What do we know about the spread — and toll — of the coronavirus in state prisons?

Wide variation in the rates of reported infections and deaths in state prisons reflect the uneven spread of the virus and disparate responses by state criminal justice systems.

by Emily Widra, June 24, 2020

We’re frequently asked about the number of infections and deaths in prisons from the coronavirus that causes COVID-19. The UCLA COVID-19 Behind Bars Data Project is helpfully collecting all of the official reports of infections and deaths into a single Google Sheet. But state prison systems are vastly different sizes, so it’s impossible to make direct comparisons using only the counts provided in the UCLA spreadsheet. So we’ve calculated the rates of infection and deaths in state prison systems, which allow us to compare the impact of the pandemic across all 50 states’ prison populations. Our findings, presented in the table below, suggest three possible – and troubling – conclusions:

1. Some states may not be properly testing or may not be accurately reporting infections and deaths;
2. People incarcerated in different states may face very different odds of infection and death from COVID-19, depending on how their state responds to the crisis; and/or
3. Some states have been lucky in that the virus has been slow to reach their facilities. But, as we’ve seen with the uneven spread of the pandemic across states, this likely means the full force of the virus has yet to hit these facilities, so they need to redouble their efforts at population reduction and other preparations.

An important disclaimer: It would be a mistake to use this table as an indication of “how good a job” any state has done in responding to the threat of the pandemic behind bars. No state has even come close to adequately protecting its incarcerated people. Certainly, some states have done more than others to release more medically vulnerable people, and some states’ correctional healthcare systems are less terrible than others, which may increase the odds of surviving COVID-19 in some prisons. We also acknowledge that some states have taken small steps to reduce the population density of their facilities; still, none have done so on a scale that would make social distancing possible or otherwise slow the spread of the virus.

We are skeptical of the officially reported data for several reasons, but especially because of the wide variation in the “case-fatality rates” – that is, the number of deaths relative to the number of infections reported by each state. Why does Tennessee report 785 infections for every death and Alabama reports 10 infections for every death? Both states have similarly-sized prison populations and both states report 4 confirmed COVID-19 deaths among incarcerated people. But it would appear that Tennessee is doing a lot of testing and Alabama is not.

Comprehensive and frequent testing offers the prison system – and the public – a clearer view of the virus spread. If correctional facilities are only testing people with extreme symptoms, we gain very little information about what to expect and how to protect vulnerable lives.

The number of reported deaths may also reflect undercounts for other reasons. For example, unless a state tests everyone who dies in custody, it is likely excluding a number of deaths that were caused by COVID-19 but were not confirmed by testing. Especially where states are severely under-testing, people will be dying of COVID-19 but left out of the official death counts because they were never tested. Similarly, it would be appropriate to classify people who “recover” from COVID-19, but remain weakened and then die of another cause, as COVID-19 deaths. We have not heard of any state prison systems that are counting deaths other than those confirmed by tests, however.

The data, imperfect as it is, tells us that people incarcerated in different states may face vastly different odds of infection and death from COVID-19. The inaction of state prison systems is unconscionable given that, for months, the largest outbreaks of the coronavirus have been in correctional facilities. States put their residents at grave risk by failing to prevent the spread of the virus in the “petri dishes” that are prisons and jails. They should be using every tool available to ramp up efforts to protect incarcerated people, which includes widespread testing and using testing data to target resources to the people and places most at risk.

Table sources

• COVID deaths in prisons: UCLA Law School’s Covid-19 Behind Bars Data Project
• COVID confirmed cases in prisons: UCLA Law School’s Covid-19 Behind Bars Data Project
• Number of tests given: Covid Prison Data Table 2, as of June 19, 2020
• Prison population: Vera Institute of Justice’s People in Prison 2019, supplemented by correspondence between the Prison Policy Initiative and individual state Departments of Correction. All population counts are from May 2020 except for Maryland’s, which is from December 31, 2019.
• Deaths per 10,000 incarcerated people: Calculated by dividing the number of COVID deaths by the prison population, then multiplying by 10,000
• Infections per 10,000 incarcerated people: Calculated by dividing the number of COVID cases by the prison population, then multiplying by 10,000
• Deaths per confirmed case (“case fatality rate”): Calculated by dividing the number of deaths by the number of COVID cases, then multiplying by 100. For more information about case fatality rates and factors that affect the accuracy of these rates, see this New York Times article. The wide variation seen in the prison data suggests that these rates may reflect differences in testing more than differences in severity or treatment of the disease across different states.

Massachusetts should stop “committing” people to prisons and jails for drug treatment

The Prison Policy Initiative signs on to a letter urging Massachusetts state lawmakers to stop jailing people who need substance use treatment.

by Jenny Landon, June 23, 2020

In the midst of an uprising against police violence and racism, communities across the country are asking a simple question: why are police and jails used to treat social problems? Wouldn’t mental illness, substance use, homelessness, and poverty be better handled within the community, and without the threat of incarceration?

In Massachusetts, men who have substance use disorder can be put in jail or prison when they are committed for drug treatment (“committed” meaning involuntarily taken into state custody). This is not a rare occurance: in 2018, courts committed over 5,700 people under “Section 35.” Nearly two-thirds of those evaluated for commitment were men, and nearly a quarter were homeless. These men have not committed a crime, but wind up in jail nonetheless. As we know, jails have an abysmal track record when it comes to health care—and jail time is no substitute for substance use treatment.

Massachusetts is the last state in the country that locks people up when they’re committed for substance use, but now, the state’s Joint Committee on Health Care Financing is considering advancing a bill that would end this practice. We signed on to a letter written by Prisoners’ Legal Services of Massachusetts that supports H.4531, the bill that would ban the use of incarceration for men who are committed for drug treatment.

It is past time for Massachusetts to stop using the criminal justice system as a band-aid for social problems, and to stop punishing people with medical conditions. A good place to start would be to stop locking up people who need drug treatment.

Principles for using information technology in response to COVID-19

Joining over 80 partner organizations, the Prison Policy Initiative signs on to a set of principles calling for the protection of privacy and democracy as the technology sector responds to the pandemic.

by Jenny Landon, June 12, 2020

As the United States begins to consider strategies for reopening, we signed on to a set of principles designed to guide policymakers, businesses, and public health officials in the use of information technology to help quell the virus.

Too often, information technology is weaponized against communities of color, undocumented people, and other marginalized communities to track and monitor their whereabouts and behaviors.

In the face of the COVID-19 pandemic, it is heartening to see the tech world step up with potential solutions for containment. However, plans to reopen must not harm those already suffering disproportionately from the health and economic fallout of the virus.

The letter reads, in part:

No COVID-19 response technology has been proven trustworthy and effective for combating the pandemic in the United States. The principles state that use of such technology must only be allowed if it is:

• Nondiscriminatory
• Used Exclusively for Public Health Purposes
• Effective
• Voluntary
• Secure
• Accountable

For more information, check out the full text of the principles, as well as the list co-signing organizations.

To learn more about how information technology negatively impacts marginalized communities and democracy, you can read Stephen Raher’s book review Automated Justice: A Review of Weapons of Math Destruction.

A legislative guide for winnable, high-impact criminal justice reforms

We list some high-impact policy ideas for state legislators looking to reform their criminal justice system without making it bigger.

by Wendy Sawyer and Peter Wagner, June 10, 2020

This report has been updated with a new version for 2022.

Table of Contents

End unnecessary jail detention for people awaiting trial and for low-level offenses (2 recommendations)

Shorten excessive prison sentences and improve release processes (2 recommendations)

Sentence fewer people to incarceration and make sentences shorter (3 recommendations)

Change the financial incentives that fuel punitive justice system responses (2 recommendations)

Stop probation and parole systems from fueling incarceration (4 recommendations)

Keep criminal justice, juvenile justice, and immigration processes separate (2 recommendations)

Give all communities equal voice in how our justice system works
(2 recommendations)

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory. We’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system. We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own. The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful. For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states. But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

For interesting reports that can help you make the case for criminal justice reform in your state, see our Publications. For our work on specific problems, see our Issues page. And for data about your state, see our State Profiles.

How inflation makes your state’s criminal justice system harsher today than it was yesterday

The case for increasing the monetary level for felony theft.

by Tiana Herring, June 10, 2020

Each state sets a statutory definition of which thefts are felonies (punishable by longer sentences in prison) and which are misdemeanors (punishable by shorter sentences in jail). But in many states, the dollar amount separating felony theft from misdemeanor theft has not been increased in years, even though inflation makes the older laws more punitive each year.

These limits vary from New Jersey (a $200 theft is a fourth-degree felony) to Texas and Wisconsin where a theft must be worth $2,500 before you can get a state prison sentence. New Jersey’s limit is so low because it is one of the oldest in the country — it remains unchanged from when it was originally enacted in 1978.¹ Only one state — Alaska — automatically adjusts the felony theft threshold with inflation.² The range between the states is tremendous:

Updating felony theft statutes is one simple way to reduce the number of people serving time in prison for low-level offenses. Making more minor thefts into misdemeanors will also spare more people from the often lifelong collateral consequences of felony convictions that can limit their access to public housing, welfare benefits, and even voting.

Decreasing the punishment for minor thefts is unlikely to encourage more thefts. As Pew Charitable Trusts found in their invaluable 2018 report, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, South Carolina’s property crime rates actually continued to fall years after the threshold increased. This isn’t unique to South Carolina, either. Pew’s article also included a brief comparison of crime rates in all 50 states, reporting that between 2000 and 2012, the 30 states that increased their thresholds had property crime rates similar to the 20 states that had not yet updated their laws.

Appendix table

Not just “a few bad apples”: U.S. police kill civilians at much higher rates than other countries

Police violence is a systemic problem in the U.S., not simply incidental, and it happens on a scale far greater than other wealthy nations.

by Alexi Jones and Wendy Sawyer, June 5, 2020

There is no question that the number of police killings of civilians in the U.S. – who are disproportionately Black and other people of color – are the result of policies and practices that enable and even encourage police violence. Compared to police in other wealthy democracies, American police kill civilians at incredibly high rates:

The chart above compares the annual rates of police killings in each country, accounting for differences in population size. This is the most apples-to-apples comparison we can make with this data.¹ But the total number of deaths at the hands of police is also worth seeing in comparison with other countries:

The sources for these charts are listed in the table below. For more statistics on police, arrests, and incarceration in the United States, see these other pages:

• Ten key facts about policing
• Policing Women: Race and gender disparities in police stops, searches, and use of force
• Arrest, Release, Repeat: How police and jails are misused to respond to social problems
• Visualizing the racial disparities in mass incarceration
• Mass incarceration state profiles

Ten key facts about policing: Highlights from our work

Police disproportionately target Black and other marginalized people in stops, arrests, and use of force; and are increasingly called upon to respond to problems, such as homelessness, that are unrelated to public safety.

by Wendy Sawyer, June 5, 2020

Many of the worst features of mass incarceration — such as racial disparities in prisons — can be traced back to policing. Our research on the policies that impact justice-involved and incarcerated people therefore often intersects with policing issues. Now, at a time when police practices, budgets, and roles in society are at the center of the national conversation about criminal justice, we have compiled our key work related to policing (and our discussions of other researchers’ work) in one briefing.

1. Nearly 1 million people in the U.S. experience the threat or use of force by police annually, and they are disproportionately Black and Latinx.

The scale of police use of force is an important fact in and of itself, made more troubling by the racial disparities evident in police stops and use of force. In a national survey, Black respondents were more likely to be stopped by police than white or Latinx respondents, and both Black and Latinx respondents were more likely to be stopped multiple times over the course of a year than white respondents. The survey also showed that when they initiated a stop, police were twice as likely to threaten or use force against Black and Latinx respondents than whites. These disparate experiences have predictable effects on public trust in police: white respondents were more likely to view police use of force as legitimate and more likely to seek help from police than were people of color.

2. Over 4.9 million people are arrested each year.

In all, there are over 10 million arrests in the U.S. each year, but many people are arrested multiple times per year. From responses to a national survey, we estimate that at least 4.9 million unique individuals are arrested and jailed each year, and at least one in four of those individuals are arrested more than once in the same year. The massive scale of these police responses means that there are millions of opportunities each year for police-civilian encounters to turn violent or fatal, and an estimated 77 million people are now saddled with a criminal record.

3. Most policing has little to do with real threats to public safety: the vast majority of arrests are for low-level offenses. Only 5% of all arrests are for serious violent offenses.

The “massive misdemeanor system” in the U.S. is an important but overlooked contributor to overcriminalization and mass incarceration. For behaviors as benign as jaywalking, sitting on a sidewalk, or petty theft, an estimated 13 million misdemeanor charges sweep droves of Americans into the criminal justice system each year (and that’s excluding civil violations and speeding). And while misdemeanor charges may sound like small potatoes, they carry serious financial, personal, and social costs, especially for defendants but also for broader society, which finances the enforcement of these minor violations, the processing of these court cases, and all of the unnecessary incarceration that comes with them.

4. Policing criminal law violations costs taxpayers over $63 billion each year.

Policing costs the public $126.4 billion per year, nationwide. In our report about the fiscal costs of mass incarceration to the government and families of justice-involved people, we used only half of that figure – $63.2 billion – because only about half of police work is devoted to criminal law enforcement. The other half is spent on things unrelated to criminal law violations, such as traffic control, responding to civil disputes, and administration. Even at half the total cost of policing, $63.2 billion represents a huge public investment in criminalization. As many Americans are questioning the role of police in society, they should know just how much money is available to redirect to more humane community-based responses to social problems.

5. People who are Black and/or poor are more likely to be arrested, and to be arrested repeatedly.

People who are arrested and jailed are often among the most socially and economically marginalized in society. The overrepresentation of Black men and women among people who are arrested is largely reflective of persistent residential segregation and racial profiling, which subject Black individuals and communities to greater surveillance and increased likelihood of police stops and searches. Poverty, unemployment, and educational exclusion are also factors strongly correlated with likelihood of arrest.

6. People with mental illnesses or substance use disorders are also more likely to be arrested, and to be arrested repeatedly.

People who are arrested often have serious health needs that cannot and should not be addressed through policing or incarceration. Even a few days in jail can be devastating for people with serious mental health and medical needs, as they are cut off from their medications, support systems, and regular healthcare providers. Even worse, many people are arrested in the midst of a health crisis, such as mental distress or substance use withdrawal. History has shown that jails are unable to provide effective mental health and medical care to incarcerated people, and too often, jailing people with serious health problems has lethal consequences.

7. Women make up a growing share of arrests and report much more use of force than they did 20 years ago, with Black women most likely to be targeted.

The experiences of women and girls – especially Black women and other women of color – are often lost in the national conversation about policing. But of course women, too, are subject to racial profiling, use of excessive force, and any number of violations of their rights and dignity by police. Our analysis of national data shows that women now make up over a quarter of all arrests, with an estimated 2.8 million arrests in 2018. At the same time, the use of force has become much more common among women: the number of women who experienced police use of force (about 250,000) was 3.5 times greater in 2015 compared to 1999.

A closer examination of the data also reveals racial disparities in police stops, arrests, and use of force involving women. Black women are more likely than white or Latina women to be stopped while driving, and Black women are arrested 3 times as often as white women and twice as often as Latinas during police stops. Black women also report experiencing police use of force at higher rates than white or Latina women. With an estimated 12 million women per year experiencing police-initiated encounters – many of which involve searches, use of force, and other traumatizing experiences – the harms of policing to women demand more attention.

8. Disabled people represent a disproportionate number of those stopped, arrested, and killed by police.

As the ACLU of Southern California and the Bazelon Center for Mental Health Law report, many criminalized behaviors targeted by law enforcement are related to disability: substance use (often used as self-medication for pain and other symptoms), homelessness (an estimated 78% of people in shelters have a disability), and atypical reactions to social cues, which may be interpreted as vaguely defined crimes such as “disorderly conduct.” The Ruderman Foundation reports that in police use-of-force incidents, the media and police often blame disabled people for their own victimization, especially by characterizing disabled people of color as “threatening” and “refusing to comply.”

The frequent use of police as first responders to individuals in crisis only compounds these problems. Too often, officers who are called to help individuals get medical treatment end up shooting them instead. Public funds should be redirected to community health providers to handle mental and physical health crises, rather than trying to meet this critical need with militarized police forces, who sometimes receive little training on crisis response or de-escalation.

9. Police treat Black Americans with less respect.

A Stanford University analysis of police bodycam footage from nearly 1,000 vehicle stops substantiates what Black Americans already know: police officers treat Black people differently than they do whites. This study, discussed in our briefing, finds that “police officers speak significantly less respectfully to black than to white community members in everyday traffic stops,” and that this happens irrespective of officer race, severity of the infraction, and outcome of the stop. These findings lend important context to the racial disparities observed in police encounters.

10. State and federal law enforcement practices target poor Black and Latinx residents.

Separate reports focusing on policing in Chicago highlighted two law enforcement strategies justified as ways to protect communities – drug stings and asset forfeiture – that facilitate widespread targeting of low-income communities of color. Federal agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) arranged drug stings that set up fake drug stash houses and lured people into committing new crimes. But they didn’t single out just anyone: At least 91% of the time, agents targeted Black and Latinx people. Columbia professor Jeffrey Fagan’s analysis found no statistical explanation for this except disparate racial treatment. A District Court judge described these cases as “ensnaring chronically unemployed individuals from poverty-ridden areas.”

Meanwhile, Cook County police conducted 23,000 seizures of assets connected to civil and criminal cases, a practice that is supposed to disrupt major illegal drug trades. But an analysis by Reason and the Lucy Parsons Lab showed that police officers were often taking petty property and the lowest-value seizures (valued under $100) were clustered in predominantly poor and Black communities on Chicago’s South and West Sides. These examples illustrate that at every level, the “war on drugs” functions as a war on communities of color.

For more information, the reports and briefings summarized here – and more – can be found on our Policing Issue page.

Acknowledgements: This briefing was compiled by Wendy Sawyer based on previously published writing by current staffers Wanda Bertram, Alexi Jones, Wendy Sawyer, and by Policy Initiative alumns Joshua Aiken, Alex Clark, Lucius Couloute, and Elliot Oberholtzer.