Prisons are a daily environmental injustice

On Earth Day, many people contemplate past and future demands for clean air, clean water, and protected landscapes. But society’s calls for a healthier environment rarely extend to incarcerated people, many of whom are confined in toxic detention facilities. We recap some aspects of how prisons leave both people and planet worse off.

by Leah Wang, April 20, 2022

No one is spared from reckoning with human-induced environmental change, like pollution from industrial emitters and increasingly severe natural disasters. Yet in correctional facilities, incarcerated people have no agency over almost any aspect of their lives, including their exposure to harmful and even potentially lethal conditions. Prisons fail to provide a basic standard of livability, while climate change and extreme weather test the ability of prison administrations to carry out contingency plans for the hundreds of thousands of people in their care. The ways in which environmental hazard and risk maps onto other unsafe conditions of confinement amounts to a human rights crisis that has persisted for decades.

Prisons are sited on uninhabitable, toxic wastelands

The rural geography of many of our nation’s prisons isn’t just unfortunate for those having to travel far from home to visit; prisons are too often built near (or directly on) abandoned industrial sites, places deemed fit only for dumping toxic materials. One-third (32%) of state and federal prisons are located within 3 miles of federal Superfund sites, the most serious contaminated places requiring extensive cleanup. Research warns against living, working, or going to school near Superfund sites, as this proximity is linked to lower life expectancy and a litany of terrible illnesses.

As a result of being on or near wastelands, prisons constantly expose those inside to serious environmental hazards, from tainted water to harmful air pollutants. These conditions manifest in health conditions and deaths that are unmistakably linked to those hazards.

In western Pennsylvania, for example, a state prison located on top of a coal waste deposit has done permanent damage, causing skin rashes, sores, cysts, gastrointestinal problems, and cancer, with symptoms often appearing soon after arrival. A scathing report from 2014 exposed these patterns of illness and neglect, but the prison — SCI Fayette — remains open.

And the devastating health outcomes at one prison in Louisiana was a smoking gun for environmental injustice — or a smoking tire, in this case. Laborde Correctional Center‘s neighbor, an abandoned tire landfill, caught fire and burned for four days before the prison decided to evacuate. The state’s environmental agency and the tire company are on the hook for failing to address compliance issues, but the damage had already been done to the health of the people trapped inside the prison’s walls.

Indeed, no region is more of a poster child for harmful prison siting than Appalachia, where new prisons have served as a failed economic replacement for the waning coal industry. For example, devastating mining and mountaintop removal activity in Kentucky has left residents — and now, many incarcerated people — with high rates of cancer and warnings against drinking or bathing in the tap water. With these day-to-day health hazards in mind, the promise of stable prison jobs and related economic development in Appalachia is hampered by its appalling environmental legacy.

This is not just a rural phenomenon. The Rikers jail complex in New York City is sited squarely on a landfill, making it a particularly cruel metaphor; the leaching of toxic fumes from poorly decomposing trash has caused anguish to the point where correctional officers have sued the city. It’s clear that those who set out to build these prisons care no more about the people inside than they do about garbage.

Bad water and bad air: Incarcerated people are forced to drink and breathe contaminants

Whether the result of terrible prison siting or run-down infrastructure, poor water quality plagues prisons nationwide, but little has been done. At one of the older state prisons in Massachusetts, incarcerated people fear for their health because their water has been “dark in color,” bad-smelling, and clogging filters with sediment for years. Testing showed dangerous levels of manganese, which can lead to neurological disorders. Meanwhile, a Texas facility was providing water with elevated levels of arsenic for ten years before the courts got involved, and an Arizona prison’s water, smelling foul and causing rashes, tested positive for a “petroleum product.” The list truly goes on and on, with a wide range of toxic substances swirling around the water supply of prisons.¹

In addition to heavy metal and oil, water with unacceptable levels of bacteria has caused outbreaks of Legionnaires’ disease — a potentially fatal type of pneumonia — at prisons in California, Illinois, New York and other states. Not only are prison administrations hesitant to replace the aging, corroded pipes that may have contributed to this horrendous bacterial growth, but staff enjoy free bottled water or bring in their own to avoid illness, leaving incarcerated people’s concerns largely unheard and unaddressed.

In the 1970s and 80s, the U.S. government took a firm stance against radon, an invisible, odorless gas known to cause lung cancer in indoor environments, launching an all-out eradication initiative in homes across the country. Yet in prisons, testing for and mitigation of radon has not been a priority. In 2018, a court found that a Connecticut prison was “knowingly and recklessly” exposing its incarcerated population to alarming levels of radon,² in violation of the Constitutional right to an environment free from toxic substances.³ Incarcerated people have the right to clean air and water no less than anyone else, yet these and other basic necessities are routinely denied to them.

Over 1 million people are locked up in prisons, environments almost guaranteed to make them sick, while medical copays in many prisons only disincentivize treatment, making illness worse and in some cases more likely to spread.⁴ Often, correctional staff are also exposed to dangerous levels of pollutants, and concerns about health and safety are ignored by prison officials. This glaring cruelty of confinement makes it hard to believe that these “correctional” facilities make anyone better off.

Eleven miles of sewers: New prison and jail construction threatens human and environmental health

The plan to build a new jail in Otsego County, Michigan, would have been on an undeveloped site. According to a a public document from 2016 (top), the site had contaminated soils that would have required extensive clean-up before any digging and construction could take place. That fact was conveniently ignored by Otsego County public safety officials, who made an assumption of “no hazardous materials mitigation,” in their 2020 feasibility study (bottom) , creating the illusion of an environmentally and financially viable location.

Over the years, we’ve offered several reasons not to build or expand prisons and jails, but siting new correctional facilities brings up questions of ecological and health impacts. For example, when residents of Otsego County, Michigan voted against building a new county jail in late 2021, they prevented more than just a fiscally wasteful campaign to over-incarcerate people. The budget in the county and engineering firm’s feasibility study made an assumption that the site would require “no hazardous material mitigation,” even though government documents from four years prior declared the very same site to “contain hazardous substances,” in this case petroleum. Either the proposed “justice complex” would have required millions of dollars in soil remediation, or the damning document could have been rescinded or even ignored, allowing the county to do what too many other jurisdictions have done — knowingly incarcerate people on toxic land.

And next to Great Salt Lake in Utah, a massive new prison is under construction, despite great concern about its decidedly bad location and environmental impact. An engineering industry magazine even admitted it: The forthcoming Utah State Prison and its outbuildings, sited on a “remote wetland area” in a “sensitive environment,” is more like “a small city [of] 7,000 people,” more than half of those incarcerated. The city-sized project, requiring six miles of new roads and 11 miles of new sewer lines, is built upon soils that are known to “liquefy” when rattled by an earthquake (which would not be unusual, as this region sits upon on a network of geological fault lines). Plus, the new facility is located next to a closed, unregulated landfill; how long will it be before the untreated medical issues in Utah’s prisons are exacerbated by toxic landfill fumes?

Prisons refuse to respond to climate change-related emergencies

With their unwillingness to prepare for disasters due to global climate change, prisons (and other parts of the criminal legal system) stand to endanger or delay justice for people charged with a crime. For example, when Hurricane Harvey tore through the greater Houston area in Texas in 2017, several thousand incarcerated people were evacuated, but just as many were forced to wait out the storm in their facilities, with no plumbing and dwindling supplies. Not far away, Harvey caused flooding that put courtrooms out of commission and forced people detained pretrial to wait in jail longer for their day in court.

And in Louisiana, a state known both for its high incarceration rate and for its vulnerability to storms, hurricanes Katrina and Ida exposed serious shortcomings in disaster planning for its prison and jail populations. Trapped in dilapidated, flooding buildings and cut off from communication with loved ones, incarcerated people in Louisiana were simply left behind when evacuation was ordered for parish residents. In California, where wildfires are the primary environmental threat, evacuation plans are rare and unpracticed; the large populations in many prisons present a logistical nightmare — a disincentive to move incarcerated people out of harm’s way. In the words of Loyola University professor Andrea Armstrong, incarcerated people unwillingly stand “on the front lines of climate change.”

In many regions, scorching temperatures spurred on by global climate change are an active threat to incarcerated people with no access to relief. While the prevalence of air-conditioned homes in U.S. cities has skyrocketed, according to recent Census data, prisons have been slow or downright unwilling to respond to increasingly unbearable conditions, as we found in a 2019 investigation of the hottest parts of the country. Intolerably hot environments are worse for people on certain medications or with medical conditions like diabetes and high blood pressure, which incarcerated people tend to have at higher rates than the general population.

Experts have already warned that climate change will impact the criminal legal system in profound ways beyond adapting correctional facilities to a warming world. An entire generation of climate migrants, people forced to flee where they live due to extreme weather, may ironically become ensnared in the U.S. “crimmigration” system, finding themselves locked up and even more defenseless in the face of disaster. As the climate changes, so must prisons and other confinement facilities — and not in ways that expand the massive footprint of the criminal legal system.

As research overwhelmingly shows, people in prison tend to come from disadvantaged, criminalized communities — the same communities bearing the burdens of environmental injustice. Moving people from the environmental hazards deliberately imposed where they live, to similar or more extreme hazards in prison through the criminal legal system, is an inane practice with enormous moral and fiscal costs. Decarceration efforts (like changing sentencing laws and accelerating compassionate release) will move people out of these death traps back into their home communities, where funding saved can be directed to where it should have gone all along.

New report, Beyond the Count, uses demographic data to show the social disadvantage of people locked up in state prisons

People in prisons have endured disadvantage and poverty all the way back to childhood, the Prison Policy Initiative's new report shows.

April 13, 2022

This morning, the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up. The report’s findings make clear that solving this country’s mass incarceration crisis will require policy changes that begin outside the prison walls and tackle the inequities and disadvantages incarcerated people face early in their lives.

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020. The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society. Key takeaways include:

• Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

• Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.
• The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.
• Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives. Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ. Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.

While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

“What the data in our new report show is that this country is locking up the same people it has failed by not investing in things like good healthcare, housing, and education for all,” said report author Leah Wang. “What’s worse, the data show that most disadvantaged people’s encounters with the justice system begin during childhood, when they are arrested rather than given the care and attention they need as young people.”

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

What the Survey of Prison Inmates tells us about trans people in state prison

We look at the experiences of 29 incarcerated transgender people before and during their incarceration.

by Tiana Herring and Emily Widra, March 31, 2022

Nearly 5,000 transgender people are incarcerated in state prisons, but we know very little about their lives before prison or their experiences during incarceration. To add to this limited body of research, we’ve analyzed the Survey of Prison Inmates, 2016 data, released in late 2020, which provides a glimpse into this overrepresented but understudied population. The small number of trans respondents to the Survey of Prison Inmates — only 29 trans people — limits our ability to generalize the data; however, the results from this study are worth exploring given the lack of information about trans people in prisons. Our findings help give greater visibility and understanding about the respondents’ lives, experiences, and challenges before and during their incarceration.

Because of the small sample of 29 trans respondents, we elected to avoid presenting percentages that could lead to misleading generalizations and instead focused on the raw data we could access from the Survey of Prison Inmates.

Here’s a glimpse into what we were able to learn from these 29 individuals:

• Most of the trans people surveyed were people of color, lesbian, gay, or bisexual (LGB), and relatively young.
• The trans people surveyed reported experiencing a variety of adverse experiences before turning 18, such as homelessness, foster care placements, arrest, and incarceration in juvenile facilities.
• Many of the trans people surveyed participated in job training and educational programming, likely to make up for missed opportunities before incarceration (such as educational exclusion and higher risk for unemployment).

We know trans people in prison exist at the intersection of a number of oppressed identities. But beyond that, before this data was released, what we knew about the trans population in prison was limited to the reports published by the National Center for Transgender Equality.¹ The Survey of Prison Inmates data adds to this previous work to provide a clearer picture of the actual lived experiences of incarcerated trans people, giving us a window in which to observe — and subsequently address — what trans people face behind bars and what factors may contribute to the likelihood trans people will come into contact with the criminal legal system.

Demographics of the 29 incarcerated trans people surveyed

The LGBTQ+ population is overrepresented at every stage of the criminal legal system. To look more specifically at the transgender population — which is often not distinguished from the LGB population in available data — we need to look at the demographics and see just how the trans population compares to the general prison population. From what we can tell from this small sample, the trans people surveyed tend to be more diverse in terms of their race/ethnicity and sexual orientation, and skewed younger in age.

Race and ethnicity. The vast majority (23) of the trans people surveyed were people of color. Eight were Hispanic, eight were Black, and seven identified with two or more races. Meanwhile, the overall prison population is about 32% white, 34% Black, 21% Hispanic, and 11% two or more races. This is generally in line with other studies which have found that trans people of color have especially high lifetime rates of incarceration.

Sexual orientation. Additionally, more than half (17) of the incarcerated trans respondents identified as lesbian, gay, bisexual, or something else other than straight. By contrast, 96% of the entire state prison population identifies as straight, according to the Bureau of Justice Statistics’ analysis of the same data.

Age. Most (15) of the incarcerated trans people surveyed were under the age of 34, younger than the average age of 39 of all people held in state prisons nationwide. Evidence suggests that lesbian, gay, bisexual, and trans youth — and especially trans youth of color — are at especially high risk for contact with the criminal legal system compared to the general U.S. population.

Even before incarceration, these trans people were at a disadvantage

In general, people in prison have experienced multiple hardships, such as repeated arrests and low educational attainment, and this remains particularly true for the 29 trans respondents.

Housing and poverty. About a quarter (8) of the trans respondents reported homelessness before age 18 and 13 trans respondents lived in foster care or an institution (like a group home) before age 18. Additionally, 12 of these trans people’s families received welfare/public assistance before they were 18, adding another layer of disadvantage, as children who grow up in poverty are at greater risk for behavioral problems, chronic health issues, and poor academic achievement.

Arrests and juvenile facilities. Most (16) trans people surveyed reported being arrested for the first time when they were 18 or younger, and many (12) spent time in a juvenile facility. Involvement in the criminal legal system at a young age is a fairly common experience for LGBTQ+ youth who are overrepresented in the juvenile justice system. Juvenile detention can be especially dangerous for trans youth who overwhelmingly report feeling unsafe in these facilities, and can be subject to solitary confinement ”for their protection.”

Education. The majority (19) of the trans people surveyed did not finish high school. Other studies have shown that outside of prison, trans students are more likely to report that they may not complete high school. Over 84% of trans students surveyed in 2019 reported feeling unsafe in school because of their gender, and a similar portion of trans students said they had been victimized in school because of their gender and gender expression. Interestingly, three of the trans people who responded to the Survey of Prison Inmates reported graduating from college. While we advise against generalizing this finding too broadly, this is a notable share of the trans respondents (12%). In comparison, only 4% of the entire surveyed state prison population reported earning a college degree.

Employment. Given that so many of the trans respondents were excluded from educational opportunities, it’s unsurprising that they also report low rates of pre-prison employment:² less than half (13) of the trans people surveyed were employed in the month before their arrest.

Past criminal justice history. When asked about past involvement with the criminal legal system, the vast majority of trans people surveyed (23) reported having been on probation before, and over a third (11) had served time in jail at least twice before. Even short stays in jail can have detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. And previous research has shown that trans people are at an elevated risk of unemployment, unstable housing, and being disconnected from their families even without the added layer of criminal justice involvement.

It’s perhaps unsurprising that many of the trans people surveyed reported prior interactions with the criminal legal system given that trans people are criminalized and discriminated against for simply being trans. For example, the National Center for Transgender Equality and the National Gay and Lesbian Task Force’s Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, found that trans people — especially trans people of color — are disproportionately harassed by police and experience high rates of unequal treatment and harassment interacting with government agencies/officials, judges or courts, and legal services clinics.

Experiences while in prison

Trans people outside of prison are less likely to have access to necessary health care and services, and more likely to have negative interactions with police and experience unemployment. The trans respondents to the Survey of Prison Inmates suggest these experiences happen behind bars, too.

Substance use treatment. Previous studies of incarcerated trans people have found that trans people were frequently denied routine healthcare in prison. Data from the Survey of Prison Inmates suggests this may also be true of drug treatment. While there was no direct question about a substance use disorder diagnosis in the survey, a possible proxy measure is whether someone had ever received drug treatment in their lifetime.³ Of the trans people surveyed, about one-third (9) reported ever receiving such treatment. But of those individuals, only 2 had received treatment since admission to prison.

Discipline. Many of the trans people surveyed had received a rule violation in the previous 12 months (12), and half of those individuals (6) had received multiple rule violations over the same time period.⁴ Of those who reported receiving disciplinary action, five reported being confined to their cell, and three were sent to solitary confinement.

Unfortunately, the survey does not ask the important questions about being violated or harassed in prisons. This is of particular concern for trans incarcerated people, given that 35% percent of previously incarcerated trans people surveyed by the National Center for Transgender Equality reported harassment by other incarcerated people and 37% reported being harassed by correctional officers or staff.

Work assignments. Unemployment outside of prison among trans people is a serious concern. Given the reality that trans people are frequently discriminated against by employers, it’s important that they have equal access to employment opportunities when they are incarcerated. At the time of the survey, 18 trans respondents had work assignments. Three trans people surveyed reported that they worked in goods production/correctional industries which tend to pay more than jobs supporting the prison itself (though all prison wages are exceptionally low). Other common jobs for trans people in prisons were hospital/medical duties, working in libraries, barber and beauty shops, and food service, which may be preferred jobs in prisons because of their relevance to post-release job prospects.

Programming. Nearly half of the trans survey respondents reported participating in job training or educational programming opportunities since admission. Given that trans people are often excluded from or pushed out of educational and job opportunities before incarceration, they may be trying to make up for lost opportunities while confined. Incarceration shouldn’t be trans people’s only opportunity to access job training and education, though; they would be better served by having more support at earlier intervention points, and through the rest of their lives.

Transgender people in prisons have multiple, intersecting marginalized identities that make them more vulnerable to traumatic experiences throughout their lives. Although this survey included only 29 trans people, it provides some valuable insights about their needs and will hopefully be the foundation of more in-depth research by government agencies, scholars, and advocacy groups. But the existing research makes it clear that there is an urgent need for trans people to be provided with more support during incarceration, more support after incarceration, and more help avoiding contact with the criminal legal system in the first place.

What does successful bail reform look like? To start, look to Harris County, Texas.

New data supports what advocates have been saying all along: there’s no need to detain so many people pretrial.

by Emily Widra, March 28, 2022

New data is out that supports bail reform efforts to end reliance on cash bail, minimize the number of people charged with misdemeanors and detained pretrial, and improve misdemeanor bail hearings. The recently published findings come from researchers charged with monitoring misdemeanor pretrial reform as it is implemented in Harris County (Houston), Texas.

In the most recent report on Harris County’s pretrial reform, the monitoring team reviewed the results of the changes implemented so far, and generally found that the reforms are successfully addressing some of the most pressing issues with misdemeanor pretrial detention. We highlight some of the most significant results they report about Harris County’s misdemeanor bail reform so far:

This graph is based on data from the Monitoring Pretrial Reform in Harris County, Fourth Report of the Court-Appointed Monitor on March 3, 2022.

Fewer people charged with misdemeanors and detained pretrial

Most people in city and county jails across the country are detained pretrial, meaning they are legally innocent and have not been convicted of the crime they are held for: too often, they are jailed because they cannot afford the cash bail set by the court. In Harris County, the percent of misdemeanor defendants detained pretrial dropped from 47% in 2015 to 22% in 2021. Unfortunately, a number of people are still detained despite the Consent Decree and subsequent reforms, for felony cases or because of “holds” for other agencies such as probation, parole, or immigration. (See report, Figure 12, p. 37)

Fewer misdemeanor convictions

Pretrial detention increases the odds of misdemeanor conviction, largely because detention pressures people to take plea deals when otherwise their case would likely be dismissed or they would be acquitted. By reducing the pretrial detention rate, the percentage of misdemeanor cases resulting in conviction dropped 54% from 2015 to 2020 in Harris County. Conversely, the percentage of misdemeanor cases resulting in dismissal or acquittal increased from 31% to 68% between 2015 and 2020. (See report, Figure 16, p. 43)

Shorter periods of being locked in jails

Because pretrial detention can have disastrous consequences for employment, housing security, and families, reducing the amount of time defendants spend behind bars is crucial. From 2015 to 2021, the percent of misdemeanor defendants detained pretrial in Harris County for 2-7 days dropped 14% and those detained for more than 7 days dropped 12%. Shorter stays became more common, with the share of defendants released within 2 days increasing by 27%. (See report, Table 3, p. 35)

Fewer “failures to appear” and no increase in pretrial arrests for new offenses

Two of the most commonly cited goals of pretrial detention and cash bail are to guarantee court appearances and reduce the likelihood of re-arrest before trial. But in Harris County, reducing the number of people detained pretrial actually decreased the rate at which people either missed their court date or had their bond revoked for some other reason (such as re-arrest) by 5%. Additionally, the share of misdemeanor arrestees with a new case filed within 90 days, 180 days, and 365 days remained unchanged following the reforms, suggesting that pretrial detention does not increase court appearances or reduce the chances of pretrial re-arrest. (See report, Table 6, p. 46 & Figure 14, p. 40)

Millions of dollars saved by the county and defendants

Conservative financial estimates suggest that Harris County saved $6.6 million per year from these changes and that individuals arrested for misdemeanors saved $314 million as a group over the past seven years. (See report, p. 51)

No increase in racial disparities

Unlike some other pretrial reform efforts, there is no evidence that racial disparities widened following the Harris County bail reforms. From 2015 to 2021, 58-59% of misdemeanor defendants in Harris County were Black. The reforms have not yet reduced disparities, either: The share of Black people arrested for misdemeanors in Harris County is still substantially higher than for misdemeanor arrests nationally (26%) and significantly higher than the share of Black residents of Harris County (20%). (See report, Figure 4, p. 26)

These new findings clearly support the bail reform efforts taken so far in Harris County, and should serve to embolden policymakers to take similar action in their own jurisdictions. Unfortunately, Texas officials themselves seem to be ignoring the evidence that bail reform can safely reduce unnecessary jailing. Just before these findings were published, Texas Governor Abbott signed Senate Bill 6 into law, eliminating the possibility for release on personal bond for “violent” crimes (or for those who are charged with any felony, misdemeanor assault, deadly conduct, or gun charges while out on bail for a “violent” offense).¹

While the Harris County reforms focused on misdemeanors and this new law is concerned with felonies, previous research offers a plethora of evidence supporting bail reform at both the misdemeanor and felony levels. In fact, 2017 research from Harris County suggests that pretrial detention can actually increase the odds of future offending and reviews of pretrial reform across the country reveal that increased pretrial release does not result in increased crime. On an individual level, pretrial detention often has detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. The evidence from Harris County and from other states that have implemented more robust pretrial reforms — like Kentucky and New Jersey — demonstrates that these reforms are common-sense changes that save money, protect individuals and families, and uphold justice and community safety alike.

Updated March 29, 2022 with a graphic that more clearly shows the changes in outcomes for misdemeanor defendants, and with text changes that reflect the relative (percent) change in rates rather than the net change in rates for these outcomes.

Untangling why prison & jail populations dropped early in the pandemic

Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased.

by Wendy Sawyer, March 24, 2022

Sections

Crime and arrests

Jail bookings & pretrial detention

Court slowdowns

Prison admissions

Keeping admssions low

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available. Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic. Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change. In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The reduction in prison admissions, which explains most of the drop in incarceration in the early pandemic, was the effect of temporary changes in arrest and jail practices, court slowdowns, and the refusal of some prisons to accept transfers from jails. However, the data do not allow us to distinguish how much of the drop in admissions was due to a given type of change, such as transfer refusals versus slowdowns.

The changes that have had the most impact on incarceration since the start of the pandemic include:

• 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
• 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
• 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
• A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
• 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

Critically, the one thing that we and other advocates demanded from the very start of the pandemic – intentional, large-scale releases to prevent the spread of COVID-19 in the tight quarters of prisons and jails – did not happen. In the first year of the pandemic, prisons actually released 10% fewer people than they did the year before, and among the twelve states that regularly publish more recent data, that trend held throughout 2021 as well. Only three states (New Jersey, California, and North Carolina) released a significant number of incarcerated people from prisons. Parole boards also approved fewer releases in the first year of the pandemic than the year before.

Changes in crime and arrests

Two major factors contributed to the 24% drop in arrests in 2020: widespread changes in behavior and more limited changes in police practices. The shift away from in-person activities towards remote work, learning, commerce, and social contact represented a major change in our usual behaviors. This explains some changes in crime trends: for example, with more people home during work hours and on weekends, there were fewer low-risk targets for home break-ins. And in 2020, there were 18% fewer home burglaries reported than in 2019, and consequently 13% fewer arrests for burglary. With fewer people out, there were also fewer opportunities for thefts that require close contact: reports of pickpocketing dropped 37% and purse-snatching 25%, and arrests for these types of crimes (larceny/theft) dropped 23%. The 24% drop in arrests for driving under the influence (DUI) also makes sense in this context: there were fewer people on the roads, and for a long time, few bars or restaurants open for people to consume alcohol.

Policing changed too, to a lesser degree. Police officers got sick, reducing their capacity to arrest, and some officials directed police to avoid unnecessary contact with the public and to issue more citations in lieu of arrest. This likely explains the dramatic reductions in arrests for “nuisance” crimes like vagrancy and drunkenness.

Some of these changes were extremely short-lived: Philadelphia police suspended “non-violent” arrests in mid-March 2020, but just two weeks later, the police force announced it would resume arrests for property crimes, effectively reversing the earlier policy. Police in Maui, Hawai’i set up a call center early in the pandemic to handle calls that didn’t require in-person responses; it was shut down within just three months, when the Police Chief declared “things are settling down.”

Given that almost all of these changes were in direct response to the pandemic, as opposed to long-term policy changes, we should anticipate a return to pre-pandemic arrest rates as work, school, business, and social life return to “normal.”

Jail bookings and pretrial detention decisions

Jail admissions generally mirror arrest trends, so fewer arrests mean fewer people booked into jail. The drop in arrests in 2020 therefore accounts for most of the 16% drop in jail admissions over the course of the year. But there were also some notable, temporary, pandemic-response policies that contributed to the reduced jail populations we saw in 2020, namely:

• The promises of many prosecutors to decline to prosecute certain low-level offenses or to dismiss pending charges against people arrested for such offenses,
• The suspension of arrests for non-criminal (or “technical”) violations of probation and parole,
• Temporary changes in probation and parole conditions that made it easier for people under community supervision to comply, such as videoconferencing instead of face-to-face check-ins and the waiving of monthly fees, and
• The temporary suspension of arrests on outstanding “bench warrants” for things like missed court dates.

Some courts and prosecutors also made impactful, though temporary, changes to pretrial processes. On any given day, at least two-thirds of the nation’s jails are filled with people who have not been convicted and are legally innocent, many because they cannot afford money bail. But early in the pandemic, we saw changes like the “$0 bail” emergency rule ordered for California’s courts, which eliminated unaffordable bail as a barrier to pretrial release for people accused of misdemeanors and lower-level felonies. In another example, the State’s Attorney in Vermont’s largest county directed her office to stop requesting bail for defendants facing low-level charges.

Together, these changes reduced the use of jails for things other than serious public safety concerns. Most of these temporary policies have long since expired, so, except for those places that have enacted policies to permanently reduce incarceration for these non-dangerous and/or non-criminal violations, we should expect to see more people jailed for these reasons again as the pandemic wanes.

Court slowdowns

Most courts had to dramatically change their operations during the pandemic in ways that led to long delays in case processing. According to the National Center for State Courts, the most common court responses to the pandemic included restricting or ending jury trials, suspending in-person proceedings, restricting entry to courthouses, extended filing deadlines, and encouraging video conferences in place of hearings.

In 2020, 21% fewer criminal cases were filed in state courts than in 2019, which in turn meant fewer people were convicted and sentenced to jail or prison. The most recent data available indicates that the number of criminal case filings were still much lower than pre-pandemic levels as of June 2021. Some of this drop in new cases is explained by changing crime and arrest trends, but prosecutorial decisions also played a key role. For example, the Maricopa County (Arizona) Attorney’s Office began delaying the filing of – but not dismissing – “thousands of charges” in an effort to keep down the number of people in courtrooms and jails (and potentially to avoid problems complying with speedy trial laws). And Seattle’s District Attorney decided early on to briefly stop filing charges except for “priority in-custody violent crimes.”

But the changes in court operations have made an even bigger dent in case dispositions than case filings: in 2020, state courts closed 36% fewer criminal cases than in 2019. Unable to keep pace with incoming cases, the clearance rate for criminal cases across over 30 state court systems dropped from 105% in 2019 (when courts were able to close more cases annually than were added to the docket) to 88% in 2020. Some of this slowdown, too, was the result of attorneys requesting postponements; some was simply due to court closures.

Pandemic caseload data from the Court Statistics Project show that criminal court slowdowns were at their worst between July 2020 and January 2021, but even with fewer new cases coming in, “pending” cases have piled up and will take time to clear. As they do, and as arrests and prosecution return to pre-pandemic norms, we can expect the rate of people convicted and sentenced to incarceration to climb back up.

Prison admissions

The cumulative effect of fewer arrests, temporary changes in probation and parole practices, and pandemic-related delays in trials and sentencing was a dramatic 40% reduction in the number of people who entered prisons in 2020. The number of new court commitments (that is, people admitted to prison to serve a new sentence) dropped almost 43% from 2019 to 2020. And, for the same reasons jail admissions fell for non-criminal violations of probation and parole, the number of people admitted to prisons for these violations fell 35%. The massive decrease in admissions was driven by steep drops in large states like California (down 66%), Florida (down 53%), and New York (down 60%).

Some of the change in admissions to prison, however, was simply because people were left in jails longer before being transferred to prisons. In an effort to prevent the spread of COVID-19 between facilities (a very valid concern), some state prison systems, such as Illinois’, refused to admit people held in local jails who were sentenced to prison. While this may have helped slow the spread into prisons, staff were still bringing the virus into facilities from their home communities. Meanwhile, these delays left thousands of people stuck in local jails, which have fewer programs and far more population turnover than prisons – a miserable situation at any time, but particularly during a pandemic.

Again, because the changes that resulted in fewer admissions in 2020 were temporary responses to the pandemic, we should expect prison populations to rebound to pre-pandemic levels as courts catch up with their backlog of pending cases and probation and parole agencies return to more stringent conditions and harsher punishments for non-criminal violations.

Prison and jail admissions are at historic lows. We can keep it that way.

The changes to the criminal legal system during the pandemic were, for the most part, temporary responses to the immediate public health emergency, not deliberate policy choices to reduce incarcerated populations over the long term. There is little reason to think that incarceration rates will remain at their pandemic-era lows without more intentional changes, particularly since jail and prison populations have already started to rebound. Furthermore, the piecemeal actions that federal, state, and local authorities did take were not nearly enough to protect people in prisons and jails, nor the communities that surround them. To date, almost 600,000 incarcerated people have been infected and more than 3,000 have died behind bars because of COVID-19. And of course, the pandemic isn’t over; still, authorities continue to ignore public health guidance that specifically calls for decarceration.

The fact that many early-pandemic policy changes were so short-lived is particularly frustrating since we know they helped rapidly reduce populations without compromising public safety. Data from the National Crime Victimization Survey show that the number of violent crimes (excluding homicide, which the survey does not cover) fell from about 2 million in 2019 to 1.6 million in 2020; accordingly, the rate of violent victimization fell by 22%. The household property crime victimization rate fell by about 7%. And, as discussed above, arrests and crimes reported by police fell, too.

Government authorities’ willful disregard of the evidence that further, sustained policy changes are both urgently needed and safe is part of a larger problem, of course. The perception (not a reality) that criminal justice reforms have led to upticks in crime over the past few years has fueled pushback against smart policy changes. That perception is powerful, and history shows that reactionary policies can follow: In the 1980s and 1990s, the last time prison and jail populations were as low as they were in 2020, the knee-jerk reaction to (much bigger) increases in crime was to lock more people up, and for longer. Particularly in the context of the ongoing pandemic, we can’t afford to let that happen again.

Prison Policy Initiative General Counsel Explains the Cycle of Exploitation that Incarcerated People and their Loved Ones are Subjected to

We worked with the National Consumer Law Center to explain how, at every state of incarceration, governments and private corporations are draining money from those who can least afford it.

by Mike Wessler, March 23, 2022

In a new piece in Inquest, our general counsel Stephen Raher and Ariel Nelson of the National Consumer Law Center expose the cycle of exploitation that saps money from incarcerated people and their loved ones. The piece provides a big-picture overview of how government agencies and private corporations are profiting off of this system. It explains there are three stages in the cycle:

1. First, companies and governments take a cut of money coming into prisons. Even in prison, a person needs money to survive, and because prison wages are so low, many incarcerated people rely on money transfers from loved ones to survive. At a time when people in the free world can instantly send money through their smartphones for free, prison money transfers still come with a whopping 20% average fee.
2. Next, while in prison, incarcerated people are subjected to outlandish rates and prices for essentials — like communications services, food, and hygiene products — and burdened with mandatory fees for things like medical care and the general cost of confinement.
3. Finally, when a person is released, they often receive a release card, a prepaid debit card that contains money they had when entering prison, money they earned while locked up, and money they had in their trust account. These cards are rife with fees — many of them unavoidable — that quickly drain the money on the card and line the pockets of the companies that administer these programs.

People increasingly recognize this cycle of exploitation is morally problematic and makes poverty — one of the main drivers of criminalized behavior — worse. That’s why some government agencies are increasingly cracking down on this behavior, and through our research and advocacy, we’re pressuring more states to join them.

We encourage you to check out the piece to understand better how the cycle of exploitation works. If you’re looking for more details and state-specific data, check out our work exposing exploitation in the criminal legal system.

New report Mass Incarceration: The Whole Pie 2022 provides the most comprehensive look at U.S. incarceration since the start of the pandemic

The report includes 31 visualizations of criminal justice data, exposing long-standing truths about mass incarceration in the U.S.

March 14, 2022

Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2022, compiling national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — since the COVID-19 pandemic began. The report explains how the pandemic has impacted prison and jail populations, and pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Highlights from the report include:

• Prison populations fell by about 16% during the pandemic. However, 10% fewer people were released from prison during 2020 than in 2019, and preliminary data suggests that fewer still were released in 2021, meaning that people leaving prison did not drive the population drop. Instead, the reduction was due to reductions in prison admissions, largely due to pandemic-related slowdowns in the criminal legal system.
• Local jail populations fell about 13% during the pandemic. Since then, a sample of over 400 jails shows that jail populations are returning to pre-pandemic levels and more than a quarter of jails have higher populations today than before COVID-19.
• In total, roughly 1.9 million people are incarcerated in the United States.

“Even when the U.S. prison population was at a historically low point in the pandemic, we were still locking up far more people per capita than any other country on earth,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “It’s important for people to understand that the temporary population drops during the pandemic were due to COVID jamming the gears of the criminal justice system — not because of any coordinated actions to reform the system.”

The report includes 31 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:

• The U.S. continues to lock up hundreds of thousands of people pretrial every day. A rise in the use of money bail over the last 40 years has driven an increase in pretrial populations.
• Black people are still overrepresented behind bars, making up about 38% of the prison and jail population.
• At least 113 million adults in the U.S. (or over 40%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.

The report also tackles frequent misconceptions about mass incarceration related to prison labor, the war on drugs, private prisons, what victims of crime want, and community supervision.

“As the pandemic eases, and with incarceration rates as low as they’ve been in decades, elected leaders face a choice. They can take bold action to continue to reduce the number of people behind bars and invest in community responses that address the core causes of crime — poverty, addiction, and mental health struggles — or they can return to business as usual with incarceration rates stubbornly stuck at globally high rates and ballooning correctional budgets that burn through tax dollars without making communities safer and stronger,” said Sawyer. “The Whole Pie should serve as a call to action for government to finally end our nation’s failed experiment of mass incarceration.”

The Prison Policy Initiative traditionally releases a new version of its Whole Pie report annually however, COVID-related delays in the release of government-produced data prevented the organization from releasing a new version in 2021.

Read the full report, with detailed data visualizations at: https://www.prisonpolicy.org/reports/pie2022.html.

The prison context itself undermines public health and vaccination efforts

A new report from the Correctional Association of New York reveals why some people in prison are reluctant to get the COVID-19 vaccine and a lot of it has to do with distrust in the correctional system.

by Emily Widra, March 9, 2022

Over 3,000 incarcerated and detained people in the United States have died of COVID-19 in the past two years, with over 588,000 cumulative cases behind bars. With little sign of COVID-19 quietly fading away, public health officials have been clear, consistent, and accurate that vaccinations are our strongest defense against existing and future variants of COVID-19. But despite widespread vaccine availability across the country, many people continue to be hesitant about the COVID-19 vaccination.¹

While the vaccine refusal rates are not generally worse in prisons than in the general population, vaccination is even more critical in prisons. Incarcerated people can’t employ other strategies to avoid getting COVID-19, they have higher rates of medical conditions that make them more vulnerable to severe illness and death, and if they do fall ill, they don’t have the same access to prompt, effective medical care as people outside of prison do. Behind bars, the risks of non-vaccination can be even more deadly, with a COVID-19 death rate of more than double that of the general U.S. population.²

An insightful new report from the Correctional Association of New York offers the only survey data we know of that explains why incarcerated people are hesitant to accept the COVID-19 vaccination. ³ A report focusing on New York is particularly valuable nationally because New York State was one of the least successful states (by our data ⁴) at vaccinating incarcerated people.⁵ The report finds that vaccine hesitancy in prison is rooted in general distrust and suspicion of healthcare in prison, and that the solutions to overcome vaccine hesitancy behind bars are more complicated than in non-carceral settings.

Researchers have determined that the best practice for addressing vaccine hesitancy – in general and in the context of COVID-19 – is to promote transparency, equity, and trust between individuals, communities, and healthcare providers.⁶ In addition, we know that community engagement,⁷ messaging and education,⁸ and timely and accurate information about vaccines are critical for responses to vaccine hesitancy.

The reality is that the prison context inherently undermines almost all of the best practices for responding to vaccine hesitancy.

The erosion of trust in prison healthcare undermines vaccination efforts

The major finding of the Correctional Association report is that the primary reason people behind bars are hesitant to get the vaccine is a lack of trust in the prison medical system.
Before COVID-19, incarcerated people were suspicious and critical of prison healthcare: they reported poor quality of care, difficulty accessing medical care, and a distrust of prison medical care. Some incarcerated people in New York cited the Tuskegee syphilis experiment and the water crisis in Flint, Michigan as reasons to be suspicious of state public health initiatives, stating, “My greatest fear is to be a lab rat for the state” and “Communities of color have always been experimented on; why are state officials going to stop now?”

But the distrust is particularly poignant in the context of COVID-19 vaccinations. A slight majority of incarcerated people surveyed by the Correctional Association reported that they generally “trust vaccines” (52%). A similar number (49%) of respondents reported that they generally trust doctors and healthcare providers to make medically correct judgements, but only 9% of respondents trust doctors or healthcare providers in a prison to make medically correct judgments.

Figure 1: Responses regarding trust of healthcare providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that incarcerated people are much more likely to distrust prison healthcare providers than non-prison-affiliated healthcare providers.

Given that general distrust of prison medical providers, it’s unsurprising that a significant portion of survey respondents were less likely to accept the COVID-19 vaccination if offered by the New York Department of Corrections and Community Supervision’s (DOCCS) medical staff.

Figure 2: Responses regarding likelihood of accepting the COVID-19 vaccine if administered by correctional staff and correctional health care providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that 42.7% of respondents are less likely to accept the vaccine if it is administered by correctional staff, again emphasizing the inherent lack of trust between incarcerated individuals and the correctional healthcare system.

“What works” to overcome vaccine hesitancy hasn’t worked in prisons

Public health experts have established best practices for addressing vaccine hesitancy, but the persistence of this distrust among incarcerated people underscores how the prison setting itself undermines these practices:

• Trusted communicators are crucial to expanding vaccine acceptance. Most recommendations for addressing vaccine hesitancy emphasize the need for “trusted communicators,” but with limited visitation and suspended programming and volunteers, who are the trusted communicators in prisons? The reality is that most information about the vaccines in prisons comes from prison administrators and correctional staff. In May 2021, a month after vaccines were available to people in congregate living situations (like prisons), John J. Lennon (incarcerated in New York) recommended in a New York Times op-ed that the DOCCS “tap influential prisoners to disseminate accurate vaccine information” and even suggested utilizing the preexisting inmate liaison committees established after the Attica uprising. According to the recent Correctional Association report, the New York DOCCS instead “developed a video featuring Tyler Perry and incarcerated people attesting to the benefits of the vaccine.” The reality is that trust, transparency, and equity have long been eroded by the criminal legal and prison systems, which this video had little hope of repairing.
• Community engagement is often limited in prisons, where interactions between incarcerated people are regularly restricted. During COVID-19, community engagement behind bars all but disappeared. Programming – including education courses, work-release, treatment programs, and group activities – were suspended in every state prison system (as far as we’ve been able to tell) at some point during COVID-19. Many prisons stopped programming and in-person visits entirely for the better part of the past two years. Additionally, incarcerated people have experienced unnecessary use of solitary confinement during the pandemic. Correctional institutions in the United States have long been distanced from “mainstream” society and community, and in many ways, the pandemic has only furthered that isolation. So while having community members and volunteers who aren’t part of the prison system come in to informally discuss vaccination concerns might have helped improve vaccine acceptance, incarcerated people saw even fewer people from the outside during the pandemic.
• Disseminating timely and accurate information has proven difficult in correctional facilities. Contact with those outside prison walls has been limited throughout the pandemic, with suspended or limited visitation, increasing restrictions on mail, expensive phone calls, and interrupted programming. But relying on information from only within the prison comes with a high cost for vaccine acceptance: misinformation and distrust of the vaccine can run rampant and unchecked. John J. Lennon reported for the New York Times that corrections officers where he is incarcerated told him that the vaccine was “not tested enough” and that COVID-19 was just “the flu.” A sergeant in the Florida Department of Corrections told The Marshall Project, “If I’m wearing a mask, gloves, washing my hands and being careful — I’d still feel better working like that than putting the vaccine in my body.” Other correctional officials in Florida told The Marshall Project that some of their colleagues believe the vaccine could give them the virus or that the vaccine contains some kind of tracking device.⁹

The responses to the Correctional Association survey point to a lack of trust in prison medical care providers based on the quality and inaccessibility of care, limited access to information about their healthcare, and the tension between healthcare professionals meeting their duty to their patients while enforcing and complying with directives of the prison administration (sometimes referred to as “dual loyalty“). The DOCCS’ mishandling of the COVID-19 pandemic and subsequent traumatic experiences during COVID-19 in prison, only served to erode incarcerated people’s trust further.

In many ways, the pandemic has served to highlight just how opaque the prison healthcare system is and just how wary incarcerated people are of prison medical care. Moving forward, prison systems must do better, not only by providing better, more accessible, more transparent health care, but also by recognizing their inherent limits when it comes to responding to public health concerns, and adopting better strategies.

Specifically, when faced with the current and future health emergencies, prison systems should:

1. Release more people from prisons. Nationwide, states and the federal government actually released 10% fewer people from prison in 2020 than in 2019, despite the consensus among public health officials and advocates that decarceration is crucial to protecting public health and limiting the spread of COVID-19. To reverse this trend, departments of corrections, state governments, and courts need to work together to release people from prison using any tools they have at their disposal, including large-scale releases like we saw in New Jersey, California, and North Carolina. The Correctional Association report recommends increasing the use of pretrial release, alternative sentencing, early release, medical parole, parole board release, and commutation to rapidly reduce prison populations.
2. Address issues of transparency and equity in correctional health care. To address these issues in the context of COVID-19, the Correctional Association report recommends expanding the provision of adequate and timely information about COVID-19 and the vaccine, and alleviating gaps in the quality of medical services by expanding preventative care (routine screenings, education, and outreach). To improve general correctional healthcare, the Correctional Association report recommends that the state designate an independent correctional ombuds to investigate and resolve complaints related to incarcerated peoples’ health, safety, welfare, and rights, as well shift oversight of correctional healthcare to the state department of health.
3. Ensure that corrections officials are dedicated to reducing our reliance on incarceration and improving the health and welfare of those under their care. Corrections officials and decision makers need to take COVID-19 – and the subsequent deaths of over 3,000 incarcerated people – seriously. Incarcerated people’s connection to up-to-date news is tenuous at best, and during COVID-19 (with limited visits and changes in phone call and mail policies), they’ve been even more reliant on information directly from corrections departments. Mixed messages about the realities of COVID-19 from corrections departments (we’ve heard at least one report of a PA system announcement in a Pennsylvania prison facility stating that the pandemic is “over”) and corrections officers’ own vaccine hesitancy and misinformation leave incarcerated people in the dark to the detriment of everyone.

While COVID-19 vaccinations and booster doses are some of our strongest defenses in the face of the continued pandemic and new variants, it’s increasingly clear that prison systems need to prioritize decarceration. No amount of public health education and vaccine messaging will, on their own, dismantle decades of distrust and suspicion of prison health care. Prisons are no place for a public health crisis and government officials should be prioritizing releases and decarceration as both a first response and an ongoing response to emergencies like COVID-19.

A new toolkit for advocates working to end mass incarceration

In the toolkit, we share tips and lessons we’ve learned over two decades of using data, visuals, and narratives to expose the harms of mass incarceration.

by Mike Wessler, March 2, 2022

Today, we’re launching our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration. The toolkit builds on lessons we’ve learned from our two decades of work to improve our criminal legal system. It provides skills-based guides on accessing public records, securing and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering. We plan to add additional resources in the future.

Our new advocacy department created this toolkit as part of our expanded effort to support the people and groups on the ground doing the hard work to end mass incarceration.

While most advocacy departments organize campaigns, mobilize volunteers, and pressure decision-makers for change, ours is a bit different. We’re not looking to replicate the amazing work that thousands of people and hundreds of organizations are already doing to reform the criminal legal system. Instead, as a research organization known for using data visualizations and easy-to-understand narratives, our advocacy work aims to help these organizations leverage our expertise to strengthen their campaigns. That’s why our advocacy department will focus on:

• connecting state and local movement partners and decision-makers to data that can fuel their campaigns for criminal justice reform;
• identifying and filling gaps where new research would support reform efforts;
• producing training materials, like the Advocacy Toolkit, for use by criminal justice reform advocates; and
• providing technical assistance, including identifying reform opportunities (such as our annual list of winnable state criminal justice reforms), giving messaging support, offering expert review of documents and legislation, and connecting partners working in similar spaces.

We hope these new resources will help to strengthen the movement to end mass incarceration. If you use the Toolkit in your work, tell us about it. Let us know what worked, what didn’t, and what other resources we can provide. And, if you’re an organization seeking assistance from our new advocacy department, drop us a line to let us know how we can help.

State prisons and local jails appear indifferent to COVID outbreaks, refuse to depopulate dangerous facilities

While some prison systems and local jails have maintained historically low populations, others have returned to pre-pandemic levels, despite the ongoing dangers of COVID-19 and new, more transmissible variants.

by Emily Widra, February 10, 2022

The COVID-19 pandemic is far from over, particularly inside prisons and jails. The death rate from COVID-19 in prisons is more than double that of the general U.S. population.¹ As cases and hospitalizations climb outside prison walls, there is no doubt that cases are spiking in jails and prisons across the country. In state and federal prisons, over 2,900 people have died of COVID-19, almost 476,000 people have been infected, and thousands of additional cases are linked to individual county jails. Even now, when more than 75% of people in the U.S. have received at least one dose of the vaccine, correctional staff are hesitant to get vaccinated or receive boosters, and prison systems are slow to roll out boosters to incarcerated people.² As the more contagious Omicron variant ravages parts of the nation and renders hospitals completely overrun, nearly three quarters of prisons³ are experiencing COVID-19 outbreaks; public health officials continue to recommend reducing prison populations as a primary method of risk reduction. In fact, in October 2021, the American Public Health Association⁴ adopted a policy in support of decarceration as a public health matter and new research shows the detrimental effect of COVID-19 on all-cause mortality in state prisons. Despite the clear need for smaller confined populations, the data show that with just a few exceptions, state and local authorities are allowing their prison and jail populations to return to dangerous, pre-pandemic levels.

The federal Bureau of Prisons, state governments and departments of corrections, and local justice system officials have a responsibility to protect the health and lives of those who are incarcerated. After almost two years of outbreak after outbreak in prisons and jails, correctional authorities must be held accountable for their repeated failure to reduce populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities.

Prisons

Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and the increased health care needs of incarcerated people. For example, although California has reduced the state prison population by about 18% since the start of the pandemic, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons, and the prison system has witnessed a 300% increase in infections among incarcerated people over the past few weeks and a 212% increase in cases among staff. In fact, as of December 15th, 2021, California’s prisons were still holding more people than they were designed for, at 113% of their design capacity (and up from 103% in January 2021). Considering the continued overcrowding in the California prison system, it’s not surprising that the state is responsible for eight out of the ten largest COVID-19 prison clusters.

Figure 1. Prison population data for 50 state prison systems as reported directly from the state Departments of Correction and the Marshall Project and federal data as published weekly by the federal Bureau of Prisons. For the available population data for these 50 states and the Bureau of Prisons, see Appendix A.

Many states’ prison populations are the lowest they’ve been in decades, but this is not because more people are being released from prisons; in fact, fewer people are. Data from 2020, recently released by the Bureau of Justice Statistics, shows that prisons nationwide released 10% fewer people in 2020 than in 2019. Instead, data suggest most of the population drops we’ve seen over the past 20 months are due to reduced prison admissions, not increasing releases. In the states for which we have recent data, both admissions and releases have decreased in recent years, making clear that prisons are not using all available tools at their disposal to stop the spread of the virus in their facilities. The significant drop in admissions to prisons was largely an unintended consequence of court delays and suspension of transfers from local jails early in the pandemic, rather than any dedicated decarceration efforts. Finding ways to continue reducing the number of people admitted to correctional facilities is critical to lowering the number of people behind bars, but to quickly decarcerate, states should release far more people, too.

Figure 2. These twelve states publish monthly release and admission data for 2018, 2019, 2020, and most of 2021. These data show us a pattern of responses to the COVID-19 pandemic: reducing prison admissions, while releasing fewer people from prison.

Despite evidence that large-scale releases — which have been used periodically in states across the U.S. — do not inherently endanger public safety, most states have elected to release people from prison on a mostly case-by-case basis, which an October 2020 report from the National Academies of Sciences, Engineering, and Medicine charitably described as “procedurally slow and not well suited to crisis situations.” In short, this choice ignores the crisis of COVID-19.

Thankfully, some states have recognized the inefficiency of case-by-case releases and the necessity of larger-scale releases. For example, in New Jersey, Governor Phil Murphy signed bill S2519 in October 2020, which allowed for the early release of people with less than a year left on their sentences. A few weeks after the bill was signed, more than 2,000 people were released from New Jersey state prisons on November 4th, 2020.⁵ In February 2021, North Carolina Governor Roy Cooper announced a legal settlement had been reached to release 3,500 people in state custody (with 1,500 of those releases to take place within 90 days). The releases were the result of a NAACP lawsuit challenging prison conditions in North Carolina during COVID-19. The state said it would release people using discretionary sentence credits (similar to “good time credits”), home confinement, and post-release supervision. But these instances of larger-scale release efforts taking place in state prison systems are the exception, not the rule.

Jails

Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 415 county jails of varying sizes, almost all (98%) decreased their populations from March to May of 2020, resulting in an average change of a 33% population decrease across all 415 jails at the start of COVID-19. These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent” offenses.

But those early-pandemic, common-sense policy changes didn’t last long. Between May 2020 and February 2021, the populations of 83% of the jails in our sample increased, reversing course from the earlier months of the pandemic. As of December 2021, 28% of the jails in our sample have higher populations now than they did in March 2020.⁶ Overall, the average population change across these 415 jails from March 2020 to December 2021 has diminished to only a 10% decrease, while the average population change from July 2021 to December 2021 has dropped to 0%, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.

For example, by mid-April 2020, the Philadelphia city jail population reportedly dropped by more than 17% after city police suspended low-level arrests and judges released “certain nonviolent detainees” jailed for “low-level charges.” But just two weeks later — as the pandemic raged on — the Philadelphia police force announced that they would resume arrests for property crimes, effectively reversing the earlier reduction efforts. Similarly, on July 10th, 2020, the sheriff of Jefferson County (Birmingham), Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.” That effort was quickly abandoned when the jail resumed normal admission operations just one week later. The increasing jail populations across the country suggest that after the first wave of responses to COVID-19, many local officials have allowed jail admissions to return to business as usual.

Figure 3. Jails across the country initially responded to COVID-19 by reducing the number of people detained, but that trend reversed direction in May 2020, only two months after the World Health Organization declared COVID-19 a global pandemic. Since May 2020, the data show a trend of jail populations slowly increasing. This graph contains aggregated data collected and provided by NYU’s Public Safety Lab and updates a graph in our October 2021 analysis. It includes all jails where the Lab was able to report data on March 10th and for at least 75% of the days in our research period, which ended December 31, 2021. (Data are not available for all facilities for all days, and the Lab interpolated missing data to fill those gaps.) This graph presents the data as 7-day rolling averages, which smooths out most of the variations caused by individual facilities not reporting population data on particular days. To see county level data for all 415 jails included in this analysis, see Appendix B.

In New York City, the jail population sharply declined after the pandemic was declared. Importantly, NYC jails – particularly Rikers Island – were some of the first jails in the country to witness a COVID-19 outbreak. And yet, across different demographics, NYC jail populations have slowly leveled out, suggesting that the policies responsible for the necessary decarceration are no longer in practice. In addition to suffering the effects of COVID-19, Rikers Island is also facing an unprecedented crisis following a history of over-incarceration and, according to a federal monitor, “decades of mismanagement.” At a time when jail populations should be at an all-time low, Rikers Island’s confined population surpassed the pre-COVID-19 population in July 2021. The population only dropped back down below the pre-pandemic level at the end of September 2021, when Gov. Hochul signed the Less is More Act, which reduced the number jailed for technical violations of supervision.

Figure 4. Graph showing the daily count of the NYC jail population by 5 key metrics. By all metrics, the NYC jail population dropped quickly at the start of the pandemic, but then started to rise again. On July 29, 2021 the total NYC jail population was higher than before the pandemic. Critically, the number of people detained pretrial has actually grown — from 4,284 on January 1, 2020 to 4,881 people on December 31, 2021 (with a peak of 5,768 in early July 2021) — likely because of the rollback of significant bail reform efforts last year. The population drops in September 2021 are encouraging but are largely the consequence of Governor Hochul signing the Less is More Act, releasing people on technical violations from jail, and therefore represent a helpful policy change that will reduce the population. However, the steep slope of the decline in September 2021 is unlikely to continue at that rate on its own without additional policy changes. Even with these reforms, the October 1st NYC jail population was only 7% below its pre-pandemic levels.
(Dotted lines connect periods with missing data, so the start of each dotted line and their bends represent specific historical data points.)

Even before COVID-19, prisons and jails were a threat to public health and considered notoriously dangerous places during any sort of viral outbreak. As the U.S. Supreme Court recognized years before the pandemic, by taking away a person’s ability to care for their own medical needs, carceral facilities must make sure that those who are incarcerated receive proper medical care–failure to do so can constitute a violation of of the Eighth Amendment’s guarantee against cruel and unusual punishment and necessitate a reduction in the carceral population. And yet, correctional facilities continue to be the source of a large number of infections in the U.S. The COVID-19 death rate in prisons is almost three times higher than among the general U.S. population, even when adjusted for age and sex (as the prison population is disproportionately young and male). Since the early days of the pandemic, public health professionals, corrections officials, and criminal justice reform advocates have agreed that decarceration is necessary to protect incarcerated people and the community at large from COVID-19. Decarceration efforts must include releasing more people from prisons and jails. Despite this knowledge, state, federal, and local authorities have failed to release people from prisons and jails on a scale sufficient to protect incarcerated people’s lives – and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.

Prison populations for the federal Bureau of Prisons and all 50 state prison systems from January 2020 through December 2021. When available, we used prison populations as reported by Departments of Correction to The Marshall Project. If that data point was not available, we then used either the monthly average daily population (ADP) or point-in-time population counts. For the federal system, we used the first weekly population each week as reported by the Bureau of Prisons.

This table shows the jail populations for 415 county jails where data was available where data was available for March 10th, 2020 (the day before the pandemic was declared) and for 75% of the days between March 10th, 2020 and December, 2021. (This table is a subset of the population data available for over 1,000 local jails from the NYU Public Safety Lab Jail Data Initiative.)