Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care

Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision.

by Wendy Sawyer, June 18, 2024

June 24 marks two years since the Supreme Court stripped Americans of their constitutional right to abortion. The court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization permitted state governments to limit and even ban abortion care — and they did. As a result, the share of patients who cross state lines for abortion care has almost doubled, from about 1 in 10 to almost 1 in 5. Traveling out-of-state for health care, including abortions, is a hardship for anyone, but it is especially challenging for people on probation or parole.

According to The New York Times, since the Dobbs decision, 21 states have implemented abortion rules more restrictive than the standard under Roe v. Wade.¹ Fourteen states now ban abortion altogether, and most other states ban abortion after a certain point in pregnancy. And while some of these less-restrictive bans preserve abortion as an option for most people who need one, these bans are nonetheless as obstructive for people who need abortion care after their state’s time limit.² In all, 41 states have some kind of abortion ban in place post-Dobbs, whether “total bans” or bans based on gestational duration.³ In every one of these states, standard conditions⁴ of probation and/or parole require permission to travel out of state, county, or another specified area.⁵

To understand how this post-Dobbs landscape impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women⁶ (82%) on probation or parole nationwide.⁷ That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision,⁸ 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

Every state and D.C. restrict the movement of people on probation or parole
For our analysis, we first looked at rules related to travel in the standard conditions of probation and parole in each state and D.C. (These are summarized in the table below.) We find that probation agencies in all but two states (Ala. and Iowa) generally require permission to leave the state, county, or other designated area. Four of these states empower the court or probation officer to set the boundaries for travel restrictions on an individual basis.⁹ Rules restricting interstate travel are just as common in the context of parole and post-release supervision: 40 states have a standard condition requiring permission to leave the state. Among the states that do not, five (Ark., Iowa, Mont., N.M., and Pa.) require permission to leave an even smaller area — the county or district.¹⁰ West Virginia and D.C. require permission to travel, but individualize the specific geographic boundaries in the supervision contract.

Excluding federal supervised populations, the vast majority of women on probation (98% or 672,000) and parole (96% or 60,000) live in states where their standard supervision conditions require permission to leave the state, if not an even smaller geographic area. Every single state and D.C. require permission to travel for either their probation or parole population — and almost all require permission for both.

It’s important to note that “standard conditions” are just part of the picture of probation and parole conditions, because courts can — and very frequently do — impose any number of additional “special conditions.”¹¹ So even if travel restrictions are not included in the standard conditions that apply to everyone on probation or parole, they may still be imposed at the discretion of the court or community supervision agency.

Limited abortion care options are made worse by these standard conditions

We next looked at each state’s abortion bans and restrictions alongside their standard conditions of probation and parole. This analysis gets to how quickly state laws foreclose the possibility of in-state abortion care for women under either form of community supervision, forcing them to request permission to seek care in another state instead.¹² We find that the much tighter restrictions imposed by states since the Dobbs decision put over 400,000 more women in this precarious position than there were under the protections of Roe v. Wade. Alarmingly, we find that only 1 in 6 women on probation or parole can access abortion care at any stage of their pregnancy without needing permission to cross state lines.

Delving deeper, our analysis shows that, excluding federally supervised populations:

• Over half (53%) of women on probation and parole live in the 21 states that the Times identified as banning abortion care at an earlier point than the standard set by Roe v. Wade (i.e., the highly variable point of “fetal viability”). Less than 3% of these women are able to travel across state lines without permission.
• Nearly one-third (31%) of all women on probation and parole live in states that now have a total abortion ban. Of these, just 4% have no standard condition restricting travel.
• Another 17% of women on community supervision live in states that ban abortions at six weeks — a point at which more than 1 in 4 women are not yet aware of their pregnancy.
• Only 16% live in places without abortion bans and can access abortion care at any gestational point without crossing state lines.

Importantly, even when parole or probation authorities approve interstate travel, the process of getting a “travel permit” takes time and logistical coordination — and sometimes even fees.¹³¹⁴ This necessarily delays abortion care, increasing the risk of complications and often further limiting access.¹⁵ For example, a woman on probation in South Carolina who only becomes aware of her pregnancy when she’s eight weeks along will have to travel out-of-state for an abortion. But if it takes two weeks for her to get permission to travel, a non-surgical abortion is likely no longer an option, as the necessary medications are only approved for use until 10 weeks’ gestation.

A travel restriction is just one of many barriers to healthcare for people on probation and parole

Interstate travel restrictions are just one of the barriers women — or for that matter, everyone on probation and parole — face when it comes to accessing health care. As we’ve already touched upon, some standard conditions restrict travel across much smaller areas, such as counties or court districts. Similarly, people on electronic monitoring — an increasingly common condition of community supervision that amounts to a form of “e-carceration” — are regularly blocked from leaving their home, workplace, or other approved locations. As we have explained before, people on electronic monitoring often report being denied permission to see a doctor or go to the pharmacy to have prescriptions filled.

Even in the few places that don’t impose restrictions on movement, financial costs often put healthcare out of reach for people on probation and parole. As we’ve found in previous research, people on community supervision tend to have lower incomes, with about 60% reporting annual incomes below $20,000. About 25% don’t have health insurance to cover the cost of even basic care — despite reporting worse overall health and greater levels of need.¹⁶ Probation and parole conditions often come with additional expenses as well, such as monthly fees and the costs of drug testing or electronic monitoring devices, which leave even less money for healthcare.

Finally, for women on probation and parole who need abortion care, there is a special risk of further criminalization, either for violating the conditions of their supervision or for the abortion itself. A recent law review article details the various laws used historically and currently to criminalize abortion seekers and providers, paying special attention to laws targeting people who choose “self-managed abortions” when they are unable to access care from the formal healthcare system. A report by researchers at If/When/How describes 61 cases, across 26 states, in which people were investigated or arrested for allegedly ending their own pregnancy or helping someone else end theirs. All were from 2000-2020 — in other words, pre-Dobbs. Efforts to criminalize abortion have only gained momentum since.

Conclusions

Ultimately, Dobbs not only made abortion care much less accessible for everyone who may become pregnant; it created new risks of criminalization as well. For people under supervision, those risks are intensified by the travel restrictions found in standard conditions across the country. As the Community Justice Exchange and Repro Legal Defense Fund explain in their organizing guide, “In states where clinical abortion is banned or inaccessible … [self-managed abortion] will likely be the abortion option most accessible to people under carceral surveillance, putting them at a risk for criminalization that people who can travel freely do not face.”

For this reason (among others), state legislators, courts, and community supervision agencies should minimize the number and restrictiveness of standard conditions imposed on everyone on probation and parole — and greatly reduce the use of these massive supervision programs in general. Courts should limit who they place on supervision, individualize supervision conditions, and apply those conditions only for as long as necessary to achieve results. This approach is far more likely to set people up for success than relying on restrictive, one-size-fits-all rules that only act as tripwires to further criminalization and punishment.

Certainly, whether it’s appropriate to restrict someone’s movement is among the most situation-dependent decisions supervision authorities can make, whether for work, family, religious, educational, or — as we’ve discussed here — health reasons. Restricting where people can go inevitably blocks many from accessing the resources they need, which in turn creates health and safety risks for both individuals and communities. These very real and life-threatening consequences must be taken into account and not discounted simply because of a criminal legal status.

Author’s note: Amelia Wittig and Emily Widra provided the foundational research for our analysis of standard probation conditions by collecting and categorizing the relevant forms, web pages, and statutes that stated whether travel restrictions apply to everyone on probation. These sources are on file with the author. As part of a forthcoming report on probation conditions more broadly, we plan to upload the publicly-accessible documents and those we were given permission to share, and to provide a summary table with links in our Data Toolbox.

Donald Trump can still be president, but he could be barred from being a bartender, car salesman — or real estate developer

The former president’s conviction spotlights how state policies make it hard for people with felony convictions to find good jobs.

by Brian Nam-Sonenstein, June 5, 2024

Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony. While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions. Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs. That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.

Criminal records lock people out of the job market, making everyone less safe

Most people who have criminal records are not billionaire reality TV stars or real estate moguls with wealth and connections to fall back on. For them, getting a job is a matter of survival, and having a record greatly diminishes their chances of success. That’s because a variety of policies across the country effectively disqualify and deter people with records from obtaining employment.

This dynamic traps people in a vicious cycle of poverty and policing that makes everyone less safe in the end. Nearly four out of every 10 people in state prison — most of whom had past convictions — were jobless in the month leading up to their arrest. Black people (46%) and women (53%) in state prisons were especially unlikely to have been employed during that time. Meanwhile, more than 600,000 people return to their communities from prison each year and struggle to secure employment, housing, healthcare, and care for children in large part due to restrictions imposed on those with criminal records. Even though people in this situation are more likely to be actively seeking jobs than the general public, they are far more likely to be rejected by employers and report unemployment at a rate five times higher than the general public. These differences are rooted in discriminatory policy choices, not individual aspirations or capabilities.

Even when people in these circumstances do find work, they are often relegated to the most insecure and low-paying positions. Licensed occupations can provide a path to better job security, but that option is foreclosed by counterproductive policies such as these.

State laws ban people with felony convictions from holding many jobs

State laws and policies give employers ample opportunities to reject potential workers simply on the basis of their having been convicted of a crime. Though explicit employment bans that prohibit hiring from these populations have been modified in some states in recent years thanks to tireless advocacy, decision-makers in most places still enjoy wide discretion to exclude people from certain kinds of work on these grounds.

This is especially true for occupations that require professional licensing, such as bartenders, exterminators, healthcare workers, and car salesmen. People who want to work in real estate — either as agents or developers — are often required to submit to criminal background checks as part of the licensing process, too. Though these bans most frequently target people who are convicted of felonies in particular, certain misdemeanors can also preemptively disqualify people as well.

Whether explicit or discretionary, occupational licensing restrictions for people with felonies on their records are widespread. Just a few examples include:

• Pest control in North Carolina: No one can be issued an ID or work as an estimator, serviceman, salesman, solicitor, or an agent for any licensee if they have been convicted of a felony within three years of their application.
• Car sales in Mississippi: People who want to sell cars must have “good moral character, honesty,” and “high ethical standards” — qualities that are “presumptively” not met if they were, among other things, convicted of a felony or certain misdemeanors.
• Bartending in Florida: Licensed bars cannot employ anyone as a manager, person in charge, or bartender who has been convicted of a felony anywhere in the U.S. in the past 5 years.
• Any health professional in Virginia: Previously licensed healthcare workers face mandatory license suspensions if convicted of a felony. This includes early-career positions like certified nursing assistants, veterinary technicians, and peer recovery specialists. Nurses, in particular, could be prevented from receiving licenses or certifications for any felony or misdemeanor involving “moral turpitude.”
• Firefighters in Florida: Firefighters must not have been convicted of certain misdemeanors, a felony, or any crime punishable by at least one year of imprisonment.

Employment bans need not be explicit to be effective

Even when jurisdictions do not explicitly ban people with felony convictions from obtaining occupational licenses, they typically give licensing agencies so much discretion that they can deter potential job-seekers with records from applying. If you have a record but want to work as a plumber’s apprentice in Texas, you have to fill out an additional extensive “Supplemental Criminal History Information” form. In New York, meanwhile, people with criminal records are not explicitly banned from working in the real estate profession, but they are not entitled to receive real estate licenses without the express permission from the Secretary of State, either. Hurdles such as these are enough to keep most people from applying in the first place.

In other places, discretionary bans are designed to target people who have felony convictions that are “directly related” to the work they would be doing. In Texas, for example, Trump’s convictions for falsifying business records could easily be construed as grounds to deny him a license to handle insurance, taxes, or (as he loves to do) hiring and firing people as an employee for a professional employer organization.

Conclusion

It’s important to reiterate that most people with criminal records have to navigate these challenges with far fewer resources and connections, and far less power, than Donald Trump. Though he officially has a felony record, he will not encounter the majority of these barriers to making money, let alone surviving. In the coming months, we will likely see clear examples of how rich and powerful people like Trump are insulated from the consequences of a criminal record that millions of the most vulnerable people in society — typically the primary targets of the criminal legal system — are forced to endure each day. This will ultimately not be a lesson in equality in justice, but a reminder of the freedom from punishment that people in Trump’s position enjoy even in the rare instances that they are convicted of their crimes.

That being said, the lesson we take from Trump’s conviction should not be that the system needs to get tougher. In fact, the opposite is true: the fact that such employment policies are counterproductive to basic safety interests and are so unequally applied are strong reasons to lower barriers to work for the average person with a criminal record — not erect new ones. At the very least, anyone who believes that a felony conviction shouldn’t disqualify someone from the most powerful office on the planet must also agree that it makes no sense to prohibit others with felony convictions from serving in more ordinary roles as plumbers, pest control workers, and bartenders. Fortunately, there are plenty of measures states can take to make life easier for people with criminal records:

1. Enact occupational licensing reform: States should reform their licensing practices to eliminate the automatic rejection of people with felony convictions.
2. Ban blanketed employer discrimination: Criminal records are not good proxies for employability. Additionally, because of racially disproportionate incarceration rates, organizations who discriminate against people with criminal records may also be contributing to racial discrimination and are therefore subject to litigation under Title VII of the Civil Rights Act of 1964.
3. Implement automatic record expungement procedures: Having an automatic mechanism for criminal record expungement that takes into account the offense type and length of time since sentencing would, in the near term, help formerly incarcerated people succeed and would, in the long term, promote public safety.
4. Issue a temporary basic income upon release: Providing short-term financial stability for formerly incarcerated people would operate as an investment, helping to ease reintegration and provide public safety and recidivism reduction benefits that would result in long-term cost savings.
5. Make bond insurance and tax benefits for employers widely available: Some governmental bodies offer insurance and tax incentives for employers who hire people with criminal records, protecting against real or perceived risks of loss. Increasing the availability of such programs would provide hesitant employers with added financial security.

For more information about the kinds of policies that prevent people with criminal records from obtaining occupational licenses, the various collateral consequences of those policies, and state-by-state comparisons, the following organizations offer excellent resources:

• CSG Justice Center: Fair Chance Licensing Project: States Expand Access to In-Demand Jobs
• The National Reentry Resource Center: National Inventory of Collateral Consequences of Criminal Conviction
• The Rights Restoration Project: Advancing Second Chances: Clean Slate and Other Record Reforms in 2023

New data and visualizations spotlight states’ reliance on excessive jailing

We've updated the data tables and graphics from our 2017 report to show just how little has changed in our nation's overuse of jails: too many people are locked up in jails, most detained pretrial and many of them are not even under local jurisdiction.

by Emily Widra, April 15, 2024

Table of Contents

Warehousing effect

Renting jail space

COVID’s Impact

Recommendations

State-specific graphics

Methodology

Data appendices

Footnotes

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. In 2017, we published an in-depth analysis of local jail populations in each state: Era of Mass Expansion: Why State Officials Should Fight Jail Growth. We paid particular attention to the various drivers of jail incarceration — including pretrial practices and holding people in local jails for state and federal authorities — and we explained how jails impact our entire criminal legal system and millions of lives every year. In the years since that publication, many states have passed reforms aimed at reducing jail populations, but we still see the same trends playing out: too many people are confined in local jails, and the reasons for their confinement do not justify the overwhelming costs of our nation’s reliance on excessive jailing.

People cycle through local jails more than 7 million¹ times each year and they are generally held there for brief, but life-altering, periods of time.² Most are released in a few hours or days after their arrest, but others are held for months or years,³ often because they are too poor to make bail.⁴ Fewer than one-third of the 663,100 people in jails on a given day have been convicted⁵ and are likely serving short sentences of less than a year, most often for misdemeanors. Jail policy is therefore in large part about how people who are legally innocent are treated, and how policymakers think our criminal legal system should respond to low-level offenses.

Figure 1. The frequent practice of renting jail cells to other agencies makes it difficult to draw conclusions from the little data that is available. This update to our 2017 report offers an updated analysis of national data to offer a state-by-state view of how jails are being used and we continue to find that pretrial populations continue to drive jail growth across the country. The data behind this graph is in Appendix Table 1.

More than 460,000 people are currently detained pretrial — in other words, they are legally innocent and awaiting trial. Many of these same people are jailed pretrial simply because they can’t afford money bail, while others remain in detention without a conviction because a state or federal government agency has placed a “hold” on their release.

Pretrial detention disproportionately impacts already-marginalized groups of people:

• Low income: The median felony bail amount is $10,000, but 32% of people booked into jail in the past 12 months reported an annual income below $10,000.
• Black people: 43% of people detained pretrial are Black. Black people are jailed at more than three times the rate of white people.
• Health problems: 40% of people in jail reported a current chronic health condition. 18% of people booked into jail at least once in the past 12 months are not covered by any health insurance.
• Mental illness: 45% of people booked into jail in the past 12 months met criteria for any mental illness, compared to only 30% of people who had not been jailed.
• Experiencing homelessness: While national data don’t exist on the number of people in jail who were experiencing homelessness at the time of their arrest, data from Atlanta show that 1 in 8 city jail bookings in 2022 were of people who were experiencing homelessness.
• Lesbian, gay, or bisexual: 15% of people booked into jail in the past 12 months identify as lesbian, gay, or bisexual, compared to 10% of people not booked in the past year.

This confinement creates problems for individuals on a short-term basis and also has long-term effects. Research in different jurisdictions has found that, compared to similarly-situated peers who are not detained, people detained prior to trial are more likely to plead guilty, be convicted, be sentenced to jail, have longer sentences if incarcerated, and be arrested again. And these harms accrue quickly: being detained pretrial for any amount of time impacts employment, finances, housing, and the well-being of dependent children. In fact, studies have found that pretrial detention is associated with a decreased likelihood of court appearance and an increased likelihood of additional charges for new offenses. There is no question that wholesale pretrial detention does far more harm than good for an increasing number of people and communities.

State and federal agencies pay local jails a per diem (per day) fee for each person held on their behalf. For example, in 2024, the state Department of Public Safety and Corrections (prison system) pays local jails in Louisiana $26.39 per person per day, and more than 14,000 people in the Department’s custody were in local jails in 2022. The fees paid by different agencies to confine people in local jails range and depend on the contract between agencies: In 2023, the per diem rate negotiated between Daviess County, Kentucky and the U.S. Marshals Service increased from $55 to $70 per person per day. And these per diem fees can rack up quickly: in fiscal year 2021, the U.S. Marshals Service paid North Carolina counties more than $31 million for jail holds, while the Louisiana Department of Public Safety and Corrections spent more than $123 million on their “local housing of adult offenders” program.

In 28 states and the District of Columbia, more than 10% of the jail population is being held on behalf of a state or federal authority. This both skews the data and gives local jail officials a powerful financial incentive to endorse policies that contribute to unnecessary jail expansion. Local sheriffs — who operate jails that are rarely filled to anywhere near their total capacity with people held for local authorities — can pad their budgets by contracting out extra bed space to federal and state governments. To be sure, sharing some jail capacity can be a matter of efficiency: for example, if one county’s jail is occasionally full, borrowing space from a neighboring county may be better than building a larger jail. And, in some states — like Missouri — state law requires that local jails agree to hold people for state or federal agencies. But the systematic renting of jail cells to other jurisdictions — while also building ever-larger facilities in order to cash in on that market⁶— changes the policy priorities of jail officials, leaving them with little incentive to welcome or implement reforms.

Fight jail expansionsWhat to do when your county proposes a bigger jail.

In our 2017 report, we found this phenomenon was most visible in Louisiana, where the state largely outsourced the construction and operation of state prisons to individual parish (county) sheriffs.⁷ The most recent data suggests that as of 2022, Louisiana, Kentucky, and Mississippi stand out as the worst offenders. In all three states, at least one-third of the state prison population is actually held in local jails (53% in Louisiana, 47% in Kentucky, and 33% in Mississippi).⁸

Another major consumer of local jail cells is the federal government, starting with the U.S. Marshals Service, which rents about 26,200 jail spaces each year — mostly to hold federal pretrial detainees in locations where there is no federal detention center. In the District of Columbia, South Dakota, New Hampshire, and New Mexico, more than 15% of the statewide jail population was actually held for the U.S. Marshals Service in 2019. Meanwhile, Immigration and Customs Enforcement rents about 15,700 jail spaces each year for people facing deportation.⁹ In 2019, New Jersey stood out with 16% of the statewide jail population held for immigration authorities, followed by Mississippi (10%).

We should note there is significant geographic variation in just how much of a jail’s population is held for other authorities: more than a quarter of people in rural jails were held for state, federal, or American Indian and Alaska Native tribal governments in 2019, compared to only 11% of people in urban jails.¹⁰ The distribution also varies by state, as each has different levels of “excess” jail capacity, and federal officials have specific needs in different parts of the country.

The practice of holding people in local jails for other authorities carries significant personal, social, and fiscal costs, often exposing detained people to the harms of incarceration for longer periods of time than they would be otherwise. Jails are not designed to hold people for any significant period of time; they lack sufficient programming, services, and medical care to house people for months or years.¹¹ This practice also contributes to jail overcrowding, which fuels jail construction and expansion in turn. As scholars Jack Norton, Lydia Pelot-Hobbs, and Judah Schept succinctly put it: “When they build it, they fill it, and counties across the country have been building bigger jails and planning for a future of more criminalization, detention, and incarceration.”

Updated state-specific graphics

In 2017, we argued that if lawmakers want criminal legal system reform, they must pay attention to jails. Years later, this remains true. To help state officials and state-level advocates craft reform strategies appropriate for their unique situations, this report offers updated data and state-specific graphs on conviction status, as well as changes in incarceration rates and populations in both prisons and jails.

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

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

by Emily Widra, January 30, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ineffective and punitive responses to drug use in correctional facilities

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

Mail scanningA harsh new trend in prisons

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

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

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

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

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

Doubling down on failure: misunderstanding drug use inside

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

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

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

Overdose interventions and deaths

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

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

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

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

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

Making reentry safer for people who use drugs

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

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

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

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

Recommendations

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

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

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

Institute effective, nonpunitive responses to drug use behind bars:

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

Expand treatment availability for substance use disorders:

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

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

12 of our most important reports, briefings, and tools in 2023

New data on the overuse of probation and parole, insights into the racial disparities in prisons and jails, and much more. Here are the highlights of our work in 2023.

by Danielle Squillante, December 21, 2023

2023 was a big year at the Prison Policy Initiative. We exposed how the overuse of probation and parole serves to extend the prison walls into our communities, produced new datasets and graphics that show just how vast the racial disparities in prisons and jails actually are, and highlighted how the same companies that profited off of over-priced prison phone calls have moved into the e-messaging industry. Didn’t catch everything we published in 2023? We’ve curated a list of some of our best work from this year below.

Mass Incarceration: The Whole Pie 2023

We released an update of our flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Women experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. To fill these data gaps, we also released an updated Women’s Whole Pie report in partnership with the ACLU Campaign for Smart Justice, which includes richly-annotated data visualizations about women behind bars.

Punishment Beyond Prisons 2023

Our report shows the full picture of correctional control in the U.S., with a particular focus on the overuse of probation and parole. It includes data for all 50 states and D.C. on the number of people under correctional control, including community supervision. We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems. Our findings raise the question of whether probation and parole systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.

SMH: The rapid & unregulated growth of e-messaging in prisons

To better understand the explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation. Our review found that, despite its potential to keep incarcerated people and their families connected, e-messaging has quickly become just another way for companies to profit at their expense.

Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.

We released new data visualizations and updated tables showing the national landscape of persistent racial disparities in state prisons and local jails. Unlike other datasets, ours provides apples-to-apples state comparisons in three formats: counts, rates, and percentages. Using this data, we’ve updated over 100 of the key graphics on our State Profile pages, showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compares to the total state population.

What is civil commitment? Recent report raises visibility of this shadowy form of incarceration

Twenty states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex-related offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence. This deep dive into recently-published data from a survey of individuals confined in an Illinois civil commitment facility sounds the alarm about how these “shadow prisons” operate and the high rates of violence and trauma that people detained in the facilities are subjected to.

The aging prison population: Causes, costs, and consequences

Our briefing examines the inhumane, costly, and counterproductive practice of locking up older adults. The U.S. prison population is aging at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.

How 12 states are addressing family separation by incarceration — and why they can and should do more

Our briefing assesses the legislative action taken by 12 states and the federal government to address the growing crisis of family separation caused when a primary caregiver is incarcerated. All too often, incarceration destroys family bonds as parental rights are terminated or children end up in foster care. We explain how advocates across the country are fighting for creative and holistic solutions.

No Release: Parole grant rates have plummeted in most states since the pandemic started

With parole board practices in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We surveyed 27 states and found only 7 saw an increase in their parole approval rate since the pandemic began, and almost every state held substantially fewer hearings than in years past.

Breaking news from inside: How prisons suppress prison journalism

In response to a move by New York prison officials in May to introduce a policy to effectively suppress prison journalism, we released a briefing building off of data from the Prison Journalism Project that detailed restrictions on prison journalism in prison systems across the country. Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death.

A profile of Native incarceration in the U.S.

Adding to our 50 State Profile pages, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate and more than four times higher than the state and federal prison incarceration rate of white people. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.

States to the Census Bureau: You created prison gerrymandering, you need to end it.

Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. In a May blog post, we reviewed a new National Conference of State Legislatures report that outlines the experiences and recommendations from states that implemented anti-prison gerrymandering reforms in the 2020 redistricting cycle. The report makes clear that state officials agree that prison gerrymandering is important, worth fixing, and the Census Bureau should be responsible for ending it. With roughly half of U.S. residents now living in a state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear. But will the Bureau listen?

Advocacy Toolkit

We continue to update our Advocacy Toolkit, a collection of web-based resources designed to improve advocates’ skills (such as locating data and conducting public records requests) or to plug directly into their campaigns (such as fighting new jail proposals). New this year is a guide to help advocates identify ways public housing policies can be more inclusive to people with criminal histories, as well as a guide that explains why charge-based carveouts are problematic and provides messaging to combat justifications for including them in criminal justice reforms.

This is only a small piece of the important and impactful work we published in 2023 and our work is far from over. We’ve got big things planned in 2024, when we’ll continue to expose the broader harms of mass criminalization and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.

Why did prison and jail populations grow in 2022 — and what comes next?

Recently published data from the Bureau of Justice Statistics show growing prison and jail populations, but this has little to do with crime. Instead, the trend reflects court systems’ slow return to “business as usual” and lawmakers’ resurrection of ineffective “tough on crime” strategies.

by Wendy Sawyer, December 19, 2023

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

Upward trends in prison and jail populations in 2022

Prisons

The new BJS data show that the total national prison population grew by over 2%, with 42 states and the federal Bureau of Prisons (BOP) incarcerating more people at the end of 2022 than 2021. In 14 states, the prison population grew by 5% or more,¹ with just 9 states (mostly in the South) and the BOP accounting for 91% of all prison growth nationwide.² The number of imprisoned women grew proportionally more than the number of imprisoned men (up 5% compared to 2%). At the end of 2022, 16 states held 90% or more of their pre-pandemic (2019) prison populations.

Just like the prison population changes we saw during the early and mid-pandemic (2020 and 2021), these increases were driven by changes in admissions more than anything else: 11% more people — about 48,000 more — were sent to prison in 2022 than in 2021. One narrow silver lining from this update: The number of people released from prisons increased for the first time since 2015; unfortunately, this was only a tiny increase of 1% compared to 2021. (As we recently reported, parole boards have been approving fewer people on discretionary parole in recent years, and compassionate release systems are woefully under-utilized.)

Local jails

Local jail populations grew at an even faster pace than prisons in 2022; jails held 4% more people at the end of June 2022 than at the end of June 2021.³ The women’s jail incarceration rate grew 9% compared to 3% for men, and Black, American Indian or Alaska Native, and Native Hawaiian or Pacific Islander⁴ rates all rose proportionally more than white and Hispanic jail rates.

As with prisons, jail growth was driven by a nearly 7% increase in admissions over last year. The pretrial population was almost back to its full pre-pandemic size (at 97%); more than 70% of people in jail had not been convicted of a crime. Another contributing factor to jail growth: the use of jail detention as a response to probation violations, up 5% compared to 2021. During the pandemic, many jurisdictions reduced their use of jails for punishing these typically low-level, noncriminal violations, but it appears that costly practice is “back to normal.”

A preliminary look at 2023 and beyond: Prison and jail populations continue to grow

In an effort to see whether the growth trend in jail and prison populations has continued since the BJS collected data in 2022, we looked for more recent data. While the data we found are neither complete nor perfectly comparable to those published by the BJS,⁵ we were able to look at year-to-date 2023 jail data from the Jail Data Initiative and at 2023 prison population data published by 42 states and the federal Bureau of Prisons (BOP). (For the 2023 prison data we found, see the Appendix table.)

What we found was troubling but not surprising:

• The jail data, collected from 942 jails across the U.S., show another modest (0.7%) increase in the average daily population in 2023 compared to 2022.⁶
• In two-thirds (28) of the 43 prison systems for which we found more recent prison data, it appears that even more people were incarcerated in 2023, with at least six states again showing increases of 5% or more over their 2022 populations.⁷
• At least two of the eight states where prison populations shrank in 2022 showed increases in 2023 prison populations; in Massachusetts and Arizona, the growth in 2023 erased the population drops in 2022.

Many state prison systems with available 2023 data have already returned to — if not surpassed — their 2019 pre-pandemic sizes.

Explaining recent prison and jail growth

It wasn’t crime

There’s been a lot of ink spilled about relatively modest changes in crime trends over the past few years, but nationally, total crime has remained near historic lows. While the specific factors that influence changes in prison and jail populations vary from place to place and from year to year, we conclude that “rising crime” is among the worst explanations for the growth of incarcerated populations over the past couple of years.

In considering this possibility, we looked at national crime victimization data as well as officially reported crime data.⁸ We see that the rate at which people reported any personal victimization in 2022 (23.5 per 1,000 people aged 12 or older) was almost exactly what it was five years ago, before the pandemic. Similarly, when we look at crime statistics reported by the FBI over a timeframe longer than one or two years, the rate of violent crime has held remarkably steady (and actually declined). In general, the fluctuations that have made headlines are within the range of what we have observed for the past 15 years or so. We see a similar story with property crime (with the exception of auto theft), which has also remained near its historic low, and is trending more steeply downward overall:

We looked at two indicators of crime — self-reported victimization and officially-reported crime — and observed the same patterns in both.

Because we are attempting to uncover trends beyond 2022 in this briefing, we also considered preliminary 2023 crime data released by the FBI in advance of its official annual estimates. For this, we turned to crime analyst Jeff Asher’s recent analysis of the available data. Asher concludes:

“Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded. What’s more, every type of [FBI] Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year…. The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.”

We won’t know how accurate Asher’s analysis is for almost another year, when the FBI releases the 2023 year-end data, but we agree that all signs point to crime continuing to trend downward. Of course, incarceration trends do not track directly with crime trends, anyway; they have more to do with how law enforcement, prosecutors, and judges choose to police and punish certain people, places, and behaviors — and how efficiently they can do so.

Changes in court processes

The 2022 increase in incarceration is actually exactly what we have been anticipating since the dramatic drops we observed early in the pandemic. When populations shrank in 2020 and 2021, we noted that court data showed what happened when courts suspended jury trials and other operations to slow the spread of COVID-19: The number of incoming (new) cases dropped, dispositions (decisions) dropped, and overall case clearance rates (the ratio of new to disposed cases) dropped, creating massive backlogs in the court system. This was a major reason that prison admissions fell so dramatically in the early pandemic.

To see if these data could explain the increase in admissions in 2022, we revisited the same data source, and found that all of those measures have more or less recovered from the slowdowns. Many court systems are still not fully caught up, but by 2022, they had resolved much of the backlog, which in turn caused the shift of many people from pretrial status to disposition, sentencing, and ultimately, admission to jail or prison.

In 2020, many courts shut down jury trials and other in-person operations, creating a backlog of cases that are still being cleared in many states. As more cases work their way through the courts, more people are sentenced to incarceration, resulting in more prison admissions.

Indeed, when we looked through individual states’ own interpretations of their 2022 population changes, most cited slowdowns and backlogs in the court system:

• Virginia: “From mid-March to mid-May 2020, an emergency order issued by the Chief Justice of the Supreme Court of Virginia suspended all non-essential and nonemergency proceedings in the state’s courts. During that time, significantly fewer sentencing hearings were held, resulting in fewer offenders being sentenced to a prison term. Reports suggest that court caseloads have not returned to pre-COVID levels.” (October 2022)
• Wisconsin: “Populations have grown significantly in the past several months as courts are working to address the backlog of cases incurred during the pandemic.” (June 2023)
• Michigan: “…[I]t is projected the prison population will continue rebounding through 2024 due to processing of the court backlog.” (November 2023)
• Rhode Island: “[The Rhode Island Judiciary spokesperson] noted that ‘over the last year the courts were still hearing cases that were delayed or carried over due to COVID-19 procedures and protocols….’” (December 2023)
• Minnesota: “Now, as courts catch up, the prisons are filling to levels not seen in about four years.” (March 2023)

State prison systems and the BOP predict future growth

We also found documents showing that at least 22 states and the federal Bureau of Prisons (BOP) have calculated projections for their prison populations, and they almost uniformly predict further growth. Nineteen states and the BOP expect to incarcerate more people in the years ahead. Only California, Hawaii, and New Mexico expect to incarcerate fewer people in the foreseeable future — and even then, New Mexico anticipates a slight increase in its incarcerated women’s population. (For a list of reports with projections, see the Projections Appendix table.)

This example of a prison system’s population projections, from Colorado, shows that correctional authorities expect the male prison population to return to its pre-pandemic (2019) size by 2026; the report also shows the total population is expected to return to its pre-pandemic size by 2027.

The explanations offered by the states that predict further prison growth share a common theme: in addition to courts catching up with any lingering backlogs, they point to recent changes in legislation that will lead to longer sentences. New laws enacted in the past couple of years have increased penalties for some offenses, created new felony offenses, and made it harder to shorten excessively long sentences.

A Wisconsin report puts this plainly: “one additional potential factor that may influence the population projection… is 2021 enacted legislation, which increased penalties and created additional crimes.” The Oregon Office of Economic Analysis was more specific, pointing to a law passed in 2019 that made it easier to convict defendants of unlawful use of a vehicle, which had resulted in an additional 92 people in the annual prison population so far. While we couldn’t find projections for Tennessee, advocates offered similar explanations for the state’s current prison growth: the “Truth in Sentencing” bill enacted in 2022 put the possibility of parole or early release out of reach for many people, even though the Sentencing Commission determined sentence lengths “with the understanding that people would be paroled.” As a result, people are now serving sentences much longer than intended in the original sentencing laws.

Of course, projections are often wrong, but these reports give us some insight into how state correctional and budgetary agencies are contending with the specter of “tough on crime” politics and policy changes. Having seen the results in the 1980s and 90s, these projections may not be far off.

Returning to ‘business as usual’

The increase in incarceration in 2022 was the predictable outcome of (a) the criminal legal system return to “business as usual” and (b) the return of 1980s- and 90s-style “tough on crime” legislation. It was not caused by a crime wave. We can expect further growth in prison and jail populations unless states and localities redouble their efforts to safely reduce incarceration through criminal legal system reforms such as abolishing cash bail, eliminating incarceration for lower-level crimes (including non-criminal violations of probation and parole), shortening sentence lengths and making those changes retroactive, and expanding access to earned early release and discretionary parole. State and local governments must also make greater investments in strategies that we know protect people from criminal legal system contact: reinvesting in communities impacted by crime, with a focus on jobs, housing, education, and access to community-based mental health and substance use treatment.

Appendix tables

Prison population projections and sources

State and federal prison populations 2019-2023 and sources

No Release: Parole grant rates have plummeted in most states since the pandemic started

Among the 27 states we surveyed, only 7 saw an increase in parole approval rate, and almost every state held substantially fewer hearings than in years past.

by Emmett Sanders, October 16, 2023

Note: On October 18, 2023, we made two edits to this piece : (1) Added data from Massachusetts that was released shortly after our analysis was published, (2) Fixed minor transcription errors to the appendix table.

Earlier this year, Alabama’s Board of Pardons and Paroles made headlines when it denied parole to someone who had died ten days prior to their parole hearing. This is just one of many threads in the Alabama parole board’s tapestry of dysfunction. For months, their three-person parole board operated with just two members despite requiring a majority vote to grant parole. It is no wonder that Alabama is on track to have a parole grant rate — the percent of parole petitions approved — of just 7% for 2023. This also comes as studies show racial disparities in parole grant rates are widening: for example, non-white people in New York were released at a rate almost 29% less than their white counterparts in 2022 (up from a difference of around 19% between 2016 and 2021).

With parole board practices so much in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We filed dozens of records requests and curated the best research to explore whether state parole boards are helping reduce mass incarceration or whether they are disregarding the hard-learned lessons of the pandemic, when they released even fewer people than before the crisis as people died behind prison walls.

The state of parole

In the 29 states¹ for which we collected 2022 parole approval data, only 8 had grant rates above 50% – Connecticut, Idaho, Massachusetts, Nevada, North Dakota, Utah, Vermont, and Wyoming. Wyoming had the highest grant rate of 78%. At the other end of justice’s sliding scale, Alabama (10%) and South Carolina (13%) have the lowest parole approval grant rates in the nation. And while we don’t yet have data from most states for 2023, South Carolina’s recently updated parole data show that the state’s parole approval rate has dropped to an astonishingly low 7% in 2023.

To see full information about parole grant rates by year in each state from 2019-2022, see the appendix.

With few exceptions, parole grant rates dropped significantly from 2019 to 2022

In the 27 states for which Prison Policy Initiative was able to track changes in parole approval rates from 2019-2022, only 6 — Connecticut (+29%), Georgia (+17%), Texas (+11%), Hawai’i (+8%), Massachusetts (+8%), South Dakota (+6%), and Nevada (+1%) — have seen any increase since 2019. In the remaining 20 states from which we received data, parole grant rates have seen either no change or have seen a marked decline, with South Carolina (-63%) and Alabama (-67%) seeing the biggest drop offs in grant rates.

But state parole boards did not only choose to release fewer people. They heard fewer cases as well. With the exceptions of Oklahoma, South Dakota, and Arkansas, parole boards continued to hear significantly fewer total cases in 2022 than they did in 2019. The result is that since 2019, the number of people released through discretionary parole has decreased across the board.

To see full information about the number of parole hearings by year in each state from 2019-2022, see the appendix.

Ironically, South Carolina’s Department of Probation, Parole, and Pardon Services’ website is quick to highlight the money the state has saved by reducing the number of parole revocations over the past decade. Of course, it would be difficult to have more revocations, given that they released 69% fewer people via discretionary parole in 2022 than they did in 2019. South Carolina is far from alone, however. Alaska has reduced the number of people released through discretionary parole by 79% since 2019; Alabama 70% and Maryland by 66%. In fact, with the exception of South Dakota, every state for which data was provided released fewer people through discretionary parole in 2022 than in 2019, with an average overall decline of around 41% fewer people released per state. South Dakota’s increase is also extremely modest – the state released just 62 more people in 2022 than in 2019.

To see full information about the number of people released on parole by year in each state from 2019-2022, see the appendix.

Why are parole boards releasing so few people?

Denial is often effectively the default disposition for parole boards, and the burden of proof is usually on the person who is incarcerated to justify their release. This is problematic, as the board often considers factors that are beyond the applicant’s control, such as the availability of programming or education in the prison, or factors that cannot be changed, such as the nature of the offense for which they were incarcerated. When release rests on these factors, there is very little a person can do to influence the outcome.

Another issue is the general outlook some politicians and parole board members have toward people who are up for parole. State Representative Matt Simpson defended Alabama’s abysmal grant rates, saying “We’ve gotten to a point where the people up for parole are the ones that don’t need to be out; it’s not like it used to be where we had a number of non-violent offenders.” While recent reports have cast doubt on this claim, it still begs the question: how can those with this viewpoint provide a fair hearing to those who come before them? There is nothing fair about a body that decides people’s fates before they ever appear. It’s important to note that the seriousness of an offense is taken into account when a judge first sets a prison sentence. When parole boards solely or exclusively make their release decisions based on the underlying charge, they are continually punishing incarcerated people for a factor they cannot change. Moreover, policies that provide relief only for those with non-violent offenses are simply not impactful enough to address the juggernaut of mass incarceration. And although parole boards are charged with looking at a person’s likelihood of rearrest, they often seem to ignore the fact that people sent to prison for violent charges have the lowest rearrest rate of any group.

Parole Boards are influenced by politics

In 2019, Mississippi had a grant rate of 74% — one of the highest rates in the nation. However, that same year, the parole board made the ethical but unpopular decision to parole a person who had been incarcerated for 30 years. That person had their death sentence commuted on the basis of intellectual disability but the board determined them not to be a threat to public safety. In the aftermath of this decision, Mississippi saw its grant rates freefall 42 percent by 2022. The political outrage at the decision led to increased scrutiny and political pressure which has undermined Mississippi’s presumptive parole system.²

Though parole boards are typically thought of as serving a judicial function (i.e., weighing evidence and rendering a judgment that results in freedom or continued incarceration), they are still bureaucratic bodies beholden to political good will. Parole board members are usually appointed by governors and confirmed by legislative hearings, which often makes their selection fundamentally political. More than a third of states with parole boards in the US mandate no qualifications to sit on the board, meaning no actual knowledge of law, prison, the judicial system, mental health, or even basic social dynamics are required to sit on boards that can prevent a person from ever again experiencing life outside prison walls.

Policy efforts to increase release rates are often stalled or undermined

Efforts to restore discretionary parole in Maine, Virginia, and Illinois led by groups like Parole4ME and Parole Illinois have come achingly close to success in recent years. Some states with discretionary parole have begun to implement presumptive parole in an effort to increase fairness and remove subjectivity and political pressure. While presumptive parole is a key strategy to reduce incarceration, in states that have implemented it, the efficacy of this policy is limited by carveouts — exceptions in policies that exclude certain categories of people from relief. Most states with some form of presumptive parole will not apply the presumption to people with certain offenses, those who have received recent disciplinary infractions, or those who haven’t completed relevant rehabilitative programming. As we noted, offense-based carveouts do not have a strong basis in policy, and programming-related carveouts are problematic because programming is neither universal nor guaranteed and can vary immensely from prison to prison.³ Reports have also shown that Black and Brown people who are incarcerated are more likely to receive disciplinary infractions than their white counterparts, meaning they are more likely to be denied presumptive parole based on this carveout.

Conclusion

Despite the dangers of incarceration in a post-pandemic world and the efforts of many to make the parole system more just, fewer people are receiving parole hearings, and fewer still are released through discretionary parole. In fact, discretionary parole accounted for only a small fraction of total releases from prison in 2021.

Expanding access to discretionary parole won’t by itself end mass incarceration; however, expanding its usage in conjunction with presumptive parole while eliminating undermining carveouts could be a powerful tool for decarceration. Hopefully, a review of parole in 2023 will see incarcerated people given a greater chance to be paroled.

Appendix tables

Discretionary Parole Grant Rates by state, 2019-2022

The aging prison population: Causes, costs, and consequences

New Census Bureau data show the U.S. population is getting older — and at the same time, our prison populations are aging even faster. In this briefing, we examine the inhumane, costly, and counterproductive practice of locking up older adults.

by Emily Widra, August 2, 2023

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.

Aging throughout the criminal legal system

Older adults¹ are increasingly ensnared in all parts of the criminal legal process: in arrests, pretrial detention, and imprisonment. In 2000, 3% of all adult arrests involved people aged 55 or older, and by 2021, this older population accounted for 8% of all adult arrests.² According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.³

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%.⁴ This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison.

The dangers of aging in prison

Prisons are unhealthy places for anyone of any age, but keeping older adults locked up is particularly dangerous. A robust body of research shows that incarceration itself accelerates aging: people face more chronic and life-threatening illnesses earlier than we would expect outside of prison, and physiological signs of aging occur in people younger than expected. In addition, a conservative estimate of more than 44,000 people 45 and older experience solitary confinement in state prisons each year, in conditions that shorten lives and can be detrimental to physical, mental, and emotional health. Years of limited resources, inaccessibility, and understaffing in prison healthcare have created a situation in which each year spent in prison takes two years off of an individual’s life expectancy. The same scarcity of prison healthcare resources that jeopardizes older people’s health is not just ineffective-it’s also exorbitantly expensive.

The high costs of incarcerating older people

State and federal governments spend increasingly more money on consistently inadequate healthcare for their growing populations of older adults. While most studies on the steep costs of incarcerating older people date back at least a decade, their findings are consistently dramatic. For example, in California prisons in the 1990s, the state spent three times as much money to incarcerate an older person than someone of any other age group. Considering the proportion of California’s prison population over the age of 50 has risen from about 4% in 1994 to 25% in 2019, and that prison healthcare spending per-person has ballooned in the intervening years, the cost of incarcerating older adults only appears to be growing. In 2013, the federal Bureau of Prisons (BOP) spent 19% of its total budget — or $881 million — to incarcerate older adults. That same year, the BOP reported this group was the “fastest growing segment of its inmate population” with a 25% increase over the course of a single year (as the rest of the population decreased by 1%).

As long as people are in prison, they should receive the care they need to be safe and healthy. But especially at the state and local level, every dollar spent in prisons is a dollar that could have expanded and improved community health services — and provided superior care. It doesn’t make much sense to spend so much money locking people up in places that are not only dangerous to their health, but more costly to care for them — especially when there is little public safety argument to justify doing so.

Low risk of re-arrest and re-incarceration for older adults

The older someone is, the less likely they are to be arrested following release from prison, according to the most recent government study of recidivism. In fact, people released at age 65 or older are the least likely of any age group to be re-arrested in the five years following release:

Decades of research reinforces these findings: formerly incarcerated older adults are among the least likely to be re-arrested, re-convicted, and reincarcerated.

Decades of “tough on crime” policies contributed to the aging prison population

The incarcerated prison population is getting older much more quickly than the general population because of policy choices throughout the criminal legal system.

Policing

Policing disproportionately targets populations that often include many older adults: unhoused people, people who use drugs or alcohol, and people with cognitive disabilities. Nationally, the unhoused population is growing older. From 2007 to 2014, the number of unhoused people over age 50 expanded by 20%, and in 2014, this age group accounted for more than 30% of people experiencing homelessness. Given that unhoused people are up to 11 times more likely to be arrested than housed people, the likelihood of arrest for older, unhoused people is undoubtedly growing over time. Drug-related arrests among people aged 50 and older nearly doubled from 2000 to 2018, indicating a dramatic increase in criminal legal system involvement.

The criminalization of mental illness among older adults is significant as well. One in nine people aged 65 and older have Alzheimer’s dementia (one of many kinds of dementia). The most recent national data available indicates that people with cognitive disabilities are overrepresented in jails and prisons: 31% of people in jails in 2012 and 24% of people in state prisons in 2016 reported a cognitive disability. As greater numbers of older adults with cognitive disabilities encounter police,⁵ older prison populations are likely to grow.

Sentencing

State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

• Increased sentence lengths and established mandatory minimums,⁶
• Mandated extremely long sentences for individuals convicted of three felony offenses (“three strikes” laws),⁷
• Required people to serve upwards of 85% of their sentence in prison (“truth in sentencing” laws) before becoming parole eligible,⁸
• Abolished parole,⁹
• Reduced the allowed time earned for good conduct,¹⁰ and
• Instituted other “tough on crime” sentencing laws.¹¹

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.

Tools to reduce the aging prison population remain underutilized

While attention to this crisis has grown in recent years, many of the available tools — such as parole and compassionate release — have been underutilized. The failure to release older adults from prison has deadly repercussions: from 2001 to 2018, over 30,500 people aged 55 or older died in prison and almost all of these deaths (97%) were due to illnesses.¹²

Parole

In a study of parole in Maryland, the Justice Policy Institute found that between 2017 and 2021, parole grant rates are highest for people between the ages of 31 and 35 (43%) with rates declining as age increases: people over 60 are paroled at a rate of 28%. Older adults serving long sentences are often denied parole, with boards focusing on the nature of their original offense instead of their preparedness for reentry.¹³ That being said, parole is not even an option for large swaths of the prison population. Almost half of all people serving life without parole (LWOP) sentences are at least 50 years old, and one in four is at least 60 years old. Even some “geriatric” or “elder” parole laws, intended to facilitate the release of older incarcerated people, needlessly exclude many older people who would otherwise be eligible; for example, the Justice Policy Institute points out that the Maryland law only applies to older people with multiple convictions.

Compassionate release

Compassionate release (often called medical parole) is an important release mechanism for older adults, but is not used nearly often enough. The application process is cumbersome and opaque, and many people die before they ever receive a decision.¹⁴ In addition, decisions about medical eligibility for release are often filtered through state parole boards, whose membership often includes former corrections officials, former parole or probation officers, and former prosecutors. These are not vocations particularly invested in release, much less promoting individual health and wellbeing outside of the carceral system. Parole boards’ lack of knowledge about serious and terminal illnesses, as well as the general aging process, can create significant barriers to release. Physician reluctance to offer a prognosis, parole board rejections of medical recommendations, offense carveouts,¹⁶ and barriers to discharge planning¹⁵ also factor into the underutilization of compassionate release. Some states (like Iowa) do not even have such a release program.

The result: Nursing homes behind bars

As a result of the disastrous failure to make use of existing release systems and increasing public pressure to address the aging prison population, prisons have adapted in very troubling ways. In Connecticut, Kentucky, Tennessee, and Wisconsin, departments of corrections have created “prison nursing homes” to keep people incarcerated even when they are far too sick or frail to represent any kind of public safety threat.¹⁷ The continued incarceration of people who would otherwise be receiving residential or long-term care reflects a troubling trend of prisons “gearing up to become nursing homes, but without the proper trained staff and adequate financial support.”

Reducing the aging prison population

If we hope to address this crisis, more work needs to be done to curb arrests of older people, to divert them to better community support, and to reduce their numbers behind bars. The decriminalization of homelessness and substance use — as well as expanded diversion services for older adults — can reduce their risk of arrest and detention. States can also send fewer people back to prison by eliminating parole revocations for technical offenses that reincarcerate people for actions that, were the individual not on parole, would not be crimes at all.

To reduce the number of already-incarcerated older adults, state and federal governments can make use of presumptive parole, second-look sentencing, and the retroactive application of sentence reduction reforms, as well as the many other mechanisms to shorten excessive prison sentences outlined in our 2018 report, Eight Keys to Mercy: How to shorten excessive prison sentences. All states should have compassionate release or medical parole available to release older adults and those facing chronic and terminal illnesses. States can also reduce existing barriers to compassionate release by eliminating exclusions based on offense type, relaxing eligibility criteria, and simplifying the application, review, and approval process.¹⁸ Elder parole policies that implement automatic parole consideration for older adults who have already served some portion of their sentence can further reduce the number of older people behind bars, simplifying the process of getting out of prison for some of the most medically vulnerable people.¹⁹

Finally, states and the federal government need to expand the social safety net to support older adults released from prison. There are numerous interventions to support reentry by reducing housing and employment barriers, encouraging access to healthcare and health insurance (including Medicare and Medicaid), and simplifying application and re-enrollment for Social Security benefits, as well as many more crucial supports outlined in this 2022 issue brief from Justice in Aging.

Conclusion

The crisis of our aging prison population is not an accident but the result of policy choices that hurt incarcerated people, their loved ones, families, and communities. Fortunately, we can address these policy missteps.

In order to provide older incarcerated people with adequate healthcare, end of life care, and dignity, we need to find ways to reduce their numbers in all parts of the carceral system. Existing tools — like compassionate release and parole — can help but are not enough to address this problem on their own. States should follow the lead of advocates who are fighting to reduce police encounters, end draconian sentencing like life without parole, and expand release mechanisms like elder parole. Reducing barriers to enrollment in Medicare, Medicaid, Social Security, and ensuring people have safe places to live in our communities can expand the safety net for older adults leaving prisons. Ultimately, the benefits of such changes will not be recognized only by older adults in the system but the broader population as well.

Breaking news from inside: How prisons suppress prison journalism

Building on data from the Prison Journalism Project, we find that most states enforce restrictions that make practicing journalism extremely difficult and sometimes risky.

by Brian Nam-Sonenstein, June 15, 2023

Last month, New York prison officials introduced a policy to effectively suppress prison journalism. It went unnoticed for a few weeks until reporters at New York Focus caught wind of it. A righteous backlash ensued, forcing the department to rescind the policy for the time being.

The incident left many people wondering: how common are restrictions on prison journalism? Building on data compiled by the Prison Journalism Project, we scoured handbooks, prison policies, and laws governing every corrections department in the U.S. to try and find out.

We found that while explicit bans on prison journalism are rare, a web of complex and vague policies make the practice extremely difficult and sometimes risky.

Chilling expression

Prisons don’t want you to know what happens inside. That’s what makes prison journalism so important. As more news outlets publish incarcerated journalists, more departments will consider policies to control what information makes it out into the world.

The Federal Bureau of Prisons is the only agency we found that explicitly forbids any incarcerated person from acting “as a reporter.” But they are not alone in suppressing prison journalism.

For starters, the standard prison practice of censoring and surveilling snail mail, electronic messages, phone calls, and video visits violates basic principles of free expression and privacy. These principles are central to a journalist’s ability to maintain sources, work closely with editors, and report the news without interference. Only 4 states — Arkansas, Georgia, Michigan, and Texas — treat correspondence with the news media as “privileged communication,” meaning that letters between an incarcerated person and a media outlet cannot be opened or read by prison staff (although they may be searched in the presence of the incarcerated person for contraband).

However, the other 46 states and the federal government maintain the right to read and censor communications with the media. These policies are broadly explained as important to maintaining “security and order” — a vague justification left to the discretion of prison officials.

Other aspects of prison life, such as an incarcerated person’s limited ability to maintain property¹, can also conflict with the practice of journalism. Papers, notes, books, and other materials that can be important to reporting are vulnerable to confiscation and destruction by prison officials during cell searches and transfers. Additionally, a lack of access to the internet and heavily restricted use of tablets and computers can make researching, writing, and editing much more difficult for journalists on the inside.

Prohibitions on business and compensation

Fourteen states prohibit imprisoned people from operating or engaging in a business, including being self employed, and from receiving compensation for their work. Even if an incarcerated person were to produce journalism for free, vague restrictions on ‘business activities’ are enough to threaten their work with media outlets.

Most incarcerated people are only allowed to work in jobs that support prison operations, prison-approved work release programs, or prison industries. But 19 states allow people to work with outside businesses and organizations if they receive approval from the prison. In some rare cases, they may receive compensation for written work³ or publish writing so long as it is not a regular column.⁴

Prison journalism is essential work

For as long as there have been prisons, the public has benefited greatly from the work of incarcerated journalists and sources. Much of what is known about incarceration comes from people who have been on the inside and have told their stories at great personal risk.

Incarcerated journalists still face discrimination and rejection from media outlets, but there are some signs of change. Over the last decade, a growing movement of incarcerated journalists — some working with organizations like the Prison Journalism Project and Empowerment Avenue, others with prison newspapers like the San Quentin News — have had their work published. This work is often used in countless investigations, lawsuits, policy reforms, and organizing efforts. This is great news for transparency, accountability, and change. Importantly, it also helps people build relationships and skill sets that can support them once they are released.

There are too many examples of excellent prison journalism to cite, but some examples include:

• “The Brutal Reality of Life in America’s Most Notorious Jail” by John J. Lennon in The Atlantic
• “At San Quentin, the Response to COVID-19 Brings More Isolation and Suffering to People with Mental Illness” by Juan Moreno Haines in Solitary Watch
• “What It’s Like to be Trapped in a Women’s Prison During a Pandemic” by Michele Scott in Elle Magazine
• “‘I don’t have the funds’: a diabetic prisoner pleaded for insulin supplies before his death” by Felix Sitthivong in The Guardian
• “As a Woman In a Men’s Prison, This Is the Transphobia I Face Daily” by Jessica Phoenix Sylvia and Christopher Blackwell in Them

Conclusion

New York’s anti-journalism policy is gone for now, but may return in a different form in the future. In response to media requests, the department said it will “engage [interested] stakeholders to revise the policy in order to encourage creative art projects, as originally intended.”

In the meantime, it must be said that the benefits of prison journalism are profound and the risks are few, and mostly confined to the system itself. Other states are likely watching what has unfolded in New York, and so a rigorous defense of prison journalism is required. Protecting and expanding prison journalism requires special considerations for incarcerated media workers. It also merits a critical examination of ordinary policies that shape prison life.

Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death. It’s also a potent reminder of the agency and desires of incarcerated people, which are so easily dismissed because they are often largely out of view.

New data on HIV in prisons during the COVID-19 pandemic underscore links between HIV and incarceration

The percent of people in prison with HIV barely budged despite the heightened risks of COVID-19 to immunocompromised individuals. We review the evidence connecting the parallel epidemics of HIV and incarceration, which disproportionately impact Black men in the South.

by Emily Widra, June 1, 2023

The rate of new HIV diagnoses in the U.S. has been steadily declining for decades, but people in prisons are still disproportionately living with the virus. New data from the Bureau of Justice Statistics (BJS) report HIV in Prisons, 2021 indicates that some state prison systems are completely out-of-step with the rest of the nation and have experienced an increase in HIV prevalence since 1991.¹ Some of this increase reflects vast improvements made in health care that allow people with HIV to live longer than in the early years of the epidemic. More concerningly, some of the increase appears to be tied to the mass incarceration of Black people and the oft-ignored epidemic of HIV among Black men in the South.

In addition to national and regional trends in HIV prevalence in prisons, and the twin epidemics of HIV and mass incarceration, this briefing highlights BJS data on prison testing policies and research on the criminalization of the virus in the U.S.

Figure 1.

Nationally, HIV rates in prison greatly outpace the general population

Overall, the percent of the U.S. prison population that is living with HIV steadily declined from the 1990s to 2016. At its peak in 1992, 2.5% of people in all state and federal prisons were HIV-positive.² By 2016, this had decreased to 1.2%.

New 2021 data from the Bureau of Justice Statistics shows that, while the overall number of imprisoned people with HIV has declined, the portion of the prison population living with the virus has not changed in the past five years. In fact, the recent 0.1% change in the percent of the overall prison population living with HIV is entirely attributable to a change in the percent of HIV-positive people in federal prisons, which decreased from 1% of the federal prison population in 2020 to 0.9% in 2021.

And while we see little change in the prevalence of HIV in prisons in recent years, the comparison to the general U.S. population is startling. The prevalence rate of HIV in the U.S. in 2019 was 380 per 100,000 people,³ while the total U.S. prison population faces a rate that is more than 3 times as high: 1,144 per 100,000 people in prison had HIV in 2021.

In some prisons, HIV prevalence rose as COVID-19 pandemic advanced

The Bureau of Justice Statistics reports that 2019 to 2020 represented the largest one-year decline in the number of people in prison with HIV (down 15%) since data collection began and explains that this was “largely as a result of the COVID-19 pandemic.” Readers might optimistically interpret this as evidence that prisons were rightly concerned about the heightened risk COVID-19 posed to immunocompromised people, such as those diagnosed with HIV. Unfortunately, when we take a closer look at the data, it’s hard to say whether that was the case.

Figure 2.

In fact, some states seemed either oblivious to – or, less generously, unbothered by – the additional risks that COVID-19 poses to people with HIV. In 12 states, the number of HIV-positive people in prison actually increased from 2019 to 2020, suggesting significant state-by-state variation during the pandemic. And as states ended COVID-19 emergency responses in 2021, these variations did not improve: From 2020 to 2021, 20 states and the federal Bureau of Prisons saw an increase in the number of imprisoned people with HIV. This suggests that any positive changes made in reducing the HIV-positive prison population during COVID-19 are set to return to pre-pandemic levels.

Nationally, the 15% decline in the number of HIV-positive people in prison amounts to just over 2,000 people. If every one of them were actually released from prison directly as a response to COVID-19, this would be worth noting as an accomplishment in mitigating the risk of deadly disease among immunocompromised people. However, this decrease was proportionally the same as the overall drop in the prison population that year, and the actual percent of the prison population living with HIV did not change in any significant way. Therefore, it seems unlikely that the drop in the HIV-positive prison population was the result of a targeted effort to protect the health of these individuals.

Black men are hit the hardest by HIV and incarceration

The Bureau of Justice Statistics has not provided data on the race of imprisoned people living with HIV since 2004.⁴ The last time it published this data nearly 20 years ago, BJS reported that, among the more than 15,400 people in state prisons that self-reported positive HIV test results, 53% were Black, 22% were white, and 19% were Hispanic or Latino. Until more recently, the Bureau’s HIV in Prisons series also included a breakdown of HIV-related deaths by race; in 2019, the mortality rate for HIV-related deaths among Black people in prison was three times the rate of HIV-related deaths of all people in prison (1 per 100,000).⁵

Figure 3.

Unfortunately, while there is little other data on the overlap between incarceration, race, and HIV, we do know that Black people are disproportionately affected by both mass incarceration and HIV. This is not a coincidence, as our 2017 briefing on the subject explains. Black people are vastly overrepresented in the U.S. prison population: in 2021, Black people were imprisoned at a rate of 1,186 per 100,000 adults, more than five times the rate of white adults and more than twice the overall adult imprisonment rate of the U.S.

Not only do Black people make up 33% of people in prison while only representing about 14% of the entire U.S. population, but they account for more than 40% of people living with diagnosed HIV. Black men in particular are hit the hardest by both imprisonment and HIV: they accounted for 31% of all people in prison in 2021 and 26% of all HIV-positive people in the U.S. in 2019.⁶

The racial disparities observed in prison HIV prevalence rates are mirrored in prison mortality rates.⁷ From 2016 to 2019, there were 114 deaths of people with HIV in prison (of any cause), and 74 of these deaths (65%) were of incarcerated Black people (see Figure 3). In 2019, 12 of the 17 deaths of people with HIV in prison (71%) were of non-Hispanic Black men, specifically. These racial disparities persist outside of prisons as well: 43% of people with AIDS⁸ who died (of any cause) in 2019 were Black.⁹

Regional differences: HIV prevalence in the South

In 2017, we summarized the limited existing research on the ways in which Black men face the parallel epidemics of HIV and mass incarceration, with a focus on the effect in Southern states. The HIV prevalence rate in the South¹⁰ is 379 per 100,000 residents, which is more than twice the rate in the Midwest and well above the national rate of 318 per 100,000.¹¹

This pattern appears to hold true in prisons as well: All seven states with the nation’s highest rates of HIV in prison are in the South: Florida, Mississippi, Louisiana, Maryland, Tennessee, Georgia, and South Carolina. In fact, all of the states with more than 2% of their prison population living with HIV are in the South: Florida (2.8%), Mississippi (2.5%), and Louisiana (2.5%). These Southern state prison systems also have some of the most significant racial disparities in the nation, supporting the correlation between HIV and the incarceration of Black people.

From 1991 to 2014, the New York state prison system was the prison system with the highest HIV prevalence rate in the country.¹² But starting in the mid-2000s, while Northern state prisons were seeing major decreases in HIV prevalence, Southern state prison systems witnessed the opposite. States like New York, Connecticut, and Massachusetts saw sizable drops of 12, 4, and 4 percentage points respectively in the last 30 years, while Louisiana, Tennessee, and Mississippi have seen steadily rising HIV prevalence in prisons.

Figure 4.

2015 was the last year that New York had the prison system with the largest portion of the population living with HIV. Since then, Louisiana (2016-2020) and Florida (2021) have had the highest in-prison HIV prevalence rates in the country: in 2021, 2.8% of people in Florida prisons had HIV.

HIV testing: Vast differences in prison policies

While most prison systems in the U.S. provide mandatory or “opt-out” HIV testing during admission,¹³ there are a few concerning gaps in testing policies across the country. Ten of the 50 reporting prison systems¹⁴ only offer tests if they are requested (“opt-in”) or based on a clinical medical evaluation. Only 18 states offer HIV testing during routine medical care for all imprisoned people, while all other states and the federal Bureau of Prisons only offer tests by-request during clinical visits for people the prison system has identified as vulnerable to HIV, or when someone is involved in “an incident.”¹⁵

Only one state – Texas – mandates HIV testing prior to release. Nine other states (accounting for a total of 20% of all 2021 prison releases) offer optional HIV testing to all people during their discharge planning process. Among the ten states with the highest HIV prevalence in prisons, nine of them offer HIV testing upon release; Mississippi – with the third highest rate of HIV – does not offer testing at all prior to release.

The criminalization of HIV across the U.S.

According to the Centers for Disease Control (CDC), 35 states have laws that criminalize HIV exposure and four more states have sentence enhancement laws for HIV or sexually transmitted infections (STIs). The criminalization of HIV refers to the existence and enforcement of criminal laws that rely on HIV status as the “foundation for criminalizing otherwise legal conduct” or for increasing punishments related to solicitation and sex offenses. The CDC classifies these types of laws in three categories:

1. HIV-specific laws that criminalize or control actions that can potentially expose another person to HIV. (21 states)
2. Sexually transmitted infection (STI), communicable, contagious, infectious disease laws that criminalize or control actions that can potentially expose another person to STIs/communicable/infectious disease. This might include HIV. (14 states)
3. Sentence enhancement laws specific to HIV, or STIs, that do not criminalize a behavior but increase the sentence length when a person with HIV commits certain crimes. (4 states)

Figure 5.

HIV disproportionately affects gay and bisexual men (and other men who have sex with men), Black and Hispanic people, and people who inject drugs. Similarly, people identifying as lesbian, gay, and bisexual, Black and Hispanic people, and people with substance use disorders are targeted for policing and overrepresented in the national prison population. We cannot draw conclusions about just how much effect HIV criminalization laws have on the number of people with HIV in prison, in part because HIV or STI-specific laws are not often considered the “most serious offense,” are often a “lesser offense” contributing to sentencing, and therefore are not denoted in most criminal legal system data. However, we know that many of the same people who are most vulnerable to HIV infection are also disproportionately affected by both HIV criminalization laws and mass incarceration.

HIV criminalization in the South: A closer look at Florida

In the South, the overlap between HIV prevalence in prisons, HIV criminalization, and incarceration is stark. Eleven of the 17 Southern states (as defined by the CDC) have HIV-specific criminalization laws on the books. An additional three states have enacted STI-specific laws. Florida presents a particularly egregious example of how these dynamics can coincide.

In 2021, Florida had the highest in-prison HIV rate with 1,800 HIV-positive people in prison (almost 3% of the state’s prison population). The state also has some of the most oppressive HIV-related criminal laws. The Williams Institute at UCLA has reported in-detail about specific statutes that criminalize HIV in Florida, including offenses that criminalize people living with HIV and other sexually transmitted diseases “in the contexts of sex work, donation of blood and other bodily products, and consensual sex without disclosure.” Florida also has sentence enhancements for “certain non-consensual sex offenses where the defendant has a previous positive HIV test.”

Importantly, all of these statutes are broad enough to criminalize conduct that cannot actually lead to transmission of the virus,¹⁶ resulting in charges and convictions based on HIV status alone.

From 1997 to 2020, at least 154 people were imprisoned in Florida for HIV-related offenses,¹⁷ including those listed above. While this may be a small percentage of the overall Florida prison population (which was the third largest state prison system in 2021), it’s important to note that these 154 people did not have a “more serious offense” other than their HIV-related offense, and that the enforcement of such laws disproportionately targets women, Black people, and people who engage in sex work:

• Gender. Women made up 27% of people living with HIV in Florida in 2018, but 51% of those with HIV-related prison sentences.
• Race. Black people made up 45% of people living with HIV in Florida in 2018, but 56% of people with prison sentences for HIV-related crimes.
• Sex work. Six-in-ten HIV-related convictions in Florida were connected to sex work.

In addition to the criminalization of already-vulnerable people living with HIV, the cost of incarceration associated with Florida’s HIV criminalization laws has been more than $15 million over the past 23 years.

Florida is not the only state that criminalizes HIV, as we discussed above. Other states with the highest rates of HIV in prison – Louisiana and Georgia – have HIV criminal laws on the books, too.

Conclusion

Though some states and the Bureau of Prisons have seen rising prevalence rates of HIV since the pandemic began, the portion of the overall prison population living with the virus has changed little since 2016. There are fewer people living with HIV in prison than there were in the early 2000s, but one-in-seven HIV-positive people still pass through the U.S. prison system each year. Thousands of people across the country who are facing chronic illness, and who require consistent medical care, are locked up in settings where health care is grossly inadequate. This is true not only for people with HIV but anyone with infectious, long-term, or chronic illnesses.

The fact that nearly three times as many imprisoned people are facing HIV compared to the general public creates a critical imperative for targeted public health interventions among these populations, including increased sexual health care and education in prisons, greater access to testing and treatment, and stronger post-release services that help people transition their care into the community. It also underscores the need to address the issue at the front-end of the system by ending the criminalization of people with HIV and addressing the targeted policing of populations that have been made particularly vulnerable to the virus.