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

Shadowy “civil commitment” facilities actually foster the traumatic and violent conditions that they are supposed to prevent.

by Emma Peyton Williams, May 18, 2023

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men,¹ who have been convicted of sex offenses in prison-like “civil commitment”² facilities beyond the terms of their criminal sentence. Around the turn of the millennium, 20 states,³ Washington D.C., and the federal government passed “Sexually Violent Persons”⁴ legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.” In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence. In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice. This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional. The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Two critiques of “civil commitment”

Some advocates call civil commitment facilities “shadow prisons,”⁵ in part because of how little news coverage they receive and how murky their practices are. In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization. But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.⁶ This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic.

Similarly, Rushville is not held to the same reporting requirements as DOC facilities, so gathering data about people’s movement in and out of the facility is only possible by filing an open records request. Reportedly, the Bureau of Justice Statistics will take steps to begin collecting data about indefinite post-sentence ‘civil’ confinements in June of 2023. Until that happens, it’s only possible to get aggregated counts of how many people are civilly committed — nothing like the individual-level information prison systems are expected to provide in the service of transparency and accountability. This is true across the U.S., as civil commitment facilities are housed under different agencies from state to state, which makes it exceedingly difficult to measure the full scope of these systems on a national level. As a result, estimates about how many people are currently civilly committed vary from 5,000 to over 10,000 people.⁷ Increased accountability and oversight must be chief among efforts to address this broken turn-of-the-millennium policy trend.

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.” Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime,⁸ or preventative detention for a theoretical future crime that has not occurred. Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts. The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.” But neither “risk assessment” nor “progress through treatment” are objective measures. In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

New data: A survey of individuals held in a “civil commitment” facility

A recent report from Illinois (which I co-authored) goes beyond the numbers and reports that for many, civil commitment seems like a life sentence. This 2022 report, based on a 2019 study of residents at Rushville Treatment and Detention Facility (one of Illinois’ two civil commitment facilities), exposed demographic disparities, discrimination and abuses inside, and flaws with the broader framework of civil commitment. Like the broader carceral system, civil commitment disproportionately impacts Black and Brown people. In particular, the Illinois report noted an overrepresentation of Black, Indigenous, and multiracial people at Rushville. This is in line with the findings of the Williams Institute’s 2020 report, which found that, on average, Black people were detained in civil commitment facilities at twice the rate of white people in the states studied.

Biased admission criteria lead to disproportionate consequences for select groups

Further, the overrepresentation of LGBTQ+ and disabled people in these facilities reflects obvious biases that are “baked into” the civil commitment decision-making process. Many states use risk assessment evaluations to assess whether or not one should be civilly committed. These actuarial tools use outcome data from previously incarcerated people and conclude that, because past studies found groups with specific characteristics more likely to re-offend, individuals that match those criteria must be continually confined. Risk assessment tools are generally problematic and frequently make incorrect predictions. Chicago attorney Daniel Coyne says that in sex offense cases, risk assessment tools are 58% accurate, or “not much better than a coin toss.”

Illinois and many other states use the Static-99/99R, which predicts individuals’ risk using data about groups that come from overwhelmingly unpublished studies. This risk assessment tool is notably homophobic, as it assigns a point (and thus, a higher risk value) to those who have a “same-sex victim.”⁹ The Williams Institute writes:

In addition to normalizing violence against women, this a priori assigns gay, bisexual, and MSM [men who have sex with men], who are more likely to have a male victim, a higher score, marking them as more dangerous than men who have female victims regardless of any other characteristics of the offense.

The evaluation also considers those who have never lived with a romantic partner to be at higher risk of reoffending, which means that LGBTQ+ people who may not be able to safely live with a partner in a homophobic area and young people who may not have had the opportunity to live with a partner yet would receive higher scores. Accordingly, representation of LGBTQ+ people in Rushville was drastically higher than in the general public:

Criteria for detention usually include diagnosis with a “mental abnormality,” in particular, a personality disorder or a “paraphilic” disorder that indicates “atypical sexual interests.” “Paraphilic” is a problematic category that relies heavily on scrutinizing and pathologizing human sexuality.¹⁰ Further, the act of civilly committing people to a “treatment” facility implies that there is a mental health issue or “nonnormative” sexual behavior to be treated and/or cured. This is especially alarming given that the American Psychiatric Association completely disavows the practice, saying, “Sexual predator commitment laws represent a serious assault on the integrity of psychiatry.”¹¹

Since having a “mental abnormality” is a criterion for admission, measuring the overrepresentation of disabled people in these facilities is challenging. By the logic of civil commitment, 100% of people inside have a psychiatric disability. In the Illinois report, 26% of Rushville respondents self-identified as having a disability, compared with 21% of the Illinois population. Low levels of educational attainment (i.e., having a high school degree or less) were also very high, at 48%. Anecdotally, survey respondents reported that many of their peers inside could not complete the survey because they were illiterate or had cognitive impairments that prevented them from reading and filling out a paper questionnaire, so disabled respondents’ voices are likely underrepresented.

Indefinite and punitive detention with no evidence of efficacy

Agencies that control civil commitment often insist that civil commitment is treatment, not prison. Texas Civil Commitment Center staff even went so far as to instruct detainees “to call their living quarters ‘rooms,’ not prison cells.” But advocates question whether or not civil commitment can be considered therapeutic. Can forced confinement inside facilities with high rates of violence, controlled by staff who use the same punitive measures that are common inside prisons, ever be healing?

Two-thirds of respondents inside Rushville in Illinois report that they have been sent to solitary confinement, a (potentially permanently) psychologically damaging practice. Rushville, like other civil commitment facilities across the U.S., also uses archaic treatment and evaluation technologies, including the penile plethysmograph, a “device [that] is attached to the individual’s penis while they are shown sexually suggestive content. The device measures blood flow to the area, which is considered an indicator of arousal.” Rushville detainees are subjected to chemical castration, or hormone injections that inhibit erection and have been linked to long-term health impacts. Further, their progress through treatment is measured using a variety of highly questionable evaluation tools, including polygraph lie detector test results which have been inadmissible in Illinois courts since 1981. The technologies that these facilities rely on look a lot more like medieval torture devices than the supposed “therapeutic tools” that they claim to utilize.

Even if we buy into the myth that civil commitment facilities provide the treatment they claim to offer, there is minimal evidence that this supposed treatment works, and moving through treatment tiers is difficult, if not impossible. Even staff inside report that they receive pushback when trying to advance people toward release. One review from a past employee of Rushville’s contracted mental health care service, Liberty Healthcare Corporation, reported, “The hardest part of the job is fighting for residents who should be on conditional release and dealing with the outcome when refusing to act in unethical ways.” Progress through treatment is dependent on a regularly fluctuating staff, often made up of graduate students who are finishing their residencies and then moving on to another facility. Residents inside report being demoted to earlier tiers of treatment by new residents who disagreed with previous staff members’ assertions.

With little transparency about or consistent standards regarding how to progress through treatment, many people inside say that civil commitment feels like a de facto life sentence. At Rushville, the average length of detention was 9.5 years and counting. According to a 2020 FOIA response from the Illinois Department of Human Services, more than twice as many people had died inside than had ever been released. Similar circumstances have been reported from Texas, where only five men were released in the facility’s first two and a half years of operation, four of whom were sent to medical facilities where they died shortly thereafter. A 2020 article about Rushville included the following findings:

Slightly more than half of the total population [has] been held for 10 years or more. Fifty-one people in Rushville have been held in civil commitment for 20 years or more, and 12 have been in civil commitment for 22 or more years, meaning they’ve been in civil commitment since the statute was implemented in 1998.

People inside reinforce these findings. One Illinois survey respondent reported, “This is a life sentence after the completion of a criminal sentence. We are treated worse [than] prisoners. This is a sentence of death by incarceration. Not a revolving door program.” Indefinite sentences that are contingent on progress through treatment that feels unhelpful and opaque contribute to distress inside. This distress can result in violence and a hateful culture, between detainees and from staff to detainees. Three-quarters of detainees report being discriminated against by staff, and one-quarter report being physically harmed by staff. 8% of detainees said they were sexually harmed by staff. Anecdotally, respondents shared a number of stories about experiencing physical or sexual harm from other residents. Though civil commitment facilities are tasked with “treating” sexual violence, they actually create physical environments that foster sexual, physical, and emotional violence.

Conclusions

Civil commitment facilities are not only legally and ethically dubious, they also fail to deliver on the very objectives that justified their creation. Even still, the trend toward preventative and “therapeutic” forms of detention that are fueled by biased and error-filled algorithms and risk assessment tools is growing. As one reporter from Texas notes:

Critics of private prisons see in the Texas Civil Commitment Center the disturbing new evolution of an industry. As state and federal inmate populations have leveled off, private prison spinoffs and acquisitions in recent years have led to what watchdogs call a growing “treatment industrial complex,” a move by for-profit prison contractors to take over publicly funded facilities that lie somewhere at the intersection of incarceration and therapy.

In an era where lawmakers frequently champion “evidence-based” punishment, the public must remain vigilant in questioning whether these practices actually accomplish their supposed goals. Do they reduce the mass incarceration of hyper-policed communities? Do they minimize the ongoing harms of the criminal legal system? Do they reduce the number of people entering prisons or increase the number of people exiting them? In the case of civil commitment, the answer to all of these questions is no.

Though under-resourced, the movement to address harmful civil commitment policies is longstanding. A variety of advocates¹² are leading campaigns to address ineffective sex offense policies across the U.S. (including the sex offender registry system). Other organizations support ongoing litigation campaigns like the one that was considered by the U.S. Supreme Court in Minnesota. Advocates inside and outside agree that civil commitment facilities fail to deliver meaningful safety and healing.

It’s time for policymakers to close these facilities that leverage pseudoscience to keep people under state control. Instead, we must invest in initiatives that actually prevent child abuse and sexual violence, including measures advancing economic justice, accessible non-carceral mental healthcare, comprehensive sex education, and consensual, community-based restorative and transformative justice initiatives.

Mortality, health, and poverty: the unmet needs of people on probation and parole

Unique survey data reveal that people under community supervision have high rates of substance use and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality.

by Emily Widra and Alexi Jones, April 3, 2023

Research shows that people on probation and parole have high mortality rates: two and three times higher than the public at large.¹ That certainly suggests that our community supervision systems are failing at their most important — and basic — function: ensuring people on probation and parole succeed in the community.

With a similar approach to our recent series regarding the needs of people incarcerated in state prisons, we did a deep dive into the extensive National Survey on Drug Use and Health (NSDUH). The results of this survey, administered by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), provide key insights into these specific — and often unmet — needs faced by people under community supervision. Because this survey asks respondents if they were on probation or parole in the past 12 months, this dataset comes closer than any other source ³ to offering a recent, descriptive, nationally representative picture of the population on probation and parole.²

The data that we uncovered — and the analyses of this same dataset by other researchers discussed throughout — reveal that people under community supervision have high rates of substance use⁴ and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality. Moreover, the data show that people on probation and parole experience high rates of chronic health conditions and disability, are extremely economically marginalized, and have family obligations that can interfere with the burdensome — often unnecessary — conditions of probation and parole.

Substance use and mental health

Three in 10 people under community supervision have substance use disorders, four times the rate of substance use disorders in the general population. Similarly, 1 in 5 people under community supervision has a mental health disorder, twice the rate of the general population.

In addition, NSDUH data illustrate that most people on probation and parole do not have adequate access to healthcare, implying that probation and parole offices are failing to match people with the services they need to succeed in the community. Nearly one-third of people on probation and parole with a mental health disorder report an unmet need for mental health treatment. Over two-thirds of people with substance use disorders report needing treatment, but not receiving it. Similarly, only about one-third of people on community supervision with opioid use disorder report receiving medication-assisted treatment (MAT), the “gold standard” of care.

Finally, many people on probation and parole have no health insurance, even though many people on probation and parole have incomes low enough to qualify them for Medicaid.⁶ 25% of people on probation and 27% of people on parole were uninsured at the time of this survey. This lack of treatment access reported by people under community supervision represents a massive failure of probation and parole offices.

Physical health and well-being

Criminal legal system involvement is concentrated among people who are socioeconomically disadvantaged and these same populations are at an elevated risk for a number of negative health outcomes. Public health researchers Winkelman, Phelps, Mitchell, Jennings, & Shlafer (2020) analyzed the same NSDUH data (but from 2015-2016) and found that people under community supervision are more likely to report fair or poor health, more chronic conditions, a diagnosis of COPD, hepatitis B or C, or kidney disease than people in the general population.

Probation vs. ParoleWhat’s the difference?

The community supervision population also has higher rates of disabilities, with particularly high rates of cognitive disabilities.⁷ Such disabilities can interfere with individuals’ ability to keep track of the 18 to 20 requirements a day people on probation must typically comply with. The particularly high rates of all types of disabilities among people on probation and parole also reflects the larger pattern of criminalizing people with disabilities.

Economic disadvantage, education, and children

The NSDUH data also indicate that people on probation and parole are extremely economically marginalized, which can interfere with probation and parole conditions. 3 out of 5 people on probation have incomes below $20,000 per year, with women and Black people having among the lowest incomes. More than half have a high school education or less. And people on probation and parole are three times more likely to be unemployed than the general population. Yet, as we have discussed before, people on probation and parole are required to pay unaffordable fees and costs associated with their supervision conditions (such as drug testing or ignition interlock devices), even though many are living well below the poverty line.

Finally, the data reveal that many people — and more than half of women — on probation and parole have children. Yet, probation and parole requirements almost never consider childcare or eldercare responsibilities when setting supervision conditions, even as some states require courts to consider a defendant’s caretaker status when considering a sentence to incarceration.

Conclusions

Probation and parole systems are failing to link people to the healthcare they need, despite all the evidence showing disproportionate rates of serious illness and death within supervised populations. These “alternatives” to incarceration, ostensibly created to help people address the problems that led to their conviction in a community setting, also set people up to fail with burdensome, often unnecessary requirements that show little regard for people’s individual circumstances, including low incomes and childcare obligations. The clearest example of these counterproductive conditions is the requirement to abstain from drugs or alcohol; given that so many supervised people with substance use disorders do not receive treatment, what hope do they have of staying out of jail when a positive drug test may constitute a “violation”? Probation and parole systems can’t be seen as true “alternatives” until they are overhauled to support people’s medical and personal needs instead of simply monitoring and punishing their mistakes. Until then, state and local governments should double down on their investments in diversion programs that are proven to connect people with care — and, to that same end, keep people out of courts and jail as much as possible.

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

Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue.

by Emma Peyton Williams, February 27, 2023

Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.

Incarcerated women have been one of the fastest-growing prison populations in recent decades, and incarcerated mothers are five times as likely to have their children placed in foster care and are more likely to have their parental rights terminated due to incarceration than fathers. These trends suggest that the number of kids separated from their primary caregivers by incarceration may be growing, increasing the urgency of an already serious problem.

Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights, but advocates are fighting for creative and holistic solutions.

As a result of tireless advocacy, often led by formerly incarcerated women, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)

Caregiver mitigation and diversion laws: The best existing reform targeting family separation

Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,¹ Louisiana, Oregon,² Tennessee, Washington, and Missouri, ^{3 4} caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill proposed in Tennessee.)

It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.

Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)

Even when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway,⁵ and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.

Proximity laws: A promising reform facing major implementation challenges

While the best scenario is for children and parents to remain in the home together, continued family contact can mitigate harmful impacts when a parent is incarcerated. Between 2007 and 2020, Florida, Hawaii, New Jersey, New York, and the federal prison system created a maximum distance allowed between parent and child. Ideally, this decreased distance will make in-person visits more accessible, which can lead not only to benefits for the child but improvements in the incarcerated parent’s mental health and a reduced risk of recidivism.⁶

Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”⁷ Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.⁸ Further, many states only have one women’s prison that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.

Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”⁹ such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.

Considerations for successful policy and advocacy efforts

A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.

Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:

• State-specific reports and fact sheets supporting the successful legislative advocacy of Free Hearts in Tennessee, Operation Restoration in Louisiana, and Families for Justice as Healing, from Human Impact Partners
• Lessons learned from Minnesota advocates in their campaign to pass the Justice for Incarcerated Moms Act
• Model legislation: the original draft of the Tennessee legislation, shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and a 2018 Louisiana bill drafted by Operation Restoration, which would have also allowed courts to vacate the judgment of conviction with successful completion of the program, and would broaden eligibility to include caretakers of people with mental or physical disabilities of any age who cannot take care of themselves.¹³

Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.

How your local public housing authority can reduce barriers for people with criminal records

Millions of people with criminal records likely meet the income eligibility requirements for public housing assistance. But needlessly strict local policies lock them out of housing. We explain how your public housing authority may be overly exclusionary.

by Selena Muñoz-Jones and Emily Widra, February 15, 2023

Housing is a human right: the right to adequate housing is recognized by international law, including the Universal Declaration of Human Rights. But we know that in the U.S., hundreds of thousands of people face homelessness, and there are particularly high rates of homelessness and housing insecurity among formerly incarcerated people across the country. Our previous research found that people who have been to prison just once experience homelessness at a rate nearly 7 times higher than the general public. But people incarcerated more than once have rates 13 times higher than the general public. Inevitably, part of the problem is that public housing policies — which should be a part of a crucial safety net against housing insecurity — actually discriminate against people with criminal legal involvement and criminal records.

For more information on housing and homelessness among the formerly incarcerated, see our report, Nowhere to Go: Homelessness among formerly incarcerated people.

Part I of this briefing delves deep into the policies of the U.S. Department of Housing and Urban Development (HUD) that give local public housing authorities (PHAs) overly broad discretion to deny housing to people with criminal records. We review how PHAs wield this discretion to deny people housing in more ways than required by federal law. Part II of this briefing is a guide to critically reviewing public housing policies to help you identify the criteria your local PHA has chosen to use to exclude people with criminal records and to help you evaluate whether those criteria are necessary or potential targets for local-level reforms.

Part I: An introduction to local public housing authorities’ exclusion of people with criminal histories

We know that access to safe, stable, and affordable housing is crucial for health and well-being, and for formerly incarcerated people, housing is also crucial for successful reentry. The transition from prison to the community is rife with challenges. But before formerly incarcerated people can begin to address health problems, find stable jobs, or learn new skills, they need a place to live.

Across the country, there is a shortage of affordable housing which gives landlords the option of denying housing to people with criminal records (most conduct criminal background checks on prospective renters), leaving public housing, Section 8 vouchers, and other assisted housing as their only choices. But even public housing sets up barriers for people with any involvement with the criminal legal system. At least 79 million Americans have a criminal record¹ and more than a quarter of formerly incarcerated people are unemployed, meaning that millions of people with criminal histories likely meet the income eligibility requirements for public housing assistance:

While the available data do not allow us to determine exactly how many people would qualify for public housing if not for their prior criminal legal system contact, based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people. The criminal legal system disproportionately targets people of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies.

Introduction to public housing authorities

There are over 3,000 public housing authorities (PHAs) granting access to the more than 970,000 public housing units for low-income families and individuals across the country. PHAs are local agencies that determine public housing eligibility based on general guidelines published by the federal Department of Housing and Urban Development (HUD).

In 1968, the Fair Housing Act expanded the Civil Rights Act of 1964, prohibiting discrimination in housing transactions (renting, buying, and selling) on the basis of race, religion, sex, national origin, family status, and disability. Importantly, the 1968 Fair Housing Act — nor any subsequent revision — has not considered criminal history status as a protected class, meaning that housing policies can legally discriminate based on criminal legal system involvement.²

However, in 2016, HUD issued a memo to PHAs clarifying that while having a criminal record is not a protected status, criminal records alone do not justify an automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination. Even without identifying people with criminal histories as a protected class, this memo should have created a pathway to hold PHAs responsible for denials of housing with discriminatory intent or effects as violations of the Fair Housing Act. But although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement, as we explain below.

Doubling down on its 2016 guidance, in June 2022, HUD published the most recent changes to federal public housing policies. These guidelines advocated for PHAs to make their 2023 public housing policies³ as inclusive as possible for people with histories of criminal legal system involvement. It remains to be seen how PHAs will — or will not — incorporate this directive, as there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.

Denial of public housing assistance for people with criminal histories

HUD establishes two types of denials — mandatory and permissive — that local authorities use in making decisions about housing for people with criminal histories. The language in both sections leaves far too much room for discriminatory decision-making by local public housing authorities (PHAs).

Mandatory prohibitions

First, there are automatic reasons for which local PHAs must issue denials, as decreed by HUD (“mandatory prohibitions”) (24 CFR §982.553):

• The PHA determines that any household member is “currently engaging in illegal use of a drug;”
• The PHA determines that it has reasonable cause to believe that a household member’s “illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents;”
• Any household member has ever been convicted of “drug-related criminal activity for manufacture or production of methamphetamine” on the premises of federally assisted housing;
• A household member has been evicted from federally assisted housing for “drug-related criminal activity” in the past three years; or
• Any member of the household is subject to a lifetime registration requirement under “a State sex offender registration program.”

As you can see, throughout these reasons for mandatory denials, there is still significant room for discretion at the local level. For example, there is no definition of what “currently” means and each PHA has the authority to define this timeframe however they want: for example, “currently” could be defined as within the last week, the last six months, or within the last year.

Permissive prohibitions

The second kind of denial issued for people with criminal histories is not federally required, but instead, the PHA elects to expand the criteria for denial. These “permissive prohibitions” often build on the above federal requirements to make public housing access even more restrictive. PHAs “may prohibit admission” if the PHA determines that any household member “is currently engaged in, or has engaged in during a reasonable time before the admission” the following behaviors (24 CFR §982.553):

• “Drug-related criminal activity;”
• “Violent criminal activity;”
• “Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;” or,
• “Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).”

Ultimately, the federal government offers PHAs freedom in determining how to define all of the terms used above, including “currently,” “reasonable time,” “threaten,” and “peaceful enjoyment,” essentially granting PHAs vast autonomy over denials of public housing assistance for virtually any criminal history they choose.

Addressing your local PHA policies

Local PHAs can — and do — exercise a great deal of discretion when crafting and implementing their policies that determine who is and isn’t eligible for low-income public housing. While HUD provides guidelines on criteria for access and denial (24 CFR §982.553), individual PHAs often make their policies even more restrictive than the HUD recommendations. In fact, almost all PHAs use permissive prohibitions to make their policies more restrictive.

Not all public housing policies are created equal, and we encourage you to investigate your local policies. To that end, because these policies often use the same general template, we have looked at general trends across these policies to outline key areas for local advocates to take a closer look at. In Part II below, we offer a guide for analyzing of public housing policies. If you find your local public housing authority is needlessly discriminating against people with criminal histories, we encourage you to advocate for changes to the policies for the coming year. These documents are public and are often updated annually with public comment periods (often in the first few months of the calendar year). This is an opportune time to view the documents, provide necessary feedback, and advocate for fair and just housing policies in your community before they are submitted for approval and implemented.

Part II: How to critically review your local public housing authority policy’s exclusions for people with criminal histories

Local public housing authority policies often limit or completely deny public housing assistance to people with criminal histories. Some of the reasons for exclusion are mandatory and determined by the federal Department of Housing and Urban Development (HUD) (see Part I for more information on these mandatory prohibitions). But most public housing authority policies are even more exclusionary than the federal regulations require, needlessly denying housing assistance to those likely to need it most.⁴

It’s not always clear how or why people with criminal histories are denied public housing assistance, nor which rules could be changed through advocacy efforts. We put together this guide to help local advocates and decision-makers identify questions to consider when looking for ways to make local public housing policies more inclusive and housing more accessible to residents with criminal histories.

Here are 5 major questions to look at in your local policy:

• What actions and behaviors that exclude people from public housing?⤵
• How does the PHA define “current” and “currently”?⤵
• What evidence does the PHA uses to identify prohibited actions and behaviors?⤵
• How does the PHA denial process work?⤵
• Who are the decision makers?⤵

What kinds of actions and behaviors exclude people from public housing assistance?

There are five federally required “mandatory prohibitions”, or behaviors for which PHAs are required by HUD to deny public housing assistance. But there are far more “permissive prohibitions” — i.e., behaviors for which PHAs can choose to deny assistance regardless of federal guidelines — and we find that PHAs exercise significant discretion to make these policies more exclusive than necessary:

1. “Drug-related criminal activity.” HUD defines “drug-related criminal activity” as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug” (24 CFR §5.100). Federal regulations require denial of assistance if there is “current” engagement “in the illegal use of a drug” or “a pattern of illegal drug use [that] may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents” (24 CFR §982.553). However, federal regulations do not require PHAs to look for any history of “drug-related criminal activity” nor does HUD require PHAs to deny assistance to people with such a history.
   
   Importantly, throughout all public housing authority policies, “illegal drugs” refers to federally illegal drugs, including marijuana (the medical use of cannabis has been legalized in 37 states and D.C., and the recreational adult use of cannabis has been legalized in 21 states and D.C.). So, for example, while someone has not participated in the “illegal use of a drug” by using marijuana in the state of Colorado (where it is legalized), for the purposes of public housing assistance, a Colorado PHA can and will consider this “drug-related criminal activity” to deny assistance. At a minimum, PHA policies should be written to be in line with state law, specifying exceptions for drug-related activities in states where those drugs have been decriminalized. A more comprehensive step would be to pass H.R. 3212,⁵ a bill introduced in the House to resolve this discrepancy between state and federal marijuana laws in public housing assistance.
2. “Violent criminal activity.” HUD defines this as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage” (24 CFR §5.100). Federal regulations do not require PHAs to look for any history of “violent criminal activity” nor does HUD require PHAs to deny assistance to people with this history.
   
   While HUD provides this loose definition of “violent criminal activity,” it does not actually specify which criminal offenses may or may not be included, allowing the PHA freedom, again, to decide what behaviors can be considered “violent criminal activity.” This matters because what constitutes a “violent crime” varies between jurisdictions,⁶ and HUD’s provided definition does not even try to clarify what offenses are encompassed by this vague definition. In some states, entering a dwelling that you do not own is a burglary, a “violent” offense.⁷ Similarly, several states consider “purse snatching” and theft of drugs to be “violent” offenses. The reality is that while these offenses may momentarily shock or scare someone, they are hardly indicative of a long-term pattern of “violence” towards people, and certainly not indicative of an inability to safely live in publicly assisted housing, but PHAs are still able to consider them when denying someone housing.
   PHAs currently denying housing on the basis of “violent criminal activity” in an applicant’s past should reconsider. People convicted of violent offenses have among the lowest rates of recidivism, illustrating again that people who have committed a violent act are not inherently violent people and can succeed in the community. People convicted of violent offenses are less likely to be re-arrested in the years after release than those convicted of property, drug, or public order offenses.⁸ An act of violence represents a single moment in someone’s life, and shouldn’t be the only factor that determines their access to housing.
3. Other, unspecified “criminal activity.” HUD permits — but does not require — PHAs to deny public housing assistance if the PHA determines that a household member is engaged in “criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity” (24 CFR §982.553).
   
   HUD provides this purposefully vague language, allowing PHAs to determine what behaviors they consider to “threaten the health, safety, or right to peaceful enjoyment.” Without any definition of what a threat to “the right to peaceful enjoyment of the premises” refers to, PHAs are free to discriminate against people who participate in almost any “criminal activity,” no matter how innocuous.

What does it mean that the PHA is evaluating “current” actions and behaviors?

Some “lookback periods” (that is, the timeframe in which behaviors are evaluated in determining eligibility for public housing assistance) are mandated by HUD (see sidebar). But there are also lookback periods that the PHAs are able to determine on their own, with no minimum or maximum guidelines from HUD. When evaluating “current” behaviors, PHAs have the ability to define what “current” means. While to most people, “current” means “right now,” PHAs define “current” in a number of different ways:

• For example, some PHA policies define “currently engaged in the use of illegal drugs” to include “any use of illegal drugs in the previous six months,” or any other period of time they choose.
• Similarly, “any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol” can mean almost any range of time chosen by the PHA.
• Some PHAs do not even try to define “currently” or “current” in their policies, shifting this significant amount of discretion to individual decision-makers within the PHA, leaving room for inequitable decisions even within the same agency.

Lengthy lookback periods are a serious problem because they cast such a wide net. Looking at drug convictions alone, almost 400,000 people are currently incarcerated for a drug offense, and law enforcement make over 1 million drug possession arrests each year (many of which lead to convictions). The number of people excluded by lengthy lookback periods for “current” or “patterns of” drug use when they apply for public housing is staggering, given these statistics. Stable, safe, and affordable housing is crucial to reducing recidivism for all types of offenses, including drug offenses. To enhance public safety, PHAs should be expanding access to housing for people with criminal histories, not limiting it.

Given what we know about substance use, harm reduction, and the importance of housing in recovery,⁹ HUD should consider removing drug use as a criterion for denial. Until then, local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for “current drug use.” Some PHAs rightly have policies in place to overlook possible drug use in the lookback periods if a person has completed a drug rehabilitation program. Another possibility is for PHAs to create a process of (1) informing applicants who are denied housing for this reason of the PHA’s policies regarding drug use, (2) connecting them with community resources for treatment or supportive housing, if desired, and (3) encouraging them to reapply for public housing assistance after participating in a drug rehabilitation program.

What evidence is the PHA using to identify prohibited actions and behaviors?

Federal guidelines grant PHAs significant discretionary power in determining an individual’s participation in “criminal activity” (whether “current” or within a specific lookback period). PHAs can — and do — use the following “evidence of criminal activity” to determine eligibility for public housing assistance:

• Arrests. PHAs cannot use arrest history alone to deny public housing, but they can use a known arrest as a trigger to look for more “evidence of criminal activity” or to be used in conjunction with other “evidence of criminal activity,” like convictions.
  
  Arrests can’t be used as the sole “evidence of criminal activity” because they are not reliable indicators of actual criminal behavior, as evidenced by the large number of criminal cases that are dismissed or otherwise result in non-conviction. For example, Measures for Justice found case dismissal rates (the percentage of cases filed in court that were dismissed) ranging from 14% (in Pennsylvania) to 46% (in North Carolina) in the 16 states for which they had access to the data. And even before cases are filed in court, many cases referred by law enforcement are rejected by prosecutors; Measures for Justice found that prosecutors rejected 20% of all cases in Missouri, and 22% in Florida (the two states for which they had these data).¹⁰
• Convictions. PHAs can deny public housing assistance based on conviction records. Many PHA policies will state something indicating that a “conviction is more heavily weighted than an arrest,” but it’s important to note that arrests without convictions can — but shouldn’t — still be used in conjunction with a historic conviction to deny public housing.
• Evictions. A history of eviction is not an indicator of “criminal activity,” but a PHA can use an eviction history “related to the use of illegal drugs or the abuse of alcohol” as a reason to deny public housing assistance. And that creates a loophole to the “arrests aren’t evidence enough” rule: Considering that the federal regulation disallowing the use of arrests alone to deny housing is relatively recent (dating back to the 2016 HUD memo), people who were evicted following an arrest prior to the rule change could still be barred from public housing today because of the past arrest and subsequent eviction (regardless of conviction).
  
  In addition, evictions are used to determine whether a household can meet the financial obligations of public housing. But by definition, people applying to public housing are doing so because they have difficulty meeting current financial obligations for housing, so policies that use prior evictions to determine eligibility for housing support are particularly nonsensical.¹¹

What happens when someone is denied public housing assistance?

When a PHA denies housing assistance for a reason other than “mandatory prohibitions”, the individual or family can petition for an informal review process. However, HUD offers a long list of reasons that the PHA does not have to grant an informal review, including “discretionary administrative determinations by the PHA,” which could include almost any reason for the PHA to deny assistance (24 CFR §982.554). Additionally, if an informal hearing is required to determine if the reasons for denial “are in accordance with the law” (24 CFR §982.555), individual PHAs create the parameters of the hearing, including how quickly a family needs to request a review or hearing and instances where the denial automatically stands if the individual or family is late to the hearing. For instance, we’ve found PHA policies that state denials will stand automatically if someone is more than 15 minutes late to the hearing.

The review and hearing process is often impossible for people with criminal histories and low incomes. People with low incomes are less likely to have reliable transportation or child care, and sometimes criminal legal system involvement itself can interfere with daily life in ways that can be disqualifying.¹² For example, people on probation and parole are often required to submit to random, unannounced home or work visits, which could interfere with timely arrival at scheduled hearings.

A standardized, best practice outlined by HUD would offer consistency and clarity to the review and hearing process. Instead of permitting individual PHAs to determine what “discretionary administrative determinations” do not require an informal review, HUD should outline exactly what determinations are not subject to external oversight. Similarly, while certain timelines may inevitably vary between localities based on their infrastructure, it is important for HUD to restrict situations in which denials automatically stand despite the PHA agreeing to an informal review. People with criminal histories should not be forced to jump through countless extra hoops to have the PHA’s decisions reviewed. Again, housing policies should be working towards expanding housing access, not restricting it.

Who makes the decisions?

The decision-makers that determine who gets access to public housing assistance vary by locality, but are almost never specified in the policies. Often, these policies state that “the PHA decides to offer or deny assistance,” which provides no information about who, exactly, is making these critical decisions. While every PHA has a director — and we can assume most decisions go through them — there are often cases where a city or county board of commissioners can be heavily involved in the decision-making process.

Because of the variance — and often the obscurity — of who the decision-makers are, we encourage advocates to reach out to their local PHAs for clarity and to advocate for adding this information to the public housing policy.

Recommendations

The discretionary power of PHAs resides in the ability of these systems to work without much public investment and oversight. Wherever possible, we encourage advocates to participate in public comment periods when these policies are drafted annually and let the PHAs know that you are invested in expanding housing access for all.

While local advocacy efforts can’t change HUD’s mandatory reasons for denial, which of course, should be changed, local advocates can make important changes in how their local PHAs set, interpret, define, and measure criteria for denial:

1. Invest in expanding affordable housing and public housing. Currently, every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability. A 2022 Human Rights Watch report finds that “policy decisions taken by the U.S. federal government have resulted in a housing assistance system that fails to ensure the human right to housing,” in part due to serious reductions in federal funding of public housing. The report proposes two practical recommendations: the federal government should increase funding for affordable housing, expand funding for public housing, and review other housing assistance programs to ensure they are adequately serving the lowest-income families, and state and local governments should allocate more financial support for public housing to maintain safe, affordable low-income housing regardless of federal funding.
2. Eliminate additional reasons for denial beyond those required by HUD. All of the “permissive” denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.
3. Remove local discretion to “look back” into criminal history further than HUD requires. There are two ways to implement this reform:
   • Require PHAs to provide evidence-based justification for lookback periods beyond the few minimums set by HUD. HUD could require PHAs to provide their reasoning and justification for lookback periods that go beyond the HUD requirements. We would encourage HUD to oversee these justifications and only allow those based in fact, rather than in stereotypes of people with criminal legal system contact.
   • A HUD mandated standard lookback period. A mandatory lookback period that is as short as possible — without permitting the PHA to extend the lookback period — would eliminate much of the discretionary, subjective power the PHAs hold over people looking for safe and affordable housing. HUD should provide reasoning and justification for whatever lookback period it imposes.
4. To reduce opportunities for mistakes or discrimination, require PHAs to always issue crystal clear explanations as to why they denied housing. At a minimum, PHAs should provide clear standards for denial, including specific disqualifying offenses, allowable types of evidence, clear and relevant lookback periods, and what person(s) or decision-making bodies have discretionary power.
5. Make the appeal process clear and fair. While HUD does require any denial to include a “notice of denial” that includes “a brief statement of the reasons for the PHA decision,” we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based (24 CFR §982.555). Currently, HUD mandates that any denial “must notify the family that the family may ask for an explanation of the basis of the PHA determination, and that if the family does not agree with the determination, the family may request an informal hearing on the decision” (24 CFR §982.555). HUD provides guidelines on how reviews and hearings operate, but again, a lot of local discretion is built in: for example, the PHA determines the deadline for requesting an informal hearing. Furthermore, HUD states that the family may be represented by a lawyer or other representative “at [their] own expense” (24 CFR §982.555), but we know that people facing discretionary denials of public housing assistance for criminal legal reasons are unlikely to be able to afford an attorney. To make this process clear and fair, advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service (often run by state and local bar associations).

11 of our most important reports, briefings, and tools in 2022

From a deep dive into the bail industry to new tools for advocates, here are the highlights of our work in 2022.

by Wanda Bertram, December 21, 2022

Didn’t catch everything we published in 2022? We’ve curated a list of some of our best work from this year below. From a deep dive into how the bail industry exploits the legal system and deceives the public, to an extensive database showing where people in state prisons come from, to new tools for advocates, here are the highlights of our recent work:

Mass Incarceration: The Whole Pie 2022

Our annual Whole Pie report returned in 2022, after pandemic-related data problems forced us to cancel it last year. The report compiles national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — two years after the COVID-19 pandemic began. It explains how the pandemic has impacted prison and jail populations, and 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.

All Profit, No Risk: How the bail industry exploits the legal system

Our report exposes how commercial bail companies and their deep-pocketed insurance underwriters almost always avoid accountability when they fail to do their one job: ensure their clients’ appearance in court. We explain how the bail industry exploits — and works to expand — six loopholes in the system that allow it to avoid paying up when defendants don’t show up. The report reveals the money bail system is not only cruel to defendants — as our 2016 report Detaining the Poor showed — it is also corrupt beyond repair.

Beyond the Count: A deep dive into state prison populations

In a groundbreaking report series, we used a new Bureau of Justice Statistics dataset to provide a demographic picture of the 1 million people in state prisons today. The first report in this series, Beyond the Count, shows that the national prison population comprises people struggling with poverty, substance use disorder, and housing insecurity, people who have been marginalized throughout their lives. (For instance, 38% of people in state prison were arrested for the first time before they were 16 years old.) The data show that not only does this country allow millions of children to grow up in poverty, but many of those children grow up to fill state prisons.

Chronic Punishment: The unmet health needs of people in state prisons

This national report offers the most recent data on the health of people in U.S. state prisons, showing that prisons continue to ignore the plight of people in their care. People in prison suffer from several chronic illnesses and infectious diseases at disproportionate rates — such as hepatitis C, HIV, and mental illness — and prisons fail to get many people the treatment they need. 50% of incarcerated people also lacked health insurance before prison, underscoring the reality that our criminal justice system punishes poverty.

What the end of Roe v. Wade will mean for people on probation and parole

In the 13 states where the fall of Roe is expected to lead to abortion bans (or already has), a total of 216,000 women are on probation or parole. In a short but impactful briefing, we explain why these women are especially affected when states outlaw abortion: Supervision often comes with a ban on out-of-state travel, extending complete state control over someone’s right to choose.

Where People in Prison Come From: The geography of mass incarceration

What communities do people who are incarcerated come from? It’s a simple question with huge implications, and one that, until recently, was impossible to explore. However, thanks to recent reforms to end prison gerrymandering in more than a dozen states, the data is finally available to answer it. We published datasets showing where people in 12 state prison systems come from, down to the county, city, and — in many cases — neighborhood level. We made the data sets publicly available online so that other researchers can use them to better understand how mass incarceration harms communities and correlates with other measures of community well-being.

State of Phone Justice: The problem, the progress, and what’s next

How much should it cost to stay in touch with Mom or Dad when they’re locked up? We built a nationwide database of the (often exorbitant) phone rates in 50 state prison systems, as well as thousands of local jails and other detention facilities of various types. Our data show that while some jails and their phone companies provide calls for as low as 1 or 2 cents a minute, the vast majority charge 10 times that amount or more. Working-class families’ phone call costs are lining the pockets of corporations and boosting jail revenue, and even as regulators and legislators make attempts at reform, companies are finding new ways to price-gouge consumers.

Mail scanning: A harsh and exploitative new trend in prisons

In the last 5 years, prisons in at least 14 states have replaced physical mail sent to incarcerated people with scans, we explained in a short report. The same companies that sell phone services to jails are also encouraging prison and jail systems to ban mail, claiming that it will deter dangerous “contraband” from coming in. But there’s no evidence that this policy — which has a chilling effect on family communication and therefore, quite probably, a negative effect on people’s ability to succeed after prison — does anything to make incarcerated people safer.

Advocacy Toolkit

This year we released our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration. It provides tips on accessing public records, securing and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering.

Insufficient funds: How prison and jail “release cards” perpetuate the cycle of poverty

We’re continuing our work showing how states — often at the encouragement of private companies — look for ways to punish incarcerated people even after their sentence is over. This briefing exposes how prisons and jails are increasingly disbursing the tiny amounts of money people are owed when they’re released via prepaid debit cards. The cards, managed by companies that profit off incarceration, are riddled with fees for everything from checking your balance to making a purchase. Rather than helping people rebuild their lives post-release, these companies are sapping people of the little money they have.

Correctional Contracts Library

Prisons and jails routinely contract with private companies to provide services, such as phone calls, money transfers, commissary, and release cards. Through our work to expose the worst practices in this industry, we’ve developed a large database of contracts and other documents that spell out the terms of the agreements governments have with these companies. For the first time ever, we’ve put these documents together in one place so researchers, activists, policymakers, and journalists can build upon our work to expose the harms of mass incarceration.

This is only a small piece of the important and impactful work we published in 2022. In total, we released 19 reports, more than 35 briefings and blog posts, hundreds of data visualizations, and added hundreds of new items to our Research Library.

Our work is far from over, though. We’ve got big things planned in 2023, when we’ll continue to expose the ways mass incarceration has failed and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.

Mail scanning: A harsh and exploitative new trend in prisons

In at least 14 states, people in state prisons are falling victim to a scan: Prisons are replacing physical mail with scanned copies, a policy that benefits private companies.

by Leah Wang, November 17, 2022

The appendix table was updated on December 1, 2022 to reflect new information about South Dakota.

In recent years, many prison systems have either tried or fully implemented a policy that interferes with incarcerated people’s mail in a way we haven’t seen in our many years fighting to protect family communication behind bars: Prisons are increasingly taking incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients. This practice of mail scanning, either performed at the prison itself or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones.

Prison administrators claim that delivering scanned copies of mail correspondence will stem the flow of contraband — primarily, drugs — into their facilities, but there’s no solid evidence to date that mail scanning has this intended effect. (In fact, some jurisdictions have found the opposite effect with respect to drugs.) We did a policy and media scan of all 50 state prison systems and the federal prison system, and found that mail scanning is quickly becoming widespread, despite the enormous benefits of genuine mail.

Table 1: States scanning mail at all state prisons

We found 14 state prison systems that are scanning all incoming mail, but we’re confident that this number is an undercount, because we couldn’t verify the status of mail scanning in some other states.² Several more states are trialing mail scanning practices in just a few of their facilities, or have correctional policies that allow mail scanning to begin at any facility, at any time.³ Many more states are likely to be scanning mail before long: Even during the course of our research, one state (Minnesota) implemented a six-month alternative mail delivery pilot — which includes mail scanning — in some of its facilities. (For details about every state’s prison mail scanning practices, see the appendix table at the bottom of this briefing.)

Mail scanning happens in locally-run jails, too; in our state-level research, we stumbled upon 15 jails⁴ that have banned incoming mail in favor of digitized copies. While most of the local jails we read about implemented mail scanning in 2021 or 2022, we’ve been receiving reports of jails scanning mail since 2017, and we suspect that dozens more jails across the U.S. have done away with delivering real mail.

How does mail scanning work?

As the table above shows, some prisons pay a vendor to scan mail and deliver copies to incarcerated people, while others manage the process internally.

There are two primary methods for delivering scanned mail. Some prison systems deliver printed copies of mail, often including copies of the envelope. (If there’s a limit on the number of pages that can be copied and delivered, the envelope may count toward that limit, as it does in Arkansas.) Other prison systems scan mail and upload it into a digital database, where it’s then viewable on a tablet or a shared kiosk inside a prison. Most states and third-party vendors hold onto original letters and cards for a period of time — several states have a 45-day holding period, for example — but eventually dispose of or destroy them.

The four biggest problems with scanning mail

1. Prisons and jails often switch to scanning mail not out of any concern for safety, but at the encouragement of the same private companies that dominate the prison technology industry. For years, these companies’ strategy for securing contracts has been to offer facilities multiple services “bundled” together, such as phone calls, tablet computers, and mail scanning. Scanning mail pushes incarcerated people to use other, paid communications services provided by the companies: Compared to mail that’s delayed due to scanning procedures, or scanned incorrectly, incarcerated people and their loved ones often understandably switch to electronic messaging (which requires the purchase of digital stamps), phone calls, or video calls.
   

   A number of prison vendors currently bundle mail scanning with other exploitative communications “services”:

2. Physical mail carries great sentimental value for incarcerated people, which translates into a more hopeful experience behind bars. In one incarcerated person’s words, “Under the new policy of digitizing mail [in Florida], [we] are losing the visceral experience of touching a letter or smelling perfume on an envelope.” Taking that away has real, measurable consequences for mental health, behavior, and even recidivism after release. Incarcerated people return to their mail over and over to be reminded of their support networks; scanned mail, on the other hand, is often low-quality or incomplete, lacking the same meaning. Even if contraband occasionally enters prisons through the mail, the practice of scanning all mail senselessly punishes all incarcerated people and their families for a few infractions.

A screenshot from the Missouri Department of Corrections website explaining that mail is important, but not welcome, in its prisons.

3. This extreme interference with mail will have a chilling effect on correspondence, reducing the overall volume of mail sent into prisons. People who send mail to prisons don’t want their letters and artwork scanned into a searchable database and/or destroyed, two common features of mail scanning. Scanning is a needlessly complicated and costly practice that violates privacy and stifles communication, as we learned when many jails started postcard-only policies. (This effect may be desirable for prison administrators and correctional staff.)
4. Finally, mail scanning doesn’t work to make prisons safer. In fact, early analyses in Pennsylvania⁶ and Missouri⁷ suggest that mail scanning is having little to no effect on the frequency of overdoses and drug use, the type of issues that prisons claim mail scanning will address. “Security” measures like mail scanning (as well as banning in-person visitation) distract from the reality that correctional staff are a major source of contraband in prisons, as a correctional labor union leader himself acknowledged (and as we found in a 2018 survey). Considering half of people in state prisons meet the criteria for a substance use disorder, prisons would be wise to center their budgets and efforts around drug treatment rather than cutting off a lifeline for everyone.

Mail between incarcerated people and their loved ones has long been surveilled by prison staff, but it remains one of the last bastions of communication that is not intercepted and monetized by private telecom companies. As the organization Just Detention International concluded in their 2021 letter to Attorney General Merrick Garland expressing outrage at the federal prison system’s mail scanning pilot: “Banning physical mail harms the well-being of incarcerated people, while offering no meaningful benefits.” Prisons and jails shouldn’t make families work even harder to maintain bonds; like other policies that quash communication, the recent trend toward mail scanning must end.

Both sides of the bars: How mass incarceration punishes families

Government survey results illuminate the broader consequences of locking up people with children.

by Leah Wang, August 11, 2022

We know that family contact can help incarcerated people cope with being locked up and reduce their chances of returning to prison. Yet self-reported data from people in state prisons show just how difficult it is to communicate with loved ones, provide financial support even when legally obligated, and make decisions with and about their families. Millions of families and minor children throughout the country are punished emotionally, economically, and otherwise by a loved one’s incarceration.

The Bureau of Justice Statistics’ Survey of Prison Inmates data provide the deepest nationwide look yet at the challenges and impossibilities of parenting from prison. Conducted in 2016 but released as a limited public dataset in late 2020, the Survey asked people housed in state prisons about a wide range of topics, from their upbringing and childhood, to the offense that led to incarceration, to their life in prison.¹ Here, we offer data and analysis revealing the ways in which prisons fail entire families — and society more broadly — by separating millions of children from their parents, and by enforcing harmful policies that perpetuate cycles of poverty and disadvantage.

Half of people in prison are parents to minors, leaving 1.25 million kids struggling to cope

Nearly half (47%) of the approximately 1.25 million people in state prison are parents of minor children, and about 1 in 5 (19%) of those children is age 4 or younger.² Altogether, parents in state prison reported roughly 1.25 million minor children, meaning the number of people in state prison almost exactly mirrors the number of impacted minor children. Research indicates that children of incarcerated parents face formidable cognitive and health-related challenges throughout their development.

The challenges of parenting from prison are particularly likely to affect women. The Survey reveals that women in state prisons are more likely than men to be a parent of a minor child (58% of women, compared to 46% of men). Women were also more likely to have been living with their children prior to their imprisonment: About 52% of women with minor children report living with their child(ren) at the time of their arrest, compared to 40% of men. Finally, women were more likely to lead a single-parent household, as 39% of incarcerated mothers of minors lived with children but no spouse, compared to 21% of fathers.

And like the state prison population overall, incarcerated parents themselves grew up in struggling households:

• 17% spent time in foster care;
• 43% came from families that received public assistance (i.e., welfare) before they turned 18;
• 19% lived in public housing before they turned 18;
• 11% were homeless at some point before age 18; and
• 32% had (or currently have) an incarcerated parent of their own.³

Many children are uprooted by a parent’s arrest and incarceration

What happens to children when the parent they live with goes to state prison? Most go on to live with other family members: Incarcerated parents who lived with their minor children at the time of their arrest report that their child (or children) is now in the care of the other parent or step-parent (71%), a grandmother (13%) and/or grandfather (4%), or other relatives (5%). Still, other children have been moved into the homes of friends, an “agency or institution,” someone else, or they live on their own (about 4% in all).⁴

A small percentage of these parents (0.3%) reported that their child is currently incarcerated.⁵ While certainly not all children who experience parental incarceration are destined to become incarcerated themselves, the arrest and incarceration of a parent is a painful experience, and has been linked to a child’s own, eventual justice system involvement. The Survey result is too small to break down by gender or race, but research suggests that children of incarcerated mothers are more likely to become incarcerated compared to children of incarcerated fathers.

About 3,400 parents (1.8% of parents living with their minor children before arrest) report that their minor children ended up in the foster care system (separate from the “agency or institution” outcome above). This outcome, in particular, can mean an end to parental rights altogether: 1 in 8 incarcerated parents with children in foster care have their parental rights terminated, according to a Marshall Project analysis of government data.⁶

Currently, federal policy regarding foster children fails to acknowledge the realities of mass incarceration and long prison sentences,⁷ and makes it likely for incarcerated people with children in foster care to lose them permanently. For children, placement in foster care can lead more easily to criminal legal involvement, particularly those in group homes or who experience multiple moves as a foster child. In one study, by the age of 17, more than one-half of all foster care youths (not just those with an incarcerated parent) had experienced an arrest, conviction, or overnight stay in a correctional facility.

The deep despair felt by both parent and child amounts to a colossal but largely invisible crisis: the mass punishment of over 1 million children. Short of the parent being released from prison and being offered needed supports, one of the best ways to mitigate these negative impacts is by limiting barriers to meaningful contact between children and incarcerated parents.

Most incarcerated parents and their children find ways to stay in touch, but prisons make family contact difficult

Many children want, and all children deserve, the opportunity to visit their incarcerated parents. Yet two-thirds of parents in prison with minor children have never received a visit from them. Not only are many prison visitation policies excessively strict, such as onerous pre-approval processes and rules about what visitors can wear,⁸ but many parents are simply incarcerated too far from home for visits to be logistically or economically feasible. A national survey in 2004 revealed that almost two-thirds of people in state prisons were located more than 100 miles from home, and more than 10% were over 500 miles away, and distance is a strong predictor of receiving visits.

This most recent Survey did not ask about physical distance from home to prison, but it did ask parents about why they thought their children had not visited. Among parents in prison who had children under 18, but had not received a visit:

• The most common reason for not receiving a visit, reported by 33% of parents who had not received a visit, was that their child lives too far away.
• About one-fourth (23%) of parents responded that the child’s non-incarcerated parent or guardian did not want the child to visit. This reluctance could stem from a wish to protect the child — it can be painful to witness a parent in prison — but it could also have to do with distance, logistics, strained relationships between the adults, or cost.
• A smaller share of parents (14%) said they did not want their child to visit, possibly for some of the same reasons. Even though research shows positive impacts of parent-child contact during incarceration, it’s understandable that an adult might want to keep a child away from the prison setting.
• Just 3% of parents reported that it’s the child themselves who is reluctant to visit, signaling that most children do want to maintain a connection with their parent.

Despite these challenges, one-third (33%) of parents in prison with minor children have received at least one visit from their child. Prison policies or resources likely play a role in low levels of in-person visitation, such as a lack of visitation assistance (providing transportation to and from prisons), or eliminating visitation altogether — sometimes justifying these restrictions by exaggerating the volume of contraband items that come in through visitors.

Of course, parents in state prison and their children keep in touch in other ways: 60% of parents report phone calls with their kids, and 70% of parents send their children physical mail. (Some of this correspondence appears to be one-sided, however: only 57% report receiving mail from their children.) A smaller number of parents also report sending (10%) or receiving (13%) email from their children via computers or tablets available in prisons, indicating that more modern avenues for communication are available to some incarcerated people.

These remote (rather than in-person) connections happen more frequently than visits. Over two-thirds (72%) of phone calls, and more than one-third (35%) of incoming mail from children, are received daily or weekly, but only one-fifth (20%) of visits happen that often. Still, phone calls, mail, and email are subject to all manner of exploitation by the private companies that run prison communications. Further, prison administrations can change snail mail policies at the drop of a hat, increasingly toward “mail scanning” schemes that reduce sentimental letters and art into blurry scans — that is, if they’re delivered at all.

Child support debt follows parents into prison, despite the impossibility of paying it off

Parents also often enter prison with legal financial obligations to their children: More than one-fourth (27%) of parents in state prisons with minor children owe ongoing child support, and most of those (80%), unsurprisingly, owe back pay. Men are more than twice as likely to owe child support (29% of fathers, compared to 14% of mothers).

However, it’s extremely difficult for incarcerated people to fulfill this legal-financial obligation. People who enter prison are among the nation’s poorest, and even those who do work a prison job earn appallingly low wages. Knowing this, at least 13 states automatically modify child support payments when a noncustodial parent is incarcerated, according to the National Conference of State Legislatures. In other states, however, the parent must act within a narrow time window to submit payment modification paperwork, or else they may accumulate astronomical debt while incarcerated.⁹

If 500,000 people are released from state prisons every year — a conservative estimate¹⁰ — that means about 63,000 of them are parents saddled with this debt, reentering society with little to no savings and lower earning potential due to their criminal-legal involvement. If they manage to land a job upon release, their wages are usually garnished for child support; without employment and automatic payments, however, missing just one child support payment can thwart other reentry steps like obtaining a driver’s license, filing a tax return — and critically, even staying out of jail.

What can be done for families experiencing incarceration?

State policies fail to recognize what so many advocates, researchers, and directly impacted people already know: that state prison incarceration has devastating and far-reaching impacts on family members and entire communities. States and prisons should take steps to ease these burdens, such as making family contact easier through expanded family visitation, visitation assistance, low-cost or free phone calls, and policies that allow real, sentimental mail to be sent from child to parent. What’s more, prisons should ensure that parents are incarcerated as close as possible to their home communities, as in-person visitation may yield some of the most positive impacts on health and behavior. ¹¹

Of course, intervention is possible much earlier than in prison: in some states, primary caregiver laws or family-based sentencing allow for diversion or other community-based alternatives to incarceration for parents or guardians. In Oregon, a family sentencing pilot program kept nearly 400 children out of the foster care system over five years, and led to lower rates of recidivism and revocation compared to similar non-program participants.

Meanwhile, incarcerated parents who maintain a role in their kids’ lives should not have their relationships permanently severed: At the federal level, Congress can repeal the Adoption and Safe Families Act, relieving states of inflexible timelines for terminating parental rights. Further, for noncustodial parents, all states should adopt automatic suspension or modification of child support payments. As we continue to tell the story of incarcerated people through findings from the Survey of Prison Inmates, these data serve as a reminder that the story also belongs to over 1 million children, countless loved ones, and whole communities left behind by harmful state policies.

What the end of Roe v. Wade will mean for people on probation and parole

On any given day in the U.S., 666,413 women are on probation or parole.

by Wanda Bertram and Wendy Sawyer, June 30, 2022

We’ve produced an updated version of this briefing to mark the two-year anniversary of the Dobbs decision. We recommend reading our new briefing instead.

With several states preparing to criminalize abortion now that Roe v. Wade is over, and some states talking about criminalizing traveling out of state to get an abortion, it’s worth remembering that for many people on probation and parole, traveling out of state for abortion care is already next to impossible. On any given day in the U.S., 666,413 women¹ are on probation (a community-based alternative to incarceration) or parole (the part of a prison sentence that someone serves in the community). In many jurisdictions — for instance, Louisiana, Tennessee, Kentucky, Idaho, Texas, and the federal system, as well as some juvenile probation systems — it’s common for people on probation and parole to face restrictions on where they can travel, whether they can move to another county or state, and with whom they can “associate” (including, potentially, people who assist in coordinating abortion access, where such help is criminalized). All of these restrictions will make it harder for people under supervision to get abortion care.

In the last few days, many news outlets have reported on how people in prison can be blocked from seeking an abortion, especially in states where abortion is already illegal. (Ironically, as we’ve discussed before, prisons deny people quality pregnancy care even as they deny abortion access.) The end of Roe v. Wade will create new barriers to abortion care for incarcerated people, since it will likely trigger the criminalization of abortion in thirteen states.

But an even greater number of people on probation and parole stand to be affected: About 231,000 women are in prison or jail on any given day, but several times as many women are on probation and parole, the result of gendered differences in offense types: women are more likely than men to be serving sentences for lower-level property and drug crimes

In the thirteen states with abortion ban “trigger laws” on the way, more than 200,000 women are under probation and parole supervision, which will make it difficult or impossible for many of them to travel out of state for an abortion, or potentially even talk to people coordinating abortion care, given the typical restrictions of probation and parole.

Nationwide, the average probation term is just under two years — far too long for the average individual to “wait it out” until they are no longer under supervision and can seek abortion care across state lines. Meanwhile, parole sentences can be several months to years — typically, up to the remaining time on an individual’s sentence after they are released from prison. Some people are even subject to lifetime supervision, depending on the state and the underlying offense.

A number of probation and parole “conditions” curtail the freedoms of people on supervision: Even though breaking these rules would not be a “crime” in any other context, parole or probation officers are empowered to — and often do — send people back to jail or prison for these noncriminal “technical” violations. (In 2020, at least 67,894 people on probation and 45,878 people on parole went to prison or jail because of a noncriminal violation.) Conditions of supervision can be extremely burdensome, and they fall on people who are already disadvantaged, struggling with unemployment, poverty, and housing insecurity. As we explored in a previous report, conditions of supervision can force people to accept a bad deal in the job market. In the same way, travel restrictions — which are “standard” conditions in many places — will soon force many of these individuals to accept the impossibility of getting an abortion.

People on probation and parole typically have some options for interstate travel, but they have to get formal approval from their supervision officer in order to make specific trips. With the sole authority to approve or deny a trip across state lines for abortion care, a probation or parole officer might choose to prioritize their own personal beliefs about abortion over the desires of the individual under their control. They might also choose to delay the decision until it’s no longer possible — or safe — for the individual they’re supervising to terminate a pregnancy.

These restrictions on travel aren’t the only barriers that might stop someone from getting, or seeking, an abortion. People on probation and parole have low average incomes, and they’re often under-insured: Going to prison usually results in losing one’s health insurance coverage, meaning that formerly incarcerated people face an uphill battle to regain health insurance after their release. They may also struggle to get the time off work necessary to have an abortion — especially since maintaining steady employment is often itself a condition of supervision.

For people on supervision considering moving out-of-state to avoid their own state’s abortion laws, transfer is possible, but not guaranteed, and it’s often very slow: getting the new state to approve the transfer can take six weeks, and that’s in addition to however long the “sending” state takes to review the application. Even then, applicants will need to show their family and/or employment connections to the new state; even if they have the funds, they can’t just move on a whim.

As many others have already noted over the last few days, the growing criminalization of abortion won’t impact everyone equally. The abortions that these new post-Roe laws prevent will disproportionately be among people who are poor and lack access to transportation across state lines. People on probation and parole are a key segment of this demographic. Far too many individuals, having been swept into the criminal legal system by laws that criminalize poverty, will now find themselves without recourse for accessing what should be basic healthcare.

Working in “a meat grinder”: A research roundup showing prison and jail jobs aren’t all that states promise they will be

No wonder prisons and jails face constant understaffing and that communities increasingly resist new facilities: Decades of research show that the physical and mental health problems associated with correctional officers' jobs are inherent to the work, and that new prisons and jails fail to deliver on promises of economic development.

by Prison Policy Initiative, May 9, 2022

As we well know, people incarcerated in jails and prisons experience constant trauma, and are surrounded by brutality and violence that are impossible to escape. This experience has only grown worse in recent months. As we are frequently reminded in media coverage, prison and jail security staff (known as correctional officers or “COs”) have been quitting their jobs and failing to show up for work. This turnover and absenteeism leaves incarcerated people locked down in cells, experiencing minimal freedom of movement and social interaction, lost recreation time, difficulties accessing physical and mental health care, worse and less reliable food and mail services, and fewer programming and education opportunities.

But why are departments of corrections throughout the country complaining that they are unable to hire and retain enough staff?

The simplest and most obvious answer is there are way too many people locked up. States could dramatically reduce the need for additional staff by arresting and booking fewer people and releasing more. In European countries (which incarcerate far fewer people), the ratios of incarcerated people to staff are significantly lower than in the United States. As noted in a 2013 press release from the union representing federal workers, the number of federal correctional workers increased 19% from 2000 to 2013, while the federal prison population grew 41%.

But there is another reason prison and jail jobs sit vacant — a problem exacerbated by the pandemic but long predating it. Any way you look at it, working in a prison or jail is traumatic and harmful to mental health. As a result, people have always quit these jobs at high rates. Nearly 40 years ago, in 1983, a paper warned that “officer stress and burn-out has led to soaring organizational costs due to high rates of absenteeism and turnover.” In 2000, the average national turnover rate among COs was 16% (meaning the number of people quitting was 16% of the average CO headcount that year), a rate one author called “alarmingly high.” And a 2010 report found that the average CO turnover rate was 17% in 2006 and 2007, and 16% in 2008.

Today, as prisons and jails have become vectors of COVID-19, turnover rates have grown higher than ever.¹ But as this briefing shows, long before COVID, corrections work meant being surrounded by trauma and suffering, while working stressful jobs that are both monotonous and require constant vigilance.

Of course, much of the violence behind bars is perpetrated by COs themselves; we know that staff often assault and abuse incarcerated people; encourage, bribe and threaten incarcerated people to abuse others; and watch without intervening when violence breaks out. In fact, Micol Seigel proposes in her book that prison workers — along with police, members of the military, and others employed in security or detention — can collectively be considered “violence workers,” as their roles are designed to exercise the state’s power to use violence for enforcement. Violence in correctional facilities is further exacerbated by stressful, miserable living conditions. But while this violence harms incarcerated people the most, it has life-altering consequences for workers as well. As a result, COs face negative mental and physical health outcomes, including extremely high rates of depression and PTSD. Worst of all, for many COs, the job fundamentally changes the way they relate to others, requiring them to dehumanize the people they supervise and cultivate a brutal authority that is hard to shake even at home.

This creates a vicious cycle. Correctional jobs are stressful and traumatic, leading to high rates of burnout, absenteeism, and staff turnover. But when people quit or don’t show up for work, this makes the job even worse for their colleagues, who are often left working overtime shifts² alongside new, inexperienced coworkers.³

While the trauma and stress faced by incarcerated people dwarfs the experiences of correctional officers, it is important to study the frequently overlooked ways that prisons and jails harm everyone associated with them.

This is particularly crucial because, for years, state and local governments have used the promise of these “good state jobs” to garner support for newer, bigger prisons. For decades, rural towns looked to prisons as a saving grace that would bring economic development, boost local populations, and most of all, replace disappearing jobs. As that prison-building boom cools, now we are seeing pressure to build new, expanded county and city jails. But when officials promote prisons and jails as job creators, it is important to keep in mind what these jobs actually look like, and the effects they have on workers and the community.

To be clear, the problems outlined throughout this article are fundamental to the nature and environment of working in a prison or jail. These problems cannot be solved by increasing budgets, doubling down on hiring efforts, providing additional training, or increasing pay and benefits.

Exposure to trauma is inescapable on the job

Although incidents of violence behind bars are poorly tracked and reported, every count we do have shows that those who spend time in prisons and jails (staff and incarcerated people alike) are surrounded by traumatizing violence:

A 2021 paper analyzing the experiences of 156 correctional supervisors in a northeastern U.S. state revealed that large percentages witnessed or experienced the following traumatic events in a typical month:

• 55% – a suicide attempt by an incarcerated person
• 93% – violence inflicted by one incarcerated person on another

And in a typical year, many reported witnessing or experiencing:

• 61% – suicide of an incarcerated person
• 65% – non-suicide death of an incarcerated person
• 45% – a coworker suicide

Similarly, a team of researchers have published a series of papers based on surveys of Canadian workers in high-stress occupations. They found that institutional corrections workers report high rates of exposure to various traumatic events. For example:

• 45% had witnessed a death in line of duty
• 78% experienced or witnessed serious injuries in the line of duty
• 69% experienced or witnessed incidents that seriously threatened their life or the life of a colleague
• 65% witnessed or learned about the suicide of a close colleague or superior

A correctional officer from Oregon described this on-the-job trauma in a 2015 article in the Guardian: “You’re doing tier count and you’re watching a human being die in front of your eyes because he’s coughing up lungs and screaming with his eyes for help and there’s nothing you can do.” The man’s son, also a CO, recalled that on his first day of work, he witnessed the mutilated body of a man who had been beaten to death.

Correctional officers have high rates of depression, PTSD, and suicide

It is not surprising that many COs struggle with the mental and emotional toll of regular exposure to trauma. A 2021 analysis of thousands of anonymous surveys filled out by COs in California prisons revealed that, among those who answered specific questions about the prior month:

• 48% had felt anxious, nervous, or on edge
• 80% felt tired or fatigued, even right after sleeping
• 28% consumed six or more drinks on at least one occasion
• 28% felt down, depressed, or hopeless
• 4% experienced repeated, disturbing memories
• 11% had suicidal thoughts or had attempted suicide

A 2018 survey of corrections employees in Washington State estimated a PTSD rate of 19%, which is similar to rates among veterans of the Iraq and Afghanistan wars, and higher than that of police officers.

Several studies put the rate of PTSD even higher. A 2013 study of nearly 3,600 corrections professionals from all over the country estimated that 34% of correctional staff in security roles have PTSD and 31% have depression. A 2016 paper studying correctional officers in Michigan estimated that 34% of participants had PTSD, 36% had depression, and 25% had both. Rates of both — as well as the risk of suicide — were higher among people working in high-security units, and among those who had worked in corrections for 10 years or more, indicating that these problems do not get easier with time or experience. And a 2017 Canadian study (again, using the pool of high-stress workers mentioned above) found that more than 54% of correctional workers screened positive for mental disorders including PTSD (29%) and major depressive disorder (31%), compared to a baseline diagnosis rate of 10% of the Canadian population.

Although there are not many studies on correctional officer suicides, one analysis found that COs in New Jersey had more than double the suicide rate of 25-to-64 year old men in the state from 2003 to 2007. A 2016 article tracking CO suicides in Massachusetts found the suicide rate to be about six times that of the general state population. An earlier study from 1997 found that COs have a 39% higher rate of suicide than the rest of the working age population. And the survey of Canadian correctional workers revealed that 35% had experienced suicidal ideation in their lifetimes (including 11% in the prior year), and 8% had previously attempted suicide.

This relentless stress inevitably leads to burnout, which is often associated with workers in healthcare, human services, and education, and is characterized by emotional exhaustion, depersonalization, and a sense of a lack of personal accomplishments. Burnout can lead to depression, and can cause someone to withdraw emotionally, psychologically, and socially from their job. A 2020 Swiss study found that — although violence is infrequent in Swiss prisons — COs who did witness or directly experience violence had more exhaustion and a decreased sense of security, which in turn, led to higher levels of burnout. The paper concluded that “not only serious major incidents, but also the daily grind have an effect.”

A 2013 literature review, which provides a collection of research on the topic, concluded that the implications of stress and burnout are far-reaching:

Workplace stress and burnout among COs can lead to unsafe correctional facilities, high turnover rates, high absenteeism, lower productivity and decreased effectiveness in the workplace as well as negative personal and social outcomes like decreased life satisfaction and work-family conflict.

In fact, a 2014 paper for the National Institute of Corrections proposed a diagnostic category called “corrections fatigue,” which can have implications including “negative personality changes, socially dysfunctional thinking/ideology, and forms of declined health and functioning.” Those researchers further estimated that 20% of correctional officers experience corrections fatigue.

These consistent findings of rampant PTSD and depression among COs are remarkably similar to studies of incarcerated people. Research among incarcerated populations have found rates of PTSD at 48%. And much like corrections fatigue, researchers have identified “post-incarceration syndrome,” a subset of PTSD. In-depth interviews with 25 people who were incarcerated an average of 19 years revealed a “specific cluster of mental health symptoms,” including institutionalized personality traits, social-sensory disorientation, and alienation. These high rates among both prison staff and incarcerated individuals indicate that prisons themselves are unhealthy, dangerous spaces that contribute to serious and lasting mental health problems.

COs experience chronic pain and hypertension, and are exposed to illness and violence

Corrections work can take a physical toll as well. Nearly half (45%) of the surveyed correctional workers in Canada reported experiencing chronic pain, with lower back pain the most common complaint. Correctional officers are also disproportionately exposed to infectious diseases: The Covid Prison Project has tracked 277 deaths of correctional staff due to COVID-19, as of March 2022. (Of course, prison staff have contributed greatly to the spread of COVID behind bars: Throughout the country, staff vaccination rates lag far behind vaccination rates of incarcerated people, and many states failed to require staff to wear masks at the height of the pandemic.)

The stressful nature of the job brings other physical drawbacks. A 1983 study found that correctional officers had higher rates of hypertension (high blood pressure) and heart disease than the general population, both of which are linked to stress. And a 2015 study found extremely high baseline levels of hypertension and pre-hypertension among correctional officers. While hypertension usually shows up later in life, the study revealed high rates among COs ages 20 to 34 and 35 to 44.⁴

While estimates vary regarding the percentage of COs who are victims of violence on the job, it is clear that working in a prison comes with an increased risk of violence. The Bureau of Justice Statistics (BJS), for example, found that from 2005 to 2009, 33 out of every 1,000 COs reported experiencing workplace violence (defined as rape/sexual assault, robbery, and aggravated and simple assault).⁵ Compared to other professions in the study, this rate is lower only than bartenders, police officers, and security guards.⁶

Of course, when considering data on this type of violence, it is important to remember that it is self-reported by correctional officers, making it impossible to know what role they or their colleagues might have played in the reported incidents. COs are incentivized to report every possible incident as an assault, as a way of justifying budget and salary increases.

And it is clear that the constant fear of violence further adds to stress and negative mental health outcomes, and can contribute to job performance and turnover rates.⁷ In this way, too, COs’ risk of violence mirrors the experiences of incarcerated people.⁸

Prisons — no matter how modern — are depressing work environments

Back in 1982, a review of the stresses of prison work stated the obvious:

Any organization or social structure which consists of one group of people kept inside who do not want to be there and the other group who are there to make sure they stay in will be an organization under stress.

Investigative reporter Shane Bauer described corrections work in a similar way. In 2016, Bauer (who was previously incarcerated for two years in an Iranian prison), spent four months undercover as a CO in Winn Correctional Center, a private state prison in Louisiana. He later said of corrections officers, in his experience:

Most of them, when they go in, they want to treat prisoners well. But then you have to face the fact that you’re doing something that is not really within your normal realm of what it means to be a decent human being.

Multiple papers have noted that certain stressors are built into the corrections model, and are sometimes called “occupational” or “work-related.” As the author of an expansive 2013 literature review on wellness and safety among COs explains, much of the job of a correctional officer is boring and repetitive, yet the constant risk of violence and other incidents requires “hyper-vigilance, boundary setting and self-control. The constant state of alertness can be taxing both physically and psychologically.”

“We put on our armour. When you walk through the first gate, it clicks. And so does your back,” another former correctional officer from Oregon told the Guardian. He compared the job to being in a pressure cooker.

On top of the inherently stressful work environment, corrections jobs do not tend to open the door to desirable work in other industries. While former COs may go on to work in law enforcement or private security, these career paths are two of just three identified by the BJS as having higher exposure to workplace violence than corrections. Low wages are also often cited as a drawback of the job.

According to one Canadian corrections officer, who responded to a survey’s open-ended question about the job:

Corrections are a very mentally and physically demanding career that is very difficult to understand. Being keepers of people has demands that should not be misunderstood. This career is a meat grinder.

And in a white paper on correctional wellness titled “I Am Not Okay,” published by One Voice, the authors (who are correctional officers) described the reasons people go into corrections:

During childhood, kids regularly invent games where they imagine what they will be when they grow up. Many pretend to be police officers, nurses, doctors, lawyers, firefighters, or teachers. How many kids in the neighborhood grew up locking their friends in the basement because they wanted to be a correctional officer? How many seniors in the high school yearbook listed “correctional officer” as a career aspiration? Almost no one does that. No one wants to go to prison, even if they have the keys…

Some choose this path because they see it as an opportunity to help people “correct” their wrongdoings and come out better, but those for whom this was their motivation quickly find out that it’s not really an option, because the current system was not designed with this in mind.

But the correctional work environment is worse than it has to be

While some stressors of the job are inherent to the nature of locking people up, others stem from the way prisons are run in the United States. Sometimes called “organizational” or “institution-related” stressors, they contribute to stress and burnout, and can include:

• Low autonomy/ no input into decision making
• Unpredictable shift work
• Overtime demands
• Lack of support from or trust in supervisory staff
• Inadequate benefits and resources
• Inadequate training

Other significant “institution-related” stressors are role conflict and role ambiguity. Role conflict reflects fluctuating expectations over whether prisons are for punishment or rehabilitation. Role ambiguity is the uncertainty created when supervisors instruct COs to go “by the book,” even though it is clear to everyone that the role requires flexibility — and that the culture surrounding prison work encourages staff to carry out violent, informal sanctions that aren’t in any rulebook. As one paper described role ambiguity:

While officers work in a paramilitary organization marked by explicit lines of authority and a host of formal regulations, their task of managing inmates demands flexibility, the judicious application of discretionary justice, and the ability to secure inmate compliance through informal exchanges which deviate from written rules… Ambiguous and conflicting expectations are a likely result and a potential source of stress.

What’s more, negative experiences in prison may be exacerbated by the machismo culture in corrections. The 2013 literature review notes that, “like police officers, COs have subcultural taboos regarding the acknowledgement of a need for medical or psychological assistance, as such admissions are perceived as a sign of weakness.”

Bringing the problems home

Many correctional officers struggle to leave the job behind at the end of a shift, which is described by psychologists as “dual role conflict.” People often bring home the violence, hypervigilance, and command culture they experience all day, importing violence into their homes and communities. As the 2013 literature review explains:

It can be difficult for a CO to override innate and acquired characteristics that are considered functional and professional in the workplace, but are not effective at home or in their personal lives… For example, conflict can occur at home when excessive job stress causes a CO to displace frustration onto spouses and children, ordering family members in the same way he or she issues commands to inmates.

The review further notes that family conflict can be exacerbated by other features of the job, such as “cynicism, pessimism, sarcasm, flattened drama/stress response, and exposure to trauma and other disturbing behaviors.” All of this can lead to withdrawal and isolation at home.

A 2021 study of 156 correctional supervisors found correlations between exposure to traumatic incidents on the job and work-family conflict. And a 2013 paper included first-person accounts from Canadian correctional officers describing the effects the job has on them. As one CO explained it:

Prison staff learn to apply a thin layer of ‘Machismo’ as a result of each incident they respond to. It’s like a Band-Aid… It covers and seals in your emotions and your feelings; otherwise you’re weak, a punk, or a sissy… The only problem is the Band-Aids don’t come off after work. They stay on. So you live your life and miss all the beauty and the real experiences because you are a heartless, emotionally numb, and desensitized a__. You see an awful car accident with injuries, big deal. You have a friend that gets hurt really bad, big deal. Your family member dies in his fifties and you truly love the man, big deal. An inmate gets stabbed 47 times, big deal. You get mad because your kid wrecks his bike and cries because he skinned up his knees, big deal. Tell him to man-up and quit being a baby and walk away.

Shane Bauer, the undercover journalist, described how his personality changed as he worked in a prison:

It is getting in my blood… When I drive home, I wonder who I am becoming. I feel ashamed of my lack of self-control, my growing thirst for punishment and vengeance. I’m getting afraid of the expanding distance between the person I am at home and the one behind the wire. My glass of wine with dinner regularly becomes three. I hear the sounds of Ash unit as I fall asleep. I dream of monsters and men behind bars.

This can lead to dire outcomes. A 2011 study found that work-family conflict can contribute to depression among COs. And in a 2012 survey of 710 correctional officers in Florida, 33% reported they had heard of at least one correctional officer who committed unreported domestic violence.

Nurses, teachers, and other corrections workers face similar challenges

Although there is little research into the experiences of correctional nurses, teachers, and case managers, the little we know suggests that COs are not the only ones experiencing stress and trauma.

A 2019 exploratory study from the United Kingdom found that 57% of participating correctional mental health nurses had listened to people express thoughts of suicide and self-harm more than 30 times. Most had witnessed self-harm or attempted suicide.

Repeated exposure to this type of trauma can build up, just as it can for COs. “Vicarious” or “secondary” trauma can occur in people who are exposed to disturbing images and stories second-hand, and can have similar symptoms to PTSD. A 2019 study from Australia found that 87% of participating health staff at correctional centers experience high or moderate levels of vicarious trauma. Similarly, a 2011 study of educators in youth facilities found that 81% met at least one, 55% met two, and 39% met all three core diagnostic criteria for PTSD.

A 2006 study of workers in two unnamed midwestern prisons found even higher rates of burnout among case workers than correctional officers. And while little research exists on the physical health impact of this work, a study of correctional nurses found that 56% had short sleep duration and 32% had poor sleep quality.

Communities and counties should not seek new prisons and jails as job boosters

The overwhelming evidence shows that correctional work is stressful and traumatic. But for decades, rural communities throughout the country were persuaded to compete for prison contracts, and are now stuck with these jobs.

Not only are individual prison jobs difficult, but prisons as a whole have failed to revitalize the towns where they are built. In a 2002 report, Tracy Huling concluded that “increasing evidence suggests that by many measures prisons do not produce economic growth for local economies and can, over the long term, have detrimental effects on the social fabric and environment of rural communities.”

First, Huling noted that prisons often don’t hire locals. She cited Ruth Wilson Gilmore’s Golden Gulag, which includes a study of prison towns in California that showed that, on average, less than 20% of jobs in new state prisons went to current residents of the local town. Looking specifically at Corcoran, Calif., which housed two prisons, Gilmore further found that just 40% of the people working at those prisons lived within a 75 mile radius of the town. This happens in part because prison systems tend to promote from within.

Prisons can have other negative effects on a town’s economy. Citing work by economist Thomas Johnson, Huling noted that they generate few “linkages to the economy.” Unlike an auto plant, which might lead to the creation of new delivery companies, radio assemblers, and electronic harness makers, prisons do not attract new, related industries to the area. What’s more, prisons tend to attract chain stores, creating a “replacement” effect where locally-owned businesses lose out to the incoming McDonalds and Walmarts. Prison labor carried out by incarcerated people for the municipality or for private industry — which is already exploitative — can also displace local workers.

Too late, communities may find that, with all the small businesses gone, they have become dependent on their prisons — meaning that when states occasionally shutter prisons today, the news can be met with disappointment and fear.

Since Huling’s report, the literature continues to back her up. A 2008 literature review concluded:

“The 1990’s location of prisons in rural areas was based on a high dose of economic development hype and the hopes and expectations of local elected representatives, business and community leaders who believed state prisons were a ‘gold plated’ solution to their economic problems… Once more comprehensive and rigorous impact studies did emerge, they demonstrated that many of the apparent benefits of rural prison location for local communities were invalid.”

A 2010 study lead authored by Gregory Hooks similarly found that prison construction “impedes economic growth in rural counties.” Three Kentucky counties remain among the poorest in the nation after becoming home to federal prisons. And in 2016, an analysis of 25 years of prison building in Appalachia found “little evidence to support the claim that prisons are engines of growth,” and warned: “policymakers would be well served using great caution before pursuing this development pathway.”

Today, the prison-building boom has slowed, and county jails have become the new frontier of carceral expansion. From 2013 to 2019, jail populations grew 27% in rural areas and 7% in small-to-midsize cities, prompting many counties to build newer and bigger jails. In some states, this growth is accelerated by policies in which the state departments of corrections pay counties a per diem to house people serving state sentences. In Kentucky, for example, “at the same time that coal revenues dried up, the state’s criminal justice policies subsidized and incentivized the expansion of carceral capacity at the county level,” explain Jack Norton and Judah Schept. But, like the prison boom jobs before them, jobs in these new, expanded jails should not be desirable to individual workers or communities.

Prisons bring trauma into communities — for the people locked up in them, of course, but for those employed there as well. There are other ways to create better, safer jobs for people in rural communities. In particular, states have the power to create different kinds of jobs — such as jobs in mental health services, youth programming, or health care — that simultaneously help others stay out of jail and prison in the first place.

Insufficient funds: How prison and jail “release cards” perpetuate the cycle of poverty

We examined release card companies’ fee structures to learn how this industry has evolved, and what government leaders can do to stop its worst practices.

by Stephen Raher, May 3, 2022

Every year, roughly 5 million people are released from jail and another half million leave prison. But just because they are released from physical custody doesn’t mean that they are free of the financial exploitation resulting from that experience.

When a person leaves a correctional facility, they often receive their funds — wages earned while behind bars, support from family members, or money the person had in their possession when arrested — on fee-laden prepaid debit cards. As we explain below, there are several ways (six, to be precise) to get money off of a release card, but they are expensive, difficult, or both.

We first put a spotlight on these “release cards” in 2015, when they came on the scene as one of the newer ventures from companies that have traditionally profited by charging incarcerated people and their families exorbitant rates for phone calls, money transfers, or other technological services. While release cards were novel in 2015, they are now ubiquitous. Since then, the Consumer Financial Protection Bureau (CFPB) has reined in some of the industry’s worst practices and cracked down on one of the biggest players in the industry, but these companies continue to line their pockets at the expense of low-income individuals who are trying to navigate the reentry process. As the CFPB’s director recently noted, some release-card companies have made a practice of “siphoning off…people’s own hard-earned money” through abusive practices that sometimes violate federal law.

To better understand how these companies continue to unfairly extract money from consumers — and more importantly, what can be done to stop them — we analyzed the most recent fee disclosures that release-card companies filed with the CFPB. The data (which are summarized in the appendix¹) paint a picture of a complex obstacle course, riddled with pitfalls that deprive formerly incarcerated people of the modest amount of money they have when they are released.

The six ways release-card companies grab people’s money

When someone is given a release card on their way out of a prison or jail, they have up to six ways to use its value, but each option entails different challenges, and most involve fees.

Option #1: Opt out (but the clock starts ticking at the moment of release)

The first way someone can get their money off of a release card is by exercising their right to “opt out” and get a refund.

While this may sound easy, it will come as no surprise that release-card companies make it difficult (or nearly impossible) for recently released people to exercise their opt-out rights. Cardholders face four primary hurdles:

1. First, the cardholder must act quickly. They have to notify the company they want a refund within an arbitrary “grace period” to avoid being hit with maintenance fees. These grace periods are generally between two and thirty days, creating an unnecessary obstacle at a time when the cardholder is trying to secure housing and employment, and (if on parole) comply with terms of supervised release.²
2. Second, opting out generally requires that the cardholder call customer service or make a web-based request to close the account. The problem here is that people recently released from custody frequently lack reliable phone or internet service.
3. Third, the cardholder cannot use the card for even a single transaction, effectively freezing their money at a time when they need it most.
4. Finally, refunds are generally sent via a mailed check, even though recently released people are likely to need time to establish a mailing address and are unlikely to be able to wait for the time required under the U.S. Postal Service’s degraded delivery standards.

A full breakdown of fees charged by each card type is available in the appendix.

If someone receives a release card that charges a periodic maintenance fee and they do not close their account within the grace period, then the maintenance fees will be deducted from their card balance every week or month. Almost three-quarters of the release-cards we reviewed charge “account maintenance” fees.

Option #2: Close the account after the opt-out period has expired

After the grace period has expired, a cardholder can request that the account be closed and receive a refund via mailed check. Seventeen release cards (all managed by Numi Financial) charge a steep $9.95 fee for this service, meaning anyone with a balance of less than $10 can’t take advantage of this option. Someone with a $50 balance can use this option, but effectively has to pay a fee of 20% for a very simple transaction.

Option #3: Transfer the money to a bank account (if you have one)

Some cardholders can transfer their balance to a bank account. Two of the three dominant release card brands (Access Corrections and Numi) appear to allow cardholders to transfer their funds to a bank account without paying a fee.³ However, the companies do not provide much detail about how to do this, beyond referring consumers to the program manager’s website. While this may be useful for cardholders with bank accounts, most people being released from long terms of incarceration don’t have bank accounts, effectively eliminating this option for them.

Option #4: Use the card to make purchases

Holders of release cards can use their balances to make in-store or online purchases. This only works if the business in question accepts Mastercard. While many retailers do, some important businesses (like landlords) do not.

But even if a cardholder wants to use the card at a Mastercard-accepting business, simply using the card for purchases can subject them to a whole new series of fees. Some cards charge users for each purchase (seven cards levy such fees, averaging 71¢ per transaction). These fees are hard to justify because card companies are already compensated for the cost of processing transactions through interchange fees paid by merchants.⁴

Half of the cards we examined charge fees for declined transactions, with an average fee of 62¢. These fees are even more difficult to justify because it doesn’t appear that card issuers incur any expense when a purchase request is declined. These fees seem to be nothing more than corporate enrichment at the expense of consumers who are least able to absorb these costs.

Finally, don’t forget that for cards with periodic maintenance fees, the longer it takes the consumer to spend down their balance, the more they will pay in weekly or monthly maintenance fees.

Option #5: Get cash at an ATM

Getting cash from an ATM also presents its own challenges and fees.

Some card companies offer a network of ATMs where customers can withdraw their money for free, or a relatively low fee. However, if the cardholder uses an ATM outside of this network, they’re likely to be hit with fees by both the card issuer and the bank that operates the ATM. Twenty-nine release cards (60% of our data set) impose fees for ATM withdrawals — with an average fee of $2.58 per transaction. Sometimes these fees apply only to out-of-network ATMs, but some cards charge the fee for all ATM transactions.

Finally, twenty-four cards impose a fee for declined ATM transactions (with an average fee of 62¢). To avoid a declined-ATM-withdraw fee, a cardholder may want to check their available balance, but doing that at an ATM carries a fee — ranging from 50¢ to $1.50 — on thirty-seven release cards (77% of the data set).

A full breakdown of fees charged by each card type is available in the appendix.

Option #6: Withdraw cash at a bank

Over-the-counter withdrawals appear to often be fee-free, but figuring out how to use this option can be nearly impossible. For example, the cardholder agreement for Axiom Bank’s release cards (branded as Access Corrections cards) states that cardholders must perform over-the-counter withdrawals at a “MasterCard principal financial institution,” but neither Axiom or Mastercard itself provides information on how to determine which bank branches fall within this category. Similarly, Central Bank of Kansas City (a partner with Numi Financial) also fails to inform customers where they can make over-the-counter withdrawals, but cardholder materials do warn that banks offering this service may impose their own fees.

Making release cards work for recently released people

All too often, correctional facilities use release cards without giving any thought to the experience of the person being released from custody. For a short stint in jail — a few days or hours — simply returning a person’s cash to them upon release is almost always the best option. If someone spends a longer time in custody, though, and accumulates a balance in their “trust account,” a prepaid debit card may be a convenient way to give someone their money, especially if there are few (or no) fees and cardholders have free and easy-to-use options to transfer the balance or turn it into cash.

The real problem here isn’t release cards themselves; it’s the abusive fees and practices that are common in the industry today.

Correctional agencies can take steps to end some of the most outrageous release-card practices. For example, we identified one release card in the CFPB database that stands out in a good way: the Comerica Bank card used by the North Dakota Department of Corrections. This card has relatively few fees compared to other companies: just an inactivity fee of $2/month that kicks in if the card hasn’t been used for twelve consecutive months, a $10 fee for expedited replacement of a lost card via overnight mail (a replacement card via first-class mail is free), and a few ATM fees.⁵ It’s also the only card we reviewed that doesn’t include a mandatory arbitration provision. How did such a small prison system get such a good deal? Because the North Dakota Department of Corrections joined with other state agencies that use prepaid debit cards (for payments like unemployment benefits) to negotiate a group contract with decent consumer protections. It’s a practice more states can and should adopt.

State legislatures can also crack down on bad release-card deals. We’ve drafted simple model legislation that prevents most of the worst practices in the industry.

Search contractsSee what companies are profiting off of release cards

Finally, the federal government has a role to play in making these cards work better for consumers. The CFPB is currently looking at “junk fees” charged in connection with consumer financial products. These are fees that don’t serve any real purpose other than to pad the bottom lines of the companies that charge them. We filed comments asking the CFPB to finish the work it started when it fined JPay last year. We encouraged the agency to crack down on some of the worst practices across the release card industry, in addition to addressing the equally abusive fees charged for money transfers to incarcerated people.

Release cards shouldn’t be a tool for taking money from those who can least afford it. Prison and jail officials, along with state and federal leaders, have a responsibility to ensure the little bit of money that recently released people have is not quickly drained by hidden or inescapable fees. States and counties should follow the lead of North Dakota by leveraging their power to negotiate a contract that minimizes fees; state legislatures should prohibit the industry’s worst practices; and the CFPB should continue to police companies in this sector.