We’re excited to introduce our new Policy & Advocacy Manager, Sarah Staudt! In her role, Sarah will provide support to state and local advocates working on issues where we have expertise and connect them with data and resources that can strengthen their campaigns.
She holds a B.A. in Law, Letters and Society from the University of Chicago and is a graduate of the University of Chicago Law School. Prior to joining the Prison Policy Initiative, Sarah was the Director of Policy at the Chicago Appleseed Center for Fair Courts where she worked intensively on the Pretrial Fairness Act in collaboration with the Illinois Network for Pretrial Justice. She also worked as a Staff Attorney at the Lawndale Christian Legal Center where she represented young people accused of crimes in juvenile and adult court.
COVID-19 wasn’t the first virus to devastate prisons and jails…and it won’t be the last. By learning from their past failures, state and local leaders can take steps now to prepare for the next inevitable viral threat.
On Monday, April 10th, President Biden signed a congressional resolution ending the national emergency declaration, and the separate national public health emergency declaration is set to expire on May 11th, thereby rolling back the last major federal policies designed to respond to the ongoing threat of COVID-19. As the nation enters this new period, we reviewed the experience of COVID-19 — and other pandemics and epidemics behind bars — to understand what correctional institutions and policymakers need to do to prepare for when the next viral outbreak occurs.
Defining endemic vs. epidemic vs. pandemic
Endemic: Diseases that present at a relatively consistent, predictable rate among a group of people.
Epidemic: A sudden increase in the number of people with a condition that spreads over a large geographic area.
Pandemic: Occurs when an epidemic spreads globally.
A pattern of pandemics and epidemics behind bars
COVID-19 wreaked havoc on the nation’s jails and prisons, with more than 3,000 deaths among incarcerated people, 300 deaths among correctional staff, 660,000 reported cases among incarcerated people, and 247,000 reported cases among correctional staff. The pandemic underscored what public health experts have long known: prisons and jails are not designed to provide adequatehealth care or prevent disease transmission, and in fact, theyoftenarethesitesofdiseaseoutbreaks.
It is important to recognize, though, the terrible consequences of the COVID-19 pandemic behind bars weren’t necessarily unique to this particular virus. Rather, COVID-19 is one more example of a historic pattern of just how vulnerable people in jails and prisons are to communicable illnesses and how — without any serious change to our reliance on mass incarceration — this population will continue to bear the disproportionate burden of public health crises, inevitably affecting the health of communities outside of correctional facilities as well.
Tuberculosis
The tuberculosis (TB) pandemic is primarily concentrated outside of the United States, but people in prisons and jails within the U.S. are disproportionately affected by TB when compared with the general U.S. population. TB cases and diagnoses have decreased steadily since 1992 in the U.S., but rates of TB in local jails, state prisons, and federal prisons actually increased from 2020 to 2021.
Hepatitis
Hepatitis C — considered an epidemic — is also significantly more common among incarcerated populations than the general U.S. population: in 2012, 11% of people in state and federal prisons had ever been diagnosed with Hepatitis B or C, compared to only 1.1% of the general U.S. population.1 While the virus is generally considered treatable outside the walls of a prison, state and local leaders have consistently missed the opportunity to get control of the virus behind bars by their failure to implement screening and treatment protocols behind bars.
HIV/AIDS
An estimated one in seven individuals living with HIV passes through the correctional system annually. Nationally, the overall prevalence rate of HIV in the U.S. in 2019 was 431 per 100,000 people and the number of new HIV infections declined 8% from 2015 to 2019. But HIV/AIDS is far more prevalent in prisons. The total U.S. prison population faces an prevalence rate that is more than 2.5 times higher: 1,144 per 100,000 people in prison have HIV/AIDS, highlighting how disproportionately affected incarcerated people are by HIV.
What these disease-specific disparities show is simple: for so many illnesses and diseases, incarcerated people face higher rates of infection and illness than their non-incarcerated counterparts.
The elevated rates of infection and disease are correlated with a number of other factors that overlap significantly in the incarcerated population, including poverty, lack of access to healthcare and insurance prior to incarceration, homelessness, history of drug use and other preexisting chronic health issues, inadequate correctionalhealth care, congregate living settings of correctional facilities, and health care gaps upon release from prisons and jails. So, regardless of what the next pandemic brings, we know that people in prisons and jails are particularly vulnerable to communicable diseases and often face higher mortality rates than those outside of prison walls facing the same illness.
Lessons learned
To even begin to prevent catastrophic illness and death behind bars during the next inevitable outbreak, correctional institutions and policymakers need to reflect on the emergency (and preparatory) measures that COVID-19 showed were necessary.
Reduce incarcerated populations:
In prisons:
Departments of corrections should not incarcerate people for technical violations of probation and parole rules. In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.
Departments of corrections and state officials should expand the use of “good time” credits, and expand the use of clemency and commutations. Parole boards need to hold more — not fewer — hearings to let more people go home.
In jails:
State and local legislatures can expand the list of “non-jailable” offenses, which are not subject to arrest but can only be fined or cited.
Police and law enforcement departments can reduce the number of arrests — especially for “petty offenses” — and prosecutors can opt out of prosecuting people for certain offenses utilizing diversion services or other alternatives to incarceration.
Jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, people detained for technical violations can make up a huge part of a jail’s population.
Eliminate medical co-pays. Unaffordable medical copays in prisons and jails can lead to increased spread of disease in and around correctional facilities and postpone access to medical treatment, often resulting in worsening ailments/illnesses. With a highly infectious virus posing an ongoing threat, this can have deadly consequences. Forty states still charge incarcerated people copays to seek medical treatment. While some states suspended these fees during the COVID-19 pandemic, many have already reinstated them.
Support access to existing vaccines and promote vaccine education. Vaccination efforts should include an educational component that allows incarcerated people to get the information necessary to feel comfortable taking the vaccines. Additionally, the relationship between people in prisons and the medical staff of that prison is often defined by mistrust. Information about the safety and efficacy of any vaccine is limited for people behind bars, and governments should bring in outside medical experts and community leaders who will have the trust of the people who are incarcerated and give them multiple opportunities to ask questions and voice their concerns.
Develop systems to identify and respond to viral outbreaks early:
Establish metrics to identify outbreaks and protocols to respond to them: Corrections officials must recognize that the threat posed by viral outbreaks could dramatically increase quickly. They should have established processes to monitor the threat the virus poses and, when appropriate, plans to impose more rigorous interventions — such as education, masking, increased testing, and enhanced hygiene practices — to stop its spread.
Create outbreak response plans. During the COVID-19 pandemic, rather than developing plans to mitigate the harm of an inevitable outbreak, most states were focused on restricting the movements of incarcerated people within facilities — in other words, they attempted to “contain” the virus, which is all but impossible with communicable diseases. While many facilities do have outbreak plans for specific illnesses (like influenza), these plans are often outdated. Such plans should be reviewed and updated frequently, and should always include up-to-date contacts in local public health departments.
Include incarcerated populations in the priority groups for testing, treatment, and vaccinations.
Conclusion
Our colleagues at the UCLA Law COVID Behind Bars Data Project found that the mortality rate in U.S. prisons increased by 61% during the first year of the pandemic. There is no doubt that the failure of officials across the country to quickly and adequately respond to the COVID-19 pandemic in correctional settings is to blame. Moving forward, prisons and jails need to remember the lessons learned during the past three years to avoid repeating the same mistakes that helped the virus spread within both prisons and the surrounding communities. The nation’s overreliance on incarceration has left too many vulnerable people behind bars in the face of public health crises.
Unique survey data reveal that people under community supervision have high rates of substance use and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality.
Research shows that people on probation and parole have high mortality rates: two and three times higher than the public at large.1 That certainly suggests that our community supervision systems are failing at their most important — and basic — function: ensuring people on probation and parole succeed in the community.
With a similar approach to our recent series regarding the needs of peopleincarcerated in state prisons, we did a deep dive into the extensive National Survey on Drug Use and Health (NSDUH). The results of this survey, administered by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), provide key insights into these specific — and often unmet — needs faced by people under community supervision. Because this survey asks respondents if they were on probation or parole in the past 12 months, this dataset comes closer than any other source 3 to offering a recent, descriptive, nationally representative picture of the population on probation and parole.2
The data that we uncovered — and the analyses of this same dataset by other researchers discussed throughout — reveal that people under community supervision have high rates of substance use4 and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality. Moreover, the data show that people on probation and parole experience high rates of chronic health conditions and disability, are extremely economically marginalized, and have family obligations that can interfere with the burdensome — often unnecessary — conditions of probation and parole.
Who is under community supervision?
A brief demographic overview of the community supervision population
At the start of 2020, an estimated 4.1 million people were under community supervision, with the vast majority (80%) on probation. Most people on probation (75%) and parole (88%) were men and were serving a probation sentence for a felony offense (69%). Among people on probation, the “most serious offense” they were most often convicted of was drug related (26%). Among people on parole, most had a maximum prison sentence of a year or more (93%), and most commonly had been convicted of a violent offense (36%).5 Black people were overrepresented in both parole and probation populations: Accounting for 14% of the total U.S. population, Black people made up 30% of the probation population and 37% of the parole population. While most people involved in the criminal legal system — and under community supervision — are men, women serving criminal sentences of any kind are actually more likely than men to be under community supervision: in 2020, 86% were on probation or parole, compared to 67% of men serving sentences. In addition, people on probation (9%) and parole (10%) are twice as likely to identify as lesbian, gay, or bisexual when compared to the total population (5%).
Substance use and mental health
Three in 10 people under community supervision have substance use disorders, four times the rate of substance use disorders in the general population. Similarly, 1 in 5 people under community supervision has a mental health disorder, twice the rate of the general population.
In addition, NSDUH data illustrate that most people on probation and parole do not have adequate access to healthcare, implying that probation and parole offices are failing to match people with the services they need to succeed in the community. Nearly one-third of people on probation and parole with a mental health disorder report an unmet need for mental health treatment. Over two-thirds of people with substance use disorders report needing treatment, but not receiving it. Similarly, only about one-third of people on community supervision with opioid use disorder report receiving medication-assisted treatment (MAT), the “gold standard” of care.
Finally, many people on probation and parole have no health insurance, even though many people on probation and parole have incomes low enough to qualify them for Medicaid.6 25% of people on probation and 27% of people on parole were uninsured at the time of this survey. This lack of treatment access reported by people under community supervision represents a massive failure of probation and parole offices.
The community supervision population also has higher rates of disabilities, with particularly high rates of cognitive disabilities.7 Such disabilities can interfere with individuals’ ability to keep track of the 18 to 20 requirements a day people on probation must typically comply with. The particularly high rates of all types of disabilities among people on probation and parole also reflects the larger pattern of criminalizing people with disabilities.
Economic disadvantage, education, and children
The NSDUH data also indicate that people on probation and parole are extremely economically marginalized, which can interfere with probation and parole conditions. 3 out of 5 people on probation have incomes below $20,000 per year, with women and Black people having among the lowest incomes. More than half have a high school education or less. And people on probation and parole are three times more likely to be unemployed than the general population. Yet, as we have discussed before, people on probation and parole are required to payunaffordable fees and costs associated with their supervision conditions (such as drug testing or ignition interlock devices), even though many are living well below the poverty line.
Finally, the data reveal that many people — and more than half of women — on probation and parole have children. Yet, probation and parole requirements almost never consider childcare or eldercare responsibilities when setting supervision conditions, even as some states require courts to consider a defendant’s caretaker status when considering a sentence to incarceration.
General population
Probation population
Parole population
High school education or less
33%
52%
57%
Unemployed
3-4%
11%
15%
Have children
41-42%
46%
43%
Men
40%
43%
41%
Women
43%
54%
50%
Conclusions
Probation and parole systems are failing to link people to the healthcare they need, despite all the evidence showing disproportionate rates of serious illness and death within supervised populations. These “alternatives” to incarceration, ostensibly created to help people address the problems that led to their conviction in a community setting, also set people up to fail with burdensome, often unnecessary requirements that show little regard for people’s individual circumstances, including low incomes and childcare obligations. The clearest example of these counterproductive conditions is the requirement to abstain from drugs or alcohol; given that so many supervised people with substance use disorders do not receive treatment, what hope do they have of staying out of jail when a positive drug test may constitute a “violation”? Probation and parole systems can’t be seen as true “alternatives” until they are overhauled to support people’s medical and personal needs instead of simply monitoring and punishing their mistakes. Until then, state and local governments should double down on their investments in diversion programs that are proven to connect people with care — and, to that same end, keep people out of courts and jail as much as possible.
Footnotes
People on probation are also 3 times more likely to die than people in jails and state prisons over a given time period, adjusted for age (the study this was based on used data from 2001-2012). ↩
The Bureau of Justice Statistics conducts the Annual Probation Survey and Annual Parole Survey, which also provides a recent, descriptive, and nationally representative picture of the community supervision population. The demographic details available from the NSDUH are richer, however, going far beyond race, sex, age, and offense type. Moreover, the NSDUH presents self-reported data, while the BJS surveys present administrative data reported by probation and parole agencies. ↩
For the purposes of this analysis, we chose to use data collected in the 2019 NSDUH rather than the more recent 2020 survey results. In the 2020 NSDUH report, the authors cautioned that “care must be taken when attempting to disentangle the effects on estimates due to real changes in the population (e.g., the coronavirus disease 2019 [COVID-19] pandemic and other events) from the effects of these methodological changes.” Because of this warning, we elected to use 2019 NSDUH so that our results could be better compared over time. Researchers updating our work in the future, however, should note one important methodological change occurred in 2020: “2020 marked the first year in which substance use disorders (SUDs) were evaluated using criteria defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), as opposed to criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV).” ↩
“Substance use disorders” in this analysis were evaluated by the using criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). See footnote 3 for more information. ↩
The data on offense type for people on probation and parole used here from the Bureau of Justice Statistics, defines “violent” offenses as domestic violence offenses, sex offenses, or other violent offenses. However, generally, the distinction between “violent” and other crime types is a dubious one; what constitutes a “violent crime” varies from state to state, and acts that are considered “violent crimes” do not always involve physical harm. The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its comprehensive and relevant report, Defining Violence. ↩
In all states, Medicaid provides health coverage for low-income people who qualify based on income, household size, disability status, and a handful of other factors. Most people in contact with the criminal legal system are likely eligible for Medicaid: People in prisons and jails are among the poorest in the country and have high rates of disabilities, making them likely eligible for Medicaid in almost every state. People in contact with the criminal legal system have drastically lower pre-incarceration incomes than people who are never incarcerated. In fact, 32% of people in state prisons in 2016 who had insurance at the time of their arrest were covered by Medicaid (compared to about 19% of insured people nationwide). As an additional indicator of need among this population, 50% of people in state prisons were uninsured at the time of their arrest. ↩
In this dataset, “cognitive disabilities” are defined as “serious difficulty concentrating, remembering, or making decisions.” ↩
30 visualizations expose long-standing truths about mass incarceration in the U.S. and highlight the need for change
March 14, 2023
Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2023, its flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It 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 are starting to rebound. Although prison populations are still lower than they’ve been in decades, prison populations are beginning to increase as pandemic-related slowdowns in the criminal legal system are no longer driving down prison admissions. Additionally, officials continue to release fewer people from prison than before the pandemic.
Recent claims about increasing crime are not supported by data. Crime rates remain at near historic lows. However, some in law enforcement and on the right have sought to blame changes to the criminal legal system — such as bail reform, changes to police budgets, or electing “progressive” prosecutors — for increases in some crime rates since the start of the pandemic. However, these claims are not supported by the evidence: murder rates were an average of 40% higher in “red” states compared to blue states in 2020, police budgets have recently increased in the vast majority of cities and counties in the country, and places that did not implement any of these reforms also saw increases in crime rates.
In total, roughly 1.9 million people are incarcerated in the United States, 803,000 people are on parole, and a staggering 2.9 million people are on probation.
“The pandemic presented government leaders with the chance to turn the page on the era of mass incarceration, but the emerging data show that they largely squandered this opportunity,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “While incarceration rates dropped quickly at the start of the pandemic, this was the result of pandemic-related slowdowns rather than any deliberate or decisive action by elected leaders. It is disappointing, but not surprising that prison populations are already beginning to creep up again.”
The report includes 30 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, and therefore legally innocent, every day.
Black people are still overrepresented behind bars, making up about 38% of the prison and jail population and only 12% of U.S. residents.
Harsh sentences don’t deter violent crime, and most victims don’t support them. Contrary to popular narratives, most victims of violence prefer investments in violence prevention and alternative ways of holding people accountable rather than more incarceration.
At least 113 million adults in the U.S. (roughly 45%) 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.
“As our society transitions to a new ‘post-pandemic’ normal, we are seeing a return to business as usual as officials are beginning to abandon positive practices implemented in response to the pandemic,” said Sawyer. “The size of The Whole Pie should serve as a wakeup call for both the government and the public that if we don’t take meaningful action to disrupt the real drivers of mass incarceration — poverty, criminalization, low levels of investment in services that meet people’s needs, draconian policies that fuel the systems’ expansion — then the U.S. will retain the dubious distinction as the top incarcerator in the world.”
Federal prison officials are proposing to garnish 75% of any deposits made into incarcerated people's personal accounts if those people have court-related debts. It's an extremely harmful policy that will keep incarcerated people from buying basic needs.
The Biden Administration’s Federal Bureau of Prisons (BOP) recently proposed new, draconian rules on how and when the government will seize money earned by or sent to people in federal prisons. We signed on to a 37-page letter written by the National Consumer Law Center and former Prison Policy Initiative staff member and volunteer Stephen Raher opposing this proposal.
These proposed rules are complex, legally dubious, and far-reaching, so we wanted to explain what they would do and their devastating consequences. This proposal is the latest in a trend that we’ve followed closely for years: prisons and jails, which already lock up some of the most financially vulnerable people in the country, making their lives even more difficult. Our research on this topic offers important insights into why these policies harm not just people behind bars but also our communities and the nation as a whole.
What do the proposed rules do?
The proposed rules, which apply to people who owe outstanding court debts and participate in the Inmate Financial Responsibility Program (IFRP), would allow the government to take a huge portion of the small amount of money that people incarcerated in federal prisons earn or have sent to them by loved ones on the outside. On paper, the IFRP is a voluntary program. But while people in federal prison may not be forced to take part in it, there are consequences if a person doesn’t participate. Most notably, if an incarcerated person doesn’t participate, they likely won’t receive their “release gratuity” — the small bit of money the prison gives to an incarcerated person upon their release; essentially saying, “Give us the money you’re trying to save for your release, or else we won’t provide you with a little bit of money when you’re released.” In this situation, people in federal prison are damned if they do participate and damned if they don’t.
The proposal is a response to recent and sensational stories about ultra-wealthy people in federal prisons who have amassed unusually large amounts of money in their prison trust accounts while failing to pay legal fees and restitution. These examples are the exception, not the rule; most incarcerated people are poor before prison and even poorer once they get there. Rather than crafting rules that target these outliers, the BOP has written them in a way that will make it harder for people in prisons to survive today and more difficult to establish a life after they’re released. They’ve effectively taken a sledgehammer to a problem that requires a scalpel.
As prisons across the country increasingly force incarcerated people to purchase many of their daily basic needs, money plays a more important role in helping them obtain essentials like hygiene products, over-the-counter medication, and food, not to mention covering the costs of phone calls with loved ones on the outside. This proposal would take four steps that would make it harder for incarcerated people to access and save the little money they have:
Confiscate at least 75% of money sent to incarcerated people from their loved ones on the outside. One of the main ways incarcerated people get money is through money transfers from their loved ones on the outside. Under this change, if a person wanted their incarcerated loved one to have $25 to make phone calls to their child, they would actually have to send that person $100 — four times more than they actually will get.
Seize roughly 25-50% of wages earned from work. Prison wages — including federal prisons, where wages are regularly as low as 12-23¢ an hour — are notoriously bad. Under these proposed rules, a quarter or half (depending on what type of job they had) of the money earned by an incarcerated person would be seized, making these already abysmal wages even worse.
Eliminates protections that ensure incarcerated people have the money to call loved ones. Currently, the first $75 that a person in federal prison earns or receives every month is exempted from being taken to pay for legal financial obligations, so this money can instead be used on phone calls between the person in prison and their loved ones on the outside. These proposed rules would eliminate this exemption completely, making it much more challenging to maintain these social connections, which are critical for incarcerated people’s mental health and success after prison.
Pressures incarcerated people to make a one-time payment to pay off obligations, with the threat of notifying the U.S. Attorney’s Office if they don’t. Under the proposal, if a person has enough money in their trust account to pay off their financial obligations completely, they will be encouraged to pay off the entire balance in one lump sum payment, even if that leaves them with essentially no money for other essentials. While people would not be required to make the lump sum payments, the U.S. Attorney’s Office would be notified if they don’t, an implied threat that is significant enough to be considered coercive.
These rules are a bad idea
For many people, there is a self-evident, moral reason that these rules don’t make sense: They make the lives of tens of thousands of people in federal prisons — some of the most disadvantaged people in our country — even worse, in order to punish a handful of wealthy people in prison skirting their responsibilities. However, for those not convinced by this moral argument, there are other important reasons President Biden and the BOP should trash these rules.
They exacerbate existing inequalities
On the first day of his presidency, President Biden ordered all executive branch agencies — including the BOP — to work to redress inequities in their own policies and programs, including ensuring fair and just treatment of “Black, Latino, … and persons otherwise adversely affected by persistent poverty or inequality.” Rather than addressing these inequities, these proposed rules would make them worse, particularly for women of color. Rather than targeting the assets of a few ultra-wealthy individuals, they will impact all people in federal prisons — people who are disproportionately Black and Hispanic. However, the pain doesn’t end there. If the proposed rules were adopted, family members of incarcerated people would lose at least 75% of the funds that they send to their incarcerated loved ones. This change would dramatically increase the burden borne predominantly by women — disproportionately women of color — on the outside trying to provide for their families.
They undermine successful reentry
A person’s successful transition from incarceration is something we all have a stake in. However, this punitive proposal would work against this goal in two ways.
Research has consistently shown that one of the strongest predictors of whether someone will end up back behind bars after their release is whether they have strong family and social connections on the outside. These rules would make it much more difficult and costly to maintain these connections by making it harder for people to secure the money needed to make phone calls and send letters to loved ones on the outside.
Additionally, when a person is released, they need money almost immediately to secure housing, buy food, purchase clothing for job interviews, and secure transportation to those interviews and other appointments. These rules would make it harder for people in federal prisons to earn and save money to help them upon their release. Poverty is one of the greatest indicators of a person’s likelihood of taking part in criminalized behavior and ending up behind bars. This proposal would almost certainly condemn tens of thousands of people in federal prisons to poverty, even after their release.
These misguided rules would harm nearly all people in federal prisons to address a handful of extreme cases. They’re not just cruel, though; they also undermine the Administration’s stated goal of addressing racial and economic disparities while making it harder for a person to reenter society after their release. President Biden and the BOP should abandon this deeply flawed proposal.
Research shows diversion “works,” reducing harmful outcomes and increasing access to social services. However, studies also suggest diversion is routinely denied to people of color, sending them deeper into the criminal legal system. We review the research and remind practitioners that most diversion programs aren’t designed around racial equity — but should be.
As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process.1 This practice sounds like a win-win for communities — and it’s successful by manymetrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.
This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.
Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too.2 Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.
Cost: “Pay-to-play” diversion programs leave low-income Black and Hispanic people unable to participate
More often than not, diversion levies exorbitant fees on its participants. Indeed, many prosecutor-led diversion programs are funded by users (i.e., participants) themselves, creating a two-tiered system where those who can pay will receive the benefits of diversion. Desperate for an option that avoids prison time, others may enroll in diversion only to be kicked out when they can’t afford fees for participation, treatment, drug testing, or something else.
Across the country, prosecutors’ offices have pitched user-funded diversion as a virtuous and fiscally responsible approach to reducing mass incarceration.3 But the indisputable relationship between income, race, and ethnicity means that fee-based diversion remains out of reach for people of color, the same way that bail and other fines and fees disproportionately burden Black and Hispanic people.
A groundbreaking report from the Alabama Appleseed Center for Law and Justice highlights the bleak financial landscape of diversion.Their survey of nearly 1,000 people involved in diversion programs in Alabama revealed that low-income people resort to extreme measures to pay their fees: The majority of respondents (82%) gave up one or more basic necessities like rent, medical bills, or car payments in order to pay various fees. Unsurprisingly, more than half of a subset of survey-takers (55%) made less than $15,000 per year, and 70% had been found indigent. Despite this high level of need, only 10% were ever offered a reduced fee or a fee waiver for a diversion program.
Even though that survey’s respondents were about equally white (45%) and Black (47%) and the survey responses were not broken out by race, the report’s authors assert that the Black-white wealth gap in Alabama “could be a major reason” that Black Alabamians are disproportionately excluded from diversion opportunities.
Fee waivers are clearly the exception, rather than the rule: In 2016, The New York Timesreviewed diversion guidelines issued by 13 of South Carolina’s 16 state prosecutors, and found that only two documents mentioned the possibility of a fee waiver for indigent people. When we know so much about how poverty is criminalizedandracialized, diversion programs designed this way seem particularly cruel.
Eligibility: Diversion programs have narrow eligibility criteria, excluding people with prior “system” contact — who are disproportionately people of color
In a world where not every individual can be diverted, someone must decide who (or what type of charge) is eligible for diversion. The “seemingly neutral constraints” on diversion programs often prioritize people with little to no criminal history, with often arbitrary rules. Criminal history is also built into risk assessment tools, which quantitatively express a person’s public safety or “flight” risk.4 These tools are favored by courts nationwide because they appear accurate and objective, when in fact they’re built on racially-biased data.
Right away, these eligibility criteria disproportionately exclude Black people, who are arrested as youth, stopped by police generally, and jailed and imprisoned at higher rates than any other racial or ethnic group in the United States. For example, a recent study found that a Jacksonville, Fla. diversion program required a third degree, “nonviolent” felony charge and no more than one prior conviction for a “nonviolent” misdemeanor: In other words, a random and nearly impossible standard to meet. Unsurprisingly, only 16% of Black felony defendants were eligible for this program, compared to 23% of white and 28% of Hispanic defendants. Rules that unnecessarily limit diversion to “first-timers” only serve to keep criminalized, marginalized groups trapped in the carceral system.
Another vexing but all-too-common feature of post-filing5 prosecutor-led diversion programs is that they often require a guilty plea in order to participate. In pleading guilty, an individual signs away their right to any further due process, and faces immediate sentencing if they’re terminated from their diversion program. While these “post-plea” diversions (also called deferred adjudications) may be convenient for a prosecutor, who wouldn’t have to take further action on that person’s case, it’s unjust to force someone into this high-stakes situation just to receive social services.
Research also finds that some diversion programs require that participants have a specific family structure at home. According to the Sentencing Project, Black youth are more likely to live in single-parent, multi-generational, or blended households that do not meet these criteria, leading to a baseless finding of ineligibility. A 2018 study found that a youth’s family structure had no effect on whether or not they completed diversion; neither did race. Youth diversion programs also often require an admission of guilt, as explained above; research illustrates that Black and Native youth, likely due to greater mistrust of the criminal legal system, are less likely than white youth to admit guilt. This reality keeps youth of color from accessing diversion, which hurts their future prospects through the mark of a juvenile adjudication.
But eligibility is not always enough: A 2021 multi-site study found that in Tampa, Fla., qualified white defendants were more likely (29%) to be diverted to their drug pretrial diversion program, compared to qualified Black (22%) or Hispanic (18%) defendants. In Chicago and Milwaukee, racial and ethnic disparities in felony diversion rates were large, too, favoring white defendants; updated data from Chicago show that the disparity is shrinking, but still present.6
Discretion: Prosecutors decide who they think is capable or worthy of diversion; biases can leave racial minorities behind
Diversion decisions are often highly subjective, leaving candidates vulnerable to the racial biases held by police, prosecutors, judges, or other decisionmakers. Even when an individual qualifies based on their charge, criminal record, or need for treatment, they must ultimately be offered diversion. Unfortunately, research has shown that prosecutors offer diversion to Black defendants much less often than white defendants with similar legal circumstances.
A 2013 study found that Black, Hispanic, Asian and Native American (the last two grouped as “Other race”) male defendants were always less likely to receive pretrial diversion compared to similarly situated white defendants in 40 large jurisdictions in the U.S. The study’s author found that additional charges, or more than one felony charge, lowered the odds of pretrial diversion by as much as 35 percent. Since prosecutors tend tobring more charges, and more punitive plea offers, against Black and/or Hispanic defendants, factoring in the number of charges can hardly be considered racially neutral.
Similarly, in 2014, a group of researchers looked at people diverted to drug treatment in California, finding that differences in how Black and white people were diverted could not be explained by case-level details or by the state’s law implementing mandatory diversion for eligible drug offenses. In the end, they concluded that “diversion to treatment appears to be driven by the discretion of court officials” rather than any other factor.
Diversion can trigger devastating immigration consequences for non-citizens
One other insidious way that diversion (or lack of access to diversion) can perpetuate racial injustice is how it interacts with immigration law.
According to the Immigrant Legal Resource Center, a criminal conviction will set off federal immigration consequences, like deportation; therefore, someone who is required to plead guilty, or fails to complete a diversion program and is then convicted, suddenly faces incarceration and removal from the country, an excessive punishment that breaks apart families.
Take, for instance, one man whose first arrest led to a diversion opportunity, for which he pled guilty in order to participate. A legal resident of the United States, he learned that his guilty plea actually meant he could be deported, despite having no connections to the place he would be sent. In a move that only underscores this bizarre chain of consequences, the man asked his state (Ohio) Supreme Court to reverse course and allow the case to be prosecuted, due to the high likelihood that his charge would be lessened, and its outcome would not trigger deportation.
But the absurdity doesn’t end there: In federal immigration statute, the definition of a conviction is broad enough that even some defendants who haven’t pled guilty to a criminal charge, and have completed diversion, may be considered to have a conviction. The way individual diversion agreements are written will determine how “immigration-safe” the program is, an indication that diversion was not designed with this complex law, let alone the well-being of immigrant families, in mind.
Sadly, evidence also points to discretion working against Black youth and their families when it comes to diversion. A 2013 review of racial and juvenile justice mentions dangerous stereotyping of Black parents “unwilling to control” or supervise their child, leading to a subjective decision of ineligibility for diversion.
It’s difficult to pin down whether cost, eligibility, discretion, or some other mechanism is the most insidious when it comes to racial disparities in diversion. They all appear to burden Black families the most, even when accounting for other factors.
Diversion programs can address racial disparities by increasing access and eliminating collateral consequences
The research is clear: Diversion alone isn’t enough to address the harms of racialized mass criminalization. Left to their own devices, people who design diversion programs and policies have built in restrictions and subjectivity that disproportionately thwart people of color, forcing them further down the road to incarceration. Existing or proposed programs must take steps to ensure that post-arrest diversion programs are equitable and accessible by all, particularly communities that are overrepresented in the criminal legal system. These steps include (but are not limited to):
Vastly expanding eligibility criteria to address the reality that Black and Hispanic people have more frequent contact with police, jails, and courtrooms that can lead to exclusion from diversion programs. With so many more qualified participants, prosecutors or other decisionmakers may rely less on discretion and more on presumptive eligibility to move people off overwhelmed court dockets (or prevent them from formal “system” involvement in the first place).
Making diversion financially accessible to all participants, especially low-income people who may resort to extreme measures in order to stay in compliance. The status quo of user-funded diversion is out of touch with its purported goal of keeping people on pathways to health and success in their communities. Fee waivers should be automatic for those who have already shown indigency.
Mitigating collateral consequences of a conviction. The requirement to plead guilty in order to participate in diversion is illogical and overly burdens defendants of color who, once they have a conviction record, are likely to struggle finding employment, housing, or a future diversion opportunity. People who successfully complete diversion should have any relevant records expunged, preventing collateral consequences. Practices like leaving charges pending during a program or simply dismissing charges at the end often isn’t enough, as that activity may still appear in a background check.
Finally, research specifically about how race or ethnicity impact access to, or success with, diversion programs remains somewhat sparse.7 Individual program evaluations often show that diversion “works” and is cost-effective, but they typically don’t consider race or ethnicity, cost to participants, or apples-to-apples comparisons to other programs. Data collection on racial and ethnic groups in diversion must extend beyond Black and Hispanic groups, and should also include sex and gender identity. Failure to acknowledge and address inequities can exacerbate existing racial divides — saving the harshest aspects of the system for people of color while providing easier pathways for white people entangled in the criminal legal system.
Ultimately, leaders should keep in mind that even if these pretrial diversion programs are administered perfectly, they still come with a host of collateral consequences that can last for years or the rest of their lives. The best diversion programs are actually investments in social services and non-law enforcement responses to community needs, keeping people out of the criminal legal system entirely. These investments prioritize community well-being and public safety over punishment and can reduce the footprint of mass criminalization in America.
It’s also worth mentioning that we include diversion research in both adult and youth populations, even though our diversion report assumed an adult’s experience. Diversion actually originated in the juvenile justice system, and academic research has remained focused on outcomes of youth diversion programs. ↩
Not all fee-based diversion programs make headlines, but a marijuana diversion program in Arizona faced scrutiny in 2018 when advocates discovered that Maricopa county and its attorney raked in $2 million annually from the program, which is available to those who can afford the $1,000 fee. And a quick Google search for “program diversion fees” leads to similarly harsh fee structures, like a Broome County, N.Y. traffic diversion program charging $200 or $400 per ticket, or this Lee County, Ala. program extracting a $100 application fee, plus administrative fees ranging from $10 to $1,000 depending on the offense. ↩
Risk assessment tools are often mentioned with respect to pretrial decision-making, when a judge must determine if someone in jail should remain there with or without bail, or be allowed to await trial at home. However, risk assessments are frequently used in other parts of the criminal legal system, like in diversion, in correctional institutions, and for reentry and supervision purposes, with similar frameworks. ↩
Prosecutor-led diversion can occur at one of two stages in the evolution of a criminal case: pre-filing, or before the prosecutor files formal charges, or post-filing, after the court process has begun but before a final case disposition. Completion of post-filing diversion program leads to the initial charges being dismissed without a trial. But while charges are pending, or even after they’re dismissed, they can show up in a background check, harming employment, housing, and other prospects. ↩
According to analysis from Prosecutorial Performance Indicators (see “PPI 7.5, Diversion Differences by Defendant Race/Ethnicity”), the diversion rate for Black felony defendants in Cook County, Ill. (Chicago) was over 15 percentage points lower than the diversion rate for white felony defendants; in the first few months of 2020, this difference hovered around 6 percent. ↩
This may be because diversion programs are “local creations,” formulated by agencies and offices with their own rules and measures of success, making them hard to analyze and compare. ↩
The report examines the unique challenges women in the criminal legal system face and provides the clearest look at how the pandemic impacted women's incarceration in the U.S.
March 1, 2023
A report released today by the Prison Policy Initiative and the ACLU Campaign for Smart Justice presents the most recent and comprehensive data on how many women are locked up in the U.S., in what kinds of facilities, and why; as well as detailed data on incarcerated women’s demographic makeup and health.
Women in the U.S. experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. The new edition of Women’s Mass Incarceration: The Whole Pie, which the Prison Policy Initiative and ACLU have published since 2017, fills this gap with richly-annotated data visualizations about women behind bars.
The report reveals that the number of women behind bars fell significantly as a result of the COVID-19 pandemic, but is already rapidly returning to pre-pandemic levels. “The drop in women’s incarceration that we saw in 2020 was the kind of change needed to actually start ending the mass incarceration of women,” said report co-author Aleks Kajstura. “Unfortunately, because the changes during the first year of COVID-19 were due more to systemic slowdowns than policy changes, we’re already seeing the downward trend being reversed and more vulnerable women ending up in prison.”
The report highlights the importance of jails — an under-discussed part of the criminal legal system — to the story of women’s incarceration. Approximately the same number of women are locked up in jails as in state prisons. Jails are built for short stays, meaning that the disproportionate number of women locked up in jails (compared to incarcerated men) are stuck in facilities with worse healthcare and less programming.
Significant numbers of women in prison end up there after being disadvantaged as children: 12% report homelessness before they turned 18; 19% were in foster care at some point; and 43% came from families that received welfare or other public assistance.
53% of women were jobless in the month before the arrest that led to their incarceration, suggesting that unemployment is a major factor in leading women to interactions with the criminal legal system.
Most women in prison have physical/cognitive disabilities (50%) and/or mental illnesses (76%), showing the punitive approach state and local criminal legal systems have taken to people struggling with these serious health issues.
58% of women in state prisons are parents to minor children, and of those, most are single mothers who were living with their children prior to imprisonment — making it likely that incarceration uprooted their children and led to the termination of their parental rights, permanently breaking up their families.
Finally, the report breaks down the racial demographics of women in prison and jail, details the number of women on probation and parole, and provides key statistics on the incarceration of girls in juvenile facilities.
“Too often, low-income women are punished by laws criminalizing poverty and caught in the wide net of Broken Windows policing that harms families and communities,” said Kajstura. “Both criminal justice reform and broader efforts to expand welfare and healthcare in this country will be necessary to end our nation’s tenure as the world’s leading incarcerator of women.”
Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.
Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights, but advocates are fighting for creative and holistic solutions.
As a result of tireless advocacy, often led by formerly incarcerated women, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)
Caregiver mitigation and diversion laws: The best existing reform targeting family separation
Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,1Louisiana, Oregon,2Tennessee, Washington, and Missouri, 34 caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill proposed in Tennessee.)
It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.
Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)
Even when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway,5 and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.
Proximity laws: A promising reform facing major implementation challenges
Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”7 Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.8Further, many states only have one women’s prison that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.
Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”9 such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.
Case Study: A Look At Parental Incarceration in Illinois
The experiences of advocates in Illinois show effective implementation of laws is essential for success.
While Illinois advocates have won several reforms that expand incarcerated parents’ rights, many barriers have hindered their implementation. Observing this long uphill battle offers interesting insights about the limited value of passing legislation without effective implementation measures in place.
Illinois is one of seven states with a nursery where incarcerated new mothers can spend up to two years with their newborns, but there are often more than three times as many pregnant people in the Illinois Department of Corrections than there are spaces in the Moms and Babies program. Even though demand outweighs capacity, admissions requirements are so strict that spaces in the program often sit empty. At the beginning of the COVID-19 pandemic, all program participants were released, which is a promising reminder that simply releasing parents from prison is possible. As of April 2021, the program had not resumed accepting participants even though the DOC had started re-admitting people, including pregnant people.10
Additionally, the 1998 Women’s and Children’s Pre-release Community Supervision Program Act requires the state to create a community-based program where mothers and young kids can live together outside of prison, but according to 2021 reporting, “the directive has been underutilized … only one program, the Women’s Treatment Center in Chicago, has been contracted.”11An article in Truthout reported that over a four-year period, the Women’s Treatment Center received only three women from prison. Newer reporting from the Chicago Tribune indicates that this center has since closed.
In 2019, Illinois attempted to expand incarcerated parents’ rights by passing the Children’s Best Interest Act, inspired by legislation crafted by members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, such as the original Tennessee bill. The Children’s Best Interest Act requires that a court consider whether a defendant is the parent of a child or a caregiver for a relative who will be negatively impacted by the defendant’s absence. The act specifies that the following factors be considered:
If the parent is breastfeeding the child;
the age of the child, with strong consideration given to avoiding disruption of the caregiving of an infant, pre-school, or school-age child by a parent;
the role of the parent in the day-to-day educational and medical needs of the child;
the relationship of the parent and the child;
any special medical, educational, or psychological needs of the child;
\the role of the parent in the financial support of the child.
The Act also allows defendants to present another form of mitigation during sentencing: “a Family Impact Statement…which the court shall consider before imposing any sentence and may include testimony from family and community members, written statements, video, and documentation.”12
While the potential benefits of this legislation are promising, many limitations have stifled its impact so far. After going into effect in January 2020, the COVID-19 pandemic delayed sentencing hearings, pushing back implementation. Further, though advocates on the ground are organizing to spread the word, the legislation did not create an initiative to educate judges and attorneys about the changes that result from this legislation. Finally, the act does not change or bypass mandatory minimums, meaning there are limitations to the discretion that a judge can exercise during sentencing. Illinois advocates continue resisting these barriers to implementation, and their struggle can provide insights that advocates in other states might consider when pursuing legislation about incarcerated parents in their own state.
Considerations for successful policy and advocacy efforts
A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.
Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:
Model legislation: the original draft of the Tennessee legislation, shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and a 2018 Louisiana bill drafted by Operation Restoration, which would have also allowed courts to vacate the judgment of conviction with successful completion of the program, and would broaden eligibility to include caretakers of people with mental or physical disabilities of any age who cannot take care of themselves.13
Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.
Footnotes
Most of these states’ laws create diversion programs that begin during the sentencing process, allowing defendants to avoid incarceration but not a criminal conviction. California’s law goes further: Its program diverts primary caregivers from incarceration during the pretrial period, and individuals who successfully complete the program avoid not just incarceration, but the collateral consequences of a criminal conviction. ↩
Oregon’s law, passed in 2015, established a “Family Sentencing Alternative Pilot Program,” to sunset in 2025 (or, presumably, to be replaced with more permanent legislation). Currently, the diversion program is only active in 5 of the state’s counties: Deschutes, Jackson, Marion, Multnomah, and Washington. The linked report includes more information about outcomes of the program. ↩
One more state — Minnesota — is not on this list but deserves a mention. In 2021, Minnesota passed the “Healthy Start Act,” allowing the Department of Corrections Commissioner to conditionally release people to community-based programming who are pregnant or immediately postpartum for up to 12 months. We did not include this among the states that have passed primary caregiver legislation because of how few caregivers are eligible for this program and for how limited the diversionary period is. However, it is a vast improvement on the previous law, which only allowed a 36-to-72 hour departure from the correctional facility for a mother to give birth and separated mothers from their newborns immediately. ↩
Texas and Arizona also introduced caregiver diversion bills that did not pass in 2019 and 2021, respectively. ↩
This study states that “Recidivism, the outcome variable, was measured two different ways in this study. It was operationalized as 1) a reconviction for a felony-level offense, and 2) a revocation for a technical violation.” We believe that how you measure “recidivism” is complex and that the equation of these two outcomes is problematic, as is outlined here. ↩
Operation Restoration also successfully passed a related Primary Caretakers Arrest Bill in 2021, which sets out training and procedures for arrests of people caring for minor children, to reduce the traumatic impact of primary caretakers’ arrests on children. ↩
Millions of people with criminal records likely meet the income eligibility requirements for public housing assistance. But needlessly strict local policies lock them out of housing. We explain how your public housing authority may be overly exclusionary.
by Selena Muñoz-Jones and Emily Widra,
February 15, 2023
Housing is a human right: the right to adequate housing is recognized by international law, including the Universal Declaration of Human Rights. But we know that in the U.S., hundreds of thousands of people face homelessness, and there are particularly high rates of homelessness and housing insecurity among formerly incarcerated people across the country. Our previous research found that people who have been to prison just once experience homelessness at a rate nearly 7 times higher than the general public. But people incarcerated more than once have rates 13 times higherthan the general public. Inevitably, part of the problem is that public housing policies — which should be a part of a crucial safety net against housing insecurity — actually discriminate against people with criminal legal involvement and criminal records.
Part I of this briefing delves deep into the policies of the U.S. Department of Housing and Urban Development (HUD) that give local public housing authorities (PHAs) overly broad discretion to deny housing to people with criminal records. We review how PHAs wield this discretion to deny people housing in more ways than required by federal law. Part II of this briefing is a guide to critically reviewing public housing policies to help you identify the criteria your local PHA has chosen to use to exclude people with criminal records and to help you evaluate whether those criteria are necessary or potential targets for local-level reforms.
Part I: An introduction to local public housing authorities’ exclusion of people with criminal histories
We know that access to safe, stable, and affordable housing is crucial for healthandwell-being, and for formerly incarcerated people, housing is also crucial for successful reentry. The transition from prison to the community is rife with challenges. But before formerly incarcerated people can begin to address health problems, find stable jobs, or learn new skills, they need a place to live.
Across the country, there is a shortage of affordable housing which gives landlords the option of denying housing to people with criminal records (most conduct criminal background checks on prospective renters), leaving public housing, Section 8 vouchers, and other assisted housing as their only choices. But even public housing sets up barriers for people with any involvement with the criminal legal system. At least 79 million Americans have a criminal record1 and more than a quarter of formerly incarcerated people are unemployed, meaning that millions of people with criminal histories likely meet the income eligibility requirements for public housing assistance:
While the available data do not allow us to determine exactly how many people would qualify for public housing if not for their prior criminal legal system contact, based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people. The criminal legal systemdisproportionatelytargetspeople of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies.
Introduction to public housing authorities
There are over 3,000 public housing authorities (PHAs) granting access to the more than 970,000 public housing units for low-income families and individuals across the country. PHAs are local agencies that determine public housing eligibility based on general guidelines published by the federal Department of Housing and Urban Development (HUD).
In 1968, the Fair Housing Act expanded the Civil Rights Act of 1964, prohibiting discrimination in housing transactions (renting, buying, and selling) on the basis of race, religion, sex, national origin, family status, and disability. Importantly, the 1968 Fair Housing Act — nor any subsequent revision — has not considered criminal history status as a protected class, meaning that housing policies can legally discriminate based on criminal legal system involvement.2
However, in 2016, HUD issued a memo to PHAs clarifying that while having a criminal record is not a protected status, criminal records alone do not justify an automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination. Even without identifying people with criminal histories as a protected class, this memo should have created a pathway to hold PHAs responsible for denials of housing with discriminatory intent or effects as violations of the Fair Housing Act. But although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement, as we explain below.
Doubling down on its 2016 guidance, in June 2022, HUD published the most recent changes to federal public housing policies. These guidelines advocated for PHAs to make their 2023 public housing policies3as inclusive as possible for people with histories of criminal legal system involvement. It remains to be seen how PHAs will — or will not — incorporate this directive, as there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.
Denial of public housing assistance for people with criminal histories
HUD establishes two types of denials — mandatory and permissive — that local authorities use in making decisions about housing for people with criminal histories. The language in both sections leaves far too much room for discriminatory decision-making by local public housing authorities (PHAs).
Mandatory prohibitions
First, there are automatic reasons for which local PHAs must issue denials, as decreed by HUD (“mandatory prohibitions”) (24 CFR §982.553):
The PHA determines that any household member is “currently engaging in illegal use of a drug;”
The PHA determines that it has reasonable cause to believe that a household member’s “illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents;”
Any household member has ever been convicted of “drug-related criminal activity for manufacture or production of methamphetamine” on the premises of federally assisted housing;
A household member has been evicted from federally assisted housing for “drug-related criminal activity” in the past three years; or
Any member of the household is subject to a lifetime registration requirement under “a State sex offender registration program.”
As you can see, throughout these reasons for mandatory denials, there is still significant room for discretion at the local level. For example, there is no definition of what “currently” means and each PHA has the authority to define this timeframe however they want: for example, “currently” could be defined as within the last week, the last six months, or within the last year.
Permissive prohibitions
The second kind of denial issued for people with criminal histories is not federally required, but instead, the PHA elects to expand the criteria for denial. These “permissive prohibitions” often build on the above federal requirements to make public housing access even more restrictive. PHAs “may prohibit admission” if the PHA determines that any household member “is currently engaged in, or has engaged in during a reasonable time before the admission” the following behaviors (24 CFR §982.553):
“Drug-related criminal activity;”
“Violent criminal activity;”
“Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;” or,
“Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).”
Ultimately, the federal government offers PHAs freedom in determining how to define all of the terms used above, including “currently,” “reasonable time,” “threaten,” and “peaceful enjoyment,” essentially granting PHAs vast autonomy over denials of public housing assistance for virtually any criminal history they choose.
Addressing your local PHA policies
Local PHAs can — and do — exercise a great deal of discretion when crafting and implementing their policies that determine who is and isn’t eligible for low-income public housing. While HUD provides guidelines on criteria for access and denial (24 CFR §982.553), individual PHAs often make their policies even more restrictive than the HUD recommendations. In fact, almost all PHAs use permissive prohibitions to make their policies more restrictive.
Not all public housing policies are created equal, and we encourage you to investigate your local policies. To that end, because these policies often use the same general template, we have looked at general trends across these policies to outline key areas for local advocates to take a closer look at. In Part II below, we offer a guide for analyzing of public housing policies. If you find your local public housing authority is needlessly discriminating against people with criminal histories, we encourage you to advocate for changes to the policies for the coming year. These documents are public and are often updated annually with public comment periods (often in the first few months of the calendar year). This is an opportune time to view the documents, provide necessary feedback, and advocate for fair and just housing policies in your community before they are submitted for approval and implemented.
Part II: How to critically review your local public housing authority policy’s exclusions for people with criminal histories
Local public housing authority policies often limit or completely deny public housing assistance to people with criminal histories. Some of the reasons for exclusion are mandatory and determined by the federal Department of Housing and Urban Development (HUD) (see Part I for more information on these mandatory prohibitions). But most public housing authority policies are even more exclusionary than the federal regulations require, needlessly denying housing assistance to those likely to need it most.4
It’s not always clear how or why people with criminal histories are denied public housing assistance, nor which rules could be changed through advocacy efforts. We put together this guide to help local advocates and decision-makers identify questions to consider when looking for ways to make local public housing policies more inclusive and housing more accessible to residents with criminal histories.
Here are 5 major questions to look at in your local policy:
What actions and behaviors that exclude people from public housing?⤵
How does the PHA define “current” and “currently”?⤵
What evidence does the PHA uses to identify prohibited actions and behaviors?⤵
What kinds of actions and behaviors exclude people from public housing assistance?
There are five federally required “mandatory prohibitions”, or behaviors for which PHAs are required by HUD to deny public housing assistance. But there are far more “permissive prohibitions” — i.e., behaviors for which PHAs can choose to deny assistance regardless of federal guidelines — and we find that PHAs exercise significant discretion to make these policies more exclusive than necessary:
“Drug-related criminal activity.” HUD defines “drug-related criminal activity” as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug” (24 CFR §5.100). Federal regulations require denial of assistance if there is “current” engagement “in the illegal use of a drug” or “a pattern of illegal drug use [that] may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents” (24 CFR §982.553). However, federal regulations do not require PHAs to look for any history of “drug-related criminal activity” nor does HUD require PHAs to deny assistance to people with such a history.
Importantly, throughout all public housing authority policies, “illegal drugs” refers to federally illegal drugs, including marijuana (the medical use of cannabis has been legalized in 37 states and D.C., and the recreational adult use of cannabis has been legalized in 21 states and D.C.). So, for example, while someone has not participated in the “illegal use of a drug” by using marijuana in the state of Colorado (where it is legalized), for the purposes of public housing assistance, a Colorado PHA can and will consider this “drug-related criminal activity” to deny assistance. At a minimum, PHA policies should be written to be in line with state law, specifying exceptions for drug-related activities in states where those drugs have been decriminalized. A more comprehensive step would be to pass H.R. 3212,5 a bill introduced in the House to resolve this discrepancy between state and federal marijuana laws in public housing assistance.
“Violent criminal activity.” HUD defines this as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage” (24 CFR §5.100). Federal regulations do not require PHAs to look for any history of “violent criminal activity” nor does HUD require PHAs to deny assistance to people with this history.
While HUD provides this loose definition of “violent criminal activity,” it does not actually specify which criminal offenses may or may not be included, allowing the PHA freedom, again, to decide what behaviors can be considered “violent criminal activity.” This matters because what constitutes a “violent crime” varies between jurisdictions,6 and HUD’s provided definition does not even try to clarify what offenses are encompassed by this vague definition. In some states, entering a dwelling that you do not own is a burglary, a “violent” offense.7 Similarly, several states consider “purse snatching” and theft of drugs to be “violent” offenses. The reality is that while these offenses may momentarily shock or scare someone, they are hardly indicative of a long-term pattern of “violence” towards people, and certainly not indicative of an inability to safely live in publicly assisted housing, but PHAs are still able to consider them when denying someone housing.
PHAs currently denying housing on the basis of “violent criminal activity” in an applicant’s past should reconsider. People convicted of violent offenses have among the lowest rates of recidivism, illustrating again that people who have committed a violent act are not inherently violent people and can succeed in the community. People convicted of violent offenses are less likely to be re-arrested in the years after release than those convicted of property, drug, or public order offenses.8 An act of violence represents a single moment in someone’s life, and shouldn’t be the only factor that determines their access to housing.
Other, unspecified “criminal activity.” HUD permits — but does not require — PHAs to deny public housing assistance if the PHA determines that a household member is engaged in “criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity” (24 CFR §982.553).
HUD provides this purposefully vague language, allowing PHAs to determine what behaviors they consider to “threaten the health, safety, or right to peaceful enjoyment.” Without any definition of what a threat to “the right to peaceful enjoyment of the premises” refers to, PHAs are free to discriminate against people who participate in almost any “criminal activity,” no matter how innocuous.
What does it mean that the PHA is evaluating “current” actions and behaviors?
Some “lookback periods” (that is, the timeframe in which behaviors are evaluated in determining eligibility for public housing assistance) are mandated by HUD (see sidebar). But there are also lookback periods that the PHAs are able to determine on their own, with no minimum or maximum guidelines from HUD. When evaluating “current” behaviors, PHAs have the ability to define what “current” means. While to most people, “current” means “right now,” PHAs define “current” in a number of different ways:
For example, some PHA policies define “currently engaged in the use of illegal drugs” to include “any use of illegal drugs in the previous six months,” or any other period of time they choose.
Similarly, “any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol” can mean almost any range of time chosen by the PHA.
Some PHAs do not even try to define “currently” or “current” in their policies, shifting this significant amount of discretion to individual decision-makers within the PHA, leaving room for inequitable decisions even within the same agency.
Lengthy lookback periods are a serious problem because they cast such a wide net. Looking at drug convictions alone, almost 400,000 people are currently incarcerated for a drug offense, and law enforcement make over 1 million drug possession arrests each year (many of which lead to convictions). The number of people excluded by lengthy lookback periods for “current” or “patterns of” drug use when they apply for public housing is staggering, given these statistics. Stable, safe, and affordable housing is crucial to reducing recidivism for all types of offenses, including drug offenses. To enhance public safety, PHAs should be expanding access to housing for people with criminal histories, not limiting it.
What time limits does HUD specify for mandatory denials?
If any household member has ever been convicted of “production or manufacture of methamphetamine on the premises of federally assisted housing,” regardless of how long ago this occurred, the PHA must deny assistance. The federally mandated lookback period here is “lifetime”.
Similarly, if any household member has ever been subject to a lifetime registration requirement under a “sex offender registration program,” the PHA must deny assistance, no matter how long ago it was. The federally mandated lookback period here is “lifetime”.
HUD also requires the PHA to deny assistance if any household member has been evicted from federally-assisted housing in the last 3 years for “drug-related criminal activity,” but PHAs can extend this time period as much as they would like, and we have seen cases where this was extended from the federally required 3 years to upwards of 5 years. The federally mandated lookback period here is 3 years, but that is only a minimum.
Given what we know about substance use, harm reduction, and the importance of housing in recovery,9 HUD should consider removing drug use as a criterion for denial. Until then, local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for “current drug use.” Some PHAs rightly have policies in place to overlook possible drug use in the lookback periods if a person has completed a drug rehabilitation program. Another possibility is for PHAs to create a process of (1) informing applicants who are denied housing for this reason of the PHA’s policies regarding drug use, (2) connecting them with community resources for treatment or supportive housing, if desired, and (3) encouraging them to reapply for public housing assistance after participating in a drug rehabilitation program.
What evidence is the PHA using to identify prohibited actions and behaviors?
Federal guidelines grant PHAs significant discretionary power in determining an individual’s participation in “criminal activity” (whether “current” or within a specific lookback period). PHAs can — and do — use the following “evidence of criminal activity” to determine eligibility for public housing assistance:
Arrests. PHAs cannot use arrest history alone to deny public housing, but they can use a known arrest as a trigger to look for more “evidence of criminal activity” or to be used in conjunction with other “evidence of criminal activity,” like convictions.
Arrests can’t be used as the sole “evidence of criminal activity” because they are not reliable indicators of actual criminal behavior, as evidenced by the large number of criminal cases that are dismissed or otherwise result in non-conviction. For example, Measures for Justice found case dismissal rates (the percentage of cases filed in court that were dismissed) ranging from 14% (in Pennsylvania) to 46% (in North Carolina) in the 16 states for which they had access to the data. And even before cases are filed in court, many cases referred by law enforcement are rejected by prosecutors; Measures for Justice found that prosecutors rejected 20% of all cases in Missouri, and 22% in Florida (the two states for which they had these data).10
Convictions. PHAs can deny public housing assistance based on conviction records. Many PHA policies will state something indicating that a “conviction is more heavily weighted than an arrest,” but it’s important to note that arrests without convictions can — but shouldn’t — still be used in conjunction with a historic conviction to deny public housing.
Evictions. A history of eviction is not an indicator of “criminal activity,” but a PHA can use an eviction history “related to the use of illegal drugs or the abuse of alcohol” as a reason to deny public housing assistance. And that creates a loophole to the “arrests aren’t evidence enough” rule: Considering that the federal regulation disallowing the use of arrests alone to deny housing is relatively recent (dating back to the 2016 HUD memo), people who were evicted following an arrest prior to the rule change could still be barred from public housing today because of the past arrest and subsequent eviction (regardless of conviction).
In addition, evictions are used to determine whether a household can meet the financial obligations of public housing. But by definition, people applying to public housing are doing so because they have difficulty meeting current financial obligations for housing, so policies that use prior evictions to determine eligibility for housing support are particularly nonsensical.11
What happens when someone is denied public housing assistance?
When a PHA denies housing assistance for a reason other than “mandatory prohibitions”, the individual or family can petition for an informal review process. However, HUD offers a long list of reasons that the PHA does not have to grant an informal review, including “discretionary administrative determinations by the PHA,” which could include almost any reason for the PHA to deny assistance (24 CFR §982.554). Additionally, if an informal hearing is required to determine if the reasons for denial “are in accordance with the law” (24 CFR §982.555), individual PHAs create the parameters of the hearing, including how quickly a family needs to request a review or hearing and instances where the denial automatically stands if the individual or family is late to the hearing. For instance, we’ve found PHA policies that state denials will stand automatically if someone is more than 15 minutes late to the hearing.
The review and hearing process is often impossible for people with criminal histories and low incomes. People with low incomes are less likely to have reliable transportation or child care, and sometimes criminal legal system involvement itself can interfere with daily life in ways that can be disqualifying.12 For example, people on probation and parole are often required to submit to random, unannounced home or work visits, which could interfere with timely arrival at scheduled hearings.
A standardized, best practice outlined by HUD would offer consistency and clarity to the review and hearing process. Instead of permitting individual PHAs to determine what “discretionary administrative determinations” do not require an informal review, HUD should outline exactly what determinations are not subject to external oversight. Similarly, while certain timelines may inevitably vary between localities based on their infrastructure, it is important for HUD to restrict situations in which denials automatically stand despite the PHA agreeing to an informal review. People with criminal histories should not be forced to jump through countless extra hoops to have the PHA’s decisions reviewed. Again, housing policies should be working towards expanding housing access, not restricting it.
Who makes the decisions?
The decision-makers that determine who gets access to public housing assistance vary by locality, but are almost never specified in the policies. Often, these policies state that “the PHA decides to offer or deny assistance,” which provides no information about who, exactly, is making these critical decisions. While every PHA has a director — and we can assume most decisions go through them — there are often cases where a city or county board of commissioners can be heavily involved in the decision-making process.
Because of the variance — and often the obscurity — of who the decision-makers are, we encourage advocates to reach out to their local PHAs for clarity and to advocate for adding this information to the public housing policy.
Recommendations
The discretionary power of PHAs resides in the ability of these systems to work without much public investment and oversight. Wherever possible, we encourage advocates to participate in public comment periods when these policies are drafted annually and let the PHAs know that you are invested in expanding housing access for all.
While local advocacy efforts can’t change HUD’s mandatory reasons for denial, which of course, should be changed, local advocates can make important changes in how their local PHAs set, interpret, define, and measure criteria for denial:
Invest in expanding affordable housing and public housing. Currently, every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability. A 2022 Human Rights Watch report finds that “policy decisions taken by the U.S. federal government have resulted in a housing assistance system that fails to ensure the human right to housing,” in part due to serious reductions in federal funding of public housing. The report proposes two practical recommendations: the federal government should increase funding for affordable housing, expand funding for public housing, and review other housing assistance programs to ensure they are adequately serving the lowest-income families, and state and local governments should allocate more financial support for public housing to maintain safe, affordable low-income housing regardless of federal funding.
Eliminate additional reasons for denial beyond those required by HUD. All of the “permissive” denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.
Remove local discretion to “look back” into criminal history further than HUD requires. There are two ways to implement this reform:
Require PHAs to provide evidence-based justification for lookback periods beyond the few minimums set by HUD. HUD could require PHAs to provide their reasoning and justification for lookback periods that go beyond the HUD requirements. We would encourage HUD to oversee these justifications and only allow those based in fact, rather than in stereotypes of people with criminal legal system contact.
A HUD mandated standard lookback period. A mandatory lookback period that is as short as possible — without permitting the PHA to extend the lookback period — would eliminate much of the discretionary, subjective power the PHAs hold over people looking for safe and affordable housing. HUD should provide reasoning and justification for whatever lookback period it imposes.
To reduce opportunities for mistakes or discrimination, require PHAs to always issue crystal clear explanations as to why they denied housing. At a minimum, PHAs should provide clear standards for denial, including specific disqualifying offenses, allowable types of evidence, clear and relevant lookback periods, and what person(s) or decision-making bodies have discretionary power.
Make the appeal process clear and fair. While HUD does require any denial to include a “notice of denial” that includes “a brief statement of the reasons for the PHA decision,” we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based (24 CFR §982.555). Currently, HUD mandates that any denial “must notify the family that the family may ask for an explanation of the basis of the PHA determination, and that if the family does not agree with the determination, the family may request an informal hearing on the decision” (24 CFR §982.555). HUD provides guidelines on how reviews and hearings operate, but again, a lot of local discretion is built in: for example, the PHA determines the deadline for requesting an informal hearing. Furthermore, HUD states that the family may be represented by a lawyer or other representative “at [their] own expense” (24 CFR §982.555), but we know that people facing discretionary denials of public housing assistance for criminal legal reasons are unlikely to be able to afford an attorney. To make this process clear and fair, advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service (often run by state and local bar associations).
Footnotes
Not all people with a criminal record have been incarcerated in a jail or prison. ↩
A protected class refers to people who have “a common characteristic and who are legally protected from discrimination based on that characteristic.” Under federal law, people are protected from discrimination based on race, color, religion, sex, gender, sexual orientation, pregnancy, national origin, age, disability, and genetic information. People in protected classes can sue for discrimination based on their protected class status in housing and employment. In 2022, Atlanta added formerly incarcerated people to their list of protected classes, which “prohibits discrimination against individuals for criminal convictions, just as it offered legal protections against racial, age-based and other forms of discrimination.” For more information on making formerly incarcerated people a protected class, seeEnding Legal Bias Against Formerly Incarcerated People from the Haas Institute at UC Berkley. ↩
Throughout this briefing, we refer to the policies from public housing authorities as “public housing policies” that outline the criteria for access to housing assistance. These are often called Administrative Plans (APs) and/or Admissions and Continued Occupancy Plans (ACOPs), and serve to establish the local policies for the administration of public housing assistance. These plans are usually updated annually and these documents are often quite long and can range anywhere from fifty to five hundred pages in length. For an example of what to watch out for in these policies, see Part II of this briefing. ↩
As discussed in Part I and the 2018 Prison Policy Initiative report, Nowhere to Go: Homelessness among formerly incarcerated people, formerly incarcerated people are almost 10 times more likely to be homeless than the general public, and people who have been incarcerated multiple times are twice as likely to be homeless as those who are returning from their first prison term. ↩
In 2021, House of Representatives Delegate for Washington, D.C. Eleanor Holmes Norton introduced H.R.3212 to remedy this discrepancy between state and federal marijuana laws: “This bill specifies that (1) an individual may not be denied occupancy of federally assisted housing on the basis of using marijuana in compliance with state law, and (2) the Department of Housing and Urban Development may not prohibit or discourage the use of marijuana in federally assisted housing if such use is in compliance with state law.” (As of January 2023, there has been no movement with this bill since it was introduced in May 2021). ↩
The distinction between “violent” and other crime types is a dubious and subjective one; what constitutes a “violent crime” varies from state to state and from policy to policy, and acts that are considered “violent crimes” do not always involve physical harm. The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its comprehensive and relevant report, Defining Violence. ↩
This statistic is based on re-arrest, which, as a measure, casts the widest net — and therefore estimates the highest rates of recidivism — but does not actually reflect anything about actual guilt or convictions. (For more information on recidivism and “violent” offenses, see our 2020 report, Reforms without Results.) ↩
With stable housing, people’s capacity to seek out regular healthcare, employment opportunities, and community support expands significantly. With a serious shortage of supportive sober or harm reduction housing options in the U.S., many formerly incarcerated people and many people who use drugs may not have access to stable, affordable housing. ↩
For a detailed discussion of how arrests are misused by non-criminal justice authorities to make decisions (such as those made by public housing authorities discussed here), see “Arrests as Regulation,” (Jain, 2015). ↩
Even in instances where PHAs offer remote informal hearings, this can still create a burden to the family for the same reasons, but in addition, low-income families may lack ready access to computers and other necessary technology. ↩
In the United States, Native people1 are vastly overrepresented in the criminal legal system. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate (350 per 100,000) and more than four times higher than the state and federal prison incarceration rate of white people (181 per 100,000). These disparities exist in jails as well, with Native people being detained in local jails at a rate of 316 per 100,000. Nationally, the incarceration rate in local jails is 192 per 100,000, and for white people, the jail incarceration rate is 157 per 100,000.
Even when government data on incarceration are disaggregated by race, the way that Native incarcerated people are counted is inconsistent and often underreports their numbers, because people reporting two or more races are lumped into various categories depending on who is publishing the data. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.