Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic

Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic

by Tiana Herring, February 3, 2021

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic. Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes. In over half of the states we studied—Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina – between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times. Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations. And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.¹ But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release. Parole boards often choose to deny the majority of those who appear before them.

Of the 34 states with discretionary parole, we were able to find parole data for both 2019 and 2020 for these 13 states. Four states – Alabama, Hawaii, Iowa, and New Jersey – report their parole data by the fiscal year instead of the calendar year. Thus, the impact of the pandemic on parole releases may appear less extreme in these four states. (Fiscal Year 2020 data from Alabama reflects hearings held between Oct 1, 2019 and Sept 1, 2020, while Fiscal Year 2020 data in the other three states reflects hearings held between July 1, 2019 and June 30, 2020.) We’ve still included these states, however, as they capture early parole responses to the pandemic.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole. This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months. Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states – Hawaii, Iowa, New Jersey, and South Dakota – actually approved more people for parole in 2020 than in 2019.

Denying people parole during a pandemic only serves to further the spread of the virus both inside and outside of prisons. As the number of cases and deaths in prisons due to COVID-19 continue to rise, parole boards still have the opportunity to help slow the spread of the virus by releasing more people in 2021.

We list 27 “winnable, high-impact” state legislative reforms that would change the justice system and save lives in 2021

Our new “Winnable Criminal Justice Reforms” report lists 27 policy ideas for state legislators, as well as model bills and links to more information on each policy.

by Wanda Bertram, January 27, 2021

This report has been updated with a new version for 2025.

The new president and new Congress are stirring hopes for federal criminal justice reform, but in 2021 — just like every other year — it is state legislators who will have the power to free the most people from prisons and jails.

Because the vast majority of people locked up in this country are held in facilities controlled by state and local lawmakers, we’ve just published a report about 27 winnable criminal justice reforms that state legislators can take on. Our report includes links to model bills and studies supporting each of our recommended reforms.

Getting people out of prisons and jails — and out of the “nets” of constant surveillance that can get them thrown back in prison for minor violations — is a matter of life and death this year, as the COVID-19 pandemic continues to kill people behind bars. Our list of reforms ripe for legislative victory includes many policy changes that will save lives during the pandemic, including:

• Funding non-police responses to crises involving people with disabilities or mental illnesses
• Decriminalizing youth offenses and ending the prosecution of youth as adults
• Radically reducing pretrial detention and ending money bail
• Updating the dollar threshold for felony theft
• Ending incarceration for noncriminal violations of probation and parole
• Ending driver’s license suspensions for nonpayment of fines and fees
• Eliminating medical copays in prisons and jails

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

This week, we’re mailing our report to hundreds of state legislators and urging them to introduce these critical reforms. Will your state make criminal justice reform a priority in 2021?

People in jails are using more phone minutes during the COVID-19 pandemic, despite decreased jail populations

Our study of 14 jails finds that there were 8% more overall minutes used during the pandemic, despite the fact that nationwide jail populations have fallen about 15%.

by Andrea Fenster, January 25, 2021

People in jails spent 8% more time on the phone over a three-month period of 2020 than in the same timeframe of 2019, according to data gathered from facilities around the country. This may come as a surprise, considering that there were fewer people behind bars to make these calls: jail populations have fallen about 15% on average since March, thanks to modest COVID-19 protection measures.

But, like the jail population reductions, the increase in phone minutes is attributable to COVID-19. Across the country, COVID-19 cases have ballooned in prisons and jails. Insufficient medical care, aging populations, poor preparedness, inability to social distance, and lack of sanitation combine in correctional facilities to create deadly conditions amidst a global pandemic. As a result, many jails have suspended in-person visitation, leaving phone and video calls as the main way for people to communicate with loved ones.

It makes sense, then, that more minutes were used in 2020 than 2019. This increase was attributable to both longer and more frequent calls: the number of calls increased by 3% and calls, on average, were 5% longer. These increases came despite the fact that many correctional facilities have used lockdowns as a COVID-19 prevention measure, which generally limit movement and phone access.

Calls from jails can be costly. For example, in one of the jails that provided data, in Pierce County, ND, a 15-minute call can cost $8.36. So when call volumes go up, billion-dollar companies like Securus–and the jails themselves–rake in the profits. Families around the country were already stretching their wallets to afford calls from their incarcerated loved ones. Now, during a pandemic that has caused mass unemployment, these phone bills are increasing as people accept longer and more frequent calls to help their loved ones maintain a lifeline to the outside world.

Methodology

To calculate changes in call volumes, we studied Securus Call Commission Reports from 2019 and 2020 in city and county jails across the nation. (We chose Securus both because it is the second-largest phone provider in prisons and jails, and because its reports are standardized across facilities, making them easy to compare.) To ensure that changes in the rates would not impact our results, we first identified Securus facilities where the per-minute call rates had not changed between our 2018 Phone Rates Survey and December 2020. We then sent record requests to 23 randomly-selected jails of varying populations, as well as 14 of the largest jails in the country, requesting each facility’s three most recent Call Commission Reports, as well as those for the same time period one year prior.

Ultimately, we received 14 complete responses as of January 21, 2021, from facilities ranging in average daily population from 12 to 3,844. ¹ (The average daily population for each facility was gathered from Securus’s 2019 Annual Report to the FCC, filed October 23, 2020.)

More states need to use their “good time” systems to get people out of prison during COVID-19

Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren't more states using this tool to safely reduce prison populations during COVID-19?

by Emily Widra and Wanda Bertram, January 12, 2021

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives. But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect:

• Correctional agencies have suspended programs, classes, and other valuable resources for incarcerated people. Not only does suspending programming make life in prison more difficult; it also slows down upcoming releases: People who have been approved for parole are still waiting behind bars to complete programs required for their release.
• Shockingly, despite clear evidence that solitary confinement is not a suitable replacement for medical isolation or quarantine, the use of solitary confinement has increased 500% during the pandemic.
• Visitation has been limited or completely suspended in all 50 states and the federal prison system, and only some states have provided free video and phone calls while visitation is suspended.
• Prison systems have delayed thousands of releases scheduled for 2020, scrambling to balance the need for fewer people behind bars with the need to connect people to community health resources if they have been exposed to COVID-19 prior to release.
• Transfers have slowed, and in some places, completely halted to prevent the spread of COVID-19 between facilities. As a result, people have been stuck in limbo at transitional facilities that are not designed to house people for months at a time, or imprisoned in higher security facilities than are necessary.
• Corrections staff are reprimanding incarcerated people for inadequate social distancing, even though maintaining physical distance from others is impossible in prison.

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions. A solution — albeit one that will require legislative action in most states — is for states to immediately change their “good time” policies.

“Good time” — also called “earned time,” “meritorious credit,” or similar — is a system by which people in prison can earn time off their sentences. States award time “credits” to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether. Good time systems vary between states (see the National Conference of State Legislatures’ detailed table) but time credits are often given out for participating in programs. For example, New York offers a six-month credit for completion of the GED. 26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting). Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules. During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions “akin to solitary confinement.” Yet most have not been rewarded with additional “good time” for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it’s the fair thing to do but because it will allow some people to leave prison immediately. At least one state — New Jersey — has already used time credits to get people safely out of prison, with impressive results.

In October, New Jersey Governor Phil Murphy signed Bill No. 2519 into law to shorten sentences and allow for early releases during the COVID-19 crisis. The bill mobilized “public health emergency credits” and “compliance credits” to shorten sentences, similar to the way good time credits can reduce sentence lengths. Almost immediately after the bill was implemented, more than 2,000 people were released from New Jersey state prisons, signifying one of the first large-scale releases during COVID-19.

New Jersey is not the only state changing its good time policies during the pandemic. Stateline reports that in August, California gave 12 weeks of good time to people who had no rules violations on their records. (This policy only benefited 7,000 people out of the hundreds of thousands in California prisons, however — possibly because it is easy to accrue violations for disobeying the most minor rules.) And the New Hampshire Department of Corrections recently created new opportunities for people to earn time credits. Even more impressive is a recently-introduced bill in Delaware, which “would award six months of credit toward every month served during the public health emergency, with a maximum sentence reduction of one year.”

Changing good time policies has advantages over other mechanisms that states can use to release people. For example, 16 states have revoked the right to parole for most people in prison (the disastrous result of Truth in Sentencing laws). These states should bring back parole as soon as possible, but in the meantime, they can use good time credits to hasten decarceration. Awarding more good time credits is also efficient, as it leads to immediate release for people who were already close to their release dates anyway.

It is likely that other states will also have to pursue these efforts through new legislation, which is not ideal during a public health crisis. But New Jersey has demonstrated is that it is possible to enact such a bill quickly (Bill No. 2519 was passed in mid-October, and the 2,000 people were released shortly after, during the first week of November).

New Jersey’s release of thousands of incarcerated people is a good start, but states looking to use their legislation as an example should expand upon the work New Jersey began. For example, the New Jersey legislation excludes people who are serving sentences for specific offenses and only applies to people who are within a year of their scheduled release dates. States should award credits to shorten the sentences of all people incarcerated during COVID-19, regardless of offense type or sentence length.

Specifically, we recommend that state prison systems with existing good time systems make these permanent reforms immediately:

1. Grant additional good time credits to all incarcerated people for serving time during the pandemic.
2. At a minimum, people who would be earning good time through a program that has been suspended during the pandemic should be credited with that time, since they lost the opportunity through no fault of their own.
3. Expand eligibility to all incarcerated people, regardless of offense type or sentence length.
4. Refrain from revoking good time credits that people in prison have already accrued, except for the most serious of offenses.
5. Protect good time that people have already earned by making time earned credits vested and immune from forfeiture after five years.

States that do not have systems that allow people to earn time off their sentences should create those systems, and give all incarcerated people a meaningful opportunity for release. Good time is one of the most effective mechanisms that states can use to release incarcerated people in a timely manner (we wrote about the other seven in our report Eight Keys to Mercy). As a pandemic continues to turn prison sentences into death sentences, it has never been more urgent that state prison systems strengthen their levers of mercy.

Prison Policy Initiative and allies oppose new banking rule

Trump administration proposes to prohibit banks from considering morality when making loans to the prison industry. We say no.

by Stephen Raher, December 31, 2020

Why do bank regulators care about the private prison industry? Most people would probably respond “they don’t,” and that answer would have been correct until a few months ago when the Office of the Comptroller of the Currency (“OCC”) proposed a troublesome new rule on bank lending.

In recent years, numerous social justice movements have used public education and advocacy to successfully persuade banks to stop financing certain industries like fossil fuel extraction, gunmakers, and private prison companies. In response to these generally beneficial movements, the OCC (an obscure but powerful federal agency) has proposed a rule that would prohibit federally chartered banks from considering non-quantitative aspects of a borrower’s business when making lending decisions. In other words, banks could no longer just say “we have moral or ethical problems with a certain industry and will not lend to such companies anymore.” An excellent general background and commentary on the rule can be found in this blog post by Prof. Adam Levitin (Georgetown Law School).

To be sure, private prisons are an unfortunate development, but the Prison Policy Initiative generally agrees with the assessment of Prof. Ruth Wilson Gilmore that the private prison industry receives disproportionate attention. Like Prof. Gilmore, we agree that private prisons are bad actors, but they do not drive policy and they represent a small sliver of the enormous system of mass incarceration. Still, the OCC’s proposed rule bothers us. We may not prioritize campaigns aimed at the private prison industry, but if our allies want to undertake that work, they should be able to. Plus, some of those campaigns have been successful, and those victories benefit everyone by chipping away at an indefensible and immoral industry.

So, we decided to speak up. On December 30, joined by a great group of allies (American Friends Service Committee, Beneficial State Foundation, Families Belong Together, Human Rights Defense Center, In the Public Interest, Make the Road New York, MomsRising, Presente.org, and Worth Rises), we submitted comments in opposition to the proposed rule. With the imminent change in presidential administration, we are hopeful that this bad idea can nipped in the bud.

Stimulus, round 2: Incarcerated people will be eligible for new round of payments

At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

by Stephen Raher, December 30, 2020

In the wake of the recently passed stimulus bill, many Americans are complaining about the paltry direct payments of $600. Without detracting from Congress’s failure to support the millions of people who need help, it is worth pausing to acknowledge one unexpected victory in the bill: It contains no prohibition on stimulus payments for incarcerated people.¹

The previous stimulus bill, passed in March, took some people by surprise by not making incarcerated people ineligible for direct cash payments. The IRS made an ill-advised (not to mention unauthorized) attempt to exclude incarcerated people, but this policy was slapped down by the federal courts. As we wrote previously, because Congress did not exclude people in prison or jail, the IRS had no choice but to issue the payments to incarcerated people who otherwise qualified. Others who made this same argument ultimately prevailed in court and incarcerated people began to receive stimulus checks.

In July, when Congress first started to consider a subsequent round of stimulus, the Senate Finance Committee proposed legislative language that would exclude incarcerated people from receiving funds (both going forward and retroactively). The fact that no such language appears in the bill passed in December suggests that this issue was probably the subject of actual negotiation.

It’s a good thing that Congress stuck to the policy of including incarcerated people in the pool of eligible recipients. Even before the pandemic, day-to-day life in prison and jail was getting expensive, with commissary charges for basic food and hygiene items, and increasingly common pay-to-play e-book and music programs. But the COVID-19 crisis has brought communications costs (phone, video, and electronic messaging) into sharp contrast. In the many facilities that have suspended in-person visits, phone and video are now essential services (which come with a price tag). When incarcerated people lack the money needed to pay for basic health and communications items, the financial burden typically falls on their loved ones on the outside who may have to sacrifice basic needs to support family members in prison.

The second round of stimulus payments will help people pay for basic necessities in prison or jail, and perhaps begin saving to cover expenses upon release from custody. At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

Prisons shouldn’t be charging medical co-pays – especially during a pandemic

Our December survey of medical co-pay policies shows that some states are reinstating medical co-pays as COVID-19 continues to spread in prisons.

by Tiana Herring, December 21, 2020

This briefing has been updated with updated data in May 2025.

Despite a record number of new COVID-19 cases in prisons this month, some state departments of correction are already starting to roll back necessary suspensions of medical co-pays. Prior to the pandemic, most prison systems charged incarcerated people between $2 and $5 for each medical appointment — a fee that can make attaining medical care burdensome or impossible. In March, we found that many states had relaxed these policies in response to the pandemic, either suspending all medical co-pays, or suspending those for respiratory or flu-like symptoms. But in a follow-up survey of medical co-pay policies, we found that since March, three states have made their policies more restrictive in the middle of the pandemic.

Arkansas, Idaho, and Minnesota had previously suspended all co-pays as of March, but have since reinstated co-pays for non-flu-like symptoms. They are now among 29 states that currently suspend co-pays only for visits involving respiratory, flu-related, or COVID-19 symptoms — a policy that discourages many from seeking treatment. Even worse, Nevada has continued to charge co-pays throughout the pandemic, regardless of symptoms.

Meanwhile, three states have improved their policies since March: New Jersey has suspended all medical co-pays, and Delaware and Hawaii suspended co-pays for those with flu-like symptoms.

Most states are still charging medical co‑pays in prisons
despite the ongoing pandemic

Before the pandemic prompted these suspensions, all but 11 states charged medical co-pays. While a $2 to $5 co-pay may not seem like much to a “free world” worker, unconscionably low wages in prisons make even the lower medical co-pays entirely too expensive. Because incarcerated people typically earn 14 to 63 cents per hour, these charges are the equivalent of charging a free-world worker $200 or $500 for a medical visit.

Currently, most states are suspending co-pays for flu-like or respiratory symptoms. But this is not enough to ensure that people are comfortable seeking treatment, and thereby preventing the spread of the virus. As we’ve seen over the course of the pandemic, not all COVID-19 symptoms fall within these vague categories – and many people don’t display symptoms at all. And some states, such as Indiana, have implemented policies that charge co-pays to those who “disingenuously” report symptoms. Policies like these could lead people to hold off on seeking care until their symptoms become more severe. What’s more, it’s likely harder than ever for many incarcerated people to afford medical copays, due to possible loss of paid work for themselves and their loved ones.

Prisons should instead enact policies that mirror the outside world, where people are encouraged to get tested often and carefully monitor their symptoms to prevent outbreaks. Suspending medical co-pays for everyone for the duration of the pandemic – or better yet, beyond the pandemic, as 11 states and D.C. have already done – is a necessary step departments of corrections should take to attempt to stop the spread of COVID-19 in prisons.

Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now?

As states mandate reducing the capacity of public spaces to slow the spread of COVID-19, we collect the data to show just how overcrowded almost every state prison system still is.

by Emily Widra, December 21, 2020

Before the pandemic, nine state prison systems and the BOP were operating at 100% capacity or more. These prison systems were holding more people than their facilities were designed to house. Now, 10 months into the pandemic, we find that there are still far too many people crowded into prisons across the country.¹ Despite the ongoing pandemic, and efforts to reduce the number of people behind bars, we calculated that 41 states are currently operating at 75% or more of their capacity, with at least nine of those state prison systems and the federal Bureau of Prisons are still operating at more than 100%. Only one state — Maine — has a current prison population below 50% of their capacity.²

Prison overcrowding has always been a serious problem, correlated with increased violence, lack of adequate health care, limited programming and educational opportunities, and reduced visitation. But during the current pandemic, overcrowded prisons — and even prisons operating at levels approaching capacity — are more deadly than ever. In a recent study of Texas prison capacity, COVID infection rates, and mortality, researchers found that prisons holding between 94 and 102% of their capacity had higher infection rates and more deaths than prisons operating at 85% of their total capacity, suggesting that a prison’s crowdedness correlates with viral spread.³ This makes sense when we consider that many state and local governments have mandated restaurants, retail spaces, and schools to operate at a reduced capacity to slow the spread of COVID-19 through communities.

Public health and medical experts have recommended decarceration since the beginning of the pandemic, arguing that fewer people behind bars would protect those who remain incarcerated and correctional staff, as well as slow the spread of COVID-19 in surrounding communities. But even as many prison populations slowly decrease in response to the pandemic, there is still not enough space inside most prisons to allow for adequate social distancing or medical isolation and quarantine. Prisons were not designed to address a public health crisis, and even before COVID-19 entered the picture, public health officials knew that correctional and detention settings were breeding grounds for all sorts of communicable diseases.

Throughout the country, states and the federal system have failed to carry out major prison reductions, leaving prisons operating at, close to, or even above their stated capacities. This contributes to deadly outcomes, as close quarters and high rates of preexisting health conditions among incarcerated people exacerbate the crisis behind bars. As a result, our crowded state and federal prisons have a COVID-19 case rate four times higher, and a death rate twice as high as in the general population.

New report shows that mass incarceration led to huge increase in national COVID-19 caseloads

The study provides the first estimates of how prisons and jails led to more coronavirus infections, both inside and outside prisons.

December 15, 2020

Over half a million COVID-19 cases this summer were directly linked to mass incarceration, a new report from the Prison Policy Initiative and Professor Gregory Hooks shows. The study provides the first estimates of how prisons and jails — which are “super spreaders” of the virus — added to COVID-19 caseloads on the county, state, and national levels, including infections of people both inside and outside prisons.

“Our findings leave no doubt that locking up millions of people in this country in close quarters has led to mass sickness and death in 2020, both in and outside of prisons,” said Hooks. “This huge growth in COVID-19 cases isn’t the fault of incarcerated people; it’s the fault of tough-on-crime politicians who insist that mass incarceration is necessary to keep us safe.”

In the study, titled Mass Incarceration, COVID-19, and Community Spread, Hooks compared the population density of incarcerated people in U.S. counties to the growth in COVID-19 cases in those counties over the summer of 2020. To get a more direct measure of community spread across county lines, he also measured the impact on county caseloads from prison and jail populations held in nearby counties located within the same multi-county economic areas. The findings include:

• At the county level: Over the summer of 2020, large prisons and jail populations within nonmetro counties (i.e. rural areas or those with small cities) directly contributed to higher COVID-19 caseloads in those counties.
• At the regional level: COVID-19 caseloads grew much more quickly over the summer among counties in greater economic areas containing large prisons and jails.
• At the national level: Mass incarceration led to more than half a million additional COVID-19 cases nationwide – or about 1 in 8 of all new cases – over the summer, including cases both inside and outside correctional facilities.

The report, written to be accessible to a general audience, includes graphics illustrating the major findings, as well as several tables listing the number of COVID-19 cases attributable to mass incarceration in the most heavily impacted states and economic areas. Additional appendix tables provide estimates of additional cases linked to incarceration for every county, economic area, and state in the U.S.

As the report explains, prisons and jails offer ideal conditions for the transmission of the coronavirus and have had the largest COVID-19 outbreaks in the U.S. on most days in 2020. A team of epidemiologists predicted in April that mass incarceration would lead to hundreds of thousands of additional cases in the U.S. In June, the Prison Policy Initiative released a report with the ACLU showing that states were failing at the one effort likely to prevent such a tragedy: the safe reduction of prison and jail populations. As of mid-November, the Prison Policy Initiative has shown, prison and jail populations are still dangerously high.

“Now that we have the first national numbers showing how prisons and jails sped up the spread of COVID-19, lawmakers need to take action to depopulate these facilities, or we will see even more preventable cases and deaths linked to the conditions in prisons and jails,” said Prison Policy Initiative Research Director Wendy Sawyer, co-author of Mass Incarceration, COVID-19, and Community Spread. “Even though the COVID-19 vaccine is rolling out, it will be months before the virus stops cycling through correctional facilities, and the action states have taken so far has not been enough to slow it down. So far, we’ve seen that too many lawmakers don’t care enough about people in prison to take action on their behalf, but our findings show that failing to reduce prison populations during the pandemic has led to more people outside prison getting sick as well.”

The full report is available at https://www.prisonpolicy.org/reports/covidspread.html.

Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans

Some states are including correctional facilities in their rollout plans. All states and the BOP should do so - and put incarcerated people near the top of the list.

by Katie Rose Quandt, December 8, 2020

This article has been updated as various states update their vaccination plans. New details have been added for the plans in Colorado, Connecticut, Illinois, Kansas, Maine, Massachusetts, Nevada, Oregon, Pennsylvania, and Wisconsin. Our most recent update was on March 2.

As the approaching rollout of a COVID-19 vaccine brings hope of an eventual end to the pandemic, it also introduces ethical dilemmas. With various groups of Americans at heightened risk of exposure, and others at increased risk of severe cases, who should be vaccinated first?

By any reasonable standard, incarcerated people should rank high on every state’s priority list. The COVID-19 case rate is four times higher in state and federal prisons than in the general population — and twice as deadly. And despite the danger of close quarters and high rates of preexisting health conditions among incarcerated people, prisons and jails have widely failed to reduce their populations enough to prevent the spread of the virus. Since March, at least 227,333 people incarcerated in state and federal prisons have tested positive for COVID-19, and at least 1,671 have died. There have also been at least 56,496 cases and 105 deaths among prison staff.

The federal Bureau of Prisons announced in November that it plans to reserve its early allotments of the vaccinations for staff, not incarcerated people. Curious whether this was indicative of broader policy decisions, we investigated how states are planning to address incarcerated populations and corrections staff in their early rounds of vaccination, which may begin as soon as mid-December. To do so, we looked through all 49 publicly available draft vaccination proposal plans, which states were required to submit this fall using guidelines provided by the Centers for Disease Control (CDC). (A complete plan from Minnesota was not available.)

In the draft proposals, states were encouraged to create three-phased plans for vaccine distribution, structured around availability of the vaccine. (Many states further subdivided the three phases into priority tiers, such as Phase 1A and Phase 1B):

• Phase 1: Potentially Limited COVID-19 Vaccine Doses Available
• Phase 2: Large Number of Doses Available; Supply Likely to Meet Demand
• Phase 3: Likely Sufficient Supply

Our most positive finding is that 40 of the 49 states addressed (or seemed to address) incarcerated people as a priority group at all, in the original plans or in later updates. But in many states, correctional staff are prioritized before incarcerated people (staff were also more likely to receive PPE early in the pandemic).

Missouri, for example, placed corrections staff in Phase 1B, while implying incarcerated people would be in Phase 3, which is also when the state plans to vaccinate “every Missourian who qualifies and needs or wants a COVID-19 vaccine.” The Missouri proposal rationalized this plan by pointing to staff as the likely entry point of the virus into facilities, and claiming that the spread can be controlled inside facilities. “Inmates’ confined nature has been amenable to procedural controls to reduce the likelihood of correctional facility outbreaks,” the report states. “As a result, staff now represent the most likely source of a facility outbreak. Vaccination of corrections staff can vastly reduce this source of potential attacks.” The report did not cite any data or other reports supporting these claims. The Missouri Department of Corrections has reported 36 COVID-19 deaths among its incarcerated population since March, as well as four deaths of staff members.

Furthermore, in a New York Times opinion piece, Emily Bazelon argued that the BOP’s similar prioritization of staff over incarcerated people, especially older detainees, “seems dubious, epidemiologically and ethically, without evidence that staff vaccinations would be enough to stop the spread of infection.”

State plans are often unclear and not specific

It is important to note that many of the states were unclear and unspecific in their plans, making it difficult to determine their intent. For example, many states included a CDC-produced graphic that assigns “critical populations” to Phase 2. Some, but not all, of these states provided further explanation as to how they define “critical populations.” For instance, Illinois’ original plan immediately followed the graphic with an explanation of who falls within “critical populations,” specifically listing, “People who are incarcerated/detained in correctional facilities.” We categorized these states as putting incarcerated people in Phase 2, since the intent was clear. (Illinois has since moved incarcerated populations to Phase 1B.)

Other states were somewhat less clear. Virginia, for example, included the CDC chart without any additional context. Elsewhere in the report, however, incarcerated people were included on a list of critical populations. Although it is not completely clear whether this list can be linked directly to Phase 2 on the graphic (“critical populations” is used in varying contexts throughout the reports), this additional attention to incarcerated people led us to categorize these states as “probably” including incarcerated people in Phase 2.

Other states, however, simply included the graphic without further explanation as to what “critical populations” means in their plans. For example, Kansas included the CDC graphic, but did not specifically mention incarcerated populations as part of a priority group anywhere else in the report. Due to our government’s history of medical mistreatment of incarcerated and detained populations, we did not give these states the benefit of the doubt by assuming they intended to include incarcerated people among “critical populations.” However, when states implement their plans, they certainly should include incarcerated populations in the prioritized “critical populations” category. (And in fact, Kansas later updated its plan to include incarcerated people in Phase 2.)

Similarly, some states were unclear on whether they intended to prioritize corrections staff. The same CDC graphic includes “other essential workers” in Phase 1B. Some states specifically interpreted this to include corrections staff. Other states implied this might include corrections staff, by referring to a document from the Cybersecurity and Infrastructure Security Agency (CISA), which provides an extensive list of who may be considered essential workers (that list includes corrections) — but without mentioning corrections workers specifically in their reports (in these cases, we labeled corrections staff as “Maybe Phase 1B”).

The appendix below includes explanations of how we categorized the states that did not explicitly place incarcerated people and staff into phases. Of course, if our judgement calls are incorrect in some instances, we may have listed a state as “maybe” or “probably” including these groups in a phase, when the state did not intend to assign a phase at all.

Another important point to note is that even among states that were specific, some used phrasing like “persons living in correctional facilities.” While we hope these states intend to prioritize those in jails and detention centers, as well as prisons, we cannot be sure — especially since there is a history of locally-operated jails falling through the cracks in state policy. And some states specifically excluded jails, such as New Mexico, which provided this explanation: “Because of the two-dose requirement, it may be difficult to ensure effective vaccination of facilities where people move in and out frequently such as homeless shelters and county adult detention centers. Two doses could be offered to inmates at state prisons and to adult residents at state and county juvenile justice centers.”

States should prioritize vaccinating those in county jails as well as prisons, both because jails can easily become COVID-19 hotspots, and because this is a way to reach large populations who might otherwise be missed.

Recommendations:

• Incarcerated people and corrections staff should be prioritized for vaccination against COVID-19. States and the BOP should not consider vaccination of staff as sufficient to stop the spread of COVID-19 in correctional facilities.
• Governors and state health officials should resist inevitable pressure to deprioritize incarcerated people. For example, earlier this month, when Colorado Gov. Jared Polis was questioned about his state’s decision to place incarcerated people in Phase 2A, ahead of some other vulnerable groups, he responded: “There’s no way it’s going to go to prisoners before it goes to the people who haven’t committed any crime.” This type of posturing violates the state’s duty to protect the health of people in its care, as well as to slow the spread of the virus in the places where it is poised to spread the fastest.
• Prisons and jails should decarcerate. Since March, public health and medical officials have warned that the only way to protect incarcerated people (and limit the inevitable spread of the virus out of facilities and back into the community) is by drastically decreasing prison and jail populations. Prisons and jails have largely failed on this front.

Appendix: State COVID-19 Vaccination Distribution Plans