March 19, 2025: Join Prison Policy Initiative’s Advocacy Department at 1 PM EST on Wednesday, March 19, 2025, for a webinar about understanding recidivism. We will cover strategies from our recidivism toolkit, including an overview of recidivism statistics and what they really mean, how to combat the “Willie Horton” effect, and ways that advocates can transform the narrative around reentry to make it less focused on negative outcomes and more focused on the ways that returning citizens contribute to their communities.
April 15-17, 2025: Sarah Staudt, our Director of Policy and Advocacy, will be attending the MacArthur Safety and Justice Challenge Network Meeting from April 15-17 in Chicago. Drop her a line if you’d like to meet up!
Not near you? Invite us to your city, college or organization.
At the request of the Hawai’i-based Reimagining Safety Coalition, the Prison Policy Initiative examined the state’s plans for a new jail and found serious issues.
Pretrial incarceration is overused in Hawai’i, causing harm to the public. A growing body of research shows that using jails to incarcerate people pretrial not only undermines the presumption of innocence, but also causes lasting harm to public safety and public health.
Jail expansion would exacerbate existing racial disparities in Hawaii’s criminal legal system. Hawaii’s criminal legal system disproportionately affects Native Hawaiians and other non-white minority groups. Building a new, nearly billion-dollar jail not only risks entrenching existing harmful criminal legal system practices, but also uses money that is desperately needed to improve the lives of Native Hawaiians and others in the community.
Building a new jail is unlikely to decrease the harms caused by pretrial incarceration, and is likely to make existing staffing problems worse.When new facilities are built without a change in the personnel delivering services inside, existing harms persist. Moreover, many of the harms caused by jailing are a result of the very fact of being removed from family and community, regardless of the conditions inside.
The memo also points out that the current plan for the jail ignores straightforward measures that could be used to reduce Hawaii’s jail population, many of which are actually cited in the Forecast Report, including:
Changing how it deals with technical violations of probation. In January 2025, 21% of OCCC’s population were there for technical violations, such as missing appointments or not notifying a probation officer of a change of address — things that are not crimes in any other context. This is a huge percentage in comparison to other municipalities.
Decreasing the pretrial population of its jails by implementing bail reform. As of July 2024, 61.7% of the people detained at OCCC were pretrial detainees who have not been convicted of a crime. Many of these people are there simply because they’re too poor to pay their bail.
The memo explains that with ample opportunities to lower its jail population, Hawai’i is in a strong position to decrease the number of jail beds it needs. Decarceration is the solution that is most likely to promote public health and well-being, manage staffing problems, and provide a better justice system for Hawai’i residents.
Is your community seeking to build a new jail or expand the capacity of its existing facility? We’re happy to help you push back on their arguments (drop us a line to tell us about your fight). There is no need to wait, though. We have created a how-to-guide with tips for pushing back on “jail needs assessments” that local leaders put together to justify the construction and provide strategies for pushing back on false or misleading arguments they’re making.
Proposed changes to the Inmate Financial Responsibility Program by the Bureau of Prisons risk pushing incarcerated people and their families further into poverty
This week, along with the National Consumer Law Center and expert Stephen Raher, we submitted comments on the federal Bureau of Prisons’ updated proposed rules for its Inmate Financial Responsibility Program (IFRP). These rules, which we first wrote about when they were proposed in 2023, are purported to be aimed at ultra-wealthy people in federal prisons who amassed unusually large amounts of money in their commissary accounts while failing to pay legal fees and restitution. However, they’re written so broadly that they’d make the lives of the vast majority of incarcerated people and their loved ones, who are generally poorer and from disadvantaged backgrounds, much more difficult and threaten their success after their release from prison.
The Bureau of Prisons (BOP) has adjusted the rules since they were first introduced to make them slightly less punishing, but they still would have a devastating effect on incarcerated people and their families. Under these rules, the BOP would:
Garnish 10% of wages earned by incarcerated people, which can be as low as $0.12 per hour.
Take half of the money in an incarcerated person’s commissary account that is in excess of $250 as a one-time seizure of funds at their initial classification meeting.
Through a series of complex and legally dubious formulas, seize a portion of the money that incarcerated people receive from their families and friends, making it even more difficult for incarcerated people to meet their basic needs behind bars.
Although the Bureau addressed some of the more egregious elements of the rules as initially drafted, the proposed changes to the IFRP are a misguided response to the false concerns that incarcerated people are hoarding money in their commissary accounts while refusing to pay legal debts. The Bureau reviewed data on commissary accounts and found that as of December 2024, only 2% of commissary accounts had balances greater than $5,000 while approximately 77% of commissary account balances were $249.99 or less. The overwhelming majority of people incarcerated in federal prisons are struggling to afford basic necessities — not living a life of luxury behind bars.
Proposed changes to the IFRP further burden incarcerated people and their families
People incarcerated in state and federal prisons were, before they went to prison, some of the poorest people in the country — and incarceration only pushes them further into poverty. In federal prisons, incarcerated people who are working earn between $0.12-$1.15 per hour. These meager wages don’t begin to cover the range of costs associated with being incarcerated, which include commissary, communication costs, and medical co-pays, to name a few. Most people, whether they have a work assignment or not, rely on outside support to meet their basic needs.
The rules ignore how frequently incarcerated people rely on items purchased from commissary to meet a range of needs throughout the entirety of their sentence. Almost everything in prison has a price tag, even for people who are considered indigent, and products are often marked up to prices far above what someone outside of the prison walls pays. Additionally, because prison meals are typically poorly portioned and of low quality, incarcerated people often rely on commissary to supplement their diet. They also rely on it for basic writing materials, basic hygiene items, clothing and shoes, religious items, and electronic devices such as fans. These additional expenses were not factored into the Bureau’s thinking on these rules but constitute a considerable cost to incarcerated people.
The proposed changes to the IFRP are particularly concerning now that the Bureau of Prisons has ended its pandemic-related phone policy of providing 500 minutes of free phone calls to incarcerated people. As of January, phone calls cost $0.06 per minute, while video calls usually cost $0.16 per minute. Although some people are eligible for free phone calls up to 300 minutes if participating in First Step Act-related programming, other families of incarcerated people will have to manage this added expense to remain connected to their loved ones.
According to the Bureau of Justice Statistics, 57% of people incarcerated in federal prisons have one or more dependent children. The incarceration of a parent or caregiver results in the potential loss of family income while creating additional costs for the family to manage — often making it difficult for families to meet their basic needs. Numerous family members of incarcerated people submitted public comments stating how difficult it would be for them to shoulder additional costs as they are already struggling financially. The proposed rules will further burden incarcerated people and their families — but they don’t have to.
An alternative approach that meets the Bureau’s goals
Rather than adopting these new rules, in our letter, we recommend an alternative approach that accomplishes the goals of the program without further burdening incarcerated people and their families. Key provisions of our recommendations include:
Protect incarcerated people who have commissary account balances that are less than the federal poverty level from having their money seized.
Shield incarcerated workers from having their wages garnished unless and until they earn at least the federal minimum wage.
Exempt incarcerated people from IFRP participation for at least two years prior to reentry, given the numerous costs associated with transitioning back into the community.
The overwhelming majority of people in federal prisons and their support systems on the outside are struggling to meet their basic needs. The updated proposed changes to the IFRP are less severe than the slash-and-burn approach to debt collection they initially took, but they would still push incarcerated people and their families deeper into poverty. We urge the Bureau of Prisons to consider our alternatives to their proposal.
Why are terrible prison and jail healthcare systems so resilient against lawsuits and government oversight? How do healthcare providers cut corners with patient care to keep costs down? When and why did corrections agencies start to swing towards contracting out healthcare to companies?
In a new report, Cut-Rate Care, the Prison Policy Initiative answers these questions and others, providing a sweeping explainer of correctional healthcare. We focus on the incentives behind notoriously bad care found in prisons, and explain the major changes — in particular, a shift away from control of healthcare by departments of corrections — that would be necessary to reorient these systems toward a public health approach to care.
People in prison have unique health needs, suffering disproportionately from illnesses like Hepatitis C, HIV, and substance use disorder. As we’ve shown before, these needs routinely go unmet in prisons. Our new report explains why: Correctional healthcare systems are services for corrections departments, not incarcerated people, and are therefore focused less on patient care and more on avoiding lawsuits.
The explainer covers:
The ways prisons protect themselves against legal consequences for poor medical care, from contracts that offload responsibility onto private companies to federal and state laws that stymie legal action.
The history of privatization in prison healthcare, including a table showing the three main business models of healthcare contracts in effect in prisons today.
The few quality control measures for prison healthcare — government oversight, accreditation, and litigation — and why these have all ultimately failed to meaningfully improve the quality of care.
“With prison healthcare, you regularly see that incarcerated people’s complaints get ignored, their requests for exams get denied, and their care gets slow-walked,” said author Brian Nam-Sonenstein. “That’s because prison healthcare systems are really more like liability management systems, and what’s bad for patient care can actually be good for limiting liability.”
Beyond offering an overview of correctional healthcare, the explainer also includes:
Policy recommendationsfor decision-makers at all levels of government, but particularly for state and federal lawmakers — whom we urge to remove the provision of prison healthcare from departments of corrections and transfer it to public health agencies, breaking down the “wall” that currently exists between correctional healthcare and public health.
An appendix with a thumbnail history of the evolution of correctional healthcare, centered around the pivot to privatization since the turn of the millennium.
Anecdotes from six incarcerated people (in six different prison systems) whom we asked about their experiences with correctional healthcare.
“Private or public, the goal of prison healthcare providers is to provide the minimum amount of care possible in order to avoid claims of negligence,” said Nam-Sonenstein. “These are medical systems caught up not just culturally, but systemically, with the handing out of punishment. That won’t change until we take correctional healthcare out of the hands of departments of corrections and give it to professionals who are solely focused on public health.”
Decision-makers often cite worries about recidivism as a primary reason to oppose criminal legal system reforms. These worries are caused by both the concept of the “revolving door” of incarceration and by politicians’ fears that a single violent recidivism event will hurt them politically. The realities of recidivism, though, are complex, and the more advocates know about the facts of how many people return to prison and what those numbers mean, the better equipped they can be to help politicians make informed decisions about policy.
Earlier this month, we released a new guide to recidivism statistics and their history, and how advocates for decarceration can challenge the way these flawed statistics are used to undermine their efforts. The new guide covers:
The history of the “Willie Horton Effect,” why the power of political backlash against reform is overhyped, and how advocates should respond when lawmakers are swayed by isolated stories of recidivism.
The different types of recidivism metrics and what they mean, how and why to be cautious about commonly-cited statistics, and the role of “technical” probation and parole violations and minor offenses in driving recidivism.
Recidivism statistics related to people convicted of violent/sexual offenses, in the context of common arguments for “carving out” these individuals from criminal legal reforms.
How advocates can push lawmakers to consider other metrics of post-release success besides recidivism, focusing on a person’s quality of life and contributions to their community.
We’ll also be hosting a webinar at 1 PM EST on Wednesday, March 19, where our policy and advocacy team, Sarah Staudt and Emmett Sanders, will discuss pushing back against unproductive and inaccurate uses of recidivism stories and statistics. Advocates, journalists, and members of the public are invited to attend.
This guide is part of our ever-expanding Advocacy Toolkit, a series of resources for criminal legal reform advocates based on our own research and advocacy.
Local jails, which hold one out of every three people behind bars, have become America’s misguided answer to problems faced by the most vulnerable people, like poverty and homelessness. Despite jails’ central role in mass incarceration, comprehensive national data about the 5.6 million people who cycle through them each year is collected infrequently, leaving even basic questions about jails unanswerable.1 Fortunately for researchers, advocates, journalists and many others, the Jail Data Initiative is collecting present-day data from roughly 900 jails to provide a better understanding of those who are criminalized and locked up, including the approximately 205,000 unhoused people who are booked into jails each year.
In this briefing, we present what we know about unhoused people who are booked into jails, using the best available dataset, collected from jail rosters2 by the Jail Data Initiative (JDI). (Last year we published our first analysis of JDI data, focused on repeat bookings; we intend to publish additional analyses this year.) We find that people booked into jail who were marked as unhoused at intake are held for longer than average, while being handed some of the lowest-level charges like trespassing or petty theft.
As we’ll explain, the data have limitations, and some jails are simply not collecting important demographic data such as housing status. But we know that jurisdictions have grownincreasinglyhostile toward people with nowhere to call home: Instead of extending a helping hand to people simply trying to rest, eat, or otherwise survive, local law enforcement is handing them a criminal record and further destabilizing their lives.
Key findings
Only 20% of the jail rosters in the full dataset (175 of 889) contained one or more entries indicating an unhoused person, but the data from those jails suggest that cities and counties are turning to their jails to address behaviors that unhoused people often engage in because they are unhoused and/or poor.
Note: When referring to “unhoused people,” we mean those who are known to us to be unhoused, based on the jail roster data; everyone else may or may not have housing, but it’s unknown. As such, we also don’t know about people entering jails who are facing housing insecurity. For more information on our process, see our methodology section.
About 4.5% of jail bookings in our sample are of unhoused people: Across the 175 jail rosters in our dataset, there were 22,839 bookings of people known to be unhoused, out of 503,571 total bookings over the course of one year. These bookings represent over 15,000 unique unhoused individuals (and about 406,000 people whose housing status was unknown, or who were housed, before their admission to jail.) This translates to about 205,000 different unhoused people going to jails each year nationwide — nearly one-third of the number of people experiencing homelessness on a single night in 2023.3
Unhoused people are more likely to be booked multiple times: More than one out of every five jailed people are booked again within a year. Unhoused people made up a disproportionate share of those rebooked, representing 4% of all unique jail bookings but 8% of those rebooked. Said another way, over 40% of unhoused people booked into jail were booked multiple times, while only 20% of people who were housed or had an unknown housing status were booked multiple times. This finding affirms many observations of ineffective targeting and sweeps of homeless populations.
Unhoused people are held in jails for longer than average: The overall average stay in jails whose rosters included at least one unhoused person was 21 days, but for unhoused individuals was 32 days — almost 50% longer. We also looked at median length of stay, because the average could be skewed by very long or very short jail stays. The median length of stay for all bookings in this sample was 4 days, but for unhoused individuals was 14 days — which is 2.5 times longer. Our analysis didn’t include bond (bail) amounts, but it’s safe to assume that unaffordable cash bail is keeping many unhoused people in jails longer than those who can afford it.
People aged 55 and older make up a disproportionate share of bookings of unhoused people: About 10% of all jail bookings in our sample were older people (those age 55 or older), but 15% of bookings of unhoused people were older people. It’s important to note that older adults are more likely to spend 50% or more of their income on rent compared to people in other age groups, making them severely housing-cost-burdened and closer to housing insecurity or homelessness.
The mass jailing of unhoused people overburdens Black people: While Black people accounted for 31% of all bookings, they accounted for 40% of all bookings of unhoused people. Meanwhile, white people made up 62% of all bookings but only 55% of all bookings of unhoused people. Similarly, people of color are overrepresented in the unhoused and severely housing-cost-burdened populations.
Unhoused people face a litany of unfair criminal charges simply because they’re unhoused: In general, most people are jailed on public order, property, or drug charges, but bookings of unhoused people made up a disproportionately large share (8%) of bookings where the most serious charge was a property charge, and a slightly greater-than-expected portion (4.8%) of bookings for which the most serious charge was a drug charge. Unhoused people were most commonly booked for a top charge of trespassing — a charge frequently used to criminalize people for having nowhere else to go. They were also more commonly booked for possession of amphetamines, disorderly conduct/drunkenness, and petty theft (of less than $500) compared to all jail bookings in our sample. In contrast, bookings of unhoused people made up disproportionately small shares of bookings where the top charge was “violent” (3%), or related to DUI (<1%) or criminal traffic (2.1%) offenses.
Inconsistent data collection in jails leaves gaps in understanding
Although the data suggest that U.S. cities and counties are unnecessarily and excessively jailing unhoused people, 4% of jail bookings is a significant underestimate of unhoused people in local jails. Our methodology relies on positively identifying people as unhoused, but many more unhoused people may have chosen to list a shelter address, a family member’s address, or another location as their address when they were booked into jail.
And clearly, housing and other demographic data are not consistently collected by jail jurisdictions. While jail rosters are by no means a traditional source of data, it’s telling that only 20% of the nearly 900 rosters in the Jail Data Initiative’s sample recorded even a single person as unhoused during the yearlong study period. Smaller jails, in particular, were underrepresented in our dataset and may be less likely to record housing status information: Jails with an average daily population of less than 100 people made up 26% of our dataset, but make up 54% of jails across the U.S.
Criminalization will never solve homelessness
While not the complete picture of jails that we all wish for, the Jail Data Initiative data provide the best and most recent look at our national reliance on jails for addressing the ongoing crisis of homelessness. Our analysis reveals that unhoused people in jails are kept there for longer, are more likely to be booked multiple times, and are disproportionately Black. In total, over 200,000 unhoused people are coming in contact each year with law enforcement agents who are supposed to be keeping them safe, but the thinly veiled case for bringing them to jail only exacerbates their homelessness4 and despair.
There may be reports of unhoused people “choosing” to go to jail over sleeping in the streets, suggesting that jail is an acceptable solution. But it’s been shown time and time again that providing housing, services, and treatment instead of jail incarceration is more sustainable, a huge relief for taxpayers, and much less harmful to individuals. This is where diversion programs and permanent supportive housing can be utilized, before someone is arrested — better yet, before any police encounter.
Methodology
The Jail Data Initiative (JDI) collects, standardizes, and aggregates individual-level jail records from more than 1,000 jails in the U.S. every day. These records are publicly available online in jail rosters — the online logs of people detained in jail facilities that often include some personal information like name, date of birth, county, charge type, bail bond amounts, and more. JDI uses web scraping — the process of automating data collection from webpages — to update their database of jail records daily. The more than 1,000 jails included in the JDI database represent more than one-third of the 2,850 jails identified by the Bureau of Justice Statistics’ Census of Jails, 2019 and are nationally representative.
For the purposes of our analysis of unhoused populations, we limited the JDI sample to bookings with admission dates between July 1, 2023 and June 30, 2024 from 175 jail rosters for which at least one person was categorized as “unhoused” upon intake (except when looking at rebookings; see below). To do so, our partners at JDI searched parts of the “Address” field in jail rosters for words like “homeless,” “unhoused,” “transient,” and similar keywords, then dropped rosters and/or bookings that did not meet our standards for robustness.
In all, there were 503,571 jail bookings captured across these 175 rosters, representing over 420,000 unique individuals booked into jail. Because our sample of jails for this analysis is so much smaller than the full JDI sample, ours may not be nationally representative.
Of course, not all of the jails included in the Jail Data Initiative database provide the same information. For the more detailed analyses of jail bookings by demographic and other characteristics, we used subsets of this sample due to inconsistencies in data collection:
Length of stay: This sample included 440,120 bookings from 175 jail rosters.
From the original sample described above, bookings were removed due to potential issues with date range overlap or missingness. Next, any active bookings as of the end of the date range (2024-06-30) were excluded.
Rebookings: This sample included 599,423 bookings from 140 jail rosters. To look at unhoused people booked into jail multiple times, we began with data from 648 jail rosters for which there was available data for a two-year window (July 1, 2021 to June 30, 2023), plus an additional 365 days for a look-forward review of rebookings (to June 30, 2024). We looked at people who were both booked into jail and released within the two-year study period, and counted people as “rebooked” or “booked two or more times” if they were booked into the same jail system within 365 days of their first jail admission in the study time period. We elected to use a two-year time frame to capture a larger sample of bookings than we could in a single calendar year. From this sample of 648 jail rosters, there were 140 rosters that included at least one individual categorized as unhoused upon admission for any of their bookings.
Gender: While we did look at the gender distribution of unhoused bookings, we did not find a notable difference between bookings of unhoused people and those whose housing status was unknown. The sample here included 477,363 bookings from 167 jail rosters, where at least one person was categorized as unhoused and where sex and/or gender was also reported.
Race and ethnicity: This sample included 401,544 bookings from 138 jail rosters, where at least one person was categorized as unhoused and where race and/or ethnicity was also reported.
Age: This sample included 448,273 bookings from 155 jail rosters, where at least one person was categorized as unhoused and where age was also reported.
Charge type: This sample included 437,241 bookings from 173 jail rosters where at least one person was categorized as unhoused and where the charge type was also reported. Charges were standardized by JDI into both broad categories (Violent, Public Order, Property, Drug, DUI Offense, and Criminal Traffic) and more specific offense types, as described by the Uniform Crime Classification Standard (UCCS) schema. An overall “top charge” category per person was determined by selecting the most severe charge from among all bookings for an individual.
Unbelievably, the 2002 Survey of Inmates in Local Jails (SILJ) is the most recent, nationally representative data available on people held in local jails (whereas an annual Survey of Jails and occasional Census of Jails capture some demographic information, but only from administrative records). The SILJ collects information like who is held pretrial due to inability to afford bail; the racial distribution of people detained pretrial; and what offenses people are locked up for before trial. The next edition of the SILJ was sent out to respondents in late 2024, a full 17 years off-schedule. ↩
A jail roster is a publicly available, online log of all individuals detained in a jail facility (or in some cases, multiple facilities or counties) on a given date. Jail rosters are typically updated daily, hourly or even in real-time, and contain information obtained at booking, like someone’s basic identifying information, where they were arrested, and the dollar amount of their bond. ↩
To estimate the number of different (unique) unhoused people booked into jail in a year, we started with the share of unique individuals in our sample, 3.63% (or 15,297) who were known to be unhoused. We applied this percentage to the number of unique individuals booked over the year from July 1, 2022 to June 30, 2023, which was 5,658,992, yielding our estimate of 205,268. ↩
Yesterday, Prison Policy Initiative’s Advocacy Director, Sarah Staudt, testified in the House Judiciary Committee in the Colorado Legislature to support a bill that would guarantee visitation rights to people in Colorado prisons.
HB25-1013, sponsored by Representatives Regina English and Jennifer Bacon, would make visitation a right, not a privilege, for people in Colorado prisons. While the Department of Corrections would maintain the ability to restrict visitation for safety reasons, visitation would no longer be able to be taken away for disciplinary reasons, like as punishment for refusing work within the prison.
At the request of Together Colorado, we provided testimony about the wealth of research that shows that visitation is vital for helping incarcerated people maintain their mental health, reintegrate into society, and avoid returning to the criminal legal system.
Visitation has numerous benefits for incarcerated people, including decreasing recidivism; people who experience visitation were 25% less likely to be rearrested within two years of release from prison. Visitation also improves the likelihood of employment after release. Incarcerated people who had family visitation had odds of finding employment almost 2 times higher than those who were not visited by family. Lastly, visitation helps incarcerated people cope with the inherent stressors of incarceration, decreasing mental health issues.
Visitation is also a key tool in decreasing the harm that incarceration causes to children and families beyond prison walls. Nationwide, half of people in prison are parents to minor children, including 80% of all incarcerated women. Incarceration of a parent is a stressor for children that affects overall wellbeing, family dynamics, poor school performance, and a heightened risk of eventual involvement in the criminal legal system. Visitation with family has been shown to lessen these negative outcomes.
Prison Policy Initiative is proud to support HB25-1013, and hopes that it can serve as a model for legislatures around the country to improve access to visitation for incarcerated people.
A little-known 1988 law called the Thurmond Amendment stripped people with drug distribution convictions of federal protections under the Fair Housing Act, making it even more difficult for many people with criminal records to secure housing - even when they are qualified in every other way, and even when the conviction is decades old. By our count, this law makes it more difficult for as many as 3 million people with these kinds of convictions to secure housing.
You’ve probably never heard of the Thurmond Amendment, but for almost 40 years, it has been quietly enabling landlords to deny housing to people based solely on a past conviction for selling drugs — no matter how qualified they are as tenants, no matter what drugs or quantities were involved, and no matter how long ago they were convicted. This lifelong collateral consequence, tied to this one specific type of conviction, makes it even more difficult for people with criminal records to find housing at a time when it’s already a near-impossible task given the highly competitive rental markets in the U.S. As we and many other researchers haveexplainedbefore, safe and stable housing is a critical factor in reentry success, while homelessness puts people directly in the crosshairs of law enforcement. These facts put the Thurmond Amendment directly at odds with correctional and public safety interests.
A coalition of advocates is working to repeal the law, led by a real estate investor who was directly impacted by the Thurmond Amendment. Their first step: gathering the available data about its impact and raising awareness of this overlooked relic of the failed “war on drugs.” That’s where we at the Prison Policy Initiative come in. One form of support we offer advocates — particularly through our Policy & Advocacy team — is to bring to light the relevant data that exists about an issue, and to find ways to fill in the gaps where the necessary information simply isn’t available. When the coalition came to us with the question of how many people are potentially impacted by the Thurmond Amendment, we combed through the available historical data to come up with an estimate, ultimately finding that over 3 million people in the U.S. have received drug distribution convictions since 1986 (which is as far back as the available data go).
How we developed our estimate
Our approach, sources, and assumptions
You might think it would be easy to answer the question, “How many people in the U.S. have a drug distribution conviction and could therefore be excluded from Fair Housing Act protections?” but the unfortunate fact is that criminal legal system data are rarely collected or reported in ways that provide simple answers to simple questions. In this case, we were lucky to find that the annual number of felony convictions in state courts for “drug trafficking” (manufacturing or distribution) was published every other year from 1986 to 2006; for federal court convictions, this number was published every year from 1990 to 2014. We found no data for years prior to 1986, and had to use less-relevant but related data to produce estimates for the missing years. Then, to avoid double-counting people who had more than one such conviction (because they would be excluded under the Thurmond Amendment for their first conviction), we had to estimate how many of these convictions were “firsts” for people as opposed to subsequent convictions of the same individuals. Missing from our analysis are people with only a misdemeanor drug distribution/manufacturing conviction (who are also excluded by the Thurmond Amendment), because we couldn’t find a data source on which to base an estimate of their number.1 Inevitably, because of the gaps in the available data, our estimates are conservative and inexact, but we believe they are the only ones produced to date. This is how we did it.
For convictions in state courts:
In even-numbered years from 1986 to 2006, the National Judicial Reporting Program reported estimated numbers of felony convictions based on a nationally representative sample of counties. These were published in a Bureau of Justice Statistics report series, Felony Sentences in State Courts.
For odd-numbered years from 1987 to 2005, we used the reported even-numbered year estimates to calculate the least squares regression line and interpolated values for the missing years along that line.
For the years 2007-2023, we calculated estimates based on (a) annual arrests of adults for drug trafficking and (b) the most recent known ratio of felony convictions for drug sale or manufacturing to arrests for drug trafficking, which was 62 per 100 arrests in 2009. However, the number of annual arrests specifically for drug trafficking are not reported; instead, the FBI reports the number of all drug arrests — combining both sale/manufacturing and possession — and the percentage of drug arrests that were for sale or manufacturing versus possession. Once we had estimates of how many people aged 18 years and older were arrested for drug-related offenses each year, we multiplied those estimates by the annual percentages attributed to sale/manufacturing to produce estimates of adult arrests specifically for drug distribution or manufacturing. 2
We wanted to exclude people under the age of 18 from our estimates because minors are typically (though not always) referred to juvenile courts, where they would not receive a felony conviction that would exclude them from fair housing protections. But this, too, required a few steps. Because not every jurisdiction reports its arrest data to the FBI every year, the FBI reports arrest data by most serious charge in two ways: the reported number of arrests and the estimated number of arrests. The estimated number adjusts for jurisdictions that did not report their data, providing the FBI’s best estimate of how many arrests were made nationwide in a given year. Unfortunately, these estimates can’t be broken down in as much detail as the reported numbers are, by characteristics such as age or sex. However, relying only on the reported numbers would lead to a serious undercount of arrests: for almost every year from 2007 to 2023, for example, the reported total was roughly 20% to 30% lower than the estimated total for drug arrests. For this reason, we calculated our own estimate of adult drug arrests based on the percentage of reported drug arrests that involved adults for each year, multiplying the FBI’s estimated total drug arrests by the adult percentage, which was between 89% and 96% for all years.
Once we had annual estimates of adult arrests for drug sale or manufacturing for each year, we multiplied those estimates by 62% (the most recently reported ratio of drug sale/manufacturing arrests that result in felony convictions) to estimate how many arrests led to felony convictions.3
Finally, to avoid double-counting people with multiple felony convictions for drug sale/manufacturing, we relied on the most recently reported percentage of people whose most serious arrest charge was drug trafficking who had no prior felony conviction, which was 51% (again, from 2009). We multiplied each of the annual estimates of felony convictions for drug sale/manufacturing by 51%, resulting in a conservative final estimate, since those previous felony convictions could be for any offense type, not necessarily for drug sale/manufacturing (the only felony convictions that would be disqualifying under the Thurmond Amendment). Our final estimate of first-time convictions for drug sale/manufacturing through state systems for 1986-2023 was approximately 3,023,773.
To varying degrees, these state-level estimates all rely on data from the National Judicial Reporting Program and/or State Court Processing Statistics Program, which in turn are based on data from a sample of the nation’s 75 largest counties. Crime and law enforcement patterns vary by urbanicity (that is, places that are more rural or suburban have different policing patterns than more urban jurisdictions), so our estimates are not as accurate as they would be if we had access to data from a broader range of counties. Unfortunately, that level of data collection has never existed at the national level, to our knowledge.
For convictions in federal courts:
For the years 1990-2014, the U.S. Sentencing Commission (USSC) published the number of felony convictions for drug “trafficking” (sale/manufacturing) in its Annual Reports and Sourcebooks. For the years 2015-2023, the USSC publishes the same data on its Dashboard.
For the years 2016-2023, the USSC Dashboard also reports the annual number of people sentenced for drug trafficking who had a prior conviction for drug trafficking, which we used to adjust for the double-counting of people who received more than one such conviction. We removed the reported annual number of people with prior drug trafficking convictions from the reported annual number of trafficking convictions for those years. For the previous years for which we could not find similar estimates (1990-2015), we removed 30.3% of the reported annual convictions — the average share of people with prior trafficking convictions reported for the years 2016-2023.4
Finally, we summed our annual estimates of first-time felony drug trafficking (sale/manufacturing) convictions for all years, giving us a total of approximately 483,643 people convicted through the federal system.
Our final national estimate is the sum of our state court and federal court estimates: 3,507,417 U.S. adults with felony convictions for drug distribution or manufacturing. This is likely a significant underestimate of the actual number of people denied legal protection for housing discrimination based on their conviction under the Thurmond Amendment, because at every decision point that would impact our final estimate, we erred on the conservative side.5
Understanding the Fair Housing Act and the Thurmond Amendment
The Fair Housing Act of 1968, a key piece of civil rights legislation, declared discrimination by housing providers on the basis of race, religion, sex, national origin, familial status, or disability illegal. The 1988 Fair Housing Amendments Act strengthened the Department of Housing and Urban Development’s (HUD’s) power to enforce the Act, creating a new avenue of legal recourse for tenants and homebuyers who experience discrimination when applying to rent an apartment, buy a home, or take out a mortgage.
Enacted at the height of the failed “war on drugs,” however, the 1988 law includes an amendment named for its sponsor, the segregationist Strom Thurmond, which explicitly denies fair housing protections to people who have been convicted of drug manufacturing or distribution. While this amendment may seem like an odd thing to tack onto civil rights legislation that does not explicitly protect people from discrimination based on criminal history, it creates a carveout that allows landlords to deny housing to this specific population. Because drug distribution convictions — and criminal records more broadly — disproportionately impact Black and Brown people, discrimination against all individuals with criminal records is effectively a form of racial discrimination.6 On this basis, when housing providers discriminate against people with criminal records, individuals can make “discriminatory effect” claims under the Fair Housing Act. However, when landlords discriminate against people with drug distribution convictions specifically, the Thurmond Amendment makes these claims impossible. No other category of criminal conviction is excluded in the same way.
Importantly, repealing the Thurmond Amendment would do nothing to diminish the autonomy of landlords and other housing providers. The Fair Housing Act doesn’t require anyone to provide housing to people with drug distribution convictions, or any other kind of conviction for that matter. It just encourages them to consider applications more fully instead of automatically disqualifying people on the basis of a criminal record alone.
We know better now: Lessons learned about drugs, crime, and housing
The Thurmond Amendment was an expression of “tough on crime” 1980s politics, which were rationalized by false beliefs about drugs, crime, and punishment. For instance, in a recent op-ed, Yusef Dahl, who has been leading the effort to repeal the Amendment, points to the misconception that people who sell drugs are different from people who use drugs, which was central to how Thurmond sold the amendment to the rest of Congress: “drug dealers,” he argued, don’t deserve federal protection. In reality, distributors and users are often the same people: the most recent national data show that 78% of people in state prisons whose most serious offense was drug-related 7 reported using any drug in the month before their arrest. More than half (55%) were using at the time of the offense itself. 8 Among people sentenced to local jails for drug-related offenses (i.e., those serving shorter sentences than people in prison), the most recent data show 74% met the criteria for a substance use disorder. While it may be rhetorically convenient for politicians to vilify people who sell drugs, doing so necessarily casts a wide net around drug users who are often coping with poverty and illness.
Second, the Thurmond Amendment’s complete exclusion of people convicted of drug distribution, no matter how long ago, implies a belief that people don’t change.9 Decades of criminological research on desistance (the individual process of shifting away from lawbreaking behavior) prove otherwise. In fact, among the recommendations of experts Shawn Bushway and Christopher Uggen, authors of the chapter linked above, is “eliminat[ing] most collateral consequences of criminal justice involvement,” such as barriers to housing. Putting a finer point on it, they write: “Policies that continue to center a criminal act years after that act was committed directly contradict everything we know about desistance.”
Ultimately, this is the problem with the Thurmond Amendment: while it was added ostensibly so landlords could “protect other tenants,” it actually works directly against public safety interests. Securing safe, stable housing is one of the greatest challenges for people during reentry, and it makes a difference in reentry success, as previous research has shown. Creating additional barriers to housing for people with criminal records is simply bad policy.
Drug distribution/manufacturing charges are typically felonies, but some states classify certain distribution/manufacturing charges as misdemeanors, such as when they involve marijuana. The Thurmond Amendment also excludes people with these misdemeanor convictions from fair housing protections. ↩
For the years 2007-2023, for which our state court estimates are based on arrests for drug sale/manufacturing and the proportion of those arrests that result in felony convictions, we did not attempt to disentangle arrests that might have resulted in federal court convictions. However, we believe that this likely results in an undercount of felony convictions rather than double-counting, because arrests by the Drug Enforcement Agency (DEA) — the federal agency that makes the most drug arrests .— are not reported to the FBI’s Uniform Crime Reporting program (our source for arrest data). And because most DEA arrests result in federal rather than state prosecution, the resulting convictions are captured in the federal United States Sentencing Commission conviction data. ↩
This ratio has varied over the years; in 2004, 71 per 100 arrests for drug sale/manufacturing resulted in felony convictions, and in 1986 it was 41 per 100 arrests. ↩
The percentage of people convicted of drug “trafficking” who had prior convictions for the same offense increased fairly steadily over the years it was reported, from 27.3% in 2016 to 33.3% in 2023. Because of this linear trend, we considered using estimates based on the least squares regression line for those years, but ultimately decided that those estimates were likely to underestimate the number of people with prior convictions (for example, this method would predict just 5% of people convicted in 1990 had a prior conviction for the same offense). Instead, we opted to use the larger proportion which produced a more conservative final estimate of unique convictions for drug sale/manufacturing. ↩
For example, we excluded about half of all estimated state court convictions under the assumption that they could all be subsequent convictions for the same offense, even though the data we used to rationalize their exclusion was based on how many people arrested for drug sale/manufacturing had any prior felony conviction, not specifically drug distribution or manufacturing convictions. Given the relatively small proportion of drug sale/manufacturing convictions out of all state felony convictions reported from 1986 to 2009 (an average of 19%), and the fact that more people released from prison sentences for drug offenses are rearrested for non-drug charges than for drug charges, this choice almost certainly excluded many people who did not have a prior conviction for drug sale/manufacturing. Furthermore, our estimates do not include people who have only a misdemeanor-level drug distribution/manufacturing conviction, even though these convictions also bar people from federal fair housing protections under the Thurmond Amendment. ↩
This is known as the “discriminatory effects rule,” which the Department of Housing and Urban Development (HUD) explains in this helpful Fact Sheet: “The Fair Housing Act bars more than intentionally discriminatory conduct — it also bars policies that have an unjustified discriminatory effect based on race, national origin, disability, or other protected class. As an example, a landlord’s policy of excluding people who have any criminal record… often will have a discriminatory effect based on race, national origin, and disability.” While these policies are not always unlawful, as HUD points out, “a policy that ha[s] a discriminatory effect on a protected class [is] unlawful if it [is] not necessary to achieve a substantial, legitimate, nondiscriminatory interest or if a less discriminatory alternative could also serve that interest.” ↩
Most of these people (72%) were in prison for drug trafficking (manufacturing or distribution) as opposed to possession (25%) or other drug offenses (3%). See Table 3 in the Bureau of Justice Statistics report Profile of Prison Inmates, 2016. ↩
These percentages were also high, if less dramatically so, among people in federal prisons whose most serious offense was drug-related: 61% reported using any drug in the month before the arrest that led to their incarceration, and 38% reported using at the time of the offense. See tables 4 and 5 in the Bureau of Justice Statistics report Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016. ↩
On this point it is worth noting that before Sen. Thurmond introduced his amendment, the bill already included language allowing discrimination against people “convicted two or more times … of illegal manufacture or distribution of a controlled substance” (emphasis added). In his rationale for that amendment, Rep. Bob Walker noted that, on the question of whether people who used drugs would be protected under the law, an earlier committee report had made clear that the intent was that “somebody who has cleaned up their act” would not be excluded from protections but that “we are not going to allow current users to have the protection.” Walker saw his amendment (excluding “dealers” with two or more convictions) as an extension of that logic, suggesting that he and other members of Congress — unlike Thurmond — recognized that people change and that they should not be treated differently under the law if they were not “currently engaged” in drug distribution (emphasis added). ↩
March 19, 2025: Join Prison Policy Initiative’s Advocacy Department at 1 PM EST on Wednesday, March 19, 2025, for a webinar about understanding recidivism. We will cover strategies from our recidivism toolkit, including an overview of recidivism statistics and what they really mean, how to combat the “Willie Horton” effect, and ways that advocates can transform the narrative around reentry to make it less focused on negative outcomes and more focused on the ways that returning citizens contribute to their communities.
April 15-17, 2025: Sarah Staudt, our Director of Policy and Advocacy, will be attending the MacArthur Safety and Justice Challenge Network Meeting from April 15-17 in Chicago. Drop her a line if you’d like to meet up!
Not near you? Invite us to your city, college or organization.
