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Whether on the presidential debate stage or in races for governor, state legislatures, or city councils, candidates for elected office are falling back on an old tactic: Making spurious claims that “crime is up” and pitching more jail and prison time as solutions to social problems. Not only are claims of higher crime demonstrably untrue; incarceration is never the simple fix that it appears to be. Jails and prisons — even when they are rebuilt and branded as “humane” — are still places of punishment, and investing in them consistently fails to produce safer communities or, obviously, to dismantle mass incarceration.
The arguments for more jail can seem endless. But if candidates campaigning for office in your community or state push the narrative that more incarceration is a good idea — or even a necessary evil — we’ve got you covered. Below, we lay out facts you can use to oppose bogus claims about what criminalization can achieve, whether in regard to homelessness, the fentanyl crisis, or public safety in general.
FACT 1: Jailing people who use drugs is counterproductive.
Amid an overdose crisis, many lawmakers and candidates for elected office are campaigning on arresting more people for drug use, especially in public spaces. These reforms are a blatant repackaging of policies from the “war on drugs,” and a step backward for public health.
Importantly, although they push for police interventions as a means of getting drug users into treatment, public officials often ignore that there may not be enough substance use treatment resources in the community to begin with. Oregon, which re-criminalized drug possession earlier this year, only has 50% of the treatment resources that the state needs. Once in jail, people who have been engaging in harmful drug use are not likely to get treatment, much less genuine care. In a briefing earlier this year, we showed that less than one-fifth of all county jails in the U.S. initiate medication-assisted treatment for substance use disorder, and scarcely half of all county jails even provide medication for withdrawal.
What’s more, being in jail can make substance use dangerous or even fatal. Data from 2018 show that drug- and alcohol-related deaths in jails have increased nearly fourfold since 2000, and the median time spent in jail before an intoxication death is just one day. While arresting people who use drugs publicly may help move some of them into treatment, for others, it makes their addiction more deadly — not a sensible public health policy.
FACT 2: More housing, not criminalization, is the answer to the homelessness crisis.
Many local and state leaders are beginning to harshly enforce their anti-camping laws in the wake of the Supreme Court case Grants Pass v. Johnson, which held that states have the right to sweep homeless encampments even when shelter beds aren’t readily available. But contrary to what many of these lawmakers say, punitive responses to the homelessness crisis are not “common sense.”
A lot of unhoused people are already carrying criminal convictions, which can make it prohibitively hard to find a place to live. We’ve discussed before how public housing authorities have — and use — wide discretion to deny housing to people with records or even just histories of arrest. For these individuals, homelessness may be the result of past encounters with police. For others, a brush with law enforcement or a stint in jail could make finding future housing less likely. In our 2018 report Nowhere to Go, we found that people who had been to prison were more likely to be homeless depending on how many times they had been incarcerated — each lockup increasing the likelihood of ending up on the street without housing prospects.
As others have pointed out, rising rates of homelessness across the U.S. are the result of a genuine housing crisis. Formerly incarcerated people and those at risk of incarceration are particularly in need. But there are policy responses that work. In a 2023 briefing, we found that long-term supportive housing programs that aren’t conditional on people being sober or accepting treatment have incredible rates of success at keeping people housed and out of jail.
FACT 3: The solution to overcrowded, inhumane jails is pretrial reform and community healthcare.
In counties and cities where jails are crowded or facing a long list of maintenance and repair costs, local officials up for election this fall will likely be pressed to vote on whether to build new, often bigger jails. (And in some counties, jail construction measures themselves are on the ballot.)
Elected officials at the county and city level often claim they “have no choice” but to expand or replace their jails (for instance, recently, in Cleveland and Sacramento). But these hugely expensive projects can fail to produce the results local governments want. In counties with overcrowded jails, building a bigger jail is supposed to make the incarcerated population easier to supervise and care for. But all too often, these projects lead to more incarceration — and the new jail becomes overcrowded as well.
In fact, counties do have a choice in how they deal with issues in their jails. Local courts and county sheriffs can work together to reduce the jail population through pretrial reform, something that we have shown can be achieved at no detriment to public safety. And in the many, many counties where the majority of people in jail have a substance use disorder, expanding community healthcare options is a lower-cost — and more effective — way to tackle addiction that also reduces the number of people behind bars.
FACT 4: “Truth in Sentencing” reforms turn prisons into overcrowded nursing homes with little to no public safety benefit.
Earlier this year, Louisiana’s “tough on crime” governor, Jeff Landry, and its legislature pushed through “Truth in Sentencing” laws that eliminated parole in the state’s prisons and barred people from earning time off their sentences. His regressive reforms are part of a recent wave of legislation, mainly in the South. However, bills similar to Landry’s have come to states like Colorado and Iowa as well.
Calling for more people to spend decades and likely die in prison is a popular campaign strategy. But the reality of Truth in Sentencing is brutal and counterproductive. The U.S. prison system is already becoming geriatric as people sentenced in the ’70s, ’80s, and ’90s get older. Eliminating parole and other mechanisms for early release (like good time, which Landry dismissively called “a participation trophy for jail”) will accelerate that trend. It will also swell prison populations, as in Louisiana, where the Crime and Justice Institute projects that the regressive reforms will double the state prison population. And as a consequence both of overcrowding and of the “greying” of prisons, more people in prison will get sick, leading to the type of ghastly medical situations that prisons are known for.
Given these massive drawbacks, it may be surprising that forcing people to serve more time in prison does not, in fact, improve public safety. If candidates for state legislator or governor propose these “tough” reforms in your state, remind them that “Truth in Sentencing” reduces incentives for incarcerated people to complete programming that can help them and their communities. And the Vera Institute’s research on the ineffectiveness of longer prison sentences may be helpful to have on hand, too.
FACT 5: Crime is down, not up.
Crime is not surging — even though candidates for elected office, including Donald Trump and others from both major parties up and down the ballot, pretend otherwise. Claims of crime hikes can be very persuasive: In October 2023, 77% of surveyed Americans believed there was more crime in the U.S. than there was the year before. But as both old and new data show, this is simply not true. New data from the Bureau of Justice Statistics on criminal victimization in 2023 shows that crimes of almost all types were down from 2022, and many types of violent crime were equal to or lower than their reported rates in 2019.
To be sure, crime can fluctuate rapidly in short periods of time. But elected officials spend several years in office, and should be campaigning on their ability to protect public safety in the long term. So what do the long-term crime data say? In short, in 2023, crime hit a 60-year low. Candidates for office shouldn’t be centering their campaigns around increases in crime that, in this long view, are momentary and quite modest.
Ending misinformation about safety goes beyond ending bogus claims about crime, too. Lawmakers should take a broad view of public safety by addressing real, harmful trends, like the housing shortage, economic inequality, and public health concerns. The people we elect to govern our communities have a wealth of information about the diverse drivers of crime and safety — and they should use it.
Conclusion
Lawmakers pushing for Truth in Sentencing, bigger jails, and other policies that expand the criminal legal system tend to claim that there is no alternative to these methods for making communities safer. But the alternatives that have been shown to work — housing first, harm reduction, expanded parole and “good time” — are often passed over by these same lawmakers, or are not given the chance to serve more than a handful of people in a pilot program. Meanwhile, the criminal legal system continues to consume hundreds of billions of dollars, even as prisons appear to become more and more inhumane.
It’s never too late to push your elected officials — and the candidates running to replace them — to try public safety strategies that focus on care, not cages. More or less every elected official has a role to play in dismantling mass incarceration, and the movement for that change must start with pressure from below.
Instead of taking advantage of their possibilities, the companies that got rich off prison phone calls offer limited book selections on tablets, as part of their continued efforts to sap money from incarcerated people and their families.
Books have long served as a bridge to the outside world for incarcerated people. They allow people cut off from their normal lives — and often from their families — to engage with thinking and ideas that can open their mind and stories that transport them anywhere on earth and beyond. But carceral authorities have also always restricted access to books, and reading behind bars has only become harder in recent years.
This year’s Prison Banned Books Week highlights the role tablets are ironically playing in further restricting incarcerated people’s access to reading materials. To better understand these changes, we looked at data collected by the Prison Banned Books Week campaign on prison book bans, policies around books, and the availability of ebooks on tablet computers.1 What we found is that tablets limit access to important modern writing and knowledge behind bars.
Tablets are nearly everywhere
When we last looked at the availability of prison tablets in 2019, they were relatively new and rare behind bars. Only 12 states had them. Since then, the technology has quickly spread. Today, at least 48 prison systems indicate they have tablets or, as in the case of Alaska and Nevada, are in the process of implementing tablets.2
Nearly every prison system now has tablets — and two companies dominate the market
The two companies providing tablets to the most state prisons are Securus/JPay and ViaPath/GTL. Perhaps this should come as no surprise since these two companies have long been the largest providers of telecommunication services for incarcerated people. They control roughly 80% of both the phone and e-messaging markets behind bars.
Importantly, these companies have shifted their focus to tablets as the prison and jail voice and video calling market has come under increasing scrutiny and regulation. Tablets behind bars have not undergone the same oversight, leaving companies like these free to use the devices to continue squeezing money from incarcerated people and their families for services like e-messaging, digitized mail, and music streaming.
Physical books are increasingly rare behind bars
The rapid expansion of tablets behind bars has occurred at a time when access to physical books in prisons has become increasingly rare.
This situation has become even more dire in recent years as more states have implemented content-neutral book bans that restrict families and friends from sending books directly to their incarcerated loved ones. These policies mandate that books sent to people in prison can only come from a limited selection of approved vendors. This means that friends, family, churches, libraries, nonprofit organizations, and others who want to send books directly to people in prison can no longer do so. Instead, they must purchase titles from the vendor hand-picked by the prison and have that vendor send the books directly to the facility. A 2023 study by PEN America found 84% of prison mailrooms they surveyed had implemented these sorts of bans, even when it was not the statewide policy.
Of course, even facilities that still allow people to send books to their incarcerated loved ones dramatically restrict what they can read. A 2023 review by the Marshall Project found that state prisons explicitly ban over 50,000 books. However, that only tells a part of the story. At least 23 states, along with Washington, D.C. and the Federal Bureau of Prisons, do not have written lists of explicitly banned books but instead say they evaluate books on a case-by-case basis, providing mailroom staff with immense discretion to implement already vague rules, with little oversight.
It will come as little surprise that one of the most frequently cited reasons for a prison to ban a book is “security.” However, it is clear this reasoning is applied indiscriminately and often in situations where no reasonable security threat exists. For example, in 2022, Texas prisons banned the second edition of Merriam-Webster’s Visual Dictionary on security grounds because it contained a picture of a gun. And it would likely surprise many that the most banned book in American prisons is a cookbook. Prison Ramen details how incarcerated people can use ingredients often sold at commissaries to add flavor to ramen (another common item in prison commissaries). Perhaps prison authorities worry that the book’s recipe for “Shawshank Spread” might serve as inspiration for people behind bars. And of course, it goes without saying that there is little to no evidence that any of these books explicitly banned in prisons have ever led to any actual security incident.
Tablets aren’t filling the gap
Prisons often claim that the addition of tablets behind bars will increase access to books, despite other book bans they have implemented. Unfortunately, though, because of limited and outdated ebook selections, tablets are not living up to their potential and likely aren’t even filling the emerging book-gap.
The companies behind these tablets often boast that they offer access to tens of thousands of free books, which sounds quite impressive until you examine their offerings more closely. For example, none of the best-selling books released since the year 2000 are available on Securus/JPay tablets in Georgia. It is hard to imagine that prisons can attribute this to security concerns since many Harry Potter books — which are considered a rite of passage for many young readers — and The Purpose Driven Life — a bible study book written by Pastor Rick Wilson — are among those best-sellers that are not available.
Instead, most of the books that are available on tablets come from Project Gutenberg, a collection of free ebooks. Importantly, these books are free because their copyright expired when they reached 100 years old.3 Undoubtedly, this collection includes some important classic books. However, their age — and the companies’ decisions not to offer newer books — creates some significant problems. For example, you likely won’t find books by author and civil rights activist James Baldwin on these tablets. However, you’ll likely find Yankee Girls in Zulu Land, a book that is over 130 years old and is known for its racist ideas and sentiments.
Additionally, not all tablets even offer ebooks. Michigan’s tablets have no reading material and the state has a statewide approved vendor policy that limits incarcerated people’s book purchases to four booksellers, making reading costly and inaccessible in Michigan prisons.
Making tablets work for incarcerated readers
Prison tablets are not inherently bad, but the ways that facilities and companies have implemented them are. Tablets can and should provide new opportunities for incarcerated people to engage with high-quality books and other content in ways that don’t sap them of what little money they have.
The single most important step that prisons can take to make tablets work in the best interest of incarcerated readers is by forcing the companies to offer other apps that give incarcerated people access to the catalogs at their local libraries. Apps like Hoopla offer free access to selected ebooks, audiobooks, movies, and more from local libraries. Communities are already paying to provide access to these materials to people outside of the prison walls, it only makes sense to expand that access to people locked up in prisons, too.
The companies behind these tablets will certainly resist this effort because it would likely cut into their bottom line. Their track record shows that profit, not the well-being of incarcerated people, is their driving force. However, prison officials have the upper hand in contract negotiations. If a few states band together to demand access to materials from the local library on tablets, the companies would be forced to respond or else risk devastating revenue losses.
Of course, prisons all too often collude with telecom providers to make money by squeezing incarcerated people for goods and services they can’t refuse. But even if prisons aren’t moved by a desire to help the people in their care, state lawmakers should pay attention to prisons’ policies around reading. We know that when people who are incarcerated stay connected to the outside world, it improves their mental and physical well-being and prepares them for their release. States should do more to ensure that tablets are operating in the best interest of the people who use them.
Footnotes
It is important to note that this analysis only looks at prison policies, and does not look at local jails. Jails generally have fewer resources and offer fewer services to incarcerated people, so it is reasonable to assume that the issues raised in this briefing are likely even worse in local jails. ↩
Louisiana, Mississippi, Utah, and Oregon did not respond to FOIA requests for information about tablets inside their facilities. ↩
It is worth noting that tablet companies initially charged incarcerated people to access these free books. After public pressure, they ultimately made these books free, however the incident exemplifies the ways these companies attempt to unfairly extract money from incarcerated people and their families. ↩
Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.
For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November. We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.
It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area. Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system. This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing. With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.
Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.
Local Offices
Most of the day-to-day interactions that people have with the criminal legal system involve local governments. Local governments are responsible for a wide swath of related activities, including policing and law enforcement, the prosecution of criminal laws, and conditions and policies at local jails.
District/County Attorneys
Because of their immense power, government prosecutors known as district attorneys (sometimes called county attorneys) loom large in any discussion about the criminal legal system and what can be done to reform it. And it is important to remember that the person who holds this office has immense discretion in how to use this power.
They oversee the vast majority of criminal cases in their jurisdiction. Not only do they determine which types of offenses to prioritize for prosecution, but in individual cases, they also determine whether to bring charges against someone and, if so, for what crime.
“You forgot an office”
Some states have unique offices that play a role in the criminal legal system. Here are a few.
In this guide, we tried to cover as many of the elected offices that can play a role in the criminal legal system as possible, but we know we didn’t cover everything. There are many offices that we did not include that are unique to one or a handful of states that can also take action on these issues. They’re still worth focusing on.
Here are a few examples:
Public Defenders: Some places elect their public defenders, including counties in Florida and districts in Tennessee, as well as the cities of Lincoln, Nebraska, and San Francisco, California,
High bailiffs: Vermont’s high bailiff office has often been overlooked as an opportunity for reform. However, recent candidates have seen this office as an opportunity to provide more oversight of law enforcement in their counties.
Police oversight boards: Some places, including Chicago, have elected police oversight boards. This board is designed to give the public more say over the activities and priorities of their local police department.
Governor’s Council: At least one state, Massachusetts, elects members to its Governor’s Council. This body has a long list of responsibilities, but of note, it is responsible for hearing pardon and commutation petitions and approving appointments of state judges. This gives the board considerable ability to decide when people are released from prison, as well as who the judges are that are overseeing criminal cases.
We encourage you to look at your ballot closely before Election Day to see what offices you’ll be asked to vote for. If you’re not sure what a particular office does, do some additional research to see if they, too, can help end mass incarceration where you live.
Additionally, while they don’t directly set bail conditions — judges generally do that — they usually recommend whether a person should be offered bail and, if so, whether they must pay money to go free before their trial. Their recommendations hold immense weight in these judicial decisions.
They also serve as gatekeepers to diversion programs. These programs allow people charged with crimes to resolve their cases without a criminal conviction and, in many cases, without incurring charges. The district/county attorney decides what those diversion programs look like, whom they are offered to, and what happens when someone completes it.
While this explanation covers the most prominent parts of the district attorney’s job, it is certainly not exhaustive. To learn more, we recommend reading Fair & Just Prosecution’s report, 21 Principles for the 21st Century Prosecutor, which goes into much greater detail.
Sheriffs
Sheriffs play many roles in the criminal legal system that can vary greatly from state to state and county to county. Generally speaking, though, their core responsibility is running the county jails, making them responsible for managing the conditions in which people are detained pretrial.1 Importantly, in this role, they’re responsible for the health and safety of people who are in their custody, including what health services they have access to while incarcerated. Additionally, they enter into contracts with private companies that provide services, such as phone calls, commissary sales, and tablet computers. They decide what people detained in their jails are charged for these services.
Additionally, many sheriffs also conduct law enforcement activities and criminal investigations. This gives them wide latitude in determining who is arrested and for what offenses.
Finally, some sheriffs also oversee probation programs and officers. In this role, they have a huge impact on the lives of people on probation. They can prioritize the person’s successful completion of the program in a way that keeps them from being arrested or incarcerated again, or they can prioritize punishment by strictly enforcing arbitrary and often expensive conditions that set people up to fail.
County Commissioners
County commissioners2 generally have two primary responsibilities when it comes to the criminal legal system.
First, they provide oversight of the county jail, including setting budgets and approving contracts for services. Notably, they are also often responsible for considering proposals for new jail construction. During debates about building a new jail or expanding an existing one, county commissioners have powerful leverage that they can and should use to ensure that prosecutors and law enforcement are doing everything they can to reduce the number of people stuck in jails unnecessarily.
Second, they allocate funding and, in some jurisdictions, provide oversight of the county sheriff’s department. This can influence the law enforcement presence in the community and the activities the department is tasked with prioritizing.
Mayors and City Commissioners
These offices are responsible for supervising the local police department. This includes determining its funding, providing some oversight of its activities, and selecting its chief. Through these choices, they determine the size, scope, and priorities of the police departments in their communities.
Additionally, they set funding levels for other community resources that can prevent law enforcement interactions in the first place. For example, they could direct funding to expand mental health services, drug treatment options, or pre-police diversion programs in their area.
City/County Auditors and Controllers
City and County Auditors do far more than just monitor the spending of agencies (although they can, in fact, do that). They also look at the overall performance of key departments. For example, they can look at how jails are administering their welfare funds, how police departments are responding to the needs of the communities, jail conditions, the administration of the county’s bail practices, how public housing and health care providers are delivering services, and much more. Through their work, auditors and controllers can act on behalf of residents of their community to provide much-needed transparency and ensure their government is properly and effectively serving them.
Local Judges (including Justices of the Peace)
Local judges play multiple roles in the criminal legal system. While they are intended to be unbiased arbiters between the prosecution and defense in criminal cases, their decisions can have a huge impact on whether a person is convicted and whether they serve time behind bars — both before and after a conviction. They preside over a person’s initial court appearance after their arrest, at which time they’ll determine whether they can be released from jail, whether they have to pay cash bail to be released, and if there are any other conditions of their release. They also oversee criminal proceedings in the courtroom when a person goes to trial. In this role, they participate in decisions around who is selected as jurors, what evidence can be admitted, how the trial is run, and determining their sentence (if convicted). Importantly, they also set conditions a person must abide by when they are on probation.
Coroners
When someone dies unexpectedly, coroners often conduct medical examinations to determine the person’s manner and cause of death. Their findings and reports are often pivotal in criminal investigations and hold immense weight in criminal trials. Coroners can help expose the truth in criminal cases. Conversely, though, their mistakes can also send people to prison for crimes they did not commit. Importantly, corners are also often responsible for investigating the deaths of incarcerated people.
City/County Clerks (sometimes known as Supervisor of Elections)
This office, which has many different names across the country, has a key interaction with the criminal legal system: jail voting. Most people in jails are still eligible to vote but are prevented from doing so by a complex set of barriers. This office can help clear those barriers. They can work with local jails to make it easier for people detained there to register to vote and cast their ballots. A growing number of places in the country have even established polling locations in jails to make it easier for incarcerated people to have their voices heard.
School Board Members
The intersection of education and incarceration is complex. In short, we know that people with lower educational attainment are more likely to be incarcerated. So, in essence, every choice school board members make can help reduce incarceration in the community in the long run.
There are additional — more direct — choices that school board members make related to the criminal legal system. The first is whether or not police have a presence in schools as school resource officers. Second, school boards also set disciplinary policies, many of which are directly linked to the “school-to-prison pipeline,” such as when a student is suspended or expelled and when law enforcement is called for disciplinary activities in the schools. Both of these choices can result in children being tangled in the criminal legal system at a young age. Finally, in some places, they also are responsible for ensuring students in the juvenile justice system have equitable access to quality education.
State Offices
State government looms large in the criminal legal system. Not only are state prisons the largest incarcerators in the country, locking up over 1 million people every day, but states also write and enforce the laws that most frequently result in people being locked up in the first place.
Governors
Governors lead their state’s government, so naturally, their power and responsibilities are far-reaching. However, there are several specific areas that have a particularly dramatic impact on the size, scope, and conditions of the criminal legal system in their state.
One of the most important things they do is appoint the head of their state’s Department of Corrections, which runs state prisons.3 This agency is responsible for the health and safety of people incarcerated, how those facilities operate on a day-to-day basis, and how much incarcerated people (and their families) pay for things like phone calls, commissary items, and more. It also shapes policies around the use of good time credits, parole, and compassionate release.
An underappreciated role of governors is appointing people to state boards and commissions. The people appointed to these bodies can have a huge influence on how state government runs, and their decisions often go unnoticed by the public and the media. Notably, in many states, governors appoint people to their state’s parole board, a body that determines whether people who have served time behind bars are released or not. Additionally, in states that have prison ombuds, the governor often appoints the person who serves in that position.
Similarly, governors have the power to issue pardons and commutations for people convicted of state crimes. These can result in a person being released from prison early or undoing some of the worst collateral consequences of their conviction. Unfortunately, though, governors have woefully underused this important power.
Finally, governors sometimes appoint state judges to the bench. We discuss the role of judges in other parts of this guide, but in general, they are responsible for presiding over criminal cases, including determining the sentence for people found guilty and, in some instances, determining whether laws passed by the state are unconstitutional.
Attorneys General
Attorneys General are often called the top law enforcement officer in the state, and for good reason. While the specific duties and responsibilities vary significantly from state to state, generally speaking, this office plays an oversight or coordinator role for county/district attorneys in their state, often helping to set standards for criminal prosecutions. In addition, they can investigate and prosecute some serious criminal cases on their own. If a person is convicted of a crime and appeals that conviction, this office generally argues against those appeals.
Importantly, this office also represents the state when it faces civil lawsuits. For example, if a family sued the state government over poor prison conditions, the attorney general would likely represent the state in that case.
An often overlooked responsibility of many attorneys general is enforcing their state’s public records law. Prisons, jails, and court systems routinely unfairly deny requests for public records that should legally be accessible. In many states, advocates and journalists who have had their requests denied can often ask the attorney general of their state to intervene and force the facilities to produce the records.4
Secretaries of State
Secretaries of State generally oversee elections in their state. In this role, they can take action to improve ballot access for people who are currently in jail (and, in a few states, for people in prison, too). A motivated secretary of state can prioritize voter registration in these facilities and proactively address problems people who are incarcerated may face when attempting to cast their ballot. Additionally, they often provide guidance to local election officials, which gives them the chance to further improve ballot access.
State Legislators
State legislators have one of the most important and often overlooked roles in the criminal legal system. It is not an exaggeration to say that the only constraints on their abilities are state and federal constitutions, money, and their imagination. Their primary responsibility is writing and passing laws. They determine what is a state crime, the punishment for those offenses, the conditions a person will face after they are released, and much more. State lawmakers have so much power, in fact, that we put out an annual report highlighting dozens of actionable steps they can take to reform the criminal legal system without making it bigger.
In addition to passing laws, state legislators are also responsible for developing a state government budget that allocates money to state prisons and many law enforcement agencies. Through this action, they can influence the size and number of prisons in their state, the conditions in those prisons, and the role of law enforcement in their communities.
Notably, state lawmakers also can serve on legislative oversight committees that review the activities of government agencies, including state prisons.
State Auditors and Comptrollers
While the exact responsibilities and titles differ significantly from state to state, state auditors and comptrollers are generally tasked with assessing how well state agencies are doing their jobs and spending money. This goes beyond simple accounting. They can look at any number of activities of their Department of Corrections or state law enforcement officials. For example, a 2020 audit by the Massachusetts State Auditor found the state’s Department of Corrections was not processing sick-call requests from incarcerated people as quickly as required and was not fulfilling its obligations to incarcerated people upon their release. Used correctly, these can be powerful offices for exposing the mistreatment of people in the criminal legal system and the mismanagement of public dollars.
Utility Commissioners
Utility Commissions are tasked with regulating the state’s utility companies, such as electric providers, phone companies, and similar businesses. While it may seem like this has little to do with prisons and jails, in some states, these officials have played a critical role in reducing phone rates behind bars. For example, changes made by the Iowa Utilities Board to jail phone rates saved the loved ones of incarcerated people roughly $1 million every year. While the Federal Communications Commission recently approved rules that will significantly reduce voice and video calling rates in prisons and jails, the work of Utilities Commissions is not done. They can still take action to address the rapidly expanding presence of tablets and other telecom services behind bars to ensure that incarcerated people are not taken advantage of.
Appellate Court Judges
After a person is convicted of a crime, they have a right to appeal their conviction. That’s where appellate court judges come in. They oversee these appeals to determine whether the trial was held in a manner that was fair and respected the constitutional rights of the person convicted of a crime. They have the power to affirm or overturn a person’s criminal conviction or sentence.
Supreme Court Justices
State supreme courts are generally considered the most powerful court in their state. If a person convicted of a crime is unsuccessful at appealing their case in front of the appellate court judge, they can ask the state supreme court to hear the case as well.
Additionally, these courts are tasked with assessing the constitutionality of laws and policies related to the criminal legal system. This can include a wide variety of issues, such as policing practices, prison and jail conditions, and whether state laws violate a person’s constitutional rights.
Federal Offices
The federal government’s role in mass incarceration is vast and complex. Even though the federal prison system holds only about one-quarter as many people as state prisons collectively do, the federal government is still responsible for 98 federal prisons and 142 immigration detention facilities. Also, through the Department of Justice, it oversees federal law enforcement and criminal prosecutions.5
President
Like governors, the ways the president can impact the criminal legal system are vast.
One of the most consequential decisions they make is who they appoint to be Attorney General of the United States. This person will oversee the Federal Department of Justice, which prosecutes all cases involving allegations of federal crimes. Similarly, the president appoints U.S. Attorneys who oversee those prosecutions. The Attorney General and U.S. Attorneys have considerable latitude on which cases to pursue, which crimes are prosecuted, and the desired punishment if a conviction is secured. Additionally, the Attorney General oversees the Bureau of Prisons (BOP), which operates all federal prisons. The BOP is responsible for a wide range of prison conditions, including the health and safety visitation policies and communication options for people incarcerated at its facilities.
Presidents are also responsible for signing (or vetoing) bills passed by Congress. And even before a bill makes it to their desk, they work with lawmakers to shape that legislation. These laws can have far-reaching effects, as we discuss below when talking about the responsibilities of members of Congress.
One of the president’s most long-lasting impacts comes through his or her appointments of federal judges, including U.S. Supreme Court Justices. In addition to hearing federal criminal cases, federal judges often also interpret laws to determine whether they violate the U.S. Constitution.
The president also appoints members to boards and commissions focused on a wide range of issues. For example, the president appoints commissioners to the Federal Communications Commission, which recently slashed calling rates in prisons and jails. The president also appoints members to the Federal Trade Commission, which oversees many consumer issues, including junk fees in prisons and jails. They also appoint members to the U.S. Sentencing Commission, which has a hand in determining the severity of sentences for people convicted of federal crimes.
Finally, presidents have the power to issue pardons and commutations for people convicted of federal crimes. Unfortunately, though, they rarely use this power. Through these acts, the president can either reduce the sentence of someone convicted of a crime or undo some of the worst consequences of that conviction.
Members of Congress
Like state legislators, the principal responsibility of members of Congress is passing laws. Through these laws, they determine what actions are considered federal crimes and the potential sentences for people convicted of those crimes. They can also pass legislation to address issues related to prisons and jails at the federal, state, and local levels of government. For example, members of Congress have brought forward a bill to end prison gerrymandering nationwide.
The other principal responsibility of members of Congress is developing and passing a budget that determines how much money is allocated to federal agencies, including the Department of Justice and the Bureau of Prisons. These budgets can have wide-ranging implications for the number of people incarcerated, the number and condition of prisons, and the availability of community-based services and health care.
Notably, members of the U.S. Senate are also responsible for considering and confirming many appointments made by the president — including the appointment of federal judges and the U.S. Attorney General. This allows them to affirm or deny whether a person has the experience, temperament, and priorities to serve in that position.
Making your voice heard
No single elected official built America’s broken system of mass incarceration. And no one officeholder can end it singlehandedly. Accomplishing that will require a wide focus on elected offices up and down the ballot.
This guide is not all-encompassing. America’s elections are diverse and complex, so it would be impossible to cover every office that influences the criminal legal system and every responsibility of those offices. Instead, as you prepare to head to the polls, we hope this guide helps you better understand how the offices you’ll be asked to vote for can use their power to reduce the number of people behind bars and improve conditions for those who remain incarcerated. After the election, we hope you’ll use it to hold those elected officials accountable, too.
With Election Day approaching, visit Vote.org to register to vote (or check your registration status) and make your plan to make your voice heard at the ballot box.
(Author’s note: We’d like to thank the team at Bolts Magazine for their insights as we put together their guide. Bolts is a nonprofit newsroom that covers issues related to elections and the criminal legal system.)
Footnotes
Some people who are sentenced to less than one year of incarceration are also held in jails, putting them under the purview of sheriffs. ↩
Some of the positions are called dramatically different things in different states. For example, in Texas they are call “county judges” and serve on the Commissioners Court — not to be confused with the judges we discuss below. And in Louisiana, the county commission is often known as the “police jury.” ↩
In the six states with “unified” systems — Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont — the agency is also responsible for overseeing both the pretrial and sentenced populations. ↩
Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.
To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.
Where to start: The big picture
To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.
Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion. It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why. In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.
Additional reading assignments:
Our briefing on states’ reliance on excessive jailing explains the drivers of jail growth including the practice of renting jail space to state and federal agencies like the U.S. Marshals Service. The appendices include useful data on jail trends and population data over time.
Our Punishment Beyond Prisons report looks at how many people in each state are on probation or parole. Notably, some of the states that are the least likely to send people to prison are among the most punitive when other methods of correctional control are taken into account.
States of Incarceration: The Global Context shows how incarceration rates in the U.S. compare to countries across the globe. Although El Salvador has the highest incarceration rate of any country, the U.S. still has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.
An essential lesson: Disparities in the system
No lesson about mass incarceration in America is complete without covering the stark racial disparities inherent in the system. Black people, for example, not only have higher incarceration rates than white people but are also more likely to receive harsher sentences, including life without parole and the death penalty.
To help teachers and students understand these disparities better, we produced a dataset containing over 100 state-specific graphics showing the number of people in state prisons and jails by race, ethnicity, and sex. Our data compares Black and white imprisonment rates by state, finding that every state locks up Black people at a rate at least double that of white people — and, on average, at six times the rate of white residents.
Every state incarcerates Black residents in its state prisons at a higher rate than white residents. For comparisons to other race/ethnicity categories, see individual state profile pages.
Additional reading assignments:
Our Native incarceration page contains current data on the incarceration of Native people in jails, prisons, and Indian country jails. In jails, Native people have more than double the incarceration rate of white people, and in prisons, this disparity is even greater.
Racial disparities aren’t the only disparities in the system. Our 2021 briefing on the system-involvement of LGBTQ people details how they are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women.
Gender studies: Women’s incarceration
Students and teachers looking to examine the carceral system must understand the unique ways that women experience mass incarceration in America.
Our Women’s Mass Incarceration: The Whole Pie report provides the most recent and comprehensive data on how many women are incarcerated in the U.S., in what kinds of facilities, and why. The report also includes rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences behind bars. It examines why women’s incarceration has grown so rapidly in recent decades and explains that, because they are often primary caregivers to children, they’re not the only ones harmed by incarceration.
Additional reading assignments:
Our briefing on how the fall of Roe v. Wade impacts women on probation and parole includes state-level data on how many women are under community supervision in states with abortion restrictions.
Our 2020 briefing highlights the role that drug enforcement has played in the rise of women’s incarceration and makes clear why we need to pay attention to the ways that women are uniquely impacted by the legal system.
Care not cages: Incarceration and public health
People in prisons and jails are disproportionately likely to have chronic health conditions as well as substance use and mental health problems. Medical care in correctional facilities is notoriously inadequate, and because most prison systems charge copays for medical care, it also deters incarcerated people from seeking the care they need.
Our Chronic Punishment report shows that instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, state prisons are full of ill and neglected people.
Additional reading assignments:
Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare. But as our briefing on the lack of drug treatment in jails and prisons makes clear, most systems fail to provide evidence-based treatment options and instead rely on punitive responses to substance use.
In our briefing on the aging prison population, we examine the inhumane, costly, and counterproductive practice of locking up older adults that is the consequence of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century.
Our briefing on environmental injustice in prisons highlights how toxic detention facilities put the health of incarcerated people at risk. From having contaminated water to being sited near federal Superfund sites, prisons expose incarcerated people to hazardous substances that create additional health issues behind the wall.
Extra credit
Our website is chock full of data that can be used to further explore incarceration trends or dive deeper into issues related to mass incarceration:
State Profile pages: contain current state-level data and visuals on a range of issues, including racial disparities and incarceration rates
Data Toolbox: provides links to our unique datasets, including national and state-level population data
Research Library: the nation’s largest online database of empirical and policy research about criminal legal issues, including mental health, community impacts of incarceration, and conditions of confinement
Data Sources guide: includes descriptions of data sources we use to produce research exposing the harms of mass incarceration
