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

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

by Danielle Squillante, December 21, 2023

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

Mass Incarceration: The Whole Pie 2023

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

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

Punishment Beyond Prisons 2023

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

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

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

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

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

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

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

The aging prison population: Causes, costs, and consequences

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

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

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

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

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

Breaking news from inside: How prisons suppress prison journalism

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

A profile of Native incarceration in the U.S.

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

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

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

Advocacy Toolkit

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

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

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

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

by Wendy Sawyer, December 19, 2023

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

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

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

Upward trends in prison and jail populations in 2022

Prisons

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

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

Local jails

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

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

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

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

What we found was troubling but not surprising:

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

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

Explaining recent prison and jail growth

It wasn’t crime

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

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

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

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

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

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

Changes in court processes

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

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

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

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

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

State prison systems and the BOP predict future growth

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

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

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

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

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

Returning to ‘business as usual’

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

Appendix tables

Prison population projections and sources

State and federal prison populations 2019-2023 and sources

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

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

by Emmett Sanders, October 16, 2023

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

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

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

The state of parole

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

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

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

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

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

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

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

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

Why are parole boards releasing so few people?

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

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

Parole Boards are influenced by politics

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

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

Policy efforts to increase release rates are often stalled or undermined

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

Conclusion

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

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

Appendix tables

Discretionary Parole Grant Rates by state, 2019-2022

The aging prison population: Causes, costs, and consequences

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

by Emily Widra, August 2, 2023

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

Aging throughout the criminal legal system

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

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

The dangers of aging in prison

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

The high costs of incarcerating older people

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

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

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

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

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

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

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

Policing

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

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

Sentencing

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

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

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

Tools to reduce the aging prison population remain underutilized

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

Parole

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

Compassionate release

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

The result: Nursing homes behind bars

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

Reducing the aging prison population

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

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

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

Conclusion

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

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

Breaking news from inside: How prisons suppress prison journalism

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

by Brian Nam-Sonenstein, June 15, 2023

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

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

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

Chilling expression

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

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

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

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

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

Prohibitions on business and compensation

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

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

Prison journalism is essential work

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

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

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

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

Conclusion

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

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

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

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

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

by Emily Widra, June 1, 2023

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

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

Figure 1.

Nationally, HIV rates in prison greatly outpace the general population

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

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

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

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

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

Figure 2.

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

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

Black men are hit the hardest by HIV and incarceration

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

Figure 3.

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

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

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

Regional differences: HIV prevalence in the South

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

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

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

Figure 4.

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

HIV testing: Vast differences in prison policies

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

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

The criminalization of HIV across the U.S.

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

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

Figure 5.

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

HIV criminalization in the South: A closer look at Florida

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

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

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

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

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

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

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

Conclusion

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

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

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 Ruth, 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 ² to offering a recent, descriptive, nationally representative picture of the population on probation and parole.³

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 Ruth, 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).