While jails drastically cut populations, state prisons have released almost no one

Our updated analysis finds that jails are responding to the unprecedented public health crisis by rapidly dropping their populations. In contrast, state prisons have barely budged.

by Emily Widra and Peter Wagner, May 14, 2020

This article was updated on October 21st, 2021 with more recent jail and prison population data. That version should be used instead of this one.

In the last two months, local governments across the U.S. have drastically reduced their jail populations to slow the spread of the coronavirus. The typical jail has reduced its population by more than 30%. But state prisons — where social distancing is just as impossible as in jails, and correctional staff still move in and out every day — have been much slower to release incarcerated people: The typical prison system has reduced its population by only 5%. Below, we compare the population cuts in local jails to those in state prisons, discussing just how little states are doing to keep their residents (and the general public) safe. (And note, our use of the term “reduction” is a purposeful distinction from “release,” as we have found that there are multiple mechanisms impacting populations, of which releases are but one part.)

While jails continue to make quick changes in the face of the pandemic, they house only 1/3rd of the incarcerated population, while the other two-thirds are held by state and federal authorities, who are moving far too slowly. After North Dakota, the six states with the largest reductions share an important quirk: they are all small state prison systems that serve as both prisons and jails. For that reason, much of their reduction could be the result of drops in the jail portion of their populations and it is possible that the reduction of their sentenced prison population may be much smaller. The one exception is Connecticut, which after the previous version of this report sent us data showing that their pretrial population decreased 10% and their sentenced population decreased by 11% from March 1st to April 29. (For detailed data on 131 large jails, see Table 1 below and for the data on more than 600 jails see our appendix, and for the smaller changes in 41 state prison systems and the federal Bureau of Prisons, see Table 2 below.)

The strategies jails are using to reduce their populations vary by location, but they add up to big changes. In some counties, police are issuing citations in lieu of arrests, prosecutors are declining to charge people for “low-level offenses,” courts are reducing the amounts of cash bail, and jail administrators are releasing people detained pretrial or those serving short sentences for “nonviolent offenses.” (We’re tracking news stories and official announcements of the most important changes in the country on our virus response page.)

Table 1: Largest known population reductions in large local jails

Meanwhile, state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small.

Table 2: Most state prison systems show only very modest population reductions (showing 41 states — and the Federal Bureau of Prisons — where the data was readily available)

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails. (At least Colorado, Illinois, California, and Oklahoma are doing this.) While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still being held in different correctional facilities.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases have not amounted to significant population reductions. For example, the Iowa Department of Corrections has released over 800 people nearing the end of their sentences since March 1st, but the overall net change in Iowa’s incarcerated population has only been about 4%. Kentucky Governor Andy Beshear commuted the sentences of almost 200 people convicted of felonies in early April, and the state also planned to release 743 people within 6 months of completing their sentences. Since December 2019, the Kentucky prison population has only decreased by a net 9%, while more than 85% of the jails we analyzed had dropped their populations by 10% or more.

Of the states we analyzed, those with smaller pre-pandemic prison populations appeared to have reduced their populations the most drastically. The prison population has dropped by 19% in North Dakota, the same state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey. North Dakota has done more to reduce its state prison population than any other state, but even that state has done less than the typical jail in the country which has reduced its population by more than 30%.

States clearly need to do more to reduce the density of state prisons. For the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, and to release those that are already in confinement for those same technical violations. (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.) Similarly, other obvious places to start are releasing people nearing the end of their sentence, those who are in minimum security facilities and on work-release, and those who are medically fragile or older.

If the leadership and success of local jails in reducing their populations isn’t enough of an example for state level officials, they may find some inspiration in the comparative success of other countries:

Table 3: Countries reducing their incarcerated populations in the face of the pandemic (showing 13 countries where current population data was readily available)

Prisons and jails are notoriously dangerous places during a viral outbreak, and public health professionals, corrections officials, and criminal justice reform advocates agree that decarceration will help protect both incarcerated people and the larger communities in which they live. It’s past time for U.S. prison systems to meaningfully address the crisis at hand and reduce the number of people behind bars.

This article updates one published on May 1st with a larger dataset of state prison population reductions collected by the Vera Institute of Justice and released alongside their report Prisoners in 2019, and with updated jail reduction figures collected by the NYU Public Safety Lab.

Since you asked: How many people aged 55 or older are in prison, by state?

Our table shows that more than 10% of people incarcerated in state prisons are 55 or older - and in some states, like Montana, the percentage is much higher.

by Emily Widra, May 11, 2020

This briefing has been updated to a new version with data through 2021.

Prisons and jails have become the epicenter of the COVID-19 pandemic, with seven of the ten largest hotspots identified as state prisons and local jails. With the CDC having warned that older adults are at heightened risk for severe complications and death from COVID-19, readers have asked us: Just how many people in state prisons are older adults? We’ve answered this question — state by state — in a handy table below.

To prepare our table, we drew on the most recent age data from the National Corrections Reporting Program, 1991-2015. Age data for state prisons is broken down into categories, and older adults fall into the category of “55 and older.” Although outside of correctional facilities, the term “older adults” often refers to people 65 and older, incarceration itself shortens life expectancy and hastens physiological aging. So for the purposes of addressing how vulnerable different groups are to the coronavirus, it makes sense to consider adults 55 and older behind bars as “older adults.”

We found that, on average, more than 10% of people in state prisons are over the age of 55. Some state prison systems have much higher percentages of older adults, like in Montana, where over 17% of the state prison population is 55 years or older.

Regardless of their preexisting health conditions, all older adults are at greater risk for complications from COVID-19. As this virus threatens to turn their prison sentences into death sentences, states should use all possible strategies to release them to the care of their families.

Our new fact sheet illustrates what’s in store if prisons and jails don’t decarcerate now

Our fact sheet for advocates shows how rapidly the coronavirus can spread through correctional facilities, and how high infection rates in prisons and jails already are.

by Wendy Sawyer, May 8, 2020

To help advocates argue for more aggressive decarceration as COVID-19 spreads rapidly through the nation’s prisons and jails, we’ve created a one page PDF fact sheet.

The fact sheet includes new analysis of recent COVID-19 data, largely gathered by the UCLA School of Law COVID-19 Behind Bars Data Project, put into context using other government data sources. As a result, we were able to make a series of tables and charts to show:

• Prevalence rates of the virus in facilities that have conducted widespread testing;
• How many asymptomatic people test positive in facilities with universal testing — indicating that in places where only the few people with symptoms are being tested, many more untested people are spreading the virus;
• The largest outbreaks in jails and prisons where facilities are testing incarcerated people; and
• The rapid spread of the virus over time in the few places that publish historical data, such as the Cook County (Chicago) jail and Arkansas prison system.

We also discuss the problems with prison and jail COVID-19 data; namely, that the data we have only reflect test results, and most places still are not testing widely. What we’ve learned from the places testing everyone — not just people showing symptoms — is that the virus is rampant among incarcerated people and correctional staff, which means that some prisons and jails are acting as “spreaders” of the virus in local communities.

The rapid spread of the virus among incarcerated people is unsurprising, since social distancing is impossible in the close quarters of prisons and jails. And incarcerated people, who disproportionately suffer from chronic illnesses that make them more vulnerable to the virus, are at incredible risk. As our new fact sheet shows, federal, state, and local authorities must freeze admissions and release more people now to prevent further spread of the virus through incarceration.

Federal court responses to COVID-19: From vague statements to concrete national models to reduce pretrial detention and protect rights

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.

Since you asked: What data exists about Native American people in the criminal justice system?

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 56,400 individuals in jails – in addition to those categorized as “single race” American Indian/Alaskan Native – who identified as American Indian/Alaskan Native and another race(s) or ethnicity, 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.

How prepared are state prison systems for a viral pandemic?

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.

Tracking the statements of Departments of Corrections on the COVID-19 virus

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:

• Our page on the most important moves toward early releases
• Our survey of co-pay policy changes
• Professor Sharon Dolovich at the UCLA School of Law has shared a growing comprehensive spreadsheet including results from a state-by-state survey of changes in visitor policies, requests for population reduction, and actions taken to reduce the incarcerated population.

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.

New report, Reforms Without Results, lays out the case for including people convicted of violence in criminal justice reforms

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.

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.

Since you asked: Is social distancing possible behind bars?

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.

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.

Five ways the criminal justice system could slow the pandemic

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.

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.