Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now

President Biden and three governors should use their clemency powers before they leave office to save the lives of people facing the death penalty, our nation’s cruelest punishment.

by Leah Wang, November 18, 2024

Every November, it has become a light-hearted tradition for the president and some governors to “pardon” turkeys before the Thanksgiving holiday, sparing them from the dinner table. But when the nation’s political leaders take part in an annual turkey pardon, it’s hard not to think about the chronic underuse of clemency¹ powers across the U.S., especially for people on death row.

If turkey pardons are about choosing life over death, using clemency powers to empty remaining death rows is a straightforward way for elected leaders to act on those values and reject a horrific practice. President Biden and the outgoing governors of North Carolina, Indiana, and Missouri in particular can use clemency for those facing a state-sanctioned death before they leave office early next year. More than a dozen other governors can stop executions in their states, too, by exercising their unilateral power to modify or reduce criminal convictions and sentences at any time.

In this briefing, we show that the outgoing president and some governors’ tactless traditions of granting relief to turkeys casts a harsh light on their records of granting relief to people condemned to die. Ultimately, their legacies won’t be shaped by crass Thanksgiving rituals, but by how they tapped their power to intervene in the moral atrocity that is the death penalty.

A national patchwork of policy and practice leads to a geography-based punishment system for people convicted of the most serious crimes.

Outgoing political leaders can turn the page on the death penalty

In addition to being the only irreversible punishment, the death penalty — a sentencing option still on the books in 27 states and at the federal level² — is widely understood as the most cruel, discriminatory, and corrupt punishment, rife with due process and human rights violations. From deep racial injustice and legal misconduct, to horrific botched executions and shadowy methods of acquiring lethal drugs, to wide public opposition to many executions, the death penalty is an unpopular³ and grotesque public experiment.⁴ Almost half of U.S. states have already abolished the death penalty, and many victims’ families oppose it, helping to lead the way in repeal efforts.

While the following leaders have no record of sparing anyone from the death penalty, they still have several weeks to change course; it’s customary to wait to use clemency powers until the end of a political term, as a final boost to one’s legacy without the risk of political blowback. (And former leaders following custom have used clemency for people on death row, sometimes with a blanket commutation, converting all death sentences to life in prison.) But as the holiday and family-gathering season kicks off, the choice to ignore death row and spare a turkey instead is no act of festive good will.

President Joe Biden

Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences.

But Biden does pardon condemned turkeys, issuing a pair of pardons each year he’s been President. These fowl, by the names of Peanut Butter and Jelly (2021), Chocolate and Chip (2022), and Liberty and Bell (2023), are greeted in Washington with pomp and circumstance, and are returned to their home pastures under the care of animal experts.

Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.

Governor Roy Cooper, North Carolina

Governor Roy Cooper has only used clemency sparingly throughout his eight-year term.⁵ But even after issuing relief to several people just before Thanksgiving — including five people convicted of murder — the outgoing governor has withheld clemency from everyone on North Carolina’s death row, which has the fifth-highest death row population as of January 2024 with 138 people condemned to die.

Governor Cooper has, however, consistently pardoned turkeys, showing mercy toward at least eight birds since he took office. During the most recent pardoning event in 2022,⁶ Gov. Cooper told spectators that “Thanksgiving is a time to come together and appreciate the many blessings our families, friends and communities have to offer.” These words would be just as appropriate for sparing human life.

The North Carolina Coalition for Alternatives to the Death Penalty has been in Governor Cooper’s ear since 2022, when they launched a campaign calling on him to empty the state’s death row, commuting all sentences to prison terms before his term is over. He still has time to heed their advice.

Governor Eric Holcomb, Indiana

Indiana’s Governor Holcomb has a weak record for granting clemency,⁷ but could spare the eight individuals on Indiana’s death row with the stroke of a pen,⁸ including one man scheduled to be put to death in December — resuming executions in the state after more than a decade.

Notably, Holcomb governs a state with a legacy of rethinking death sentences: According to the Indiana Public Defender Council, more than half of all death sentences handed down in the Hoosier State since 1977 have been commuted, reversed, or dismissed, with Indiana governors taking clemency action as recently as 2005. And between 2000 and 2015, few cases that initially sought the death penalty actually resulted in a death sentence.

We couldn’t find evidence of Gov. Holcomb participating in a turkey pardon during his time in office. If he refrains this year, he should have plenty of time to acknowledge Indiana’s de facto moratorium on death sentences and extend clemency to the eight people on Indiana’s “X Row.”

Governor Mike Parson, Missouri

Governor Mike Parson of Missouri is leaving office after nearly seven years with a decent clemency record,⁹ having cleared a backlog of over 3,500 clemency applications.¹⁰ It’s unclear, though unlikely, whether Gov. Parson has ever commuted a death sentence; the clemency data produced by the governor’s office do not include crime or sentencing information. Nor could we find evidence of Parson participating in a Thanksgiving turkey pardon.

Considering Gov. Parson’s record of harmful policies, like bans on nearly all abortions and on gender-affirming care for minors, it seems unlikely that he would consider saving the lives of the dozen men on Missouri’s death row. Parson has overseen the executions of 12 people during his tenure as governor, including the execution of Johnny Johnson, a man with serious mental illness whose clemency was supported by his victim’s own father, and Marcellus Williams, whose advocates included prosecutors and the victim’s family.

As Parson considers his gubernatorial legacy, he should continue to use his unilateral clemency power for the Missourians who deserve better than the abhorrent practice of taxpayer-funded executions.

We applaud elected leaders when they use clemency to relieve people of excessive or unnecessary criminal sentences. But too often, they overlook those given the most draconian punishment on the books. Only a consistent practice of commuting death sentences and issuing pardons can combat the horrifying persistence of the death penalty. With Thanksgiving right around the corner, and their days in office numbered, outgoing leaders can spare human beings, rather than just birds.

California may take a big step backwards towards more incarceration with Proposition 36

The measure would defund prevention and reentry services, and is projected to grow the state prison population by 35% over the next 5 years.

by Sarah Staudt, October 17, 2024

Update: Californians approved Proposition 36 in the November 2024 elections.

This November, Californians will see an initiative on their ballots proposing a way to curb retail theft and drug use. In reality, this measure would undo a decade of progress towards unraveling mass incarceration without any public safety benefit. Bankrolled primarily by major retail brands like Walmart and Target, the ballot initiative known as Proposition 36 would cut millions of dollars from reentry and prevention services in favor of more prison sentences for theft and drug charges. It would punish people with substance use disorder who relapse, increase penalties for many people who use and sell drugs by increasing penalties and makes some small scale thefts eligible for felony charges. Overall, by 2029, Prop 36 is projected to fully undo hard fought progress made in reducing California’s prison population.

Prop 36 is part of a wave of recent measures across the country attempting to resurrect “tough-on-crime” policies. But this one is particularly concerning because it directly repeals decade-old reforms that have been proven to reduce both prison populations and recidivism. Californians who are interested in basing their criminal legal system policy on facts, not fear, should reject the measure — and other states should be on the lookout for similar efforts in their legislatures and on their ballots.

Prop 36 defunds critical prevention and reentry services

The text of Prop 36 doesn’t say it defunds prevention and reentry services, but that’s exactly what it does. In order to understand Prop 36, it’s important to examine another ballot initiative from a decade ago: Proposition 47 in 2014. Sixty percent of Californians voted for Prop 47 that year, a transformative initiative that reduced certain drug possession and theft crimes from felonies into misdemeanors. Lowering charges to misdemeanors decreases the long-term impact of criminal convictions on people’s housing and employment, and misdemeanors have shorter sentences than felonies. Changing these common low-level charges from felonies to misdemeanors dramatically lowered the prison population over time.

The most innovative part of Prop 47, however, was its re-investment provision. It required that the money saved by incarcerating fewer people be calculated by the state and then re-invested in a grant program for local reentry, diversion, substance and mental health treatment and crime prevention programs. So far, Prop 47 has saved the state almost a billion dollars, which has been funneled directly into local programs.

Now, Prop 36 will grow prison populations by reversing the sentencing policy changes of Prop 47. However, because Prop 36 has no funding stream of its own, it will cut into those same Prop 47 savings that fund essential local programs. This will leave local communities without the resources they need to reduce recidivism, house people, treat mental health and substance use disorders, and help people reenter society successfully after incarceration. In other words, it will stoke many of the problems that have fueled tough-on-crime narratives in the first place: fewer reentry programs mean higher recidivism rates, higher homelessness rates, and lower employment rates. Re-conviction rates for participants in Prop 47 reentry programs were 15.3% — 2-3 times lower than the average for people who have served prison sentences. The proportion of Prop 47 reentry participants who were homeless decreased by 60%, and the proportion of people who were unemployed dropped by 50%. These programs are demonstrably effective and essential public safety measures that address homelessness and poverty while reducing crime.

Prop 36 will directly harm Californians, especially those who use drugs

Prop 36 would raise the prison population by filling jails and prisons mostly with people charged with low-level theft and drug possession, while also draining resources from local community programs, and providing less effective treatment for people with substance use disorders and lengthening prison terms.

Draining resources: Prop 36’s proponents claim that they are promoting treatment for drug use even though the proposition drains funding from substance use programs. Instead of helping increase the availability of desperately-needed substance use disorder treatment, Prop 36 is an unfunded mandate, allowing prosecutors to seek “treatment mandated felonies” for people who are charged for a third time with drug possession without providing the funding to make that treatment possible. People who successfully complete these treatment mandates could have their charges dismissed, but people who do not successfully complete these programs would be convicted of a felony and potentially sentenced to prison or jail. And remember, Prop 36 does not do anything to fund these mandatory programs, so cash-strapped county governments will be left to pick up the slack.

Less effective treatment: One concerning feature of drug courts and similar mandatory treatment programs is that they put the rules and regulations of treatment programs in the hands of the courts, not medical professionals. People in community-based voluntary programs work with medical professionals who understand that relapse is part of recovery, while people in court-mandated programs may be labeled as a failure for one relapse and incarcerated. The proposition’s language allows courts and prosecutors to declare that the person has “failed” the program for incredibly broad reasons, including, “If at any time, it appears that the defendant is performing unsatisfactorily in the program, is not benefitting from treatment [or] is not amenable to treatment.”

Mandatory treatment programs are significantly less effective than voluntary treatment programs, and they have higher rates of relapse and overdose deaths. A recent review of 45 studies linking incarceration records with overdose deaths found that, in the first two weeks of release from mandatory treatment programs, opioid overdose deaths were 27 times higher than the general population. People in mandatory treatment programs often spend time in jail, either while awaiting evaluation or as a sanction for relapse and other violations. Even one day in jail can trigger a cascade of problems that are particularly acute for drug users — including heightened risk of death and suicide. Jail also disconnects them from effective treatment: only 24% of jails provide medication assisted treatment (considered the “gold standard” for opioid use disorder care).

Longer sentences: Prop 36 also increases penalties for many people who use and sell drugs by implementing sentencing enhancements for distribution and possession with intent to distribute fentanyl. The impact of expanding these excessively long sentencing enhancements to fentanyl could be disastrous, because fentanyl is so prevalent in the drug supply that most people who buy, use, and sell drugs do not know whether their drugs contain fentanyl. In one recent study, 83% of the study cohort tested positive for fentanyl — but only 18% reported that they intended to use fentanyl. This means that these sentencing enhancements will not just target the people putting fentanyl into the drug supply — they will target the majority of drug users. Prop 36 is likely to simply increase drug offense penalties across the board for Californians, rather than aiming policy at “the worst of the worst”.

Prop 36 would make California’s already-punitive theft laws harsher, locking up more people for low-level theft.

Prop 36 claims to be a response to rising retail theft, and two of the biggest donors supporting the initiative are Walmart and Target. Although retailers have worked hard to claim they are losing large amounts of money and goods from retail theft, it is far from clear that this is true.

What Prop 36 would actually do is make thefts of less than $950 dollars — with no minimum — a “strike” for the purposes of future felony charges. In other words, stealing a candy bar at some point would be enough to enhance someone’s later charge to a felony. Incarcerating more people for retail theft is likely to have notably disproportionate impacts, since people arrested for retail theft are disproportionately young and Black despite white people being more likely to engage in shoplifting. Turning more theft and drug charges into felonies instead of misdemeanors also specifically harms immigrant communities by making more people deportable for minor crimes — even people who are legally in the United States.

These changes aren’t necessary, even according to their own logic. California already has one of the lowest thresholds for felony theft in the nation, and just last month, Governor Gavin Newsom signed a series of “tough on crime” retail theft bills that allow businesses to aggregate the total amount stolen in multiple thefts to reach felony charging thresholds. Prop 36’s draconian punishment for a non-violent crime — crime that is driven most often by poverty and need — is neither needed nor helpful.

Conclusion

Prop 36 is not an isolated policy effort. It is part of a wave of measures across the country that are trying to resurrect “tough on crime” policies that claim to improve public safety or combat drug use or homelessness. But those approaches didn’t work in the past and won’t work now. What communities all over the United States need is more investment in communities, treatment, and reentry — the exact kind of investment that Prop 47 provides in California today, and the exact kind of investment that Prop 36 would undo. If you are interested in learning more about the efforts to defeat Prop 36, California United for a Responsible Budget has compiled a set of resources and ways to get involved. Californians — and people around the country — should reject punitive policies that will simply reboot mass incarceration instead of investing in proven solutions.

Highlights from a bustling year at Prison Policy Initiative

In our new annual report, we share examples of how we empower the reform movement with the data it needs to counter “tough on crime” narratives

by Danielle Squillante, October 16, 2024

We wrapped up another busy year at the Prison Policy Initiative, and are thrilled to share our 2023-2024 Annual Report with you. We released 7 major reports, 32 research briefings, and two guides for journalists to support further investigative work on issues related to mass incarceration. We also provided technical support to advocates at the state and local levels working on issues such as ending prison gerrymandering, parole reform and fighting jail expansion. Here are a handful of accomplishments we’re particularly proud of:

• Publishing updates to our bedrock reports detailing the scale of mass incarceration in the U.S. and globally, including Mass Incarceration: The Whole Pie, Women’s Mass Incarceration: The Whole Pie, and States of Incarceration: The Global Context
• Releasing a report on how jails and prisons misuse money from “inmate welfare funds” on staff perks or to cover budgetary gaps, rather than use those funds on services that benefit incarcerated people. We released a companion guide for press to encourage journalists to further investigate welfare funds in state prisons and particularly in local jails.
• Discrediting the argument that jails and prisons are rehabilitative by spotlighting how they fail to provide evidence-based voluntary treatment for people with substance use disorders and refuse to release elderly people who pose no safety risk to their communities.
• Keeping the need for jail reform front and center through multiple publications that challenge the efficacy of detaining people pretrial, show how pretrial detention has a warehousing effect, and debunk common arguments used to justify jail expansion.
• Helping Minnesota join the growing list of states that have ended prison gerrymandering. Progress on this issue has been so rapid that the National Conference of State Legislatures recently called state efforts to end prison gerrymandering “the fastest-growing trend in redistricting.”

This is only a snapshot of what we produced this past year. We are proud of our accomplishments and look forward to sharing new projects with you in the year to come.

New report, One Size Fits None, explores counterproductive and difficult conditions of probation in all 50 states

October 15, 2024

Easthampton, Mass. — A new report from the Prison Policy Initiative provides one of the most comprehensive 50-state compilations of “standard” conditions of probation to date, shining a light on the burdensome rules that govern the lives of nearly 3 million people and that doom many to inevitable further punishments. The report, One Size Fits None, and accompanying data organize probation rules from 76 jurisdictions into topical categories — allowing readers to compare rules in their state to other states, and exposing how these systems turn even everyday behaviors into acceptable reasons for re-incarceration.

For those unfamiliar with probation, the report serves as an accessible introduction to “standard conditions,” the rules that everyone under supervision in a given jurisdiction must follow. One Size Fits None answers questions like:

• What aspects of people’s lives do probation rules typically address?
• In which states are standard conditions of probation set at the state versus the local level?
• What types of probation rules are at the discretion of probation officers to define?
• How do standard conditions intersect with the life circumstances of people most likely to be on probation, including low-income people and people with mental health conditions or substance use disorders?

“Our analysis of 76 jurisdictions finds that people on probation must abide by 12 standard conditions every day, on average, plus any special conditions that a judge or an officer imposes,” said report author Emily Widra. “These rules are rigidly applied across the board, and have serious consequences for people who are already marginalized along lines of race, class, and disability.”

The report dives into the most common themes that standard conditions of probation fall under, including:

• Financial requirements: In 64 out of 76 jurisdictions analyzed by the Prison Policy Initiative, probation rules require people to make regular payments, including monthly fees, drug testing or other treatment fees, or mandated support of legal dependents.
• Rules impacting employment: Despite more than 60 jurisdictions requiring people on probation to maintain full-time employment or the pursuit of “a course of study or vocational training,” most jurisdictions also impose rules that make it harder for people to get and keep a job.
• Movement restrictions: Almost all of the 76 jurisdictions studied restrict where people on probation can go, and 21 jurisdictions restrict people’s movements to within a county or district.
• Association restrictions: At least 31 jurisdictions in the sample have rules restricting social relationships with categories of people. Only one — Arkansas — clarifies that unavoidable associations via work or treatment programs are not prohibited.
• Other, vague conditions that expand criminalization, including stipulations to “be good,” “be truthful,” and “devote yourself” to work or education.

One Size Fits None issues sweeping recommendations to state and local lawmakers who wish to ensure that probation rules work toward, rather than against, the goals of probation. The recommendations urge states to reduce their use of probation overall, change how rule violations are treated, and pare down standard conditions to the essentials — eliminating those that are unnecessary and ineffective. The report also includes a sidebar highlighting jurisdictions that are working to reduce probation revocations.

“Probation conditions today are not only burdensome; they are often in conflict with one another, which puts people in impossible situations where violations are unavoidable,” said Widra. “Rather than continue with this counterproductive system, states and counties must rethink their standard conditions so that people are allowed to succeed.”

Access the full report at https://www.prisonpolicy.org/reports/probation_conditions.html.

New, expanded data on Indian country jails show concerning trends extend to tribal lands

In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands.

by Emily Widra, October 8, 2024

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.¹ More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people. Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.²

Native incarcerationSee more data and graphics on our profile page.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country.³ In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land. They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

Jail populations in Indian country — like in jails across the country — were generally trending upward before a sharp decrease during 2020, which was the result of fewer arrests and slowed court processes during the pandemic; they have quickly resumed their upward trajectories in the years since.

Indian country jail populations continue to rise after COVID-19

Jail populations across the country — including local and Indian country jails — dropped dramatically during the first year of the COVID-19 pandemic (30% from 2019 to 2020). This temporary decline was primarily explained by fewer people being arrested and booked into jails, as well as slowed court processes. In 2020, Indian country jails saw their first decline in total jail populations since 2013.⁴ But jail populations on Native land and across the country quickly surged after the first year of the pandemic: from 2020 to 2023, the Indian country jail population grew by 19%, consistent with the 21% growth seen in local jail populations nationwide over the same time period. However, from 2022 to 2023, other local jail populations only ticked up by 0.2%, while the Indian country jail population rose by 7% over that single-year period. In other words, while rebounds in local jail populations are slowing, Indian country jail populations are rising more dramatically.

Women and older adults increasingly incarcerated in Indian country jails

Much like other parts of the criminal legal system, the growth of the women’s and older adult populations in Indian country jails has outpaced the growth among men and younger adults.

Women: Native women are disproportionately affected by almost every part of the criminal legal system. They are incarcerated at higher rates than women of any other racial or ethnic group. Additionally, women account for a larger portion of the Indian country jail population than they do in other local jails across the nation: in 2023, women represented over a quarter (26%) of adults incarcerated in Indian country jails, but only 14% of people incarcerated in other local jails. In the last three years, the number of adult women in Indian country jails has grown 37%, compared to only 15% for men. Prior to the COVID-19 pandemic, however, we saw this dynamic in reverse: from 2016-2019, the number of women in Indian country jails only rose by 5%, while the number of men rose by 19%. This suggests an alarming shift in the incarceration trends of women in Indian country since the pandemic began, in line with the escalating incarceration rates of women throughout the nation.

Older adults: There are limited historical data on the age of people incarcerated in Indian country jails: the Bureau of Justice Statistics only began collecting and publishing this information in 2021. But over this three-year period, the rise in the number of older adults incarcerated in Indian country jails has been consistent with national trends: between 2021 and 2023, the number of people 55 and older in Indian country jails grew by 38%, while the number of adults under 55 years old only grew by 9%. To be sure, these populations are fairly small in scale — the overall population increase from 2021 to 2023 was 220 people — but any upward trend in the incarceration of older people is worth examining.

Jailing increasing numbers of older adults is part of a terrible national trend of policing unhoused people, poor people, people who use drugs and alcohol, and people with cognitive disabilities. Housing instability, chronic diseases, poverty, and substance use all disproportionately impact Native people, and older Native adults are particularly vulnerable to arrest, detention, and the serious and harmful consequences of incarceration.

New offense data reveals troubling trends on the overuse of jails in Indian country

This iteration of the Jails in Indian Country series provides more data than previous years, including more specific categorizations of the offenses for which people have been detained. These additional details are welcome, especially in light of the limited offense data among jail populations in general.⁵ In previous years, large portions of the Indian country jail population were lumped together in an “other unspecified” offense category. In 2022, for example, 29% of offenses reported to the BJS were “other unspecified,” and this catchall category has been as high as 37% of offenses in 2015. The inclusion of additional offense categories⁶ in the most recent survey significantly reduced “other unspecified” offenses to only 8% of the total. Additionally, this is the first iteration of the survey to include mental health and civil commitment holds, unspecified warrants, and status offenses for youth. These additions clarify what’s driving population growth in Indian country jails, while illuminating troubling trends about the overuse of these jails at the same time:

• Holds: The addition of the mental health and civil commitment holds⁷ in Indian country jails offers new insight into how often jails are used for questionable reasons. As we’ve argued before, detainers and “holds” contribute to unnecessary jailing, often keeping people in detention longer than necessary while awaiting psychiatric treatment or substance use treatment. Given the heightened prevalence of substance use disorders among Native people,⁸ the fact that people are in jail for mental health and civil commitment holds instead of receiving crucial healthcare reflects a serious dearth of treatment access on Native land.
• Unspecified warrants: About 20% of people in Indian country jails are detained for warrants without a specified offense. Many of these detentions are likely for bench warrants related to a “failure to appear” in court given the lack of specific offense data. We know that many court responses to “failure to appear” — including jailing — do not actually promote public safety and are often a misuse of resources. That’s because most people who “fail to appear” are not actually evading justice or threatening public safety: nationally, 87% of people who miss criminal court dates are facing “nonviolent” charges for property, drug, and public order offenses. Considering around a quarter of all cases are eventually dismissed, many people who miss court face punishment even though they would likely not be convicted of the alleged crime that brought them into contact with the system in the first place.
• Youth status offenses: More than 1 in 10 youth in Indian country jails are held for a status offense, or a “noncriminal act that is considered a law violation only because of a youth’s status as a minor.” This can include missing school, underage drinking, violating curfew, or running away. Native youth are disproportionately represented in status offenses across the country: in 2021, Native youth accounted for 4% of all status offense cases in juvenile court, while only 1.3% of the total U.S. population is Native. Status offenses carry serious consequences beyond jail detention: in 2021, 1,400 youth with status offenses were ordered to out-of-home placements including youth prisons, residential treatment, or group homes, separating them from family and community support systems.
• “Crimes against vulnerable populations:” In this iteration of the survey, a sample of jails in Indian country were asked to report if they had any admissions (but not the actual number of admissions) for “crimes against vulnerable populations,” including human trafficking, kidnapping, or elder abuse over the course of a single month (June 2023). The Bureau of Justice Statistics (BJS) characterizes these additional questions as responsive to the “interest expressed by Congress, tribal leaders, and federal agencies” to illuminate “the types of persons being held.” At least 17% of all Indian country jails report admitting at least one person for elder abuse and at least 6% of Indian country jails reported admitting someone for kidnapping, while no facilities reported admissions for human trafficking in that month.⁹ We hope to see further innovations in future iterations and in the larger national BJS surveys as well. For now, it’s hard to put these findings in any kind of context as there is little data on the prevalence of these types of victimization, nor any detail about the people held on these charges in Indian country facilities.

Conclusion

The inclusion of new, more detailed data on jails in Indian country offers the public important insights into the incarceration of Native people on tribal lands. While these trends mirror what’s happening in jails elsewhere across the country, having this level of detail is nonetheless crucial to understanding how the criminal legal system impacts Native people and communities.

More transparency must be provided in the coming years to better inform and target advocacy that reduces Native incarceration and confronts glaring racial disparities in the criminal legal system. This is especially true considering much of this data has only become available in recent years, unfortunately limiting the historical record of Native incarceration.

Ultimately, we hope the Bureau of Justice Statistics will continue and expand the collection and dissemination of such detailed information — including detailed offense and demographic data — for people in Indian country jails and jails across the nation.

Candidates for office use jail and prison as “one size fits all” policy solutions. Here’s how to push back

Ahead of the November elections, we packaged up the facts you need to push for community safety, not cages.

by Wanda Bertram, September 24, 2024

Whether on the presidential debate stage or in races for governor, state legislatures, or city councils, candidates for elected office are falling back on an old tactic: Making spurious claims that “crime is up” and pitching more jail and prison time as solutions to social problems. Not only are claims of higher crime demonstrably untrue; incarceration is never the simple fix that it appears to be. Jails and prisons — even when they are rebuilt and branded as “humane” — are still places of punishment, and investing in them consistently fails to produce safer communities or, obviously, to dismantle mass incarceration.

The arguments for more jail can seem endless. But if candidates campaigning for office in your community or state push the narrative that more incarceration is a good idea — or even a necessary evil — we’ve got you covered. Below, we lay out facts you can use to oppose bogus claims about what criminalization can achieve, whether in regard to homelessness, the fentanyl crisis, or public safety in general.

FACT 1: Jailing people who use drugs is counterproductive.

Amid an overdose crisis, many lawmakers and candidates for elected office are campaigning on arresting more people for drug use, especially in public spaces. These reforms are a blatant repackaging of policies from the “war on drugs,” and a step backward for public health.

Importantly, although they push for police interventions as a means of getting drug users into treatment, public officials often ignore that there may not be enough substance use treatment resources in the community to begin with. Oregon, which re-criminalized drug possession earlier this year, only has 50% of the treatment resources that the state needs. Once in jail, people who have been engaging in harmful drug use are not likely to get treatment, much less genuine care. In a briefing earlier this year, we showed that less than one-fifth of all county jails in the U.S. initiate medication-assisted treatment for substance use disorder, and scarcely half of all county jails even provide medication for withdrawal.

What’s more, being in jail can make substance use dangerous or even fatal. Data from 2018 show that drug- and alcohol-related deaths in jails have increased nearly fourfold since 2000, and the median time spent in jail before an intoxication death is just one day. While arresting people who use drugs publicly may help move some of them into treatment, for others, it makes their addiction more deadly — not a sensible public health policy.

FACT 2: More housing, not criminalization, is the answer to the homelessness crisis.

Many local and state leaders are beginning to harshly enforce their anti-camping laws in the wake of the Supreme Court case Grants Pass v. Johnson, which held that states have the right to sweep homeless encampments even when shelter beds aren’t readily available. But contrary to what many of these lawmakers say, punitive responses to the homelessness crisis are not “common sense.”

On the ballot19 elected offices that can help end mass incarceration.

A lot of unhoused people are already carrying criminal convictions, which can make it prohibitively hard to find a place to live. We’ve discussed before how public housing authorities have — and use — wide discretion to deny housing to people with records or even just histories of arrest. For these individuals, homelessness may be the result of past encounters with police. For others, a brush with law enforcement or a stint in jail could make finding future housing less likely. In our 2018 report Nowhere to Go, we found that people who had been to prison were more likely to be homeless depending on how many times they had been incarcerated — each lockup increasing the likelihood of ending up on the street without housing prospects.

As others have pointed out, rising rates of homelessness across the U.S. are the result of a genuine housing crisis. Formerly incarcerated people and those at risk of incarceration are particularly in need. But there are policy responses that work. In a 2023 briefing, we found that long-term supportive housing programs that aren’t conditional on people being sober or accepting treatment have incredible rates of success at keeping people housed and out of jail.

FACT 3: The solution to overcrowded, inhumane jails is pretrial reform and community healthcare.

In counties and cities where jails are crowded or facing a long list of maintenance and repair costs, local officials up for election this fall will likely be pressed to vote on whether to build new, often bigger jails. (And in some counties, jail construction measures themselves are on the ballot.)

Elected officials at the county and city level often claim they “have no choice” but to expand or replace their jails (for instance, recently, in Cleveland and Sacramento). But these hugely expensive projects can fail to produce the results local governments want. In counties with overcrowded jails, building a bigger jail is supposed to make the incarcerated population easier to supervise and care for. But all too often, these projects lead to more incarceration — and the new jail becomes overcrowded as well.

In fact, counties do have a choice in how they deal with issues in their jails. Local courts and county sheriffs can work together to reduce the jail population through pretrial reform, something that we have shown can be achieved at no detriment to public safety. And in the many, many counties where the majority of people in jail have a substance use disorder, expanding community healthcare options is a lower-cost — and more effective — way to tackle addiction that also reduces the number of people behind bars.

FACT 4: “Truth in Sentencing” reforms turn prisons into overcrowded nursing homes with little to no public safety benefit.

Earlier this year, Louisiana’s “tough on crime” governor, Jeff Landry, and its legislature pushed through “Truth in Sentencing” laws that eliminated parole in the state’s prisons and barred people from earning time off their sentences. His regressive reforms are part of a recent wave of legislation, mainly in the South. However, bills similar to Landry’s have come to states like Colorado and Iowa as well.

Calling for more people to spend decades and likely die in prison is a popular campaign strategy. But the reality of Truth in Sentencing is brutal and counterproductive. The U.S. prison system is already becoming geriatric as people sentenced in the ’70s, ’80s, and ’90s get older. Eliminating parole and other mechanisms for early release (like good time, which Landry dismissively called “a participation trophy for jail”) will accelerate that trend. It will also swell prison populations, as in Louisiana, where the Crime and Justice Institute projects that the regressive reforms will double the state prison population. And as a consequence both of overcrowding and of the “greying” of prisons, more people in prison will get sick, leading to the type of ghastly medical situations that prisons are known for.

Given these massive drawbacks, it may be surprising that forcing people to serve more time in prison does not, in fact, improve public safety. If candidates for state legislator or governor propose these “tough” reforms in your state, remind them that “Truth in Sentencing” reduces incentives for incarcerated people to complete programming that can help them and their communities. And the Vera Institute’s research on the ineffectiveness of longer prison sentences may be helpful to have on hand, too.

FACT 5: Crime is down, not up.

Crime is not surging — even though candidates for elected office, including Donald Trump and others from both major parties up and down the ballot, pretend otherwise. Claims of crime hikes can be very persuasive: In October 2023, 77% of surveyed Americans believed there was more crime in the U.S. than there was the year before. But as both old and new data show, this is simply not true. New data from the Bureau of Justice Statistics on criminal victimization in 2023 shows that crimes of almost all types were down from 2022, and many types of violent crime were equal to or lower than their reported rates in 2019.

To be sure, crime can fluctuate rapidly in short periods of time. But elected officials spend several years in office, and should be campaigning on their ability to protect public safety in the long term. So what do the long-term crime data say? In short, in 2023, crime hit a 60-year low. Candidates for office shouldn’t be centering their campaigns around increases in crime that, in this long view, are momentary and quite modest.

Ending misinformation about safety goes beyond ending bogus claims about crime, too. Lawmakers should take a broad view of public safety by addressing real, harmful trends, like the housing shortage, economic inequality, and public health concerns. The people we elect to govern our communities have a wealth of information about the diverse drivers of crime and safety — and they should use it.

Conclusion

Lawmakers pushing for Truth in Sentencing, bigger jails, and other policies that expand the criminal legal system tend to claim that there is no alternative to these methods for making communities safer. But the alternatives that have been shown to work — housing first, harm reduction, expanded parole and “good time” — are often passed over by these same lawmakers, or are not given the chance to serve more than a handful of people in a pilot program. Meanwhile, the criminal legal system continues to consume hundreds of billions of dollars, even as prisons appear to become more and more inhumane.

It’s never too late to push your elected officials — and the candidates running to replace them — to try public safety strategies that focus on care, not cages. More or less every elected official has a role to play in dismantling mass incarceration, and the movement for that change must start with pressure from below.

Prison Banned Books Week: Books give incarcerated people access to the world, but tablets are often used to wall them off

Instead of taking advantage of their possibilities, the companies that got rich off prison phone calls offer limited book selections on tablets, as part of their continued efforts to sap money from incarcerated people and their families.

by Mike Wessler and Juliana Luna, September 16, 2024

Books have long served as a bridge to the outside world for incarcerated people. They allow people cut off from their normal lives — and often from their families — to engage with thinking and ideas that can open their mind and stories that transport them anywhere on earth and beyond. But carceral authorities have also always restricted access to books, and reading behind bars has only become harder in recent years.

This year’s Prison Banned Books Week highlights the role tablets are ironically playing in further restricting incarcerated people’s access to reading materials. To better understand these changes, we looked at data collected by the Prison Banned Books Week campaign on prison book bans, policies around books, and the availability of ebooks on tablet computers.¹ What we found is that tablets limit access to important modern writing and knowledge behind bars.

Tablets are nearly everywhere

When we last looked at the availability of prison tablets in 2019, they were relatively new and rare behind bars. Only 12 states had them. Since then, the technology has quickly spread. Today, at least 48 prison systems indicate they have tablets or, as in the case of Alaska and Nevada, are in the process of implementing tablets.²

The two companies providing tablets to the most state prisons are Securus/JPay and ViaPath/GTL. Perhaps this should come as no surprise since these two companies have long been the largest providers of telecommunication services for incarcerated people. They control roughly 80% of both the phone and e-messaging markets behind bars.

Importantly, these companies have shifted their focus to tablets as the prison and jail voice and video calling market has come under increasing scrutiny and regulation. Tablets behind bars have not undergone the same oversight, leaving companies like these free to use the devices to continue squeezing money from incarcerated people and their families for services like e-messaging, digitized mail, and music streaming.

Physical books are increasingly rare behind bars

The rapid expansion of tablets behind bars has occurred at a time when access to physical books in prisons has become increasingly rare.

Books have always been hard to come by behind bars. While it is true that most prisons technically have libraries, they are often under-resourced, strictly regulated, and have limited and outdated selections of books making them unreliable for accessing books and information. And increasingly frequent lockdowns often keep them entirely out of reach.

Search contractsFind tablet contracts in our database

This situation has become even more dire in recent years as more states have implemented content-neutral book bans that restrict families and friends from sending books directly to their incarcerated loved ones. These policies mandate that books sent to people in prison can only come from a limited selection of approved vendors. This means that friends, family, churches, libraries, nonprofit organizations, and others who want to send books directly to people in prison can no longer do so. Instead, they must purchase titles from the vendor hand-picked by the prison and have that vendor send the books directly to the facility. A 2023 study by PEN America found 84% of prison mailrooms they surveyed had implemented these sorts of bans, even when it was not the statewide policy.

Of course, even facilities that still allow people to send books to their incarcerated loved ones dramatically restrict what they can read. A 2023 review by the Marshall Project found that state prisons explicitly ban over 50,000 books. However, that only tells a part of the story. At least 23 states, along with Washington, D.C. and the Federal Bureau of Prisons, do not have written lists of explicitly banned books but instead say they evaluate books on a case-by-case basis, providing mailroom staff with immense discretion to implement already vague rules, with little oversight.

It will come as little surprise that one of the most frequently cited reasons for a prison to ban a book is “security.” However, it is clear this reasoning is applied indiscriminately and often in situations where no reasonable security threat exists. For example, in 2022, Texas prisons banned the second edition of Merriam-Webster’s Visual Dictionary on security grounds because it contained a picture of a gun. And it would likely surprise many that the most banned book in American prisons is a cookbook. Prison Ramen details how incarcerated people can use ingredients often sold at commissaries to add flavor to ramen (another common item in prison commissaries). Perhaps prison authorities worry that the book’s recipe for “Shawshank Spread” might serve as inspiration for people behind bars. And of course, it goes without saying that there is little to no evidence that any of these books explicitly banned in prisons have ever led to any actual security incident.

Tablets aren’t filling the gap

Prisons often claim that the addition of tablets behind bars will increase access to books, despite other book bans they have implemented. Unfortunately, though, because of limited and outdated ebook selections, tablets are not living up to their potential and likely aren’t even filling the emerging book-gap.

The companies behind these tablets often boast that they offer access to tens of thousands of free books, which sounds quite impressive until you examine their offerings more closely. For example, none of the best-selling books released since the year 2000 are available on Securus/JPay tablets in Georgia. It is hard to imagine that prisons can attribute this to security concerns since many Harry Potter books — which are considered a rite of passage for many young readers — and The Purpose Driven Life — a bible study book written by Pastor Rick Wilson — are among those best-sellers that are not available.

Instead, most of the books that are available on tablets come from Project Gutenberg, a collection of free ebooks. Importantly, these books are free because their copyright expired when they reached 100 years old.³ Undoubtedly, this collection includes some important classic books. However, their age — and the companies’ decisions not to offer newer books — creates some significant problems. For example, you likely won’t find books by author and civil rights activist James Baldwin on these tablets. However, you’ll likely find Yankee Girls in Zulu Land, a book that is over 130 years old and is known for its racist ideas and sentiments.

Additionally, not all tablets even offer ebooks. Michigan’s tablets have no reading material and the state has a statewide approved vendor policy that limits incarcerated people’s book purchases to four booksellers, making reading costly and inaccessible in Michigan prisons.

Making tablets work for incarcerated readers

Prison tablets are not inherently bad, but the ways that facilities and companies have implemented them are. Tablets can and should provide new opportunities for incarcerated people to engage with high-quality books and other content in ways that don’t sap them of what little money they have.

The single most important step that prisons can take to make tablets work in the best interest of incarcerated readers is by forcing the companies to offer other apps that give incarcerated people access to the catalogs at their local libraries. Apps like Hoopla offer free access to selected ebooks, audiobooks, movies, and more from local libraries. Communities are already paying to provide access to these materials to people outside of the prison walls, it only makes sense to expand that access to people locked up in prisons, too.

The companies behind these tablets will certainly resist this effort because it would likely cut into their bottom line. Their track record shows that profit, not the well-being of incarcerated people, is their driving force. However, prison officials have the upper hand in contract negotiations. If a few states band together to demand access to materials from the local library on tablets, the companies would be forced to respond or else risk devastating revenue losses.

Of course, prisons all too often collude with telecom providers to make money by squeezing incarcerated people for goods and services they can’t refuse. But even if prisons aren’t moved by a desire to help the people in their care, state lawmakers should pay attention to prisons’ policies around reading. We know that when people who are incarcerated stay connected to the outside world, it improves their mental and physical well-being and prepares them for their release. States should do more to ensure that tablets are operating in the best interest of the people who use them.

Mass incarceration is on the ballot

A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America.

by Mike Wessler, September 11, 2024

Elected Offices

Local Offices

District Attorneys

Sheriffs

County Commissioners

Mayors and City Commissioners

City Auditors

Local Judges

Coroners

City Clerks

School Board Members

State Offices

Governors

Attorneys General

Secretaries of State

State Legislators

State Auditors

Utility Commissioners

Appellate Court Judges

Supreme Court Justices

Federal Offices

President

Members of Congress

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November. We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area. Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system. This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing. With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

Local Offices

Most of the day-to-day interactions that people have with the criminal legal system involve local governments. Local governments are responsible for a wide swath of related activities, including policing and law enforcement, the prosecution of criminal laws, and conditions and policies at local jails.

District/County Attorneys

Because of their immense power, government prosecutors known as district attorneys (sometimes called county attorneys) loom large in any discussion about the criminal legal system and what can be done to reform it. And it is important to remember that the person who holds this office has immense discretion in how to use this power.

They oversee the vast majority of criminal cases in their jurisdiction. Not only do they determine which types of offenses to prioritize for prosecution, but in individual cases, they also determine whether to bring charges against someone and, if so, for what crime.

Additionally, while they don’t directly set bail conditions — judges generally do that — they usually recommend whether a person should be offered bail and, if so, whether they must pay money to go free before their trial. Their recommendations hold immense weight in these judicial decisions.

They also serve as gatekeepers to diversion programs. These programs allow people charged with crimes to resolve their cases without a criminal conviction and, in many cases, without incurring charges. The district/county attorney decides what those diversion programs look like, whom they are offered to, and what happens when someone completes it.

While this explanation covers the most prominent parts of the district attorney’s job, it is certainly not exhaustive. To learn more, we recommend reading Fair & Just Prosecution’s report, 21 Principles for the 21st Century Prosecutor, which goes into much greater detail.

Sheriffs

Sheriffs play many roles in the criminal legal system that can vary greatly from state to state and county to county. Generally speaking, though, their core responsibility is running the county jails, making them responsible for managing the conditions in which people are detained pretrial.¹ Importantly, in this role, they’re responsible for the health and safety of people who are in their custody, including what health services they have access to while incarcerated. Additionally, they enter into contracts with private companies that provide services, such as phone calls, commissary sales, and tablet computers. They decide what people detained in their jails are charged for these services.

Additionally, many sheriffs also conduct law enforcement activities and criminal investigations. This gives them wide latitude in determining who is arrested and for what offenses.

Finally, some sheriffs also oversee probation programs and officers. In this role, they have a huge impact on the lives of people on probation. They can prioritize the person’s successful completion of the program in a way that keeps them from being arrested or incarcerated again, or they can prioritize punishment by strictly enforcing arbitrary and often expensive conditions that set people up to fail.

County Commissioners

County commissioners² generally have two primary responsibilities when it comes to the criminal legal system.

First, they provide oversight of the county jail, including setting budgets and approving contracts for services. Notably, they are also often responsible for considering proposals for new jail construction. During debates about building a new jail or expanding an existing one, county commissioners have powerful leverage that they can and should use to ensure that prosecutors and law enforcement are doing everything they can to reduce the number of people stuck in jails unnecessarily.

Second, they allocate funding and, in some jurisdictions, provide oversight of the county sheriff’s department. This can influence the law enforcement presence in the community and the activities the department is tasked with prioritizing.

Mayors and City Commissioners

These offices are responsible for supervising the local police department. This includes determining its funding, providing some oversight of its activities, and selecting its chief. Through these choices, they determine the size, scope, and priorities of the police departments in their communities.

Additionally, they set funding levels for other community resources that can prevent law enforcement interactions in the first place. For example, they could direct funding to expand mental health services, drug treatment options, or pre-police diversion programs in their area.

City/County Auditors and Controllers

City and County Auditors do far more than just monitor the spending of agencies (although they can, in fact, do that). They also look at the overall performance of key departments. For example, they can look at how jails are administering their welfare funds, how police departments are responding to the needs of the communities, jail conditions, the administration of the county’s bail practices, how public housing and health care providers are delivering services, and much more. Through their work, auditors and controllers can act on behalf of residents of their community to provide much-needed transparency and ensure their government is properly and effectively serving them.

Local Judges (including Justices of the Peace)

Local judges play multiple roles in the criminal legal system. While they are intended to be unbiased arbiters between the prosecution and defense in criminal cases, their decisions can have a huge impact on whether a person is convicted and whether they serve time behind bars — both before and after a conviction. They preside over a person’s initial court appearance after their arrest, at which time they’ll determine whether they can be released from jail, whether they have to pay cash bail to be released, and if there are any other conditions of their release. They also oversee criminal proceedings in the courtroom when a person goes to trial. In this role, they participate in decisions around who is selected as jurors, what evidence can be admitted, how the trial is run, and determining their sentence (if convicted). Importantly, they also set conditions a person must abide by when they are on probation.

Coroners

When someone dies unexpectedly, coroners often conduct medical examinations to determine the person’s manner and cause of death. Their findings and reports are often pivotal in criminal investigations and hold immense weight in criminal trials. Coroners can help expose the truth in criminal cases. Conversely, though, their mistakes can also send people to prison for crimes they did not commit. Importantly, corners are also often responsible for investigating the deaths of incarcerated people.

City/County Clerks (sometimes known as Supervisor of Elections)

This office, which has many different names across the country, has a key interaction with the criminal legal system: jail voting. Most people in jails are still eligible to vote but are prevented from doing so by a complex set of barriers. This office can help clear those barriers. They can work with local jails to make it easier for people detained there to register to vote and cast their ballots. A growing number of places in the country have even established polling locations in jails to make it easier for incarcerated people to have their voices heard.

School Board Members

The intersection of education and incarceration is complex. In short, we know that people with lower educational attainment are more likely to be incarcerated. So, in essence, every choice school board members make can help reduce incarceration in the community in the long run.

There are additional — more direct — choices that school board members make related to the criminal legal system. The first is whether or not police have a presence in schools as school resource officers. Second, school boards also set disciplinary policies, many of which are directly linked to the “school-to-prison pipeline,” such as when a student is suspended or expelled and when law enforcement is called for disciplinary activities in the schools. Both of these choices can result in children being tangled in the criminal legal system at a young age. Finally, in some places, they also are responsible for ensuring students in the juvenile justice system have equitable access to quality education.

State Offices

State government looms large in the criminal legal system. Not only are state prisons the largest incarcerators in the country, locking up over 1 million people every day, but states also write and enforce the laws that most frequently result in people being locked up in the first place.

Governors

Governors lead their state’s government, so naturally, their power and responsibilities are far-reaching. However, there are several specific areas that have a particularly dramatic impact on the size, scope, and conditions of the criminal legal system in their state.

One of the most important things they do is appoint the head of their state’s Department of Corrections, which runs state prisons.³ This agency is responsible for the health and safety of people incarcerated, how those facilities operate on a day-to-day basis, and how much incarcerated people (and their families) pay for things like phone calls, commissary items, and more. It also shapes policies around the use of good time credits, parole, and compassionate release.

An underappreciated role of governors is appointing people to state boards and commissions. The people appointed to these bodies can have a huge influence on how state government runs, and their decisions often go unnoticed by the public and the media. Notably, in many states, governors appoint people to their state’s parole board, a body that determines whether people who have served time behind bars are released or not. Additionally, in states that have prison ombuds, the governor often appoints the person who serves in that position.

Similarly, governors have the power to issue pardons and commutations for people convicted of state crimes. These can result in a person being released from prison early or undoing some of the worst collateral consequences of their conviction. Unfortunately, though, governors have woefully underused this important power.

Finally, governors sometimes appoint state judges to the bench. We discuss the role of judges in other parts of this guide, but in general, they are responsible for presiding over criminal cases, including determining the sentence for people found guilty and, in some instances, determining whether laws passed by the state are unconstitutional.

Attorneys General

Attorneys General are often called the top law enforcement officer in the state, and for good reason. While the specific duties and responsibilities vary significantly from state to state, generally speaking, this office plays an oversight or coordinator role for county/district attorneys in their state, often helping to set standards for criminal prosecutions. In addition, they can investigate and prosecute some serious criminal cases on their own. If a person is convicted of a crime and appeals that conviction, this office generally argues against those appeals.

Importantly, this office also represents the state when it faces civil lawsuits. For example, if a family sued the state government over poor prison conditions, the attorney general would likely represent the state in that case.

An often overlooked responsibility of many attorneys general is enforcing their state’s public records law. Prisons, jails, and court systems routinely unfairly deny requests for public records that should legally be accessible. In many states, advocates and journalists who have had their requests denied can often ask the attorney general of their state to intervene and force the facilities to produce the records.⁴

Secretaries of State

Secretaries of State generally oversee elections in their state. In this role, they can take action to improve ballot access for people who are currently in jail (and, in a few states, for people in prison, too). A motivated secretary of state can prioritize voter registration in these facilities and proactively address problems people who are incarcerated may face when attempting to cast their ballot. Additionally, they often provide guidance to local election officials, which gives them the chance to further improve ballot access.

State Legislators

State legislators have one of the most important and often overlooked roles in the criminal legal system. It is not an exaggeration to say that the only constraints on their abilities are state and federal constitutions, money, and their imagination. Their primary responsibility is writing and passing laws. They determine what is a state crime, the punishment for those offenses, the conditions a person will face after they are released, and much more. State lawmakers have so much power, in fact, that we put out an annual report highlighting dozens of actionable steps they can take to reform the criminal legal system without making it bigger.

In addition to passing laws, state legislators are also responsible for developing a state government budget that allocates money to state prisons and many law enforcement agencies. Through this action, they can influence the size and number of prisons in their state, the conditions in those prisons, and the role of law enforcement in their communities.

Notably, state lawmakers also can serve on legislative oversight committees that review the activities of government agencies, including state prisons.

State Auditors and Comptrollers

While the exact responsibilities and titles differ significantly from state to state, state auditors and comptrollers are generally tasked with assessing how well state agencies are doing their jobs and spending money. This goes beyond simple accounting. They can look at any number of activities of their Department of Corrections or state law enforcement officials. For example, a 2020 audit by the Massachusetts State Auditor found the state’s Department of Corrections was not processing sick-call requests from incarcerated people as quickly as required and was not fulfilling its obligations to incarcerated people upon their release. Used correctly, these can be powerful offices for exposing the mistreatment of people in the criminal legal system and the mismanagement of public dollars.

Utility Commissioners

Utility Commissions are tasked with regulating the state’s utility companies, such as electric providers, phone companies, and similar businesses. While it may seem like this has little to do with prisons and jails, in some states, these officials have played a critical role in reducing phone rates behind bars. For example, changes made by the Iowa Utilities Board to jail phone rates saved the loved ones of incarcerated people roughly $1 million every year. While the Federal Communications Commission recently approved rules that will significantly reduce voice and video calling rates in prisons and jails, the work of Utilities Commissions is not done. They can still take action to address the rapidly expanding presence of tablets and other telecom services behind bars to ensure that incarcerated people are not taken advantage of.

Appellate Court Judges

After a person is convicted of a crime, they have a right to appeal their conviction. That’s where appellate court judges come in. They oversee these appeals to determine whether the trial was held in a manner that was fair and respected the constitutional rights of the person convicted of a crime. They have the power to affirm or overturn a person’s criminal conviction or sentence.

Supreme Court Justices

State supreme courts are generally considered the most powerful court in their state. If a person convicted of a crime is unsuccessful at appealing their case in front of the appellate court judge, they can ask the state supreme court to hear the case as well.

Additionally, these courts are tasked with assessing the constitutionality of laws and policies related to the criminal legal system. This can include a wide variety of issues, such as policing practices, prison and jail conditions, and whether state laws violate a person’s constitutional rights.

Federal Offices

The federal government’s role in mass incarceration is vast and complex. Even though the federal prison system holds only about one-quarter as many people as state prisons collectively do, the federal government is still responsible for 98 federal prisons and 142 immigration detention facilities. Also, through the Department of Justice, it oversees federal law enforcement and criminal prosecutions.⁵

President

Like governors, the ways the president can impact the criminal legal system are vast.

One of the most consequential decisions they make is who they appoint to be Attorney General of the United States. This person will oversee the Federal Department of Justice, which prosecutes all cases involving allegations of federal crimes. Similarly, the president appoints U.S. Attorneys who oversee those prosecutions. The Attorney General and U.S. Attorneys have considerable latitude on which cases to pursue, which crimes are prosecuted, and the desired punishment if a conviction is secured. Additionally, the Attorney General oversees the Bureau of Prisons (BOP), which operates all federal prisons. The BOP is responsible for a wide range of prison conditions, including the health and safety visitation policies and communication options for people incarcerated at its facilities.

Presidents are also responsible for signing (or vetoing) bills passed by Congress. And even before a bill makes it to their desk, they work with lawmakers to shape that legislation. These laws can have far-reaching effects, as we discuss below when talking about the responsibilities of members of Congress.

One of the president’s most long-lasting impacts comes through his or her appointments of federal judges, including U.S. Supreme Court Justices. In addition to hearing federal criminal cases, federal judges often also interpret laws to determine whether they violate the U.S. Constitution.

The president also appoints members to boards and commissions focused on a wide range of issues. For example, the president appoints commissioners to the Federal Communications Commission, which recently slashed calling rates in prisons and jails. The president also appoints members to the Federal Trade Commission, which oversees many consumer issues, including junk fees in prisons and jails. They also appoint members to the U.S. Sentencing Commission, which has a hand in determining the severity of sentences for people convicted of federal crimes.

Finally, presidents have the power to issue pardons and commutations for people convicted of federal crimes. Unfortunately, though, they rarely use this power. Through these acts, the president can either reduce the sentence of someone convicted of a crime or undo some of the worst consequences of that conviction.

Members of Congress

Like state legislators, the principal responsibility of members of Congress is passing laws. Through these laws, they determine what actions are considered federal crimes and the potential sentences for people convicted of those crimes. They can also pass legislation to address issues related to prisons and jails at the federal, state, and local levels of government. For example, members of Congress have brought forward a bill to end prison gerrymandering nationwide.

The other principal responsibility of members of Congress is developing and passing a budget that determines how much money is allocated to federal agencies, including the Department of Justice and the Bureau of Prisons. These budgets can have wide-ranging implications for the number of people incarcerated, the number and condition of prisons, and the availability of community-based services and health care.

Notably, members of the U.S. Senate are also responsible for considering and confirming many appointments made by the president — including the appointment of federal judges and the U.S. Attorney General. This allows them to affirm or deny whether a person has the experience, temperament, and priorities to serve in that position.

Making your voice heard

No single elected official built America’s broken system of mass incarceration. And no one officeholder can end it singlehandedly. Accomplishing that will require a wide focus on elected offices up and down the ballot.

This guide is not all-encompassing. America’s elections are diverse and complex, so it would be impossible to cover every office that influences the criminal legal system and every responsibility of those offices. Instead, as you prepare to head to the polls, we hope this guide helps you better understand how the offices you’ll be asked to vote for can use their power to reduce the number of people behind bars and improve conditions for those who remain incarcerated. After the election, we hope you’ll use it to hold those elected officials accountable, too.

With Election Day approaching, visit Vote.org to register to vote (or check your registration status) and make your plan to make your voice heard at the ballot box.

(Author’s note: We’d like to thank the team at Bolts Magazine for their insights as we put together their guide. Bolts is a nonprofit newsroom that covers issues related to elections and the criminal legal system.)

Mass Incarceration 101: Resources to help students and teachers understand the carceral system

It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system.

by Danielle Squillante, September 3, 2024

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion. It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why. In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Additional reading assignments:

• Our briefing on states’ reliance on excessive jailing explains the drivers of jail growth including the practice of renting jail space to state and federal agencies like the U.S. Marshals Service. The appendices include useful data on jail trends and population data over time.
• Our Punishment Beyond Prisons report looks at how many people in each state are on probation or parole. Notably, some of the states that are the least likely to send people to prison are among the most punitive when other methods of correctional control are taken into account.
• States of Incarceration: The Global Context shows how incarceration rates in the U.S. compare to countries across the globe. Although El Salvador has the highest incarceration rate of any country, the U.S. still has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.

An essential lesson: Disparities in the system

No lesson about mass incarceration in America is complete without covering the stark racial disparities inherent in the system. Black people, for example, not only have higher incarceration rates than white people but are also more likely to receive harsher sentences, including life without parole and the death penalty.

To help teachers and students understand these disparities better, we produced a dataset containing over 100 state-specific graphics showing the number of people in state prisons and jails by race, ethnicity, and sex. Our data compares Black and white imprisonment rates by state, finding that every state locks up Black people at a rate at least double that of white people — and, on average, at six times the rate of white residents.

Every state incarcerates Black residents in its state prisons at a higher rate than white residents. For comparisons to other race/ethnicity categories, see individual state profile pages.

Additional reading assignments:

• Our Native incarceration page contains current data on the incarceration of Native people in jails, prisons, and Indian country jails. In jails, Native people have more than double the incarceration rate of white people, and in prisons, this disparity is even greater.
• Racial disparities aren’t the only disparities in the system. Our 2021 briefing on the system-involvement of LGBTQ people details how they are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women.

Gender studies: Women’s incarceration

Students and teachers looking to examine the carceral system must understand the unique ways that women experience mass incarceration in America.

Our Women’s Mass Incarceration: The Whole Pie report provides the most recent and comprehensive data on how many women are incarcerated in the U.S., in what kinds of facilities, and why. The report also includes rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences behind bars. It examines why women’s incarceration has grown so rapidly in recent decades and explains that, because they are often primary caregivers to children, they’re not the only ones harmed by incarceration.

Additional reading assignments:

• Our briefing on how the fall of Roe v. Wade impacts women on probation and parole includes state-level data on how many women are under community supervision in states with abortion restrictions.
• Our 2020 briefing highlights the role that drug enforcement has played in the rise of women’s incarceration and makes clear why we need to pay attention to the ways that women are uniquely impacted by the legal system.

Care not cages: Incarceration and public health

People in prisons and jails are disproportionately likely to have chronic health conditions as well as substance use and mental health problems. Medical care in correctional facilities is notoriously inadequate, and because most prison systems charge copays for medical care, it also deters incarcerated people from seeking the care they need.

Our Chronic Punishment report shows that instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, state prisons are full of ill and neglected people.

Additional reading assignments:

• Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare. But as our briefing on the lack of drug treatment in jails and prisons makes clear, most systems fail to provide evidence-based treatment options and instead rely on punitive responses to substance use.
• In our briefing on the aging prison population, we examine the inhumane, costly, and counterproductive practice of locking up older adults that is the consequence of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century.
• Our briefing on environmental injustice in prisons highlights how toxic detention facilities put the health of incarcerated people at risk. From having contaminated water to being sited near federal Superfund sites, prisons expose incarcerated people to hazardous substances that create additional health issues behind the wall.

Extra credit

Our website is chock full of data that can be used to further explore incarceration trends or dive deeper into issues related to mass incarceration:

• State Profile pages: contain current state-level data and visuals on a range of issues, including racial disparities and incarceration rates
• Data Toolbox: provides links to our unique datasets, including national and state-level population data
• Research Library: the nation’s largest online database of empirical and policy research about criminal legal issues, including mental health, community impacts of incarceration, and conditions of confinement
• Data Sources guide: includes descriptions of data sources we use to produce research exposing the harms of mass incarceration

New research links medical copays to reduced healthcare access in prisons

Using our prior research on prison wages and medical copays, researchers found that higher copays obstruct access to necessary healthcare behind bars, even as prison populations face increasing rates of physical and mental health conditions.

by Emily Widra, August 29, 2024

In most states, people incarcerated in prisons must pay medical copays¹ and fees for physician visits, medications, dental treatment, and other health services. While these copays may be as little as two or five dollars, they still represent massive barriers to healthcare. This is because incarcerated people are disproportionately poor to start with, and those who work typically earn less than a dollar an hour and many don’t work at all. A new report by Dr. Emily Lupez et. al, published in JAMA Internal Medicine, builds on our analyses of prison copay and wage policies across all state prison systems and the findings are clear: medical copays in prisons are associated with worse access to healthcare behind bars. These unaffordable fees are particularly devastating because they deter necessary care among an incarcerated population that faces many medical conditions — often at higher rates than national averages — and routinely faces inadequate health services behind bars.

In their recent publication, Dr. Lupez and her fellow researchers analyzed nationally representative data from state and federal prison populations published in the Bureau of Justice Statistics’ Survey of Prison Inmates, 2016.² While we previously published our own analysis of the same dataset in 2021, this new research goes further by analyzing changes from the 2004 data and mapping our copays and wages data onto health data from people in prison. The researchers compared the 2004 and 2016 iterations of the Survey and found that, overall, people in prison are facing more chronic physical and mental health conditions than they were in 2004.

Additionally, Dr. Lupez and her colleagues measured the effect of prison medical copays on access to specific healthcare services (including pregnancy-related care), access to clinicians for people with chronic physical conditions, and the continuation of medications for mental health. For each state,³ they used our 2017 copay and wage data to categorize each survey participant into one of three categories: no copays, copay amounts less than or equal to one week’s prison wage, and copay amounts greater than one week’s prison wage.⁴ Their results provide further evidence that medical copays limit access to care among the most vulnerable people in the system.

Many people in prison do not receive even the most basic, necessary healthcare

We already know that prison healthcare regularly falls short of the constitutional duty to care for those in custody. While most people in state prison report having seen a healthcare provider at least once since admission, nearly 1 in 5 have gone without a single health-related visit since entering state prison. Accordingly, the authors first examined general access to healthcare among three groups of people in state and federal prisons: people who were pregnant when admitted to prison, people with chronic physical conditions, and people with mental health conditions. They found that even the most basic care — like obstetric exams for pregnant people or any visit with a healthcare provider for people with chronic conditions — is not provided to surprisingly large portions of the affected population.

Treatment for chronic physical conditions. More than 1 in 10 people (14%) with at least one chronic condition in state and federal prisons had not been seen by a clinician since they were incarcerated. Within their first year of imprisonment, more than a fifth of people with chronic conditions (22%) had not yet been seen by a healthcare provider. Chronic diseases — by definition — require ongoing medical attention, and for the 62% people in state and federal prisons⁵ who have them, the lack of consistent, adequate medical treatment can have disastrous and fatal consequences.

Mental healthcare. Among the almost 400,000 people in state and federal prisons with chronic mental health conditions,⁶ one third (33%) had not received any clinical mental health treatment since entering prison. Again, those who were within their first year of incarceration were even more likely to report no treatment: 39% had not yet received any mental health treatment compared to 29% of people incarcerated for more than one year. Similarly, more than 41% of people experiencing severe psychological distress⁷ in state and federal prisons had not received mental health treatment.⁸ And more than one third (34%) of people who had been taking prescription medication for a mental health condition at the time of their offense had not received their medication since entering prison.⁹

Pregnancy-related healthcare. Standard prenatal healthcare for pregnant people involves monthly doctor’s appointments at minimum, as well as screenings, tests, vaccinations, and patient education usually conducted by a perinatal specialist. But a shocking proportion of pregnant people in state prisons did not receive so much as an obstetric examination (9%), see any outside providers or specialists (26%), or any pregnancy-education from a healthcare provider (50%) after entering prison.

Medical copays and fees block access to necessary healthcare

When healthcare needs come up against an arduous and expensive sick call process, people are forced to jump through arbitrary hoops just to see a doctor — or delay or forgo medical care altogether — as their health deteriorates. The researchers found that prison systems with more expensive medical copays (relative to prison wages) limit access to necessary healthcare for incarcerated pregnant people and those with chronic conditions more than prisons with no copays or copays equivalent to or less than one week’s prison wage.

Healthcare in prisons is subpar for almost any medical condition, and chronic physical conditions are often more prevalent behind bars than in the general population. The researchers found that medical copays clearly impact access to healthcare for the more than 500,000 people incarcerated in state and federal prisons who have conditions like heart disease, asthma, kidney disease, and hepatitis C. This is particularly alarming considering many of these conditions require regular medical management or can even be cured.

People with chronic conditions in state prisons where copays exceed a week’s wage are less likely to have seen a healthcare clinician while incarcerated than those in prisons that charge no copays or lower copay amounts. Among people with chronic physical conditions who have been incarcerated for more than one year, 12% of incarcerated people who face more unaffordable copays have not seen a clinician. Meanwhile, in prisons with relatively lower copays or no copays, less than 8% of people with chronic physical conditions have not yet seen a clinician after being incarcerated for more than one year.

Among people incarcerated in state prisons for any amount of time, more unaffordable copays were associated with worse access to the necessary healthcare, like obstetrical examinations for pregnant people and seeing a medical provider for people with chronic medical conditions.

Similarly, pregnant people in state prisons do not receive standard prenatal care and medical copays make this situation worse. Pregnant people in state prisons without medical copays or with lower copays relative to their wages were more likely to have received an obstetrical examination and clinical pregnancy education than those in prisons with copay amounts more than a week’s prison wage.¹⁰

Copay waivers and exemptions. Researchers also identified prison policies granting copay exemptions for some healthcare services for some people: at least 25 state departments of corrections and the federal prison system have copay waivers for chronic conditions, while 13 states have waivers for pregnancy-related care. However, as correctional health expert Dr. Homer Venters explains: “many chronic care problems aren’t detected when a person arrives [at the jail or prison], so to get treatment… requires the sick call process… Many systems have a practice of requiring two or three nursing sick call encounters before a person sees a doctor.”¹¹ In other words, someone who meets the exemption criteria likely will still need to pay copays for the initial two or three nursing sick call visits before clinicians identify them as someone who should be exempt from copays.

It’s worth noting that the researchers repeated their analysis of how copays impact access to healthcare services among people without any reported chronic conditions in state prisons. If the chronic care waivers were working as intended, they reasoned, people who do not have chronic conditions would experience even lower rates of healthcare access compared to people with chronic conditions who have their copays waived. Instead, they found people who do not have chronic conditions appear to face similar rates of healthcare access as those who do, suggesting that these waivers are not routinely and consistently applied in a way that actually promotes healthcare access for the most vulnerable people in prison.

From 2004 to 2016, rates of chronic illness and mental illness increased in state and federal prisons

In addition to finding that higher copays restrict healthcare access, the researchers delved into demographic and health-related changes among the prison population between 2004 and 2016.

Demographics. People in prison in 2016 were more likely to be older; identify as Hispanic, multiracial, or some race other than white or Black;¹² and to have been incarcerated multiple times compared to those incarcerated in 2004. These are groups of people that already face significant barriers to healthcare and often have poor health outcomes, even outside of prison. Older adults are more likely to have more medical conditions, which are already more prevalent behind bars. Outside of prison, Hispanic adults report less access to regular medical care and higher rates of uninsurance, while Black, Hispanic, and American Indian or Alaska Native people are less likely to receive necessary mental healthcare and have faced larger declines in life expectancy than their white counterparts. Ultimately, multiple periods of incarceration can negatively affect health status, and experiencing years of limited resources, inaccessibility, and understaffing in prison healthcare creates a situation in which each year spent in prison takes two years off of an individual’s life expectancy.

Chronic physical conditions. As we discussed in our 2021 report, Chronic Punishment: The unmet health needs of people in state prisons, chronic physical conditions and infectious diseases are more prevalent in prisons than among the nation at large. This newest analysis from Dr. Lupez and her colleagues reveals that these chronic conditions are more common in state and federal prisons than they were in 2004. For example, the percentage of the prison population facing at least one chronic condition increased from 56% in 2004 to 62% in 2016, and the percentage facing three or more chronic conditions increased from 12% to 15%. In other words, a larger portion of the prison population is facing chronic illness, and in many cases multiple chronic illnesses.

Mental health conditions. The researchers also found that mental health conditions were more common in 2016 than in 2004. The Bureau of Justice Statistics’ Survey offers data on the proportion of the state and federal prison population who have ever had depression, anxiety, psychotic disorders, manic disorders, post-traumatic stress disorder (PTSD), and personality disorders. The prevalence of every one of these conditions increased in the prison population between 2004 and 2016: in 2004, nearly a quarter of the prison population reported one mental health condition and by 2016, this had increased to more than 40% of people in prison.¹³ Not only are mental health conditions more common, but more people are facing chronic mental health conditions in particular: the proportion of people in prison with chronic mental health conditions practically doubled from 2004 to 2016 (14% to 27%).

This study ultimately underscores the urgency of ending medical copays and healthcare fees in prisons and jails, and provides evidence that unaffordable copays put necessary medical care out of reach for far too many incarcerated people. Generally speaking, this study shows that incarcerated people are sicker than ever, the healthcare options available to them are grossly inadequate, and people are not getting the constitutionally-guaranteed care that they need — regardless of whether prisons charge copays or not.

As a final note, we are gratified whenever our work is repurposed by other researchers like this — it’s why we publish our detailed appendix tables and other data collections, many of which can be found in our Data Toolbox. If you are a researcher using our data, we encourage you to reach out with any questions and to let us know how you are using our work.