What the Survey of Prison Inmates tells us about trans people in state prison

We look at the experiences of 29 incarcerated transgender people before and during their incarceration.

by Tiana Herring and Emily Widra, March 31, 2022

Nearly 5,000 transgender people are incarcerated in state prisons, but we know very little about their lives before prison or their experiences during incarceration. To add to this limited body of research, we’ve analyzed the Survey of Prison Inmates, 2016 data, released in late 2020, which provides a glimpse into this overrepresented but understudied population. The small number of trans respondents to the Survey of Prison Inmates — only 29 trans people — limits our ability to generalize the data; however, the results from this study are worth exploring given the lack of information about trans people in prisons. Our findings help give greater visibility and understanding about the respondents’ lives, experiences, and challenges before and during their incarceration.

Because of the small sample of 29 trans respondents, we elected to avoid presenting percentages that could lead to misleading generalizations and instead focused on the raw data we could access from the Survey of Prison Inmates.

Here’s a glimpse into what we were able to learn from these 29 individuals:

• Most of the trans people surveyed were people of color, lesbian, gay, or bisexual (LGB), and relatively young.
• The trans people surveyed reported experiencing a variety of adverse experiences before turning 18, such as homelessness, foster care placements, arrest, and incarceration in juvenile facilities.
• Many of the trans people surveyed participated in job training and educational programming, likely to make up for missed opportunities before incarceration (such as educational exclusion and higher risk for unemployment).

We know trans people in prison exist at the intersection of a number of oppressed identities. But beyond that, before this data was released, what we knew about the trans population in prison was limited to the reports published by the National Center for Transgender Equality.¹ The Survey of Prison Inmates data adds to this previous work to provide a clearer picture of the actual lived experiences of incarcerated trans people, giving us a window in which to observe — and subsequently address — what trans people face behind bars and what factors may contribute to the likelihood trans people will come into contact with the criminal legal system.

Demographics of the 29 incarcerated trans people surveyed

The LGBTQ+ population is overrepresented at every stage of the criminal legal system. To look more specifically at the transgender population — which is often not distinguished from the LGB population in available data — we need to look at the demographics and see just how the trans population compares to the general prison population. From what we can tell from this small sample, the trans people surveyed tend to be more diverse in terms of their race/ethnicity and sexual orientation, and skewed younger in age.

Race and ethnicity. The vast majority (23) of the trans people surveyed were people of color. Eight were Hispanic, eight were Black, and seven identified with two or more races. Meanwhile, the overall prison population is about 32% white, 34% Black, 21% Hispanic, and 11% two or more races. This is generally in line with other studies which have found that trans people of color have especially high lifetime rates of incarceration.

Sexual orientation. Additionally, more than half (17) of the incarcerated trans respondents identified as lesbian, gay, bisexual, or something else other than straight. By contrast, 96% of the entire state prison population identifies as straight, according to the Bureau of Justice Statistics’ analysis of the same data.

Age. Most (15) of the incarcerated trans people surveyed were under the age of 34, younger than the average age of 39 of all people held in state prisons nationwide. Evidence suggests that lesbian, gay, bisexual, and trans youth — and especially trans youth of color — are at especially high risk for contact with the criminal legal system compared to the general U.S. population.

Even before incarceration, these trans people were at a disadvantage

In general, people in prison have experienced multiple hardships, such as repeated arrests and low educational attainment, and this remains particularly true for the 29 trans respondents.

Housing and poverty. About a quarter (8) of the trans respondents reported homelessness before age 18 and 13 trans respondents lived in foster care or an institution (like a group home) before age 18. Additionally, 12 of these trans people’s families received welfare/public assistance before they were 18, adding another layer of disadvantage, as children who grow up in poverty are at greater risk for behavioral problems, chronic health issues, and poor academic achievement.

Arrests and juvenile facilities. Most (16) trans people surveyed reported being arrested for the first time when they were 18 or younger, and many (12) spent time in a juvenile facility. Involvement in the criminal legal system at a young age is a fairly common experience for LGBTQ+ youth who are overrepresented in the juvenile justice system. Juvenile detention can be especially dangerous for trans youth who overwhelmingly report feeling unsafe in these facilities, and can be subject to solitary confinement ”for their protection.”

Education. The majority (19) of the trans people surveyed did not finish high school. Other studies have shown that outside of prison, trans students are more likely to report that they may not complete high school. Over 84% of trans students surveyed in 2019 reported feeling unsafe in school because of their gender, and a similar portion of trans students said they had been victimized in school because of their gender and gender expression. Interestingly, three of the trans people who responded to the Survey of Prison Inmates reported graduating from college. While we advise against generalizing this finding too broadly, this is a notable share of the trans respondents (12%). In comparison, only 4% of the entire surveyed state prison population reported earning a college degree.

Employment. Given that so many of the trans respondents were excluded from educational opportunities, it’s unsurprising that they also report low rates of pre-prison employment:² less than half (13) of the trans people surveyed were employed in the month before their arrest.

Past criminal justice history. When asked about past involvement with the criminal legal system, the vast majority of trans people surveyed (23) reported having been on probation before, and over a third (11) had served time in jail at least twice before. Even short stays in jail can have detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. And previous research has shown that trans people are at an elevated risk of unemployment, unstable housing, and being disconnected from their families even without the added layer of criminal justice involvement.

It’s perhaps unsurprising that many of the trans people surveyed reported prior interactions with the criminal legal system given that trans people are criminalized and discriminated against for simply being trans. For example, 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, found that trans people — especially trans people of color — are disproportionately harassed by police and experience high rates of unequal treatment and harassment interacting with government agencies/officials, judges or courts, and legal services clinics.

Experiences while in prison

Trans people outside of prison are less likely to have access to necessary health care and services, and more likely to have negative interactions with police and experience unemployment. The trans respondents to the Survey of Prison Inmates suggest these experiences happen behind bars, too.

Substance use treatment. Previous studies of incarcerated trans people have found that trans people were frequently denied routine healthcare in prison. Data from the Survey of Prison Inmates suggests this may also be true of drug treatment. While there was no direct question about a substance use disorder diagnosis in the survey, a possible proxy measure is whether someone had ever received drug treatment in their lifetime.³ Of the trans people surveyed, about one-third (9) reported ever receiving such treatment. But of those individuals, only 2 had received treatment since admission to prison.

Discipline. Many of the trans people surveyed had received a rule violation in the previous 12 months (12), and half of those individuals (6) had received multiple rule violations over the same time period.⁴ Of those who reported receiving disciplinary action, five reported being confined to their cell, and three were sent to solitary confinement.

Unfortunately, the survey does not ask the important questions about being violated or harassed in prisons. This is of particular concern for trans incarcerated people, given that 35% percent of previously incarcerated trans people surveyed by the National Center for Transgender Equality reported harassment by other incarcerated people and 37% reported being harassed by correctional officers or staff.

Work assignments. Unemployment outside of prison among trans people is a serious concern. Given the reality that trans people are frequently discriminated against by employers, it’s important that they have equal access to employment opportunities when they are incarcerated. At the time of the survey, 18 trans respondents had work assignments. Three trans people surveyed reported that they worked in goods production/correctional industries which tend to pay more than jobs supporting the prison itself (though all prison wages are exceptionally low). Other common jobs for trans people in prisons were hospital/medical duties, working in libraries, barber and beauty shops, and food service, which may be preferred jobs in prisons because of their relevance to post-release job prospects.

Programming. Nearly half of the trans survey respondents reported participating in job training or educational programming opportunities since admission. Given that trans people are often excluded from or pushed out of educational and job opportunities before incarceration, they may be trying to make up for lost opportunities while confined. Incarceration shouldn’t be trans people’s only opportunity to access job training and education, though; they would be better served by having more support at earlier intervention points, and through the rest of their lives.

Transgender people in prisons have multiple, intersecting marginalized identities that make them more vulnerable to traumatic experiences throughout their lives. Although this survey included only 29 trans people, it provides some valuable insights about their needs and will hopefully be the foundation of more in-depth research by government agencies, scholars, and advocacy groups. But the existing research makes it clear that there is an urgent need for trans people to be provided with more support during incarceration, more support after incarceration, and more help avoiding contact with the criminal legal system in the first place.

What does successful bail reform look like? To start, look to Harris County, Texas.

New data supports what advocates have been saying all along: there’s no need to detain so many people pretrial.

by Emily Widra, March 28, 2022

New data is out that supports bail reform efforts to end reliance on cash bail, minimize the number of people charged with misdemeanors and detained pretrial, and improve misdemeanor bail hearings. The recently published findings come from researchers charged with monitoring misdemeanor pretrial reform as it is implemented in Harris County (Houston), Texas.

In the most recent report on Harris County’s pretrial reform, the monitoring team reviewed the results of the changes implemented so far, and generally found that the reforms are successfully addressing some of the most pressing issues with misdemeanor pretrial detention. We highlight some of the most significant results they report about Harris County’s misdemeanor bail reform so far:

This graph is based on data from the Monitoring Pretrial Reform in Harris County, Fourth Report of the Court-Appointed Monitor on March 3, 2022.

Fewer people charged with misdemeanors and detained pretrial

Most people in city and county jails across the country are detained pretrial, meaning they are legally innocent and have not been convicted of the crime they are held for: too often, they are jailed because they cannot afford the cash bail set by the court. In Harris County, the percent of misdemeanor defendants detained pretrial dropped from 47% in 2015 to 22% in 2021. Unfortunately, a number of people are still detained despite the Consent Decree and subsequent reforms, for felony cases or because of “holds” for other agencies such as probation, parole, or immigration. (See report, Figure 12, p. 37)

Fewer misdemeanor convictions

Pretrial detention increases the odds of misdemeanor conviction, largely because detention pressures people to take plea deals when otherwise their case would likely be dismissed or they would be acquitted. By reducing the pretrial detention rate, the percentage of misdemeanor cases resulting in conviction dropped 54% from 2015 to 2020 in Harris County. Conversely, the percentage of misdemeanor cases resulting in dismissal or acquittal increased from 31% to 68% between 2015 and 2020. (See report, Figure 16, p. 43)

Shorter periods of being locked in jails

Because pretrial detention can have disastrous consequences for employment, housing security, and families, reducing the amount of time defendants spend behind bars is crucial. From 2015 to 2021, the percent of misdemeanor defendants detained pretrial in Harris County for 2-7 days dropped 14% and those detained for more than 7 days dropped 12%. Shorter stays became more common, with the share of defendants released within 2 days increasing by 27%. (See report, Table 3, p. 35)

Fewer “failures to appear” and no increase in pretrial arrests for new offenses

Two of the most commonly cited goals of pretrial detention and cash bail are to guarantee court appearances and reduce the likelihood of re-arrest before trial. But in Harris County, reducing the number of people detained pretrial actually decreased the rate at which people either missed their court date or had their bond revoked for some other reason (such as re-arrest) by 5%. Additionally, the share of misdemeanor arrestees with a new case filed within 90 days, 180 days, and 365 days remained unchanged following the reforms, suggesting that pretrial detention does not increase court appearances or reduce the chances of pretrial re-arrest. (See report, Table 6, p. 46 & Figure 14, p. 40)

Millions of dollars saved by the county and defendants

Conservative financial estimates suggest that Harris County saved $6.6 million per year from these changes and that individuals arrested for misdemeanors saved $314 million as a group over the past seven years. (See report, p. 51)

No increase in racial disparities

Unlike some other pretrial reform efforts, there is no evidence that racial disparities widened following the Harris County bail reforms. From 2015 to 2021, 58-59% of misdemeanor defendants in Harris County were Black. The reforms have not yet reduced disparities, either: The share of Black people arrested for misdemeanors in Harris County is still substantially higher than for misdemeanor arrests nationally (26%) and significantly higher than the share of Black residents of Harris County (20%). (See report, Figure 4, p. 26)

These new findings clearly support the bail reform efforts taken so far in Harris County, and should serve to embolden policymakers to take similar action in their own jurisdictions. Unfortunately, Texas officials themselves seem to be ignoring the evidence that bail reform can safely reduce unnecessary jailing. Just before these findings were published, Texas Governor Abbott signed Senate Bill 6 into law, eliminating the possibility for release on personal bond for “violent” crimes (or for those who are charged with any felony, misdemeanor assault, deadly conduct, or gun charges while out on bail for a “violent” offense).¹

While the Harris County reforms focused on misdemeanors and this new law is concerned with felonies, previous research offers a plethora of evidence supporting bail reform at both the misdemeanor and felony levels. In fact, 2017 research from Harris County suggests that pretrial detention can actually increase the odds of future offending and reviews of pretrial reform across the country reveal that increased pretrial release does not result in increased crime. On an individual level, pretrial detention often has detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing. The evidence from Harris County and from other states that have implemented more robust pretrial reforms — like Kentucky and New Jersey — demonstrates that these reforms are common-sense changes that save money, protect individuals and families, and uphold justice and community safety alike.

Updated March 29, 2022 with a graphic that more clearly shows the changes in outcomes for misdemeanor defendants, and with text changes that reflect the relative (percent) change in rates rather than the net change in rates for these outcomes.

Untangling why prison & jail populations dropped early in the pandemic

Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased.

by Wendy Sawyer, March 24, 2022

Sections

Crime and arrests

Jail bookings & pretrial detention

Court slowdowns

Prison admissions

Keeping admssions low

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available. Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic. Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change. In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The reduction in prison admissions, which explains most of the drop in incarceration in the early pandemic, was the effect of temporary changes in arrest and jail practices, court slowdowns, and the refusal of some prisons to accept transfers from jails. However, the data do not allow us to distinguish how much of the drop in admissions was due to a given type of change, such as transfer refusals versus slowdowns.

The changes that have had the most impact on incarceration since the start of the pandemic include:

• 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
• 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
• 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
• A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
• 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

Critically, the one thing that we and other advocates demanded from the very start of the pandemic – intentional, large-scale releases to prevent the spread of COVID-19 in the tight quarters of prisons and jails – did not happen. In the first year of the pandemic, prisons actually released 10% fewer people than they did the year before, and among the twelve states that regularly publish more recent data, that trend held throughout 2021 as well. Only three states (New Jersey, California, and North Carolina) released a significant number of incarcerated people from prisons. Parole boards also approved fewer releases in the first year of the pandemic than the year before.

Changes in crime and arrests

Two major factors contributed to the 24% drop in arrests in 2020: widespread changes in behavior and more limited changes in police practices. The shift away from in-person activities towards remote work, learning, commerce, and social contact represented a major change in our usual behaviors. This explains some changes in crime trends: for example, with more people home during work hours and on weekends, there were fewer low-risk targets for home break-ins. And in 2020, there were 18% fewer home burglaries reported than in 2019, and consequently 13% fewer arrests for burglary. With fewer people out, there were also fewer opportunities for thefts that require close contact: reports of pickpocketing dropped 37% and purse-snatching 25%, and arrests for these types of crimes (larceny/theft) dropped 23%. The 24% drop in arrests for driving under the influence (DUI) also makes sense in this context: there were fewer people on the roads, and for a long time, few bars or restaurants open for people to consume alcohol.

Policing changed too, to a lesser degree. Police officers got sick, reducing their capacity to arrest, and some officials directed police to avoid unnecessary contact with the public and to issue more citations in lieu of arrest. This likely explains the dramatic reductions in arrests for “nuisance” crimes like vagrancy and drunkenness.

Some of these changes were extremely short-lived: Philadelphia police suspended “non-violent” arrests in mid-March 2020, but just two weeks later, the police force announced it would resume arrests for property crimes, effectively reversing the earlier policy. Police in Maui, Hawai’i set up a call center early in the pandemic to handle calls that didn’t require in-person responses; it was shut down within just three months, when the Police Chief declared “things are settling down.”

Given that almost all of these changes were in direct response to the pandemic, as opposed to long-term policy changes, we should anticipate a return to pre-pandemic arrest rates as work, school, business, and social life return to “normal.”

Jail bookings and pretrial detention decisions

Jail admissions generally mirror arrest trends, so fewer arrests mean fewer people booked into jail. The drop in arrests in 2020 therefore accounts for most of the 16% drop in jail admissions over the course of the year. But there were also some notable, temporary, pandemic-response policies that contributed to the reduced jail populations we saw in 2020, namely:

• The promises of many prosecutors to decline to prosecute certain low-level offenses or to dismiss pending charges against people arrested for such offenses,
• The suspension of arrests for non-criminal (or “technical”) violations of probation and parole,
• Temporary changes in probation and parole conditions that made it easier for people under community supervision to comply, such as videoconferencing instead of face-to-face check-ins and the waiving of monthly fees, and
• The temporary suspension of arrests on outstanding “bench warrants” for things like missed court dates.

Some courts and prosecutors also made impactful, though temporary, changes to pretrial processes. On any given day, at least two-thirds of the nation’s jails are filled with people who have not been convicted and are legally innocent, many because they cannot afford money bail. But early in the pandemic, we saw changes like the “$0 bail” emergency rule ordered for California’s courts, which eliminated unaffordable bail as a barrier to pretrial release for people accused of misdemeanors and lower-level felonies. In another example, the State’s Attorney in Vermont’s largest county directed her office to stop requesting bail for defendants facing low-level charges.

Together, these changes reduced the use of jails for things other than serious public safety concerns. Most of these temporary policies have long since expired, so, except for those places that have enacted policies to permanently reduce incarceration for these non-dangerous and/or non-criminal violations, we should expect to see more people jailed for these reasons again as the pandemic wanes.

Court slowdowns

Most courts had to dramatically change their operations during the pandemic in ways that led to long delays in case processing. According to the National Center for State Courts, the most common court responses to the pandemic included restricting or ending jury trials, suspending in-person proceedings, restricting entry to courthouses, extended filing deadlines, and encouraging video conferences in place of hearings.

In 2020, 21% fewer criminal cases were filed in state courts than in 2019, which in turn meant fewer people were convicted and sentenced to jail or prison. The most recent data available indicates that the number of criminal case filings were still much lower than pre-pandemic levels as of June 2021. Some of this drop in new cases is explained by changing crime and arrest trends, but prosecutorial decisions also played a key role. For example, the Maricopa County (Arizona) Attorney’s Office began delaying the filing of – but not dismissing – “thousands of charges” in an effort to keep down the number of people in courtrooms and jails (and potentially to avoid problems complying with speedy trial laws). And Seattle’s District Attorney decided early on to briefly stop filing charges except for “priority in-custody violent crimes.”

But the changes in court operations have made an even bigger dent in case dispositions than case filings: in 2020, state courts closed 36% fewer criminal cases than in 2019. Unable to keep pace with incoming cases, the clearance rate for criminal cases across over 30 state court systems dropped from 105% in 2019 (when courts were able to close more cases annually than were added to the docket) to 88% in 2020. Some of this slowdown, too, was the result of attorneys requesting postponements; some was simply due to court closures.

Pandemic caseload data from the Court Statistics Project show that criminal court slowdowns were at their worst between July 2020 and January 2021, but even with fewer new cases coming in, “pending” cases have piled up and will take time to clear. As they do, and as arrests and prosecution return to pre-pandemic norms, we can expect the rate of people convicted and sentenced to incarceration to climb back up.

Prison admissions

The cumulative effect of fewer arrests, temporary changes in probation and parole practices, and pandemic-related delays in trials and sentencing was a dramatic 40% reduction in the number of people who entered prisons in 2020. The number of new court commitments (that is, people admitted to prison to serve a new sentence) dropped almost 43% from 2019 to 2020. And, for the same reasons jail admissions fell for non-criminal violations of probation and parole, the number of people admitted to prisons for these violations fell 35%. The massive decrease in admissions was driven by steep drops in large states like California (down 66%), Florida (down 53%), and New York (down 60%).

Some of the change in admissions to prison, however, was simply because people were left in jails longer before being transferred to prisons. In an effort to prevent the spread of COVID-19 between facilities (a very valid concern), some state prison systems, such as Illinois’, refused to admit people held in local jails who were sentenced to prison. While this may have helped slow the spread into prisons, staff were still bringing the virus into facilities from their home communities. Meanwhile, these delays left thousands of people stuck in local jails, which have fewer programs and far more population turnover than prisons – a miserable situation at any time, but particularly during a pandemic.

Again, because the changes that resulted in fewer admissions in 2020 were temporary responses to the pandemic, we should expect prison populations to rebound to pre-pandemic levels as courts catch up with their backlog of pending cases and probation and parole agencies return to more stringent conditions and harsher punishments for non-criminal violations.

Prison and jail admissions are at historic lows. We can keep it that way.

The changes to the criminal legal system during the pandemic were, for the most part, temporary responses to the immediate public health emergency, not deliberate policy choices to reduce incarcerated populations over the long term. There is little reason to think that incarceration rates will remain at their pandemic-era lows without more intentional changes, particularly since jail and prison populations have already started to rebound. Furthermore, the piecemeal actions that federal, state, and local authorities did take were not nearly enough to protect people in prisons and jails, nor the communities that surround them. To date, almost 600,000 incarcerated people have been infected and more than 3,000 have died behind bars because of COVID-19. And of course, the pandemic isn’t over; still, authorities continue to ignore public health guidance that specifically calls for decarceration.

The fact that many early-pandemic policy changes were so short-lived is particularly frustrating since we know they helped rapidly reduce populations without compromising public safety. Data from the National Crime Victimization Survey show that the number of violent crimes (excluding homicide, which the survey does not cover) fell from about 2 million in 2019 to 1.6 million in 2020; accordingly, the rate of violent victimization fell by 22%. The household property crime victimization rate fell by about 7%. And, as discussed above, arrests and crimes reported by police fell, too.

Government authorities’ willful disregard of the evidence that further, sustained policy changes are both urgently needed and safe is part of a larger problem, of course. The perception (not a reality) that criminal justice reforms have led to upticks in crime over the past few years has fueled pushback against smart policy changes. That perception is powerful, and history shows that reactionary policies can follow: In the 1980s and 1990s, the last time prison and jail populations were as low as they were in 2020, the knee-jerk reaction to (much bigger) increases in crime was to lock more people up, and for longer. Particularly in the context of the ongoing pandemic, we can’t afford to let that happen again.

Prison Policy Initiative General Counsel Explains the Cycle of Exploitation that Incarcerated People and their Loved Ones are Subjected to

We worked with the National Consumer Law Center to explain how, at every state of incarceration, governments and private corporations are draining money from those who can least afford it.

by Mike Wessler, March 23, 2022

In a new piece in Inquest, our general counsel Stephen Raher and Ariel Nelson of the National Consumer Law Center expose the cycle of exploitation that saps money from incarcerated people and their loved ones. The piece provides a big-picture overview of how government agencies and private corporations are profiting off of this system. It explains there are three stages in the cycle:

1. First, companies and governments take a cut of money coming into prisons. Even in prison, a person needs money to survive, and because prison wages are so low, many incarcerated people rely on money transfers from loved ones to survive. At a time when people in the free world can instantly send money through their smartphones for free, prison money transfers still come with a whopping 20% average fee.
2. Next, while in prison, incarcerated people are subjected to outlandish rates and prices for essentials — like communications services, food, and hygiene products — and burdened with mandatory fees for things like medical care and the general cost of confinement.
3. Finally, when a person is released, they often receive a release card, a prepaid debit card that contains money they had when entering prison, money they earned while locked up, and money they had in their trust account. These cards are rife with fees — many of them unavoidable — that quickly drain the money on the card and line the pockets of the companies that administer these programs.

People increasingly recognize this cycle of exploitation is morally problematic and makes poverty — one of the main drivers of criminalized behavior — worse. That’s why some government agencies are increasingly cracking down on this behavior, and through our research and advocacy, we’re pressuring more states to join them.

We encourage you to check out the piece to understand better how the cycle of exploitation works. If you’re looking for more details and state-specific data, check out our work exposing exploitation in the criminal legal system.

New report Mass Incarceration: The Whole Pie 2022 provides the most comprehensive look at U.S. incarceration since the start of the pandemic

The report includes 31 visualizations of criminal justice data, exposing long-standing truths about mass incarceration in the U.S.

March 14, 2022

Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2022, compiling national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — since the COVID-19 pandemic began. The report explains how the pandemic has impacted prison and jail populations, and pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Highlights from the report include:

• Prison populations fell by about 16% during the pandemic. However, 10% fewer people were released from prison during 2020 than in 2019, and preliminary data suggests that fewer still were released in 2021, meaning that people leaving prison did not drive the population drop. Instead, the reduction was due to reductions in prison admissions, largely due to pandemic-related slowdowns in the criminal legal system.
• Local jail populations fell about 13% during the pandemic. Since then, a sample of over 400 jails shows that jail populations are returning to pre-pandemic levels and more than a quarter of jails have higher populations today than before COVID-19.
• In total, roughly 1.9 million people are incarcerated in the United States.

“Even when the U.S. prison population was at a historically low point in the pandemic, we were still locking up far more people per capita than any other country on earth,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “It’s important for people to understand that the temporary population drops during the pandemic were due to COVID jamming the gears of the criminal justice system — not because of any coordinated actions to reform the system.”

The report includes 31 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:

• The U.S. continues to lock up hundreds of thousands of people pretrial every day. A rise in the use of money bail over the last 40 years has driven an increase in pretrial populations.
• Black people are still overrepresented behind bars, making up about 38% of the prison and jail population.
• At least 113 million adults in the U.S. (or over 40%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.

The report also tackles frequent misconceptions about mass incarceration related to prison labor, the war on drugs, private prisons, what victims of crime want, and community supervision.

“As the pandemic eases, and with incarceration rates as low as they’ve been in decades, elected leaders face a choice. They can take bold action to continue to reduce the number of people behind bars and invest in community responses that address the core causes of crime — poverty, addiction, and mental health struggles — or they can return to business as usual with incarceration rates stubbornly stuck at globally high rates and ballooning correctional budgets that burn through tax dollars without making communities safer and stronger,” said Sawyer. “The Whole Pie should serve as a call to action for government to finally end our nation’s failed experiment of mass incarceration.”

The Prison Policy Initiative traditionally releases a new version of its Whole Pie report annually however, COVID-related delays in the release of government-produced data prevented the organization from releasing a new version in 2021.

Read the full report, with detailed data visualizations at: https://www.prisonpolicy.org/reports/pie2022.html.

The prison context itself undermines public health and vaccination efforts

A new report from the Correctional Association of New York reveals why some people in prison are reluctant to get the COVID-19 vaccine and a lot of it has to do with distrust in the correctional system.

by Emily Widra, March 9, 2022

Over 3,000 incarcerated and detained people in the United States have died of COVID-19 in the past two years, with over 588,000 cumulative cases behind bars. With little sign of COVID-19 quietly fading away, public health officials have been clear, consistent, and accurate that vaccinations are our strongest defense against existing and future variants of COVID-19. But despite widespread vaccine availability across the country, many people continue to be hesitant about the COVID-19 vaccination.¹

While the vaccine refusal rates are not generally worse in prisons than in the general population, vaccination is even more critical in prisons. Incarcerated people can’t employ other strategies to avoid getting COVID-19, they have higher rates of medical conditions that make them more vulnerable to severe illness and death, and if they do fall ill, they don’t have the same access to prompt, effective medical care as people outside of prison do. Behind bars, the risks of non-vaccination can be even more deadly, with a COVID-19 death rate of more than double that of the general U.S. population.²

An insightful new report from the Correctional Association of New York offers the only survey data we know of that explains why incarcerated people are hesitant to accept the COVID-19 vaccination. ³ A report focusing on New York is particularly valuable nationally because New York State was one of the least successful states (by our data ⁴) at vaccinating incarcerated people.⁵ The report finds that vaccine hesitancy in prison is rooted in general distrust and suspicion of healthcare in prison, and that the solutions to overcome vaccine hesitancy behind bars are more complicated than in non-carceral settings.

Researchers have determined that the best practice for addressing vaccine hesitancy – in general and in the context of COVID-19 – is to promote transparency, equity, and trust between individuals, communities, and healthcare providers.⁶ In addition, we know that community engagement,⁷ messaging and education,⁸ and timely and accurate information about vaccines are critical for responses to vaccine hesitancy.

The reality is that the prison context inherently undermines almost all of the best practices for responding to vaccine hesitancy.

The erosion of trust in prison healthcare undermines vaccination efforts

The major finding of the Correctional Association report is that the primary reason people behind bars are hesitant to get the vaccine is a lack of trust in the prison medical system.
Before COVID-19, incarcerated people were suspicious and critical of prison healthcare: they reported poor quality of care, difficulty accessing medical care, and a distrust of prison medical care. Some incarcerated people in New York cited the Tuskegee syphilis experiment and the water crisis in Flint, Michigan as reasons to be suspicious of state public health initiatives, stating, “My greatest fear is to be a lab rat for the state” and “Communities of color have always been experimented on; why are state officials going to stop now?”

But the distrust is particularly poignant in the context of COVID-19 vaccinations. A slight majority of incarcerated people surveyed by the Correctional Association reported that they generally “trust vaccines” (52%). A similar number (49%) of respondents reported that they generally trust doctors and healthcare providers to make medically correct judgements, but only 9% of respondents trust doctors or healthcare providers in a prison to make medically correct judgments.

Figure 1: Responses regarding trust of healthcare providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that incarcerated people are much more likely to distrust prison healthcare providers than non-prison-affiliated healthcare providers.

Given that general distrust of prison medical providers, it’s unsurprising that a significant portion of survey respondents were less likely to accept the COVID-19 vaccination if offered by the New York Department of Corrections and Community Supervision’s (DOCCS) medical staff.

Figure 2: Responses regarding likelihood of accepting the COVID-19 vaccine if administered by correctional staff and correctional health care providers to the Correctional Association of New York survey of incarcerated people in New York state. This graph, published by the Correctional Association in their annual report, shows that 42.7% of respondents are less likely to accept the vaccine if it is administered by correctional staff, again emphasizing the inherent lack of trust between incarcerated individuals and the correctional healthcare system.

“What works” to overcome vaccine hesitancy hasn’t worked in prisons

Public health experts have established best practices for addressing vaccine hesitancy, but the persistence of this distrust among incarcerated people underscores how the prison setting itself undermines these practices:

• Trusted communicators are crucial to expanding vaccine acceptance. Most recommendations for addressing vaccine hesitancy emphasize the need for “trusted communicators,” but with limited visitation and suspended programming and volunteers, who are the trusted communicators in prisons? The reality is that most information about the vaccines in prisons comes from prison administrators and correctional staff. In May 2021, a month after vaccines were available to people in congregate living situations (like prisons), John J. Lennon (incarcerated in New York) recommended in a New York Times op-ed that the DOCCS “tap influential prisoners to disseminate accurate vaccine information” and even suggested utilizing the preexisting inmate liaison committees established after the Attica uprising. According to the recent Correctional Association report, the New York DOCCS instead “developed a video featuring Tyler Perry and incarcerated people attesting to the benefits of the vaccine.” The reality is that trust, transparency, and equity have long been eroded by the criminal legal and prison systems, which this video had little hope of repairing.
• Community engagement is often limited in prisons, where interactions between incarcerated people are regularly restricted. During COVID-19, community engagement behind bars all but disappeared. Programming – including education courses, work-release, treatment programs, and group activities – were suspended in every state prison system (as far as we’ve been able to tell) at some point during COVID-19. Many prisons stopped programming and in-person visits entirely for the better part of the past two years. Additionally, incarcerated people have experienced unnecessary use of solitary confinement during the pandemic. Correctional institutions in the United States have long been distanced from “mainstream” society and community, and in many ways, the pandemic has only furthered that isolation. So while having community members and volunteers who aren’t part of the prison system come in to informally discuss vaccination concerns might have helped improve vaccine acceptance, incarcerated people saw even fewer people from the outside during the pandemic.
• Disseminating timely and accurate information has proven difficult in correctional facilities. Contact with those outside prison walls has been limited throughout the pandemic, with suspended or limited visitation, increasing restrictions on mail, expensive phone calls, and interrupted programming. But relying on information from only within the prison comes with a high cost for vaccine acceptance: misinformation and distrust of the vaccine can run rampant and unchecked. John J. Lennon reported for the New York Times that corrections officers where he is incarcerated told him that the vaccine was “not tested enough” and that COVID-19 was just “the flu.” A sergeant in the Florida Department of Corrections told The Marshall Project, “If I’m wearing a mask, gloves, washing my hands and being careful — I’d still feel better working like that than putting the vaccine in my body.” Other correctional officials in Florida told The Marshall Project that some of their colleagues believe the vaccine could give them the virus or that the vaccine contains some kind of tracking device.⁹

The responses to the Correctional Association survey point to a lack of trust in prison medical care providers based on the quality and inaccessibility of care, limited access to information about their healthcare, and the tension between healthcare professionals meeting their duty to their patients while enforcing and complying with directives of the prison administration (sometimes referred to as “dual loyalty“). The DOCCS’ mishandling of the COVID-19 pandemic and subsequent traumatic experiences during COVID-19 in prison, only served to erode incarcerated people’s trust further.

In many ways, the pandemic has served to highlight just how opaque the prison healthcare system is and just how wary incarcerated people are of prison medical care. Moving forward, prison systems must do better, not only by providing better, more accessible, more transparent health care, but also by recognizing their inherent limits when it comes to responding to public health concerns, and adopting better strategies.

Specifically, when faced with the current and future health emergencies, prison systems should:

1. Release more people from prisons. Nationwide, states and the federal government actually released 10% fewer people from prison in 2020 than in 2019, despite the consensus among public health officials and advocates that decarceration is crucial to protecting public health and limiting the spread of COVID-19. To reverse this trend, departments of corrections, state governments, and courts need to work together to release people from prison using any tools they have at their disposal, including large-scale releases like we saw in New Jersey, California, and North Carolina. The Correctional Association report recommends increasing the use of pretrial release, alternative sentencing, early release, medical parole, parole board release, and commutation to rapidly reduce prison populations.
2. Address issues of transparency and equity in correctional health care. To address these issues in the context of COVID-19, the Correctional Association report recommends expanding the provision of adequate and timely information about COVID-19 and the vaccine, and alleviating gaps in the quality of medical services by expanding preventative care (routine screenings, education, and outreach). To improve general correctional healthcare, the Correctional Association report recommends that the state designate an independent correctional ombuds to investigate and resolve complaints related to incarcerated peoples’ health, safety, welfare, and rights, as well shift oversight of correctional healthcare to the state department of health.
3. Ensure that corrections officials are dedicated to reducing our reliance on incarceration and improving the health and welfare of those under their care. Corrections officials and decision makers need to take COVID-19 – and the subsequent deaths of over 3,000 incarcerated people – seriously. Incarcerated people’s connection to up-to-date news is tenuous at best, and during COVID-19 (with limited visits and changes in phone call and mail policies), they’ve been even more reliant on information directly from corrections departments. Mixed messages about the realities of COVID-19 from corrections departments (we’ve heard at least one report of a PA system announcement in a Pennsylvania prison facility stating that the pandemic is “over”) and corrections officers’ own vaccine hesitancy and misinformation leave incarcerated people in the dark to the detriment of everyone.

While COVID-19 vaccinations and booster doses are some of our strongest defenses in the face of the continued pandemic and new variants, it’s increasingly clear that prison systems need to prioritize decarceration. No amount of public health education and vaccine messaging will, on their own, dismantle decades of distrust and suspicion of prison health care. Prisons are no place for a public health crisis and government officials should be prioritizing releases and decarceration as both a first response and an ongoing response to emergencies like COVID-19.

A new toolkit for advocates working to end mass incarceration

In the toolkit, we share tips and lessons we’ve learned over two decades of using data, visuals, and narratives to expose the harms of mass incarceration.

by Mike Wessler, March 2, 2022

Today, we’re launching our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration. The toolkit builds on lessons we’ve learned from our two decades of work to improve our criminal legal system. It provides skills-based guides on accessing public records, securing and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering. We plan to add additional resources in the future.

Our new advocacy department created this toolkit as part of our expanded effort to support the people and groups on the ground doing the hard work to end mass incarceration.

While most advocacy departments organize campaigns, mobilize volunteers, and pressure decision-makers for change, ours is a bit different. We’re not looking to replicate the amazing work that thousands of people and hundreds of organizations are already doing to reform the criminal legal system. Instead, as a research organization known for using data visualizations and easy-to-understand narratives, our advocacy work aims to help these organizations leverage our expertise to strengthen their campaigns. That’s why our advocacy department will focus on:

• connecting state and local movement partners and decision-makers to data that can fuel their campaigns for criminal justice reform;
• identifying and filling gaps where new research would support reform efforts;
• producing training materials, like the Advocacy Toolkit, for use by criminal justice reform advocates; and
• providing technical assistance, including identifying reform opportunities (such as our annual list of winnable state criminal justice reforms), giving messaging support, offering expert review of documents and legislation, and connecting partners working in similar spaces.

We hope these new resources will help to strengthen the movement to end mass incarceration. If you use the Toolkit in your work, tell us about it. Let us know what worked, what didn’t, and what other resources we can provide. And, if you’re an organization seeking assistance from our new advocacy department, drop us a line to let us know how we can help.

State prisons and local jails appear indifferent to COVID outbreaks, refuse to depopulate dangerous facilities

While some prison systems and local jails have maintained historically low populations, others have returned to pre-pandemic levels, despite the ongoing dangers of COVID-19 and new, more transmissible variants.

by Emily Widra, February 10, 2022

The COVID-19 pandemic is far from over, particularly inside prisons and jails. The death rate from COVID-19 in prisons is more than double that of the general U.S. population.¹ As cases and hospitalizations climb outside prison walls, there is no doubt that cases are spiking in jails and prisons across the country. In state and federal prisons, over 2,900 people have died of COVID-19, almost 476,000 people have been infected, and thousands of additional cases are linked to individual county jails. Even now, when more than 75% of people in the U.S. have received at least one dose of the vaccine, correctional staff are hesitant to get vaccinated or receive boosters, and prison systems are slow to roll out boosters to incarcerated people.² As the more contagious Omicron variant ravages parts of the nation and renders hospitals completely overrun, nearly three quarters of prisons³ are experiencing COVID-19 outbreaks; public health officials continue to recommend reducing prison populations as a primary method of risk reduction. In fact, in October 2021, the American Public Health Association⁴ adopted a policy in support of decarceration as a public health matter and new research shows the detrimental effect of COVID-19 on all-cause mortality in state prisons. Despite the clear need for smaller confined populations, the data show that with just a few exceptions, state and local authorities are allowing their prison and jail populations to return to dangerous, pre-pandemic levels.

The federal Bureau of Prisons, state governments and departments of corrections, and local justice system officials have a responsibility to protect the health and lives of those who are incarcerated. After almost two years of outbreak after outbreak in prisons and jails, correctional authorities must be held accountable for their repeated failure to reduce populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities.

Prisons

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 the increased health care needs of incarcerated people. For example, although California has reduced the state prison population by about 18% since the start of the pandemic, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons, and the prison system has witnessed a 300% increase in infections among incarcerated people over the past few weeks and a 212% increase in cases among staff. In fact, as of December 15th, 2021, California’s prisons were still holding more people than they were designed for, at 113% of their design capacity (and up from 103% in January 2021). Considering the continued overcrowding in the California prison system, it’s not surprising that the state is responsible for eight out of the ten largest COVID-19 prison clusters.

Figure 1. Prison population data for 50 state prison systems as reported directly from the state Departments of Correction and the Marshall Project and federal data as published weekly by the federal Bureau of Prisons. For the available population data for these 50 states and the Bureau of Prisons, see Appendix A.

Many states’ prison populations are the lowest they’ve been in decades, but this is not because more people are being released from prisons; in fact, fewer people are. Data from 2020, recently released by the Bureau of Justice Statistics, shows that prisons nationwide released 10% fewer people in 2020 than in 2019. Instead, data suggest most of the population drops we’ve seen over the past 20 months are due to reduced prison admissions, not increasing releases. In the states for which we have recent data, both admissions and releases have decreased in recent years, making clear that prisons are not using all available tools at their disposal to stop the spread of the virus in their facilities. The significant drop in admissions to prisons was largely an unintended consequence of court delays and suspension of transfers from local jails early in the pandemic, rather than any dedicated decarceration efforts. Finding ways to continue reducing the number of people admitted to correctional facilities is critical to lowering the number of people behind bars, but to quickly decarcerate, states should release far more people, too.

Figure 2. These twelve states publish monthly release and admission data for 2018, 2019, 2020, and most of 2021. These data show us a pattern of responses to the COVID-19 pandemic: reducing prison admissions, while releasing fewer people from prison.

Despite evidence that large-scale releases — which have been used periodically in states across the U.S. — do not inherently endanger public safety, most states have elected to release people from prison on a mostly case-by-case basis, which an October 2020 report from the National Academies of Sciences, Engineering, and Medicine charitably described as “procedurally slow and not well suited to crisis situations.” In short, this choice ignores the crisis of COVID-19.

Thankfully, some states have recognized the inefficiency of case-by-case releases and the necessity of larger-scale releases. For example, in New Jersey, Governor Phil Murphy signed bill S2519 in October 2020, 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, 2020.⁵ In February 2021, North Carolina Governor Roy Cooper announced a legal settlement had been reached to release 3,500 people in state custody (with 1,500 of those releases to take place within 90 days). The releases were the result of a NAACP lawsuit challenging prison conditions in North Carolina during COVID-19. The state said it would release people using discretionary sentence credits (similar to “good time credits”), home confinement, and post-release supervision. But these instances of larger-scale release efforts taking place in state prison systems are the exception, not the rule.

Jails

Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 415 county jails of varying sizes, almost all (98%) decreased their populations from March to May of 2020, resulting in an average change of a 33% population decrease across all 415 jails at the start of COVID-19. 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 those early-pandemic, common-sense policy changes didn’t last long. Between May 2020 and February 2021, the populations of 83% of the jails in our sample increased, reversing course from the earlier months of the pandemic. As of December 2021, 28% of the jails in our sample have higher populations now than they did in March 2020.⁶ Overall, the average population change across these 415 jails from March 2020 to December 2021 has diminished to only a 10% decrease, while the average population change from July 2021 to December 2021 has dropped to 0%, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.

For example, by mid-April 2020, 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 just two weeks later — 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, 2020, the sheriff of Jefferson County (Birmingham), Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.” 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.

Figure 3. Jails across the country initially responded to COVID-19 by reducing the number of people detained, but that trend reversed direction in May 2020, only two months after the World Health Organization declared COVID-19 a global pandemic. Since May 2020, the data show a trend of jail populations slowly increasing. This graph contains aggregated data collected and provided by NYU’s Public Safety Lab and updates a graph in our October 2021 analysis. It 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, which ended December 31, 2021. (Data are not available for all facilities for all days, and the Lab interpolated missing data to fill those gaps.) This graph presents the data as 7-day rolling averages, which smooths out most of the variations caused by individual facilities not reporting population data on particular days. To see county level data for all 415 jails included in this analysis, see Appendix B.

In New York City, the jail population sharply declined after the pandemic was declared. Importantly, NYC jails – particularly Rikers Island – were some of the first jails in the country to witness a COVID-19 outbreak. And yet, across different demographics, NYC jail populations have slowly leveled out, suggesting that the policies responsible for the necessary decarceration are no longer in practice. In addition to suffering the effects of COVID-19, Rikers Island is also facing an unprecedented crisis following a history of over-incarceration and, according to a federal monitor, “decades of mismanagement.” At a time when jail populations should be at an all-time low, Rikers Island’s confined population surpassed the pre-COVID-19 population in July 2021. The population only dropped back down below the pre-pandemic level at the end of September 2021, when Gov. Hochul signed the Less is More Act, which reduced the number jailed for technical violations of supervision.

Figure 4. Graph showing the daily count of the NYC jail population by 5 key metrics. By all metrics, the NYC jail population dropped quickly at the start of the pandemic, but then started to rise again. On July 29, 2021 the total NYC jail population was higher than before the pandemic. Critically, the number of people detained pretrial has actually grown — from 4,284 on January 1, 2020 to 4,881 people on December 31, 2021 (with a peak of 5,768 in early July 2021) — likely because of the rollback of significant bail reform efforts last year. The population drops in September 2021 are encouraging but are largely the consequence of Governor Hochul signing the Less is More Act, releasing people on technical violations from jail, and therefore represent a helpful policy change that will reduce the population. However, the steep slope of the decline in September 2021 is unlikely to continue at that rate on its own without additional policy changes. Even with these reforms, the October 1st NYC jail population was only 7% below its pre-pandemic levels.
(Dotted lines connect periods with missing data, so the start of each dotted line and their bends represent specific historical data points.)

Even before COVID-19, prisons and jails were a threat to public health and considered notoriously dangerous places during any sort of viral outbreak. As the U.S. Supreme Court recognized years before the pandemic, by taking away a person’s ability to care for their own medical needs, carceral facilities must make sure that those who are incarcerated receive proper medical care–failure to do so can constitute a violation of of the Eighth Amendment’s guarantee against cruel and unusual punishment and necessitate a reduction in the carceral population. And yet, correctional facilities continue to be the source of a large number of infections in the U.S. The COVID-19 death rate in prisons is almost 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. Decarceration efforts must include releasing more people from prisons and jails. Despite this knowledge, state, federal, and local authorities have failed to release people from prisons and jails on a scale sufficient to protect incarcerated people’s lives – and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.

Prison populations for the federal Bureau of Prisons and all 50 state prison systems from January 2020 through December 2021. When available, we used prison populations as reported by Departments of Correction to The Marshall Project. If that data point was not available, we then used either the monthly average daily population (ADP) or point-in-time population counts. For the federal system, we used the first weekly population each week as reported by the Bureau of Prisons.

This table shows the jail populations for 415 county jails where data was available where data was available for March 10th, 2020 (the day before the pandemic was declared) and for 75% of the days between March 10th, 2020 and December, 2021. (This table is a subset of the population data available for over 1,000 local jails from the NYU Public Safety Lab Jail Data Initiative.)

New data on formerly incarcerated people’s employment reveal labor market injustices

Newly released data doubles down on what we’ve reported before: Formerly incarcerated people face huge obstacles to finding stable employment, leading to detrimental society-wide effects. Considering the current labor market, there may be plenty of jobs available, but they don’t guarantee stability or economic mobility for this vulnerable population.

by Leah Wang and Wanda Bertram, February 8, 2022

How many formerly incarcerated people are jobless at the moment? A good guess would be 60%, to generalize from a new report released by the Bureau of Justice Statistics (BJS). The report shows that of more than 50,000 people released from federal prisons in 2010, a staggering 33% found no employment at all over four years post-release, and at any given time, no more than 40% of the cohort was employed. People who did find jobs struggled, too: Formerly incarcerated people in the sample had an average of 3.4 jobs throughout the four-year study period, suggesting that they were landing jobs that didn’t offer security or upward mobility.

As the data show, not only is reentry difficult in the first months of release from prison, but the struggle to find a job actually grew over time for the study cohort of people leaving federal prison in 2010. We show these increasing jobless rates next to one of the most dire economic moments of recent years — when the US unemployment rate reached its highest point of around 15% in mid-2020.¹

We warn readers that we can’t call the 60% jobless rate an “unemployment rate” — joblessness is different from unemployment, which refers to people actively looking for work. We calculated the first and only national unemployment rate for formerly incarcerated people in our 2018 report Out of Prison and Out of Work, and we can’t update that analysis, because we based it on data that the government only collected once.² Nevertheless, the new BJS data suggest that employment rates among people who have been to prison aren’t improving.

Formerly incarcerated individuals tend to experience joblessness and poverty that started long before they were ever locked up. When they’re released from prison, the pressure is on to get a job: People on parole (or “supervised release”) often must maintain employment or face reincarceration,³ while struggling to access social services, and trying to make ends meet in a job market more hostile to them than ever before. This combination of pressures amounts to a perpetual punishment. And it’s not just formerly incarcerated individuals who are punished: Policies that weaken their ability to turn down jobs with low wages may depress wages for other workers in their industries, as we’ll explain in this briefing.

Harsh parole conditions, a lack of social welfare programs, and a tough job market are forcing formerly incarcerated people — already a low-income, majority-minority demographic — into the least desirable jobs. But not everybody is losing: Businesses have found a way to capitalize on the desperation of applicants with conviction histories and exploit the fact that these these individuals have less bargaining power to demand changes in conditions of employment, such as better wages benefits and protections. This results in lower overall wages and more harmful working conditions in certain industries.

Post-release, months of searching and moving between jobs is common

The overall employment rate over four years after the study population was released hovered between 34.9% and 37.9% — in other words, about two-thirds of the population were jobless at any given time.

For those who did find employment after release, their earnings were lower than the general population: In the first few months, formerly incarcerated people were earning just 53% of the median US worker’s wage. And after four years of seeking and obtaining irregular employment, the study population was making less than 84 cents for every dollar of the US median wage (which, in 2014, was about $28,851 annually).

Earnings were lowest for Black and Native American people released from federal prison;⁵ in fact, racial and ethnic disparities in earnings seemed to grow over time. These findings probably reflect an unfortunate “racialized re-entry” process for people leaving prison, where the stigma of incarceration itself and differences in social networks for job-seekers vary across racial and ethnic groups. Researchers of this concept noted that white people getting out of prison actually appeared more disadvantaged and less employable “on paper” due to higher rates of substance use and longer sentences, but still ended up with better employment and income than Black and Hispanic people leaving prison.

Employment may be one of the most important benchmarks of reentry, yet it took formerly incarcerated people an average of over six months to find their first job after release. As such, many did not maintain employment over the entire four-year study period, and the average person in the study had 3.4 jobs over that time. If that sounds erratic, it is: The average person is employed for 78% of the weeks between ages 18 and 54, while people in the study’s cohort were employed just 58% of the time post-release. When people are moving from job to job, families and the economy suffer, and people risk violating their post-release supervision and being returned to incarceration.

Lastly, though it’s not clear exactly why, people who served less than a year in federal prison actually had a harder time finding and maintaining employment post-release, and spent more time without a job than the other groups.⁶ Given this devastating impact on their long-term employment prospects, it’s evident that people who are given short sentences — and who pose no safety risk — should not be incarcerated to begin with.⁷

The struggle to find a good job

The fact that most people released from prison have spotty, sporadic employment may mean that the jobs they’re getting are difficult jobs to keep, even for an extremely motivated worker. These could be temporary jobs, jobs where workers aren’t protected from wrongful termination, or dangerous or low-wage jobs that are unsustainable.

According to the BJS report, the major industries employing formerly incarcerated people include waste management services, construction, and food service. A 2021 study released by the U.S. Census Bureau affirms this finding. The study analyzed thousands of people with felony convictions, tracking their employment and income in the years around the Great Recession (2006-2018), and found that rebounds in construction and various service industries after the recession were associated with a bump in employment and income levels for these individuals. However, the people in that study saw their employment levels plateau after a few years, even in areas where construction and manufacturing thrived.

It’s true that industries like manufacturing and construction tend to boost employment and reduce recidivism for those leaving prison. But while these jobs did, at one time, allow people to build wealth and support a family, they don’t as much anymore, meaning that they are likely not alleviating poverty among formerly incarcerated people. The fact that formerly incarcerated people are not obtaining steady, reliable work is likely related to the industries in which they’re most commonly employed.

When the workforce is under mass supervision, key industries lose employee bargaining power

Looking more closely at the “low-skill” jobs that formerly incarcerated people tend to get can help us understand how mass incarceration and supervision may be hurting whole sectors of workers. In construction and manufacturing, union membership has declined significantly over the last twenty years.⁸ During the same period — between 2000 and 2019 — the number of people on parole grew by more than 150,000, and the number of people with felony convictions swelled from 13.2 million to an estimated 24 million.

While it’s impossible to draw a causal relationship between these two trends — given the numerous factors at play — there is serious potential for exploitation of formerly incarcerated people. For example, The New York Times has reported that New Yorkers with conviction histories are shuttled into non-union construction jobs with low to no benefits. Formerly incarcerated employees placed at such companies have described being “taken aback” at the low wages, and many have had to work other jobs to supplement their pay from their day jobs in construction.

A rising number of people with felony convictions — which is the result of, among other things, overly punitive sentencing — may be depressing wages and hurting working conditions for all workers in certain industries. Formerly incarcerated workers are not to blame, especially as many have likely been working in these industries for the better part of their adult lives. Prison does nothing to improve their qualifications as workers; meanwhile, the struggle of reentry makes them more desperate for job offers, as the new data make abundantly clear.

Formerly incarcerated people need greater opportunity from today’s labor market

The new BJS data confirm that formerly incarcerated people still suffer from sky-high jobless rates (despite evidence that virtually all want to work), and that those who do find work are getting unstable jobs. Formerly incarcerated people are typically poor before they go to prison, and joblessness during reentry can push them into even deeper poverty and have a permanent impact on their wealth accumulation.

These devastating statistics have implications for workers without criminal records as well. When industries can use vulnerable workers to replace or supplement workers who demand decent wages and benefits, the price of labor declines. When burdensome supervision requirements, unnecessary occupational licensing restrictions, and a lack of social welfare programs combine to make formerly incarcerated people desperate for work, all workers suffer.

Indeed, during the labor shortages we’ve seen in 2021 and 2022, employers are turning to currently or formerly incarcerated people as a convenient solution. (And sadly, a rising awareness of formerly incarcerated people’s unjust barriers to employment has allowed some of these employers to frame their actions as enlightened.) These shifts may manifest in depressed wages, benefits, and worker protections sector-wide.

People leaving prison need expanded access to job opportunities so that successful reentry can begin immediately and provide stability, not uncertainty. Policy solutions like occupational licensing reform and automatic record expungement, as well as “banning the box” on all initial employment applications, are respectable first steps. Even better would be including those with conviction histories as a protected class⁹ in employment non-discrimination statutes. In-prison training programs for jobs in construction and similar industries may also boost employment and wages in some areas, according to some research, but it’s not a universal solution, nor does it solve underlying problems of low educational attainment and economic immobility.

It’s critical that lawmakers support workers with and without criminal records who are working together to end the exploitative practices that hurt them all. Without leveling the playing field for formerly incarcerated people, not only will their jobless rates remain high, but self-serving employers will continue to benefit from a disposable labor pool, with detrimental impacts on everyone.

COVID looks like it may stay. That means prison medical copays must go.

Forty states and the federal prison system continue to charge incarcerated people unaffordable copays for medical care.

by Tiana Herring, February 1, 2022

In 2017, our analysis of medical copays in prisons across the country brought to light the common but utterly backwards practice of charging incarcerated people unaffordable fees for their health care. At that time, only eight states did not charge medical copays: Missouri, Montana, Nebraska, New Mexico, New York, Oregon, Vermont, and Wyoming. While several other states have since added themselves to this list, the vast majority have still not eliminated medical copays. With a new legislative session starting in many states, we reviewed each state’s policy — and any temporary changes they’ve made in response to the COVID-19 crisis — to identify places where repealing these fees should be on the agenda. (Looking for your state’s policies? See the appendix tables.)

40 states & the federal prison system still need to eliminate medical copays

Since 2017, two additional prison systems — California and Illinois — have eliminated medical copays, and, for the last two years, Virginia has suspended medical copays as part of a pilot program. Texas reduced its exorbitant $100 yearly health care fee to a less atrocious, but still out-of-reach, $13.55 per-visit fee. Idaho also reduced its medical copays in prison from $5 to $3 in 2018.

Even a $3 copay, though, is unaffordable for most incarcerated people, given the obscenely low wages that incarcerated people earn. For people earning 14 to 63 cents an hour in prison (and many earning nothing at all for their work), a typical $2-5 copay is the equivalent of charging a free-world worker $200 or $500 for a medical visit.

Unaffordable copays in prisons and jails have two inevitable and dangerous consequences. First, when sick people avoid the doctor, disease is more likely to spread to others in the facility and into the community, when people are released before being treated or when diseases are carried by correctional staff back to their homes. Second, illnesses are likely to worsen as long as people avoid the doctor, which means more aggressive (and expensive) treatment when they can no longer go without it. Medical copays encourage a dangerous waiting game for incarcerated people, correctional agencies, and the public, with little payoff in terms of offsetting medical costs and reducing “unnecessary” office visits. In fact, when evaluating the costs versus benefits of charging copays, the Oregon Department of Corrections concluded, “copay systems do not seem to lower overall health care costs,” and “triage on a case-by-case basis is more cost effective than implementing system-wide copayment plans.”

Policy changes made during the pandemic are already being rolled back

In the face of COVID-19, we’ve found that many prison systems relaxed their medical copay policies to avoid disincentivizing people in prison from seeking necessary medical care. Before these changes, medical copays in prisons typically ranged from $2 to $5. Twenty-eight states modified their policies during the first few months of the pandemic, and, ultimately, all but one state — Nevada — temporarily changed their policies. Of the states that do charge medical copays as a matter of policy, only 10 completely suspended these fees at some point in the pandemic. The federal Bureau of Prisons, on the other hand, did not modify their copay policy until March 2021, and only suspended copays for COVID-19 related care for three months before the waiver expired.¹

Most states that have modified their copay policies during the pandemic only suspended copays for respiratory, flu-related, or COVID-19 symptoms. But these limitations ignore the facts that not all COVID-19 symptoms fall within these vague categories, and many people don’t display symptoms at all.

Our survey of all 50 state prison systems found that a handful of states have already returned to their pre-COVID-19 medical copay policies, disincentivizing people from seeking early and frequent medical care behind bars, despite the continued pandemic.

As states stop publishing data about COVID-19 in prisons and start rolling back basic policies that do the bare minimum to protect incarcerated people, it’s important to remember that the pandemic is still ongoing and cases, hospitalizations, and deaths continue to rise. Five states — Alabama, Arkansas,² Idaho,³ Minnesota, and Texas — rolled back their COVID-19 copay modifications at some point during the pandemic. Alabama went from suspending all copays to reinstating them for all cases in December 2020. Similarly, Minnesota and Texas had modified copays to accommodate people with COVID-19 symptoms, but reinstated all copays in December 2020 and September 2021, respectively. We confirmed that 22 states⁴ continue to operate with their COVID-19 copay policy changes in place, but in 15 states⁵ we were unable to confirm whether these modified policies remain in place.

Copays never make sense behind bars, particularly during a highly contagious viral pandemic. They are cruel, counterintuitive, and disincentivize people from seeking medical care when they need it. As our nation enters the third year of dealing with a virus that has ravaged prisons and jails — and increasingly looks endemic — it is urgent that lawmakers take action to permanently eliminate copays for incarcerated people.

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