New study finds confined neurodivergent youth of color are particularly vulnerable to physical assault by staff

A new study analyzing a national survey of youth in custody reveals stark disparities in rates of staff physical assault among Black and neurodivergent youth.

by Emily Widra, August 19, 2025

Even though the rate of youth incarceration is more than three times lower than it was twenty years ago, youth of color and youth with disabilities are still overrepresented in custody — and these disparities are getting worse.¹
These children were already among the most vulnerable to involvement in the juvenile legal system, but as the system decarcerates, their vulnerability is compounded by the fact that they are also among the most likely to suffer abuse while confined, including being violently victimized by adults.

New research underscores the extent to which staff violence against incarcerated neurodivergent youth of color is substantially worse than it is for white neurotypical youth.² Brianna Suslovic and her colleagues at the University of Chicago Crown Family School of Social Work, Policy, and Practice, identified significant disparities in the likelihood of staff physical assault between confined youth of different racial identities, and between neurodivergent and neurotypical incarcerated youth. They found that the odds of Black youth reporting staff physical assault are 79% higher than the odds of white youth reporting assault, and the odds of neurodivergent youth reporting staff assault are 59% higher than the odds of neurotypical youth reporting assault. Even more alarmingly, for neurodivergent youth of color, the odds of reporting staff physical assault are more than twice the odds of their white, neurotypical peers.

These findings, forthcoming in the Journal of the Society for Social Work and Research, are based on data collected by the federal government in the 2018 National Survey of Youth in Custody. Suslovic and her co-authors have made a useful contribution to existing research because they use self-reported data to examine how structural forces and marginalization — in this case, racism and ableism — shape experiences of youth confinement. The evidence they present underscores the need to keep those at the highest risk of abuse at the forefront of decarceration efforts, and to ensure they don’t enter youth jails and prisons in the first place.

Confined youth of color and neurodivergent youth disproportionately experience violence at the hands of facility staff

The study finds that children of color and neurodivergent children are disproportionately confined in juvenile facilities, and that neurodivergent children of color in particular are more likely to report being physically assaulted by staff than white, neurotypical children.

Among white, Black, and Hispanic confined youth, those identified as neurodivergent — meaning they’ve ever been diagnosed with ADD/ADHD, dyslexia, a learning disability, Autism or Asperger’s Syndrome — are more likely to have been physically assaulted by staff, based on self-reporting in the 2018 National Survey of Youth in Custody. Source: Suslovic, B., Shankar, S., & Gottlieb, A. (2025). Race/Ethnicity, Neurodivergence, and Odds of Staff Physical Assault in Youth Carceral Settings. Journal of the Society for Social Work and Research. https://doi.org/10.1086/734616.

Overall, more than 1 in 10 incarcerated youth report being assaulted by staff. However, among neurodivergent confined youth, a greater proportion (15%) reported being assaulted by staff. In fact, the odds of neurodivergent youth reporting violent victimization by staff were 59% higher than the odds of their neurotypical peers. In the analysis across race, the researchers found that Black youth have odds of reporting staff physical assault that are 79% higher than white youth, with almost 1 in every 6 Black youth reporting assault, compared to 1 in 9 white youth.

The researchers also found that across almost all racial categories, staff physical assault is more prevalent among neurodivergent youth.¹⁰ Neurodivergent youth of color experience a distressing 120% higher odds of reporting being assaulted by staff than their white, neurotypical peers. This is particularly alarming, as it indicates the extent to which the children most vulnerable to involvement in the juvenile system are made additionally vulnerable to violence at the hands of adults in power.

Despite great strides in youth decarceration, longstanding disparities in confinement are getting worse

The great strides made in youth decarceration over the past twenty years have not been evenly distributed. People of color and those with disabilities, who have often been primary targets for surveillance, policing, and incarceration,¹¹ still represent a greater portion of the dwindling confined youth population than their white and neurotypical peers. In fact, their overrepresentation in the system is growing, and they continue to face the very kinds of abuses that have motivated decarceration of youth jails and prisons in the first place.

The conditions in youth jails and prisons — which can include solitary confinement, physical abuse, sexual abuse, a lack of programming and services, and excessive use of force — make juvenile confinement particularly dangerous for youth with disabilities, and can exacerbate mental and behavioral health concerns.¹² Overall, confined youth face exceptional risk of victimization by facility staff: systemic maltreatment — including physical abuse and excessive use of force by staff — has been reported in juvenile facilities in 29 states since 2000, and a 2010 survey found 22% of confined youth reported that they were afraid that a staff member will physically attack them.¹³

The data from this newest study support these concerning trends, further quantifying the overrepresentation of youth of color and neurodivergent youth in confinement, and characterizing their mistreatment in a shrinking system.

Youth with disabilities are disproportionately locked up

More than two-thirds of confined youth met the study’s criteria for neurodivergence, which the researchers defined as any diagnosis by a doctor, counselor, or other professional of ADD/ADHD, dyslexia, a learning disability, Autism, or Asperger’s Syndrome. The prevalence of many of these diagnoses is much higher among children in custody than in the national youth population:¹⁴

• ADD/ADHD: 60% of youth in custody compared to 11% of youth nationally;
• Learning disabilities: 27% of youth in custody compared to 8% of youth nationally; and,
• Autism: 4% of youth in custody compared to 1.7% of youth nationally.

In addition, more than half (55%) of neurodivergent confined youth were Black, Hispanic, American Indian or Alaska Native, Asian, or Native Hawaiian or Pacific Islander.

While youth with disabilities represent 17% of national K-12 enrollment, they represent almost one quarter (24%) of confined youth.¹⁵ Children with disabilities face some of the highest rates of arrest in schools, in part because police are often called to respond to youth who have challenges with processing emotions and information, communication, and disability-related behaviors. Youth of color with disabilities are arrested at even higher rates in schools, with Native Hawaiian and Pacific Islander boys and Black boys with disabilities facing rates four to six times the average arrest rate.¹⁶

Racial disparities are increasing in youth confinement

Racial disparities have long been a feature of youth incarceration, and they’re only getting worse. In 2003, Black youth accounted for 38% of youth detained or committed, and in 2023, this increased to over 46%. In addition, youth of more than one race accounted for only 1% of confined youth in 2006 (the first year juvenile data included that race category), and that proportion has more than doubled as of 2023.

Some of these disparities can be traced back to differences in the policing of kids of different races and ethnicities. As is the case with Black adults, Black children are particularly targeted with overcharging and harsher treatment, making them far more likely to be incarcerated than white children. Black children, and especially Black girls, are also subject to an added burden of adultification: when a child is perceived as older, more culpable, and more responsible than their peers. Similar to the racist “super predator” myth that was used to rationalize harsh punishments in the 1990s by portraying Black youth as more violent and unruly than their white peers, adultification leads to harsher consequences within the juvenile legal system.

Conclusion

The findings from Brianna Suslovic and her colleagues represent important contributions to the existing research, highlighting how some of the most vulnerable children are funneled into the juvenile legal system, where they face a number of dangers, including physical assault by staff.

Violent victimization is the product of several factors in youth confinement. Almost one-third of the study sample reported physical abuse by an adult prior to confinement, and we know that prior victimization is a strong indicator of subsequent victimization while in custody. Research also shows that the quality of relationships with facility staff can influence the likelihood of victimization — and other positive and negative outcomes for incarcerated youth and adults — and the vast majority (89%) of confined youth reported that they were assigned a case manager or counselor. Educational access and engagement have been identified as protective factors against maltreatment for children as well. Despite evidence that people who achieve higher levels of education while incarcerated are more likely to experience positive outcomes after release, less than one-third of confined youth have completed high school, even though more than 60% of confined youth are over 17 years old.¹⁷ Many of the same factors that make children more vulnerable to criminal legal system involvement also make them more vulnerable to suffering abuse while confined, and this study calls particular attention to some of the youth most disproportionately at risk of violent victimization by adults.

While the number of confined youth has been declining for years, the confined population still reflects the racist and ableist trends of the nation’s criminal legal system: children with histories of abuse, lower education levels, learning disabilities, cognitive disorders, disabilities, and children of color are disproportionately locked up. Those are the children who remain in juvenile facilities where they are at heightened risk of physical assault at the hands of the people charged with their safety and wellbeing. Given the pronounced failure of youth incarceration to significantly reduce “delinquent” behaviors and the dangers they experience behind bars, the findings from this recent study signal a need to reevaluate our nation’s use of incarceration for children.

WEBINAR: Taking the Lede: How advocates can shape news coverage of the criminal legal system

How small organizations can make the most of their resources to build relationships with the media.

by Wanda Bertram, August 18, 2025

With every sheriff’s office, department of corrections, district attorney, and police department armed with its own media relations team, the news cycle is all too often stacked toward the status quo when it comes to criminal legal system issues. How can advocates for system reform have their voices amplified — and their priority issues covered — without overworking themselves to get the media’s attention? And how can advocates frame issues in ways that resonate with journalists?

On September 18th, the Prison Policy Initiative and the Center for Just Journalism hosted a webinar to help advocacy organizations home their media strategies and get attention on critical issues. Panelists Wanda Bertram of the Prison Policy Initiative and Hannah Riley of the Center for Just Journalism provided guidance on how small organizations can make the most of their limited resources and staff capacity. They covered:

• The lay of the contemporary news media landscape and basic tips for interacting with journalists;
• The strategic benefits of building relationships with reporters, and how advocates should select reporters to reach out to;
• How to have informal conversations with the media that can influence the news cycle, as well as write formal pitches that can lead to news clippings.

Watch the full webinar:

Additional resources:

• Webinar slides
• Freedom of the Press Foundation’s guide to interviewing incarcerated people
• Institute for Nonprofit News’ publications directory
• Ad Fontes’ media bias chart

Prison Policy Initiative supports Safety Bound’s bold new platform to reimagine the sheriff

The policy demands are designed to challenge the unchecked power of sheriffs and improve jail conditions for people in custody.

by Danielle Squillante, August 11, 2025

One out of every three people behind bars is being held in a local jail, yet the 3,000+ sheriffs that control them operate with little to no oversight — and the consequences are deadly. Hundreds of people, many of whom are held pretrial and have not been convicted of a crime, die each year in local jails from suicide, overdoses, violence, and neglect.

Safety Bound, an organization that works to reimagine the role of sheriffs, has created a policy platform with seven demands that advocates can use to curb the unchecked power of sheriffs, reduce jail populations, and improve conditions inside these facilities. We helped to support this effort by providing insights and research on the health harms of incarceration and ways communities can avoid costly and ineffective jail construction projects.

The seven demands are listed below, and are explained in more depth on Safety Bound’s website.

1. Towards Accountability — Sheriffs should improve jail operations and conditions to prevent injuries and deaths.
   • People in jails have high rates of mental illness, chronic health conditions, and substance use, which jails are not equipped to provide care for.
2. Towards Freedom — Sheriffs should reduce jail populations and oppose jail expansions
   • Investing in jail construction is not a solution to social problems but rather doubles down on old policies that caused these problems to begin with.
3. Towards Immigrant Justice — Sheriffs should end all voluntary cooperation with any and all immigration enforcement.
   • Local jails play an important role in enabling federal agencies like ICE and the U.S. Marshals to detain people for immigration reasons.
4. Towards Racial Justice — Sheriffs should end pretextual traffic stops.
   • Traffic stops are not only the most common type of police-initiated contact, but are common sites of police violence, impacting Black drivers more than any other racial group.
5. Towards Health — Sheriffs should advocate for alternative emergency response for mental health and substance use crises.
   • Despite how sheriffs repackage incarceration as care to justify jail expansion or budget increases, jails are not a substitute for treatment. A better solution is community-based support systems that address challenges before they become crises that result in incarceration.
6. Towards Democracy — Sheriffs should not take campaign donations from jail contractors.
   • Nationwide, sheriffs have received countless dollars in campaign donations from security and investigative companies, construction firms, medical services providers, telecom and tech companies, bail bonding companies, and even apparel and uniform manufacturers.
7. Towards Election Integrity — Sheriffs should act to protect election officials and voters from threats and violence that undermine the right to vote.
   • Elected officials, particularly at the local and state level, significantly shape the criminal legal system and elections are an important tool in the fight against mass incarceration.

Learn more

You can learn more about Safety Bound’s 7 Demands to Reimagine the Sheriff at: https://www.safetybound.org/demands

The organization is also hosting a webinar on Thursday, August 14th, to explore each demand in depth. The organization’s partners — including our Policy & Advocacy team — will discuss how we can build a movement rooted in care and accountability.

Trump’s executive order targeting unhoused people will leave everyone worse off

The harsh reality is that this order will criminalize already-vulnerable people who are in need of care, putting our communities in danger.

by Regan Huston, August 5, 2025

Last month, President Trump signed an executive order aimed at forcibly locking unhoused people experiencing mental health crises or substance use disorder in involuntary commitment in state psychiatric hospitals.¹ Here’s the issue with that measure: it is nothing more than an attempt to disguise criminalization as care.

As the number of people experiencing homelessness in the U.S. soars and social supports are stripped away, this move will undoubtedly expand the criminal legal system.

The truth about involuntary commitment

The order directs the federal government to find ways to encourage and empower states to force unhoused people experiencing mental health or substance use issues into involuntary commitment facilities.

Jails & homelessness The moral & fiscal costs of failed policies

These state psychiatric hospitals aren’t typically run by departments of correction, but they are in reality much like prisons. At least 38 states also allow involuntary commitment for substance use disorder treatment, and evidence suggests that these supposed “treatment facilities” are not effective. Notably, it can be extremely difficult for these “forensic patients” to be released as they may remain hospitalized for decades or for life.

Involuntary commitment is not only legally and ethically dubious, but it also fails to deliver on the very objectives that justified its creation.

Contradicting cuts

Notably, in the first five months of his second term, Trump has gutted social programs that have been proven to reduce crime and keep people off the street.

First, the administration slashed $11 billion from addiction and mental health programs, a move that will lead to increasing prison and jail populations. Then, it targeted Housing First programs, a method that has been proven effective at getting and keeping people off the street, by giving them access to housing without conditions. And, last month, Trump’s “big, beautiful bill” came with an ugly reality: Steep cuts to Medicaid that will leave 10 million people uninsured, making it nearly impossible for them to access mental health care or substance abuse treatment.

At the same time, it has tried to end harm-reduction strategies that aim to reduce overdoses and the negative health effects of drug use. The administration’s actions are contrary to public health research that shows that harm-reduction work.

With the safety net shredded, what will happen to the people who desperately need care? In many cases, they’ll be put straight into actual prisons and jails, which are never appropriate places for treatment.

Shuffled into the system

The administration has made it clear that it would rather shift money away from care and turn toward expanded criminalization.

Prisons and jails are often viewed as de facto mental health and substance abuse treatment providers, but the reality couldn’t be further from the truth. Rates of mental illness are exceptionally high among incarcerated people, and these facilities fail to meet the demand for help. More than half of the people in state prison reported having a mental health problem, yet only 26% received professional help since entering prison.

Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.

Not only are prisons and jails unable to treat mental health problems, but they can also create them. Incarceration itself is traumatizing and can inflict serious mental damage on people. Violence behind bars is inescapable and can result in post-traumatic stress symptoms, like anxiety, depression, avoidance, hypersensitivity, hypervigilance, suicidality, flashbacks, and difficulty with emotional regulation.

Prisons and jails are not treatment centers for substance use disorders, either. In fact, these facilities punish drug use far more than they treat it. People who have been arrested or incarcerated have higher rates of substance use disorder than the general population. And, disturbingly, only 1 in 10 people in state prisons with substance use disorders received treatment.

Jails, which tend to have even fewer resources, are also not suited to offer care. The most effective treatment options are the least accessible for people with opioid use disorder: Just 19% of jails initiate medication-assisted treatment for people with opioid use disorder.

Behind bars, people don’t have access to the care they need – and upon release, they’re often left worse off than before incarceration. Formerly incarcerated people are almost 10 times more likely to be homeless than the general public. And, being homeless makes formerly incarcerated people more likely to be arrested and incarcerated again, creating a revolving door.

Attacks on people experiencing homelessness

The reality is that there is an inextricable link between housing, mental illness, drug use, and criminalization. Yes, people experiencing these vulnerable situations often need care — but forcibly hospitalizing them is not the solution.

Instead, the U.S. must embrace Housing First. This method offers housing with no strings attached. It recognizes housing as the first step in responding to homelessness, rather than something to work toward. It also does more than simply put a roof over people’s heads; it gives people the space and stability necessary to receive care, escape crises, and improve their quality of life. Research shows that this approach keeps people housed and improves attitudes and outlook on life.

Conclusion

In the last year, there have been rampant attacks on people experiencing homelessness – and this executive order is the latest example. It’s a bad move that will result in far more people locked up simply because they’re experiencing homelessness, mental health crises, or substance use issues. Gutting proven solutions that make communities safer — like community-based care, Housing First, and harm-reduction efforts — seems to be a pattern with the administration.

The good news is that state and local governments don’t have to help this misguided effort. The federal government will certainly dangle funding to entice them to implement these policies, but they have the ability to say no. If the money comes with these types of strings attached, it isn’t worth the cost.

New report, Hiding in Plain Sight, reveals local jails’ essential role in Trump’s mass deportation strategy and how counties can stop it

The new report explains how the Trump administration is using a longstanding loophole to circumvent sanctuary policies and obscure the full scale of its immigration actions.

July 30, 2025

This morning, the Prison Policy Initiative released Hiding in Plain Sight, a report revealing the crucial role that locally-run jails are playing in President Trump’s program of mass deportation — and why states and counties must do more to end cooperation. Building on the organization’s work explaining how county jails enable state and federal incarceration, this report breaks down the complicated overlap between local criminal justice and immigration, and offers detailed data tables showing the level of involvement in every state and in specific jails.

Key findings include:

• The Trump administration is circumventing city and county sanctuary policies that limit cooperation with federal immigration authorities. It accomplishes this through a longstanding loophole: ICE and other federal agencies can refer people for federal prosecution on immigration-related “crimes” and thus use local jails’ contracts with the U.S. Marshals Service in sanctuary cities, counties, and states. In doing so, the Trump administration is transforming what are normally civil immigration matters into more serious federal crimes.
• ICE data doesn’t show the full scale of immigrant detention in the U.S. While ICE detention data recorded 57,200 people on average in June 2025, the true count of people detained shows the overall crimmigration system is 45% larger, at around 83,400 people. That’s because ICE data does not account for people facing criminal immigration charges (as explained above), nor does it account for people held on ICE detainers, in some state detention facilities, or in overnight hold rooms.
• Jails and police departments play a key role in criminalizing immigration by detaining people until ICE agents can make an arrest. ICE has capitalized on local detention of immigrants — often on minor charges or charges that would not lead to jail time for U.S. citizens (such as driving without a license) — to not only make more arrests, but to enhance the appearance of targeting “criminals.” Arrests in jails comprise 45% of ICE arrests since Trump’s inauguration in January.

“Many cities and states have tried to offer sanctuary for immigrants by refusing to rent jail space to ICE and opting out of the 287(g) program, but it is not enough,” said report author Jacob Kang-Brown. “The Trump administration is leveraging jails at a new scale, using local contracts with the U.S. Marshals Service and existing policing practices in order to expand detention.”

For reporters who want to dig deeper into these trends in their own counties and states, the report includes data tables showing:

• How many people are being held for ICE and the U.S. Marshals in over 600 local jails (and over 150 other facilities), the change in these populations from January to April 2025, and the share of all detained immigrants in every state being held by jails.
• The rate of ICE arrests happening in jails, compared to other locations, in every state.
• The number of immigrants arrested by the U.S. Marshals on various charge types over time — showing that a quickly-growing share of these people are being booked on charges related to their immigration status.
• The per-diem payments by the U.S. Marshals to hundreds of local jails in exchange for housing immigrants and other federal pretrial detainees.

The report concludes by urging counties to end all of their collaborations with federal immigration detention agencies, including the U.S. Marshals Service, which has contracts with nearly 1,000 jails nationwide. Via their jails, local governments are — intentionally or not — providing the infrastructure for a massive attack on immigrants. But by resisting cooperation with President Trump’s racist deportation machine, counties and states also have the power to contain it.

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

Prison Policy Initiative and MacArthur Justice Center’s National Parole Transformation Project release new guiding principles for parole reform

Organizations working to reform parole systems in their states are encouraged to sign on to these 16 principles.

by Emmett Sanders, July 10, 2025

Parole systems in America are failing. They’re inaccessible, they’re hard to navigate, they grant parole for far too few people, and those who are paroled are often set up to fail.

It doesn’t have to be this way.

Prison Policy Initiative has partnered with the MacArthur Justice Center’s National Parole Transformation Project to produce Principles for Parole Reform. This document features 16 guiding principles for advocates to consider when pushing for parole reform in their jurisdictions. Drawing from our own extensive research and advocacy experience, and created with guidance from advocacy organizations across the country, this document reflects dozens of conversations with those most impacted by unjust parole policies: currently and formerly incarcerated people and their families.

The principles cover key areas of parole such as access and eligibility, preparation and process, criteria considerations, parole board composition, revocation hearings, and more. Each principle includes an explanation of why these reforms are necessary, as well as concrete examples of common-sense policies that advocates can draw from when working to implement change.

The problems with parole

Discretionary parole allows states to periodically review incarcerated people’s circumstances with the goal of releasing people who can safely return to their communities. Parole is a vital tool for decarceration, but in its current form, it usually does not achieve its goals.

At its core, discretionary parole is a recognition of the fundamental humanity of those in prison: a promise that, in our society, people are more than their worst moments. However, the distance between the promise of parole and its reality is vast. Parole processes are a minefield of racial disparities, opaque processes, over-politicization, and little representation or assistance for those hoping to make it to the other side of decades of incarceration. Access to parole is limited in some states and nonexistent in others. Where it exists, the process is so complicated and restrictive that only a fraction of those who apply are granted release. Others apply over and over again only to be denied, often for subjective reasons or for things they cannot change. The result of this flawed system is the same throughout the country: Broken promises and prisons bursting at the seams with people who could be safely released.

To learn more about the need for parole reform in the US, please read:

• When parole doesn’t mean release: The senseless “program requirements” keeping people behind bars during a pandemic
• Eight Keys to Mercy: How to shorten excessive prison sentences
• Grading the parole release systems of all 50 states
• No Release: Parole grant rates have plummeted in most states since the pandemic started

Making reform a reality

These 16 principles aim to make parole fairer, more accessible, and more transparent for everyone.

We know that varied political realities mean different reforms are possible in different states. Nevertheless, we hope that the principles we offer in this document will serve as a useful guide for advocates across the country looking to close the distance between the promise of discretionary parole and the reality. The 16 principles are listed below, and are explained in more detail on MacArthur Justice Center’s website.

16 guiding principles for parole reform

1. Every incarcerated person should have access to parole release systems.
2. When someone is eligible for parole, there should be an enforceable presumption of release, and parole boards should be required to use forward-looking, objective criteria to justify why release is inappropriate, rather than requiring incarcerated people to justify their fitness for parole.
3. Parole boards should be required to adhere to consistent, clear guidelines about how to make parole release decisions. People denied parole should have the opportunity to challenge the basis on which their denial decision was made.
4. Parole should be granted or denied based on forward-looking, objective factors within the control of the incarcerated person, and should focus exclusively on how a person has grown, changed, or been productive since being incarcerated, rather than the underlying crime of conviction.
5. When a person is denied parole, they should be given specific, actionable changes that they can make to increase their chances of parole in a future hearing. Parole boards should then honor these efforts and grant parole when people have satisfied previously stated requirements.
6. When a person is denied parole, they should be able to appear before the board again for reconsideration within a reasonable amount of time.
7. People who are up for parole and their loved ones and supporters should have the ability to attend parole hearings and speak to the parole board on their behalf.
8. People should have access to counsel at parole hearings and be provided competent, effective, and free counsel that adheres to best practices for indigent defense if they cannot afford it. People should be provided with resources and support to prepare for their parole hearings.
9. Parole Boards should be diverse in their backgrounds, and should include community-based practitioners trained in psychology and rehabilitation, trauma experts, people who are formerly incarcerated, and other experts with the ability to fairly and objectively evaluate candidates for parole. People with backgrounds in law enforcement and corrections should not be the majority of parole board members.
10. Parole Boards should be required to release information publicly about their decisions, including grant rates, the reasons for denial of parole, length of setbacks, and demographic and charge information of people who appear before the parole board.
11. Imposition of conditions, including supervision fees, should be an individualized process that begins with the presumption of no conditions and allows for the removal of conditions that are no longer serving a purpose.
12. People on supervision should have a variety of options for how to check in that allow for minimal disruptions to the re-entry process.
13. Supervision should not be indefinite; no person should be on supervision for the rest of their life after parole release.
14. Parole boards must ensure the due process rights of people facing revocation are protected, including the right to counsel and other safeguards to ensure fair hearings.
15. People on supervision should not be returned to prison solely for non-criminal conduct.
16. The amount of time that can be revoked should be capped and proportionate to the seriousness of the violation.

Join the effort

If your organization works on parole reform and would like to sign on to these principles, you can do so through MacArthur Justice Center’s National Parole Transformation Project’s website.

The Court Agrees: In prison, a $15 fine means so much more

The Fourth Circuit has revived an incarcerated person’s lawsuit challenging a $15 fine taken from his account as punishment.

by Regan Huston, July 3, 2025

In August of 2020, Demmerick Brown, a man incarcerated in Virginia’s Red Onion State Prison, went to the prison barbershop to get a haircut and a shave. This was the height of the COVID-19 pandemic, and naturally the barber asked Mr. Brown to remove his protective mask so he could shave his face. The next day, Mr. Brown received a disciplinary ticket fining him $15 for failing to wear a mask.

After a perfunctory disciplinary hearing, Mr. Brown had the money deducted from his trust account. Then, he sued, alleging that he had not been afforded appropriate due process before having his money taken. But the District Court found that he wasn’t entitled to due process. The court said that this was because $15 was too small an amount of money to trigger constitutional protections.

What the court failed to understand is that $15, while just being the cost of a sandwich outside prison walls, represents dozens or hundreds of hours of labor inside, and people rely on the money they make behind bars to fill their basic needs and contact their families.

In 2024, the Prison Policy Initiative filed an Amicus Curae brief in a suit filed by Rights Behind Bars, who represent Demmerick Brown. In our brief, we drew on our years of work studying the economics of life behind bars to help the Fourth Circuit understand that $15 inside doesn’t mean the same thing as $15 does on the outside.

On Tuesday, the Fourth Circuit rightfully reaffirmed that incarcerated people deserve due process rights when their money is taken away from them. The opinion cites our brief, concluding that, “Fifteen dollars may be a sum of small consequence outside prison walls, but it is of great significance within them: the amount is more than a week’s worth of wages at Red Onion State Prison where Brown is incarcerated.”

This is one important step in recognizing the lived experiences of people behind bars, and their constitutional rights.

From providing testimony to completing custom research projects, the Prison Policy Initiative is available to help work on projects across all stages of the criminal legal system. Learn more about the work our advocacy department does here, and drop us a line if we can help.

Birth behind bars: Ten years of U.S. jail births covered in the news highlight horrific experiences and minimal data collection

For some of the thousands of pregnant people entering jails each year, at what might be their moment of greatest need — going into labor — jails turn a blind eye, harming mothers, newborns, and their families. The latest project from our partners at Advocacy and Research on Reproductive Wellness of Incarcerated People, or ARRWIP, illuminates these haunting stories and the dire need for data and education about pregnancy in jails.

by Leah Wang and Bianca Schindeler, July 1, 2025

In the confines of an unsanitary jail cell, a woman delivers a baby alone: This is a typical news article about a jail birth. But when it comes to the 1.5 million women¹ cycling through jails each year, what more do experts know about jail births on a larger scale? The answer: Nothing — there is no regular data collection on pregnant or postpartum people held in local jails.² (As for those in prisons, there is some limited data collection.³)

Given the lack of transparency from jails about pregnancies, birth outcomes, and other facets of reproductive care, a team of student researchers is drawing attention to this data blind spot. The Birth in Jails Media Project, which draws entirely from local news coverage of jail births, provides a rich picture of how some pregnant people experience incarceration, labor, and childbirth, with more detail about jail conditions and staff responses than a national dataset can typically provide.⁴

In this briefing, we present the first-ever published findings from the Birth in Jails Media Project, one of many indispensable efforts from Advocacy and Research on Reproductive Wellness of Incarcerated People (ARRWIP), a reproductive justice-oriented research group at John Hopkins University led by researcher and obstetrician-gynecologist Dr. Carolyn Sufrin. (We’ve previously lifted up ARRWIP’s important work on contraception, abortion, breastfeeding, and medication for opioid use disorder policies for pregnant women in custody.)

Cases surfaced by the Birth in Jails Media Project suggest pregnant people going into labor behind bars experience great distress and maltreatment, often facing no choice but to give birth without medical assistance, support, or basic safety protocols. While the 35 mothers and newborns included in these cases are likely a small and unrepresentative share of all jail births between 2013 and 2023,⁵ their stories are powerful calls to action: Pregnant people in jails are in dire need of proper and timely care, and their experiences cannot continue to go undocumented. Lawsuits filed by mothers and advocates, our Media Project partners note, can be credited for moving the needle in some states, but too many stories remain in the shadows.

Because cases involving grave negligence or abuse are more likely to receive news coverage, the Media Project dataset may be skewed toward worse outcomes for pregnant people in jails. But the stories truthfully surface what has happened — and what will likely continue to happen — at some women’s moment of greatest need. Although jails operate independently of one another, the stories reveal systemic ignorance, lacking or nonexistent policies, and patterns of violence that call attention to misconceptions about how and why pregnant people become and remain incarcerated at all.

[The jail’s staff and medical contractors] “engaged in a cycle of punishing and isolating Ms. (unnamed here), while allowing her mental and physical health, and that of her unborn baby, to dangerously deteriorate.” – from a lawsuit filed in Virginia, after a 2021 jail birth resulting in neonatal death

Methodology and project details

Most births in jails happened inside jail cells, after repeated calls for medical assistance went ignored

Among the 35 jail births identified in the news between 2013 and 2023:

• At least two-thirds of births (25) occurred inside jail cells, which often contain nothing more than a mattress, a toilet, and a floor as options for delivery. For context, only about 22% of jails nationwide reported having medical treatment or hospital functions in 2019 (the most recent year these data were collected). At least three births happened inside “isolation” or solitary confinement cells; one woman, about to give birth, was put in solitary “to muffle her screams” because of her agonizing labor pains.
• In at least 24 cases, jail staff ignored repeated cries for help or medical assistance. In several instances, pregnant people called out for help or used their cell call buttons to no avail; in some cases, loved ones called the jail to ask that someone check on the mother. And in a few appalling instances, news coverage and lawsuits claim that staff laughed at or belittled the woman in labor, wrongfully assumed she was only experiencing withdrawal symptoms, told her to deal with the pain, or simply watched the delivery, providing no assistance whatsoever.⁸

Cut-rate careThe business of ‘healthcare’ behind bars

• One-fourth of babies (9 of 35) were stillborn or died within two weeks of being born. Five others suffered a documented injury or infection. It’s impossible to draw a straight line between these newborn babies’ health and the jails’ conditions, but in a few instances, delivery in a jail cell or into a toilet likely led to various infections of the eyes, blood, and placenta; in other newborns, inhaling water or fecal matter caused respiratory issues.
• In at least one-third of births, the baby was born preterm (before 37 weeks of pregnancy). Preterm birth is a leading cause of infant mortality and health conditions that can negatively impact an individual throughout their life. There are many risk factors for preterm birth, including maternal stress, anxiety, substance use, chronic health problems, and certain pregnancy histories. Jails should provide health care that addresses risk factors; the most vulnerable pregnant people, unfortunately, are often forced to rely on jails for the chance to access medical care.⁹
• More than half of jail births (19 of 35) led to a lawsuit, some of which were filed against private healthcare companies contracted to provide care inside jails. Many of the lawsuits remain unresolved; one lawsuit was dismissed, and eight ended in settlements reportedly ranging from $16,000 to $1.5 million.

“That pain [of labor] was indescribable. What hurt me more, though, was the fact that nobody cared.” – A mother who gave birth unassisted in a Colorado jail cell in 2018

Jail births led to only minimal changes in jail policy and practice

The Media Project research team found that when a jail’s administration formally responded to a mother’s complaint or lawsuit, they tended to deny wrongdoing, holding firm that correctional and medical staff followed protocol. Disturbingly, some jails admitted that their medical staff had no training on pregnancy or childbirth (thereby absolving them of misconduct). In a few cases, legal action and advocacy to address these horrifying incidents have led to some common-sense changes that should be on the books in every state.¹⁰

For example, after one woman gave birth in a Colorado jail cell in 2018 with no medical support, the jail instituted mandatory trainings and updated its policies to ensure that pregnant people in their custody at any stage of labor are immediately taken to the hospital, as part of a settlement agreement. Years later, Colorado lawmakers passed HB23-1187, which allows courts to offer bonds or alternative sentences to pregnant defendants.

A 2020 Florida law, the Tammy Jackson Act, also contains promising care provisions for pregnant people in custody, but has failed to prevent at least two in-jail births — one of which resulted in a newborn’s death — since the law went into effect. Florida advocacy groups have been working for years to advance another bill, “Ava’s Law,” which would allow judges to delay someone’s incarceration by up to 12 weeks to allow for birth or bonding with a child, mandate pregnancy tests for women who are not released after 72 hours, and require relevant data collection, among other provisions.¹¹

“I basically held my baby all night, until she died, until she turned blue” – a mother who gave birth three months early in a Florida jail, whose baby died hours later

The Birth in Jails Media Project highlights an urgent need for documentation and policies focused on jail pregnancy

For further readingAddressing family separation by incarceration

Now that there are some national-level data from state and federal prisons (collected by the Bureau of Justice Statistics), it is time to ask jails to produce the same information. After all, the outsized growth of women’s incarceration compared to men’s incarceration in recent decades has disproportionately occurred in local jails. Indeed, the Bureau of Justice Statistics concluded in a recent “feasibility study” that it should be possible for jails to report this kind of data. Beyond counts of pregnant people entering jails (and prisons), these statistics should include:

• Specific live birth outcomes, such as the location of delivery, preterm, early term, and full term births, instances of low birth weight, and neonatal deaths;
• Other occurrences such as cesarean deliveries, miscarriages, abortions, stillbirths, ectopic pregnancies, and maternal deaths;¹²
• The actual provision of maternal healthcare services to people while in jail, such as pregnancy tests, prenatal vitamins, special diets, routine and high-risk prenatal care, and postpartum depression screening;
• Linkages to comprehensive demographic, health, and sentencing data.¹³

Data collection aside, some basic education on maternal health could support improving outcomes for pregnant women currently cycling through jails. In the instance where a pregnant person is incarcerated, correctional officers and frontline correctional health staff must be trained on how to recognize labor signs and other urgent maternal warning signs to facilitate appropriate and timely care. Along with training and education, jail staff must, importantly, believe, document, and respond to pregnant women’s reporting of their labor and other concerning pregnancy symptoms.

Ultimately, improved access to reproductive healthcare, expanded data, and fundamental training may help avoid distressing births behind jail walls, but our partners at ARRWIP insist that locking up pregnant people endangers maternal and newborn health and perpetuates structural inequities. Deeper reforms at the sentencing level, such as caregiver mitigation or diversion laws, combined with desperately-needed care standards and oversight,¹⁴ would be more effective in moving pregnant women and mothers out of jails to community-based supports and to their families.

New research: More evidence that county jail incarceration harms health, raising death rates

The health burdens of jail expansion are heaviest in places that already lock a lot of people up. Those places also would see the largest benefits from decarceration, including fewer deaths each year.

by Jacob Kang-Brown, June 24, 2025

It is tough to get nationally-representative, individual-level data on incarceration’s health impacts. But researchers are increasingly providing evidence that the criminalization of poverty, addiction, and mental health issues has sharp harmful consequences. Jailing in general is associated with higher mortality (death) rates. At the community level, higher levels of jailing causes more communicable and noncommunicable disease, mortality, and harms maternal health. For individual people, jailing has major impacts on mental health and maternal-child health.

A new cohort study by a group of scholars at the U.S. Census Bureau, the Hennepin Healthcare Research Institute, and the medical school at Mount Sinai published in the medical research journal, JAMA Network Open adds to the evidence and has important local policy implications. This study, led by Dr. Utsha Khatri, found that people incarcerated on a given day in 2008 had a 39% higher risk of death compared to similar people who were not incarcerated, and their risk of overdose death was 208% higher. Additionally, the paper suggests that expanding the use or size of local jails is associated with more deaths county-wide. These nationally-representative findings build upon previous research linking incarceration and mortality.

What makes this paper particularly useful for policymakers and advocates is its effort to measure the impacts of both individual experiences of incarceration and county jail incarceration rates. County jail rates measure how much a given county relies on jailing as a response to issues of health and safety.¹ How counties use their jails varies widely across the United States; the jail incarceration rate in Nashville is over five times the rate in Minneapolis, to cite just one example.² This new study drew county-level jail rates from the Vera Institute’s Incarceration Trends Project dataset and leveraged local variation to better understand how jails impact death rates, breaking out overdose deaths for special attention. One caveat worth noting on the individual-level impacts: because millions of people flow through local jails each year, the findings in the study may understate the harms of incarceration.³

Health harms of incarceration affect everyone, making jail expansion versus decarceration a matter of life and death

This study found that people incarcerated on a single day in 2008 had a 39% higher risk of death — and a 208% higher risk of death by overdose — compared to similar people who were not incarcerated. These results are from models that adjust for individual- and county-level factors, and it’s worth noting that having been incarcerated had a much stronger impact on risk of death than other measures linked to death rates like income, education, or indigeneity (that is, whether one identifies as American Indian or Alaska Native). Similarly, the estimated impact of incarceration on overdose mortality was higher than many other individual-level risk factors.

The elevated risk of death from overdose after incarceration is well documented: criminalization of addiction causes a lot of harm. But other research has shown that incarceration is associated with a wide range of health issues, which may help explain the increased risk of death from any cause. People are entering and exiting the toxic prison and jail environment all the time, either upon their arrest and release or as staff clock in and clock out. Other studies have found links between incarceration and health outcomes ranging from:

• All-cause mortality, or general death rates
• Cancer mortality (and stronger effects for liver and lung cancers)
• Chronic lower respiratory disease mortality
• Communicable disease mortality
• COVID-19 outbreaks, cases, and deaths, both inside incarceration facilities and in the community
• Heart disease mortality
• Preterm births
• Substance use disorders mortality
• Suicide

This study by Khatri et al. also found county-level jail incarceration was associated with an increase in deaths generally. The researchers estimate that a local jail incarceration rate 10% higher than the national county average leads to a 0.45% increased risk of death across the board. While this is much smaller than the 39% higher risk for people that were incarcerated, it applies to all people. The authors do the math and it works out to an additional 4.6 people dying for every 100,000 people in the population a year. This relationship is linear: for each 10% increment over the average, a county experiences another 4.6 additional deaths per 100,000 people, so a county with a jail rate 20% higher than average could expect 9.2 additional deaths per 100,000 and so on. Because large increases in jailing are common after new jail construction, and many counties have sustained lower jail rates after COVID-related changes in 2020, it’s worth applying this finding to larger numbers and the associated annual numbers of deaths.

Comparing two suburbs can illuminate the relationship between jail rates and county deaths: Contra Costa County, in the San Francisco Bay Area, reduced its jail population by 25% between 2019 and 2024. In contrast, Baldwin County, Ala. (between Mobile and Pensacola) is opening a new jail this summer that will expand capacity by 50%. The study from Khatri et al. suggests Contra Costa’s 25% jail population reduction (on top of an already relatively low incarceration rate) could translate to an average of 52 fewer county residents dying each year as a result of the harms from the jail. For perspective, Contra Costa averaged 47 homicides a year over the last decade, so this would be a meaningful change. Conversely, if the number of people in the Baldwin County jail increases by 50% to fill up the new facility, this study suggests an additional 57 deaths in the county each year. Given there were only 20 murders in the county in 2023, this would be quite a concerning increase.

For people who live in counties considering steps to reduce criminalization, pretrial detention, and overall jail capacity, this research provides clear evidence of the harms of incarceration. Jail construction is expensive and tends to crowd out public investment in other needs like community-based healthcare. Criminalization of addiction doesn’t address problematic substance use, and better community-based treatment options are needed. Moreover, some studies suggest jail construction leads to even more criminalization rather than deterring crime. Decarceration is one of the best tools to combat early deaths caused by this dynamic between criminalization, incarceration, and austerity — what geographer Ruth Wilson Gilmore terms “organized state abandonment.” By comparing the number of deaths due to the harms of incarceration to the numbers of murders reported, we can get a sense of the scale of this abandonment. Communities across the United States don’t have to tolerate these burdens of incarceration. Instead, as this new paper suggests, working to reduce jailing could help improve community health.

Can they do that? A primer on the powers — and limits — of the president and federal government to shape the criminal legal system

The Trump Administration has made a lot of claims about how it will change the criminal legal system. We explain where the president and federal government have full control over the system, where they have some influence, and where their power ends.

by Mike Wessler, June 11, 2025

Sections

By the numbers

Independence of state & local authorities

Federal influence

The president & executive branch

Control over federal spending

Federal policing and prosecutions

Enforcement of civil rights laws

Pardons and commutations

Appointments

The bully pulpit

Congress

Federal courts

These are not normal times

Impacts on state and local governments

There is little question that the President of the United States is the most powerful person on the planet. They can launch military strikes, shake the foundation of the economy, and dramatically alter our international alliances, all with a stroke of their pen. And if you have heard President Trump speak about the criminal legal system lately, you’d likely think the office also has the power to control who is arrested and incarcerated, and what the conditions are like when they get there. The truth, though, is much more complicated.

It is important to remember that the United States doesn’t really have a single, unified criminal legal system. It has thousands of smaller systems, and state and local governments have direct authority over the vast majority of them. However, while the president and the federal government don’t have direct control over most of these systems, they have many tools at their disposal to indirectly impact how they are operated.

In this briefing, we explain the federal government’s traditional role in the United States’ criminal legal system, highlighting where it has direct control, ways it can exert indirect influence, and the relative size and scope of its power. It is important to note that, in this piece, we rely on how our government normally works, when limits on federal power are honored and where the president obeys court orders. We don’t explore every nuance of federal law or possible tools that the federal government could hypothetically deploy.¹ Instead, we aim to help you understand the avenues of influence it has traditionally exercised.

Actions and statements from the Trump administration raise serious doubts about whether these limits will be respected. Understanding the contours of power and authority outlined in this briefing can provide clues about what to expect in the future and serve as a helpful barometer of how far actions by the administration have deviated from the standards of recent decades.

The federal criminal legal system: By the numbers

While the president and members of Congress may talk a lot about crime, prisons, and incarceration, the truth is they directly control only a small sliver of the overall carceral system.

As we explain in the latest edition of our flagship report, Mass Incarceration: The Whole Pie, there are roughly 2 million people incarcerated in the U.S. on any given day.² Of those, only a relatively small portion are under the direct control of the federal government:

• Approximately 204,200 are in federal prisons or jails;
• Roughly 48,000 are in immigration detention facilities.³⁴

In total, about 13% of incarcerated people — approximately 252,200 people — are under the direct control of the federal government. For context, the federal incarcerated population is only a little larger than the number of people in prisons in jails in the single states of Texas, which has 11% of the national incarcerated population, and California, which has 10%. Those numbers show that, rather than being a massive monolith, the federal carceral system is roughly the same size as the criminal legal systems in some of the larger states in the country.

Make no mistake, 252,200 people under direct federal control is a lot, but it represents only a relatively small portion of the total number of people behind bars on any given day in this country.

So, who has direct authority over the other 87% of people incarcerated in this country? State and local governments.

Independence of state and local authorities

State prisons and local jails hold the vast majority of people who are incarcerated in this country. Those facilities and systems are operated and overseen by state and local governments and are largely independent of the federal government. You should think of state prisons and local jails as systems that operate in parallel (and occasionally overlap) with the federal system, rather than as subsidiaries of it.

State legislators write laws that dictate what actions are considered crimes and the possible punishments for those actions. Police and prosecutors — operated by both state and local governments — enforce those laws by carrying out arrests and prosecutions. County sheriffs operate local jails. And the state government runs the prison system that confines people sentenced to incarceration by state courts.⁵

Generally speaking, state and local governments hold the vast majority of the control in the criminal legal system, and the federal government plays a relatively small role.

Examining recent progress towards decriminalizing marijuana offers a helpful — albeit unique — example of how state and local governments operate in parallel with the federal government when it comes to law enforcement. Currently, 24 states have made the recreational use and possession of marijuana legal. That means that state and local law enforcement cannot arrest or prosecute someone for simply possessing or using marijuana.⁶

However, the possession of marijuana remains illegal under federal law. Even if you are in a state that has made recreational use of marijuana legal, the federal government could, in theory, still arrest and prosecute you for it. Usually, though not always, the federal government has respected states’ ability to write their own criminal laws, and in doing so, has avoided prosecutions that are contrary to state law.

Importantly, if someone is sentenced to incarceration, the entity that prosecuted them usually determines where they serve their sentence. If they’re prosecuted under state law, as most people are, they’ll usually serve their sentence in a state prison. If they’re prosecuted under federal law, they’ll likely serve their sentence in federal prison.⁷

Federal influence over state and local policy

While the federal government has direct control over a relatively small portion of the nation’s criminal legal systems, the president, Congress, and the federal courts have many ways to exert indirect influence over how states and local governments address public safety, prosecute crimes, operate their prisons, and more.

It is essential to recognize that the federal government’s influence and power to shape state and local criminal legal system policy is not inherently good or bad. This power has been used to both shrink and grow the carceral footprint in America. Understanding the contours of these powers can help you see how they’re being used.

The president and the executive branch of the federal government

The president and the executive branch of the federal government likely have the most tools at their disposal to influence how state and local governments operate their criminal legal systems. Some of these mechanisms are direct actions that essentially force the hands of state and local governments by using the promise of providing or eliminating funding or threatening legal action, while others rely on the prominence and prestige of the presidency to exert pressure and encourage specific actions.

Control over federal spending

While Congress controls the amount of money budgeted for various federal government programs,⁸ the president has immense discretion over how that money is spent and how laws are implemented. From the money allocated by Congress, presidents can often direct money to their own priority programs, while offering fewer resources to programs that are less important to them. These choices can dramatically impact state and local criminal legal systems.

Policy TrackerHow Trump is making the criminal legal system worse

A prime example of this is the Department of Justice’s Office of Justice Programs. This office provides millions of dollars in grants to state and local governments, as well as other organizations that provide services related to the criminal legal system. How this money is spent and what programs receive money have huge impacts on state prison populations and local police activities.

Under President Biden, many of these grants were awarded to organizations and programs designed to keep people out of the criminal legal system, reduce violence, and support victims of crime. However, shortly after taking office, the Trump administration cancelled roughly $820 million in Biden-era grants, indicating that they didn’t align with the administration’s priorities. The administration has said this money will instead be allocated toward programs that align with its focus areas, which many people assume means it will result in more money for policing and prison construction.

Additionally, the Department of Justice provides funding to state and local law enforcement through a series of grants and other programs. Many of these programs require state and local officials to comply with federal policing standards and collaborate with federal authorities on certain criminal investigations and prosecutions. This funding allows federal authorities to expand their reach and exert new pressure on local elected and law enforcement officials.

Another example of how executive branch agencies use money to shape state criminal justice policy is the Justice Reinvestment Initiative, which is partially funded by the U.S. Department of Justice. This program connects state leaders with experts to help them develop strategies to reduce crime, improve services for people with substance use disorder and mental health issues, and reduce spending on prisons and jails. Through this model, the federal government helps to lay the groundwork for state policy reforms. This framework allows the federal government, despite not having a direct voice in the decision-making for states, to influence state policies.

While the president cannot directly instruct states on how to operate their criminal legal systems, making funds available for specific uses can push them to take actions that the president wants. The money can motivate officials to follow the federal government’s lead, and conversely, when money dries up, force them to abandon strategies that aren’t in line with the president’s priorities.

Federal policing and prosecutorial power

The president appoints the attorney general of the United States to head the Department of Justice. Over the last fifty years, presidents have generally respected the independence of their attorneys general, based on the recognition that law enforcement should not be influenced by politics or personal grievance. The Trump administration has made clear it will no longer respect that independence.

While the attorney general is generally considered the top law enforcement official in the nation, they only have direct policing and prosecutorial power over allegations that federal crimes have been committed. As we explained above, this has traditionally been a relatively small portion of the total criminal cases around the country, with state and local governments maintaining jurisdiction over the vast majority.

It is important to note that the attorney general has incredibly wide discretion over which cases the Department of Justice pursues. There are a lot of actions that are criminalized by both the state and federal governments. However, in the vast majority of these cases, state and local authorities take the lead on arrests and prosecutions.

In theory, however, an attorney general could direct federal law enforcement to take primary authority over far more cases than it has traditionally pursued. This would swell the federal prison population and the federal government’s role in the criminal legal system. The fear of federal intervention in the criminal legal system can be used to coerce states to more aggressively pursue prosecutions that the president and federal government have prioritized.

Enforcement of civil rights laws

One of the most powerful ways that the federal government has positively impacted state and local law enforcement and prisons is through the enforcement of civil rights laws.

Even when state or local officials are responsible for policing or incarceration, they must still abide by civil rights protections in the U.S. Constitution. If they don’t, the U.S. Department of Justice can bring a federal lawsuit against the prison, police department, or other government body. These lawsuits often focus on things like racist policing practices, inhumane prison or jail conditions, and police brutality.

Often, these cases are resolved by consent decrees, in which the state or local government entity agrees to take specific actions to resolve the practices that violated federal law. In a break with the past, the Trump administration has announced that it is abandoning many of these efforts to rein in abuse in prisons and jails and by law enforcement.

Pardons and commutations

Presidents have the power to pardon or commute the sentences of people convicted of federal offenses. A pardon absolves a person of their criminal conviction, ending any remaining time in prison or on probation and wiping the conviction from their record, like it never happened. A commutation, on the other hand, reduces a person’s sentence, but doesn’t remove the conviction from their criminal record.

It is important to note that a president can only grant pardons and commutations to people convicted of federal crimes. They have no power to change the criminal sentences of people convicted of state crimes, which means most criminal convictions in the country are outside of their reach.

Appointments to courts, agencies, commissions, and more

The people who run the day-to-day operations of the federal government matter, and the president appoints a significant number of judges, agency heads, and members of regulatory boards that shape criminal legal system policy in this country.

The president nominates people to fill vacancies in federal courts,⁹ including the United States Supreme Court. By nominating people who share their worldview on public safety, prison conditions, crime, and other issues, the president indirectly shapes how federal courts rule on these issues for decades to come. Importantly, these courts will also regularly be asked to weigh in on whether state or local policies violate the U.S. Constitution, giving them considerable influence on what and how criminal legal system policies are implemented.

Presidents also appoint the heads of most federal departments and most agencies in the executive branch. The people appointed to these positions are the ones managing the day-to-day operations of the federal government, making the specific choices about how money is spent, where staffing resources are focused, and how the administration implements federal laws.

Finally, the most overlooked appointments that presidents make are to the various rule- and regulation-making boards and commissions scattered throughout the government. These bodies are tasked with filling in the details of how specific legislation is implemented, giving them immense power to shape both the federal and state criminal legal systems. Recent examples include:

• The Federal Communications Commission: In 2022, Congress passed the Martha Wright-Reed Just and Reasonable Communications Act, which tasked the Federal Communications Commission with issuing new regulations reducing the cost of phone calls from prisons and jails. The Commissioners took sweeping action to do just that. This impacted nearly every prison or jail in the country, regardless of whether it was run by the federal, state, or local government.
• The Federal Trade Commission: Under President Biden, the commission took action to address junk fees that private companies charge to incarcerated people — even those not in federal custody. While the final proposed rules didn’t go nearly far enough to protect people in prison and jail, they demonstrate the far-reaching impacts of actions by this body.
• The Postal Regulatory Commission: Postal mail remains a critical way that incarcerated people stay in touch with their loved ones on the outside. This commission sets the cost of postage and other rules around this service.

The bully pulpit

When all else fails, the president can also use their prominence in government, ability to garner media coverage, and public platform to influence how the public views and thinks about issues, even if they have no direct power over those issues. This is sometimes referred to as “the bully pulpit.”

There are few people more famous than the person sitting in the Oval Office. They have hundreds of media outlets clamoring for interviews. They can give speeches and statements that directly reach the public. And they usually have social media followings that reach hundreds of millions of people in the U.S. and worldwide.

While they don’t directly dictate policy, these are powerful tools, and when the president wants to, they can use them to raise awareness of issues they care about, pressure officials to take specific actions, or shift public sentiment and thinking broadly.

President Obama and President Trump have both used their bully pulpits — in far different ways — to discuss policing and influence the actions of local law enforcement:

• In a 2014 speech, after a grand jury failed to indict a police officer who killed Michael Brown, President Obama gave a speech encouraging calm in the wake of that decision, giving voice to the frustration that communities of color feel with police, and encouraging local law enforcement to work to build public trust by improving their practices. President Obama had no direct say over the practices of local police departments, but by using the bully pulpit, he helped to draw public attention to the need for improvement in policing.
• Meanwhile, during his first term, President Trump was speaking before a group of police officers in New York when he appeared to encourage more violence by law enforcement and urged them not to “be too nice” to people who are arrested. Again, President Trump had no authority over the specific policing practices of local departments, but his words provided a permission slip to officers to be more violent towards people in their custody.

Presidents have little direct authority over how local police officers do their jobs, but by using their bully pulpits in drastically different ways, one called on police to be part of a solution that improves trust in law enforcement, and the other encouraged more police violence. Both remarks helped to sway public opinion and police actions.

Congress

The president isn’t the only one with the power to influence the broader criminal legal system. Congress, through its control of federal spending, can pressure state and local governments to adopt its preferred policies on crime, policing, and incarceration. While it generally doesn’t have the power to tell state and local governments exactly what to do, it regularly uses federal funding to both incentivize actions it wants and punish actions it doesn’t.

The most infamous example of this is the 1994 Crime Bill.¹⁰ While this measure took many steps to expand the federal criminal legal system, arguably its most notorious impact was how it incentivized states to lock up more people for longer periods of time. The bill included financial payments for states that adopted so-called “tough-on-crime” policies. States that adopted these misguided policies were given billions of dollars to fund the construction of new prisons.

This is far from the only time Congress has flexed its financial power to get state governments to make their criminal legal systems harsher. Other examples include:

• A 1991 law that threatened to withhold billions of dollars of federal highway funding for states that didn’t automatically revoke the drivers’ licenses of people convicted of drug offenses.¹¹
• A 1996 law that permitted the federal government to enter into agreements with local law enforcement agencies to enforce federal immigration law, with a pot of money available to entice government officials to join this effort.

Congress has also used this power for good by incentivizing or otherwise encouraging state and local governments to take meaningful steps to promote alternatives to incarceration, improve their criminal legal systems, and make their prisons and jails safer and less deadly:

• The Prison Rape Elimination Act is a bipartisan law that sought to end sexual assaults against incarcerated people. It not only established standards for the elimination of sexual assault behind bars, but it also offered financial incentives for prisons and jails to comply with those standards and to report data on their progress to the federal government. Finally, and unrelated to money, the law mandates that it be publicly announced which states are complying with the law and which are not, which serves as an additional motivation for states.
• The Deaths in Custody Reporting Act sought to bring transparency to the deaths of incarcerated people by threatening to reduce federal funding to states that did not report certain information to the federal government when someone dies in one of their facilities.
• The Juvenile Justice and Delinquency Prevention Act offered financial incentives to stop states from incarcerating young people for “status offenses” such as curfew violations, stop states from incarcerating young people with adults, and address racial disparities in the incarceration of young people. States that comply with the law receive additional federal funding.

While Congress’s power to directly change state and local policy is limited, it understands that many cities, states, and counties rely on federal money to function. This provides Congress with a powerful tool to exert its influence far beyond Capitol Hill.

Federal courts

Federal courts — including the U.S. Supreme Court — have jurisdiction over a relatively small number of criminal cases, and they only directly adjudicate the guilt or innocence of people accused of federal crimes. Despite this, their rulings can have reverberations throughout state and local criminal legal systems.

That’s because federal courts have the authority to rule on whether state laws violate the U.S. Constitution or other federal laws.

During the latter half of the 20th century, federal courts regularly used their authority to make the criminal legal system fairer and less harsh, telling states they cannot:

• incarcerate people in cruel and inhumane conditions;
• prosecute people for having a substance use disorder;
• jail someone simply because they are too poor to pay a fine; and much more.

These rulings have been particularly impactful because federal court decisions are binding on all levels of government, including presidents, governors, and all lower courts. Presidents and other government officials are constitutionally bound to follow these orders.

In recent years, however, the Supreme Court in particular has become increasingly reluctant to exercise this authority and has become more likely to defer to the executive branch to answer questions in this realm, rather than acting as a true check on its power.

These are not normal times

It is important to remember that everything written in this piece reflects how things normally operate. Anyone who has been paying attention since the start of the second Trump administration knows that we are living in decidedly not-normal times.

For example:

• It is normal for the president to appoint an attorney general, but for that attorney general to essentially act as the president’s personal lawyer is not normal.
• It is normal for the president to exercise discretion on how money allocated by Congress is spent, but the president’s refusal to spend funds that Congress appropriated for a specific purpose is not normal.
• It is normal for the president to disagree with court rulings, but to refuse to follow court orders is not normal.
• It is normal for the president to have a preference about what governors and state legislators do in their states and what individual mayors and city councils do in their cities, but threatening governors and mayors with prosecution over these policy disagreements is not normal.

These unprecedented times make it hard to predict what is going to happen in the criminal legal system and in the numerous gray areas where the authority of different parts of the government overlaps. In normal times, it’s possible to guess how some of these conflicts would play out, but at a time when one branch of government is seeking to the trample the powers of the other branches and of the individual states — and those other branches and the states are largely letting it happen — all the normal bets are off.

What does this mean for the criminal legal system at the state and local level?

While the federal government has many tools at its disposal to influence policies related to crime, policing, and incarceration, the truth is that most of the power over these issues is in the hands of state and local officials.

As the Trump administration works to expand its reach in the criminal legal system, it is easy to feel that we’re helpless. That couldn’t be further from the truth.

By recognizing that state and local leaders make most of the decisions in this area, advocates can push them to stand up to the pressures of the federal government. They can urge them not to cooperate with unconstitutional and immoral actions by federal law enforcement. They can ask them to forgo funding that federal officials might use as leverage to coerce them into implementing harsh and misguided policies. And they can take action to work to make the criminal legal system fairer, smaller, and less punitive, even if the federal government has abandoned that cause.

State and local leaders are not powerless in these situations. It may be up to us to remind them of this fact.

Footnotes

1. One area we do not cover that is of particular concern to many is the use of the Insurrection Act of 1807. This is an intentional choice because of rare use of this law, and its complexities and vagueness. To learn more about this measure, we encourage you to review this explainer from the Brennan Center for Justice.  ↩

2. For consistency, in this explainer, we’re referencing numbers from the most recent edition of our report, Mass Incarceration: The Whole Pie 2025. This is important because, since that report was released there has likely been significant changes in the number of people in custody of the federal government for immigration-related reasons. Because of this, the numbers in this report related to immigration are almost certainly an under-count.  ↩

3. In this briefing, we don’t discuss the immigration system in detail. This is intentional. We at the Prison Policy Initiative are quite familiar with the criminal legal system, but are not experts on immigration policy. If you want to understand how the immigration system has changed under the Trump administration, we have put together a guide of organizations and resources to jumpstart your research.  ↩

4. It is worth noting that some of these people, while under the jurisdictional control of the federal government, are physically held in local jails that have rented space to Immigration and Customs Enforcement (ICE) or other federal law enforcement agencies.  ↩

5. Some people sentenced to incarceration for shorter times are held in local jails, instead of prisons.  ↩

6. It is worth noting that most states have rules around the possession and use of marijuana, and violating those rules could still get a person in trouble with the law. Most commonly, these rules ban the use of marijuana in public places. For example, in most states, smoking pot in a public park could still result in criminal arrest or citation.  ↩

7. If you’re not sure whether a prison is run by the state or federal government, it can be helpful to look at the facility’s name. If the name contains the letters FCI (Federal Correctional Institution) or USP (United States Penitentiary) it is a federal prison. While the vast majority of federal facilities start with these acronyms, there are some federal facilities whose names don’t include these letters.  ↩

8. We dive deeper into this later in this piece.  ↩

9. We discuss the role and influence of federal courts in the criminal legal system later in this piece.  ↩

10. It is worth noting there is considerable debate about the impact this law had on state prison construction. The subsidies for prison expansion weren’t massive, and academics dispute whether states would have made their sentencing laws harsher anyway (and some states claim that the subsidies had no effect). And the 1991 highway bill, which is mentioned below, both threatened to withhold a significant amount of money from states and made it incredibly simple for them to opt out of the requirement without losing their funds. But in both cases, Congress clearly expressed an opinion as an attempt to exert some influence on state governments.  ↩

11. In one of our earliest campaigns, Prison Policy Initiative worked to end this practice. Learn more about this practice and our efforts on our driver’s license suspension campaign page.  ↩