More than 9,000 people were eligible for hearings in California last year, though the state abolished discretionary parole in 1977. With grant rates among the lowest in the nation and people forced to wait up to 15 years between hearings, the Golden State's parole system is far from glittering.

by Emmett Sanders, December 19, 2023

In 2019, we graded parole release systems across the US. Though no state performed particularly well, the 16 states that have mostly abolished discretionary parole since 1976 received our lowest grade, an F-. California was among them. Advocates from California asked us, however, to take a closer look at California’s parole system. Unlike other states that have abolished discretionary parole, California’s discretionary parole system since 2014 has significantly expanded eligibility for a large number of incarcerated people who meet certain criteria, and more become eligible each year.

We revisited California’s existing parole system to see how it would score using criteria we reserved for states with discretionary parole. In keeping with our more recent parole research, we also examined recent trends in the state’s parole process to see how it is being (mis)used and how often parole hearings actually result in release. While California may score slightly better this time around, ultimately, it still merits a solid “F.”

 

What makes California different from other states that have abolished parole?

California replaced parole with determinate sentencing for most people in the state’s prison system in 1977.1 As in the 15 other states that have done this, discretionary parole was not entirely abolished. Almost all states that have abolished discretionary parole still retained it for small slices of their prison populations. However, California differs from other states that have abolished parole because it largely determines who is still eligible for parole based on criteria other than the the date that someone was sentenced. When California moved to a determinate sentencing scheme in 1977, it retained life sentences with the possibility of parole for the most serious offenses, such as murder and kidnapping with ransom.

In the other states that abolished discretionary parole, the only people still eligible for parole are those who were “grandfathered in” — that is, who were sentenced before parole was abolished.2 In these states, the number of people eligible for parole shrinks every year, as people are released or die in prison. This is not true in California, where people sentenced for certain very serious felonies and some people sentenced under the Three Strikes Law can still receive life sentences with the possibility of parole. Every year, new people are sentenced who will eventually become eligible for parole. Due to new laws since 2014 that have significantly expanded parole eligibility, including for the elderly and people sentenced as youths, other people can also now become eligible for parole based on factors like their current age, age when convicted, and the amount of time served. As a result of these new laws, almost all incarcerated people now have an opportunity for parole release during their lifetime.

 

What does parole look like in California?

Every state differs, though elements of California’s parole process are similar to others. In a nutshell,3 the Board of Parole Hearings determines when a person becomes parole-eligible and sets an initial parole suitability hearing. Like in other states, the Board considers factors such as the offense, institutional records, and the results of a comprehensive risk assessment. They often consider input from the DA and survivors of violent crimes. People have access to legal representation, though in 2021, those with state-appointed attorneys were granted parole at half the rate of those with private counsel, which many cannot afford. Unlike Alabama, which denies incarcerated people any access to the parole board, California interviews the person, generally via video. If the Board makes a decision,4 they either grant release or deny it, in which case the person won’t get another hearing for between 3 to 15 years. The number of times the board may see a person is bound only by the duration of their sentence, so those with lengthy or life sentences are often reviewed and denied many, many times.

How many people does this affect?

In 2022, there were 9,017 scheduled hearings, up 49% since 2019, when there were 6,061. Meanwhile, the prison population in the state dropped by around 21%. Not only did the percentage of the prison population that was eligible for parole actually increase from around 5% in 2019 to more than 9% by 2022, but it made up almost a quarter of everyone who was eligible for release from California prisons by any means that year. Because of California’s low grant rate, however, people released on parole accounted for just 4% of all people released from California prisons in 2022.

Parole grant rates 2019-2022

California has made several recent moves to expand parole eligibility. However, these efforts appear to have been undermined by a parole board reluctant to release anyone. California’s actual grant rate,5 the percentage of scheduled parole suitability hearings that resulted in parole approval, was just 14% in 2022, barely above South Carolina (13%) and Alabama (10%) for the worst among those we examined.6

From 2019 to 2022, California’s actual parole grant rate fell 29%. Additionally, while hearings increased significantly, the vast majority of new hearings resulted in non-decisions, which increased by 75%, and denials, up by 41%. Ultimately, nearly 3,000 more hearings resulted in only 75 more people being released in 2022 compared to 2019, making the likeliest outcome of a parole hearing in California, by far, continued incarceration.

Graph showing parole rates in California between 2019 and 2022 compared with parole rates in South Carolina and Alabama. Until recently, California grant rates were lower than both Alabama and South Carolina rates

Grading California

Even adjusting for its limited use of discretionary parole, California’s parole system is more box office bomb than Hollywood hit. Overall, the state scored just 60 out of 120 possible points, earning only a slightly higher F than in the original report. While there were a number of issues here, three stood out as particularly egregious:

  • Prosecutorial influence: Prosecutors often attend hearings and heavily influence the outcome. In 2022, prosecutors attended 60% of hearings held. The hearings attended by prosecutors resulted in about 24% fewer grants than when prosecutors did not attend.
  • Extremely lengthy time between hearings after denials: Incarcerated people have to wait a minimum of three years and sometimes up to 15 years between denials.
  • Unequal weighting of risk-assessment results: While California does issue a detailed annual report, there are massive deviations between the risk-assessment results, which are supposed to weigh heavily on the guidelines, and actual hearing outcomes. In 2022, people deemed “Low Risk” were paroled only 65% of the time, while folks with “Moderate Risk” were granted parole only 22% of the time, and those deemed “High Risk” were almost never paroled <1%. This suggests that negative risk assessments weighed far more against people than positive risk assessments did in their favor.

 

Moving forward: Ways California could improve its system

  • Reduce the time between all hearings to no more than 1 year: Setting time between denials to up to 15 years fails to take into account changing policies, people, or parole board compositions. Additionally, the discrepancy in time between denials vs. time between waivers (1 to 5 years) encourages people to self-select.
  • Eliminate reliance on “fixed-moment factors” and increase focus on objective factors that are better suited to measure personal growth and mitigated risk. Like many parole boards, California’s guidelines for parole consideration place heavy emphasis on “fixed-moment factors” — such as the crime of conviction, the person’s actions, and even their mental state during the commission of the crime — which are unchangeable regardless of effort on the part of the incarcerated person or the passage of time. These are ill-suited to measure things like personal growth or the risk a person might pose if released.

 

Conclusion

Though partially abolished almost 47 years ago, California’s discretionary parole system is alive and unwell as 2023 draws to a close. More and more people find themselves parole-eligible each year, and many are denied their chance at freedom and are forced to wait a decade or more before applying again. Ultimately, though parole does exist in some form in California, it is far from being at the head of the class.

 

Footnotes

  1. Determinate Sentencing describes a fixed-sentence system where people have a set number of years to do, and do not have the ability to be individually evaluated for early release. Their release date may be modified by awarding time credits for things such as good conduct or program completion or by revoking them generally for disciplinary reasons. Truth-in-sentencing laws have severely limited and, in many cases, have eliminated entirely the amount of time credit that can be earned.  ↩

  2. Some states have more recently expanded discretionary parole, largely for juvenile lifers after a set amount of years. While this work is certainly worth noting, these moves have generally had a more limited effect.  ↩

  3. See Prison Law Office’s The California Prison and Parole Law Handbook (2019) for a more in-depth look at California’s parole process.  ↩

  4. In 2022, only 49% of scheduled hearings resulted in grants or denials. The majority resulted in “non-decisions,” outcomes where no decision is made to grant or deny parole, either due to continuances or to “voluntary” waivers and stipulations — 29% of all outcomes in 2022. For context, a “voluntary waiver” allows a person to waive their hearing for between 1-5 years. In contrast, a denial at a parole hearing means they must wait 3, 5, 7, 10, or even 15 years for another chance at parole. This disparity creates a coercive situation for incarcerated people that is akin to a plea bargain system — if a person fears they are likely to be denied parole, they are strongly incentivized to waive a hearing rather than risk a far lengthier time in custody. While these waivers are described as “voluntary,” we think it would be disingenuous to ignore the coercive nature of the system.  ↩

  5. “Actual Grant Rate” is determined by dividing the number of parole applications granted by the number of scheduled hearings in which release is a possible but not mandated outcome. While California notes both actual grant rates and “grant rates for hearings held”–which only include approvals and denials–in annual reports, like in many states, the latter metric is more publicly used. Omitting outcomes where no decision was reached (non-decisions) artificially raises the reported grant rate. Non-decisions, however, always result in continued incarceration.  ↩

  6. Neither Alabama nor South Carolina includes non-decisions in their calculations, meaning that their actual parole grant rates are likely considerably lower.  ↩


Recently published data from the Bureau of Justice Statistics show growing prison and jail populations, but this has little to do with crime. Instead, the trend reflects court systems’ slow return to “business as usual” and lawmakers’ resurrection of ineffective “tough on crime” strategies.

by Wendy Sawyer, December 19, 2023

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

 

Upward trends in prison and jail populations in 2022

Prisons

The new BJS data show that the total national prison population grew by over 2%, with 42 states and the federal Bureau of Prisons (BOP) incarcerating more people at the end of 2022 than 2021. In 14 states, the prison population grew by 5% or more,1 with just 9 states (mostly in the South) and the BOP accounting for 91% of all prison growth nationwide.2 The number of imprisoned women grew proportionally more than the number of imprisoned men (up 5% compared to 2%). At the end of 2022, 16 states held 90% or more of their pre-pandemic (2019) prison populations.

Just like the prison population changes we saw during the early and mid-pandemic (2020 and 2021), these increases were driven by changes in admissions more than anything else: 11% more people — about 48,000 more — were sent to prison in 2022 than in 2021. One narrow silver lining from this update: The number of people released from prisons increased for the first time since 2015; unfortunately, this was only a tiny increase of 1% compared to 2021. (As we recently reported, parole boards have been approving fewer people on discretionary parole in recent years, and compassionate release systems are woefully under-utilized.)

Local jails

Local jail populations grew at an even faster pace than prisons in 2022; jails held 4% more people at the end of June 2022 than at the end of June 2021.3 The women’s jail incarceration rate grew 9% compared to 3% for men, and Black, American Indian or Alaska Native, and Native Hawaiian or Pacific Islander4 rates all rose proportionally more than white and Hispanic jail rates.

As with prisons, jail growth was driven by a nearly 7% increase in admissions over last year. The pretrial population was almost back to its full pre-pandemic size (at 97%); more than 70% of people in jail had not been convicted of a crime. Another contributing factor to jail growth: the use of jail detention as a response to probation violations, up 5% compared to 2021. During the pandemic, many jurisdictions reduced their use of jails for punishing these typically low-level, noncriminal violations, but it appears that costly practice is “back to normal.”

 

A preliminary look at 2023 and beyond: Prison and jail populations continue to grow

In an effort to see whether the growth trend in jail and prison populations has continued since the BJS collected data in 2022, we looked for more recent data. While the data we found are neither complete nor perfectly comparable to those published by the BJS,5 we were able to look at year-to-date 2023 jail data from the Jail Data Initiative and at 2023 prison population data published by 42 states and the federal Bureau of Prisons (BOP). (For the 2023 prison data we found, see the Appendix table.)

What we found was troubling but not surprising:

  • The jail data, collected from 942 jails across the U.S., show another modest (0.7%) increase in the average daily population in 2023 compared to 2022.6
  • In two-thirds (28) of the 43 prison systems for which we found more recent prison data, it appears that even more people were incarcerated in 2023, with at least six states again showing increases of 5% or more over their 2022 populations.7
  • At least two of the eight states where prison populations shrank in 2022 showed increases in 2023 prison populations; in Massachusetts and Arizona, the growth in 2023 erased the population drops in 2022.

Line graph showing the percent change in prison population compared to 2019 for 2020, 2021, 2022, and 2023 in twelve states. All of them are now within 90 percent of their pre-pandemic level, and some are higher. Many state prison systems with available 2023 data have already returned to — if not surpassed — their 2019 pre-pandemic sizes.

 

Explaining recent prison and jail growth

It wasn’t crime

There’s been a lot of ink spilled about relatively modest changes in crime trends over the past few years, but nationally, total crime has remained near historic lows. While the specific factors that influence changes in prison and jail populations vary from place to place and from year to year, we conclude that “rising crime” is among the worst explanations for the growth of incarcerated populations over the past couple of years.

In considering this possibility, we looked at national crime victimization data as well as officially reported crime data.8 We see that the rate at which people reported any personal victimization in 2022 (23.5 per 1,000 people aged 12 or older) was almost exactly what it was five years ago, before the pandemic. Similarly, when we look at crime statistics reported by the FBI over a timeframe longer than one or two years, the rate of violent crime has held remarkably steady (and actually declined). In general, the fluctuations that have made headlines are within the range of what we have observed for the past 15 years or so. We see a similar story with property crime (with the exception of auto theft), which has also remained near its historic low, and is trending more steeply downward overall:

side-by-side charts showing that according to both self-reported victimization data and official crime data, property crime is down and violent crime is flat over the years 2007 to 2022 We looked at two indicators of crime — self-reported victimization and officially-reported crime — and observed the same patterns in both.

Because we are attempting to uncover trends beyond 2022 in this briefing, we also considered preliminary 2023 crime data released by the FBI in advance of its official annual estimates. For this, we turned to crime analyst Jeff Asher’s recent analysis of the available data. Asher concludes:

“Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded. What’s more, every type of [FBI] Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year…. The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.”

We won’t know how accurate Asher’s analysis is for almost another year, when the FBI releases the 2023 year-end data, but we agree that all signs point to crime continuing to trend downward. Of course, incarceration trends do not track directly with crime trends, anyway; they have more to do with how law enforcement, prosecutors, and judges choose to police and punish certain people, places, and behaviors — and how efficiently they can do so.

 

Changes in court processes

The 2022 increase in incarceration is actually exactly what we have been anticipating since the dramatic drops we observed early in the pandemic. When populations shrank in 2020 and 2021, we noted that court data showed what happened when courts suspended jury trials and other operations to slow the spread of COVID-19: The number of incoming (new) cases dropped, dispositions (decisions) dropped, and overall case clearance rates (the ratio of new to disposed cases) dropped, creating massive backlogs in the court system. This was a major reason that prison admissions fell so dramatically in the early pandemic.

To see if these data could explain the increase in admissions in 2022, we revisited the same data source, and found that all of those measures have more or less recovered from the slowdowns. Many court systems are still not fully caught up, but by 2022, they had resolved much of the backlog, which in turn caused the shift of many people from pretrial status to disposition, sentencing, and ultimately, admission to jail or prison.

three side by side charts showing that compared to 2019, new felony cases were up 10 percent, felony cases closed were only down 7 percent, and felony case clearance rates were up 5 percent In 2020, many courts shut down jury trials and other in-person operations, creating a backlog of cases that are still being cleared in many states. As more cases work their way through the courts, more people are sentenced to incarceration, resulting in more prison admissions.

Indeed, when we looked through individual states’ own interpretations of their 2022 population changes, most cited slowdowns and backlogs in the court system:

  • Virginia: “From mid-March to mid-May 2020, an emergency order issued by the Chief Justice of the Supreme Court of Virginia suspended all non-essential and nonemergency proceedings in the state’s courts. During that time, significantly fewer sentencing hearings were held, resulting in fewer offenders being sentenced to a prison term. Reports suggest that court caseloads have not returned to pre-COVID levels.” (October 2022)
  • Wisconsin: “Populations have grown significantly in the past several months as courts are working to address the backlog of cases incurred during the pandemic.” (June 2023)
  • Michigan: “…[I]t is projected the prison population will continue rebounding through 2024 due to processing of the court backlog.” (November 2023)
  • Rhode Island: “[The Rhode Island Judiciary spokesperson] noted that ‘over the last year the courts were still hearing cases that were delayed or carried over due to COVID-19 procedures and protocols….’” (December 2023)
  • Minnesota: “Now, as courts catch up, the prisons are filling to levels not seen in about four years.” (March 2023)

 

State prison systems and the BOP predict future growth

We also found documents showing that at least 22 states and the federal Bureau of Prisons (BOP) have calculated projections for their prison populations, and they almost uniformly predict further growth. Nineteen states and the BOP expect to incarcerate more people in the years ahead. Only California, Hawaii, and New Mexico expect to incarcerate fewer people in the foreseeable future — and even then, New Mexico anticipates a slight increase in its incarcerated women’s population. (For a list of reports with projections, see the Projections Appendix table.)

Screenshot from a Colorado report showing that the state expects male and female prison populations to increase at least through 2029
This example of a prison system’s population projections, from Colorado, shows that correctional authorities expect the male prison population to return to its pre-pandemic (2019) size by 2026; the report also shows the total population is expected to return to its pre-pandemic size by 2027.

The explanations offered by the states that predict further prison growth share a common theme: in addition to courts catching up with any lingering backlogs, they point to recent changes in legislation that will lead to longer sentences. New laws enacted in the past couple of years have increased penalties for some offenses, created new felony offenses, and made it harder to shorten excessively long sentences.

A Wisconsin report puts this plainly: “one additional potential factor that may influence the population projection… is 2021 enacted legislation, which increased penalties and created additional crimes.” The Oregon Office of Economic Analysis was more specific, pointing to a law passed in 2019 that made it easier to convict defendants of unlawful use of a vehicle, which had resulted in an additional 92 people in the annual prison population so far. While we couldn’t find projections for Tennessee, advocates offered similar explanations for the state’s current prison growth: the “Truth in Sentencing” bill enacted in 2022 put the possibility of parole or early release out of reach for many people, even though the Sentencing Commission determined sentence lengths “with the understanding that people would be paroled.” As a result, people are now serving sentences much longer than intended in the original sentencing laws.

Of course, projections are often wrong, but these reports give us some insight into how state correctional and budgetary agencies are contending with the specter of “tough on crime” politics and policy changes. Having seen the results in the 1980s and 90s, these projections may not be far off.

 

Returning to ‘business as usual’

The increase in incarceration in 2022 was the predictable outcome of (a) the criminal legal system return to “business as usual” and (b) the return of 1980s- and 90s-style “tough on crime” legislation. It was not caused by a crime wave. We can expect further growth in prison and jail populations unless states and localities redouble their efforts to safely reduce incarceration through criminal legal system reforms such as abolishing cash bail, eliminating incarceration for lower-level crimes (including non-criminal violations of probation and parole), shortening sentence lengths and making those changes retroactive, and expanding access to earned early release and discretionary parole. State and local governments must also make greater investments in strategies that we know protect people from criminal legal system contact: reinvesting in communities impacted by crime, with a focus on jobs, housing, education, and access to community-based mental health and substance use treatment.

 

Appendix tables

Prison population projections and sources

State and federal prison populations 2019-2023 and sources

 

Footnotes

  1. The states where prison populations grew by 5% or more in 2022 include: Mississippi (14%), Montana (9%), Colorado (8%), Tennessee (8%), Minnesota (8%), North Dakota (8%), Rhode Island (the “unified” prison and jail population grew by 7%), Kentucky (6%), Connecticut (the “unified” population grew by 6%), Maine (6%), Vermont (the “unified” population grew by 6%), Alabama (5.5%), Florida (5%), and Louisiana (5%). Texas’ prison system grew by 4% but this represented the largest number of additional incarcerated people (almost 5,900) in any one state in 2022.  ↩

  2. The federal Bureau of Prisons accounted for 8% of all prison growth in 2022. Nine states accounted for 83% of all growth: Texas (accounting for 23% of the total increase), Florida (17%), Mississippi (10%), Tennessee (7%), Georgia (6%), Alabama (6%), Colorado (5%), Louisiana (5%), and Kentucky (5%).  ↩

  3. The Bureau of Justice Statistics’ annual prison and jail data collections use different reference dates. The prison data typically reflect counts at year-end, or December 31, while the jail data use counts collected at mid-year, on the last weekday in June (typically June 30). Therefore the 2022 prison data cover the 2022 calendar year, while the jail data cover the 12-month period from July 1, 2021 to June 30, 2022.  ↩

  4. Concerningly, the Native Hawaiian/Pacific Islander jail incarceration rate increased by 51% in just one year, and surpassed the white rate for the first time since at least 2010 (we couldn’t locate rates for earlier years).  ↩

  5. We were only able to locate 2023 data from 42 states and the federal BOP, and the reference dates for these data vary quite a bit. Additionally, none are “year-end” data that would be comparable to what the BJS collects. The exact populations included in these counts may also vary from the “jurisdictional” population counts that we compared them to, published by the BJS.  ↩

  6. We examined daily jail populations collected by the Jail Data Initiative, which uses web-scraping to collect and aggregate daily jail information from online jail rosters. We compared year-to-date 2023 data with data for the same period in 2022 (covering the period of January 1 to November 30 for each year), from the same sample of 942 jails that had available data for those dates. As a point of comparison, the BJS jail data and estimates are based on a sample of about 900 jails as well. We were not able to create estimates of the total national jail population that would be comparable to the Bureau of Justice Statistics’ estimates, due to the limited data provided in jail rosters, but instead compared the raw numbers from this sample for each year to get an idea of the relative (percent) change.  ↩

  7. As of November 2023, the prison populations of Mississippi and South Dakota had grown about 8% since 2022; as of October, Tennessee’s prison population had grown 5%; and as of December, the prison populations of North Carolina, Wisconsin, and New York had also grown by 5%.  ↩

  8. We used both indicators of crime — self-reported victimization data and the more frequently-referenced FBI measures of reported crime — for two main reasons. First, the FBI’s data collection method has changed in recent years, and as a result fewer law enforcement agencies have submitted data (83% in 2022 compared to 95% or more before the change to the new system). That has made the annual FBI crime estimates less reliable in the last few years. Secondly, many crimes go unreported to police. Using data from a nationally representative survey that asks people about their experiences of crime victimization in the past year helps to fill that under-reporting gap. This is not a perfect substitute, since it necessarily excludes homicides and doesn’t capture crime that targets businesses or public property, for example. But for the types of crime that capture headlines (i.e., interpersonal violence, theft, burglary, etc.), the victimization data offer a much more reliable picture of people’s experiences.  ↩


"ReEntry" was created by formerly incarcerated people to communicate the contradictions, difficult decisions, and unexpected events that make staying out of prison nearly impossible for people under community supervision.

by Brian Nam-Sonenstein and Lucius Couloute, December 5, 2023

It’s not easy leaving prison. Most people go through the reentry process with little to no preparation, planning, or support and face a barrage of rules that turn everyday activities into trapdoors to incarceration. But because many people have no idea what it’s like to live under supervision, it’s easy for the media, politicians, and law enforcement to capitalize on the fiction that recidivism rates1 reflect personal – and not institutional – failure.

Thankfully, a Community Spring program known as Just Income, which is led by formerly incarcerated people, offers a new way to understand these experiences through a simulator they designed called “ReEntry: A Look at the Journey Back to Life.” We think it can help people better understand the profoundly burdensome hurdles and contradictions facing people leaving incarceration.

A screenshot of the ReEntry simulator, which looks like a yellow game board with spaces a player can move to. In this screenshot, a white pop-up window with an image of a clock asks if you'd rather miss an appointment with your probation officer, who's late, or wait and miss work, putting you at risk of losing your job. The “ReEntry” simulator presents a variety of no-win dilemmas that people on probation have to navigate on a regular basis. In this screenshot, you have to decide which presents a bigger risk: missing an appointment with your probation officer or missing work.

In “ReEntry,” you have seven minutes to navigate life on probation while adhering to the terms of your release. Unfortunately, three violations of your probation conditions will send you back behind bars. Such non-criminal or “technical” violations are a significant engine of incarceration for people on probation and parole and, indeed, the system as a whole: supervision violations account for 42% of prison admissions nationwide.

You start the simulator with $60 in your pocket and instructions to meet with your probation officer at regular intervals. But within seconds of your journey, the simulator asks you to “spin the wheel,” which presents you with difficult decisions and circumstances out of your control — many of which pose imminent threats to your freedom. Your $60 disappears quickly, of course, as various fees and everyday costs start to pile up.

For example, the simulator demonstrates how, in many states, a single monthly probation fee would eat up your entire $60, and you’ll be hit with a violation if you can’t pay. What happens when a traffic accident blocks the road on your way home, and you miss curfew? Do you spend your last few dollars getting an ID or try to wing it without one? Do you take your friend’s under-the-table job offer and make the money you desperately need, or turn it down to avoid being punished for unreported income? These scenarios demonstrate the contradictory nature of reentry and shed light on the artificial roadblocks facing those simply trying to get their lives on track.

Soon, it’s time for your appointment with your probation officer. They’re running behind, but you can’t afford to be late for work. Do you wait for your meeting, or do you leave for work? As the simulator continues, it becomes clear why, in states like Colorado, two-thirds of people who had their probation revoked in 2019 had at least one missed appointment (as compared to less than a quarter of those who successfully completed probation).

Reentry is an inherently insecure and uncertain experience; you never quite know which twist or turn might lead you back to jail or prison. Spinning the wheel is, on some level, a profound metaphor for the lack of control and agency afforded to criminalized people.

We’ve run through the simulator dozens of times and have yet to successfully navigate probation—a taste of how “unwinnable” it is for people in the system. Anyone who spends time with “ReEntry” will find themselves feeling frustrated and defeated because that’s the experience of being under supervision. Give it a try and see if you can make it through unscathed.

   

Footnotes

  1. Recidivism rates are an often-used but problematic measure; there are various definitions and none of them say much about any actual risk individuals pose to public safety or their likelihood of success after release.  ↩


New report highlights actionable solutions that will shrink the size of the carceral system, promote public safety, and take action on racial inequities in the system.

November 29, 2023

Today, as lawmakers across the country prepare to return to state capitol buildings for their 2024 legislative sessions, we released our annual list of high-impact, legislative reforms that are ripe for victory in the new year. These 32 reforms will reduce the number of people behind bars, make communities safer, and take steps to address long-standing racial inequities in the system.

The reforms focus on nine areas:

Each reform provides critical context about the problem it seeks to solve, points to high-quality research on the topic, and highlights solutions and legislation that have already been implemented in other states.

The list is not intended to be a comprehensive platform. Instead, we’ve curated it to offer policymakers and advocates straightforward solutions that would have a significant impact without further investments in the carceral system. We particularly focused on reforms that would reduce the number of people needlessly confined in prisons and jails. Additionally, we selected reforms that have gained momentum in recent years, passing in multiple states.

We sent this list to over 600 lawmakers, in all 50 states, from all political parties, who have shown a commitment to reducing the number of people behind bars in their state and making the criminal legal system more just and equitable. As they craft legislation for the upcoming legislative sessions, this list will provide them with actionable solutions to some of the most pressing challenges their states’ criminal legal system faces.

The full report is available at: https://www.prisonpolicy.org/reports/winnable2024.html.


Requiring people on supervision to avoid others with criminal legal system contact can actually hinder their success in the community. We found that it’s common for probation and parole agencies to impose these “association” restrictions, tearing apart critical social networks and threatening to lock people up for harmless — and even helpful — interactions.

by Leah Wang, November 8, 2023

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact. Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.1 Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision. And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date. We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Someone paroled from prison or ordered to probation must navigate the world underneath burdensome and unrealistic rules. Association restrictions may prohibit people on supervision from communicating, working, or living with family, friends, or other community members with a criminal history. If an officer or judge finds they have violated this rule, they could be sent back behind bars. In many states, a parole or probation officer can cut someone off from “associating” with any particular individual at all, due to their wide discretion under state statutes and supervision contracts. (Image by Kevin Pyle.)

 

Parole and probation conditions outlaw crucial relationships

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.” They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole. As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

“Standard” and “special” supervision conditions

Learn about the differences between the two

Parole and probation typically come with a set of “standard” conditions or rules that are mandatory for everyone regardless of their crime or circumstances. These often include obeying the law and maintaining contact with a supervision officer, but also may include irrelevant mandates like drug testing even for people whose conviction was unrelated to drug use. The number and scope of standard conditions varies widely by jurisdiction, but researchers have found an average of 21.9 standard conditions, with some states listing as many as 38 conditions that every person on parole must follow, or else risk incarceration.

There are often “special” conditions too, which are optional additions a judge, parole board, supervision officer, or other authority can impose at their discretion — and often at any point while someone is on supervision. In many jurisdictions, special conditions offer authorities carte blanche for setting nearly any rule imaginable. Some examples of special conditions include mandated treatment programs, a curfew, and restrictions on associating with certain other people, but they can also extend to bizarre rules regarding where one can sit inside a car, or becoming pregnant.

Standard supervision conditions in one jurisdiction can be “special” in another. We don’t know how often special conditions are imposed on top of a standard set, but it’s possible that people are subject to special conditions nearly as often: In a 2019 study of parole conditions, an employee of the Idaho Commission of Pardons and Parole admitted to the author that during her tenure, no parole agreement was ever issued without association restrictions, which are special there.

In most parole systems, association conditions are standard

While they’re not the most infamous supervision conditions,2 association restrictions are incredibly common across probation and parole systems, and impact hundreds of thousands of people. In a recent study, researchers found that over half of the 187 supervision programs they examined (including parole, probation, and electronic monitoring) in 2023 had some regulation about “who people can be around, talk with, or socialize with.” But these rules are especially entrenched in parole systems: A recurring census of standard parole conditions revealed that rules related to “undesirable associates/correspondence” have been used by an average of 30 jurisdictions over each of the six censuses, the first of which was in 1956.3

But when we look beyond standard conditions, it’s clear these restrictions are imposed almost universally. According to a 2019 law review article, nearly all parole jurisdictions (50 states, D.C. and the federal supervised release system)4 have association restrictions, whether they are standard or special conditions that could be imposed at any time by an authority such as a parole officer or judge. This valuable survey, which we’ve updated for this briefing, also identifies which categories of people are off-limits for individuals on supervision. (We’re thankful to Professor James M. Binnall for this work addressing association restrictions so comprehensively.) Using Professor Binnall’s categories, we found that some states go to great lengths to control these relationships:

  • More than half of jurisdictions (28 of 52) have some form of association restriction that is standard. But even states where it wasn’t a standard condition (California, Colorado, Pennsylvania, Nevada, and Minnesota) had an association restriction spelled out in its optional special conditions.
  • Ten states have a problematic “discretionary” condition, where a parole officer, parole board, judge, or other authority can simply decide to restrict interactions with any individual or group of people they claim would undermine their client’s success.5
  • Association restrictions most commonly prohibit contact with people with felony convictions (7 states) or people with any criminal conviction (10 additional states). Massachusetts and Iowa have a restriction on associating with anyone with a criminal record, which would apply to others on supervision and currently incarcerated people, too. It’s worth noting that an estimated 1 in 3 U.S. adults has a criminal record.
  • Fourteen states explicitly restrict association with people described vaguely as “involved in” or “actively engaged in” criminal activity; this restriction often extends to places where criminal activity is or may be happening. Here we included vague restrictions like Mississippi’s “persons of bad reputation” and Alabama’s “persons of disrepute or harmful character.”
  • Twelve states restrict association with currently incarcerated people and visiting correctional institutions generally, and eight states restrict other people on supervision. Given how many people in prison report a family history of incarceration,6 there are countless family visits and communications that are prohibited as a result of these restriction categories.
  • Five states restrict association with purported members of gangs or other “criminal organizations,” who are already tracked in some cities in a separate effort to over-police neighborhoods of color.7

In many states, people on supervision can seek permission to associate with specific individuals in restricted categories — to visit a loved one in prison, for example — by asking their supervision officer or through a more formal hearing. But many may decide that these extra hurdles aren’t worth it to be told “no” or to have their interactions even more closely scrutinized. Overall, the landscape of association restrictions is highly repressive, leaving people to navigate reentry without valuable support.

How different states limit relationships for people on parole

We examined state statutes and correctional agency documents for all 50 states, D.C., and the federal system to identify association restrictions in parole by category of restriction, denoting where these restrictions are standard conditions. Some states have multiple categories of restrictions, and some states have mandatory parole instead of (or in addition to) discretionary parole; we do not distinguish between the two. We credit Professor James M. Binnall’s Divided We Fall: Parole Supervision Conditions Prohibiting “Inter-Offender” Relations for carrying out this analysis in 2019 and conceiving of the restriction categories we used.
*As of 2021, thanks to the Less is More Act, New York has done away with its association restriction, which previously prohibited contact with anyone who had a criminal record or who had been adjudicated as a youthful offender. The source linked in the table, the most recent parole handbook found on the state parole agency’s website, appears to be from 2019, before the law went into effect.
Standard condition? Felony convictions Criminal convictions People targeted as gang members Other people on supervision Discretionary Criminalized activity Currently incarcerated people
Link to statute or agency document People with a felony conviction People with a felony or misdemeanor conviction Includes language like “street gang,” “criminal organization,” “criminal gang member” Includes parole, probation, other supervised release, or those in law enforcement custody A catch-all provision allowing a field agent specifically to impose association restrictions on individuals People targeted for alleged “illegal activity” or “controlled substances,” and people targeted for “disreputable character” or similar Includes correctional facilities generally
Alabama Yes X
Alaska Yes X X X
Arizona Yes X X X
Arkansas Yes X X X
California No X
Colorado No X
Connecticut Yes X
Delaware No
District of Columbia Yes X X
Florida Yes X X
Georgia No X
Hawaii Yes X X X
Idaho No
Illinois Yes X X X X
Indiana Yes X
Iowa Yes X X X
Kansas Yes X X
Kentucky Yes X X
Louisiana Yes X
Maine No
Maryland No
Massachusetts Yes X X X X
Michigan Yes X
Minnesota No
Mississippi Yes X X X
Missouri Yes X
Montana No
Nebraska Yes X X
Nevada No X X X X
New Hampshire Yes X X X
New Jersey No
New Mexico Yes X
New York* No
North Carolina No
North Dakota No
Ohio Yes X
Oklahoma Yes X X X
Oregon No
Pennsylvania No X
Rhode Island Yes X
South Carolina Yes X X
South Dakota No
Tennessee No
Texas No
Utah Yes X X
Vermont Yes X
Virginia No
Washington No
West Virginia No
Wisconsin No
Wyoming No
Federal (supervised release) Yes X X
Totals 28 7 10 5 8 10 14 12

Probation agencies ban certain people from interacting as well

Nearly 3 million people are on probation, the most common type of mass punishment. While we don’t have a complete picture of how the thousands of probation agencies nationwide approach association restrictions, research confirms that some of the largest jurisdictions impose them:

  • Georgia, which has the largest probation population in the U.S. at over 347,000, requires people to “avoid persons or places of disreputable or harmful character.”
  • The three biggest counties in Texas — Harris, Dallas, and Tarrant counties — also impose this condition on anyone under probation supervision.
  • California, which had over 157,000 people on probation in 2021, imposes a standard condition wherein people must “refrain from becoming abandoned to improper associates.”8

If these conditions sound a bit archaic and vague, it’s because they are. Association restrictions needlessly complicate life in the community and should be eliminated from supervision rules.

 

Association restrictions are presumptuous and undermine social networks that are important for reentry

The senselessness and cruelty of association restrictions undermine the very purpose of supervision, which includes helping people get the resources and build the relationships they need to achieve stability in the community. Breaking down some of their biggest harms, we argue that:

  1. Association restrictions have it wrong and backward. The idea that someone with even a minor or bygone criminal history will have a negative influence on someone under supervision is unfounded. The myth of the “career criminal” or permanent criminal disposition has been busted, time and time again. Evidence shows that the opposite is true: people actually benefit from associating with those with lived experience. Highly regarded reentry organizations often use “mutual-help” or “credible messenger” models employing formerly incarcerated people as counselors and mentors to others navigating reentry. This supportive, non-judgemental model is shown to have positive impacts on both participants and staff.
  2. They are vague. Even when states are clear in categorically excluding whole groups of people, they are comically unclear about what it means to “associate” with those people. This nebulous language makes it difficult to know what counts as an association: Does an interaction with someone’s social media post, sending money through an app, or an accidental encounter at a gas station threaten public safety? It’s also difficult, then, for someone to challenge the legality of an association restriction when the courts can make their own interpretation. According to law professor Fiona Doherty, these restrictions are “purposefully — indeed, rigorously — unclear.”
  3. They force people on supervision to live in isolation and fear. Many people plan to live with or receive substantial support from family after being released from prison. But such relationships and living options may suddenly be off-limits due to an association restriction, forcing stressful and costly relocation. Some people on supervision have desperately turned to internet forums, reasonably confused about how their living situation could be prohibited, given the requirement to maintain housing. Their fear and lack of clarity puts them at risk of violating their terms of release and being subject to incarceration — but it may also feel risky to seek answers from their supervision officer. Loved ones, too, are pulled into enforcing and cooperating with these restrictions, impacting many people beyond those with an actual supervision contract.
  4. The millions of people in restricted categories make it nearly impossible to avoid prohibited associations. An estimated 24 million people in the U.S. have a felony conviction on record, while an estimated 80 million people have a criminal record of any sort.9 And nearly 2 million more people are currently incarcerated, which means they’re off-limits to people on parole in eight states, according to our analysis. Given that 44% of parole jurisdictions10 restrict at least one of these large categories of people, association restrictions have an outsized impact compared to the little criticism they’ve received.
  5. These restrictions disproportionately impact Black communities. We know that Black people are overrepresented everywhere within the criminal legal system, including parole and probation systems,11 and most likely those with criminal records.12 The sheer scale of overcriminalization, as well as geographic and social segregation that continues to hinder economic opportunity, makes it difficult to avoid regular contact with other people in restricted categories, tearing apart vital relationships and community ties for Black people in particular.

Unfortunately, we don’t know how many people face consequences for violating association restrictions. But as with other over-enforced conditions, association restrictions that lead to any time behind bars are an example of excessive and costly “technical” violations. And judges have imposed some extreme punishments: In Texas, a man on probation was sentenced to four years in prison for being seen near enough to a “crack house” to be in association with people who sell drugs or engage in other illegal activity, thus violating Texas’ condition to “avoid persons or places of disreputable or harmful character.” Another man, on federal supervised release, received 18 months in prison, followed by three more years on supervised release for speaking to a fellow member of his treatment group on the subway.

Even parole and probation officers find association restrictions counterintuitive

Research suggests it’s difficult for supervision officers to enforce a rule that makes little sense to them.

Recent research into the key players who set and modify conditions of supervision — like judges, parole boards, and supervision officers — suggests that, both in theory and in practice, association restrictions don’t increase public safety or reentry success. The Robina Institute of Criminal Law and Criminal Justice examined parole conditions in Iowa and probation conditions in a Kansas county and found that supervision officers know their clients have loved ones who fall into these “off-limits” categories. Though the association restriction is standard in both of these jurisdictions, the officers admit it’s harsh and ultimately impossible to comply with:

[D]oing all these assessments you’ll learn that 9 times out of 10 the people in an offender’s life are people who have been in trouble themselves too. You can’t expect them to go from these people in their life and just to cut everyone completely out, friends, family, or whatever.
probation officer in Johnson County, Kansas

Because lots of times it’s their own family, so telling them they can’t be around their family, or someone that they care about, or is supportive of them, doesn’t make sense. — parole officer in Iowa

In these instances, supervision officers either did not or could not remove these conditions. Instead, many reported that they simply did not enforce them. Of course, not all officers use their discretion this way, and the persistence of these rules in supervision means that people will be forced to navigate reentry without the crucial support of loved ones.

 

As supervision technology advances, association is an easy target for aggressive enforcement

Experts studying association restrictions and other onerous supervision conditions warn of the creep of new surveillance technology into carceral systems like probation and parole. Smartphones and location-tracking apps, for example, may supplement older methods like GPS-enabled ankle monitoring, and artificial intelligence (AI) promises “real-time” monitoring of people on supervision. Those engineering or hoping to deploy these technologies may view them as benign or even altruistic developments, but we see them as an ominous new frontier in the enforcement of supervision conditions that are already burdensome.

As law professor Kate Weisburd warns, “There is little doubt that improved surveillance capabilities enhance the ability of supervising agents to detect violations.” The recurring parole census mentioned earlier also sounds the alarm: An “ever-expanding” arsenal of technological solutions, they argue, will lead to “enhanced micro-surveillance” of people on supervision. New technology will undoubtedly appeal to lawmakers as an acceptable mechanism for moving people out of prisons and saving taxpayer money. But as widely understood extensions of carceral systems (rather than alternatives to incarceration), probation and parole shouldn’t be given invasive technologies that expand their reach into people’s lives.

If association restrictions go unchecked as surveillance technology expands, state and local lawmakers will continue to trap people on supervision in cycles of incarceration and being “free.” People who judges or parole boards have already deemed “safe” to release to the community should be able to decide with whom they associate and from whom they seek support, housing, or job opportunities. Association restrictions perpetuate harmful assumptions about people with criminal legal involvement, set people up for failure, and should be abolished as a condition of probation or parole.

 
 

Footnotes

  1. An early version of this concept is the “wounded healer,” a term coined by Carl Jung in 1951. The wounded healer idea claims that an analyst or physician’s own experience of being “wounded” (through illness, mental health struggles, or something else) promotes a sense of solidarity and improves communication between “healer” and “patient.”  ↩

  2. Perhaps the most widely known and imposed supervision conditions include finding and maintaining employment (which is very difficult for someone with a criminal record) and meeting all legal-financial obligations (which is very difficult for someone who is more likely to be poor, whether they were in state prison, jailed, or simply on probation).  ↩

  3. This long-term study of standard parole conditions provides an extremely useful historical perspective on how the number and nature of parole conditions has changed. Unfortunately, the study doesn’t capture the specific wording of states’ parole association restrictions, so it doesn’t tell us which states prohibit which group(s) of people through their restrictions.  ↩

  4. While not all states have a system of discretionary parole release, all have some form of “parole” or post-release supervision. Sixteen states have abolished or severely curtailed discretionary parole, but they still have laws in place governing parole for those who are still eligible (i.e., their crime happened before a certain date). The federal parole system was also abolished but replaced with a similar “supervised release” status. And D.C. operates its own “supervised release” system, responsible for D.C. residents granted parole by the U.S. Parole Commission as well as other supervision programs.  ↩

  5. Though not part of our analysis, the vast majority of jurisdictions allow for any additional condition at all to be imposed by the proper authority; this could conceivably include association restrictions with individuals or groups.  ↩

  6. More than half (59%) of state and federal prisoners report having an immediate family member who has been incarcerated, according to the Bureau of Justice Statistics’ Profile of Prison Inmates, 2016.  ↩

  7. Separate from association restrictions, some police departments and other agencies keep “gang databases” that list personal information about people — including children — identified as being “suspected” members of street organizations like gangs. These lists and their criteria for inclusion, often kept hidden from public view, also tear at the social fabric of communities and are widely regarded as a tactic for targeting Black and Brown residents.  ↩

  8. In 2015, a version of California Penal Code, as amended by Senate Bill 517, contained language restricting people on probation from “improper associates.” This is the version cited by Prof. Fiona Doherty in her 2016 paper Obey All Laws and Be Good: Probation and the Meaning of Recidivism; a current version of the state penal code does not have the same reference, and we couldn’t locate an updated resource outlining conditions of probation.  ↩

  9. This estimate is calculated using data from SEARCH’s 2020 Survey of Criminal History Information Systems and the methodology proposed by NELP’s 65 Million Need Not Apply, reducing the total number of people with criminal records in the United States by 30 percent (to account for people with records in multiple states). Note that this is a slightly different estimate than what we’ve published in the Whole Pie report, because that was based on 2018 survey data. This estimate is likely an undercount due to a lack of data on people who have been arrested for misdemeanors.  ↩

  10. Specifically, 23 out of the 52 parole jurisdictions whose restrictions we analyzed restrict people with felony convictions, criminal convictions, and/or currently incarcerated people.  ↩

  11. In 2021, white people made up 59% of the U.S. population, but only 38% of the probation population and 39% of the probation population. Meanwhile, Black people were approximately 12% of the U.S. population but made up 21% and 28% of the probation and parole populations, respectively. U.S. population data by race in 2021 are calculated from the U.S. Census Bureau’s American Community Survey, 2021 5-Year Estimates, and parole and probation population data by race in 2021 come from the Bureau of Justice Statistics.  ↩

  12. While it’s highly likely that the massive populations of people with criminal records are disproportionately Black, we do not have robust data on these populations. Some studies estimate the racial makeup of the felony conviction population on more granular levels. For example, over a six-year period in Massachusetts, Black people comprised 6.2% of the state population, but 19.7% of people convicted of a felony offense. And in New York, Black people make up about 14% of the population, but 40% of the felony conviction population.  ↩

See the footnotes


The expansion of pretrial electronic monitoring across 70 counties threatens to undermine Illinois’ groundbreaking Pretrial Fairness Act, despite both the lack of evidence of EM's efficacy and its well-documented flaws and harms.

by Emmett Sanders, October 30, 2023

Illinois recently made history by becoming the first state in the nation to end money-based pretrial detention with the implementation of the Pretrial Fairness Act. In response, the Illinois Office of Statewide Pretrial Services announced the expansion of pretrial electronic monitoring (EM) to 70 of Illinois’ 102 counties, many of which did not have it before. While Pretrial Services touts this as something to be celebrated, the advocates who originally fought for the Pretrial Fairness Act and other scholars have pointed out that this massive expansion of state control undermines the spirit of bail reform.

The Pretrial Services agency’s statement reveals a fundamental misunderstanding of what research and evidence shows about electronic monitoring. As Michelle Alexander, legal scholar and author of The New Jim Crow, recently explained in an impassioned video, electronic monitoring is faulty technology that further embeds systemic injustices in communities of color, creates new avenues of harm, and does remarkably little to increase court compliance or public safety.

Electronic monitoring is not evidence-based

Stakeholders looking to innovate in pretrial policy often look for evidence-based practices—strategies with a documented ability to increase court compliance and positively impact public safety. While electronic monitoring proponents present the technology’s ability to do these things as a forgone conclusion, the reality is that few rigorous studies have been done to examine these claims. However, those that have, such as this new study conducted by nonprofit research group MDRC, find EM neither increased court appearances nor reduced new arrests. As this study notes, people on EM may have more new arrests than those not monitored, as the intense scrutiny of people on EM spotlights even minor infractions that might otherwise go unremarked. Researchers also note pretrial EM creates an entirely new path to incarceration via “technical violations,” which have nothing to do with criminality or public safety, but rather with the impacted person’s ability to navigate a multitude of ambiguous and often draconian conditions. In Los Angeles County between 2015 and 2021, 94% of people on EM who did not successfully complete EM were sent back to jail for technical violations rather than for a new arrest:

Pie chart showing 95% of people who did not successfully complete EM were sent back to jail for a technical violation Figure 1: From Pretrial Electronic Monitoring in Los Angeles County 2015-2021, (Virani, 2021)

People may even be charged with felony escape for violating conditions or tampering with the device, and serve years in prison even after being found innocent of the charges that garnered them pretrial EM to begin with.

Electronic monitoring does not reduce jail populations

While EM programs are often depicted as replacing traditional brick-and-mortar incarceration, the reality is these programs are often used to augment and expand the reach of incarceration and may have little effect on the population of the jail itself. EM programs around the country have massively expanded, often in the wake of successful pretrial reform efforts. This has prompted advocates such as the No New SF Jails Coalition to include halting the expansion of EM in their decarceration demands, as they did when they finally closed the 402-bed jail at 850 Bryant in 2020. Nevertheless, San Francisco’s jail population was back up to 1,061 at last count, even though the number of people released on EM grew from 60 in 2016 to 1,659 by 2021. Similarly, the Harris County, Texas jail population of 9,533 reported for October 2023 is even higher than it was before the county’s EM usage exploded from 27 in 2019 to nearly 4,000 in 2021. Ultimately, jail populations in many jurisdictions have remained essentially the same or have even increased while EM usage has skyrocketed, significantly increasing the total number of people under surveillance:

Chart showing in San Francisco and Harris County, TX jail populations didn't decrease after EM expansions Figure 2:Data on EM and jail populations were only available through 2021. As we note in the text above, however, average daily jail populations in these places are significantly higher at present than in 2021.

Electronic monitoring uses faulty technology

Proponents of EM also downplay the reality that the technology itself is unreliable. Signal drift (the propensity of GPS to place people where they are not), interference from architecture, and data issues are widespread and persistent:1

  • In May of 2017, Wisconsin’s Department of Corrections lost GPS signals for the 864 people electronically monitored roughly 57,000 times, translating to more than 2 false alarms per person per day.
  • In 2021 researchers in Chicago discovered that of the tens of thousands of alarms received each month, roughly 80% are non-actionable.
  • A 2021 article revealed a massive security breach with EM company Protocol which resulted in the private data of thousands under Chicago’s EM program being exposed online.

None of this prevents monitored people from being woken up in the middle of the night to be harassed, handcuffed, and even arrested in their own home after being falsely accused of absconding. Ultimately, faith in EM is as misplaced as Milwaukee advocate Amari Jones’ GPS signal when it identified him as being in the middle of Lake Michigan.

 

Harms of electronic monitoring

While little evidence exists to justify the hundreds of millions of dollars spent on electronic monitoring contracts around the country each year, firsthand accounts of the harms inflicted by EM are well-documented and plentiful, with folks such as long-time researcher and activist James Kilgore leading the charge.

Electronic monitoring creates huge financial burdens for many in already economically precarious positions

Electronic monitoring is often paired with conditions that restrict people’s ability leave their homes, thus severely limiting their ability to secure and/or maintain employment. People on EM may have to go through extremely complicated and lengthy processes just trying to gain approval to go to a job interview, and they may be able to work only on a fixed schedule or in a fixed location, precluding the flexibility required to work in industries like food service, waste management, or construction. Of course, these are some of the main industries in which many people impacted by the criminal legal system are able to find employment—when they can find employment at all.

Though some jurisdictions, including Illinois, have eliminated user fees for electronic monitoring, many programs charge anywhere from $1.50 to $47 per day, with a potential initial enrollment fee of up to $300 for the “privilege” of being imprisoned in one’s own home instead of in a jail or prison cell. Some have challenged these rates as extortion, particularly as agreeing to pay these fees they can ill afford may be the only way some can get out of jail to take care of their children or receive medical care.

Electronic monitoring limits access to healthcare while exacerbating or creating physical and mental health issues

Electronic monitoring doesn’t just jail people in their homes and strain their finances, it can also negatively impact their health—both physical and mental. People on EM often report being denied permission to simply go to the doctor or to the pharmacy to have life-saving prescriptions filled.

Moreover, the devices themselves can be a source of acute physical and mental trauma. A survey of individuals subjected to EM by ICE found that an astonishing 90% experienced harm to their physical health due to their time on EM. Those monitored may experience physical harms such as open sores and even electrical shocks. Likewise, the negative impact on mental health created by the stigmatization and isolation imposed by the devices has often been noted by those subjected to EM, with some reporting depressive and even suicidal thoughts. Others have reported that EM can be a trigger for those combatting addiction issues, which could potentially lead not only to new offenses, but relapse, overdose, and even death.

Electronic monitoring reinforces racial disparities and undermines families and communities of color

While the focus here has been primarily on the individual monitored, many harms are also inflicted upon the family and the overwhelmingly Black and Brown communities from which they come. Electronic monitoring impedes a person’s ability to take their kids to school or to doctor appointments, to engage in key family events such as the birth of the child or a funeral, and, as some have noted, has been used in an attempt to turn those who seek justice for their communities into “cautionary tales” for others in order to undermine social justice movements.

 

Conclusion

While this litany of the harms of electronic monitoring is expansive, it is far from exhaustive. As those directly impacted have told us time and again, there is no part of life that EM does not make more difficult, and as studies have shown there is little evidence to support EM as a viable alternative to incarceration. These are facts the Office of Statewide Pretrial Services should have taken into consideration as Illinois began its move into the realm of Pretrial Fairness.

 
 

Footnotes

  1. In their reference guide on the use of Electronic Monitoring, the Federal Courts note: “GPS drift points can be the result of the following: thickness of the ionosphere, satellite orbit, humidity, or multi-path distortion (GPS bouncing off buildings).”  ↩


A curated list of some of the most useful statistics to help the public comprehend the magnitude of criminalization in the U.S.

by Emily Widra, October 24, 2023

The United States’ reliance on incarceration outpaces most of the globe: every single state incarcerates more people per capita than virtually any independent democracy on Earth. But the sheer magnitude and impact of a system so large can be hard to fully comprehend. We looked back over some of the best criminal legal system research and chose these ten statistics as some of the most handy for advocates, policymakers, and journalists working to help the public appreciate just how far-reaching mass incarceration is in this country.

A note on our sources: All of the following statistics come from different sources and have been calculated using different methodologies, and are not necessarily compatible with one another. In addition, some of these statistics have been calculated by the Prison Policy Initiative, while others are from academic research and other organizations’ work in the field.

On any given day, about 2 million people in the U.S. are locked up in jails, prisons, and other spaces of confinement.



People cycle through local jails more than 7 million times each year.



3.7 million people are held under community supervision such as probation and parole — more people than are held in jails and prisons combined.



Police threaten or use force against more than 1 million people each year, disproportionately against Black and Latinx people.



More than 79 million people in the U.S. have a criminal record, creating barriers to housing, jobs, healthcare, and food assistance, among many other collateral consequences.1



Half of all Americans have an immediate family member who has been incarcerated. 1 in 5 people have had a parent incarcerated and 2.6 million children have a parent who is currently incarcerated.

Incarcerated people and their families spend upwards of $2.9 billion per year on phone calls and commissary, and annually, people owe more than $50 billion in court-ordered fines and fees.



The median felony bail amount ($10,000) represents eight months of income for the typical detained defendant.



Every state locks up Black people at a higher rate than white people. On average, Black people are imprisoned at rates six times higher than those of white people.



80% of women in jails and 58% of women in prisons are mothers, and most are the primary or sole caretakers of young children.



 
 
 

Footnotes

  1. Calculated from SEARCH’s Survey of State Criminal History Information Systems, 2018 according to the methodology of NELP’s 65 Million “Need Not Apply” report from 2011.  ↩


Our collection of prison discipline policies covers all 50 states, Washington, D.C., and the Federal Bureau of Prisons, and highlights how each system classifies the severity of offenses and punishments.

by Brian Nam-Sonenstein, October 17, 2023

Today, the Prison Policy Initiative is publishing a collection of discipline policies for all 50 state prison systems, the Washington, D.C. Department of Corrections, and the Federal Bureau of Prisons in our Data toolbox. It includes the discipline policy for each system, a list of offense severity classifications from most to least severe, and links to additional documents to help you understand each system’s classification scheme.

Advocates, researchers, and lawmakers can use this collection to examine the rules, offenses, procedures, and associated punishments for each prison system, or to answer questions about prison discipline systems such as:

  • What behaviors are considered “violations” in your state’s prisons?
  • How are different violations punished? How does the severity of punishment for certain actions compare to others?
  • How many different rules can be applied to punish a single action, such as a fight, potentially allowing prison staff to pick and choose or “stack” violations?
  • Does your state’s prison system punish people more harshly than others for similar violations?
  • What does the severity of punishment for certain actions — such as refusal to work or organizing a strike — tell us about the culture and priorities of prisons?
  • What is the “justice” process like inside prisons? How do people defend themselves? Is there due process inside?

We hope this new policy resource (and others, like our collection of DOC policy manuals) will help strengthen the movement to end mass incarceration. If you use the discipline policy collection in your work, tell us about it. Let us know what was helpful, what was not, and what other resources we can provide. If you’re an organization seeking assistance from our Policy and Advocacy staff, drop us a line to let us know how we can help.

Acknowledgement: We thank Prison Policy Initiative alum Emile Suotonye DeWeaver for the initial collection of policy documents and offense classifications.


Among the 27 states we surveyed, only 7 saw an increase in parole approval rate, and almost every state held substantially fewer hearings than in years past.

by Emmett Sanders, October 16, 2023

Note: On October 18, 2023, we made two edits to this piece : (1) Added data from Massachusetts that was released shortly after our analysis was published, (2) Fixed minor transcription errors to the appendix table.

Earlier this year, Alabama’s Board of Pardons and Paroles made headlines when it denied parole to someone who had died ten days prior to their parole hearing. This is just one of many threads in the Alabama parole board’s tapestry of dysfunction. For months, their three-person parole board operated with just two members despite requiring a majority vote to grant parole. It is no wonder that Alabama is on track to have a parole grant rate — the percent of parole petitions approved — of just 7% for 2023. This also comes as studies show racial disparities in parole grant rates are widening: for example, non-white people in New York were released at a rate almost 29% less than their white counterparts in 2022 (up from a difference of around 19% between 2016 and 2021).

With parole board practices so much in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We filed dozens of records requests and curated the best research to explore whether state parole boards are helping reduce mass incarceration or whether they are disregarding the hard-learned lessons of the pandemic, when they released even fewer people than before the crisis as people died behind prison walls.

 

The state of parole

In the 29 states1 for which we collected 2022 parole approval data, only 8 had grant rates above 50% – Connecticut, Idaho, Massachusetts, Nevada, North Dakota, Utah, Vermont, and Wyoming. Wyoming had the highest grant rate of 78%. At the other end of justice’s sliding scale, Alabama (10%) and South Carolina (13%) have the lowest parole approval grant rates in the nation. And while we don’t yet have data from most states for 2023, South Carolina’s recently updated parole data show that the state’s parole approval rate has dropped to an astonishingly low 7% in 2023.

Graph showing the percent change in parole approval rates in 26 states between 2019 and 2022. All but six states saw grant rates fall. To see full information about parole grant rates by year in each state from 2019-2022, see the appendix.

With few exceptions, parole grant rates dropped significantly from 2019 to 2022

In the 27 states for which Prison Policy Initiative was able to track changes in parole approval rates from 2019-2022, only 6 — Connecticut (+29%), Georgia (+17%), Texas (+11%), Hawai’i (+8%), Massachusetts (+8%), South Dakota (+6%), and Nevada (+1%) — have seen any increase since 2019. In the remaining 20 states from which we received data, parole grant rates have seen either no change or have seen a marked decline, with South Carolina (-63%) and Alabama (-67%) seeing the biggest drop offs in grant rates.

But state parole boards did not only choose to release fewer people. They heard fewer cases as well. With the exceptions of Oklahoma, South Dakota, and Arkansas, parole boards continued to hear significantly fewer total cases in 2022 than they did in 2019. The result is that since 2019, the number of people released through discretionary parole has decreased across the board.

Graph showing percent change in number of parole hearings in 27 states between 2019 and 2022. All but three states saw parole hearings decrease. To see full information about the number of parole hearings by year in each state from 2019-2022, see the appendix.

Ironically, South Carolina’s Department of Probation, Parole, and Pardon Services’ website is quick to highlight the money the state has saved by reducing the number of parole revocations over the past decade. Of course, it would be difficult to have more revocations, given that they released 69% fewer people via discretionary parole in 2022 than they did in 2019. South Carolina is far from alone, however. Alaska has reduced the number of people released through discretionary parole by 79% since 2019; Alabama 70% and Maryland by 66%. In fact, with the exception of South Dakota, every state for which data was provided released fewer people through discretionary parole in 2022 than in 2019, with an average overall decline of around 41% fewer people released per state. South Dakota’s increase is also extremely modest – the state released just 62 more people in 2022 than in 2019.

Graph showing percent change in number of people approved for parole release in 25 states between 2019 and 2022. Only one state, South Dakota, saw an increase in the number of people approved. To see full information about the number of people released on parole by year in each state from 2019-2022, see the appendix.

 

Why are parole boards releasing so few people?

Denial is often effectively the default disposition for parole boards, and the burden of proof is usually on the person who is incarcerated to justify their release. This is problematic, as the board often considers factors that are beyond the applicant’s control, such as the availability of programming or education in the prison, or factors that cannot be changed, such as the nature of the offense for which they were incarcerated. When release rests on these factors, there is very little a person can do to influence the outcome.

Another issue is the general outlook some politicians and parole board members have toward people who are up for parole. State Representative Matt Simpson defended Alabama’s abysmal grant rates, saying “We’ve gotten to a point where the people up for parole are the ones that don’t need to be out; it’s not like it used to be where we had a number of non-violent offenders.” While recent reports have cast doubt on this claim, it still begs the question: how can those with this viewpoint provide a fair hearing to those who come before them? There is nothing fair about a body that decides people’s fates before they ever appear. It’s important to note that the seriousness of an offense is taken into account when a judge first sets a prison sentence. When parole boards solely or exclusively make their release decisions based on the underlying charge, they are continually punishing incarcerated people for a factor they cannot change. Moreover, policies that provide relief only for those with non-violent offenses are simply not impactful enough to address the juggernaut of mass incarceration. And although parole boards are charged with looking at a person’s likelihood of rearrest, they often seem to ignore the fact that people sent to prison for violent charges have the lowest rearrest rate of any group.

Parole Boards are influenced by politics

In 2019, Mississippi had a grant rate of 74% — one of the highest rates in the nation. However, that same year, the parole board made the ethical but unpopular decision to parole a person who had been incarcerated for 30 years. That person had their death sentence commuted on the basis of intellectual disability but the board determined them not to be a threat to public safety. In the aftermath of this decision, Mississippi saw its grant rates freefall 42 percent by 2022. The political outrage at the decision led to increased scrutiny and political pressure which has undermined Mississippi’s presumptive parole system.2

Though parole boards are typically thought of as serving a judicial function (i.e., weighing evidence and rendering a judgment that results in freedom or continued incarceration), they are still bureaucratic bodies beholden to political good will. Parole board members are usually appointed by governors and confirmed by legislative hearings, which often makes their selection fundamentally political. More than a third of states with parole boards in the US mandate no qualifications to sit on the board, meaning no actual knowledge of law, prison, the judicial system, mental health, or even basic social dynamics are required to sit on boards that can prevent a person from ever again experiencing life outside prison walls.

Policy efforts to increase release rates are often stalled or undermined

Efforts to restore discretionary parole in Maine, Virginia, and Illinois led by groups like Parole4ME and Parole Illinois have come achingly close to success in recent years. Some states with discretionary parole have begun to implement presumptive parole in an effort to increase fairness and remove subjectivity and political pressure. While presumptive parole is a key strategy to reduce incarceration, in states that have implemented it, the efficacy of this policy is limited by carveouts — exceptions in policies that exclude certain categories of people from relief. Most states with some form of presumptive parole will not apply the presumption to people with certain offenses, those who have received recent disciplinary infractions, or those who haven’t completed relevant rehabilitative programming. As we noted, offense-based carveouts do not have a strong basis in policy, and programming-related carveouts are problematic because programming is neither universal nor guaranteed and can vary immensely from prison to prison.3 Reports have also shown that Black and Brown people who are incarcerated are more likely to receive disciplinary infractions than their white counterparts, meaning they are more likely to be denied presumptive parole based on this carveout.

 

Conclusion

Despite the dangers of incarceration in a post-pandemic world and the efforts of many to make the parole system more just, fewer people are receiving parole hearings, and fewer still are released through discretionary parole. In fact, discretionary parole accounted for only a small fraction of total releases from prison in 2021.

Expanding access to discretionary parole won’t by itself end mass incarceration; however, expanding its usage in conjunction with presumptive parole while eliminating undermining carveouts could be a powerful tool for decarceration. Hopefully, a review of parole in 2023 will see incarcerated people given a greater chance to be paroled.

 

Footnotes

  1. While we sought to collect data from all 34 states with discretionary parole as a primary mechanism of release, not all states make parole board data publicly available and several were not forthcoming with data via records requests. Arkansas has a residency requirement for records requests that prevented submission; Missouri denied having records responsive to our request, which strains credulity; New Hampshire cited the records as exempt. We are awaiting data for Nebraska, and West Virginia. Kentucky and Idaho provided some information, but were unable to provide statistics for 2019. In the appendix to this briefing, we provide details about each state’s response to our open records requests.  ↩

  2. Presumptive parole is a form of non-discretionary parole in which people are automatically released if they meet certain established criteria.  ↩

  3. New Jersey’s programming requirement for Administrative Parole Release eligibility (that state’s equivalent of presumptive parole), for instance, includes a provision that people will not be disqualified from APR if programming was unavailable.  ↩

 

Appendix tables

Discretionary Parole Grant Rates by state, 2019-2022


Learn strategies to convince policymakers to adopt reforms that help all people tangled in the criminal legal system.

by Sarah Staudt, October 12, 2023

In this webinar presented on November 1, 2023, staff from the Prison Policy Initiative and a panel of criminal justice experts have a discussion on how advocates for reform can talk to policymakers about carveouts, with a particular focus on addressing fentanyl and sex offense-related charges.

 

Webinar resources

The slides for the webinar are available here

Prison Policy Initiative has two publications on this topic:

Additional Resources:

  • Chicago 400 Alliance produced this video about people on public registries in Illinois, which is a great example of how to bring the stories of impacted people to legislators. To learn more about the Chicago 400 Alliance, coordinated by Laurie Jo Reynolds, you can view their website: https://www.chicago400.net/
  • To learn more about Drug Policy Alliance’s work advocating for a health-focused approach to fentanyl, you can find their website on the topic here. https://drugpolicy.org/campaign/build-a-health-approach-to-fentanyl/. To sign onto Drug Policy Alliance and Broken No More’s open letter from people who have lost loved ones to overdose, click here.








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