How journalists can push back on prison and jail “gag rules”

Broad policies prohibiting prison and jail staff from talking to reporters are common but likely unconstitutional. Here’s how reporters can push back against these policies.

by Mike Wessler, December 13, 2024

Journalists play an essential role in spotlighting the terrible conditions and circumstances that incarcerated people face every single day. It’s perhaps no surprise then that corrections departments routinely make it harder for reporters to get information about their facilities. Some of the most common obstacles to reporting on jails and prisons are “gag rules” that forbid anyone on staff from talking to journalists without approval from their supervisor or a public information officer (PIO).

Here’s the dirty little secret about these gag rules: despite being incredibly common, they are almost certainly unconstitutional and unenforceable. In fact, within the last year, journalists have successfully challenged gag rules to provide more transparency on what is happening within carceral facilities and make more thorough reporting possible.

In this briefing, we reviewed research from the Society of Professional Journalists and from Frank LoMonte,¹ currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice, to show how common and far-reaching these gag rules are in the criminal legal system. We also explain why courts have consistently struck down gag rules, and provide an actionable pathway for journalists to challenge them.

What are “gag rules” and how common are they?

A gag rule seeks to do exactly what it sounds like: keep people from talking. In this case, gag rules deter jail and prison employees from speaking to the media.

In corrections departments, gag rules generally take three forms:

1. An explicit policy from the department’s legal team that lays out specific rules, procedures, and punishments for failing to follow the policy when communicating with journalists.
2. Directives from a public information officer that tell employees how to respond if they’re contacted by a member of the media.
3. An organizational culture of silence, where there isn’t a specific written policy or directive but rather a general understanding that staff should not talk to journalists.

Gag rules are incredibly common.² A 2016 survey by the Society of Professional Journalists found that more than 55% of journalists covering law enforcement agencies said they are never or rarely allowed to interview officers without a public information officer’s involvement. Additionally, 41% of surveyed journalists said that accessing police officers and law enforcement agents has gotten marginally or significantly more difficult in the last five to ten years.

Policies from correctional agencies are often quite explicit in prohibiting staff³ from speaking with the press:

• The Alabama Department of Corrections’ policy manual says: “If a reporter or news media representative contacts an employee of ADOC for an interview, that employee or their supervisor shall notify the PIM (public information manager) and gain approval before speaking with the news media.”
• In Louisiana, the Department of Corrections’ policy manual says: “Staff shall refer all media inquiries to the unit head or designee.”
• In its policy manual, Arizona’s Department of Corrections states: “Department staff shall refer all media requests to the Media Relations Director and the Deputy Media Relations Director.”
• Similarly, Idaho’s Department of Correction policy says, “Requests for interviews with staff will be referred to a PIO.”

These are just a handful of examples that can be found by reviewing departments of corrections’ policy manuals, and there is every reason to believe that local jails have similar — if not even more restrictive — rules on the books.

Courts have routinely struck down stringent “gag rules”

Even though gag rules are incredibly common, courts have consistently struck down blanket policies that restrict public employees from talking to members of the press without authorization.⁴ In his review of court rulings on this issue, LoMonte found nearly two dozen cases in which courts have rejected policies that require government employees to get approval before speaking to the media.

Courts — including the Supreme Court of the United States — have looked most harshly upon rules prohibiting speech before it can be heard as a form of censorship known as “prior restraint.” The Supreme Court has said government agencies must show an overwhelmingly compelling reason to prohibit employees from speaking publicly. Importantly, federal courts have clarified that avoiding accountability does not constitute an overwhelmingly compelling reason.

At least four federal circuit courts⁵ have struck down broad restrictions on government employees speaking publicly, and two additional ones⁶ have suggested they would act similarly. In fact, no federal court of appeals has upheld these broad restrictions.

It is worth noting that the courts haven’t struck down all prohibitions on public employees speaking to the press, just those determined to be overly broad. For example, agency policies that don’t outright ban unapproved communication between the press and employees, but do urge caution or encourage employees to consult with PIOs, would likely pass constitutional muster because they are not as stringent and lack a threat of punishment.

How journalists can fight gag rules

Most journalists who have covered prisons, jails, or other aspects of the criminal legal system have almost certainly encountered gag rules. Often, these rules feel like insurmountable obstacles that hinder an otherwise promising story. Fortunately, that doesn’t have to be the case. If you run into a gag rule, here’s a clear strategy to overcome it or, if necessary, challenge it in court.

First, you should aim to get prisons, jails, or other law enforcement agencies to do one of two things:

1. Acknowledge in writing that its “policy” around employees talking to the press isn’t really a policy at all but more of a request or recommendation that has no consequences for violating it and is otherwise unenforceable.
2. Admit that it’s a formal policy that includes the threat of punishment and, thus, is ripe for a legal challenge.

To accomplish this, you should request a written copy of the policy. In addition, you should ask who drafted the policy, how it is enforced, and what the punishment is for an employee or journalist⁷ who violates the rule. You may need to file a public records request to get some of this information.

Once you have that information, consider the following issues:

• Is there a written policy? If not, you should get documentation from the agency indicating this fact and use this information to assure agency employees that speaking to the press is not prohibited.
• What does the policy look like? With this question, you want to understand whether the policy was created through the facility’s formal drafting process and is enforced, or whether it was more of an informal request made to staff.
• Who drafted it? This question will allow you to assess how seriously the policy has been thought out by the agency. Policy from the legal department has likely gone through a formal implementation process, while a guideline from the PIO likely has not followed that official pathway.
• What are the consequences of violating it? This will indicate whether employees or journalists who violate the rule should be worried about punishment.

Once you have this information, you have to make a judgment call:

• If it appears the agency has no real policy, or it is a policy that there are no repercussions for violating, you can take that information to agency employees and explain the situation. There is always the possibility employees will fear speaking to reporters simply because they know their superiors will not like it or will not like what they say to the reporter. But knowing the rules may give the reporter more leverage.
• If it appears the agency has an official policy with explicit consequences, your first step should be to investigate whether similar policies have been struck down by federal courts in your area. If so, bring this to the attention of the agency’s legal department to make sure they know that they are at risk of a lawsuit. This may be enough to get them to abandon the policy. If that doesn’t work, you will likely need to challenge the policy in court.⁸

If you determine a lawsuit is necessary to overcome a gag rule, you should first contact your newsroom’s legal team to discuss the matter. You should also check out the Yale Law Media Information & Access Clinic’s website, which has more information and resources. This organization also provides legal assistance in some cases involving government agencies inappropriately hiding information from the public and press and wants to hear from journalists encountering these gag rules.

These gag rules, while incredibly common and frustrating, don’t have to be the end of your story. This strategy and these resources can help you get to the truth about what is happening within the walls of prisons and jails and your community, and provide much-needed public scrutiny of how incarcerated people are treated.

The 2024 reporting on incarceration that newsrooms should emulate in 2025

We highlight some of the year's best reporting on incarceration, and offer tips for journalists interested in pursuing similar stories in their states.

by Wanda Bertram, December 11, 2024

As multiple crises — of poor conditions, escalating deaths, environmental dangers, and an aging population — converge in U.S. prisons and jails, investigative journalism is more important than ever to shine a light inside the “black box” of mass incarceration. For journalists interested in investigating issues behind bars in the coming year, we curated 10 stories published this year that are ripe for emulation by other newsrooms.

Each of these stories concerns an issue endemic to U.S. prisons and/or jails. For each, we’ve included a few questions journalists can ask to start exploring the issue in their state or county.

“Denied: Alabama’s broken parole system,” AL.com

Reporters Ivana Hrynkiw and John Archibald took a deep dive into the Alabama Board of Pardons and Paroles, which — like most parole systems in the U.S. recently — is granting release to fewer and fewer people every year. Their story series exposes a system that keeps even the elderly locked up for decades, and demonizes people whose convictions were as minor as shoplifting or growing marijuana. And for those with more serious convictions, like the domestic abuse survivor who shot her abuser over 30 years ago, “Denied” shows how the Board has refused to take important context into consideration.

Another excellent parole story came from Bolts and Mother Jones, who collaborated to reveal the nearly-nonexistent chances for approval that people in Virginia prisons face. (This could be helpful for reporters in states that — like Virginia — have formally “abolished” parole but still retain it for people sentenced before the law was changed.)

Questions to jumpstart your reporting on parole grant rates:

• How many people eligible for parole in your state have been granted release in recent years? (For most states, for years 2019-2022, that data is on our website.)
• What are the most common reasons people are denied parole? (You will likely have to submit a public records request for this information. Some states keep this data, while others do not.)
• How many elderly people in your state’s prison system were considered for parole in recent years? How many were approved/denied?

Need suboxone at the Allegheny County Jail? Get up at 3 a.m., PublicSource

As part of a series on the Allegheny County Jail’s expanding medication program for drug addictions, Venuri Siriwardane investigated how the jail delivers medications: by waking up patients in the middle of the night and giving them crushed-up tablets, which is far from the standard treatment recommended by clinicians. Siriwardane’s series explores how MOUD treatment in jail comes with “all kinds of restrictions, weird requirements, or problems with program administration that lead to people not actually getting the treatment that they need,” in the words of a prisoners’ rights lawyer.

Questions to jumpstart your reporting on treatment for substance use disorder behind bars:

• Does your local jail track substance use disorders in the population (for instance, by screening individuals at intake)? If it does keep this information: How many people in the jail in an average month have a substance use disorder?¹
• For individuals who were on SUD medication treatment prior to their incarceration, can they continue that treatment while in jail?
• For individuals not on medication treatment prior to incarceration, will the jail initiate that treatment?

For more context, see our January briefing Addicted to punishment: Jails and prisons punish drug use far more than they treat it.

How New York’s Maximum Security Women’s Prison Has Failed to HALT Solitary Confinement, New York Focus

Incarcerated journalist Sara Kielly reported on how the Bedford Hills prison in New York has found creative — and cruel — ways around the state’s 2023 HALT Act meant to limit solitary confinement. Bedford Hills — the state’s maximum security prison for women — has refused to allow incarcerated people their legally-required representation at disciplinary hearings, even provoking outrage and protests from staff. Meanwhile, prisons across the state continue to hold thousands of people in long-term isolation in so-called “alternative” units.

Questions to jumpstart your reporting on solitary confinement:

• How many people in your state’s prisons are in solitary confinement (often called “administrative segregation” or “secure housing”)? How many are in other forms of restrictive housing (the prison system’s policy manual may list what those are)?
• For people charged with disciplinary violations that could get them put in solitary, what does due process look like? Are people entitled to representation at hearings, and do they get it? Are they allowed to appeal?

Locked In, Priced Out: How Prison Commissary Price-Gouging Preys on the Incarcerated, The Appeal

A team of reporters at The Appeal analyzed prison commissary price lists in 46 states, finding inconsistent pricing, discrepancies in prices for specific goods inside versus outside prisons, and “markups as high as 600 percent.” Fortunately for reporters interested in diving deeper into commissary data in their states, The Appeal has made it easy to get started, compiling all of the data they used for their project in a public database of commissary prices.

Questions to jumpstart your reporting on prison and jail commissaries:

• How many hours would an incarcerated person in your state’s prisons have to work to afford basic items at the commissary, like a toothbrush or a package of ramen? (See the ACLU’s report Captive Labor, page 57, for a table of wages for prison labor by state.)
• How much money did the prison system earn for the last few years in commission payments from its commissary provider? (Tip: These payments typically go into the “inmate welfare fund,” the subject of the next story in this list.)

Prices are going up at the Sonoma County jail commissary, spending on inmate programs is not, Santa Rosa Press-Democrat

The Sonoma County Jail is sitting on $1.35 million in its “Inmate Welfare Trust Fund,” a reservoir of cash from incarcerated people and their families’ commissary purchases. Reporter Marisa Endicott investigated how the money has been used in recent years, finding that the jail has consistently spent less than half of the available money in the fund — and that some local decisionmakers are interested in removing the jail’s markups on commissary goods altogether in order to allow incarcerated people to save money.

Another notable investigation into prison and jail welfare funds came from the Washington State Standard, with reporter Grace Deng finding — similarly — that the Washington DOC is letting $12 million in its welfare fund sit idle.

Questions to jumpstart your reporting on inmate welfare funds:

• What is the welfare fund called in your local jail system, and how is the money allowed to be used?
• What is the balance of the welfare fund? (You will likely have to submit a public records request for this information.)
• Who oversees the welfare fund and how is the money spent? Do incarcerated people and their loved ones have a voice?

For more context, see our May 2024 report Shadow Budgets, and our companion guide to reporting on welfare funds.

Idaho jails withheld details about dozens of detainee deaths, InvestigateWest

Idaho is one of a number of states allowing sheriffs to “opt in” to jail inspections, and also lacks consequences for jails that don’t report deaths to the state government. As a result, many deaths go unreported, with the state officials that handle death data forced to “search for media coverage of deaths that were not reported” to get an accurate count. Reporter Whitney Bryen’s findings skillfully illustrate the absence of data and accountability around deaths in local facilities.

There was a wealth of other journalism this year about jail deaths. For more of the best, check out investigations by the Cincinnati Enquirer, Chicago’s Injustice Watch, The Arizona Republic, and CalMatters.

Questions to jumpstart your reporting on deaths behind bars:

• How many deaths occurred in your local jail last year?
• What kinds of records does the jail keep around deaths in custody? (Posing this question to the public information officer at the jail will help you decide what records to request.)

For more tips on investigating in-custody deaths, see our June briefing about health privacy laws and submitting effective public records requests.

We also recommend building relationships with family members of people who have died in jail. All too often, jails fail to produce accurate counts, and family members can help fill in the gaps.

Be a Jail Watchdog, New York Focus

On its face, New York State has a robust jail oversight system, with a state agency tasked with inspecting local jails and even empowered to shut jails down. But the agency reveals very little of its findings about jails to the public. Chris Gelardi and Eliza Fawcett at New York Focus used public records requests to bring jail oversight records into public view — records that reveal widespread problems in locally-run facilities and ineffective (or nonexistent) state attempts to fix those problems.

Questions to jumpstart your reporting on jail oversight:

• What agency oversees local jails in your state? Who staffs that agency, and how often do they actually meet? (This table we prepared of state agencies that set local jail standards may be helpful.)
• Can jail oversight officials in your state require jails to submit to inspections or is it an “opt-in” system? If officials find problems in a jail, can they require jails to fix those problems?

People behind bars grapple with relocations, disruptions caused by Helene, North Carolina Health News

Reporter Rachel Crumpler investigated the North Carolina Department of Public Safety’s response to Hurricane Helene: While incarcerated people made it through the storm safely, several hundred were relocated to already-crowded prisons in non-impacted parts of the state. Ignoring demands from advocates that prisons release some incarcerated people to alleviate overcrowding, the department continues to house people in prisons that are already short-staffed, revealing the dire shortcomings of standard emergency response plans.

Questions to jumpstart your reporting on how environmental disasters impact prisons and jails:

• What climate-related risks do prisons and jails in your state face? (The Intercept‘s Climate and Punishment mapping tool has data that may help with this question.)
• Do the facilities most at risk have written guidelines for handling a weather emergency? If so, what do the guidelines say about when incarcerated people should be evacuated?

Tip: For prisons in several states, the Toxic Prisons Mapping Project has published stories from incarcerated people about their experiences with environmental hazards.

Has Prison Programming Recovered from Covid?, Mother Jones

From inside Washington state prisons, writer Christopher Blackwell, collaborating with reporter Khawla Nakua, exposed “another kind of long Covid: how the aftermath of pandemic cuts have lingered” behind prison walls. In Washington, the 7,000 volunteer instructors inside the state’s prisons pre-Covid have dropped to 1,500, leaving incarcerated people without critical programming — including programs helpful or necessary for earning early release. Even staff shortages, which were exacerbated by the pandemic, cannot fully account for the nationwide shrinking of in-prison programming.

Questions to jumpstart your reporting on prison programming:

• How many volunteer instructors, counselors, and service providers were in your state’s prison system in 2019? In 2021? Today?
• What percent of incarcerated people were participating in educational programs in your state’s prisons in 2019/2021/today?

‘Rebellion’ at Idaho prisons: Here’s why men in maximum security joined a hunger strike, Idaho Statesman

As lockdowns and lockdown-type conditions become more frequent and prolonged throughout U.S. prisons, Alex Brizee at the Idaho Statesman investigated how protests by men at the Idaho Maximum Security Institution — where rehabilitative programming and recreational time have been largely suspended for years — are both winning concessions from prison officials and leading to punitive crackdowns. Responding to the Statesman‘s inquiries, DOC officials talked out of both sides of their mouths, saying staff shortages were to blame for conditions while also claiming incarcerated people could earn back these “privileges” through better behavior.

Questions to jumpstart your reporting on lockdowns:

• Were prisons in your state under prolonged lockdowns at any point in 2024? How many times? (We recommend cultivating incarcerated sources and asking them this question in case the prison system is not forthcoming.)
• How do lockdowns impact incarcerated people’s access to family visits? To commissary? To recreational time?

This piece only scratches the surface of the excellent journalism we saw in 2024 — other stories dealt with the criminalization of mental illness, kids prosecuted in adult court, prison phone contracts being violated by telecom companies, and much more. As state prisons and local jails continue to warehouse the vast majority of people incarcerated in this country, local investigative journalism remains a core piece of the movement for reform.

For more story ideas, subscribe to our newsletter, where we deliver briefs on important issues behind bars on a mostly-weekly basis. And if you’d like to talk about a story concept with us, get in touch.

Advocacy Spotlight: The Humanization Project

Advocates in Virginia are leveraging their own lived experience and the voices of thousands of other systems-impacted people and their families to make sweeping changes to the state’s prisons. Here’s how they’re doing it.

by Emmett Sanders, December 2, 2024

People who go through the criminal legal system often feel as if their humanity is being ignored. These feelings are more than justified. Dehumanization is not simply a side effect of incarceration: it is intentional and has been a part of prisons in the United States since the first brick was laid. Prisons in early America were so focused on keeping prisoners isolated and anonymous that they “required inmates to wear hoods whenever overseers moved them around the penitentiary.” While some things have changed, stripping prisoners’ identities remains a main component of incarceration in America.

According to activists like Johnny Perez, “The thing that they take the most, also, is actually your identity.” As the authors of The Roles of Dehumanization and Moral Outrage in Retributive Justice point out, “viewing others as lacking core human capacities and likening them to animals or objects may make them seem less sensitive to pain, more dangerous and uncontrollable, and thus more needful of severe and coercive forms of punishment.” Reducing incarcerated people to numbers or to the alleged acts that brought them to prison makes it easier to deny them civil rights and allows systems to justify harsher punishment, longer sentences, as well as the inhumane, often abusive conditions that prisons impose by design. Dehumanization allows policymakers to ignore the human impact of their decisions on people in prisons and their families. It also creates the false image that people in prison are incapable of rehabilitation.

Virginia researchSee all our research on Virginia prisons and jails.

When lawmakers don’t see people in prisons as fully human, it makes it much harder to change inhumane prison conditions and policies. That’s why an organization of systems-impacted advocates in Virginia, The Humanization Project, uses a framework of “humanization” to drive policy change. Humanization works to unflatten the identities of those impacted by incarceration in public narrative and political discussions, shifting focus away from people’s worst moments and toward the many statuses and roles that make them who they are. Through humanization, people are not just numbers or statistics; they are fully formed human beings with families who love them. They are children and parents, husbands and wives, grandmothers and grandfathers. This change in perspective can have a powerful impact on lawmakers.

The Humanization Project provides a powerful framework for advocacy

The Humanization Project has been working with the impacted community to reform Virginia’s justice system since 2017. Co-founded by Executive Director Taj Mahon-Haft and his partner Gin Carter while Mahon-Haft was still incarcerated, the organization began by noting that the “human consequence” of policy decisions was often left out of reform discussions. Informed by Mahon-Haft’s experience as a trained sociologist, The Humanization Project used a humanization framework, centered in empathy and common ground, to develop several strategies to change this dynamic, including:

• Using multimedia platforms to curate narratives and impacted person-produced research that provide human faces and voices for issues, and connecting those narratives with policymakers, advocates, and the public;
• Using community engagement and direct outreach to educate and inform impacted people and their families on how the legislative process works, what a bill will do, and the processes and procedures of system change;
• Leveraging their intersectionality as impacted advocates to facilitate human-centered discussions across a diverse array of partners in order to build capacity and coalition through commonality and compassion.

Entirely dependent upon the support and engagement of the justice-impacted community, this model helped The Humanization Project shift narratives, defuse fear-mongering attacks, and expand support for one of the biggest reforms in Virginia’s history, HB5148, which established a system for Earned Sentence Credits.

Anatomy of a victory: Earned sentence credit in Virginia

According to the Virginia Department of Corrections, when COVID-19 hit, the state’s prison population had been hovering at around 30,000 people since at least 2014.¹ Advocates, organizers, and policymakers used litigation and proposed legislative changes to reduce prison populations. In the context of this struggle, lawmakers proposed HB 5148 to expand the use of earned sentence credits. In Virginia, as in other states, some people in prisons earn “good time” credits: for each day they spend incarcerated without disciplinary issues, they earn a certain amount of time off their overall sentence. Earned Sentence Credits, unlike good time credits, are based on merit and require participation in rehabilitative or educational programming, work, or service. Among other benefits, expanding the use of earned sentence credits can help reduce prison populations, make prisons safer, and reduce the chance of people returning to prison. Offering and incentivizing rehabilitative programming also better aligns with what crime survivors want. In Virginia, however, offense-based carveouts meant that thousands of people couldn’t earn sentence credits for participating in programming. HB 5148, the Earned Sentence Credit bill, more than tripled the amount of time most people could earn for participating in programming and applied retroactively, meaning people were awarded credit for programming they had participated in in the past. All in all, it offered an earlier release date for thousands of people in Virginia’s prisons.

Using a humanization model, and with the priceless engagement of community members and grassroots and civil rights organizations like the ACLU of Virginia, The Humanization Project produced videos and messages from people in prison to urge policymakers to pass HB 5148. When Gov. Youngkin forced a budgetary amendment that carved out people with certain offenses and reduced the number of people eligible for the rise in earned sentence credit by around 40%, The Humanization Project again lifted the voices of those most directly affected to fight against the change. The bill passed in October 2020, and was fully realized in May 2024 when the state’s new budget was signed into effect without the governor’s exceptions, expanding eligibility to another 7,000 incarcerated people.

Including the 10,826 who had received immediate changes to their release dates when the bill took effect in July of 2022, nearly 18,000 people² have had their release dates modified overall. Around 79% (or 7,329 out of 9,324) of people released from Virginia’s prisons in FY 2023 alone benefitted from earned sentence credits, with thousands more projected to be released through earned sentence credits in FY 2024. Overall, per the Virginia Department of Corrections’ monthly population reports, the state lowered its state-responsible population by around 12% between June 2022 (25,889) and September 2024 (22,802), contributing to the closure of four prisons. The implementation of earned sentence credit is also projected to save Virginia $28 million over the next two years. The Humanization Project notes this victory does not belong to them, but to the broader justice-impacted community in Virginia: as Taj Mahon-Haft points out, “We are proud to have been part of helping organize and engage people, but the progress only happened because impacted folks across the state shared their voices and humanity in ways that changed hearts and minds. Anyone who really gets to know the members of our community can’t help but want a more humane system.”

Source: Virginia Department of Corrections Monthly Population Reports June 2022 through September, 2024.

Humanizing future advocacy can strengthen reform

While many factors contributed to Virginia’s massive drop in prison population since the COVID-19 pandemic began, the passing of Earned Sentence Credit has played a huge role, as has the use of humanization as a framework for change. The Humanization Project is now applying this same advocacy model to other issues they’ve identified, such as their “Reentry Begins: Day 1 Inside” initiative, which focuses on creating earlier access to programming for people in prison. Currently, people may have to wait months or even years before accessing programming. With the passage of HB5148, earlier access to programming would mean incarcerated people could begin to accrue earned time and ultimately become eligible for release earlier as well, further amplifying the success of the changes to earned sentence credit. The campaign is also turning the lens of humanization towards protecting visitation quality and access for those in Virginia’s prisons and their loved ones, an effort that the Prison Policy Initiative’s advocacy department has supported through research.³ Focusing on humanization as a method of advocacy has proven effective in many contexts, and advocates across the country can use it in their own reform work.

Conclusion

Ultimately, the dehumanizing force of incarceration serves as a roadblock to reform by disconnecting policymakers from the human experiences of those in prison. Humanization is a framework that uses intersectionality, compassion, and common experience to implement meaningful, sweeping change by countering narratives that too often overlook the people in the policy. As the Humanization Project’s co-founder Gin Carter puts it, “This particular argument has been won with humanity conquering the day. We discuss the human impacts more while stereotypes, dog whistling and fear-mongering win out less often.”

Learn More

Learn more about good time and other ways to shorten excessive prison sentences in our report, Eight Keys to Mercy, and learn how mass decarceration does not make us less safe in Large scale releases and public safety, and learn more about combating carveouts that undermine effective justice reforms in our toolkit and webinar on charge-based exclusions.

New rule means people on community supervision now qualify for Medicare

Under this new rule, more than 340,000 people over the age of 65 who are on probation or parole will have access to healthcare coverage.

by Mike Wessler, December 2, 2024

Last month, the federal government approved an important new rule that makes people on probation or parole, out on bail, or living in a halfway house eligible to receive Medicare benefits. Medicare is the federal health insurance program for people who are age sixty-five or older or who have certain disabling medical conditions. Under this new rule, more than 340,000 people over the age of 65 who are on probation or parole, along with countless others who are under other forms of community supervision, will now qualify for Medicare.

Medicare does not provide care for people who are “in custody.” However, prior to this rule change, Medicare’s definition of “in custody” was much broader than the average person would assume. Rather than applying only to people behind bars, it also applied to anyone who was on bail, probation, parole, in a halfway house, or otherwise under the supervision of correctional authorities but not necessarily behind bars — excluding them from accessing health insurance benefits from the program.

The federal government based its previous Medicare policy on the flawed notion that people on community supervision received medical care from a correctional authority, which we heard time and time again is not the case. Prisons and jails often don’t provide adequate care to people behind bars, and they certainly don’t provide it to people living in the community.

This change is important because older people and people with disabilities are tangled in the criminal legal system at disproportionately high rates. Additionally, people on community supervision have dramatically higher rates of serious medical conditions, including Hepatitis B or C, kidney disease, and other disabilities — they’re also more likely to be uninsured.

We submitted public comment, along with dozens of other groups, including the Health and Reentry Project (HARP), Justice in Aging (JIA) and the Legal Action Center (LAC), in September urging the federal government to make this change. These new rules go into effect on January 1, 2025.

This is a significant victory won by the work of advocates from all across the nation that will significantly improve healthcare access for hundreds of thousands of people.

Highlights from a bustling year at Prison Policy Initiative

In our new annual report, we share examples of how we empower the reform movement with the data it needs to counter “tough on crime” narratives

by Danielle Squillante, October 16, 2024

We wrapped up another busy year at the Prison Policy Initiative, and are thrilled to share our 2023-2024 Annual Report with you. We released 7 major reports, 32 research briefings, and two guides for journalists to support further investigative work on issues related to mass incarceration. We also provided technical support to advocates at the state and local levels working on issues such as ending prison gerrymandering, parole reform and fighting jail expansion. Here are a handful of accomplishments we’re particularly proud of:

• Publishing updates to our bedrock reports detailing the scale of mass incarceration in the U.S. and globally, including Mass Incarceration: The Whole Pie, Women’s Mass Incarceration: The Whole Pie, and States of Incarceration: The Global Context
• Releasing a report on how jails and prisons misuse money from “inmate welfare funds” on staff perks or to cover budgetary gaps, rather than use those funds on services that benefit incarcerated people. We released a companion guide for press to encourage journalists to further investigate welfare funds in state prisons and particularly in local jails.
• Discrediting the argument that jails and prisons are rehabilitative by spotlighting how they fail to provide evidence-based voluntary treatment for people with substance use disorders and refuse to release elderly people who pose no safety risk to their communities.
• Keeping the need for jail reform front and center through multiple publications that challenge the efficacy of detaining people pretrial, show how pretrial detention has a warehousing effect, and debunk common arguments used to justify jail expansion.
• Helping Minnesota join the growing list of states that have ended prison gerrymandering. Progress on this issue has been so rapid that the National Conference of State Legislatures recently called state efforts to end prison gerrymandering “the fastest-growing trend in redistricting.”

This is only a snapshot of what we produced this past year. We are proud of our accomplishments and look forward to sharing new projects with you in the year to come.

Mass Incarceration 101: Resources to help students and teachers understand the carceral system

It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system.

by Danielle Squillante, September 3, 2024

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion. It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why. In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Additional reading assignments:

• Our briefing on states’ reliance on excessive jailing explains the drivers of jail growth including the practice of renting jail space to state and federal agencies like the U.S. Marshals Service. The appendices include useful data on jail trends and population data over time.
• Our Punishment Beyond Prisons report looks at how many people in each state are on probation or parole. Notably, some of the states that are the least likely to send people to prison are among the most punitive when other methods of correctional control are taken into account.
• States of Incarceration: The Global Context shows how incarceration rates in the U.S. compare to countries across the globe. Although El Salvador has the highest incarceration rate of any country, the U.S. still has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.

An essential lesson: Disparities in the system

No lesson about mass incarceration in America is complete without covering the stark racial disparities inherent in the system. Black people, for example, not only have higher incarceration rates than white people but are also more likely to receive harsher sentences, including life without parole and the death penalty.

To help teachers and students understand these disparities better, we produced a dataset containing over 100 state-specific graphics showing the number of people in state prisons and jails by race, ethnicity, and sex. Our data compares Black and white imprisonment rates by state, finding that every state locks up Black people at a rate at least double that of white people — and, on average, at six times the rate of white residents.

Every state incarcerates Black residents in its state prisons at a higher rate than white residents. For comparisons to other race/ethnicity categories, see individual state profile pages.

Additional reading assignments:

• Our Native incarceration page contains current data on the incarceration of Native people in jails, prisons, and Indian country jails. In jails, Native people have more than double the incarceration rate of white people, and in prisons, this disparity is even greater.
• Racial disparities aren’t the only disparities in the system. Our 2021 briefing on the system-involvement of LGBTQ people details how they are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women.

Gender studies: Women’s incarceration

Students and teachers looking to examine the carceral system must understand the unique ways that women experience mass incarceration in America.

Our Women’s Mass Incarceration: The Whole Pie report provides the most recent and comprehensive data on how many women are incarcerated in the U.S., in what kinds of facilities, and why. The report also includes rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences behind bars. It examines why women’s incarceration has grown so rapidly in recent decades and explains that, because they are often primary caregivers to children, they’re not the only ones harmed by incarceration.

Additional reading assignments:

• Our briefing on how the fall of Roe v. Wade impacts women on probation and parole includes state-level data on how many women are under community supervision in states with abortion restrictions.
• Our 2020 briefing highlights the role that drug enforcement has played in the rise of women’s incarceration and makes clear why we need to pay attention to the ways that women are uniquely impacted by the legal system.

Care not cages: Incarceration and public health

People in prisons and jails are disproportionately likely to have chronic health conditions as well as substance use and mental health problems. Medical care in correctional facilities is notoriously inadequate, and because most prison systems charge copays for medical care, it also deters incarcerated people from seeking the care they need.

Our Chronic Punishment report shows that instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, state prisons are full of ill and neglected people.

Additional reading assignments:

• Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare. But as our briefing on the lack of drug treatment in jails and prisons makes clear, most systems fail to provide evidence-based treatment options and instead rely on punitive responses to substance use.
• In our briefing on the aging prison population, we examine the inhumane, costly, and counterproductive practice of locking up older adults that is the consequence of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century.
• Our briefing on environmental injustice in prisons highlights how toxic detention facilities put the health of incarcerated people at risk. From having contaminated water to being sited near federal Superfund sites, prisons expose incarcerated people to hazardous substances that create additional health issues behind the wall.

Extra credit

Our website is chock full of data that can be used to further explore incarceration trends or dive deeper into issues related to mass incarceration:

• State Profile pages: contain current state-level data and visuals on a range of issues, including racial disparities and incarceration rates
• Data Toolbox: provides links to our unique datasets, including national and state-level population data
• Research Library: the nation’s largest online database of empirical and policy research about criminal legal issues, including mental health, community impacts of incarceration, and conditions of confinement
• Data Sources guide: includes descriptions of data sources we use to produce research exposing the harms of mass incarceration

Advocacy Spotlight: Texas Jail Project

How one small organization in Texas is fighting to get answers for families of people who die in jails and forcing accountability from the jails they die in.

by Emmett Sanders, August 6, 2024

Across the country, people are dying in jails. Often, these deaths are used as the basis of arguments to spend millions or even billions of dollars on jail construction. As our research has shown, however, a new jail is by no means a guarantee that jail deaths won’t continue or even increase. Meanwhile, far less scrutiny is being paid to whether all jail deaths are even being reported. Some jails have implemented policies of not reporting deaths to media outlets, intentionally obscuring transparency. Many jails do not adhere to rules requiring jail death reporting; one report found that at least 990 in-custody deaths went unreported to the federal government in 2021 alone.

Texas, which saw at least 95 reported in-custody jail deaths in 2019, has a dark history of disguising deaths in custody and failing to report them, leaving the public and families without answers. Texas Jail Project, a small non-profit largely made up of advocates who have had family members incarcerated in the state’s county jails, has been working tirelessly to find who is missing from the in-custody death reports, and to compel accountability from jails.

About Texas Jail Project

Texas Jail Project, whose work Prison Policy Initiative’s advocacy department is proud to support, is a tiny, women-of-color-led organization whose impact is far larger than its team of four full-time employees. For more than 17 years, Texas Jail Project has worked to inform, educate, empower, and liberate communities and people impacted by incarceration in 244 county jails across the state of Texas. Under the guidance of Executive Director Krish Gundu, their goal is not only to, as one of their clients phrased it, “end the investment in death-making facilities such as jails” but to “redirect that investment into life-affirming” community-based resources. Responsivity to the needs of the community they serve has led them to tackle a wide range of issues from opposing the shackling of pregnant women in jail while giving birth, to advocating for people in jail with disabilities or who have mental health or substance use needs, to providing a wide array of direct aid to individuals in jails and their families. For years, they have also been relentless champions for those whose deaths in Texas’ county jails have gone unreported.

The Problem: A strategic lack of accountability

Although Texas has a detailed statute surrounding the reporting of jail deaths in the state, many deaths in jails go unreported. When the system is working as it should, deaths are supposed to be reported to the Texas Commission on Jail Standards within 24 hours. This triggers a third-party investigation, and a custodial death report from that investigation must be filed with the Attorney General’s Office within 30 days. This process is vital not only for public accountability but for families and loved ones – these reports are sometimes the only source of information about the circumstances of jail deaths.

Texas researchSee all our research on Texas prisons and jails.

However, through their work directly with families of people incarcerated in jails, Texas Jail Project learned that this process is not being consistently followed. Although some failures to report are an administrative oversight, not all lack of reporting is accidental. Places like Harris County have a record of issuing personal recognizance bonds to critically ill people in their custody and releasing them shortly before they die to avoid being responsible for their deaths. This practice of issuing “medical bonds” is often a way for jails to get off the hook for the costs associated with treating those who are in their care, and happens in many counties in Texas. Texas Jail Project discovered that in Ellis County, for example, two women had died in a period of just two weeks, both shortly after having been issued medical bonds.

In addition, some counties in Texas regularly ship people in their custody to jails in other states, citing overcrowding concerns. Once there, if the person dies, the jail that sent them will often claim to have no responsibility to report their deaths, as the deceased is no longer in their custody.

How Texas Jail Project is making a difference

Texas Jail Project developed a strategy for finding and correcting failures to report jail deaths. By scouring the list of in-custody deaths submitted to the Texas Commission on Jail Standards and comparing them to the Attorney General’s records, the organization began to identify missing cases. They then issued letters of notification to the jails that had failed to report these deaths, copying both the Commission on Jail Standards and the Attorney General, and citing the jail’s violation of state law. Often, this simple act of notification alone was enough to have the person added to the list and provide families with information they’d been denied. Since 2023, Texas Jail Project has discovered 18 unreported jail deaths and has successfully forced reports to be issued in 14 of them.

In one of these cases, a woman named Ruby McPeters died in Hood County Jail from complications following a C-section she underwent while in custody. Her death went unreported for nearly 5 years due to simple clerical error before Texas Jail Project discovered the omission. After Texas Jail Project contacted the jail, Ms. McPeters was added to the Office of the Attorney General’s list of in-custody deaths that very day. Making sure that deaths like Ms. McPeters’ are reported is vital to exposing medical maltreatment in jails and forcing changes.

The organization has also worked tirelessly to correct the problem of unreported out-of-state deaths. Harris County, for instance, regularly outsources its incarceration to jails in other states, such as LaSalle Parish, Louisiana, and when someone dies while being held there, Harris County has steadfastly refused to acknowledge responsibility for their death. Texas Jail Project is making progress in holding Harris County accountable; The Texas Commission on Jail Standards is holding a session on August 8th and has put the issue on their agenda.

Although reporting requirements for jail deaths vary by state, advocates throughout the country can follow Texas Jail Project’s lead to ensure jail deaths are more consistently and thoroughly reported. The first step is to develop a deep understanding of what the reporting requirements are for jail deaths, and, if there are gaps in that accountability framework, to lobby regulatory bodies and state legislatures to impose additional requirements. When it comes to making sure the laws on the books are actually followed, Texas Jail Project’s work shows how publicly and consistently informing jails of their oversight responsibilities can be highly effective in forcing jails to actually follow the rules.

Deep Impacts

For the family members of those who die in pretrial detention in Texas jails who have sometimes waited years to learn what happened to their loved ones, Texas Jail Project’s work is profound. Lack of transparency can bring a lack of resolution that can devastate families. Krish Gundu recalls one mother whose 32-year-old son died just six days after being arrested during a mental health crisis and who was “stonewalled” for answers for months. “It nearly killed her,” Gundu notes. In another instance, a family member was so visibly upset over the lack of transparency that they were nearly escorted out of a public meeting with the Jail Commissioners before Texas Jail Project intervened. Texas Jail Project not only compels people in positions of power to follow the statutes, but their efforts provide relief for grieving families and ensure people are not forgotten. As Gundu notes, “This is an essential piece of history that needs to be written.”

Learn More

See more of Texas Jail Project’s work and find out how you can support their efforts here.

Visit our work on jails and jail deaths, and resources for advocates in counties considering jail expansion. You can also use our toolkit to learn how to respond when officials try to avoid transparency by citing HIPAA laws and get better information about jail deaths in your county.