the health care provided. When overcrowding or budget concerns impact health care, the first response should always be to reduce the facility population until health care can meet constitutional standards.
  • Staff in courts, prisons, and jails should ensure that incarcerated people’s health concerns are taken seriously.
  • Ensure that the physical and mental health–and human dignity–of people who remain in prison is protected. Particularly helpful is the 40 point checklist prepared by the Washington State Office of Corrections Ombuds, based on the CDC’s guidance to correctional facilities.

 

5. Don’t make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary.

For people in the free world, communication is almost free, but for the families of incarcerated people, phone calls, video calls and emails are quite expensive. At this time of great stress for everyone, the facilities need to do better:

  • Provide unlimited, free phone calls so that families can maintain contact throughout the pandemic when visitation is suspended. Allowing people to assure themselves that their families are safe will greatly reduce stress and anxiety, which, due to the pandemic, are sky-high inside prisons and jails.
  • Facilities that do not have video calling systems already in place should temporarily refit the now-empty visiting rooms to support free video calling options with publicly available services like Zoom and Skype. These services can often be installed quickly without the involvement and costs of the prison telephone industry giants.

~

Since our first coronavirus briefing at the beginning of March, we have been tracking how federal, state, and local officials have responded to the threat of COVID-19 in the criminal justice system. A number of jurisdictions have taken quick and laudable actions to protect the most vulnerable justice-involved people, including reducing the number of arrests and bookings, releasing people held pretrial, reducing admissions to state prisons, and suspending medical copays in most states. Given the toll COVID-19 has already taken on our jails and prisons, as well as our society at large, the time is now for federal, state, and local officials to put public health before punishment.

 

Footnotes

  1. Although national numbers of jail releases per day are not available, the number of jail admissions — 10.6 million annually — is relatively stable, with the jail population turning over quickly, at an average rate of 54% each week. Assuming, then, that the number of admissions is about the same as the number of releases, we estimate that about 29,000 people are released from jails in the U.S. every day (10.6 million divided by 365 days per year). In comparison, in 2017, state and federal prisons admitted and released over 600,000 people, averaging about 12,000 releases a week or 1,700 per day. For state-by-state data, we estimated the number of releases in a similar fashion — we divided the number of annual admissions and releases, obtained from the Census of Jails, 2013, by 365 days. Governors of other states may want to see this table based on data from the Census of Jails, 2013:

    State Jail Admissions Jail Releases
    Alabama 286,843 249,418
    Alaska 5,392 3,686
    Arizona 210,399 202,484
    Arkansas 258,321 232,255
    California 1,102,972 995,338
    Colorado 211,397 197,866
    District of Columbia 12,008 12,238
    Florida 732,602 680,801
    Georgia 602,648 537,857
    Idaho 104,539 50,384
    Illinois 315,553 290,264
    Indiana 270,415 277,994
    Iowa 127,179 123,693
    Kansas 153,914 142,759
    Kentucky 548,733 509,413
    Louisiana 317,091 334,730
    Maine 37,995 33,934
    Maryland 156,659 164,736
    Massachusetts 58,115 76,253
    Michigan 359,631 348,584
    Minnesota 188,662 180,393
    Mississippi 125,961 119,682
    Missouri 252,131 239,562
    Montana 48,418 39,179
    Nebraska 72,616 72,687
    Nevada 144,256 146,657
    New Hampshire 20,841 22,187
    New Jersey 147,088 134,407
    New Mexico 150,488 142,035
    New York 219,320 201,939
    North Carolina 417,199 433,700
    North Dakota 39,367 35,979
    Ohio 405,313 395,648
    Oklahoma 409,293 261,454
    Oregon 176,549 172,476
    Pennsylvania 209,732 213,319
    South Carolina 301,594 325,976
    South Dakota 56,477 56,851
    Tennessee 461,375 439,364
    Texas 1,144,687 1,083,223
    Utah 97,509 98,651
    Virginia 355,549 304,466
    Washington 283,627 305,963
    West Virginia 47,439 46,210
    Wisconsin 227,243 208,406
    Wyoming 29,384 30,803

     ↩

  2. In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.
     ↩

  3. Release on own recognizance, or ROR, is essentially when someone charged with a crime is not required to pay any money for pretrial release or comply with other conditions such as pretrial supervision. For example, a prosecutor may consent to ROR when it is someone’s first arrest and there is no reason to think that the person would not show up for future court dates.
     ↩

  4. In 2013, 8% of Texas jail capacity went to U.S. Marshalls Service detainees. The figure was 7% in New Hampshire, 6% in Missouri, and 5% in Arkansas, Illinois, Kentucky, Maine, Montana, and North Carolina. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  5. In 2013, 10% of New Jersey jail capacity went to immigration detainees. The figure was 5% in Wisconsin, Massachusetts and Arizona, and 4% in Utah, Nevada, New York and Colorado. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  6. In 2013, 68% of Louisiana jail capacity went to housing people for the state prison system. The figure was 51% in Kentucky, 50% in Mississippi, 39% in Arkansas, 36% in Tennessee, and 32% in West Virginia. For the data for all states, see Table 2 to our report Era of Mass Expansion:
    Why State Officials Should Fight Jail Growth
    .
     ↩

  7. Professor Aaron Littman at the UCLA School of Law has compiled a spreadsheet [.pdf download] to help readers understand which local officials have the power to release people from jails. The information in the spreadsheet is state-specific.  ↩

  8. Policymakers should also double their efforts — without slowing down actual releases — to plan for a continuity of health care after release, including getting people signed up for Affordable Care Act coverage and giving them referrals for other treatment as needed.  ↩

  9. One way the Los Angeles County Sheriff’s Department is reducing its jail population is by allowing deputies to cite and release anyone whose total bail would amount to less than $50,000.  ↩

  10. We know that some will ask about where these people will go. As is always the case, some have a home and support system waiting for them. Others will experience homelessness or housing instability. Unfortunately, the current struggle of formerly incarcerated people to secure housing is still likely safer than a possible death sentence from forced confinement in one of the densest housing situations on the planet.  ↩

  11. Note that people convicted of violent crimes and sex offenses are the least likely to commit a similar offense in the future.  ↩

  12. Holding court hearings via video may violate due process rights and other rights afforded under the federal and state constitutions, and it has been proven to change the outcomes of judicial decisions for the worse. For example, using video to set bail has been shown to increase bail amounts by 65%. Policy makers considering video should also consider the chilling findings from 2015 study by Ingrid Eagly of the impact of using video during federal immigration proceedings:

    “Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process — they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure.”
     ↩


Even in the best of times, jails are not good at providing health and social services.

by Alexi Jones, March 19, 2020

With jails considering major policy changes as part of the response to the COVID-19 pandemic, we’re seeing a troubling question from allies with a little less experience on criminal justice issues: Given that jails provide valuable social services, wouldn’t it be bad to release people who need services? Aren’t the homeless, the mentally ill, or people with substance use disorders better off in jail?

In a word: No.

The longer answer is that even in the best of times, jails are not good at providing health and social services. Although local jails are filled with people who need medical care and social services, jails have repeatedly failed to provide these services. As a result, many people end up cycling in and out of jail without ever receiving the help they need. For example, even though a disproportionate number of people in jails have mental health disorders, jails have repeatedly failed to provide adequate mental healthcare. People with mental health disorders are often put in solitary confinement, have limited access to counseling, and not checked on regularly due to staffing shortages. The tragic result of these failures is that suicide is the leading cause of death in local jails.

Similarly, jails consistently fail to provide adequate medical care to incarcerated people. Notably, although two-thirds of people in local jails have a substance use disorder, most jails and prisons refuse to provide medication assisted treatment (MAT) for opioid use disorder—the gold standard for care. Moreover, substandard healthcare has had lethal consequences. For example, CNN recently published a scathing investigation into WellPath (formerly Correct Care Solutions), one of the country’s largest jail healthcare providers. They found that WellPath provides substandard healthcare that led to more than 70 preventable deaths in local jails between 2014 and 2018.

It’s absolutely true that people in the criminal justice system have a lot of ignored needs. But we shouldn’t misconstrue the “services” offered in jails as reasons to keep people confined in what are always harmful conditions. Given that many people in local jails have health conditions that make them especially vulnerable to this new coronavirus, and simple precautions like social distancing are nearly impossible behind bars, it is vital that we release anyone from jail who doesn’t need to be there. For many, it will be a matter of life or death.


How ICE and probation and parole detainers (or “holds”) contribute to unnecessary jailing

by Wendy Sawyer, Alexi Jones and Maddy Troilo, March 18, 2020

By now, most people paying attention to the U.S. criminal justice system have heard about problems with the overuse and misuse of local jails. Chief among these problems are the serious, even deadly, harms caused by even brief periods of jail detention. But one problem has escaped the attention of the public and policymakers alike: the unnecessary jail detention caused by “detainers,” which account for as much as one-third of some jail populations, if not more. This briefing explains how detainers (also often called “holds”) contribute to unnecessary jailing, and offers a preliminary analysis of available national, state, and local data as evidence of a widespread policy problem that demands greater attention.

Detainers, explained

Typically, people in jails are categorized as unconvicted (65% nationally) or convicted (35%). In our Mass Incarceration: The Whole Pie report, we have been able to go one step further, breaking apart the roughly 16% who are held for other agencies that pay to keep them boarded there. But another group of people are still obscured by this breakdown of the jail population: people who are in jail for more than one reason, who have what we’ll call a “dual status.” A significant number of people are locked up because of some kind of “detainer” or “hold” for their probation or immigration status, for example, which renders them ineligible for release. These people aren’t brought into jail on a detainer, but the detainer can keep them there when they otherwise could have gone home.

For example, if someone who is on probation is charged with a new low-level offense, they can be held in jail without bail if the probation department has issued a detainer for violating their probation. In fact, this is a critical part of Kalief Browder’s story: initially held on unaffordable bail, he was later denied bail because the Probation Department filed paperwork saying the new charge meant he had violated probation. It was the “violation of probation” – or “probation hold” – that kept Browder at Riker’s so long, causing irreparable harm that led to his eventual death. Without his dual status as a probationer, he probably wouldn’t have had money bail set in the first place: his friend, who was arrested along with him but was not on probation, was allowed to go home the next day. Even with his probation status, the judge was willing to set bail. It was only when the Probation Department stepped in to make their claim on his freedom that the judge remanded him without bail.

A detainer by any other name

States give them different names, but all detainers jail people for reasons other than public safety.

Before describing various types of detainers, it’s worth noting that jurisdictions don’t all use the same terms to describe the same scenario. For example, the administrative request that a person be held in jail until a probation or parole violation gets cleared up might be called a “detainer” in Pennsylvania, a “violation of probation” in New York, a “blue warrant” in Texas (for technical violations), and, in other places, more generally referred to as a “probation or parole hold.” Further complicating matters, people who are boarded in jails are often described as being “held” for other agencies, like ICE, state Departments of Corrections, the U.S. Marshals, etc. – these should not be confused with detainers or the other kinds of “holds” discussed here. That is another important, but separate, issue that we have written about elsewhere.

Detainers or “holds” are an overlooked policy problem that carries significant personal, social, and fiscal costs. They often expose detained people to the harms of incarceration for longer periods of time than they would be otherwise. This includes innocent people like Browder, whose case was dismissed three years into his time at Riker’s, after tremendous damage had already been done. By delaying jail releases, detainers also contribute to avoidable public costs by filling up local jails, often with people who are accused of low-level offenses. Detainers undermine the work of local jurisdictions trying to reduce unnecessary detention through pretrial reform, keeping people locked up for essentially administrative reasons rather than public safety reasons.

Detainers that impact jail populations most: Probation & parole holds and ICE detainers

As we touched upon above, probation and parole violations account for a lot of detainers. These can be for either “technical violations” or new violations of law. Technical violations are behaviors that break probation or parole rules, such as missing curfew, failing a drug test, or missing a check-in meeting; they are not behaviors that would count as “crimes” for someone not under community supervision. However, when people who are under community supervision are charged with a new crime, that also constitutes a violation of their probation or parole, and typically must be reported.1 Individuals can be kept in jail without bail for either type of violation on a probation or parole detainer.

In a 2019 report, the Council of State Governments (CSG) found that “45% of state prison admissions nationwide are due to violations of probation or parole.” Technical violations alone account for 25% of prison admissions; even less (20%) are for new criminal offenses. There is no comparable analysis for jails, but the fact that community supervision violations contribute so significantly to prison populations is suggestive that these violations could be responsible for large numbers of people locked up in jails as well.

U.S. Immigration and Customs Enforcement (ICE) also uses detainers to keep people in local jails to give ICE time to take them into federal custody for eventual deportation. These detainers, or “immigration holds,” request that local officials to notify ICE before a specific individual is released from jail custody and then to keep them there for up to 48 hours after their release date. These detainers essentially ask local law enforcement to jail people even when there are no criminal charges pending.

Detainers that apply to people in prison

In addition to ICE and probation parole holds, many people in prison have detainers for unresolved charges in other jurisdictions.

Detainers also apply to people in prisons with dual statuses – including ICE detainers for those the federal government believes may be “removable” – but in prison, it is less likely that someone would be kept in custody solely because another agency wants them to stay behind bars. More often, people serving state prison sentences have detainers for untried charges in other states or in the federal court system. These other jurisdictions lodge detainers so they have the chance to take custody of people with unresolved cases, in order to prosecute them, before they are released.

Unlike people in jails with detainers, though, people aren’t typically held in prison solely because another agency wants them held for their own purposes. And unlike people in jails, people in prison can resolve their outstanding cases while they serve their sentence, thanks to the Interstate Agreement on Detainers. That Agreement allows either the incarcerated person or a prosecutor from another jurisdiction to initiate disposition of the unresolved charges, so that they don’t have to wait until the sentence is over. This also means that the person in prison may be able to serve any new sentence concurrently or have all their outstanding court issues cleared up before they are released.

Because these detainers have such a different effect than the ICE detainers and probation and parole holds keeping people in jails, we focused our attention on the jail detainers for this analysis.

These detainers are the subject of heated debate, as many local jurisdictions are reluctant to take on the risk of litigation and liability associated with the constitutional concerns they raise (and/or reluctant to support the Trump administration’s immigration policy), which is reflected in the growing number of detainer refusals. Part of their reluctance may be that these risks are often taken on unnecessarily: ICE doesn’t consistently take these individuals into its own custody, even when it issues a detainer for them. The last time ICE released data on this point, the agency was only assuming custody in 35% of all cases where they issued a detainer – meaning that most of the time, jails that kept people locked up on ICE detainers did so for no reason at all.

How many people are in jail because of probation and parole detainers?

(The short answer: it varies, but in some places it’s over a third of the jail population, and we need better data to really answer this question.)

Continue reading →


We offer five examples of policies that could slow the spread of a viral pandemic in prisons and jails - and would mitigate the everyday impact of incarceration on public health.

by Peter Wagner and Emily Widra, March 6, 2020

This briefing has been updated and expanded on March 27 with Five ways the criminal justice system could slow the pandemic. We recommend reading that one instead.

Since publishing this article, we have been tracking which prisons, jails and other criminal justice agencies are making meaningful policy changes to slow the spread of COVID-19. See our tracker, which we update daily, at https://www.prisonpolicy.org/virusresponse.html.

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers think about how a viral pandemic would impact people in prisons, in jails, on probation, and on parole, and to take seriously the public health case for criminal justice reform.

Below, we offer five examples of common sense policies that could slow the spread of the virus. This is not an exhaustive list, but a first step for governors and other state-level leaders to engage today, to be followed by further much-needed changes tomorrow.

Quick action is necessary for two reasons: the justice-involved population disproportionately has health conditions that make them more vulnerable, and making policy changes requires staffing resources that will be unavailable if a pandemic hits.

The incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19, the novel coronavirus. Protecting vulnerable people would improve outcomes for them, reduce the burden on the health care system, protect essential correctional staff from illness, and slow the spread of the disease.

Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population. Pregnancy data come from our report, Prisons neglect pregnant women in their healthcare policies, the CDC’s 2010 Pregnancy Rates Among U.S. Women, and data from the 2010 Census. Cigarette smoking data are from a 2016 study, Cigarette smoking among inmates by race/ethnicity, and all other data are from the 2015 BJS report, Medical problems of state and federal prisoners and jail inmates, 2011-12, which does not offer separate data for the federal and state prison populations. Cigarette smoking may be part of the explanation of the higher fatality rate in China among men, who are far more likely to smoke than women.
Prevalence of health condition by population
Health condition Jails State prisons Federal prisons United States
Ever tested positive for Tuberculosis 2.5% 6.0% 0.5%
Asthma 20.1% 14.9% 10.2%
Cigarette smoking n/a 64.7% 45.2% 21.2%
HIV positive 1.3% 1.3% 0.4%
High blood pressure/hypertension 30.2% 26.3% 18.1%
Diabetes/high blood sugar 7.2% 9.0% 6.5%
Heart-related problems 10.4% 9.8% 2.9%
Pregnancy 5.0% 4.0% 3.0% 3.9%

The other reason to move quickly is that, on a good day, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. If a pandemic hits and up to 40% of government lawyers are either sick or taking care of sick relatives and most of the rest are working from home, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to start:

  1. Release medically fragile and older adults. Jails and prisons house large numbers of people with chronic illnesses and complex medical needs, who are more vulnerable to becoming seriously ill and requiring more medical care with COVID-19. And the growing number of older adults in prisons are at higher risk for serious complications from a viral infection like COVID-19. Releasing these vulnerable groups from prison and jail will reduce the need to provide complex medical care or transfers to hospitals when staff will be stretched thin. (In Iran, where the virus has been spreading for several weeks longer than in the U.S., the government just gave temporary release to almost a quarter of their total prison population.)1
  2. Stop charging medical co-pays in prison. Most prison systems have a short-sighted policy that discourages sick people from seeking care: charging the free-world equivalent of hundreds of dollars in copays to see a doctor. In the context of COVID-19, not receiving immediate, appropriate medical care means allowing the virus to spread across a large number of people in a very confined space. These policies should all be repealed, but at a minimum should be immediately suspended until the threat of pandemic is over. (This will also reduce the administrative burden of processing and collecting these fees.)
  3. Lower jail admissions to reduce “jail churn.” About one-third of the people behind bars are in local jails, but because of the shorter length of stay in jails, more people churn through jails in a day than are admitted or released from state and federal prisons in 2 weeks. In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.2 As we explained in a 2017 report, there are many ways for state leaders to reduce churn in local jails; for example, by: reclassifying misdemeanor offenses that do not threaten public safety into non-jailable offenses; using citations instead of arrests for all low-level crimes; and diverting as many people as possible people to community-based mental health and substance abuse treatment.3 State leaders should never forget that local jails are even less equipped to handle pandemics than state prisons, so it is even more important reduce the burden of a potential pandemic on jails.
  4. Reduce unnecessary parole and probation meetings. People deemed “low risk” should not be required to spend hours traveling to, traveling from, and waiting in administrative buildings for brief meetings with their parole or probation officers. Consider discharging people who no longer need supervision from the supervision rolls and allow as many people as possible to check in by telephone.
  5. Eliminate parole and probation revocations for technical violations. In 2016, approximately 60,000 people were returned to state prison (and a larger number were arrested), not because they were convicted of a new criminal offense, but because of a technical violation of probation and parole rules, such as breaking curfew or failing a drug test. States should cease locking people up for behaviors that, for people not on parole or probation, would not warrant incarceration. Reducing these unnecessary incarcerations would reduce the risk of transmitting a virus between the facilities and the community, and vice versa.

There is one more thing that every pandemic plan needs to include: a commitment to continue finding ways — once this potential pandemic ends — to minimize the number of confined people and to improve conditions for those who are incarcerated, both in anticipation of the next pandemic and in recognition of the every day public health impact of incarceration.

None of the ideas in this briefing are new. All five are well established criminal justice reforms that some jurisdictions are already partially implementing and many more are considering. These ideas are not even new to the world of pandemic planning, as we found some of them buried in brief mentions in the resources listed below — albeit after many pages about the distribution of face masks and other technical matters. Correctional systems need to be able to distribute face masks to the people who need them, of course, but making urgent policy decisions about changing how and where you confine people is not something that should be relegated to a sentence about how agencies may want to “consider implementing alternative strategies.”

The real question is whether the criminal justice system and the political system to which it is accountable are willing to make hard decisions in the face of this potential pandemic, in the face of the one that will eventually follow, and in the context of the many public health costs of our current system of extreme punishment and over-incarceration.

 

Appendix: Other resources for practitioners

While preparing this briefing, the Prison Policy Initiative identified some resources that may be helpful for facilities and systems that may be starting from scratch on a COVID-19 response plan, which we share below. This list is not intended to be comprehensive, and will hopefully soon be out of date as other agencies update and share their own plans:

 

Footnotes

  1. Earlier this week, Iran reportedly released about 54,000 incarcerated people with sentences under five years, which is almost a quarter of their total prison population of 240,000 people, based on 2018 data from the World Prison Brief.  ↩

  2. Although national numbers of jail releases per day are not available, the number of jail admissions — 10.6 million annually — is relatively stable, with the jail population turning over quickly, at an average rate of 54% each week. Assuming, then, that the number of admissions is about the same as the number of releases, we estimate that about 29,000 people are released from jails in the U.S. every day (10.6 million divided by 365 days per year). In comparison, in 2017, state and federal prisons admitted and released over 600,000 people, averaging about 12,000 releases a week or 1,700 per day. For state-by-state data, we estimated the number of releases in a similar fashion — we divided the number of annual admissions and releases, obtained from the Census of Jails, 2013, by 365 days. Governors of other states may want to see this table based on data from the Census of Jails, 2013:

    State Jail Admissions Jail Releases
    Alabama 286,843 249,418
    Alaska 5,392 3,686
    Arizona 210,399 202,484
    Arkansas 258,321 232,255
    California 1,102,972 995,338
    Colorado 211,397 197,866
    District of Columbia 12,008 12,238
    Florida 732,602 680,801
    Georgia 602,648 537,857
    Idaho 104,539 50,384
    Illinois 315,553 290,264
    Indiana 270,415 277,994
    Iowa 127,179 123,693
    Kansas 153,914 142,759
    Kentucky 548,733 509,413
    Louisiana 317,091 334,730
    Maine 37,995 33,934
    Maryland 156,659 164,736
    Massachusetts 58,115 76,253
    Michigan 359,631 348,584
    Minnesota 188,662 180,393
    Mississippi 125,961 119,682
    Missouri 252,131 239,562
    Montana 48,418 39,179
    Nebraska 72,616 72,687
    Nevada 144,256 146,657
    New Hampshire 20,841 22,187
    New Jersey 147,088 134,407
    New Mexico 150,488 142,035
    New York 219,320 201,939
    North Carolina 417,199 433,700
    North Dakota 39,367 35,979
    Ohio 405,313 395,648
    Oklahoma 409,293 261,454
    Oregon 176,549 172,476
    Pennsylvania 209,732 213,319
    South Carolina 301,594 325,976
    South Dakota 56,477 56,851
    Tennessee 461,375 439,364
    Texas 1,144,687 1,083,223
    Utah 97,509 98,651
    Virginia 355,549 304,466
    Washington 283,627 305,963
    West Virginia 47,439 46,210
    Wisconsin 227,243 208,406
    Wyoming 29,384 30,803

     ↩

  3. Policymakers should also double their efforts — without slowing down actual releases — to plan for a continuity of health care after release, including getting people signed up for Affordable Care Act coverage and giving them referrals for other treatment as needed.  ↩




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