It’s all about the incentives: Why a call home from a jail in New York State can cost 7 times more than the same call from the state’s prisons

by Katie Rose Quandt and Andrea Fenster, March 23, 2021

Families with loved ones incarcerated in New York State prisons pay some of the lowest phone fees in the entire country. Meanwhile, those with loved ones in the state’s county jails have some of the highest phone costs. How can this be?

It’s all about the incentives. In 2007, New York State passed progressive legislation requiring contracts between state prisons and private phone companies to be negotiated “for the lowest price to the consumer,” and prohibiting the department of corrections from accepting commissions on phone calls. (Nationwide, the commission-based structure of correctional phone calls is a major factor driving up costs for the consumer.) New York’s legislation, however, does not apply to county and city jails, meaning counties are free to choose the phone company that charges the most and kicks the most revenue back to the jail. As a result of this loophole, the average 15-minute call from a New York jail costs seven times more than an identical call from a state prison.

These exorbitant phone rates cost some the poorest residents of New York State — and a group disproportionately made up of women of color — more than $13 million a year just to talk to their jailed loved ones.¹ The role played by counties in driving up these costs is clearly demonstrated in our new dataset of commission percentages paid by phone companies to New York county jails. We found that the majority of the cost of an average jail phone call — 64 cents on the dollar — is kicked back from the service provider to the county or jail. In some counties, as much as 86% of jail phone call revenue ends up in the pockets of the county government.²

Cost of a 15-minute phone call in New York county jails — and how much more affordable they could be without commissions

These high commissions translate to high costs for families. We found that in 2019, a 15-minute phone call from the average jail in New York was more expensive than the average jail phone call in 43 states. But it doesn’t have to be this way. If individual New York counties pledged to waive the income they earn off the backs of their poorest residents, the cost of a 15-minute phone call would instantly drop significantly. And if the state stepped in with legislation requiring jail phone contracts to be negotiated on the basis of the lowest cost to the consumer (like it already requires of prisons), the rates would go down even further.

In fact, there are several solutions that would reduce phone costs for families of jailed New Yorkers:

1. Individual counties should immediately tell their provider they want to waive their commission and see the cost of phone calls proportionally reduced for the consumer. (This would ultimately benefit the counties themselves. Many people in jails will soon return to their communities, and studies show that maintaining close contact with family members is linked to better post-release outcomes and lower rates of recidivism.)
2. Counties should, in their next contracts, refuse to take a commission, and should negotiate not on the basis of maximizing revenue for the county, but to lower the costs for families. Many contracts in New York counties are expiring in the next few years — some of which will automatically renew unless the county actively seeks a new provider and renegotiates. (See our Expiration Dates appendix for information on when your county’s contract is expiring.)
3. When seeking a new contract, counties should put out separate Requests for Proposals (RFPs) for each service (such as phone calls, electronic messaging, and video visitation), instead of bundling these services together into a single RFP and contract. In fact, New York State should prohibit jails from signing bundled contracts for multiple services because it obscures the provider’s profits and the true cost of the contract. (For more on the harms of bundling see Footnote 2).
4. Counties should consider going one step further and paying the cost of phone calls themselves, therefore making calls free for families. New York City became the first US jurisdiction to pick up the tab on jail calls in 2019.⁴ (This may be less expensive than it sounds. Cities or counties covering the total cost of phone calls can negotiate even lower rates, since the phone companies no longer need to do individualized billing.)
5. New York State should extend its historic legislation that already bans commissions on phone calls in New York State prisons, and requires prison phone contracts to be negotiated for the lowest price to the consumer. Simply closing this loophole and applying the law to jails would save families at least $13 million on their phone bills.

Methodology & Appendices:

This analysis was made possible thanks to detailed public record requests made by George Dahlbender. This collection was supplemented by Andrea Fenster; Worth Rises also generously shared three additional contracts. Finally, although Schenectady and Sullivan counties did not respond to public record requests, we were able to find recent copies of their contracts on Muckrock.com, a nonprofit that helps people and organizations file and share record requests.

In the following four appendix tables, we have highlighted key information from the contracts and other documents that counties provided. We are also providing links to the contracts themselves so that journalists and other advocates can hold the counties accountable:

1. Commissions pocketed by counties for phone, tablet, and video services
2. Which counties have bundled contracts?
3. Where are county kickbacks directed?
4. When does each county’s contract expire?

Appendix 1: Commissions pocketed by counties for phone, tablet, and video services

Appendix 2: Which counties have bundled contracts?

Appendix 3: Where are county kickbacks directed?

Appendix 4: When does each county’s contract expire?

Research roundup: Violent crimes against Black and Latinx people receive less coverage and less justice

We explain the research showing that violent crimes against Black Americans - especially those in poverty - are less likely to be cleared by police and less likely to receive news coverage than similar crimes against white people.

by Katie Rose Quandt and Alexi Jones, March 18, 2021

Of 89 criminal cases recently solved with the growing but controversial use of genetic genealogy databases — all following the highly-publicized arrest of the Golden State Killer in 2018 — just four were crimes perpetrated against a Black victim. Cases solved with genetic genealogy, as a recent Atlantic article notes, “tended to be notorious crimes” that stuck in the public memory, where evidence was maintained for years and news coverage was widespread.

This racial disparity should be surprising — after all, Black people are more likely to be victims of homicide than people of other races, and are in fact more likely to experience violent crime in general.¹ But the lack of “notorious” unsolved crimes involving Black victims is part of a larger American problem: the devaluing of the lives and experiences of Black, indigenous, and other people of color (BIPOC), as evidenced by clear racial disparities in crime victimization.

The research shows that not only are Black Americans – especially those in poverty – disproportionately victims of crime, but that crimes against Black people are less likely to be cleared by police and less likely to receive news coverage than crimes against white people. What’s more, crimes with Black victims are also more likely to be deemed “justifiable” by the courts. In this briefing, we highlight and discuss research findings about those disparities.

Crimes against Black and Latinx people are less likely to be solved

When crimes occur, police are more likely to clear cases in which the victims were white. In a 2018 Washington Post analysis of nearly 50,000 homicides around the country, the authors found that an arrest was made in 63 percent of murders of white victims, compared to 48 percent of those with Latinx victims and 46 percent with Black victims. And within cities throughout the country, the data revealed significant disparities in murder arrest rates between neighborhoods. Low arrest rates in disadvantaged and racially segregated areas both reflect and contribute to broader racial disparities, and as the article notes, “perpetrate cycles of violence in low-arrest areas.”

The journalists note that some of the disparity in arrest rates may stem from the fact that — due to a long history of racist policing — members of comunities of color may be less likely to trust and cooperate with police. An additional factor may be that homicides involving firearms — which are used disproportionately in murders of Black victims — are less likely to be solved, regardless of the race of the victim.² However, these contributing factors do not explain the overall disparate experiences of violent victimization between BIPOC and white Americans.

Disparities in news coverage

Crimes against Black people are also less likely to receive media attention. A 2020 analysis of all news coverage of the 762 homicides in Chicago in 2016 found that where a crime occurred contributed to its perceived newsworthiness. Murders in predominantly Black neighborhoods received less coverage than those in white neighborhoods. What’s more, the authors noted, “Those killed in predominantly Black or Hispanic neighborhoods are also less likely to be discussed as multifaceted, complex people.” To measure this, researchers counted the number of times articles described victims in terms of their roles in the community (such as spouse, grandchild, friend, or volunteer), instead of focusing simply on the details of the crime.

The lack of media attention to crimes involving victims of color may actually explain some of the difference in police clearance rates. News coverage can help make people aware that a crime occurred, lead to information from the public, and keep pressure on police departments. For example, the media and public obsession over certain crimes, dubbed the “Missing White Woman Syndrome,” can mean less attention is given to cases of missing Black people.

Disproportionate use of Stand Your Ground laws

Even when a homicide does lead to an arrest, courts are more likely to deem homicides with Black victims “justified” than when the victims are white.
Since Florida enacted its “Stand Your Ground” law in 2005, allowing people to use lethal force if they believe they are in danger, 27 other states have passed similar statutes (an additional eight are Stand Your Ground states by legal precedent or jury instruction). In a 2015 analysis of all homicide cases in Florida from 2005 to 2013 where “Stand Your Ground” was invoked as a defense, the authors found that, after controlling for other variables, defendants were twice as likely to be convicted if the case involved white victims. Another study, which considered nationwide homicide data from 2005 to 2010, found that 11.4% of homicides with a white perpetrator and a Black victim were ruled justified, compared to 1.2% of cases where a Black person killed a white victim. This disparity existed in both states that did and did not have Stand Your Ground laws, but was greater in states with the laws.

Research shows that the cards are stacked against Black victims of crime. Not only are they more likely to experience crime in the first place, but those crimes are less likely to be publicly covered in the media and solved by police, and more likely to be ruled justified. As the authors of the analysis of homicide news coverage in Chicago noted, “Whereas the loss of White lives is seen as tragic, the loss of Black and Hispanic lives is viewed as normal, acceptable, even inevitable.”

New data on jail populations: The good, the bad, and the ugly

A new BJS report shows that U.S. jails reduced their populations by 25% in the first few months of the pandemic. But even then, the U.S. was still putting more people in local jails than most countries incarcerate in total.

by Alexi Jones and Wendy Sawyer, March 17, 2021

Last week, the Bureau of Justice Statistics released two reports with updates on city and county jail populations nationwide: Jail Inmates in 2019 and Impact of COVID-19 on the Local Jail Population, January-June 2020. After a year of upheaval due to the pandemic, the first report is already out-of-date and mainly useful as a historical document. The second report, however, answers some important questions about the decisions local officials made when the high stakes of jail incarceration – for individual and public health – were put into stark relief by the pandemic. Their decisions, and the resulting jail population changes in the first half of 2020, hold important lessons for ongoing and future decarceration efforts; here we outline some of those lessons – the good, the bad, and the ugly.

The good: Significant drops in jail detention early on, and especially for low-level offenses and among women

First, we saw that local law enforcement, courts, and jails were able to quickly reduce jail populations when they had to. Before the pandemic, jails nationwide held almost 742,000 people on any given day, and over the course of the year, there were 10.3 million jail admissions. But by the end of June 2020, the jail population had dropped by 25%; 185,000 fewer people were held in jails in June 2020 compared to June 2019. Most of that change occurred in the first half of 2020, largely fueled by decreasing admissions and, to a lesser extent, by expedited releases due to the pandemic. In the one-year period ending June 30, 2020, there were 1.67 million fewer jail admissions – a 16% drop compared to the preceding year. Of those who were booked into jails between March 1 and June 30, 2020, 208,500 (almost 9%) received an expedited release in response to COVID-19.

Second, we saw that when pressed, local criminal justice systems did shift toward some of the common-sense changes that reform advocates have long called for (at least temporarily): eliminating unnecessary arrests and incarceration for offenses and violations that don’t threaten public safety, and ending pretrial detention for most, if not all, defendants.

Early in the pandemic, many police departments were encouraged to use arrest as “a tool of last resort,” reducing stops, shifting to citations in lieu of arrest, and adopting other best practices. At the same time, many courts took action to reduce admissions and pretrial detention. For example, Maine state courts vacated all outstanding bench warrants for unpaid court fines and fees and for failure to appear, and California reduced bail to $0 for most low-level offenses. Jail administrators and sheriffs, too, found ways to reduce detention: The Cuyahoga County (Cleveland, Ohio) Jail, for example, stopped admitting people on new misdemeanor charges, except for domestic violence charges.

The BJS Impact of COVID-19 report shows that these local efforts made a difference: The number of people held for misdemeanors dropped by 45% by June 2020 compared to 2019, and the number of people held pretrial dropped by 21% – or about 100,000 people – over the same period. As we have argued before, incarceration is especially counterproductive for people convicted of low-level offenses like misdemeanors, as it cuts people off from their families, housing, and jobs while yielding virtually no benefits to public safety.

Finally, the BJS report shows that these jail population changes also disproportionately benefitted women: The number of women held in local jails decreased by 37% from June 2019 to June 2020, compared to a 23% drop among men. 80% of the women who go to jail are mothers and most of them are primary caretakers of their children. This news is a welcome change from the broader trend of the past few years, in which we have seen increases in women’s jail incarceration while the men’s jail population has fallen.

The bad: Jail reductions didn’t go far enough, and quickly ticked back up

Of course, the Impact of COVID-19 report also reveals some disturbing jail trends during the pandemic. First, local justice systems could and should have done more to further depopulate jails, where social distancing is impossible and the flow of people in and out of facilities puts everyone around them, incarcerated or not, at greater risk. Even after reducing admissions and increasing releases, a significant number of jails were still overcrowded: average jail occupancy rate fell from 81% to 60% from 2019 to 2020, but in June 2020, 1 in 14 jails still held over 100% of their rated capacity.

Furthermore, despite its 25% decline in jail populations, the U.S. jail incarceration rate alone (that is, excluding people held in state and federal prisons) still far exceeds international norms. After cutting jail populations during the early months of the pandemic, the U.S. still locked up more people per capita in jails alone than most countries do in any type of confinement facilities. At the end of June 2020, 167 per 100,000 U.S. residents were held in local jails; that’s still well over the total incarceration rates of peer countries like the U.K., Canada, and France.

It’s easy to see where jail decarceration efforts fell short. In particular, jails could have gone much further in reducing the number of people held pretrial. While it’s good that the number of people held pretrial declined by 21%, 381,000 people were still held pretrial at the end of last June. The percentage of people held in local jails pretrial (69%) was actually higher than at the same time a year before (65% in June 2019). As a reminder, people held pretrial are unconvicted and legally presumed innocent. While some defendants are detained because a court deems them a significant safety or non-appearance risk, many are there simply because they cannot afford to pay cash bail. During normal times pretrial detention has detrimental effects on defendants’ employment, health, housing, financial stability, and family wellbeing, but especially during a pandemic, pretrial detention can also be fatal. For example, two Texas men, aged 64 and 57 (one experiencing homelessness at the time of his arrest), recently died while being held pretrial in the Harris County Jail on $1,000 and $1,500 bonds, respectively. One of them died of COVID-19.

Finally, the BJS report confirms the rebound in jail populations starting in May 2020 that we identified previously using a different data set – indicating that more dramatic population reductions were possible, but efforts were not sustained, with local justice systems only too eager to return to “business as usual.” Jail populations declined by 190,800 (27%) between the end of February and the end of April alone, but in May and June, populations ticked back up by 29,600, essentially undoing over 15% of the cuts achieved before May. This finding is in line with our research showing that jail populations nationwide have been creeping up since late spring. While populations are still lower than they were pre-pandemic, the data suggests the early reforms instituted to mitigate COVID-19 have largely been abandoned. With most people in local jails still unvaccinated, this has put vast numbers of people at enormous and unnecessary risk for COVID-19.

The ugly: Racial disparities in jail incarceration widened during the pandemic

One especially troubling finding in the Impact of COVID-19 report: The decrease in jail populations did nothing to address the glaring racial disparities in jails. In fact, while the total jail population dropped by 25% between June 2019 and June 2020, racial disparities increased over the same period. In June of 2019, Black people were incarcerated in jails at about 3.3 times the rate of white people; a year later, the racial gap had widened so that Black people were jailed at 3.5 times the rate of white people. Moreover, the decrease in white jail incarceration outpaced the decreases among Black, Hispanic, Asian, Native Hawaiian/Pacific Islander, and multi-racial people. For example, the number of white people in jails dropped by almost 28% while the number of Black people in jails fell by only 22%. These findings reflect the dangers of not centering racial justice in decarceration. It is not enough to focus only on “reducing incarceration” – decarceration efforts must also address long-standing racial disparities and should never make the criminal justice system less equitable.

In all, the BJS Impact of COVID-19 report proves that local and state justice systems can quickly and significantly reduce jail populations, as shown by the initial responses to COVID-19 – but it also shows that they could have diverted from jail or released far more people, and far more equitably. Although jail populations dropped significantly at the beginning of the pandemic, these changes did not reduce racial disparities in incarceration, nor did they sufficiently reduce pretrial detention. Even after reducing jail populations, the U.S. jail incarceration rate still greatly exceeds that of our peer countries, and more recent data suggests that jail populations have been increasing steadily since late spring.

Moving forward, justice system authorities should make permanent the strategies that led to the jail reductions achieved during the pandemic, and push themselves to go further now that they have seen what is possible. The number of people jailed for misdemeanors or held pretrial, as well as the number of women in jails, should never return to pre-pandemic levels. Finally, states and counties must take deliberate action to eliminate racial disparities in jails as they take the next steps toward decarceration.

We’ve saved Iowa consumers $1 million per year on jail phone calls — but there’s more work to do to stop exploitation in Iowa & beyond

by Wanda Bertram, March 10, 2021

We’re fighting for fair phone rates for people in jail and their families, and we just picked up a big victory. We pressured officials in Iowa to regulate the prices that predatory jail phone companies are charging. And we won.

Why Iowa? When a federal court said the FCC couldn’t regulate the cost of in-state jail phone calls, we adopted a state-by-state strategy. We’ve focused on places where state law allows regulators to cap phone rates, and where jail phone rates are the worst. Iowa is one of those states: Before our recent victory, jails there charged as much as $14.10 for a 15-minute call.

Now, the state Utilities Board has set a limit on the rates that these companies can force consumers to pay. We calculate that the new rules will save Iowans about $1 million every year. As reporter Erin Jordan explains in the Cedar Rapids Gazette:

The Iowa Utilities Board is forcing companies that provide phone service for county jail inmates to lower rates from as high as $1 a minute to a quarter or less.

Until recently, Bremer County had the highest jail phone rates in the state at $14.10 for a 15-minute call, which included $3.74 for the first minute and 74 cents after. Their service provider, Securus, lowered rates to 21 cents a minute — meaning a 15-minute call now will cost just $3.15.

The Utilities Board has not yet approved Securus’s new tariff, but has instructed the company and other providers to keep rates at 25 cents per minute or less for prepaid calls. The board has so far approved new, lower rates for five companies — Prodigy, Network Communication International Corporation, Combined Public Communications, ICSolutions and Global Tel*Link.

The exorbitant phone rates charged by jail phone companies — and ratcheted up by jails that hope to get a kickback — have caused untold suffering for families, particularly during COVID-19. For example, the Gazette interviewed a mother in Des Moines who said she has to limit the number of times her 4-year-old son can call his father, who is incarcerated.

The squeezing of these families for profit has been going on for years, but during the pandemic and recession (with in-person jail visits suspended) it has hit them harder and caused even more anguish. So even as the Prison Policy Initiative celebrates our victory, we’re pushing Iowa to do more.

Yesterday, we wrote to Governor Kim Reynolds, urging her to work with the Iowa Utilities Board to address the remaining issues of fairness for Iowa consumers, including:

• Rates are still too high. As we wrote in our letter: “During the last year, the Board has unofficially used an informal “rate cap” of roughly 25¢ per minute, based on previous FCC rules imposing interstate rate caps of 21¢ for prepaid calls. However, much has changed since the FCC imposed those interim rate caps in 2013. In October 2020, then-chair of the FCC Ajit Pai announced a new rulemaking to lower interstate rates to 14¢ for calls from prisons, and 16¢ for calls from jails. If the FCC finalizes those changes, then many Iowa carriers would be charging substantially more for in-state calls (up to 25¢) than they could for interstate calls (16¢).”
• Some companies are seizing unused consumer funds from prepaid accounts that should be returned to the families or turned over to the state’s unclaimed property program.
• Five companies are “double dipping” on deposit fees, charging two fees for each credit card transaction.
• At least one company is steering consumers to the most expensive and inefficient way to pay calls: “single calls” that require paying the $3 deposit fee on each and every call.

With at least one county in the U.S. having negotiated jail phone rates down to one cent a minute, it’s clear that companies in Iowa are still charging far more money for a phone call than they need to — so we’re continuing the fight for a better deal for incarcerated Iowans and their families.

Meanwhile, we’re taking our successful Iowa strategy to other states. We’re currently working with a broad coalition of activists and telecom experts who are urging the California Public Utilities Commission to crack down on high jail phone and video-calling rates in that state. The political momentum that we build in these key states will help us put more pressure on the FCC to address continued exploitation in this area. Mass incarceration has created far too many opportunities for companies to get rich at the expense of poor families, and our advocacy won’t stop until that exploitation ends.

Prison Policy Initiative Appoints Five New Board Members in Pursuit of Strategic Growth.

Each will help propel the Prison Policy Initiative with new ideas, new energy and new partnerships.

March 4, 2021

Contact: prisonpolicy.board@gmail.com

(Northampton, MA) – The Prison Policy Initiative, a leading research organization in the field of criminal justice, added five new directors to the board of directors to help foster strategic growth. The new members will serve three-year terms:

1. Sharon Cromwell, Deputy State Director, New York Working Families Party
2. Ed Epping, AD Falck Professor of Art, Emeritus, Williams College
3. Timothy Fisher, Professor of Law and former Dean, University of Connecticut School of Law
4. Leslie M. Smith, IBM Business Development Executive (retired) and Founder / CEO DistancEd. Inc
5. Paul Watterson, Of Counsel, Schulte Roth & Zabel LLP

“The Prison Policy Initiative is proud to welcome these five leaders to our board. Each will help propel the Prison Policy Initiative with new ideas, new energy and new partnerships” said the Board’s President, Elena Lavarreda, NJ Political Director, SEIU 32BJ.

Also welcoming the new members are: Nora V. Demleitner, Director, Professor of Law, Washington and Lee University School of Law, Daniel Kopf, Board Treasurer, Data Editor, San Francisco Chronicle, and Bernadette Rabuy, Board Clerk, Trial Attorney, Homicide/Major Crime Defense Unit, New York County Defender Services.

In January, the Board participated in a two-day retreat where they set their goals for the coming year, including recruiting additional directors to the Board. “We’re looking forward to supporting the Prison Policy Initiative at this critical transition point, as they welcome new senior staff, including a Director of Advocacy and Communications Director, and expand as an organization with staff in several states,” said Leslie M. Smith, one of the new directors and Founder/CEO DistancEd. Inc., a non-profit that trains computer skills to formerly incarcerated people. Another new director, Ed Epping, shared his excitement about the Prison Policy Initiative’s plans, “The Prison Policy Initiative’s insightful data analysis and powerful graphics have long fueled the national movement for criminal justice reform by filling in key messaging and data gaps. We’re looking forward to supporting the Prison Policy Initiative as it begins to have the dedicated staff and capacity to outreach to local, state, and national advocates and support them with our research.”

The Prison Policy Initiative (https://www.prisonpolicy.org/) was co-founded by Peter Wagner in 2001 to document and publicize how mass incarceration punishes our entire society. Since its inception, the Prison Policy Initiative has gained national recognition for compiling and presenting up-to-date information about the criminal justice system that empowers policymakers, journalists, advocates, and the general public to participate in the justice reform movement. The Department of Justice’s National Institute of Corrections, for example, calls one report “required reading for those people striving to reform the correctional system.” Frequently cited in traditional media as a reliable and accessible source on a number of incarceration issues, the Prison Policy Initiative also has an influential social media presence and demonstrated success in guiding and informing public discourse on incarceration policy. You can find a full list of the Prison Policy Initiative’s most prominent successes at prisonpolicy.org/about.html.

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Visualizing the unequal treatment of LGBTQ people in the criminal justice system

LGBTQ people are overrepresented at every stage of our criminal justice system, from juvenile justice to parole.

by Alexi Jones, March 2, 2021

The data is clear: lesbian, gay, bisexual, transgender, and queer (LGBTQ ¹) people are overrepresented at every stage of criminal justice system, starting with juvenile justice system involvement. 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. And while incarcerated, LGBTQ individuals are subject to particularly inhumane conditions and treatment.

For this briefing, we’ve compiled the existing research on LGBTQ involvement and experiences with the criminal justice system, and – where the data did not yet exist – analyzed a recent national data set to fill in the gaps. (Namely, we provide the only national estimates for lesbian, gay, or bisexual arrest rates and community supervision rates that we know of.) We present the findings for each stage of the criminal justice system with available data, and pair them with new graphics illustrating the dramatic disparities in the system related to sexuality and gender identity.

LGBTQ+ youth in the juvenile justice system

For LGBTQ people, criminal justice involvement often starts at a young age. LGBTQ youth are extremely overrepresented in the juvenile justice system. Researchers estimate that 20% of youth in the juvenile justice system are lesbian, gay, bisexual, questioning, gender nonconforming, or transgender compared with 4-6% of youth in the general population. The same research shows that 40% of girls (who were assigned female at birth) in the juvenile justice system identify as LBQ and/or gender nonconforming.² This overrepresentation is largely due to the obstacles that LGBTQ youth face after fleeing abuse and lack of acceptance at home because of their sexual orientation or gender identity. In order to survive, LGBTQ youth are pushed towards criminalized behaviors such as drug sales, theft, or survival sex, which increase their risk of arrest and confinement.

Lesbian, gay, and bisexual adults in the criminal justice system

Arrest

High rates of criminal justice system contact continue into adulthood. Our analysis of data from the National Survey on Drug Use and Health (NSDUH) reveals that in 2019, gay, lesbian, and bisexual individuals (with an arrest rate of 3,620 per 100,000) were 2.25 times as likely to be arrested in the past twelve months than straight individuals (with an arrest rate of 1,610 per 100,000). This disparity is driven by lesbian and bisexual women, who are 4 times as likely to be arrested than straight women (with an arrest rate of 3,860 per 100,000 compared to 860 per 100,000). Meanwhile, gay and bisexual men are 1.35 times as likely to be arrested than straight men (with a rate of 3,210 arrested per 100,000 compared to 2,380 per 100,000):³

Sentencing and incarceration

Gay, lesbian, and bisexual people are also overrepresented in prisons and jails, especially lesbian and bisexual women. Researchers analyzing the most recent National Inmate Survey found that LGB people are incarcerated at a rate over three times that of the total adult population: 1,882 per 100,000 lesbian, gay, and bisexual people are incarcerated, compared with 612 per 100,000 U.S. residents aged 18 and older. This disparity, again, is largely driven by queer women, as evidenced by the researchers’ breakdown of the data by sex. Compared to the general population, in which 3.6% of men and 3.4% of women identify as gay, lesbian, or bisexual:

• 1 in 20 (5.5%) men in prison identify as gay or bisexual and an additional 3.8% report having had sex with men before arrival at the facility but do not self-identify as gay or bisexual.⁴
• 1 in 3 (33.3%) women in prison identify as lesbian or bisexual and another 8.8% report having sex with women, but do not identify as lesbian or bisexual.
• And almost 1 in 4 (24.6%) women in county and municipal jails identify as lesbian or bisexual, with another 9.3% who report having sex with women, but do not identify as lesbian or bisexual.

The high rates of gay, lesbian, and bisexual people behind bars can in part be attributed to the longer sentences courts impose on them. The same study of the National Inmate Survey data found that in both prisons and jails, lesbian or bisexual women were sentenced to longer periods of incarceration than straight women. And gay and bisexual men were more likely than straight men to have sentences longer than 10 years in prison.

While locked up, gay, lesbian, and bisexual people are subjected to especially inhumane treatment. The National Inmate Survey study showed these “sexual minorities” were more likely to be put in solitary confinement than straight men and women in prisons and jails. In Black and Pink’s survey of 1,118 LGBTQ incarcerated people, a staggering 85% of respondents reported that they had been held in solitary confinement at some point during their sentence. And BIPOC LGBTQ incarcerated people were twice as likely to put in solitary compared to white LGBTQ incarcerated people. This is often done in the name of “protecting” queer individuals behind bars, despite the well documented, long-lasting harms of solitary confinement. And according to the Bureau of Justice Statistics, LGB men and women, as well as men who have sex with men (MSM) and women who have sex with women (WSW), are also 10 times as likely to be sexually victimized by another incarcerated person and 2.6 times as likely to be victimized by staff as heterosexual incarcerated people:

Probation and parole

Finally, gay, lesbian, and bisexual people are overrepresented in the community supervision population. Our analysis of the NSDUH data reveals that people on probation and parole are almost twice as likely to be lesbian, gay, or bisexual than people not on probation and parole – and again, lesbian and bisexual women are especially overrepresented:

• Men on probation are somewhat more likely to be gay or bisexual (5.7%) as men not on probation (4.1%).
• Women on probation are nearly three times as likely to be lesbian or bisexual (16.7%) as women not on probation (6.3%).
• Men on parole are nearly twice as likely to be gay or bisexual (7.9%) as men not on parole (4.1%).
• And women on parole are nearly three times as likely to be lesbian or bisexual (17.6%) as women not on parole (6.4%).

Trans people in the criminal justice system

There is significantly less data available on trans individuals in the criminal justice system. There is no data on transgender arrest rates, but other research shows police are extremely biased against trans people, especially Black trans people. According to the National Center for Transgender Equality and the National Gay and Lesbian Task Force’s Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, nearly half of trans people reported that they do not feel comfortable seeking help from police. 1 in 5 trans people who have had police contact reported that they have been harassed by police, include 38% of Black trans individuals. Six percent reported that police have physically assaulted them and 2% reported that police have sexually assaulted them. Assault rates were even higher for Black trans people, with 15% reporting physical abuse and 7% of them reporting sexual assault by police.

There is also limited data on trans incarceration. The Bureau of Justice Statistics estimates that there are over 3,200 transgender people in U.S. prisons and 1,827 in local jails nationwide. However, this might be an underestimate: In 2020, NBC News found that there were 4,890 transgender people locked up in state prisons alone. And according to data from The National Transgender Discrimination Survey, 1 in 6 trans people have been incarcerated at some point, and nearly half (47%) of Black trans people have been incarcerated:

Once behind bars, trans people face extremely high rates of harassment and physical and sexual assault, are frequently denied routine healthcare, and are at high risk of being sent to solitary confinement. Black and Pink found that 44% of transgender, nonbinary gender, and Two‐Spirit in their sample were denied access to hormones they requested. And as our previous study found, most states do not have policies ensuring basic protections for trans people behind bars. And most prisons in the U.S. currently house transgender people by their sex assigned at birth or according to genital characteristics, not their gender identity, which only increases their risk of harassment and assault.

Conclusion and recommendations

The data consistently shows that LGBTQ people are overrepresented throughout the criminal justice system and that they are subjected to especially harmful conditions behind bars. The Movement Advancement Project and Center for American Progress have explained how discrimination and stigma – like family rejection, poverty, unsafe schools, and employment discrimination – leads to criminalization. They argue that ending the criminalization of LGBTQ people will require broad social and policy changes, including (but not limited to):

• Increasing support for LGTBQ youth within families, schools, communities, and other institutions
• Eliminating discrimination against LGBTQ people in housing, employment, and other realms
• Eliminating homelessness among the LGBTQ population
• Ending the criminalization of sex work
• Enacting drug policy and sentencing reforms

While the central goal should be keeping LGBTQ people out of prison in the first place, far more needs to be done to ensure their safety behind bars, by preventing harassment and sexual assault, improving systems for addressing assault when it occurs, providing access to appropriate housing, health care, and clothing to incarcerated transgender people, and enacting and enforcing non-discrimination policies for staff.