Amicus Brief: In prison, a $15 fine means so much more

by Sarah Staudt, January 31, 2024

Last week, the Prison Policy Initiative filed an Amicus Curae brief in a suit filed by Rights Behind Bars, who are representing Demmerick Brown, a man incarcerated in Virginia’s Red Onion State Prison.¹ In August of 2020, Mr. Brown went to the prison barbershop to get a haircut and a shave. It was the height of the pandemic, and Mr. Brown was wearing a protective mask as required. Naturally, the barber asked him to remove his mask so he could shave his face. There were guards around; none of them said anything. But the next day, he received a disciplinary ticket fining him $15 for failing to wear a mask.

This truly Kafka-esque series of events led Mr. Brown to ask for a hearing to dispute the fine. When he was denied, he sued. But the District Court found that he wasn’t entitled to a hearing. The prison could take his money without ever having to justify themselves. The court said that this was because $15 was too small an amount of money to trigger constitutional protections.

What the court failed to understand is that $15, while just being the cost of a sandwich outside prison walls, represents dozens or hundreds of hours of labor inside, and people rely on the money they make behind bars to fill their basic needs and contact their families. In our brief, we drew on our years of work studying the economics of life behind bars to help the fourth circuit understand that $15 inside doesn’t mean the same thing as $15 does on the outside. In our brief, we show that:

• In Virginia, the minimum wage in prison is $0.27 an hour, which means it takes 33 hours of work to earn $15. A person earning Virginia minimum wage outside of prison who worked 33 hours would earn $396. In other Fourth Circuit states, the wages are even lower: In North Carolina, $15 inside is the equivalent of 375 hours worked – on the outside, that would be $2,719.
• Taking away money from someone’s account inside means taking away their ability to pay for the basic things they need to live with dignity. In Virginia, as in prisons around the country, incarcerated people rely on commissary to supplement their diets because prison diets don’t provide the necessary calories and nutrients people need, and to buy hygiene items. $15 represents multiple weeks’ worth of soap, deodorant, and other essentials. Losing $15 could also stop people from seeking health care: it represents 3 or more visits to the doctor in states that charge medical co-pays.
• $15 represents hours of communication with loved ones, since almost all incarcerated people must pay in order to communicate with their loved ones on the outside. High communication costs put immense pressure on incarcerated people and their families to save every penny possible to put towards paying for the basic human right of communicating with the people that they love. This makes the money charged in arbitrary disciplinary fines and fees uniquely valuable for incarcerated people.

We hope that the Fourth Circuit will make the right decision in this case to give due process rights to incarcerated people when their money is taken away from them. It is one important step in recognizing the lived experiences of people behind bars, and their constitutional rights.

Addicted to punishment: Jails and prisons punish drug use far more than they treat it

Despite the common refrain that jails and prisons are "de facto treatment facilities," most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare.

by Emily Widra, January 30, 2024

Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.¹ But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be – and can never function as – healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.

Substance use disorders in jails and prisons far outpace rates in the general public

The prevalence of substance use disorders at every level of the criminal legal system points to an unavoidable fact: despite the deep unpopularity of the War on Drugs, our society still responds to substance use (and related crimes) as individual failures requiring punishment, rather than as a public health problem — and it’s not working.

Nationally, approximately 8% of people met the criteria for substance use disorders in 2019,² but such disorders are far more common among people who are arrested (41%) and people incarcerated in federal (32%) or state prisons (49%). This means that approximately three million people with substance use disorders are locked up in any given year: at least two million people with substance use disorders are arrested annually and about half a million people in state and federal prisons meet the criteria for such disorders at the time of their admission.³

Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.

It’s difficult to see more granular trends in the data – such as the type of substances involved or the health outcomes related to these disorders – but we have some clues from nationally representative jail, prison, and mortality data.

Jails. In 2019, only 64% of all people admitted to jail each month were screened for opioid use disorder, but of those people, about 15% met the criteria for opioid use disorder. It’s likely that in jails where not everyone is screened on admission, people have similarly high rates of opioid use disorder, given the widespread extent of the opioid crisis.⁴ Because we cannot see the full picture through screenings alone, it’s useful to look at mortality data as well. More than 15% of jail deaths in 2019 were attributed to drug or alcohol intoxication (overdose), a significant increase from 4% in 2000 and 7% in 2009.

Prisons. Many people who use drugs and need care are arrested and jailed over and over until, finally, one event lands them in prison. We estimate that more than 578,000 people (47%) in state and federal prisons in 2022 had a substance use disorder in the year prior to their admission.⁵ And while the mortality rates for drug and alcohol intoxication are lower in prisons than in jails, almost 7% of all deaths in state prisons in 2019 were due to drug or alcohol intoxication, compared to less than 2% in 2009. Meanwhile, in 2019, only 4% of all adult deaths in the U.S. were attributed to drugs or alcohol.⁶ All of these measures point to much higher rates of substance use disorders in prisons and jails compared to the total population.

Treatment options for opioid use disorder are scarce in jails and prisons

Not every person who uses substances needs or wants treatment, but it is imperative that evidence-based, quality healthcare options be made available for those who do — regardless of their involvement in the criminal legal system. For people with opioid use disorder, this can include psychosocial treatment (including counseling), medication-assisted treatment (MAT), and self-help groups. In correctional settings, the availability of such options pales in comparison to the level of need.

Jails. Of the nearly 3,000 local jails across the country, less than two-thirds (63%) screen people for opioid use disorder when they are admitted. Only half (54%) provide medications for people experiencing withdrawal. An even smaller percentage of jails — 41% — provide behavioral or psychological treatment, and 29% provide education about overdose. In fact, the most effective treatment — medication-assisted treatment (MAT) — is the least commonly provided: just 24% of jails continue MAT for people already engaged in treatment while only 19% initiate MAT for those who are not.

Quality medical interventions for people that use opioids are especially urgent in jails because of the rapid and acute risk of withdrawal. Over half a million people⁹ entering jails across the country each year are experiencing or at risk of this life-threatening medical event.¹⁰ Importantly, the percentage of people admitted to jail who receive treatment for opioid withdrawal varies significantly between states, which likely reflects differences in both opioid use and availability of treatment.¹¹ For instance, over 15% of people admitted to jails in June 2019 in four states – New Hampshire, New Jersey, Pennsylvania, and Washington – were treated for opioid withdrawal, compared to less than 1% of admissions in seven other states.¹²

Prisons. Most state and federal prisons (81%) offered some “drug or alcohol dependency, counseling, or awareness programs” in 2019, but among people in state prisons with a substance use disorder, only 10% had received clinical treatment in the form of a residential treatment program, professional counseling, detoxification unit, or MAT.¹³ This suggests the “drug or alcohol programming” available in prison facilities is primarily self-help or peer-based.¹⁴

Unfortunately, MAT is the least common treatment in prisons: only 1% of people with substance use disorders in state and federal prisons reported receiving MAT at any point since their admission. In North Carolina, for example, over 9,000 people admitted to state prisons in Fiscal Year 2021-22 (78% of everyone screened during intake) met the criteria for needing intermediate or long-term substance use treatment, but the clinical director of the Alcoholism and Chemical Dependency Programs reports that they are only able to treat 3,000 cases each year. The state launched a MAT pilot program in 2021, and as of January 2024, only 213 enrollees have received medications prior to release from prison.

Even when correctional facilities do offer necessary treatments, their one-size-fits-all approaches can be limiting, overlooking the specific needs of different populations. For example, women in prison are often expected to participate in treatment programs originally designed for men. Advocates report that because “there are fewer incarcerated women than men… there are fewer programs available for women serving time. If support is available, it is not always effective.”

Ineffective and punitive responses to drug use in correctional facilities

Correctional facilities’ preference for punishment does very little to actually reduce drug use and overdoses. It’s not just that officials fail to provide evidence-based healthcare–they actively ignore evidence that punitive drug interdiction policies like mail scanning and visitation restrictions are ineffective and counterproductive, too.

Mail scanning. Prisons and jails are increasingly diverting incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients.¹⁵ Administrators claim this practice will stem the flow of contraband — primarily, drugs — into their facilities, but there is no solid evidence to date that mail scanning has this intended effect.¹⁶ In addition to the emotional consequences and needless exploitation inherent in mail scanning, these practices result in long mail delays and the disruption of correspondence-based nonprofits, education programs, and ministries.

There are numerous examples of mail scanning failing to produce any meaningful reduction in drug use or overdoses in prisons across the country:

• Pennsylvania: After instituting mail scanning, the percentage of incoming mail that the Department of Corrections reported as “tainted” only decreased by 0.1% over the course of a year. As of 2023, the rate of positive drug tests in Pennsylvania prisons is now almost 3 times higher than it was before the policy was introduced.
• Missouri: In Missouri state prisons, the average number of overdoses per month increased from 34 to 39 after mail scanning was introduced in July 2022.
• Virginia: Every year since the Virginia Department of Corrections began mail scanning in 2017, there have been more overdoses than in the year prior to instituting mail scanning (even while the state’s incarcerated population declined during the COVID-19 pandemic).
• New Mexico: After a mail scanning policy went into effect in February 2022, a report on the Corrections Department from the state’s Legislative Finance Committee highlighted a nearly two-percentage point increase in positive random drug test results from Fiscal Year 2021 to Fiscal Year 2022 – almost doubling the positivity rate. This essentially “reverse[d] three years of reduced drug use” in the prison system, and the report authors noted that the mail scanning policy “does not appear to have reduced drug use” during the study period.

In fact, several prison systems seem to actively ignore the lack of evidence supporting mail scanning as a drug interdiction effort. The federal Bureau of Prisons has increasingly adopted mail scanning policies, reportedly following a letter from Pennsylvania congressional representatives “urg[ing] the BOP to follow Pennsylvania’s lead,” and such policies are now in place in almost every federal facility.

Visitation restrictions. There are a variety of policies in jails and prisons that restrict visitation and administrators often defend them as anti-contraband (i.e., anti-drug) initiatives. For example, in Virginia, some of these policies have included requiring visitors to change into state-issued jumpsuits without pockets, limiting approved visitor lists to 10 people, millimeter wave body scanners, and banning feminine hygiene products for visitors.¹⁷ In Washington, the latest state budget proposal betrays the state’s biases in responding to drugs in prisons: it includes $4.7 million for MAT in prisons, which is only about half of the funding it would take to meet the needs of people in custody. At the same time, the Department requested $6.5 million for body scanner staff and operations, and the budget proposal offers even more than they asked for: $7.9 million. Incarcerated people routinely face humiliating search practices – including strip searches – following visitation, but considering the prevalence of drug use inside prisons and jails, these tactics do not appear to have made a meaningful impact.

Doubling down on failure: misunderstanding drug use inside

Prison and jail administrators often cite contraband medication as the primary reason for restricting access to MAT. While “diversion” of medications¹⁸ like buprenorphine can occur in prisons and jails, there are simple, proven diversion prevention strategies that any facility offering MAT could institute, whether they are correctional facilities or community health centers. ¹⁹ We know that generally, “illicitly obtained” buprenorphine is most often used to self-treat opioid withdrawal when treatment is not available or has been denied. While there is much concern regarding diversion, an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013 revealed no overdose or death reports mentioning buprenorphine or Suboxone, consistent with previous research on New York City non-incarcerated overdose fatalities. It is clear that – just like in the community – the proven benefits of MAT outweigh the perceived risks of diversion.

Consistent with their punitive approach to drugs, many corrections officials enforce serious sanctions for positive drug tests, medication diversion, and non-fatal overdoses. Sanctions for drug use in prisons can include solitary confinement, denied visitation, ²⁰ delayed parole hearings, loss of “good time,” reduced access to programming, facility transfers, reclassification, and fines.²¹ There is, unsurprisingly, no evidence that these disciplinary policies actually reduce drug use behind bars. However, it’s easy to imagine how such approaches create a dynamic in which people hide their drug use and engage in riskier, deadlier behaviors. The culture fostered by punishment does not actually address drug use — it just makes it more dangerous.

Public health research has long been clear that punishing addiction does not actually help address substance use disorders, and there is no reason that it would work in jails and prisons. People who need mental health and substance use treatment are better served in voluntary, non-carceral, clinical treatment settings.

Overdose interventions and deaths

Jail and prison administrators are right to be concerned about drug overdoses behind bars. Overdose deaths are preventable and substance use disorders are treatable, but in 2019, more than 400 people in jails and prisons died of drug or alcohol intoxication.²²

Jails. In response to overdoses, some local jails have increased the availability of naloxone (an opioid overdose reversal medication also known by the brand name “Narcan”). In Maine, correctional staff in some facilities now carry naloxone on their belts rather than in a locked first aid kit. In New York City, all housing areas are required to have naloxone available.

Some jails have gone a step further: in San Diego County, the staff and people in custody have access to naloxone throughout the jail facility. In Los Angeles County jails and the Louisville Metro Department of Corrections jail in Kentucky, staff and incarcerated people have access to naloxone and receive training on how to administer it. The benefits of this dual approach cannot be overstated: in a single day in Los Angeles, two overdoses were reversed when incarcerated people administered naloxone and, over the course of a year, incarcerated people in the Louisville jail dispensed naloxone successfully to at least 24 people who had overdosed in the facility.

Prisons. The rates of death from drug or alcohol intoxication may be lower in prisons than in local jails, but they are still a serious – and growing – problem: from 2001 to 2019, the percentage of state prison deaths attributed to drug and alcohol intoxication increased from 1.2% to 6.6%. A September 2022 directive from the New York State Department of Corrections and Community Supervision requires correctional staff to administer naloxone as well as provide first aid and CPR as necessary, and includes a requirement for each facility to institute a procedure to make naloxone more accessible to staff. In Oklahoma, the State Department of Mental Health and Substance Abuse Services reported that naloxone is available “on every unit” in state prisons, and future initiatives where “every CO will have Narcan on them” are expected as of May 2023.

Making naloxone physically present in correctional facilities is a good first step, but it’s not enough. In April 2023, reporting from Filter detailed that, while correctional staff in Washington Department of Corrections facilities have access to naloxone, many are not properly trained. When interviewed, two correctional officers – incorrectly – told the reporter that “Narcan…doesn’t work on fentanyl.” The Filter story cites at least one Department of Corrections report of an overdose scene where staff were unable to locate, and were unsure how to administer, naloxone. As long as the criminal legal system continues to target and incarcerate people who use drugs, screening new admissions for opioid use, training staff and incarcerated people to use naloxone, and making naloxone available throughout facilities are the least these institutions could do.

Making reentry safer for people who use drugs

There are two crucial interventions that every jail and prison should offer upon release: free access to naloxone and appropriate, timely referrals to community-based MAT for people who received treatment while incarcerated. Yet less than one-third of local jails and far fewer prison systems offer either.

Naloxone. While naloxone is relatively inexpensive and easy to administer, in 2019, only 25% of jails provided naloxone to people being released. However, in the years following the 2019 survey, media coverage reveals that many jails – including those in Louisville, Kentucky, and Kershaw County, South Carolina – have added free naloxone vending machines near the facility exits.

In 2020, the California Department of Corrections and Rehabilitation began providing free naloxone kits and training to people preparing for release from prison. By July 2022, 95% of people released from California state prisons had received the kits and training. A handful of other prison systems have publicized similar efforts to provide naloxone on release but with little accompanying data on the success of their projects. For example, the Indiana Department of Corrections announced an initiative in 2020 to offer people released from prison the “opportunity to leave with Naloxone,” but there is little evidence available on the outcome of this program. Meanwhile, some states remain hostile to this very simple and effective intervention. In 2023, Oklahoma Governor Kevin Stitt vetoed a bill that would allow prisons to give Narcan to people upon release.²³

Community referrals for MAT. In 2019, only 28% of local jails provided a community link to MAT on release. Jails need to partner with their local public health agencies to identify community-based MAT providers for people returning home. For people who started or continued MAT while in jail, uninterrupted access to that treatment is vital. These efforts must include support in navigating the often-complicated health insurance landscape. In 2019, 27% of people on parole and 23% of people who had been arrested at least once in the past year reported having no health insurance coverage. People leaving jail or prison who need MAT must have primary care providers and Medicaid, Medicare, or other health insurance set up prior to release.

Recommendations

It is clear that the criminal legal system is not suited to the task of acting as the de facto mental health and substance abuse treatment provider many claim it to be. There are at least a few areas ripe for intervention to improve this situation: reducing the number of people with substance use disorders entering the criminal legal system, instituting evidence-based practices in correctional facilities that actually reduce the risk of drug overdoses, and expanding treatment availability inside jails, prisons, and during reentry.

Prevent people with substance use disorders from entering the criminal legal system:

• Address the social determinants of health and substance use. In order to reduce the flow of people with substance use disorders into jails and prisons, communities must prioritize housing, physical and mental healthcare, employment, and education. Increased funding for community-based drug treatment and other social services are crucial.
• Decriminalize drug use. People should not be confined in jails or sentenced to incarceration for drug possession, drug checking supplies, or drug paraphernalia. Harm reduction efforts like clean syringe exchanges, overdose prevention centers, safety-focused education programs, and regulating the drug supply will more effectively – and humanely – reduce overdose risk among people who use drugs.

Institute effective, nonpunitive responses to drug use behind bars:

• Screen for all substance use and mental health disorders. All admissions to prisons and jails should be screened for active substance use, substance use disorders, and mental health conditions.
• Avoid punishments and restrictions as responses to drug use, particularly when there is no evidence that they meaningfully impact consumption and overdose. Reflexively restricting meaningful contact and relationships under the guise of drug prevention is especially harmful and counterproductive. This inevitably requires divesting from ineffective practices like mail scanning, canine drug detection, and electronic scanning equipment for visitation. There should be more focus on treatment than punishment for incarcerated people who struggle with addiction.
• Invest in comprehensive MAT in jails and prisons including professional, clinical counseling, the availability of all MAT drugs, referrals to community providers upon release, and support reestablishing health insurance during reentry.

Expand treatment availability for substance use disorders:

• Treatment participation must be voluntary in jail, prison, and the community. When treatment is involuntary or coerced, when people are re-incarcerated for positive drug tests, or when they’re disqualified from participation in diversion programs based on their history of substance use, treatment is less effective. Instead, as the Drug Policy Alliance recommends, treatment should always be voluntary, involve clinicians rather than law enforcement, incorporate positive incentives, and use gold-standard medication and other practices.
• Treatment should begin as soon as possible. Any kind of treatment for substance use disorders and mental health conditions cannot be limited to the weeks or months leading up to release from jail or prison.
• Treatment requires informed consent. Healthcare providers should seek out informed consent from all individuals who are eligible for MAT and they must have access to all treatment options.

Substance use disorder treatment — as handed down by the criminal legal system — is not working as advertised. Jails and prisons are not healthcare institutions and their mandate for punishment makes patient-centered care impossible and health outcomes worse. Instead, the United States desperately needs healthcare infrastructure that can support people who use drugs outside of carceral settings. While corrections officials request further investments under the guise of treatment, the stigma, isolation, and punishment that helped foment the present crisis persist. Our communities cannot punish their way out of public health crises, but as long as policymakers insist on incarcerating people with substance use disorders, they need to at least provide evidence-based care to those who want and need it.

Zombie politics: The return of failed criminal legal system policies in 2023 – and how to fight back

Unfortunately, this year saw the return of many types of failed criminal legal system policies that would be more at home in 1993 than 2023. Here are some arguments to make if these zombie laws come to your state.

by Sarah Staudt, January 24, 2024

For the first time in over a decade, prison and jail populations increased in 2022, and state prison systems and the federal Bureau of Prisons are predicting future growth. Although there are many reasons for this – including courts returning to normal operations after the height of the pandemic – at least some of this expected rise will be the direct result of regressive policy choices made by state legislatures.

The politics we have seen surrounding crime and punishment are eerily reminiscent of 1990s “tough on crime” rhetoric: in Florida, Governor Ron DeSantis suggested that his political opponents are “pro-crime,” throughout the country; while Democrats attacked parole reform, reform-minded prosecutors, and bail reform in their 2022 mid-term election challenges. This rhetoric contradicts the facts: crime across the nation remains at record low levels, including a likely dramatic decrease in violent crime in 2023.

As our partner organizations around the country decry this resurrection of bad policy, we looked at recent legislation passed around the country to identify trends in this most recent crop of throwback laws. In this briefing, we present some of the most common kinds of tough-on-crime laws passed in 2023¹ and the best arguments against them, so that advocates can be ready if these trends appear in their state.

 

Renewing the War on Drugs

In recent years, substantial progress has been made to address and begin to reverse the harmful policies from the War on Drugs. The authors of these policies, passed between the 1970s and 2010s, created draconian mandatory minimum sentencing laws, established a racist sentencing disparity between crack and powder cocaine, and led to the incarceration of millions of people. Despite spending billions each year to enforce these policies, the drug war has not reduced drug use rates, drug prices have dropped, and overdose deaths have risen. Based on our experience with the Drug War, there is no reason to think that arrest and incarceration can stop drug use or trade.

Fentanyl now permeates the United States drug market, leading to higher risks of overdose. Experts and advocates consistently urge a public health approach to fentanyl, but, unfortunately, too many states are treating it as “Crack 2.0“, pursuing the same failed policies that sent millions of people to prison. This includes penalty enhancements for both possession and distribution of fentanyl and increased penalties for homicide charges leveled against people who provide drugs to a person who subsequently dies of an accidental overdose – often called “drug-induced homicide” laws. These laws are often levied against people using drugs together, who may or may not know that fentanyl is present in what they are using.

This year, a number of states passed laws resurrecting failed war on drugs policies:

• Alabama (HB 1) created mandatory minimums for possession of fentanyl. This bill was especially concerning because it passed the legislature unanimously, suggesting that there was no meaningful debate about whether the policy would be effective.
• Iowa (HB 595) increased penalties for both possession and distribution of fentanyl.
• Wisconsin (AB 68) increased penalties to 60 years for reckless homicide involving delivering fatal drugs. The law would apply to people using drugs together.

Arizona and the federal government have also come close to passing retrograde drug legislation. Arizona’s legislature passed a presumptive 10 year mandatory minimum sentence for possession of as little as 2 milligrams of fentanyl; that bill was vetoed by the governor. At the federal level, the HALT Act would trigger new and increased mandatory minimum sentences for fentanyl; it has passed the House and currently sits in the Senate.

Fighting back against zombie drug policies

Advocates facing regressive drug policy changes have the benefit of decades of research showing that these policies do not work, have never worked, and cause massive harm to communities.

First, advocates can rely on the mountain of evidence showing mandatory minimums and longer prison terms do not reduce crime, drug use, or overdoses. Families Against Mandatory Minimums has compiled a wealth of resources on sentencing reform, including a handy guide to arguments against mandatory minimums. They argue that mandatory minimums create racially biased outcomes – Black people are 65% more likely to face mandatory minimum charges. Advocates can also point to the ways that lengthening prison sentences will expand prison populations in the long run.

Second, advocates can educate lawmakers on how carceral approaches fail to address the fentanyl crisis. In particular, many lawmakers believe that jails and prisons will provide treatment for opioid users – in fact, incarceration increases overdose risk, and few people receive treatment inside. Policymakers also believe they can target drug dealers with harsh penalties without harming people who use drugs. In fact, drug users and drug suppliers are most often the same people; sentencing enhancements are unlikely to affect so-called drug “kingpins” and will more likely target users and low-level sellers. Drug Policy Alliance has a great video on this subject.

Lastly, advocates can provide lawmakers with alternatives to these carceral policies. Kneejerk penalty increases are often the product of a desire to “do something” about the very real devastation that fentanyl and overdoses are wreaking in communities across the country. But doing things differently during this overdose crisis means taking a public health approach to drug use. Drug Policy Alliance has created a comprehensive toolkit on such health-centered approaches, including increasing access to treatment and harm reduction approaches like safe consumption sites and fentanyl test strips.

 

Criminalizing the homeless

The United States has a long history of responding to the problem of homelessness with criminalization and punishment. Homelessness has risen in recent years, driven by economic factors like increased housing costs, as well as by the COVID-19 pandemic.

As concern about homelessness rises, some jurisdictions are trying to criminalize their way out of a problem that can only be addressed with social services and housing.

• In Georgia (SB 62), the state legislature passed a law requiring that municipalities enforce anti-camping laws.
• Alabama (HB 24) expanded the definition of loitering to encompass more unhoused people.

Arizona also came disturbingly close to passing similar policies. A vetoed bill in Arizona (SB 1024) would have created an anti-camping law, and two other bills proposed further criminalized homeless encampments but failed.

There are dozens of ways that policymakers have targeted people experiencing homelessness. In 2021, the National Homelessness Law Center published a guide to laws around the country criminalizing homelessness; they note that as of 2021, almost every state has at least one law restricting behaviors associated with the experience of being homeless.

Protecting unhoused people from backwards policies

There’s no denying that rising housing insecurity is a genuine concern. Unfortunately, the solutions are complex, and can’t be solved by simply outlawing living outside. Advocates can help lawmakers understand the feedback loop between criminalizing homelessness and increasing mass incarceration. Further criminalizing homelessness is likely to increase jail populations – and jails are ill-equipped to address the poverty, mental health, and substance use related reasons why people are experiencing homelessness. The National Homeless Law Center’s comprehensive guide notes that criminalization harms the health and wellbeing of unhoused people, and is an extremely expensive reaction to homelessness. Incarcerating someone costs over $47,000 a year; a week in a jail cell might cost the equivalent of a month or more of housing.

Advocates can also help lawmakers find and implement successful, humane, and non-carceral approaches to this crisis. “Housing First” policies, which give people housing as the first step in holistically addressing their challenges, have been shown to interrupt cycles of criminalization and give people a path to long-term, stable housing. Housing First is part of a suite of innovative approaches to homelessness cataloged by the National Homelessness Law Center; other approaches include expanding access to affordable housing subsidies, embracing innovative housing solutions like “tiny home” communities, and preventing homelessness before it happens by reforming eviction laws and prohibiting discriminatory housing policies.

Lastly, the Homelessness Law Center notes that some policies criminalizing homelessness violate constitutional rights, and can be challenged in the courts. The Ninth Circuit has ruled that imposing criminal penalties for people who cannot obtain shelter violates the Eighth Amendment prohibition on cruel and unusual punishment. Sweeps of tent cities have been found to violate due process rights when governments destroy or confiscate personal property without notice. The courts may provide another avenue for protecting the basic human rights of people experiencing homelessness

 

Resurrecting failed sentencing policies

2023 saw a resurgence of so-called “Truth in Sentencing” laws. In the 1990s, federal legislation established funding incentives that encouraged states to pass laws requiring that people charged with certain offenses serve at least 85% of their sentences in prison. In the mid- to late 90s, 21 states passed these laws. These policies sometimes as much as doubled people’s actual prison terms overnight, as states that had historically allowed people access to parole after half or less of their sentences were suddenly requiring much more time in custody before parole. Notably, these sentencing structures reduce the ability of people to earn time off their sentences for good behavior or for completing programming, and therefore remove powerful incentives that support prison safety and reentry success. In 2022 and 2023:

• Louisiana (HB 70) reduced the ability of people convicted of repeated non-violent offenses to earn time off their sentence for good behavior.
• South Dakota (SB 146) eliminated parole eligibility for many offenses and reduced the ability to earn sentencing credit.
• Arkansas (SB 495) changed sentence structures and made certain felonies ineligible for sentence credits.

In 2022, Tennessee’s SB 2248 served as a cautionary tale. Tennessee’s Department of Corrections projects that the resulting increases in incarceration will cost taxpayers at least $40 million over the next 8 years. Chillingly, when asked about these costs, the Speaker of the House simply said, “if we need to build more prisons, we can.”

The truth about “Truth in Sentencing”

Because Truth in Sentencing has been tried before, advocates have lots of resources showing that it is a failed and counterproductive policy. Research consistently shows no public safety benefit to increased incarceration, and that longer sentences do not deter crime. Research also shows that Truth in Sentencing reduces incentives for incarcerated people to complete rehabilitative programming, increases safety risks for people in prison and corrections officers, and increases recidivism. Truth in Sentencing leads directly to prison overcrowding, which causes immense suffering.

Truth in Sentencing and other “tough-on-crime” policies are often enacted in the name of crime victims. Advocates can help policymakers understand that most victims of violence prefer that money be spent on violence prevention, not incarceration.

Lastly, because of the immense expense of Truth in Sentencing policies, progressive advocates may find unlikely bedfellows in the fight against these laws. In Tennessee, the American Conservative Union opposed the Truth in Sentencing bill; voices on both sides of the aisle understand that investing in prisons is an ineffective, wasteful, and dangerous approach to public safety.

 

Building more prisons

States continue to invest hundreds of millions of dollars into building new prisons instead of pursuing decarceration strategies. These efforts often cite prison overcrowding or aging buildings to justify this immense expenditure – but fail to explore proven strategies to reduce the number of people behind bars. In 2023, states made major moves towards prison construction:

• Arkansas (SB 495) appropriated $470 million for 3,000 new prison beds.
• South Dakota (HB 1016) appropriated $60 million for a new women’s prison and $340 million for a new men’s state prison.
• Montana (HB 817) appropriated $211 million for capital improvements at Montana state prisons.

Combatting prison construction

Demands for new or expanded prison construction are constant features of the criminal legal reform landscape. Often, these efforts are sold to lawmakers as either necessary or actually progressive, when in fact they are neither. Although it may be true that prison buildings are aging and that prisons are overcrowded, the most straightforward – and most cost-effective – approach to addressing these problems is decarceration. Substantially reducing prison populations can allow states to close decrepit buildings instead of spending millions renovating or rebuilding them. Around the country, states have successfully reduced their prison populations enough to close facilities; twenty-one states fully or partially closed prisons between 2000 and 2022.

Advocates arguing against prison construction can look to the detailed plans created by activists to close 10 prisons in California by 2025. They may also find the Prison Policy Initiative’s anti-jail expansion materials helpful – many of the arguments against building new jails also translate to the prison context. Even in states where active plans to build prisons are not on the table, advocates can argue for prison and jail construction moratoriums, which can give state policymakers time and space to genuinely pursue decarceral solutions, instead of investing in our failed mass incarceration system.

 

Undermining reform prosecutors

In recent years, many jurisdictions have elected reform-minded prosecutors (sometimes called “progressive prosecutors”) who are interested in changing the tough-on-crime policies behind mass incarceration. The American criminal legal system is designed to give substantial discretionary power to prosecutors, and prosecutors are increasingly using this discretion to roll back some of the most damaging parts of the system. These prosecutors have taken a range of approaches, from increasing access to diversion programs to creating conviction integrity units that examine the cases of incarcerated people asserting their innocence. Although some reform prosecutors have seen pushback from voters in recent years, most still enjoy widespread support.

Unfortunately, conservative state legislatures continue to try to undermine these democratically elected local officials with legislation designed to take their discretionary power away and force them to adhere to carceral policies – or risk being removed from office.

• Florida Governor DeSantis has continued a trend of removing popular States Attorneys – including the state’s only Black woman state prosecutor – because of complaints about sentencing decisions and statements opposing his attacks on reproductive rights and gender-affirming health care.
• In Georgia (HB 231), the state legislature created a “Prosecuting Attorneys Oversight Commission” empowered to investigate and remove local prosecutors.
• In Texas (HB 17), the legislature passed a bill allowing courts to remove district attorneys for failing to pursue certain types of prosecutions.

Protecting local control of prosecutions

Advocates can help policymakers and the media understand that state legislative efforts like these undermine local elections and reduce confidence in the democratic process. Although rhetoric against reform prosecutors has been loud and sometimes extreme, it can be helpful to point to evidence that Americans are still broadly supportive of criminal legal system reform, and continue to support it at the polls. Reform prosecutor races are often high profile and hard-fought, and voters have made a clear and intentional choice to go against the status quo of harsh criminal legal system policies. Those choices should be respected.

Importantly, there is no evidence that crime has worsened under reform prosecutors. In fact, between 2015 and 2019, cities with reform prosecutors were less likely to experience a rise in homicides than those with traditional prosecutors.

 

Conclusion

We unfortunately couldn’t possibly cover all of the “zombie policies” cropping up around the country. Other notable examples include bills to enshrine cash bail more deeply in state law (Wisconsin), and expanding the use of non-unanimous jury verdicts for the death penalty (Florida), among many others. And by highlighting these setbacks, we don’t intend to diminish the real progress made around the country in 2023. Our Winnable Battles report details some of these successes; the Sentencing Project’s roundup of 2023 trends in criminal legal system reform highlights even more.

But the forces that seek to entrench and expand mass incarceration remain active across the country. We hope that this guide helps arm advocates with some of the arguments they need to avoid history repeating itself.

  

Force multipliers: How the criminal legal and child welfare systems cooperate to punish families

Child protective service agencies position themselves as providers of welfare, but their relationship to the criminal legal system demonstrates their shared role in punishing families and exacerbating the conditions that lead to system involvement in the first place.

by Emma Ruth, January 8, 2024

The harmful effects of the criminal legal system on children are well-established. For years, evidence has shown that a parent’s involvement with the criminal legal system can harm kids, and incarcerating children has lifelong consequences. We’ve reported on efforts in several states to mitigate the negative impact of the criminal legal system on children but seldom discussed how the criminal legal and child welfare systems are deeply interwoven. A growing number of advocates and experts are bringing these connections to light and are organizing for momentous change. This briefing draws attention to their work to argue that, by expanding our view beyond jails and prisons to include these related systems, advocates and policymakers can safeguard against creating prisons by another name.

 

By the numbers: involvement in each system

Presently, the child welfare system surveils millions of families each year, many of whom are also impacted by the criminal legal system. Though data about the overlap between the two systems are faulty and likely underreported,¹ data about strictly parental incarceration or child protective services² involvement are more accessible. In our August 2022 briefing, Both sides of the bars: How mass incarceration punishes families, we explained the magnitude of the criminal legal system’s impact on children and families, noting that nearly half of people in prison are parents to minors and that 1.25 million children are impacted by parental imprisonment on any given day.³

Annual government reports illustrate the size and scope of child protective services. In 2021, nearly 4 million calls were made to those agencies, alleging that around 7.2 million children were being neglected or abused. Each year, approximately half of these calls are immediately determined to be illegitimate, lack enough information, or otherwise fail to meet the criteria for a child maltreatment report. In other words, rampant overreporting is the norm. Even when such reports are screened out, mere contact with the child welfare system can have damaging effects on families that last for decades, much like collateral consequences from brushes with the criminal legal system.

 

The consequences of dual-system involvement

Child welfare investigations bring parents and children in closer contact with the criminal legal system, increasing the likelihood of dual-system involvement. A 2010 study noted that there are four likely pathways to a family becoming involved with the child welfare and criminal legal systems simultaneously:

1. A parent’s arrest coincides with child welfare system involvement, such as an arrest leading to a maltreatment report;
2. A parent’s record is determined to compromise their child’s safety;
3. Relatives who might ordinarily be considered for next-of-kin placement (placement of a child in the temporary or long-term custody of a non-parent relative) are determined ineligible due to their record;
4. A child enters foster care because of issues with the temporary guardian they are staying with while their parent is incarcerated.

The limited data on dual-system involvement show that parental incarceration was listed as the reason for entry for 6% of children who entered foster care in 2022.⁴ Estimates range, but one 2017 study estimated that 40% of children who have been in foster care have also had a parent incarcerated in their lifetime. Parental incarceration is just one pathway to criminal legal system involvement: over half of youth in foster care will have an encounter with the juvenile legal system by age 17, a phenomenon that some have dubbed the foster care-to-prison pipeline.

Beyond quantitative data, several recent publications expose the connective tissue between the criminal legal and child welfare systems. In her recent piece for In These Times, Roxana Asgarian writes:

Critics say [the child welfare system] is more akin to law enforcement than social services, given its ability to surveil parents and hand down the ultimate punishment — terminating the legal bonds between parent and child.

In recognition of these similarities, advocates for child welfare system reform and abolition have taken to calling it the “family regulation” or “family policing” system, arguing that it, too, primarily functions to surveil, regulate, and punish disproportionately Black and Brown families.

Estimated percent of Black children, compared to all U.S. children, who experience each successive stage of the child welfare system’s process to separate children from their families before age 18, from investigation to out-of-home placement and termination of parental rights. To see the estimated rates for other racial and ethnic groups, see the appendix table.

Just as Black and Brown people are overrepresented in jails and prisons, their families are overrepresented at every stage of a child protective services case. Black and Indigenous parents, in particular, are over-reported and over-investigated and are more likely to have their children removed and their parental rights terminated. Black and Brown youth are also overrepresented in the foster system: In California, for example, Black children are represented in foster care at a rate of 3.7 times their proportion in the population.⁵ Further, Black and Indigenous children enter foster care at roughly double the rate of white children nationally. These systems not only target the same communities, but the same individuals: incarcerated people are more likely to have been in foster care previously than others, and youth in foster care are more likely to become incarcerated as adults. Involvement in one system makes families vulnerable to becoming involved with the other.

 

Dual punishment: Incarceration and termination of parental rights

We have previously reported on the harm of family separation by incarceration, which is amplified by the threat of permanent termination of parental rights that can follow. Impossible-to-follow service plans and legislative loopholes make it so that 1 in 8 incarcerated parents who have a child in foster care will lose their parental rights entirely.

Service plans — the behavioral modification programs that child protective services can impose on families who are involved in an active case — often require that parents attend mandated classes, see specific counselors, engage in supervised visits, and take other steps to regain their custody, all of which is nearly impossible when a parent is incarcerated. But prisons and jails are not required to accommodate the service plans that parents must follow in order to regain custody, and child welfare agencies are not required to accept available prison programming as “reasonable progress” towards reunification. Meanwhile, the clock is ticking: federal legislation mandates that states must move to terminate a parent’s rights when a child is out of their parent’s custody for 15 out of 22 consecutive months during a child welfare case, even if that separation is due to a parent’s incarceration.⁶

According to a 2023 study called The Relationship Between Black Maternal Incarceration and Foster Care Placement, “Parental incarceration can also qualify as an ‘aggravated circumstance,’ relieving child welfare agencies from the [statutory requirement] to make ‘reasonable efforts’ to reunify families or limiting the number of months in which ‘reasonable efforts’ must be made.” These systems intensify the impacts of each other in a feedback loop, causing parents and their children to experience multiple forms of punishment, often for the same offenses.

 

The same problems pervade both systems

In the absence of flourishing social safety nets, both the criminal legal and child welfare systems have become catch-all nets to address social issues that they’re not equipped to deal with. Just as many adults who are experiencing intimate partner violence call the police not to report a crime, but because they need crisis management, child welfare reports are often used to mediate interpersonal conflict. Reports of people weaponizing child welfare reports during disputes, or making retaliatory reports to gain leverage during custody battles, are common.

Both systems respond to substance use or mental health challenges with punishment, not treatment. Much like treatment mandates handed down by drug courts ignore research indicating treatment is less effective when it’s coerced,⁷ the same ineffective requirements are imposed on parents in child welfare cases. These requirements often feel more like punishment than help, and they fail to give parents real agency or choice. If the alternative to accepting treatment is becoming incarcerated or losing custody of your child, who is in a position to refuse? Child welfare agencies don’t make treatment affordable or accessible, failing to consider a parent’s schedule, life responsibilities, and transportation options. Further, parents are frequently required to pay for their mandated treatment, even though financial insecurity often leads to their involvement with the system in the first place.

State registries, much like those in the criminal legal system, have become commonplace, too. However, the threshold for appearing on a child welfare registry in many states is even lower: state central registers document substantiated and unsubstantiated allegations, not just findings of guilt. As is the case with an arrest or conviction record, or being listed on the sex offense registry, inclusion in the state central register can create future obstacles to accessing employment and child custody. In this way, both systems operate as agents of surveillance, not justice.

The interplay between these two systems is increasingly alarming. States that spend more on carceral practices have higher rates of child removal than states that spend more on social welfare. Federal grants for universities incentivize social work schools to partner with child welfare agencies, developing pipelines that push social workers into collaborating with them. Many jurisdictions are developing more partnerships between police and social workers, which are often lauded as progressive reforms. This has led many in the social work field to question whether their role is to punish people. Criminal legal system and social work advocates must ask, can we address issues in the criminal legal system by investing in another system that’s riddled with the same problems?

 

How advocates are addressing the problem

Over three-quarters of child welfare cases in 2021 alleged neglect, a vaguely-defined term that is often used to blame to parents for having insufficient resources to care for their children.⁸ Rather than using the child welfare and criminal legal systems to punish parents who are facing resource scarcity, advocates are tackling the resource gaps that led families to become system-involved in the first place by providing direct cash assistance. Family policing abolitionists want to confront child abuse while providing solutions that resource parents and communities and keep them united with their children. They question the true function of the family regulation system and point to how it worsens many of the issues seen in the criminal legal system.

In the last several years, a number of groups have emerged to formalize Black mothers’ longstanding efforts to resist state interventions and family separation and repeal the Adoption and Safe Families Act. These and other coalitions of advocates have been working towards expanding representation for impacted parents and attempting to create Miranda Rights for those under investigation by New York’s Administration for Children’s Services. In 2019, New York passed legislation to limit the scope of its state central register by raising standards of evidence for being placed upon it, creating new and shorter pathways to sealing a record, and options to mitigate its effects on employment.

A steadily increasing number of advocates and social service providers are developing tools to expand the practice of mandatory supporting, instead of mandatory reporting,⁹ by prioritizing resourcing families over making child welfare reports. In 2021, New York advocates introduced legislation to make reports confidential instead of anonymous to increase accountability and minimize malicious reporting. In 2023, New York City parents rallied to support legislation to repeal mandatory reporting altogether. Meanwhile, legislation introduced in Colorado that same year would require the courts to make it feasible for incarcerated parents to adhere to the requirements of their ongoing neglect case or service plan.

Universal basic income pilots for formerly incarcerated people, such as those in Chicago and Durham, show promise at improving post-release outcomes and decreasing recidivism rates.¹⁰ Financial assistance for families reduces rates of child maltreatment, and California is exploring how basic income programs can improve outcomes for young adults leaving foster care.

 

Breaking the cycle: applying lessons from both systems

Dispelling the myth that most harm against children is caused by “criminally-minded” individuals whom courts can pathologize and punish away requires addressing the material causes of child maltreatment. In the 70% of child welfare cases that are strictly for neglect, that means addressing poverty. In every case, that means contending with the barriers that prevent people from obtaining quality mental and physical healthcare and the structures that bar parents from getting the support they need to be their best selves for their kids. If child maltreatment is a structural issue rooted in poverty and interpersonal violence, then structural solutions are necessary to alleviate both.

The child welfare and criminal legal systems are failing to provide families with the safety and transformative resources that they need. Both systems surveil, regulate, and punish people, and do nothing to transform their conditions. Both are fraught with racist and bureaucratic structures that formalize the repression of Black and Brown families. And neighborhoods that have frequent contact with child protective services and police often suffer from fraught and less trusting community relationships, pushing them further from, not closer to, true public safety.

Because they are so intertwined, each system’s damaging impacts can and should be remedied concurrently: advocates are fighting to better resource families before they ever come in contact with them; they are shrinking their footprint in schools, healthcare, and other public services that surveil them; and they are ensuring better representation for families who are already ensnared. Policymakers must look to these advocates as leaders and respond to their calls for more resources and less punishment.

Criminal legal system reformers’ work can be strengthened through solidarity with people who are fighting family policing and regulation. They provide prescient guidance about the pitfalls of investing in supposed “helping” alternatives to incarceration that produce more mandated programs, surveillance, and criminal legal system involvement. Their work inspires advocates to think more critically about the true meaning of community safety and invites us all to expand our focus from “fixing prisons and jails” to ending the systems of oppression that built jails, prisons, and their welfare system counterparts in the first place.