Prison Policy Initiative and allies oppose new banking rule

Trump administration proposes to prohibit banks from considering morality when making loans to the prison industry. We say no.

by Stephen Raher, December 31, 2020

Why do bank regulators care about the private prison industry? Most people would probably respond “they don’t,” and that answer would have been correct until a few months ago when the Office of the Comptroller of the Currency (“OCC”) proposed a troublesome new rule on bank lending.

In recent years, numerous social justice movements have used public education and advocacy to successfully persuade banks to stop financing certain industries like fossil fuel extraction, gunmakers, and private prison companies. In response to these generally beneficial movements, the OCC (an obscure but powerful federal agency) has proposed a rule that would prohibit federally chartered banks from considering non-quantitative aspects of a borrower’s business when making lending decisions. In other words, banks could no longer just say “we have moral or ethical problems with a certain industry and will not lend to such companies anymore.” An excellent general background and commentary on the rule can be found in this blog post by Prof. Adam Levitin (Georgetown Law School).

To be sure, private prisons are an unfortunate development, but the Prison Policy Initiative generally agrees with the assessment of Prof. Ruth Wilson Gilmore that the private prison industry receives disproportionate attention. Like Prof. Gilmore, we agree that private prisons are bad actors, but they do not drive policy and they represent a small sliver of the enormous system of mass incarceration. Still, the OCC’s proposed rule bothers us. We may not prioritize campaigns aimed at the private prison industry, but if our allies want to undertake that work, they should be able to. Plus, some of those campaigns have been successful, and those victories benefit everyone by chipping away at an indefensible and immoral industry.

So, we decided to speak up. On December 30, joined by a great group of allies (American Friends Service Committee, Beneficial State Foundation, Families Belong Together, Human Rights Defense Center, In the Public Interest, Make the Road New York, MomsRising, Presente.org, and Worth Rises), we submitted comments in opposition to the proposed rule. With the imminent change in presidential administration, we are hopeful that this bad idea can nipped in the bud.

Stimulus, round 2: Incarcerated people will be eligible for new round of payments

At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

by Stephen Raher, December 30, 2020

In the wake of the recently passed stimulus bill, many Americans are complaining about the paltry direct payments of $600. Without detracting from Congress’s failure to support the millions of people who need help, it is worth pausing to acknowledge one unexpected victory in the bill: It contains no prohibition on stimulus payments for incarcerated people.¹

The previous stimulus bill, passed in March, took some people by surprise by not making incarcerated people ineligible for direct cash payments. The IRS made an ill-advised (not to mention unauthorized) attempt to exclude incarcerated people, but this policy was slapped down by the federal courts. As we wrote previously, because Congress did not exclude people in prison or jail, the IRS had no choice but to issue the payments to incarcerated people who otherwise qualified. Others who made this same argument ultimately prevailed in court and incarcerated people began to receive stimulus checks.

In July, when Congress first started to consider a subsequent round of stimulus, the Senate Finance Committee proposed legislative language that would exclude incarcerated people from receiving funds (both going forward and retroactively). The fact that no such language appears in the bill passed in December suggests that this issue was probably the subject of actual negotiation.

It’s a good thing that Congress stuck to the policy of including incarcerated people in the pool of eligible recipients. Even before the pandemic, day-to-day life in prison and jail was getting expensive, with commissary charges for basic food and hygiene items, and increasingly common pay-to-play e-book and music programs. But the COVID-19 crisis has brought communications costs (phone, video, and electronic messaging) into sharp contrast. In the many facilities that have suspended in-person visits, phone and video are now essential services (which come with a price tag). When incarcerated people lack the money needed to pay for basic health and communications items, the financial burden typically falls on their loved ones on the outside who may have to sacrifice basic needs to support family members in prison.

The second round of stimulus payments will help people pay for basic necessities in prison or jail, and perhaps begin saving to cover expenses upon release from custody. At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

Prisons shouldn’t be charging medical co-pays – especially during a pandemic

Our December survey of medical co-pay policies shows that some states are reinstating medical co-pays as COVID-19 continues to spread in prisons.

by Tiana Herring, December 21, 2020

This briefing has been updated with updated data in February 2022.

Despite a record number of new COVID-19 cases in prisons this month, some state departments of correction are already starting to roll back necessary suspensions of medical co-pays. Prior to the pandemic, most prison systems charged incarcerated people between $2 and $5 for each medical appointment — a fee that can make attaining medical care burdensome or impossible. In March, we found that many states had relaxed these policies in response to the pandemic, either suspending all medical co-pays, or suspending those for respiratory or flu-like symptoms. But in a follow-up survey of medical co-pay policies, we found that since March, three states have made their policies more restrictive in the middle of the pandemic.

Arkansas, Idaho, and Minnesota had previously suspended all co-pays as of March, but have since reinstated co-pays for non-flu-like symptoms. They are now among 29 states that currently suspend co-pays only for visits involving respiratory, flu-related, or COVID-19 symptoms — a policy that discourages many from seeking treatment. Even worse, Nevada has continued to charge co-pays throughout the pandemic, regardless of symptoms.

Meanwhile, three states have improved their policies since March: New Jersey has suspended all medical co-pays, and Delaware and Hawaii suspended co-pays for those with flu-like symptoms.

Most states are still charging medical co‑pays in prisons
despite the ongoing pandemic

Before the pandemic prompted these suspensions, all but 11 states charged medical co-pays. While a $2 to $5 co-pay may not seem like much to a “free world” worker, unconscionably low wages in prisons make even the lower medical co-pays entirely too expensive. Because incarcerated people typically earn 14 to 63 cents per hour, these charges are the equivalent of charging a free-world worker $200 or $500 for a medical visit.

Currently, most states are suspending co-pays for flu-like or respiratory symptoms. But this is not enough to ensure that people are comfortable seeking treatment, and thereby preventing the spread of the virus. As we’ve seen over the course of the pandemic, not all COVID-19 symptoms fall within these vague categories – and many people don’t display symptoms at all. And some states, such as Indiana, have implemented policies that charge co-pays to those who “disingenuously” report symptoms. Policies like these could lead people to hold off on seeking care until their symptoms become more severe. What’s more, it’s likely harder than ever for many incarcerated people to afford medical copays, due to possible loss of paid work for themselves and their loved ones.

Prisons should instead enact policies that mirror the outside world, where people are encouraged to get tested often and carefully monitor their symptoms to prevent outbreaks. Suspending medical co-pays for everyone for the duration of the pandemic – or better yet, beyond the pandemic, as 11 states and D.C. have already done – is a necessary step departments of corrections should take to attempt to stop the spread of COVID-19 in prisons.

Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now?

As states mandate reducing the capacity of public spaces to slow the spread of COVID-19, we collect the data to show just how overcrowded almost every state prison system still is.

by Emily Widra, December 21, 2020

Before the pandemic, nine state prison systems and the BOP were operating at 100% capacity or more. These prison systems were holding more people than their facilities were designed to house. Now, 10 months into the pandemic, we find that there are still far too many people crowded into prisons across the country.¹ Despite the ongoing pandemic, and efforts to reduce the number of people behind bars, we calculated that 41 states are currently operating at 75% or more of their capacity, with at least nine of those state prison systems and the federal Bureau of Prisons are still operating at more than 100%. Only one state — Maine — has a current prison population below 50% of their capacity.²

Prison overcrowding has always been a serious problem, correlated with increased violence, lack of adequate health care, limited programming and educational opportunities, and reduced visitation. But during the current pandemic, overcrowded prisons — and even prisons operating at levels approaching capacity — are more deadly than ever. In a recent study of Texas prison capacity, COVID infection rates, and mortality, researchers found that prisons holding between 94 and 102% of their capacity had higher infection rates and more deaths than prisons operating at 85% of their total capacity, suggesting that a prison’s crowdedness correlates with viral spread.³ This makes sense when we consider that many state and local governments have mandated restaurants, retail spaces, and schools to operate at a reduced capacity to slow the spread of COVID-19 through communities.

Public health and medical experts have recommended decarceration since the beginning of the pandemic, arguing that fewer people behind bars would protect those who remain incarcerated and correctional staff, as well as slow the spread of COVID-19 in surrounding communities. But even as many prison populations slowly decrease in response to the pandemic, there is still not enough space inside most prisons to allow for adequate social distancing or medical isolation and quarantine. Prisons were not designed to address a public health crisis, and even before COVID-19 entered the picture, public health officials knew that correctional and detention settings were breeding grounds for all sorts of communicable diseases.

Throughout the country, states and the federal system have failed to carry out major prison reductions, leaving prisons operating at, close to, or even above their stated capacities. This contributes to deadly outcomes, as close quarters and high rates of preexisting health conditions among incarcerated people exacerbate the crisis behind bars. As a result, our crowded state and federal prisons have a COVID-19 case rate four times higher, and a death rate twice as high as in the general population.

New report shows that mass incarceration led to huge increase in national COVID-19 caseloads

The study provides the first estimates of how prisons and jails led to more coronavirus infections, both inside and outside prisons.

December 15, 2020

Over half a million COVID-19 cases this summer were directly linked to mass incarceration, a new report from the Prison Policy Initiative and Professor Gregory Hooks shows. The study provides the first estimates of how prisons and jails — which are “super spreaders” of the virus — added to COVID-19 caseloads on the county, state, and national levels, including infections of people both inside and outside prisons.

“Our findings leave no doubt that locking up millions of people in this country in close quarters has led to mass sickness and death in 2020, both in and outside of prisons,” said Hooks. “This huge growth in COVID-19 cases isn’t the fault of incarcerated people; it’s the fault of tough-on-crime politicians who insist that mass incarceration is necessary to keep us safe.”

In the study, titled Mass Incarceration, COVID-19, and Community Spread, Hooks compared the population density of incarcerated people in U.S. counties to the growth in COVID-19 cases in those counties over the summer of 2020. To get a more direct measure of community spread across county lines, he also measured the impact on county caseloads from prison and jail populations held in nearby counties located within the same multi-county economic areas. The findings include:

• At the county level: Over the summer of 2020, large prisons and jail populations within nonmetro counties (i.e. rural areas or those with small cities) directly contributed to higher COVID-19 caseloads in those counties.
• At the regional level: COVID-19 caseloads grew much more quickly over the summer among counties in greater economic areas containing large prisons and jails.
• At the national level: Mass incarceration led to more than half a million additional COVID-19 cases nationwide – or about 1 in 8 of all new cases – over the summer, including cases both inside and outside correctional facilities.

The report, written to be accessible to a general audience, includes graphics illustrating the major findings, as well as several tables listing the number of COVID-19 cases attributable to mass incarceration in the most heavily impacted states and economic areas. Additional appendix tables provide estimates of additional cases linked to incarceration for every county, economic area, and state in the U.S.

As the report explains, prisons and jails offer ideal conditions for the transmission of the coronavirus and have had the largest COVID-19 outbreaks in the U.S. on most days in 2020. A team of epidemiologists predicted in April that mass incarceration would lead to hundreds of thousands of additional cases in the U.S. In June, the Prison Policy Initiative released a report with the ACLU showing that states were failing at the one effort likely to prevent such a tragedy: the safe reduction of prison and jail populations. As of mid-November, the Prison Policy Initiative has shown, prison and jail populations are still dangerously high.

“Now that we have the first national numbers showing how prisons and jails sped up the spread of COVID-19, lawmakers need to take action to depopulate these facilities, or we will see even more preventable cases and deaths linked to the conditions in prisons and jails,” said Prison Policy Initiative Research Director Wendy Sawyer, co-author of Mass Incarceration, COVID-19, and Community Spread. “Even though the COVID-19 vaccine is rolling out, it will be months before the virus stops cycling through correctional facilities, and the action states have taken so far has not been enough to slow it down. So far, we’ve seen that too many lawmakers don’t care enough about people in prison to take action on their behalf, but our findings show that failing to reduce prison populations during the pandemic has led to more people outside prison getting sick as well.”

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

Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans

Some states are including correctional facilities in their rollout plans. All states and the BOP should do so - and put incarcerated people near the top of the list.

by Katie Rose Quandt, December 8, 2020

This article has been updated as various states update their vaccination plans. New details have been added for the plans in Colorado, Connecticut, Illinois, Kansas, Maine, Massachusetts, Nevada, Oregon, Pennsylvania, and Wisconsin. Our most recent update was on March 2.

As the approaching rollout of a COVID-19 vaccine brings hope of an eventual end to the pandemic, it also introduces ethical dilemmas. With various groups of Americans at heightened risk of exposure, and others at increased risk of severe cases, who should be vaccinated first?

By any reasonable standard, incarcerated people should rank high on every state’s priority list. The COVID-19 case rate is four times higher in state and federal prisons than in the general population — and twice as deadly. And despite the danger of close quarters and high rates of preexisting health conditions among incarcerated people, prisons and jails have widely failed to reduce their populations enough to prevent the spread of the virus. Since March, at least 227,333 people incarcerated in state and federal prisons have tested positive for COVID-19, and at least 1,671 have died. There have also been at least 56,496 cases and 105 deaths among prison staff.

The federal Bureau of Prisons announced in November that it plans to reserve its early allotments of the vaccinations for staff, not incarcerated people. Curious whether this was indicative of broader policy decisions, we investigated how states are planning to address incarcerated populations and corrections staff in their early rounds of vaccination, which may begin as soon as mid-December. To do so, we looked through all 49 publicly available draft vaccination proposal plans, which states were required to submit this fall using guidelines provided by the Centers for Disease Control (CDC). (A complete plan from Minnesota was not available.)

In the draft proposals, states were encouraged to create three-phased plans for vaccine distribution, structured around availability of the vaccine. (Many states further subdivided the three phases into priority tiers, such as Phase 1A and Phase 1B):

• Phase 1: Potentially Limited COVID-19 Vaccine Doses Available
• Phase 2: Large Number of Doses Available; Supply Likely to Meet Demand
• Phase 3: Likely Sufficient Supply

Our most positive finding is that 40 of the 49 states addressed (or seemed to address) incarcerated people as a priority group at all, in the original plans or in later updates. But in many states, correctional staff are prioritized before incarcerated people (staff were also more likely to receive PPE early in the pandemic).

Missouri, for example, placed corrections staff in Phase 1B, while implying incarcerated people would be in Phase 3, which is also when the state plans to vaccinate “every Missourian who qualifies and needs or wants a COVID-19 vaccine.” The Missouri proposal rationalized this plan by pointing to staff as the likely entry point of the virus into facilities, and claiming that the spread can be controlled inside facilities. “Inmates’ confined nature has been amenable to procedural controls to reduce the likelihood of correctional facility outbreaks,” the report states. “As a result, staff now represent the most likely source of a facility outbreak. Vaccination of corrections staff can vastly reduce this source of potential attacks.” The report did not cite any data or other reports supporting these claims. The Missouri Department of Corrections has reported 36 COVID-19 deaths among its incarcerated population since March, as well as four deaths of staff members.

Furthermore, in a New York Times opinion piece, Emily Bazelon argued that the BOP’s similar prioritization of staff over incarcerated people, especially older detainees, “seems dubious, epidemiologically and ethically, without evidence that staff vaccinations would be enough to stop the spread of infection.”

State plans are often unclear and not specific

It is important to note that many of the states were unclear and unspecific in their plans, making it difficult to determine their intent. For example, many states included a CDC-produced graphic that assigns “critical populations” to Phase 2. Some, but not all, of these states provided further explanation as to how they define “critical populations.” For instance, Illinois’ original plan immediately followed the graphic with an explanation of who falls within “critical populations,” specifically listing, “People who are incarcerated/detained in correctional facilities.” We categorized these states as putting incarcerated people in Phase 2, since the intent was clear. (Illinois has since moved incarcerated populations to Phase 1B.)

Other states were somewhat less clear. Virginia, for example, included the CDC chart without any additional context. Elsewhere in the report, however, incarcerated people were included on a list of critical populations. Although it is not completely clear whether this list can be linked directly to Phase 2 on the graphic (“critical populations” is used in varying contexts throughout the reports), this additional attention to incarcerated people led us to categorize these states as “probably” including incarcerated people in Phase 2.

Other states, however, simply included the graphic without further explanation as to what “critical populations” means in their plans. For example, Kansas included the CDC graphic, but did not specifically mention incarcerated populations as part of a priority group anywhere else in the report. Due to our government’s history of medical mistreatment of incarcerated and detained populations, we did not give these states the benefit of the doubt by assuming they intended to include incarcerated people among “critical populations.” However, when states implement their plans, they certainly should include incarcerated populations in the prioritized “critical populations” category. (And in fact, Kansas later updated its plan to include incarcerated people in Phase 2.)

Similarly, some states were unclear on whether they intended to prioritize corrections staff. The same CDC graphic includes “other essential workers” in Phase 1B. Some states specifically interpreted this to include corrections staff. Other states implied this might include corrections staff, by referring to a document from the Cybersecurity and Infrastructure Security Agency (CISA), which provides an extensive list of who may be considered essential workers (that list includes corrections) — but without mentioning corrections workers specifically in their reports (in these cases, we labeled corrections staff as “Maybe Phase 1B”).

The appendix below includes explanations of how we categorized the states that did not explicitly place incarcerated people and staff into phases. Of course, if our judgement calls are incorrect in some instances, we may have listed a state as “maybe” or “probably” including these groups in a phase, when the state did not intend to assign a phase at all.

Another important point to note is that even among states that were specific, some used phrasing like “persons living in correctional facilities.” While we hope these states intend to prioritize those in jails and detention centers, as well as prisons, we cannot be sure — especially since there is a history of locally-operated jails falling through the cracks in state policy. And some states specifically excluded jails, such as New Mexico, which provided this explanation: “Because of the two-dose requirement, it may be difficult to ensure effective vaccination of facilities where people move in and out frequently such as homeless shelters and county adult detention centers. Two doses could be offered to inmates at state prisons and to adult residents at state and county juvenile justice centers.”

States should prioritize vaccinating those in county jails as well as prisons, both because jails can easily become COVID-19 hotspots, and because this is a way to reach large populations who might otherwise be missed.

Recommendations:

• Incarcerated people and corrections staff should be prioritized for vaccination against COVID-19. States and the BOP should not consider vaccination of staff as sufficient to stop the spread of COVID-19 in correctional facilities.
• Governors and state health officials should resist inevitable pressure to deprioritize incarcerated people. For example, earlier this month, when Colorado Gov. Jared Polis was questioned about his state’s decision to place incarcerated people in Phase 2A, ahead of some other vulnerable groups, he responded: “There’s no way it’s going to go to prisoners before it goes to the people who haven’t committed any crime.” This type of posturing violates the state’s duty to protect the health of people in its care, as well as to slow the spread of the virus in the places where it is poised to spread the fastest.
• Prisons and jails should decarcerate. Since March, public health and medical officials have warned that the only way to protect incarcerated people (and limit the inevitable spread of the virus out of facilities and back into the community) is by drastically decreasing prison and jail populations. Prisons and jails have largely failed on this front.

Appendix: State COVID-19 Vaccination Distribution Plans

The research is clear: Solitary confinement causes long-lasting harm

At the International Symposium on Solitary Confinement, researchers and formerly incarcerated people made it clear that isolation causes severe and permanent damage.

by Tiana Herring, December 8, 2020

On a given day last year, an estimated 55,000 to 62,500 people had spent the previous 15 days in solitary confinement in state and federal prisons, often in cells smaller than a parking space.¹ Correctional officials often defend their frequent use of solitary confinement as an effective means of maintaining order and deterring violence and gang activity. But this reliance on solitary ignores the abundance of studies demonstrating the harmful and often long-lasting effects it wreaks on the human mind and body.

At the International Symposium on Solitary Confinement, sponsored by Thomas Jefferson University in November, researchers and formerly incarcerated people made it clear that any “positive” benefits correctional institutions gain by using solitary confinement are outweighed by the severe and often permanent damages caused by prolonged isolation. Recent studies show that time spent in solitary confinement shortens lives, even after release, and speakers at the International Symposium emphasized various other ways solitary causes irreparable harm.

Solitary confinement goes by many names, including “special housing units,” “administrative segregation,” “disciplinary segregation,” and “restrictive housing,” but the conditions are generally the same: 22 to 24 hours per day spent alone in a small cell.² The practice is widespread in jails, prisons, ICE detention centers, and juvenile facilities, and people are often sent to solitary for vague reasons or minor offenses. Black and Hispanic people, who are already overrepresented in correctional facilities, are further overrepresented in solitary confinement. Solitary isn’t just used for short periods of time, either: many people are confined without human interaction for years, and sometimes even decades.³

Prisons and jails are already inherently harmful, and placing people in solitary confinement adds an extra burden of stress that has been shown to cause permanent changes to people’s brains and personalities. In fact, the part of the brain that plays a major role in memory has been shown to physically shrink after long periods without human interaction. And since humans are naturally social beings, depriving people of the ability to socialize can cause “social pain,” which researchers define as “the feelings of hurt and distress that come from negative social experiences such as social deprivation, exclusion, rejection, or loss.” Social pain affects the brain in the same way as physical pain, and can actually cause more suffering because of humans’ ability to relive social pain months or even years later.

Premature deaths — by suicide, homicide, or opioid overdose — after release from prison are more likely for those that spent any amount of time (even one day) in solitary confinement than those who never did.

The effects of solitary confinement on mental health can be lethal. Even though people in solitary confinement comprise only 6% to 8% of the total prison population, they account for approximately half of those who die by suicide. Relatedly, observation cells in prisons, which are used for suicide watch — often with similar conditions to solitary confinement — are disproportionately filled with transfers from segregation. People often cycle between the two units without receiving adequate professional help to address their underlying mental health concerns.

Even if someone doesn’t enter solitary with a mental health condition, it’s possible for them to develop a specific psychiatric syndrome due to the effects of isolation. Dr. Stuart Grassian, who first identified the syndrome, notes that it is characterized by a progressive inability to tolerate ordinary things, such as the sound of plumbing; hallucinations and illusions; severe panic attacks; difficulties with thinking, concentration, and memory; obsessive, sometimes harmful, thoughts that won’t go away; paranoia; problems with impulse control; and delirium.

Robert King and Jack Morris, who spent a combined 62 years in solitary confinement, underscored many of the above findings at the International Symposium on Solitary Confinement. Mr. King noted that after a while, he lost his interest in communicating and experienced an emotional numbness that led to a loss of basic skills. Even since his release from prison in 2001, Mr. King says he struggles with simple things, including his sense of direction. Research indicates that many problems people develop while in solitary confinement often persist upon their return to the general population or their release to the outside world.

The irreparable damages caused by solitary confinement are unjustifiable, and have led the Union Nations to consider solitary torture when used for longer than 15 consecutive days. But this overwhelming research is often ignored in jails and prisons, where solitary confinement is frequently used as a “solution” to nearly every problem that arises, including disobedience, perceived threats, alleged gang affiliation, and even supposedly for individuals’ own protection. And as prisons continue using lockdowns in response to COVID-19, leaving many people alone or with a cellmate in tight spaces for 24 hours a day, understanding the damaging effects of solitary and changing these practices is more important than ever.

As COVID-19 continues to spread rapidly, state prisons and local jails have failed to mitigate the risk of infection behind bars

COVID infections are rising across the country. So why are we allowing jail populations to rise?

by Emily Widra, December 2, 2020

This article was updated on October 21st, 2021 with more recent jail and prison population data. That version should be used instead of this one.

Since the beginning of the COVID-19 pandemic, the strategy to slowing its spread behind bars was clear: Reduce the number of people in jails and prisons. In March, public health and medical officials were already warning that incarcerated people would be uniquely vulnerable to the spread of the disease and its most serious medical consequences, due to their close quarters and high rates of preexisting health conditions.

And yet, more than eight months after the World Health Organization declared the pandemic, prisons and jails have generally failed to reduce their populations enough to protect the health and lives of those who are incarcerated. While state prison populations have slowly declined from pre-pandemic levels, the pace of these modest reductions has slowed since the spring, even as national infection rates continue to rise. And county jails — which made promising reductions in the spring — have failed to sustain those reforms.

Despite the rising national case rate of COVID-19, the number of people held in 514 county jails across the country has increased over the past four months. This graph contains aggregated data collected by NYU’s Public Safety Lab and updates a graph in our September 10th briefing. This graph includes all jails where the Lab was able to report data on March 10th and for at least 75% of the days in our research period. (The Public Safety Lab is continuing to add more jails to its data collection and data is not available for all facilities for all days.) To see county level data for all 514 jails included in this analysis, see Appendix A. This graph presents the data as 7-day rolling averages, which smooths out most of the variations caused by individual facilities not being reported on particular days. The temporary population drops/increases during the last weeks of May and August, as well as the first week of November, are the result of more facilities than usual not being included in the dataset for various reasons, rather than any known policy changes.

As a result of these failures to sufficiently decarcerate, the early warnings of health experts have come true: the COVID-19 case rate in state and federal prisons is more than four times as high as that of the general public, and the death rate is more than twice as high. The Texas prison system alone has had more COVID-19 cases than in four states and Washington, D.C. combined. And since people who work in prisons and jails regularly return to their communities, correctional facilities are dangerously poised to become incubators for the disease and contribute to rising infection rates in surrounding communities.

Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to reduce jail populations. In a national sample of 514 county jails of varying sizes, most (88%) decreased their populations from March to July, resulting in an average population reduction across all 514 jails of 26%.¹ These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent offenses.”

But now the data tells a different story. Since July, 77% of the jails in our sample had population increases, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned. For example, by mid-April, the Philadelphia city jail population reportedly dropped by more than 17% after city police suspended low-level arrests and judges released “certain nonviolent detainees” jailed for “low-level charges.” But on May 1st — as the pandemic raged on — the Philadelphia police force announced that they would resume arrests for property crimes, effectively reversing the earlier reduction efforts. Similarly, on July 10th, the sheriff of Jefferson County, Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.”² That effort was quickly abandoned when the jail resumed normal admission operations just one week later. The increasing jail populations across the country suggest that after the first wave of responses to COVID-19, many local officials have allowed jail admissions to return to business as usual.

On the other hand, state prison populations have continued to decline, but not quickly or significantly enough to slow the spread of COVID-19. Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and increased health care requirements. For example, although California has reduced the state prison population by about 20% since January, the number of large COVID-19 outbreaks in California state prisons suggests that the population reduction needs to be much more drastic. In fact, as of November 18th, California’s state prisons were still holding more people than they were designed for, at 105% of their design capacity.

Prison population data for 21 states where population data was readily available for January, May, July, August, September, October, and November, either directly from the state Departments of Correction or the Vera Institute of Justice. See our COVID-19 response tracker for more information on many of the most important policy changes that led to these small reductions in some states. For the population data for these 21 states, see Appendix B.
Sharp-eyed readers may wonder if Connecticut and Vermont are showing larger declines than most other states because those two states have “unified” prison and jail systems. However, data from both states show that the bulk of their population reduction is coming from within the “sentenced” portion of their populations. (For the Connecticut data, see the Correctional Facility Population Count Report, and for Vermont, see the daily population reports.)

Early in the pandemic, North Dakota quickly reduced its prison population by 19% between January and May 2020, a trend that continued until the beginning of October. But over the past month this trend reversed and the states’ prison population actually started to increase (by 3% from October 8 to November 19). Now, North Dakota is experiencing the state’s first major outbreaks of COVID-19 in prison. In one facility, the James River Correctional Center, more than half of the incarcerated population had active COVID-19 infections as of November 23rd.

According to a October 2020 report from the National Academies of Science, Engineering, and Medicine, the modest declines in prison populations can be largely attributed to changes in arrests, jail bookings, and court closures — not releases. Despite evidence that large-scale releases do not inherently endanger public safety, states have elected to release people from prison on a mostly case-by-case basis, which the National Academies report describes as “procedurally slow and not well suited to crisis situations.”

Thankfully, some states have recognized the inefficiency of case-by-case releases and the necessity of larger-scale releases. For example, in New Jersey,³ Governor Phil Murphy signed bill S2519 in October, which allowed for the early release of people with less than a year left on their sentences. A few weeks after the bill was signed, more than 2,000 people were released from New Jersey state prisons on November 4th.⁴

Prisons and jails are notoriously dangerous places during a viral outbreak, and continue to be a major source of a large number of infections in the U.S. The COVID-19 death rate in prisons is three times higher than among the general U.S. population, even when adjusted for age and sex (as the prison population is disproportionately young and male). Since the early days of the pandemic, public health professionals, corrections officials, and criminal justice reform advocates have agreed that decarceration is necessary to protect incarcerated people and the community-at-large from COVID-19. Despite this knowledge, state, federal, and local authorities have failed to reduce jail and prison populations on a major scale, which continues to put incarcerated people’s lives at risk — and by extension, the lives of everyone in greater communities where incarcerated people eventually return, and where correctional staff live and work.