New research links medical copays to reduced healthcare access in prisons

Using our prior research on prison wages and medical copays, researchers found that higher copays obstruct access to necessary healthcare behind bars, even as prison populations face increasing rates of physical and mental health conditions.

by Emily Widra, August 29, 2024

In most states, people incarcerated in prisons must pay medical copays¹ and fees for physician visits, medications, dental treatment, and other health services. While these copays may be as little as two or five dollars, they still represent massive barriers to healthcare. This is because incarcerated people are disproportionately poor to start with, and those who work typically earn less than a dollar an hour and many don’t work at all. A new report published in JAMA Internal Medicine builds on our analyses of prison copay and wage policies across all state prison systems and the findings are clear: medical copays in prisons are associated with worse access to healthcare behind bars. These unaffordable fees are particularly devastating because they deter necessary care among an incarcerated population that faces many medical conditions — often at higher rates than national averages — and routinely faces inadequate health services behind bars.

In their recent publication, Dr. Lupez and her fellow researchers analyzed nationally representative data from state and federal prison populations published in the Bureau of Justice Statistics’ Survey of Prison Inmates, 2016.² While we previously published our own analysis of the same dataset in 2021, this new research goes further by analyzing changes from the 2004 data and mapping our copays and wages data onto health data from people in prison. The researchers compared the 2004 and 2016 iterations of the Survey and found that, overall, people in prison are facing more chronic physical and mental health conditions than they were in 2004.

Additionally, Dr. Lupez and her colleagues measured the effect of prison medical copays on access to specific healthcare services (including pregnancy-related care), access to clinicians for people with chronic physical conditions, and the continuation of medications for mental health. For each state,³ they used our 2017 copay and wage data to categorize each survey participant into one of three categories: no copays, copay amounts less than or equal to one week’s prison wage, and copay amounts greater than one week’s prison wage.⁴ Their results provide further evidence that medical copays limit access to care among the most vulnerable people in the system.

Many people in prison do not receive even the most basic, necessary healthcare

We already know that prison healthcare regularly falls short of the constitutional duty to care for those in custody. While most people in state prison report having seen a healthcare provider at least once since admission, nearly 1 in 5 have gone without a single health-related visit since entering state prison. Accordingly, the authors first examined general access to healthcare among three groups of people in state and federal prisons: people who were pregnant when admitted to prison, people with chronic physical conditions, and people with mental health conditions. They found that even the most basic care — like obstetric exams for pregnant people or any visit with a healthcare provider for people with chronic conditions — is not provided to surprisingly large portions of the affected population.

Treatment for chronic physical conditions. More than 1 in 10 people (14%) with at least one chronic condition in state and federal prisons had not been seen by a clinician since they were incarcerated. Within their first year of imprisonment, more than a fifth of people with chronic conditions (22%) had not yet been seen by a healthcare provider. Chronic diseases — by definition — require ongoing medical attention, and for the 62% people in state and federal prisons⁵ who have them, the lack of consistent, adequate medical treatment can have disastrous and fatal consequences.

Mental healthcare. Among the almost 400,000 people in state and federal prisons with chronic mental health conditions,⁶ one third (33%) had not received any clinical mental health treatment since entering prison. Again, those who were within their first year of incarceration were even more likely to report no treatment: 39% had not yet received any mental health treatment compared to 29% of people incarcerated for more than one year. Similarly, more than 41% of people experiencing severe psychological distress⁷ in state and federal prisons had not received mental health treatment.⁸ And more than one third (34%) of people who had been taking prescription medication for a mental health condition at the time of their offense had not received their medication since entering prison.⁹

Pregnancy-related healthcare. Standard prenatal healthcare for pregnant people involves monthly doctor’s appointments at minimum, as well as screenings, tests, vaccinations, and patient education usually conducted by a perinatal specialist. But a shocking proportion of pregnant people in state prisons did not receive so much as an obstetric examination (9%), see any outside providers or specialists (26%), or any pregnancy-education from a healthcare provider (50%) after entering prison.

Medical copays and fees block access to necessary healthcare

When healthcare needs come up against an arduous and expensive sick call process, people are forced to jump through arbitrary hoops just to see a doctor — or delay or forgo medical care altogether — as their health deteriorates. The researchers found that prison systems with more expensive medical copays (relative to prison wages) limit access to necessary healthcare for incarcerated pregnant people and those with chronic conditions more than prisons with no copays or copays equivalent to or less than one week’s prison wage.

Healthcare in prisons is subpar for almost any medical condition, and chronic physical conditions are often more prevalent behind bars than in the general population. The researchers found that medical copays clearly impact access to healthcare for the more than 500,000 people incarcerated in state and federal prisons who have conditions like heart disease, asthma, kidney disease, and hepatitis C. This is particularly alarming considering many of these conditions require regular medical management or can even be cured.

People with chronic conditions in state prisons where copays exceed a week’s wage are less likely to have seen a healthcare clinician while incarcerated than those in prisons that charge no copays or lower copay amounts. Among people with chronic physical conditions who have been incarcerated for more than one year, 12% of incarcerated people who face more unaffordable copays have not seen a clinician. Meanwhile, in prisons with relatively lower copays or no copays, less than 8% of people with chronic physical conditions have not yet seen a clinician after being incarcerated for more than one year.

Among people incarcerated in state prisons for any amount of time, more unaffordable copays were associated with worse access to the necessary healthcare, like obstetrical examinations for pregnant people and seeing a medical provider for people with chronic medical conditions.

Similarly, pregnant people in state prisons do not receive standard prenatal care and medical copays make this situation worse. Pregnant people in state prisons without medical copays or with lower copays relative to their wages were more likely to have received an obstetrical examination and clinical pregnancy education than those in prisons with copay amounts more than a week’s prison wage.¹⁰

Copay waivers and exemptions. Researchers also identified prison policies granting copay exemptions for some healthcare services for some people: at least 25 state departments of corrections and the federal prison system have copay waivers for chronic conditions, while 13 states have waivers for pregnancy-related care. However, as correctional health expert Dr. Homer Venters explains: “many chronic care problems aren’t detected when a person arrives [at the jail or prison], so to get treatment… requires the sick call process… Many systems have a practice of requiring two or three nursing sick call encounters before a person sees a doctor.”¹¹ In other words, someone who meets the exemption criteria likely will still need to pay copays for the initial two or three nursing sick call visits before clinicians identify them as someone who should be exempt from copays.

It’s worth noting that the researchers repeated their analysis of how copays impact access to healthcare services among people without any reported chronic conditions in state prisons. If the chronic care waivers were working as intended, they reasoned, people who do not have chronic conditions would experience even lower rates of healthcare access compared to people with chronic conditions who have their copays waived. Instead, they found people who do not have chronic conditions appear to face similar rates of healthcare access as those who do, suggesting that these waivers are not routinely and consistently applied in a way that actually promotes healthcare access for the most vulnerable people in prison.

From 2004 to 2016, rates of chronic illness and mental illness increased in state and federal prisons

In addition to finding that higher copays restrict healthcare access, the researchers delved into demographic and health-related changes among the prison population between 2004 and 2016.

Demographics. People in prison in 2016 were more likely to be older; identify as Hispanic, multiracial, or some race other than white or Black;¹² and to have been incarcerated multiple times compared to those incarcerated in 2004. These are groups of people that already face significant barriers to healthcare and often have poor health outcomes, even outside of prison. Older adults are more likely to have more medical conditions, which are already more prevalent behind bars. Outside of prison, Hispanic adults report less access to regular medical care and higher rates of uninsurance, while Black, Hispanic, and American Indian or Alaska Native people are less likely to receive necessary mental healthcare and have faced larger declines in life expectancy than their white counterparts. Ultimately, multiple periods of incarceration can negatively affect health status, and experiencing years of limited resources, inaccessibility, and understaffing in prison healthcare creates a situation in which each year spent in prison takes two years off of an individual’s life expectancy.

Chronic physical conditions. As we discussed in our 2021 report, Chronic Punishment: The unmet health needs of people in state prisons, chronic physical conditions and infectious diseases are more prevalent in prisons than among the nation at large. This newest analysis from Dr. Lupez and her colleagues reveals that these chronic conditions are more common in state and federal prisons than they were in 2004. For example, the percentage of the prison population facing at least one chronic condition increased from 56% in 2004 to 62% in 2016, and the percentage facing three or more chronic conditions increased from 12% to 15%. In other words, a larger portion of the prison population is facing chronic illness, and in many cases multiple chronic illnesses.

Mental health conditions. The researchers also found that mental health conditions were more common in 2016 than in 2004. The Bureau of Justice Statistics’ Survey offers data on the proportion of the state and federal prison population who have ever had depression, anxiety, psychotic disorders, manic disorders, posttraumatic stress disorder (PTSD), and personality disorders. The prevalence of every one of these conditions increased in the prison population between 2004 and 2016: in 2004, nearly a quarter of the prison population reported one mental health condition and by 2016, this had increased to more than 40% of people in prison.¹³ Not only are mental health conditions more common, but more people are facing chronic mental health conditions in particular: the proportion of people in prison with chronic mental health conditions practically doubled from 2004 to 2016 (14% to 27%).

This study ultimately underscores the urgency of ending medical copays and healthcare fees in prisons and jails, and provides evidence that unaffordable copays put necessary medical care out of reach for far too many incarcerated people. Generally speaking, this study shows that incarcerated people are sicker than ever, the healthcare options available to them are grossly inadequate, and people are not getting the constitutionally-guaranteed care that they need — regardless of whether prisons charge copays or not.

As a final note, we are gratified whenever our work is repurposed by other researchers like this — it’s why we publish our detailed appendix tables and other data collections, many of which can be found in our Data Toolbox. If you are a researcher using our data, we encourage you to reach out with any questions and to let us know how you are using our work.

10 ways that mass incarceration is an engine of economic injustice

The fight for a fair economy and the movement against prisons are one and the same.

by Eric Seligman and Brian Nam-Sonenstein, August 27, 2024

Table of Contents

Mass incarceration traps low-income communities in poverty

#1: Sentencing poor people to deeper poverty

#2: Impoverishing the families and communities of incarcerated people

#3: Deepening poverty in rural prison towns

Mass incarceration weakens all workers

#4: Raising the stakes of unemployment for all workers

#5: Weakening formerly incarcerated workers — harming all workers

#6: Making it harder for all workers to unionize

Mass incarceration undermines movements for economic justice

#7: Suppressing political engagement and representation

#8: Weakening unions, removing a key player in movements for economic justice

#9: Inflaming social tensions that undermine worker solidarity

#10: Hiding economic injustice, making it harder to organize against

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t. As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed. The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities. Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions. Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice. Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice. We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

Mass incarceration traps low-income communities in poverty

First, it’s important to understand how incarceration makes and maintains poverty. Criminalizing the poorest people, saddling them with debt, and destroying their financial futures has grave consequences for their families and wider communities. Additionally, prisons are economically depressing for the poor rural towns that host them, leaving them in financial ruin for years to come. It turns out that struggling urban and rural communities have a shared interest in ending our country’s reliance on prisons to address poverty and unemployment.

#1: Incarceration sentences poor people to deeper poverty

As the saying goes, it’s expensive to be poor, and in the U.S. the criminal legal system makes this emphatically so. At every stage of the criminal legal process — from pretrial detention, to incarceration, to reentry — already-poor people are faced with ever-harsher conditions of poverty.

Poverty traps people in jail. About 83% of people in local jails are legally innocent and awaiting trial, and many of them are too poor to make bail.¹ At the same time, jail traps people in poverty: it prevents people from working and immediately increases the chances they’ll be fired, leading to long-term job instability and lost government benefits. People in jail must also pay high prices for phone calls, medical fees or “copays,” and essential goods purchased in the commissary.² Even those who are released pretrial can still take a big financial hit when they’re forced to make nonrefundable payments to bail bond companies and pay expensive user fees for pretrial electronic monitoring.

In prison, periods of employment³ are replaced with low-wage prison labor⁴ — wages that are quickly consumed by expensive communications, medical care, and commissary goods, not to mention fines for alleged misconduct in many states. Release and reentry provide little reprieve, as people on post-release supervision (who are disproportionately poor⁵ to begin with) are forced to pay monthly fees for things like regular urinalysis tests, electronic monitoring devices, mandatory programs, and more for years on end.⁶

#2: Incarceration impoverishes the families and communities of incarcerated people

Families of incarcerated people lose household income and assume astronomical new expenses related to supporting a loved one on the inside. It bears repeating that these families are often already struggling with poverty,⁷ and prison makes their survival significantly harder. According to a survey by the Ella Baker Center, roughly 65% of families with a loved one in prison were unable to meet their basic needs because court-related fines and fees sent them into debt over $13,000 on average. In particular, 58% of families living in poverty were unable to afford the costs associated with a conviction. Meanwhile, an estimated 1 in 3 families went into debt because of communication and visitation costs alone. Women were most often responsible for covering these costs: another survey conducted by the Essie Justice Group found that 35% of women experienced homelessness, eviction, or struggled to make rent or mortgage payments as a result of bail, court fees, and lost economic opportunities. Incarceration cost one-third of women their household’s primary source of income, and 43% were forced to work more hours, get a different job, or turn down an educational opportunity as a result.

These harms spill over into the larger community. Lost wages and barriers to employment among the formerly incarcerated reduce their purchasing power, which in turn deflates demand for local goods and services. As a result, local businesses can’t afford to hire as many people, exacerbating unemployment for those returning there from prison and the broader community. The high concentration of policing and incarceration in poor communities creates a feedback loop of economic consequences, creating and worsening poverty at the very same time.

#3: Prisons don’t fix rural poverty — they deepen it

Towns suffering from unemployment and deindustrialization, especially rural communities, are often sold the idea that prisons can help turn things around.⁸ But this story could not be further from the truth: prisons actually deepen poverty in the communities where they are built — and, they deepen poverty the most in the towns that are the most impoverished to begin with. Rather than create local jobs, most openings are filled by senior corrections workers⁹ from other areas. In fact, local workers are often rejected from these jobs because of symptoms of local poverty: bad credit histories, low levels of education, criminal records, drug use, age, and even a lack of prior experience puts locals at a disadvantage compared to those from other areas. There are decades of examples of this dynamic at work:

• After California’s state prison in Corcoran was built in 1988, fewer than 10% of the jobs went to local residents.¹⁰
• Residents of Malone, New York were promised 750 jobs when a state prison opened there in 1999, but those jobs went mostly to people from outside of the town because of prison system seniority rules.¹¹
• When a federal prison opened in McCreary County, Kentucky in 2003, only an estimated 10% of the new jobs were filled by local residents, amounting to about 30 jobs total.¹²
• Ruth Wilson Gilmore’s 2007 study of California’s prison boom reported that under 20% of jobs from new state prisons went to local residents on average.

Additionally, using prisons to chase community investment is often a race to the bottom. In fact, new prisons can discourage investment in several important ways:

• Many businesses avoid new prison towns because they tend to lack local amenities and fear the incoming criminalized population.
• Communities spend tons of money to convince, for example, the federal government to site a prison in their locality. They offer steep discounts on land and resources with the hope of making the money back in the future. Instead, rents and land values eventually plummet when the promised economic boom never arrives, devastating home values.¹³
• Prisons attract large chain stores that strategically site themselves nearby, driving out the smaller local businesses that provide similar goods and services. While the profits for smaller local businesses reliably circulate within the community, the profits for chain stores are largely distributed throughout their operations elsewhere.¹⁴
• Prisons are a blight on the environment. Their construction destroys local habitats, they’re often built on dangerously polluted land, and, once built, they generate significant waste that is expensive to remediate.¹⁵

Mass incarceration weakens all workers

One of the ways that mass incarceration traps people in poverty is by raising the stakes of unemployment for all workers, creating immense obstacles to organizing for better terms of employment. Rather than alleviate poverty through jobs, housing, education, and healthcare, the U.S. uses criminalization to force people to comply with a deeply unequal economy.

#4: Mass incarceration raises the stakes of unemployment for all workers

Mass incarceration emerged as the U.S. economy grew more unequal and work became more precarious: In 1973, the wealthiest 10% of Americans captured one-third of all income, but nearly 40 years later they had captured one-half of it. In that time, the ultra-rich top 1% went from holding 9% of all income to nearly a quarter of it. Meanwhile, at least 17% of workers toiled under unstable work schedules in 2015.¹⁶ The growth of the criminal legal system, combined with rising inequality and the demise of the social safety net, has made unemployment riskier and weakened workers’ bargaining position. If losing your job means you’ll receive meaningful financial support before your next job, you’ll be more likely to risk retaliation from an angry employer to demand higher wages and better conditions. If losing your job may lead to an indefinite period of austerity, stress, and surveillance that could end in arrest and incarceration, you’ll be less likely to risk making such demands. In a recent study of labor markets in high-incarceration communities, Adam Reich and Seth J. Prins find that the more incarceration there is in a community, the less likely people are to risk their jobs demanding better terms of work, regardless of prior experiences with incarceration. In other words, in neighborhoods where incarceration is more common, workers — formerly incarcerated or not — are more inclined to play it safe at work than risk unemployment and incarceration.

The U.S. incarceration rate has closely tracked the rise in the share of national income held by the wealthiest 1% of Americans. For most of the 1950s, 60s, and 70s, the top 1% held about 10% of the total national income while the U.S. imprisoned about 100 people per 100,000. By the 2000s, the share held by the top 1% had doubled to around 20% while the incarceration rate grew to five times the historical norm.

#5: Suppressing the wages of formerly incarcerated people harms all low-wage workers

As mass incarceration restricts job opportunities for formerly incarcerated people, it creates a feedback loop that suppresses wages for everyone. Here’s how it works: limited job options threaten formerly incarcerated workers with deeper poverty, criminalization, and re-incarceration, and makes them especially dependent on those few employers who are willing to hire them. As a result, they are compelled to accept nearly whatever wages or conditions are offered to them. Employers can then use this group of precarious workers to threaten others with replacement if they dare to demand higher wages and better conditions. Among the more than 50,000 people released from federal prisons in 2010, a staggering 33% found no employment at all over four years post-release and no more than 40% were employed at any given time. Successfully landing a job also had limited benefits: formerly incarcerated workers averaged 3.4 jobs between 2010 and 2014 — in other words, they secured jobs that didn’t offer security or upward mobility. These jobs tended to be the lowest-paying positions. An analysis of IRS data by the Brookings Institution found most employed people recently released from prison receive an income well below the poverty line. Everyone suffers when employers can readily threaten to fire a worker and hire from the highly vulnerable formerly incarcerated pool, forcing everyone to accept less money and worse treatment.

Incarceration erodes a worker’s ability to quit — an important measure of worker power. Additionally, formerly incarcerated workers have lost their say in which jobs they accept: while “before prison” workers can exhibit a preference for more satisfying jobs, “after prison” workers have to accept high- and low-satisfaction jobs at similar rates.

#6: Mass incarceration makes it harder for all workers to unionize

Higher unionization rates lead to higher wages throughout the economy because, in places where businesses have unionized, other employers must pay more to compete for local workers. Unions are also an equalizing force, reducing racial and gender economic disparity and increasing political participation. Mass incarceration undermines these benefits by preventing workers from leveraging their collective power through unions or other worker associations that can more safely and effectively make demands of employers. Reich and Prins’s 2020 study offers the first large-scale documentation of this effect: they found individuals with a history of incarceration were 85% less likely to join the OUR Walmart workers association. They also discovered people who had experienced any contact with the criminal legal system (including felony convictions, probation or parole, or incarceration) were 76% less likely to join the organization. According to their analysis, as prison admissions rose, the odds of signing an OUR Walmart membership card fell.. Union approval elections were also less likely to succeed in communities with higher incarceration rates regardless of whether the workers involved in that particular election had been previously incarcerated. The chilling effect of mass incarceration on labor organizing pervades throughout the entire low-wage labor market, affecting all workers. Beyond the increased risk associated with losing one’s job, there are likely other reasons for this dynamic, such as incarceration’s suppressing effect on the community networks and institutions where labor organizing often takes place.

Mass incarceration weakens political movements for economic justice

Finally, mass incarceration’s coercive power, rooted in its ability to exclude and impoverish, seriously undermines political movements for the rights of the most marginalized, who have the most at stake in economic reform. By reframing systemic inequalities as individual failures and criminality, the narratives built around prisons stoke the flames of racism and pit people with similar economic interests against one another. In this environment, our weakened political movements cannot win or maintain the social programs that would help nearly all of us, and that the vast majority of people want.

#7: Mass incarceration is anti-democratic, suppressing political engagement and representation

Disenfranchisement laws prevent people who have the most intimate understanding of poverty in the U.S. — and the most at stake in economic reform — from participating in elections. According to the Sentencing Project, as of 2020, an estimated 5.17 million people — 1 out of every 44 adults in the entire eligible voting population — lost their right to vote due to a felony conviction. Prison gerrymandering also disempowers the communities from which people are incarcerated: by counting incarcerated people where they’re imprisoned instead of where they’re from, the Census Bureau dramatically distorts political representation at the state and local level, and paints an inaccurate picture of community populations for research and planning purposes.

Incarcerated people and their communities are also shunned from the political process in ways beyond legal disenfranchisement. The many stresses of returning from prison lead many individuals — and entire high-incarceration communities — to significantly retreat from formal politics and from the more informal processes of shaping the institutions that structure their lives. According to a 2010 study by scholars Vesla Weaver and Amy Lerman, contact with the criminal legal system is strongly and consistently associated with declining trust in government and a reduction in one’s likelihood of voting, even when the sample is restricted to those who have not been legally disenfranchised. Other research confirms this effect encourages not just individual disengagement from politics but the withdrawal of entire communities from politics and more informal forms of neighborhood involvement.

#8: Mass incarceration weakens labor unions, removing a key player in broader movements for economic justice

Organized labor has traditionally been a key player in movements for just economic policies. Beyond providing a gateway for members to build confidence in the possibility of organizing around shared interests to change policy, unions have often provided the actual institutional structure that organizes the public for economic justice. According to a 2021 study from the Economic Policy Institute, the 17 states with the highest union densities have, on average:

• State minimum wages that are 19% higher than the national average — 40% higher than low-union-density states,
• Median annual incomes $6,000 higher than the national average,
• A higher share of unemployed workers receiving unemployment insurance,
• An uninsured population 4.5 percentage points lower than that of low-union-density states,
• A higher likelihood of passing paid sick leave laws and paid family and medical leave laws than states with lower union densities, and
• Significantly fewer restrictive voting laws.

Police and corrections officers provide stark examples of how powerful organized workers can be, though these unions’ relationship with the criminal legal system tends to lead to positions that do not serve the interest of all workers. In some states, law enforcement organizations play a very significant role in electoral politics, often as main contributors to major campaigns. The California Correctional Peace Officers Association, for example, has contributed more than $9.3 million to political campaigns in the last 20 years — $3.8 million of which was spent across 32 state legislative races since the year 2000 alone. Over the past year, the California guards union negotiated a $1 billion raise over three years and got a new, additional state-funded retirement perk. In addition to pushing legislation directly responsible for expanding California’s prison system, the organization bankrolled particular victims rights groups that have helped stoke fears of criminalized people. Imagine if those sectors of the workforce that articulate more progressive policies for economic justice were as organized and politically active as the California prison workers union. By making it harder for most workers to unionize — while also empowering those segments of labor with a vested interest in the criminal legal system — mass incarceration removes a key player from political movements for economic justice.¹⁷

#9: Mass incarceration inflames social tensions that undermine worker solidarity

Throughout U.S. history, racism has prevented the development of a fully united movement for workers rights. Mass incarceration has continued this tradition by reinforcing divisions that obscure a shared interest in policy reforms. Prisons are home to racially disproportionate outcomes and a heated debate about their causes¹⁸ that plays out in media, exacerbating racism in society. Labor market research that finds that employers more frequently assume criminality in Black job applicants, whether they have a criminal record or not, exemplifies how mass incarceration influences society’s ideas and relationships around race in the workplace. Relatedly, the monumental scale of punishment in the U.S. leads to a hardening of ideas about workers who are “law-abiding” and those who are not, creating deep cultural rifts that leave less room for organizing around common grievances. While many workers and incarcerated people often share very similar needs for economic reform — like more affordable housing, education, or healthcare — the strength of their divisions along the lines of “criminality” tend to overpower the possibility of solidarity around shared needs.

#10: Mass incarceration hides economic injustice, making it harder to organize against

While mass incarceration creates some very visible economic injustices, others remain hidden, and when the public can’t readily see injustice or accurately pinpoint its source, it is harder to organize people against it. For example, mass incarceration artificially lowers official unemployment rates as incarcerated people go uncounted. Bruce Western and Katherine Beckett show that, in the 1990s, mass incarceration lowered the unemployment rate for Black men by 7 full percentage points. The ’90s are generally celebrated as a booming time for the U.S. economy with increasing employment opportunities for people of color. However, if incarcerated people were included in these statistics, the jobless rate for Black men would have stayed at an appalling 40% between the official unemployment peak in the early 1980s and the “inclusive” mid-1990s. Furthermore, if these figures and economic policy targets were recalculated to include the prison population, it would be even clearer just how little our society spends on social programs to address dire economic problems.

Beyond statistical misrepresentation, mass incarceration also gives rise to narratives that displace blame for criminalized poverty entirely onto the individual. Despite the vast amount of research on the role of economic conditions in causing crime, criminal legal proceedings present many symptoms of poverty, unemployment, and homelessness not as economic problems to be alleviated through systemic policy changes, but as personal failings that must be forcefully punished. This “individualization” of structural problems is also very clear in reentry. One can only counsel so many exceptionally persistent formerly incarcerated job applicants — who are indeed more “active” in the labor market than their general population peers¹⁹ — on how to beat out other workers before it becomes clear that the lack of economic opportunities that would allow them (and all workers) to meaningfully support themselves is really to blame. Bruce Western’s Homeward and Jamie Peck and Nik Theodore’s “Carceral Chicago” are full of painful stories of individuals stuck in these situations, making heroic individual efforts amid a scarcity of opportunities. In this situation, a certain percentage of people are guaranteed to end up unemployed, and demanding fiercer competition among them will not change this fact. It will, however, continue the pattern of filling prisons by blaming individuals for structural economic problems.

Conclusion

As these ten points show, mass incarceration is a major obstacle to movements for economic justice. The vast majority of people in the United States have a stake in dismantling this engine of inequality, which not only impoverishes people but traps the poorest communities in poverty. Through a combination of financial sanctions and legal disenfranchisement, criminalized people, their families, their communities, and eventually all low-wage workers become economically and politically disadvantaged. Mass incarceration presents a looming threat that deters all workers from risking unemployment by demanding better wages and working conditions, undermining both individual bargaining power and union organizing. Broader movements for economic justice suffer from the loss of unions as important incubators for political organizing, and people become discouraged from engaging in political participation altogether. Rather than address structural conditions by investing in what most people need — which the nation has the resources to do — the United States has chosen to blame and punish the individuals who are most harmed by them. As a result, mass incarceration stokes racism and pits people with similar economic interests against one another. In the end, these facts make clear that movements to end inequality and mass criminalization are in fact one and the same, and solidarity between all workers — criminalized or not — is necessary to progress toward a more economically just future.

An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform

Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar “zombie policies” are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety.

by Emmett Sanders, August 21, 2024

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons. Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country. These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024. Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Louisiana’s moves are remarkably out of touch, coming at a time when many states are engaging in genuine efforts to reform sentencing and parole, including expanding release through discretionary parole for all or some part of their prison populations. Since the Supreme Court’s 2012 decision in Miller v. Alabama, which found that judges must consider age and maturity when imposing life without parole sentences, 28 states and Washington D.C. have eliminated juvenile life without parole, with states like Minnesota implementing new juvenile parole review boards. Meanwhile, at least 46 states and Washington D.C. have established either medical parole, geriatric parole, or both, creating new release pathways for the elderly and chronically infirmed. Even in states where discretionary parole has long been abolished, such as Illinois, Virginia, and Maine, there have been strong pushes to see it restored. Louisiana itself had been slowly moving in the right direction, having seen an almost 30% reduction in its prison population over the past twelve years largely thanks to previous sentencing reforms that have driven down the number of people entering prisons. Now, however, Louisiana is reversing a decade of progress under the cover of false narratives.

Louisiana’s parole system was bad, but it was better than nothing

Louisiana is already a world leader in incarceration. The Pelican State holds the dubious distinction of having the highest incarceration rate in the United States, and is second only to El Salvador for the highest incarceration rate among the world’s independent democracies.¹

Their parole system, which earned an “F” in our 2019 report grading parole systems across the country, is partially to blame: In 2023, the board held only 790 hearings, and granted only 387 people parole. Discretionary parole hearings declined 52% from 2019 to 2022 — a period of time which also saw a staggering 59% drop in the number of people released via discretionary parole, and a 15% reduction in parole grant rates. In short, fewer and fewer people were already being released from prison in Louisiana, and those with violent crimes were already serving 25% more time in 2022 than they were in 2018. Nevertheless, discretionary parole remained a ray of hope for many in Louisiana’s prisons. Now, that meager but meaningful release mechanism will be available to far fewer people.

Keeping people in prison longer harms public safety, rather than helping it

Proponents of “tough on crime” bills like HB 9 and HB 10 often depict them as efforts to improve public safety. However, their arguments that more time in prison leads to more public safety are not only misleading, they are costly and dangerous.

Louisiana’s historical and projected prison population, 2012-2034.

According to estimates from the Crime and Justice Institute, HB 9 and 10 are poised to almost double Louisiana’s prison population by 2034. HB 10 alone will double the number of people convicted of non-violent crimes in Louisiana’s prisons and triple the state’s prison budget. The resulting growth in prison populations will almost certainly require new prison construction, which could come at a price tag of $2 billion.

These costs represent billions of dollars that could be spent on actually-effective means of improving public safety, like investments in better community-based violence interruption, crisis response, and youth programs. The ACLU of Louisiana has noted that savings generated by the state’s decarceral reforms over the past decade were successfully reinvested in innovative programs that prevented recidivism. As Louisiana lawmakers should know by now, communities are safest when the state invests money in proven violence solutions, not harsh sentences.

In addition, overcrowded prisons are dangerous prisons for those who are incarcerated as well as prison staff. Overcrowding is often cited as a primary reason for chronic severe understaffing in prisons and jails because it creates deadly conditions for staff and incarcerated people alike. Studies abound that show overcrowding and understaffing are associated with high levels of prison violence. To make matters worse, taking away discretionary parole and the ability to earn good conduct credits inside crowded prisons only adds fuel to the fire by eliminating a major incentive for people in prisons to engage in programming, avoid confrontations, and adhere to prison rules, all of which improve safety for those who are incarcerated, their families, and the communities to which they return. Indeed, another state has experimented with similar law changes to Louisiana’s, with disastrous results: Tennessee’s decision to implement truth-in-sentencing laws lead to numerous riots in the state’s prisons. Given that at least 95% of people confined in state prisons will eventually be released, subjecting them to increased violence and doubling down on trauma — rather than addressing it — ensures that these experiences will follow people home.

Conclusion

Ultimately, abolishing discretionary parole and imposing truth-in-sentencing in Louisiana is a backward move that essentially guarantees the state will remain one of the worst incarcerators in the world for years to come. Politicians who are truly concerned about public safety should focus on making sure that people in prison have access to programming, education, and the resources they need to make a successful transition into society as soon as possible, and that communities are well-supported to help them once they get out, rather than spending billions of dollars to ensure that incarceration is as long and as traumatic an experience as possible.

Advocacy Spotlight: Texas Jail Project

How one small organization in Texas is fighting to get answers for families of people who die in jails and forcing accountability from the jails they die in.

by Emmett Sanders, August 6, 2024

Across the country, people are dying in jails. Often, these deaths are used as the basis of arguments to spend millions or even billions of dollars on jail construction. As our research has shown, however, a new jail is by no means a guarantee that jail deaths won’t continue or even increase. Meanwhile, far less scrutiny is being paid to whether all jail deaths are even being reported. Some jails have implemented policies of not reporting deaths to media outlets, intentionally obscuring transparency. Many jails do not adhere to rules requiring jail death reporting; one report found that at least 990 in-custody deaths went unreported to the federal government in 2021 alone.

Texas, which saw at least 95 reported in-custody jail deaths in 2019, has a dark history of disguising deaths in custody and failing to report them, leaving the public and families without answers. Texas Jail Project, a small non-profit largely made up of advocates who have had family members incarcerated in the state’s county jails, has been working tirelessly to find who is missing from the in-custody death reports, and to compel accountability from jails.

About Texas Jail Project

Texas Jail Project, whose work Prison Policy Initiative’s advocacy department is proud to support, is a tiny, women-of-color-led organization whose impact is far larger than its team of four full-time employees. For more than 17 years, Texas Jail Project has worked to inform, educate, empower, and liberate communities and people impacted by incarceration in 244 county jails across the state of Texas. Under the guidance of Executive Director Krish Gundu, their goal is not only to, as one of their clients phrased it, “end the investment in death-making facilities such as jails” but to “redirect that investment into life-affirming” community-based resources. Responsivity to the needs of the community they serve has led them to tackle a wide range of issues from opposing the shackling of pregnant women in jail while giving birth, to advocating for people in jail with disabilities or who have mental health or substance use needs, to providing a wide array of direct aid to individuals in jails and their families. For years, they have also been relentless champions for those whose deaths in Texas’ county jails have gone unreported.

The Problem: A strategic lack of accountability

Although Texas has a detailed statute surrounding the reporting of jail deaths in the state, many deaths in jails go unreported. When the system is working as it should, deaths are supposed to be reported to the Texas Commission on Jail Standards within 24 hours. This triggers a third-party investigation, and a custodial death report from that investigation must be filed with the Attorney General’s Office within 30 days. This process is vital not only for public accountability but for families and loved ones – these reports are sometimes the only source of information about the circumstances of jail deaths.

However, through their work directly with families of people incarcerated in jails, Texas Jail Project learned that this process is not being consistently followed. Although some failures to report are an administrative oversight, not all lack of reporting is accidental. Places like Harris County have a record of issuing personal recognizance bonds to critically ill people in their custody and releasing them shortly before they die to avoid being responsible for their deaths. This practice of issuing “medical bonds” is often a way for jails to get off the hook for the costs associated with treating those who are in their care, and happens in many counties in Texas. Texas Jail Project discovered that in Ellis County, for example, two women had died in a period of just two weeks, both shortly after having been issued medical bonds.

In addition, some counties in Texas regularly ship people in their custody to jails in other states, citing overcrowding concerns. Once there, if the person dies, the jail that sent them will often claim to have no responsibility to report their deaths, as the deceased is no longer in their custody.

How Texas Jail Project is making a difference

Texas Jail Project developed a strategy for finding and correcting failures to report jail deaths. By scouring the list of in-custody deaths submitted to the Texas Commission on Jail Standards and comparing them to the Attorney General’s records, the organization began to identify missing cases. They then issued letters of notification to the jails that had failed to report these deaths, copying both the Commission on Jail Standards and the Attorney General, and citing the jail’s violation of state law. Often, this simple act of notification alone was enough to have the person added to the list and provide families with information they’d been denied. Since 2023, Texas Jail Project has discovered 18 unreported jail deaths and has successfully forced reports to be issued in 14 of them.

In one of these cases, a woman named Ruby McPeters died in Hood County Jail from complications following a C-section she underwent while in custody. Her death went unreported for nearly 5 years due to simple clerical error before Texas Jail Project discovered the omission. After Texas Jail Project contacted the jail, Ms. McPeters was added to the Office of the Attorney General’s list of in-custody deaths that very day. Making sure that deaths like Ms. McPeters’ are reported is vital to exposing medical maltreatment in jails and forcing changes.

The organization has also worked tirelessly to correct the problem of unreported out-of-state deaths. Harris County, for instance, regularly outsources its incarceration to jails in other states, such as LaSalle Parish, Louisiana, and when someone dies while being held there, Harris County has steadfastly refused to acknowledge responsibility for their death. Texas Jail Project is making progress in holding Harris County accountable; The Texas Commission on Jail Standards is holding a session on August 8th and has put the issue on their agenda.

Although reporting requirements for jail deaths vary by state, advocates throughout the country can follow Texas Jail Project’s lead to ensure jail deaths are more consistently and thoroughly reported. The first step is to develop a deep understanding of what the reporting requirements are for jail deaths, and, if there are gaps in that accountability framework, to lobby regulatory bodies and state legislatures to impose additional requirements. When it comes to making sure the laws on the books are actually followed, Texas Jail Project’s work shows how publicly and consistently informing jails of their oversight responsibilities can be highly effective in forcing jails to actually follow the rules.

Deep Impacts

For the family members of those who die in pretrial detention in Texas jails who have sometimes waited years to learn what happened to their loved ones, Texas Jail Project’s work is profound. Lack of transparency can bring a lack of resolution that can devastate families. Krish Gundu recalls one mother whose 32-year-old son died just six days after being arrested during a mental health crisis and who was “stonewalled” for answers for months. “It nearly killed her,” Gundu notes. In another instance, a family member was so visibly upset over the lack of transparency that they were nearly escorted out of a public meeting with the Jail Commissioners before Texas Jail Project intervened. Texas Jail Project not only compels people in positions of power to follow the statutes, but their efforts provide relief for grieving families and ensure people are not forgotten. As Gundu notes, “This is an essential piece of history that needs to be written.”

Learn More

See more of Texas Jail Project’s work and find out how you can support their efforts here.

Visit our work on jails and jail deaths, and resources for advocates in counties considering jail expansion. You can also use our toolkit to learn how to respond when officials try to avoid transparency by citing HIPAA laws and get better information about jail deaths in your county.

Research roundup: Evidence that a single day in jail causes immediate and long-lasting harms

Recent research suggests the onset of pretrial detention’s criminal legal system, social, and economic harms is earlier than previously thought.

by Brian Nam-Sonenstein, August 6, 2024

The criminal legal system views pretrial detention as a necessary sacrifice that prioritizes crime prevention and court attendance over personal liberty. However, detention is demonstrably ineffective on both fronts: when compared to releasing people pretrial, jail counterintuitively worsens these outcomes on day one while making the system decidedly more unjust for those behind bars. These failures come at a steep cost, as detention also immediately disrupts a person’s ability to work and increases their risk of death. Horrendous jail conditions are only partially to blame; on a more basic level, pretrial detention’s disruptive and stigmatizing effects help explain why it fails to live up to its promises, and no amount of newer, nicer jails can change that.

Judges contemplate the risk a person poses to the community if released, but — crucially — not the risk detention poses to individuals and the community. What are the risks of detention, how quickly do they materialize, and what might the system look like if they mattered in bail determinations? To answer these questions, we examined recent studies that measure pretrial detention’s impact on people, particularly within the first 72 hours in jail.¹ Building on our investigations into pretrial detention’s role in destructive cycles of arrest and incarceration, the benefits of pretrial release, and the dangers of jail expansion, we find that there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves and their communities.

As we discuss below, if judges considered these harms and their implications for public safety when deciding whether to initially release or detain people, far fewer people would be jailed pretrial, shrinking the system to a tiny fraction of its current size.

Each day a person spends in pretrial detention was strongly associated with a consistently higher likelihood of a new arrest pending trial compared to those who are not detained.

Pretrial detention doesn’t deter crime or ensure court attendance, but it does undermine basic fairness in the legal process

At arraignment, judges are tasked with quickly deciding whether the defendant is likely to commit a new crime and whether they are likely to return to court if they are released.² However, they do not consider detention’s impact on those outcomes. For many defendants, a judge’s decision to initially detain means they will be forced to remain in jail for the duration of the pretrial period simply because they cannot afford their bail. But roughly two-thirds of people who are initially detained (62%) spend a week or less in jail according to the most recent data available.³ In other words, some people are immediately released while others are initially detained and later released while their trial is still pending. Researchers have compared these two groups to try and measure the impact of decisions to release or detain on public safety and court appearance. In doing so, they have unearthed a baffling contradiction at the core of this routine process: pretrial detention is seen as tough medicine but it is often a completely unnecessary and short-sighted approach to safety and justice — one that can quickly have opposite, unintended effects.

Despite its rationale, pretrial detention does not deter crime

In general, there is no evidence to support detaining people in the name of public safety before they’ve been convicted of a crime. In fact, just a day or two in pretrial detention makes communities less safe. One 2022 study, for example, examined a robust dataset collected from 1.5 million people booked into a Kentucky jail between 2009 and 2018. Researchers found that each day a person spent in pretrial detention was strongly associated with an escalating risk of a new arrest when that person was later released before the end of their trial. After one day in jail, the risk of rearrest was 24%; after the third day, it jumped to 45%, eventually reaching nearly 60% by the 12th day. Other studies with longer timelines produced similar results: researchers investigating Harris County, Texas — home to some of the most sweeping pretrial reforms in recent memory — found that detention increased the number of new charges. Compared to people who had been released, misdemeanor defendants who had been detained for at least a week were charged with 11% more new misdemeanors within a month of their bail hearings.⁴

Consistent with these findings, and contrary to fears that releasing people pretrial will lead to more crime, communities that have reformed their pretrial processes have repeatedly reported successful outcomes. New Jersey, for example, implemented a risk-informed approach to pretrial release and virtually eliminated the use of cash bail in 2017. Serious crime rates fell and the percentage of people arrested for new crimes while awaiting trial only increased by one percentage point. In Illinois, early results indicate re-arrests have not substantially increased for people awaiting trial after the state ended money bond, even as jail populations have declined. Another study examining 421,850 cases from Philadelphia (Pa.) and Miami-Dade (Fla.) counties also concluded release had no detectable effect on new crime in the two years after the initial bail hearing.

There are better ways to ensure court attendance than pretrial detention

It may seem intuitive that short jail stays can “scare someone straight” and deter them from missing court when they’re later released before the end of their trial. But detention does not work this way.⁵ This is because, for the most part, people who miss court are not trying to evade the legal process. On the contrary, when people are jailed, they can lose their housing, jobs, and transportation, making it harder for them to get to court. The same Kentucky study, for example, found that the chances a person would miss court were actually higher for those who were detained: they were 6% more likely to miss court after being held for just one day and 26% more likely after eleven days of detention. Overall, though, the degree of increased risk varied, leading researchers to conclude that detention doesn’t have a consistent relationship with court attendance. Again, we see similar results in other studies examining detention’s impact on court appearance: in New Jersey, court attendance dropped only 3% after the state drastically reduced the use of cash bail. In short, the evidence shows that pretrial detention has no meaningful benefit for court appearances.

Detention is a very blunt tool for ensuring court attendance. There are other, more effective, and less destructive alternatives that directly address the barriers people most often face.⁶ Court reminders, flexible scheduling, transportation and language support services, and simplified court procedures attend to the causes of failure to appear without exposing people to the toxic effects of jail.

Detention undermines fairness in the legal process

Pretrial detention is a source of injustice in the legal process because it puts people under enormous pressure to plead guilty and resolve their cases, regardless of actual guilt or innocence. As a result, people who are detained pretrial are more likely to be sentenced to jail or prison — and receive a longer sentence — than those who are released. The Kentucky study found that people released pretrial were about 25-50% less likely to receive a sentence of incarceration than people who were detained. This dynamic endures even for people who are released pretrial and fail to appear in court or are rearrested — this group still had better case outcomes on average compared to those who were detained. The Philadelphia/Miami-Dade study similarly found release reduced both the likelihood of pleading guilty (by 25%) and conviction (by 24%) compared to the average person in detention.

It’s easy to understand why release leads to better case outcomes: it strengthens defendants’ bargaining positions, particularly for those charged with less serious crimes and who have no prior offenses. The stressful, disruptive, and dangerous experience of detention pressures many people into simply pleading guilty⁷ in hopes that doing so will more quickly end their contact with the system. Furthermore, it is very, very hard to defend oneself from criminal charges while in jail, where it is much harder to contact people who can help. The final analysis is exceedingly grim: the research suggests that pretrial detention fails to produce safety and encourage court attendance at the immense cost of undermining the basic fairness of the criminal legal process.

Part of what makes this all so baffling is that detaining people unnecessarily and subjecting them to the harms of jail degrades their belief in the criminal legal system as a legitimate institution, which studies of “procedural justice” have linked to law-abiding behavior. In other words, when people are treated unjustly by the police or courts, they see less reason to comply with them. Judges and prosecutors may believe detention is a safer choice, even despite the research, but this impulse may actually set off a chain reaction that puts justice further out of reach and makes everyone less safe all at once.

Employment, health, housing, government benefits, and more are jeopardized by detention

Even a day or two in pretrial detention can destabilize a person’s life for years to come, contributing to its counterproductive influence on safety and justice. Courts should consider these outcomes in their pretrial calculus. One study looking at participants in two San Francisco pretrial diversion programs between 2013 and 2018 found that nearly half reported suffering a “material loss” from detention, including legal debt (36%), missed work (40%), lost jobs (18%), and lost property (18%). Focusing specifically on employment, this study suggests that people’s livelihoods are at stake within the first three days behind bars: 7% of people held for just one to three days, and 30% of people held for four to seven days, reported losing their jobs.⁸ Black (64%) and multiracial (50%) workers who missed work due to detention fared the worst, losing jobs more often than white (36%) and Latino (33%) workers because they were held in detention longer on average.

People who were detained, but who had been employed most if not all of their adult lives, were dramatically more likely to lose their jobs due to missing work than those released. This risk only got worse the longer they were in detention.

Even those with strong work histories are no match for the destructive power of pretrial detention. The same study found people who lost their jobs or whose vehicles were seized when they were detained struggled to maintain stable employment, even years later. Twenty-five percent of people with strong work histories who lost their jobs or vehicles while they were detained reported being unemployed immediately after detention and three years later — more than twice the rate of those who didn’t lose their jobs or cars. Black and Latino defendants suffered vehicle loss at disproportionately high rates, further contributing to employment instability.

Regardless of the amount of time spent behind bars, pretrial detention poses other serious threats to people’s livelihoods when they are eventually released. One survey of over 1,500 people arrested and charged in New York City between 2019 and 2021 found:

Lost jobs and barriers to employment. People who have been detained pretrial lose jobs more frequently than those who are released, while also struggling to get new jobs, encountering transportation issues, and contending with more “job issues” like fewer hours, demotions, and lost clients. In particular, detained people were 34% more likely to report that they had job issues than those who were released. Stigma and discrimination against people who have been detained, regardless of whether they had a record of prior convictions, deterred employers from hiring this group. Some people internalized this experience and were discouraged from job-seeking and participating in the labor market at all.

Loss of government benefits and housing. People who are detained pretrial are more likely to lose government benefits than those who are released. Those who were detained were around 30% more likely to lose benefits since their arrest than released respondents. People who were detained were also more than four times (420%) more likely to become unhoused than those who were released.

Pretrial detention raises the risk of death, including suicide, almost immediately upon admission. Twenty percent of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year, and most suicides in jails occurred shortly after entering detention.

Other research shows that pretrial detention can be immediately life-threatening. Suicide becomes a serious risk very quickly: even our nation’s top officials acknowledge that “certain features of the jail environment enhance suicidal behavior.” A recent study estimated that 20% of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year.

For suicide and deaths linked to drugs or alcohol, those first few days in jail are the deadliest. Most suicides in jail occurred shortly after admission: 12% of jail suicides between 2015 and 2019 occurred in the first 24 hours, 44% occurred within the first week, and two-thirds (66%) occurred within the first 30 days of incarceration. From 2000 to 2019, the median time in jail before a drug or alcohol intoxication death was just one day. Jail’s lethality has been trending upward over the years: from 2000 to 2019, the number of jail deaths occurring within the first 7 days of detention rose by nearly 44%.

This growing body of research refutes the rampant myths and fear-mongering that suggest pretrial detention is a bitter pill that is ultimately in everyone’s best interests. They show that even a day or two in jail can cause immense and long-lasting harm — harm that judges tragically and systematically ignore when deciding whether to release or detain someone. If detention’s costs were considered, however, they would almost certainly tip the scales toward release in nearly every case, leading to better public safety outcomes, improved court attendance, a more just legal process, and fewer destructive effects on people’s livelihoods.

If judges considered detention’s risks to our communities, they would detain far fewer people

Under our current system, judges only weigh the government’s interest in public safety and court appearance against an individual’s constitutional right to liberty and due process. In other words, judges are entirely focused on the risks of release and whether they outweigh someone’s right to freedom — ignoring detention’s serious, immediate risks to individuals and public safety.

But what would happen if judges considered the costs of detention more holistically, as anyone facing detention naturally would? Recently, scholars have tackled this exact question in a novel way. In Pretrial Detention and the Value of Liberty, researchers asked survey respondents to compare spending time in jail to being the victim of a crime, to gauge how much future crime would have to be avoided to reasonably justify preventative detention.⁹ They asked questions like, “If you had to choose between spending a month in jail or being the victim of a burglary, which would you choose?” Their results show that people see pretrial detention as an extremely bad experience:¹⁰ Most said that spending just one day in jail would be as bad as being the victim of a burglary, and a month would be as bad as an aggravated assault.¹¹ This finding held across subgroups, including those who have experienced victimization and incarceration, and across racial and ethnic groups.¹²

The results show that the public has a much higher risk threshold for detention than courts do. If it were up to a typical respondent, even a day of pretrial detention would only be justified on public safety grounds if the defendant was virtually certain to commit a serious crime if released. In reality, even people considered to pose the highest risk of committing a violent offense if released (according to a risk assessment tool) have a relatively low risk of rearrest.¹³ By this study’s measure, then, detaining even the “highest risk” defendants would prevent too little crime to justify the immense human cost of detention. If courts also recognized that the harms are so severe that detention can rarely be justified, and other, less costly alternatives are available, society’s current investment in pretrial detention would make a lot less sense.

There are better alternatives for public safety than pretrial detention

As argued earlier in this briefing, judges are generally absolved of having to consider the dangers posed by detaining people. That’s awfully convenient because, from the perspective of prosecutors and judges — largely elected officials whose own statuses are at stake when they make decisions — the risks of releasing the “wrong person” far outweigh those of detaining the “wrong person.” If the dangers of even a few days in detention were part of the cost-benefit analysis, however, this tradeoff would be far less of a commonsense slam dunk.

Given the immediate, long-lasting, and sometimes irreversible harms of pretrial detention, reforms that prevent as many people as possible, as early as possible, from being detained can have significant, positive downstream effects on public safety. Such reforms include:

• Creating diversion opportunities at multiple points in the legal process, especially before and directly after arrest;
• Ending cash bail;
• Providing public defenders at first court appearance to ensure people’s unique circumstances are communicated to decision-makers;
• Developing more robust, voluntary, community-based pretrial supports that help people navigating the system; and
• Encouraging judges and prosecutors to be less punitive by educating them on the risks of pretrial detention, carefully and publicly monitoring their decision-making, and removing judges and prosecutors who continue to overuse pretrial detention.

Interventions earlier in the legal process can also make a meaningful difference by heading off the risk of detention from the start — especially interventions that reduce the frequency and seriousness of police contact and prevent jail capacity from expanding. These include:

• Reducing police contact and reclassifying offenses and how they’re treated, such as reducing misdemeanors to non-jailable infractions and implementing a presumption of citation in lieu of arrest;
• Reducing reliance on pretrial detention by limiting jail capacity. This can be done by, for example, preventing the construction of new jails and ending bedspace rental (which increases demand beyond pretrial detention and fuels jail growth); and
• Decriminalizing drugs, poverty, sex work, and homelessness.

Taking risks to public safety seriously requires an accounting of the harms of detention. The data show that jurisdictions can much more heavily favor release without sacrificing public safety and may be more likely to improve safety over the status quo by doing so. The logic of pretrial detention does not stand up to scrutiny, and its mythical power to protect public safety should be abandoned in favor of less harmful alternatives.