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The landmark 2023 Martha Wright-Reed Fair and Just Communications Act set in motion a new round of rulemaking at the Federal Communications Commission to ensure that incarcerated people and their families are paying fair rates for phone and video calls. As the FCC prepares to vote on new regulations, we joined The Leadership Conference (a coalition of over 200 civil rights organizations) in a letter sent to the agency this week with recommendations for how it can make the most of this opportunity.
First and foremost, we urge the FCC to set rate caps as low as possible for voice and video calls. The current rate caps, handed down in 2021, allow local jails to charge a maximum of 21 cents per minute, a rate that family members say can still add up to several hundred dollars a month. The letter notes that costs could be brought down “as low as pennies per minute,” as evidenced by the rates companies are already charging in counties like San Mateo, Cali. and Dallas, Texas, as well as many state prisons.
Beyond setting rate caps, The Leadership Conference letter also calls on the FCC to:
Adopt consumer disclosure labels for prison and jail telecom products, to help customers understand whether they are being illegally charged (particularly after the new rate caps go into effect).
Take extreme care when considering new pricing structures proposed by the companies, particularly subscription-based pricing, and only approve them if they are shown to save consumers money.
Close regulatory loopholes to ensure that all prisons and jails are providing people who have hearing disabilities with the services they need to call home.
Recent data have shown how prison telecom companies continue to strike lucrative contracts with correctional facilities, particularly jails, deals that impose high costs on consumers and strain their bonds with loved ones. Diligent federal regulation can stop the worst of these abuses. We call on the FCC to use its rare mandate from Congress to guarantee the fairest possible deal for incarcerated people and their families.
Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision.
June 24 marks two years since the Supreme Court stripped Americans of their constitutional right to abortion. The court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization permitted state governments to limit and even ban abortion care — and they did. As a result, the share of patients who cross state lines for abortion care has almost doubled, from about 1 in 10 to almost 1 in 5. Traveling out-of-state for health care, including abortions, is a hardship for anyone, but it is especially challenging for people on probation or parole.
According to The New York Times, since the Dobbs decision, 21 states have implemented abortion rules more restrictive than the standard under Roe v. Wade.1 Fourteen states now ban abortion altogether, and most other states ban abortion after a certain point in pregnancy. And while some of these less-restrictive bans preserve abortion as an option for most people who need one, these bans are nonetheless as obstructive for people who need abortion care after their state’s time limit.2 In all, 41 states have some kind of abortion ban in place post-Dobbs, whether “total bans” or bans based on gestational duration.3 In every one of these states, standard conditions4 of probation and/or parole require permission to travel out of state, county, or another specified area.5
Map 1 The vast majority of states have some kind of abortion ban as well as standard conditions of both probation and parole that restrict interstate travel. Click here to see a map of abortion bans in place as of May 2024.
Map 2 Probation is the most common form of correctional control for women in the U.S., and almost every state has a standard condition of probation restricting travel. Probation populations here exclude federal. Click here to see a map of abortion bans in place as of May 2024.
Map 3 While fewer women are on parole supervision compared to probation, nearly all live in states that restrict interstate travel for everyone on parole. Parole populations here excluded federal. Click here to see a map of abortion bans in place as of May 2024.
To understand how this post-Dobbs landscape impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women6 (82%) on probation or parole nationwide.7 That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.
Specifically, we find that, excluding federal probation and post-release supervision,8 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.
Every state and D.C. restrict the movement of people on probation or parole
For our analysis, we first looked at rules related to travel in the standard conditions of probation and parole in each state and D.C. (These are summarized in the table below.) We find that probation agencies in all but two states (Ala. and Iowa) generally require permission to leave the state, county, or other designated area. Four of these states empower the court or probation officer to set the boundaries for travel restrictions on an individual basis.9 Rules restricting interstate travel are just as common in the context of parole and post-release supervision: 40 states have a standard condition requiring permission to leave the state. Among the states that do not, five (Ark., Iowa, Mont., N.M., and Pa.) require permission to leave an even smaller area — the county or district.10 West Virginia and D.C. require permission to travel, but individualize the specific geographic boundaries in the supervision contract.
Excluding federal supervised populations, the vast majority of women on probation (98% or 672,000) and parole (96% or 60,000) live in states where their standard supervision conditions require permission to leave the state, if not an even smaller geographic area. Every single state and D.C. require permission to travel for either their probation or parole population — and almost all require permission for both.
It’s important to note that “standard conditions” are just part of the picture of probation and parole conditions, because courts can — and very frequently do — impose any number of additional “special conditions.”11 So even if travel restrictions are not included in the standard conditions that apply to everyone on probation or parole, they may still be imposed at the discretion of the court or community supervision agency.
Limited abortion care options are made worse by these standard conditions
We next looked at each state’s abortion bans and restrictions alongside their standard conditions of probation and parole. This analysis gets to how quickly state laws foreclose the possibility of in-state abortion care for women under either form of community supervision, forcing them to request permission to seek care in another state instead.12 We find that the much tighter restrictions imposed by states since the Dobbs decision put over 400,000 more women in this precarious positionthan there were under the protections of Roe v. Wade. Alarmingly, we find that only 1 in 6 women on probation or parole can access abortion care at any stage of their pregnancy without needing permission to cross state lines.
Over half (53%) of women on probation and parole live in the 21 states that the Times identified as banning abortion care at an earlier point than the standard set by Roe v. Wade (i.e., the highly variable point of “fetal viability”). Less than 3% of these women are able to travel across state lines without permission.
Nearly one-third (31%) of all women on probation and parole live in states that now have a total abortion ban. Of these, just 4% have no standard condition restricting travel.
Another 17% of women on community supervision live in states that ban abortions at six weeks — a point at which more than 1 in 4 women are not yet aware of their pregnancy.
Only 16% live in places without abortion bans and can access abortion care at any gestational point without crossing state lines.
Importantly, even when parole or probation authorities approve interstate travel, the process of getting a “travel permit” takes time and logistical coordination — and sometimes even fees.1314 This necessarily delays abortion care, increasing the risk of complications and often further limiting access.15 For example, a woman on probation in South Carolina who only becomes aware of her pregnancy when she’s eight weeks along will have to travel out-of-state for an abortion. But if it takes two weeks for her to get permission to travel, a non-surgical abortion is likely no longer an option, as the necessary medications are only approved for use until 10 weeks’ gestation.
For hundreds of thousands of women, access to abortion care is limited by their state’s abortion laws and community supervision travel restrictions
In reality, even in places that don’t list travel restrictions as standard conditions for people on probation and parole, courts and supervision officers may choose to impose them as “special conditions” anyway.
State
Estimated women on probation, 2022
Estimated women on parole or post-release supervision, 2022
Estimated total women on probation and/or parole, 2022
Probation: Need permission to leave state or even smaller area
Parole: Need permission to leave state or even smaller area
Abortion ban laws (as of May 15, 2024)
Ala.
9,820
810
10,630
No
Yes
Total ban
Alaska
500
83
583
Yes
Yes
No ban or gestational limit
Ariz.
14,780
900
15,680
Yes
No
Ban at 15 weeks’ gestation
Ark.
13,280
4,120
17,400
Yes
Yes
Total ban
Calif.
36,113
2,900
39,013
Yes
Yes
Ban at viability
Colo.
19,052
1,190
20,242
Yes
Yes
No ban or gestational limit
Conn.
6,400
130
6,530
Yes
Yes
Ban at viability
Del.
2,260
20
2,280
Yes
Yes
Ban at viability
D.C.
570
60
630
Yes
Yes
No ban or gestational limit
Fla.
42,798
210
43,008
Yes
Yes
Ban at 6 weeks’ gestation
Ga.
80,346
1,860
82,206
Yes
Yes
Ban at 6 weeks’ gestation
Hawaii
3,285
200
3,485
Yes
Yes
Ban at viability
Idaho
7,612
1,020
8,632
Yes
Yes
Total ban
Ill.
18,777
1,450
20,227
Yes
No
Ban at viability
Ind.
24,163
530
24,693
Yes
Yes
Total ban
Iowa
6,870
850
7,720
No
Yes
Ban at 22 weeks’ gestation
Kan.
3,834
550
4,384
Yes
Yes
Ban at 22 weeks’ gestation
Ky.
16,880
2,220
19,100
Yes
Yes
Total ban
La.
6,660
1,670
8,330
Yes
Yes
Total ban
Maine
960
No parole program
960
Yes
No parole program
Ban at viability
Md.
10,014
500
10,514
Yes
Yes
No ban or gestational limit
Mass.
8,079
90
8,169
Yes
Yes
Ban at 24 weeks’ gestation
Mich.
28,108
730
28,838
Yes
Yes
No ban or gestational limit
Minn.
21,270
510
21,780
Yes
Yes
No ban or gestational limit
Miss.
6,680
1,190
7,870
Yes
Yes
Total ban
Mo.
10,867
2,910
13,777
Yes
Yes
Total ban
Mont.
2,435
160
2,595
Yes
Yes
Ban at viability
Neb.
3,160
100
3,260
Yes
Yes
Ban at 12 weeks’ gestation
Nev.
2,798
591
3,389
Yes
Yes
Ban at 24 weeks’ gestation
N.H.
907
182
1,089
Yes
Yes
Ban at 22 weeks’ gestation
N.J.
25,904
530
26,434
Yes
Yes
No ban or gestational limit
N.M.
2,375
290
2,665
Yes
Yes
No ban or gestational limit
N.Y.
13,020
1,260
14,280
Yes
Yes
Ban at 24 weeks’ gestation
N.C.
15,990
1,050
17,040
Yes
Yes
Ban at 12 weeks’ gestation
N.D.
1,630
170
1,800
Yes
Yes
Total ban
Ohio
49,619
1,520
51,139
Yes
Yes
Ban at 22 weeks’ gestation
Okla.
4,944
480
5,424
Yes
Yes
Total ban
Ore.
5,940
2,830
8,770
Yes
Yes
No ban or gestational limit
Pa.
21,752
7,725
29,476
Yes
Yes
Ban at 24 weeks’ gestation
R.I.
2,355
20
2,375
Yes
Yes
Ban at viability
S.C.
5,910
260
6,170
Yes
Yes
Ban at 6 weeks’ gestation
S.D.
1,382
810
2,192
Yes
Yes
Total ban
Tenn.
14,947
1,550
16,497
Yes
Yes
Total ban
Texas
91,135
11,452
102,587
Yes
Yes
Total ban
Utah
2,460
460
2,920
Yes
Yes
Ban at 18 weeks’ gestation
Vt.
600
100
700
Yes
Yes
No ban or gestational limit
Va.
14,157
40
14,197
Yes
Yes
Ban at third trimester
Wash.
16,328
880
17,208
Yes
Yes
Ban at viability
W. Va.
1,660
730
2,390
Yes
Yes
Total ban
Wis.
10,010
2,270
12,280
Yes
Yes
Ban at 22 weeks’ gestation
Wyo.
1,410
160
1,570
Yes
No
Ban at viability
U.S. total (excluding federal)
712,806
62,321
775,127
A travel restriction is just one of many barriers to healthcare for people on probation and parole
Interstate travel restrictions are just one of the barriers women — or for that matter, everyone on probation and parole — face when it comes to accessing health care. As we’ve already touched upon, some standard conditions restrict travel across much smaller areas, such as counties or court districts. Similarly, people on electronic monitoring — an increasingly common condition of community supervision that amounts to a form of “e-carceration” — are regularly blocked from leaving their home, workplace, or other approved locations. As we have explained before, people on electronic monitoring oftenreport being denied permission to see a doctor or go to the pharmacy to have prescriptions filled.
Even in the few places that don’t impose restrictions on movement, financial costs often put healthcare out of reach for people on probation and parole. As we’ve found in previous research, people on community supervision tend to have lower incomes, with about 60% reporting annual incomes below $20,000. About 25% don’t have health insurance to cover the cost of even basic care — despite reporting worse overall health and greater levels of need.16 Probation and parole conditions often come with additional expenses as well, such as monthly fees and the costs of drug testing or electronic monitoring devices, which leave even less money for healthcare.
Finally, for women on probation and parole who need abortion care, there is a special risk of further criminalization, either for violating the conditions of their supervision or for the abortion itself. A recent law review article details the various laws used historically and currently to criminalize abortion seekers and providers, paying special attention to laws targeting people who choose “self-managed abortions” when they are unable to access care from the formal healthcare system. A report by researchers at If/When/How describes 61 cases, across 26 states, in which people were investigated or arrested for allegedly ending their own pregnancy or helping someone else end theirs. All were from 2000-2020 — in other words, pre-Dobbs. Efforts to criminalize abortion have only gained momentum since.
Conclusions
Ultimately, Dobbs not only made abortion care much less accessible for everyone who may become pregnant; it created new risks of criminalization as well. For people under supervision, those risks are intensified by the travel restrictions found in standard conditions across the country. As the Community Justice Exchange and Repro Legal Defense Fund explain in their organizing guide, “In states where clinical abortion is banned or inaccessible … [self-managed abortion] will likely be the abortion option most accessible to people under carceral surveillance, putting them at a risk for criminalization that people who can travel freely do not face.”
For this reason (among others), state legislators, courts, and community supervision agencies should minimize the number and restrictiveness of standard conditions imposed on everyone on probation and parole — and greatly reduce the use of these massive supervision programs in general. Courts should limit who they place on supervision, individualize supervision conditions, and apply those conditions only for as long as necessary to achieve results. This approach is far more likely to set people up for success than relying on restrictive, one-size-fits-all rules that only act as tripwires to further criminalization and punishment.
Certainly, whether it’s appropriate to restrict someone’s movement is among the most situation-dependent decisions supervision authorities can make, whether for work, family, religious, educational, or — as we’ve discussed here — health reasons. Restricting where people can go inevitably blocks many from accessing the resources they need, which in turn creates health and safety risks for both individuals and communities. These very real and life-threatening consequences must be taken into account and not discounted simply because of a criminal legal status.
Author’s note: Amelia Wittig and Emily Widra provided the foundational research for our analysis of standard probation conditions by collecting and categorizing the relevant forms, web pages, and statutes that stated whether travel restrictions apply to everyone on probation. These sources are on file with the author. As part of a forthcoming report on probation conditions more broadly, we plan to upload the publicly-accessible documents and those we were given permission to share, and to provide a summary table with links in our Data Toolbox.
Our data sources, methodology, and important caveats
For this analysis, we looked at (1) the number of women on probation and parole in each state and in D.C., (2) the standard conditions of probation and parole in each state and D.C., and (3) the abortion laws in each state and D.C. However, none of these data points were straightforward, so we had to create some population estimates and rely on some assumptions, explained here.
Estimating state probation and parole populations by sex: The Bureau of Justice Statistics (BJS) reports the number of people on probation and on parole (or post-release supervision) by state and sex in its annual Probation and Parole in the United States report. These data form the basis of our estimates for the number of women on probation and parole in each state. Unfortunately, some states do not report these populations by sex or are missing sex data for a portion of the population. In all, almost 27% of the probation population nationwide, and almost 8% of the parole population, are missing sex data. We looked for the missing data in publicly available reports from state probation and parole agencies, but only found it for probation populations in Illinois (23.5% female) and Kansas (25.8% female).
To avoid seriously underestimating the number of women impacted by the laws and policies we examine here, we assigned a sex to the nearly 800,000 people on probation whose sex was not reported. We did so by applying the percentage of all people on probation reported as female among those whose sex was known (24%) to each state’s count of people on probation whose sex was unknown. In other words, we assumed that the ratio of males to females among the population whose sex was reported was the same among the population whose sex was not reported. (For Illinois and Kansas, we applied the percentages that we found from state reports.) Finally, we added each state’s reported number of women on probation to our calculated estimate of women on probation whose sex was not reported to arrive at our final estimate for each state’s female probation population.
We repeated the process to assign a sex to the nearly 54,000 people on parole nationwide whose sex was unknown. For parole, the percentage of people reported as female among those whose sex was known was 11%, so we assumed that 11% of each state’s sex-unknown parole population were female. As a last step, we compared the sums of our final estimates of each state’s female probation and parole populations to those published by the Bureau of Justice Statistics in its Correctional Populations in the United States, 2022 report. Our estimates amounted to almost exactly what BJS reported (less than a 0.1% difference), suggesting that our method is similar to what BJS used to estimate these total populations.
Standard conditions of probation and parole: Standard conditions of parole as of 2020, by state, have been collected, categorized, and discussed in Wiggins, et al.’s Parole Rules in the United States: Conditions of Parole in Historical Perspective, 1956-2020. We relied entirely on their analysis when it came to travel restrictions for parole. It’s worth noting, however, that Maine no longer has a parole program as of 2022, according to the Bureau of Justice Statistics. Previously, parole was available to those sentenced before May 1, 1976 — that is, before the state abolished discretionary parole. Despite having no one on parole at this point, Wiggins, et al. (2021) report that as of 2020, Maine had a standard condition of parole restricting out-of-state travel.
Unfortunately, the same comprehensive approach has not yet been applied to standard conditions of probation — largely because of the added difficulty of collecting these documents (which are not always publicly available) from states that have county-run probation systems for felony and/or misdemeanor probation. While some of those states have statewide standard conditions outlined in statute or elsewhere, some of them may have as many variations of standard conditions as there are counties — or even cases. Not to be deterred, we collected standard conditions for felony probation from everywhere that has a single set of standard conditions for the whole state. For those states where the conditions may vary by county, we looked for a sample of documents, prioritizing the most populous counties and felony probation conditions. For the purposes of our analysis — and this is an important caveat – we assumed that the standard conditions we found were representative of the whole state. This means that we may overestimate the number of women on probation in these states impacted by travel restrictions in the standard conditions we found, but we reasoned that those conditions would at least apply to women in the largest population centers for which we could locate documents. Moreover, we found that travel restrictions were the norm, not the exception, and we believe it is more likely than not that standard conditions in the counties from which we did not collect documents also restrict interstate travel.
The states for which we used county or city probation conditions to represent the state’s typical standard probation conditions, and the specific jurisdictions we used as our sample for these states, are summarized in the table below:
State
Representative county(s) or city(s)
Probation requires permission to leave (county/state/other)
Comments
Calif.
Los Angeles
County
Riverside
State
Ind.
Hamilton
State
Porter
Area of the court’s jurisdiction
Monroe
None
These conditions were revised in 2023 to be minimally burdensome.
Boone
State
Advance notification is required, not permission.
Kan.
Shawnee
County
Wyondotte
Area within100 miles radius of home, or area within 250 miles of Kansas border
Two different standard conditions documents show different travel restrictions, and it is unclear whether these reflect different levels of probation (i.e., felony vs. misdemeanor), changes over time, or something else. The condition referencing 250 miles outside of Kansas requires “notifying” an officer, not obtaining permission.
N.Y.
New York City
Area of the court’s jurisdiction
Suffolk County
Area of the court’s jurisdiction
Ohio
Cuyahoga
County
Montgomery
State
Okla.
Tulsa
State
This appears to be a statewide condition, but we could not confirm that.
Ore.
Multnomah
State
Clackamas
State
Pa.
Philadelphia
County
Allegheny
State
Montgomery
Adjoining counties
Bucks
Adjoining counties
Delaware
State
Tenn.
Shelby
None
Knox
State
Rutherford
County
Texas
Harris
County
Tarrant
County
Travis
County
Kansas, Kentucky, Mississippi, and Vermont have statutes or standard conditions that empower probation officers or the court to determine the boundaries of an individual’s travel restrictions. The language used in these conditions varies: “My designated area of supervision is [blank] and I will not leave this area without my officer’s permission” (Ky.); “the defendant shall… remain within a specified area as directed” (Miss.); and “Your probation officer may restrict or prohibit travel to any state…” (Vt.). In Kansas, a legislative research memo explains that, “Other than a few statutorily required probation conditions… the conditions of probation, in large part, are left to the discretion of the district court…” The referenced statute lists 14 conditions that the court “may” impose, which include most of the common standard conditions found elsewhere, among them, “remain within the state unless the court grants permission to leave.” Because the conditions we found in each of these states suggest even greater discretionary power than the one-size-fits-all standard conditions, we included these among states that require permission for our analysis.
Abortion access laws: For our categorization of abortion bans, we relied on the work of the Guttmacher Institute (as of May 15, 2024), which breaks down which states have “total bans” and those that ban abortion based on gestational age or “viability.” To distinguish between which states have implemented laws restricting abortions “earlier in pregnancy than the standard set by Roe v. Wade” (that is, “viability”), we relied on The New York Times’ categorization (as of May 1, 2024).
The decision in Roe v. Wade protected the right to choose an abortion until the highly variable point of fetal “viability,” which the Court described as “the interim point at which the fetus becomes… potentially able to live outside the mother’s womb, albeit with artificial aid.” That point, the court opinion continues, is “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” ↩
A recent article from The New York Times noted “… in the first half of 2023, almost a quarter of women living in states with near-total bans – who may have otherwise sought an abortion – did not get one.” ↩
“Total bans” are laws which only allow abortions in extremely limited circumstances, such as when the pregnancy presents a threat to the life or health of the pregnant person, when it results from rape or incest, or when there is a diagnosed “lethal fetal anomaly.” The specific exceptions to abortion bans vary by state. Bans based on gestational duration – often measured as time since the last menstrual period – range from as early as six weeks to the highly variable point of “fetal viability.” ↩
“Standard conditions” of probation and parole are the default conditions that everyone on supervision must abide by. “Special conditions” are additional rules and restrictions that may be imposed separately or on an individual basis. ↩
One important caveat to this finding is that not all states have statewide standard conditions of probation. In some states, probation (or at least misdemeanor probation) is managed at the county or city level instead of by a central state probation agency. In some of these states, standard conditions vary by jurisdiction, or courts may set different conditions for each supervised person. Because collecting standard conditions from every probation department in these states was not feasible, we attempted to gather those from the most populous counties, and used those as proxies – or representatives – of the whole state. See the Methodology for more details. ↩
The use of “women” reflects the gender binary inherent to the data, which come from administrative sources that report male and female sex as opposed to gender identity. These sources therefore obscure the numbers of intersex, nonbinary, and transgender people on probation and parole who are able to become pregnant but are categorized in the data as “male.” The probation and parole restrictions we detail are not gender-specific, which means they also limit these individuals’ ability to access abortion care in the same ways we discuss in this briefing. ↩
This figure includes only women on probation in the four states where only probation conditions restrict travel (Ariz., Maine, Mass., and Wyo.), only women on parole in the two states where only parole conditions restrict travel (Ala. and Iowa), and both populations in the 34 states where both probation and parole conditions restrict travel. Our analysis excludes federal probation and post-release supervision populations because we don’t have data showing how women under federal supervision are distributed across the states. The data source for all probation and parole populations is the most recent available (from 2022), the Bureau of Justice Statistics report Probation and Parole in the United States, 2022. See the Methodology for details. ↩
We excluded federal probation and post-release supervision because people can live in any state under federal supervision, and we don’t have data showing how women are distributed across the states. ↩
Four states – Kan., Ky., Miss., and Vt. – have statutes or standard conditions that transfer discretionary power to determine the boundaries of an individual’s travel restrictions to probation officers or the court. The language used in these cases varies: “My designated area of supervision is [blank] and I will not leave this area without my officer’s permission” (Ky.); “the defendant shall… remain within a specified area as directed” (Miss.); and “Your probation officer may restrict or prohibit travel to any state…” (Vt.). In Kansas, the statute related to probation conditions lists 14 conditions that the court “may” impose, which include most of the common standard conditions found elsewhere, among them, “remain within the state unless the court grants permission to leave.” This is not listed as a mandatory condition, but the statute is clearly written to give district courts the most control over conditions, and the sample conditions documents we found included travel restrictions. Because the rules in each of these states suggest even greater decision-making power than the one-size-fits-all standard conditions, we include these among states that require permission in our analysis. ↩
As of 2022, Maine no longer has a parole program, according to the Bureau of Justice Statistics (previously, parole was available to those sentenced before May 1, 1976 – that is, before the state abolished discretionary parole.) We did not count Maine among the states with standard conditions restricting travel for this reason, but Wiggins, et al. (2021) report that as of 2020, Maine, too, had a standard condition of parole restricting out-of-state travel. ↩
For a 2015 law review article, probation expert Ronald Corbett requested information from members of the National Association of Probation Executives about the standard and special conditions imposed in their jurisdictions. The sample he received showed a range of seven to twenty-four standard conditions in each jurisdiction, plus three to five special conditions. In the same article, Corbett includes this comment from a 2014 interview with a retired Texas Probation Director: “…we have witnessed the growth in the number of special conditions of probation, and now it is not uncommon for offenders to be saddled with up to a couple of dozen.” ↩
The other option is to arrange a “self-managed abortion” – that is, “an abortion that takes place outside of the formal medical system, through any number of means, such as a medication regimen, herbs, or other long-standing cultural practices,” as the Community Justice Exchange and Repro Legal Defense Fund describe it in Dobbs Was Not The Beginning. Of course, self-managed abortions come with their own legal risks and logistical barriers, which that organizing guide explains. ↩
A recent article in The New York Times noted that “Many traveling patients faced multiday trips, lost income and child care costs.” ↩
In Maine, for example, 17-A MRS §1807(8) states, “…the Department of Corrections may impose on a person applying for such permission an application fee of $25. …Permission to leave may not be denied or withdrawn solely because the person is not able to pay the application fee or the additional fee. When a person fails to pay a fee imposed under this subsection, the department may refuse to process the application or may withdraw permission to leave if the failure to pay is attributable to the person’s willful refusal to pay or to a failure on the person’s part to make a good faith effort to obtain the funds required for the payment.” ↩
For instance, people on probation or parole in Missouri – a state with a total abortion ban – are advised that “you are required to discuss your travels with your Probation and Parole Officer at least 15 days in advance to allow time for the proper paperwork to be prepared.” ↩
As we detail in the linked briefing based on our analysis of the National Survey on Drug Use and Health (NSDUH), people under community supervision report substance use disorders at four times the rate – and mental health disorders at twice the rate – found in the general U.S. population. Twenty-five percent of people on probation and 27% of people on parole were uninsured at the time of the survey, even though many have incomes low enough to qualify them for Medicaid. Public health researchers Winkelman, Phelps, Mitchell, Jennings, & Shlafer (2020) analyzed the same survey data (but from 2015-2016) and found that people under community supervision are more likely to report fair or poor health, more chronic conditions, a diagnosis of COPD, hepatitis B or C, or kidney disease than people in the general population. The community supervision population also has higher rates of disabilities, with particularly high rates of cognitive disabilities. ↩
At the request of the Georgia-based Community Over Cages Coalition, the Prison Policy Initiative examined the proposal for a new jail and found serious shortcomings.
UPDATE: On July 11, 2024, the Fulton County Board of Commissioners voted to scrap its $2 billion plan to build a new jail, marking an important victory for the advocates who opposed the proposal. Learn more here.
The overuse of pretrial incarceration hurts communities, and Fulton County is no exception. Pretrial incarceration undermines public safety by increasing the likelihood that people will be arrested in the future by up to 21%. It also harms employment and housing rates, increases overdoses and suicides, and undermines the presumption of innocence by increasing guilty pleas and sentences. These harms fall squarely on the shoulders of Fulton County’s Black and Brown residents, who make up a disproportionate number of people in the jail.
The feasibility study fails to consider alternatives to new jail construction. For example, the study fails to sufficiently consider the possibility of renovations to the existing jail or the impact of decarceration efforts. It also does not take into account the fact that crime rates in Fulton County are falling, not rising.
The feasibility study ignores the reality that a massive new jail would likely exacerbate its existing staffing issues. The feasibility study claims that updating the jail will completely solve staffing shortages and attempts to highlight other jails around the country as “model jails.” However, we show that even in these updated “model” jails, staffing concerns run rampant, jail deaths are on the rise, and conditions in these new facilities are still bad enough that they are leading to human suffering and costly lawsuits. The reality is that there is no “model jail”, and creating a massive new facility will make staffing problems worse, not better.
The Community Over Cages Coalition was formed to oppose the county’s proposal to build a $2 billion new jail. The coalition includes legal experts, people with lived experience in Fulton’s legal system, healthcare providers, and community organizers and activists with a shared goal of a Fulton County that enables the health and safety of all communities.
Is your community seeking to build a new jail or expand the capacity of its existing facility? We’re happy to help you push back on their arguments (drop us a line to tell us about your fight). There is no need to wait, though. We have created a how-to-guide with tips for pushing back on “jail needs assessments” that local leaders put together to justify the construction and provide strategies for pushing back on false or misleading arguments they’re making.
If you're a journalist who's been stonewalled while seeking public records about deaths in custody, you are not alone. We offer tips for requesting information and strengthening your story against HIPAA-related denials.
Prisons and jails often claim that the Health Information Portability and Accountability Act (HIPAA) privacy rule prevents them from sharing information about in-custody deaths with the press, or even with families of people who have died. Since these agencies have also been known to invoke HIPAA in denying information not remotely related to health,1 one might assume that many of these denials have no clear legal basis. But because prison oversight is abysmally weak — and because most people impacted by prisons’ lack of transparency are too poor to fight back — not a lot of legal precedent exists around what prisons and jails must or must not share.
The good news is that despite the grey area around health privacy law, HIPAA obstacles don’t have to spell the end of an investigation into deaths behind bars. This briefing lays out the HIPAA-related challenges for journalists investigating deaths in custody, offers tips for overcoming those challenges, and suggests ways to strengthen your stories against information denials.
HIPAA and common questions about in-custody deaths
HIPAA is a federal law passed in 1996 to set legal standards around healthcare coverage, efficiency in sharing of healthcare information, and processes for preventing healthcare fraud and data theft. Its Title II “privacy rule” prohibits healthcare providers — implicitly including confinement facilities — from sharing their patients’ “protected health information” (or PHI) with anyone other than approved family members and sometimes healthcare authorities.
When information requests remotely involve issues related to health, prisons and jails tend to default to denying journalists access to information. But journalists have the power to push corrections agencies to be more transparent about in-custody deaths.
Here are some of the obstacles you might encounter when asking common questions about deaths — and tips for getting around them:
“Did someone die in this prison recently?”
While you may be denied even this most basic information, it’s worth pointing out that HIPAA applies only to someone’s personally identifiable health information, which generally does not include the fact that someone died. Furthermore, a jail or prison refusing to release this information upon request is a red flag, given that at least 15 prison systems proactively make this information public:
How different states handle public disclosure of in-custody deaths
We examined state departments of corrections’ websites (and when appropriate, the websites of other agencies such as the Attorney General’s office) to determine their standard practices around reporting deaths in custody to the public.
Utah DOC appears to archive death notices at the beginning of each new calendar year, but those looking for information on deaths in previous years can use Archive.org; e.g. deaths in 2023 are here.
“What was the deceased person’s name?”
Many prison systems post the names of the deceased as a matter of policy (see table above). If a prison or jail refuses to provide names, you may want to point out to them that other prison systems have done so without running afoul of the law. If that doesn’t work, you should consider challenging the DOC’s policy. When Hawaii’s Department of Public Safety refused to release the names of people who died during COVID-19, the Honolulu Civil Beatsued the department and won, with a Hawaii Circuit Court ordering the Department to release the names of people who die in custody going forward.
“What was the cause of death?”
It’s common for officials to deny reporters information related to the cause of someone’s death, often citing HIPAA as the reason — and in many cases, this may be a legitimate claim. However, you’re wise to remember that several different documents are created when someone dies behind bars. There may be a death certificate, coroner’s report, medical examiner’s report, “death review” or incident reports, and/or an autopsy. While not every death triggers an autopsy, autopsies are public records in many states, so they are typically easier to obtain.
Journalists should also keep in mind that if a prison or jail refuses to release information and vaguely cites “health privacy law,” it’s worthwhile to clarify which law. Most often, the answer will be HIPAA, but some states have their own laws that go beyond HIPAA’s prohibitions to exclude additional information from public records disclosure.
Making the most of your public records request
Here are a few ways to maximize your chances of a fruitful records request and to fight back against stonewalling:
Review the basics about public records laws concerning the criminal legal system in your state before you file. (We wrote a 50-state guide to filing public records requests to criminal legal agencies.)
Call the public records official at the DOC or jail before you file to get an idea of what records exist and in what format. Ask them what kinds of records and reports the agency creates around deaths in custody, including any records of internal investigations of deaths.
Find out what kind of reporting about healthcare is made between the correctional agency and other parties. If the jail or prison uses a private healthcare provider, what kinds of reports does the company have to make to the agency regularly? The prison/jail may also make reports to hospitals it partners with and to any state or local oversight bodies. Reports that aggregate data without personally identifiable information may be easier to release than records pertaining to individuals.
If possible, clarify in your records request that you do not intend to seek personally identifiable health information and ask for the agency to redact any such information.
Appeal denials to your Attorney General’s public records ombudsman, whose job it is to determine if denials of public records requests were legitimate. If you think a prison or jail is denying you information that is not necessarily protected by HIPAA, it’s worth at least telling the ombudsman what is going on. (You may also want to alert prison oversight officials in your state when you get an unreasonable denial.)
Tip: If your public records requests are denied or delayed, you can also try searching the jail or DOC’s website for the records you’re looking for.2 Occasionally, correctional agencies store sensitive documents on their web server without strong security.
Privacy law obstacles can be the beginning, not the end, of a good story
Being stonewalled is frustrating, but if getting the information you want seems impossible, broadening or adjusting the focus of your story can allow you to hold the prison (or jail) system accountable even in the face of information denials. We suggest that you:
Look for patterns of medical neglect rather than individual cases. There may already be public evidence of neglect in the prison or jail system you’re investigating. States and large counties often audit correctional facilities’ healthcare systems, and the auditor/comptroller, Inspector General, and Attorney General’s office may have information about prior medical issues in the facility. (For an example of a story that uses evidence from local audits, see Arizona Luminaria’s reporting on jail deaths in Tucson.) You can also search legal databases like PACER for the name of the facility you’re investigating, or the names of any healthcare companies contracting with the facility, to find evidence of prior healthcare issues, which could put the deaths you’re investigating into context.
Connect with families. If you’re having trouble getting basic facts about in-custody deaths, chances are that families are, too. Ask the families of people who died in the facility about their experiences with the prison or jail after their loved ones’ deaths. Journalists have written powerful stories about correctional agencies stonewalling families who ask for information, or waiting hours or days to tell them about deaths or injuries.
Conversely, it’s also possible that the jail or prison will release medical records to the family that they wouldn’t release to the media. Building strong relationships with impacted communities and working with them to pressure the facility to release records may help you overcome HIPAA-related obstacles.
Talk to prison and jail oversight officials. Ask these officials if they have had trouble getting information about deaths and medical care in the facility. Again, a corrections agency that keeps journalists in the dark about deaths is probably creating similar obstacles for others. The Sacramento Bee, for example, has reported skillfully on the barriers facing Sacramento’s Inspector General.
Beyond the story: pushing for systemic change
Obstacles to transparency around prison conditions often go beyond a single story, revealing a larger problem with corrections agencies stonewalling journalists who are working in the public interest. News organizations, particularly in partnership with impacted communities, have the power to change that. In Massachusetts, for example, news organizations campaignedsuccessfully for public records reform.
Remember: Journalists do critical work to bring deaths behind bars to light, but they’re far from the only ones fighting the lack of “sunlight” in jails and prisons. The more creative you can be with your investigations, the greater the chances that family members, oversight officials, and even corrections officers will come forward to strengthen your story — and, hopefully, help you build the case that in-custody deaths should not be obscured by health privacy law.
Did you find this briefing helpful? Have a story to share? Let us know through our contact page.
Footnotes
For example, the Kansas Department of Corrections cited health privacy law when denying a KCUR reporter’s request for an internal email about a disciplinary writeup. ↩
A general search on the agency website for PDF files can be fruitful. To Google for PDFs on a specific website — for example, the Louisiana Department of Corrections — use the following syntax: “site:doc.louisiana.gov filetype:pdf.”) ↩
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Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony. While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions. Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs. That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.
Criminal records lock people out of the job market, making everyone less safe
Most people who have criminal records are not billionaire reality TV stars or real estate moguls with wealth and connections to fall back on. For them, getting a job is a matter of survival, and having a record greatly diminishes their chances of success. That’s because a variety of policies across the country effectively disqualify and deter people with records from obtaining employment.
This dynamic traps people in a vicious cycle of poverty and policing that makes everyone less safe in the end. Nearly four out of every 10 people in state prison — most of whom had past convictions — were jobless in the month leading up to their arrest. Black people (46%) and women (53%) in state prisons were especially unlikely to have been employed during that time. Meanwhile, more than 600,000 people return to their communities from prison each year and struggle to secure employment, housing, healthcare, and care for children in large part due to restrictions imposed on those with criminal records. Even though people in this situation are more likely to be actively seeking jobs than the general public, they are far more likely to be rejected by employers and report unemployment at a rate five times higher than the general public. These differences are rooted in discriminatory policy choices, not individual aspirations or capabilities.
Even when people in these circumstances do find work, they are often relegated to the most insecure and low-paying positions. Licensed occupations can provide a path to better job security, but that option is foreclosed by counterproductive policies such as these.
State laws ban people with felony convictions from holding many jobs
State laws and policies give employers ample opportunities to reject potential workers simply on the basis of their having been convicted of a crime. Though explicit employment bans that prohibit hiring from these populations have been modified in some states in recent years thanks to tireless advocacy, decision-makers in most places still enjoy wide discretion to exclude people from certain kinds of work on these grounds.
This is especially true for occupations that require professional licensing, such as bartenders, exterminators, healthcare workers, and car salesmen. People who want to work in real estate — either as agents or developers — are often required to submit to criminal background checks as part of the licensing process, too. Though these bans most frequently target people who are convicted of felonies in particular, certain misdemeanors can also preemptively disqualify people as well.
Whether explicit or discretionary, occupational licensing restrictions for people with felonies on their records are widespread. Just a few examples include:
Pest control in North Carolina: No one can be issued an ID or work as an estimator, serviceman, salesman, solicitor, or an agent for any licensee if they have been convicted of a felony within three years of their application.
Car sales in Mississippi: People who want to sell cars must have “good moral character, honesty,” and “high ethical standards” — qualities that are “presumptively” not met if they were, among other things, convicted of a felony or certain misdemeanors.
Bartending in Florida: Licensed bars cannot employ anyone as a manager, person in charge, or bartender who has been convicted of a felony anywhere in the U.S. in the past 5 years.
Any health professional in Virginia: Previously licensed healthcare workers face mandatory license suspensions if convicted of a felony. This includes early-career positions like certified nursing assistants, veterinary technicians, and peer recovery specialists. Nurses, in particular, could be prevented from receiving licenses or certifications for any felony or misdemeanor involving “moral turpitude.”
Firefighters in Florida: Firefighters must not have been convicted of certain misdemeanors, a felony, or any crime punishable by at least one year of imprisonment.
Even indirect employment bans have devastating effects
Even when jurisdictions do not explicitly ban people with felony convictions from obtaining occupational licenses, they typically give licensing agencies so much discretion that they can deter potential job-seekers with records from applying. If you have a record but want to work as a plumber’s apprentice in Texas, you have to fill out an additional extensive “Supplemental Criminal History Information” form. In New York, meanwhile, people with criminal records are not explicitly banned from working in the real estate profession, but they are not entitled to receive real estate licenses without the express permission from the Secretary of State, either. Hurdles such as these are enough to keep most people from applying in the first place.
In other places, discretionary bans are designed to target people who have felony convictions that are “directly related” to the work they would be doing. In Texas, for example, Trump’s convictions for falsifying business records could easily be construed as grounds to deny him a license to handle insurance, taxes, or (as he loves to do) hiring and firing people as an employee for a professional employer organization.
Conclusion
It’s important to reiterate that most people with criminal records have to navigate these challenges with far fewer resources and connections, and far less power, than Donald Trump. Though he officially has a felony record, he will not encounter the majority of these barriers to making money, let alone surviving. In the coming months, we will likely see clear examples of how rich and powerful people like Trump are insulated from the consequences of a criminal record that millions of the most vulnerable people in society — typically the primary targets of the criminal legal system — are forced to endure each day. This will ultimately not be a lesson in equality in justice, but a reminder of the freedom from punishment that people in Trump’s position enjoy even in the rare instances that they are convicted of their crimes.
That being said, the lesson we take from Trump’s conviction should not be that the system needs to get tougher. In fact, the opposite is true: the fact that such employment policies are counterproductive to basic safety interests and are so unequally applied are strong reasons to lower barriers to work for the average person with a criminal record — not erect new ones. At the very least, anyone who believes that a felony conviction shouldn’t disqualify someone from the most powerful office on the planet must also agree that it makes no sense to prohibit others with felony convictions from serving in more ordinary roles as plumbers, pest control workers, and bartenders. Fortunately, there are plenty of measures states can take to make life easier for people with criminal records:
Enact occupational licensing reform: States should reform their licensing practices to eliminate the automatic rejection of people with felony convictions.
Ban blanketed employer discrimination: Criminal records are not good proxies for employability. Additionally, because of racially disproportionate incarceration rates, organizations who discriminate against people with criminal records may also be contributing to racial discrimination and are therefore subject to litigation under Title VII of the Civil Rights Act of 1964.
Implement automatic record expungement procedures: Having an automatic mechanism for criminal record expungement that takes into account the offense type and length of time since sentencing would, in the near term, help formerly incarcerated people succeed and would, in the long term, promote public safety.
Issue a temporary basic income upon release: Providing short-term financial stability for formerly incarcerated people would operate as an investment, helping to ease reintegration and provide public safety and recidivism reduction benefits that would result in long-term cost savings.
Make bond insurance and tax benefits for employers widely available: Some governmental bodies offer insurance and tax incentives for employers who hire people with criminal records, protecting against real or perceived risks of loss. Increasing the availability of such programs would provide hesitant employers with added financial security.
For more information about the kinds of policies that prevent people with criminal records from obtaining occupational licenses, the various collateral consequences of those policies, and state-by-state comparisons, the following organizations offer excellent resources:
As we’ve reported in the past, LGBTQ+ people are overrepresented throughout the criminal legal system, from their high rates of juvenile justice involvement to the long sentences they often receive as adults. While little government data exists about the over-incarceration of this group, research is slowly emerging that shows how a multitude of forces push LGBTQ people into jails and prisons at highly disproportionate rates. This year, for Pride Month, we gather a few of the most striking facts about the criminalization of queer youth and adults.
Lesbian, gay, and bisexual people are more than twice as likely to be arrested as straight people — and lesbian and bisexual women, specifically, are more than four times as likely to be arrested as straight women. Scant research exists about the causes of these disparities, but it’s likely that drug law enforcement, laws against sex work, and the criminalization of homelessness are largely to blame.
40% of homeless youth are LGBT. Stigma, conflict, or a lack of acceptance at home drive many LGBT youth onto the streets — funneling many of them into the juvenile justice system, where 20% of the population identifies as LGBTQ.
35 states have laws against behaviors that can potentially spread HIV.These laws — carryovers from the height of the HIV pandemic — punish people for exposing others to the illness even if no transmission occurs, and can lead to people being criminalized for simply having sex while HIV-positive.
One in six trans people have been incarcerated at some point, including nearly half of Black trans people. This is compared to about 3% of the total adult U.S. population in 2010 that had ever been in prison, and almost 10% of Black adults.
44% of trans people in prison have been denied access to hormones they requested, according to a 2015 national survey by Black & Pink. Denying access to hormone therapy is just one way that prison policies fail trans people, as we reported in a 2017 briefing.
85% of LGBTQ incarcerated people have been put in solitary confinement, that same 2015 survey found. This is often done in the name of “protecting” queer individuals behind bars, despite the well-documented, long-lasting harms of solitary confinement.
Readers interested in learning more about the forces driving LGBTQ+ into jails and prisons may also be interested in these recent reports:
Lambda Legal’s 2022 national survey of 2,546 LGBTQ+ people and their experiences with the criminal legal system;
Vera and Black & Pink’s new report Advancing Transgender Justice, based on a large-scale survey of transgender people about their experiences in state prisons;
Our 2022 briefing about transgender respondents to the Survey of Prison Inmates, including five data visualizations about the demographics of this group.
