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).

Introducing our profile of Native incarceration in the U.S.

New page provides data and visualizations about the overrepresentation of Native people in the criminal legal system.

by Emily Widra, February 14, 2023

Our 50 state profiles, plus one for D.C. and another for the nation as a whole, draw on graphs made from reports issued as part of our National Incarceration Briefing Series. Adding to this body of work, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people.

In the United States, Native people¹ are vastly overrepresented in the criminal legal system. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate (350 per 100,000) and more than four times higher than the state and federal prison incarceration rate of white people (181 per 100,000). These disparities exist in jails as well, with Native people being detained in local jails at a rate of 316 per 100,000. Nationally, the incarceration rate in local jails is 192 per 100,000, and for white people, the jail incarceration rate is 157 per 100,000.

Even when government data on incarceration are disaggregated by race, the way that Native incarcerated people are counted is inconsistent and often underreports their numbers, because people reporting two or more races are lumped into various categories depending on who is publishing the data. 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.

Visit our profile page on Native incarceration in the United States.

Incarcerated people must be at the forefront of Biden Administration and Federal Trade Commission efforts to end “junk fees”

We joined the National Consumer Law Center and 27 other organizations to call on the Federal Trade Commission to crack down on abusive fees incarcerated people and their families are forced to pay.

by Mike Wessler, February 8, 2023

In February 2024, we sent a new comment to the Federal Trade Commission in response to its proposed junk fee rule and its impacts on incarcerated people. You can find this letter and an overview of our comments here.

“Junk fees,” those hidden charges attached to purchases or transactions, are something we’ve all faced. For those outside the prison walls, they are an inconvenience that may force them to find another company to do business with or grumble as they pay more for a product than they expected.

For incarcerated people, though, there is no escape. They don’t have the option to use a different service or company. And their ability or inability to pay these fees often has dramatic consequences, determining whether they can stay in touch with a loved one or buy food at the commissary to supplement the paltry meals the prison provides. And considering the unconscionably low wages they earn for their labor, these fees are no minor inconvenience.

As part of a broader effort by the Biden administration, the Federal Trade Commission (FTC), an independent agency charged with protecting consumers and enforcing antitrust laws, is currently considering new measures to crack down on these fees. This week, along with the National Consumer Law Center and 27 other organizations, we explained to the agency that because of their low incomes and uniquely constrained position as consumers, providing incarcerated people relief from junk fees should be at the top of their list.

In an 18-page joint letter, this coalition highlighted some of the most abusive financial practices in prisons and jails and the ways incarcerated people are especially vulnerable to these junk fees.

Money transfers

As facilities increasingly shift the costs of incarceration to the people who are locked up, money plays a more important role than ever in the lives of people in prisons and jails. They now often have to pay for essentials like hygiene products, food, and paper from the commissary. As a result, many families have to send money to their incarcerated loved ones to help them make these purchases.

Sensing an opportunity for profit, companies have sprung up to facilitate these money transfers. Our 2021 analysis of this industry found that these companies charge steep fees — up to 37% — and have complex pricing structures that make it hard to know exactly how much it’ll cost to send money to your loved one.

These fees are tough to justify at a time when services like Venmo and Zelle make transferring money outside of the prison walls easy and free.

Communication and technological services

As prison and jail phone rates recently came under increased scrutiny, the companies behind these services have evolved to offer new services that have, thus far, largely evaded government regulation and oversight. As these companies moved into these unregulated industries, they packed their products with unfair and unclear fees that sap money from incarcerated people and their loved ones.

• Electronic messaging: In recent years, electronic messaging has exploded in popularity in prisons and jails. While the service has immense potential to strengthen connections between incarcerated people and their loved ones, unreasonably high costs and hidden fees have, thus far, made this yet another way for these companies to reap immense profits off the backs of some of the poorest people in society.
• Tablets: Similarly, so-called “free” tablets offer the promise of maintaining stronger connections to the outside by allowing incarcerated people to access music, videos, and other digital content, but are often little more than a tool to sap money from incarcerated people. For example, one tablet provider charges incarcerated people a $14.99 fee for a 14-day digital music subscription. For comparison, Spotify’s standard price is $9.99 a month, and its most expensive plan, the “family plan” — which provides six accounts that can stream music at the same time — is only $15.99 a month.

Release cards

Even when a person is released, they’re still not free from the exploitative grasp of these companies, thanks to the advent of “release cards.” These prepaid debit cards, which we’ve covered extensively, are often given to people as they leave prison or jail. They’re loaded with any funds they had in their trust account — wages earned while behind bars, support from family members, or money the person had in their possession when arrested.

At first, this may sound like a convenient way to give someone their money when they’re released, until you learn of the complex and costly fees that quickly drain their value. This includes fees for:

• Using your card for a purchase,
• Not using your card recently enough,
• Declined purchases,
• Using your card at the wrong ATM or bank, and
• Closing your account.

Often the only way to avoid these fees is by closing your account almost immediately upon your release, a time when you’re likely to be looking for stable housing and employment — things that are often necessary conditions for someone’s release to be approved.

Other junk fees in the criminal legal system

Our comment goes on to explain that beyond these services, junk fees are baked into the mass incarceration economy, with incarcerated people and their loved ones being subjected to fees for:

• Commercial bail,
• Pretrial diversion programs,
• Private probation,
• Electronic monitoring,
• And more.

This push by the FTC and the Biden Administration to address junk fees is laudable — and long overdue. However, if it is to be successful, they must recognize that you can’t truly address the worst impacts of junk fees without addressing how they harm incarcerated people and their families.

The nearly two million people behind bars (and their loved ones on the outside) are unfairly exploited by corporations and governments every day. Addressing these junk fees will not end this exploitation entirely, but it will be a significant and meaningful step toward economic justice.

Since You Asked: What’s next for prison and jail phone justice now that the Martha Wright-Reed Just and Reasonable Communications Act is law?

We explain what the new law accomplishes, how the FCC can — and should — enforce it, and why the fight for phone justice is not over.

by Wanda Bertram, January 19, 2023

On July 18, 2024, the FCC officially approved new telecommunications rules for prisons and jails, in response to the Martha Wright-Reed Act. Check out our briefing for a full summary of how these new rules will help incarcerated people and their families.

Earlier this month, President Biden signed the Martha Wright-Reed Just and Reasonable Communications Act of 2022, a bill that we and other advocates for prison phone justice have been supporting for years. Below, we explain what the new law accomplishes and what comes next. While the fight for phone justice is far from over, the bill empowers the Federal Communications Commission to take major steps to bring down communication costs for incarcerated people and their families — and the FCC has indicated that it plans to do so soon.

What does the new law do?

The Martha Wright-Reed Act accomplishes two main things: It clarifies the FCC’s authority to regulate in-state calls placed from correctional facilities, as well as clarifying the agency’s authority to regulate video calls.

For context: The FCC has successfully imposed caps on rates for out-of-state calls from prisons and jails, but not in-state calls. After the agency created regulations in 2015 that lowered the cost of both in-state and out-of-state calls, telecom corporations sued the regulator, and a federal court ultimately ruled that the FCC exceeded its legal authority in capping in-state calls. Since then, the FCC has made no attempt to cap in-state phone rates.

Most incarcerated people today who call loved ones in the same state are likely charged rates similar to out-of-state rates (or just charged the out-of-state rate), as we explain in our recent report State of Phone Justice 2022. But some are charged much higher rates. The Martha Wright-Reed Act will allow the FCC to bring relief to this minority of people still paying higher in-state rates, and protect all people in jail and their families from future attempts by the telecom industry to block regulation.

The Act also clarifies the FCC’s jurisdiction over video calling costs. We and others have long argued to the FCC — over a flood of misinformation from prison telecom companies — that the agency has the authority to regulate the exorbitant cost of video calls behind bars. But the agency has not taken action so far.

Video calls are especially important to regulate, because the companies rapidly pivoted to this technology when the FCC began to restrict what could be charged for phone calls. As a result, video calling rates are much higher than phone rates today. In a four-state survey for State of Phone Justice 2022, we found that families of people in prisons and jails are paying as much as $8 to make a 20-minute video call, for a much lower-quality version of the technology that most people today are able to use for free. Even worse, jails and companies often use video technology as a pretext for eliminating or curtailing in-person family visits, as we exposed in our 2015 report Screening Out Family Time. The new law empowers the FCC to cap the amount that companies can charge for video calls, which will make these harmful contracts less attractive to jails.

When will the law be implemented, and how?

While we don’t know exactly when the FCC will take action to implement the Martha Wright-Reed Act, the law requires the FCC to promulgate regulations “not earlier than 18 months and not later than 24 months after the date of enactment of this Act” — in other words, sometime in the latter half of 2024. In a press release, FCC Chairwoman Jessica Rosenworcel committed to “expeditiously move new rules forward” in light of the bill’s passage.

The FCC already has all the data it needs to begin setting “just and reasonable rates” as soon as the law allows. In 2021, the agency collected rate data from every phone company serving prisons and jails. That data is still current enough for the FCC to use it to set new rate caps that apply to in-state as well as out-of-state calls. (We offer a few more recommendations to the FCC in State of Phone Justice 2022.) Additionally, while data about video calling rates is spotty and hard to come by, there is still plenty of information already in the record that the FCC can use to put initial price caps in place. In fact, there is precedent for doing so: When the agency took steps to rein in the cost of phone calls in 2015, it relied on similarly incomplete data to set initial rates and then revised those rates as it gathered more information. The agency should replicate that successful process now to provide the quickest relief possible to incarcerated people and their families. As the agency gathers more data, it can and should take more fine-tuned action to rein in exorbitant video calling rates.

Is the fight for phone justice over?

In a word: No. The cost of phone and video calls in almost all jails and many state prisons is still way too high, and even when the FCC implements the new law, there is no guarantee that the agency will set caps as low as it should.

One piece of important good news: The phone rate caps that the FCC has set so far (and will set going forward) don’t preempt states that want to pass laws setting even tighter caps. Illinois, for example, capped phone rates from prisons at 7¢ per minute for prisons, and New Jersey capped rates from prisons and jails at 11¢ per minute.
Rather than wait on FCC action, state legislatures should act now to bring down phone and video calling rates to a few cents a minute, or follow the example of California and Connecticut by just making calls free.

In the meantime, even as voice and video calling regulations become stronger, the corporations that dominate the industry are expanding telecom exploitation. Companies are working hard to evade regulation by growing the number of “services” they offer to prisons and jails. People desperate to stay in touch with their incarcerated parents, kids, and other loved ones as much as possible are being squeezed by companies for electronic messaging as well as phone calls and video, and stricter policies around mail and in-person visits are pushing them towards these more convenient, but also more expensive, options. State legislators and regulators should act to make sure that telecom companies are not able to simply replace one exploitative service with another.

What’s next?

The Martha Wright-Reed Act is an important step forward in the fight for prison and jail phone justice, but it doesn’t guarantee effective action at the FCC; nor does it spell the end of this movement. Prisons and jails are still charging exorbitant rates for phone calls, while implementing many other “services” that fleece poor families desperate to stay in touch.

The FCC must act swiftly and set bold caps on both phone and video calls, to ensure that families never again pay hundreds of dollars a month to stay connected to a single loved one. State and municipal governments, meanwhile, should not rest on their laurels. If anything, policymakers, regulators and legislators should recommit themselves to the fight against these exploitative companies. After all, at a time when the price of a phone call outside the walls of a prison or jail is approaching zero, you can’t help but ask yourself, “why are incarcerated people and their families being charged for calls at all?”

For more information on the current state of the prison and jail telecom industry, see our recent report State of Phone Justice 2022: The problem, the progress, and what’s next.

How a Medicare rule that ends financial burdens for the incarcerated leaves some behind

Medicare expands enrollment periods for people released from prison after January 1, 2023, but offers no relief for people who have been paying premiums for zero Medicare benefits while incarcerated, nor for those released before 2023 who signed up late and are stuck paying jacked-up premiums for the rest of their life.

by Emily Widra, January 3, 2023

As the prison population in the United States gets older, more and more incarcerated people have faced an expensive and unenviable choice when it comes to Medicare: pay for coverage you couldn’t use or afford, or pay increasingly higher premiums for the rest of your life once you were released. People incarcerated when they initially become eligible for Medicare — the national health insurance program for people 65 and older and some younger people with certain disability statuses¹ — were expected to enroll and pay monthly premiums without access to any Medicare benefits or coverage. This rule has changed, but formerly incarcerated people released from prison prior to 2023 are left out of this reform and are expected to keep paying penalty fees for not signing up for Part B before release.

While the change marks an important shift in Medicare policy, it does nothing to alleviate the financial stress placed on formerly incarcerated people who are already being charged higher premiums. As one woman whose husband has been struggling with the implications of this unfair policy for years recently told us:

“My husband turned 65 while incarcerated with a long sentence. He signed up as required for Medicare Part A but when he signed up as required for Medicare Part B, he learned he was going to be charged a premium of $135 per month, even while incarcerated and earning just $20 per month. He disenrolled from Part B due to lack of funds. When he was released years later and tried to re-enroll in Part B, he was charged a penalty that would raise his premiums for the rest of his life – by about $50 per month – because he did not enroll at age 65. The penalty is waived for people who were covered by another group health insurance plan, but apparently, prison medical services don’t count.”

This past November, the Centers for Medicare and Medicaid (CMS) fixed this policy problem — effective January 1, 2023 — to create a Special Enrollment Period for recently released, formerly incarcerated people. The creation of a Special Enrollment Period allows formerly incarcerated people to enroll in Medicare in the 12 months following their release without facing any financial penalties for late enrollment. This is undoubtedly a good change, but it is not retroactive: as written, this policy only applies to people released from prison after January 1, 2023.

Because the letter writer’s husband was released a few years prior to this policy change, he will likely be stuck paying surcharged monthly premiums for his Medicare Part B coverage for the rest of his life. He is one of thousands of individuals released over the years who have found themselves, without warning, charged Medicare premium penalties in perpetuity because they didn’t sign up for a benefit they could neither use nor afford while incarcerated. For advocates and policymakers looking for an impactful way to reduce the collateral consequences of conviction and incarceration, particularly those that impact vulnerable populations like the elderly and disabled, this briefing provides the details you need to know to take action.

Medicare policies prior to the rule change

Medicare Part A is health insurance that covers hospitalizations and usually has no monthly premiums. Medicare Part B covers non-hospital medical care and requires beneficiaries to pay a monthly premium. The lowest monthly premium changes annually: in 2022, the lowest Part B premium was $170.10 per month and in 2023, the lowest Part B premium will be $164.90 per month. For most Medicare beneficiaries, the Part B premium is paid out of their Social Security payments.

Incarcerated people have historically been expected to enroll in Medicare Part A and Part B when they become eligible, usually when they turn 65 years old. This means that incarcerated people over 65 were expected to cover their monthly Part B premiums even though Medicare does not provide coverage for any healthcare services provided in prison² and Social Security payments are suspended for the duration of their imprisonment. How and why the federal government expected incarcerated people to pay for Medicare that provides no benefits in prison — while withholding the usual means of paying for it (Social Security) — defied all logic. The penalties charged in perpetuity to people who enrolled late because of these policies are a further irrational injustice.

Additional penalties for the incarcerated and formerly incarcerated prior to the rule change

Most people in prison can not afford to pay the monthly premiums for Part B coverage while incarcerated. In the case of our letter writer, her husband was expected to pay $130 per month for Medicare Part B despite his only income being the $20 per month he made working in prison. This was likely the case for most incarcerated people. In our 2017 survey of prison wages, we found that the average wages for an incarcerated person ranges from $0.14 to $1.41 per hour, leaving people in prison with no way to make enough money to pay monthly Medicare premiums.

However, not enrolling in Medicare Part B when first eligible had significant financial consequences for incarcerated people: For every 12 months that someone was eligible for Part B coverage but was not enrolled, their future monthly premiums increased by 10%. Someone released in 2022 who enrolled late in Medicare Part B at age 67 is expected to pay a minimum of approximately $204.10 every month,³ a surcharge of 20% on top of the minimum Part B premium of $170.10.⁴

When people eligible for Medicare are returning to their communities, medical care needs to be accessible and affordable, but if they haven’t been able to afford monthly premiums during their incarceration, the monthly premiums after their release — and for the rest of their lives — will be even higher. This is no way to set already-vulnerable people up for success during reentry.

New Medicare rules for formerly incarcerated people

For people released from prison after January 1, 2023, there are new Medicare enrollment rules that create a 12-month Special Enrollment Period during which recently released people can enroll in Medicare Part A and Part B without any financial penalties for late enrollment (known as “late enrollment penalties” or “LEPs”) due to incarceration. While we applaud this policy change, we are left wondering about the tens of thousands of people released from prison before January 1, 2023. The Centers for Medicare and Medicaid Services (CMS) said that it “does not have the authority” to waive LEPs paid in the past or currently being paid by formerly incarcerated people, because “LEPs are governed by statute.”⁵

It is unreasonable to expect incarcerated people to be able to pay premiums while incarcerated or to afford surcharged monthly payments after their release, and the regulation changes reflect some understanding of this fact. The next step needed is to apply this same understanding to all formerly incarcerated people, not just those released after 2022. Members of Congress and advocates, take note!

Reforms should cover all people released from prison

The failure to apply these changes to people released from prison before January 1, 2023 inflicts real and lasting financial burdens — and health risks — on them and their families. The man whose wife wrote to us was expected to pay at least⁶ $1,600 a year in Medicare Part B premiums while earning just $240 per year — for benefits he could not even access while he was incarcerated. The alternative — not enrolling until release, and then paying a permanent late enrollment penalty — is no better. If he had been released in January 2022 at age 70 and immediately re-enrolled after disenrolling from Part B at 65, he would have been expected to pay at least⁷ $2,970 in premiums (including a penalty of a 50% surcharge each month) every year for the rest of his life. Meanwhile, a low-income person who was never incarcerated during their Medicare-eligible years and never disenrolled from Part B would be paying less than $1,980 per year for the same level of coverage. Formerly incarcerated people who were released prior to 2023 should not be forced to pay significantly higher monthly premiums simply because of their release date: this is not only unfair, but counterproductive when it comes to supporting low-income older adults and their reentry success. Congress should take immediate action to make these common-sense changes retroactive.

New data: Police use of force rising for Black, female, and older people; racial bias persists

New survey data from the Bureau of Justice Statistics on police interactions in 2019 and 2020 provide the broadest look at relations between police officers and the public. The findings leave a lot to be desired (as they’re primarily pre-pandemic), but the message is clear: police are still a massive presence in our communities, and they don’t always provide the solutions and safety we need.

by Leah Wang, December 22, 2022

This briefing has been updated with a new version examining data from 2022.

At a time when the public desperately needs accurate, comprehensive data about how the police interface with people in the United States, the Bureau of Justice Statistics has released a new report based on a 2020 survey about interactions between police and the public. Despite a seemingly smaller “footprint” of police interactions in the community that year — fewer people came into contact with police overall — those interactions were still too often racially discriminatory and too often involved improper or harmful conduct.¹

You might expect that this survey would tell us about the state of policing amidst the deep social unrest caused by the COVID-19 pandemic and a number of high-profile police killings. Unfortunately, the survey was conducted between January and June of 2020, so many of the responses actually refer to experiences with police in 2019 and in the earliest months of 2020.² And while the Bureau of Justice Statistics did thoughtfully document certain changes driven by the COVID-19 pandemic in other data collections,³ the police contact survey results fail to provide the public with critical and timely information about how policing changed — or didn’t change — in 2020, particularly during the nationwide reckoning with racialized police violence after the death of George Floyd. Still, some of the findings got our attention.

Of people surveyed⁴ between January and June of 2020 about their recent experiences with police:

More than 1 in 5 people reported coming into contact with police in the past 12 months. About half of all police contacts were initiated by residents who reached out to the police to report a crime, seek help, or for another reason; the other half were initiated by police, through traffic stops or otherwise approaching or arresting someone. Police actually had less contact with the public in 2020 than in 2018 (the last time this survey was administered), but that is unsurprising given the pandemic-related lockdowns in early 2020.⁵

Racial disparities in policing persist, particularly in the threat or use of force. Only 2% of people who had any contact with police experienced the nonfatal threat or use of force⁶ by police in the past year, but this aggression fell disproportionately on Black, Hispanic, and “Other” (non-Asian, non-white) people. Black people were also nearly 12 times more likely than white people to report that their most recent police contact involved misconduct, such as using racial slurs or otherwise exhibiting bias.

During traffic stops, Black and Hispanic people were the most likely groups to experience a search or arrest. Meanwhile, white people were the least likely to receive a ticket and the most likely just to get off with a warning during a traffic stop. The immense discretion — and lack of accountability — police have when making traffic stops leaves too much room for racially biased questioning and enforcement.⁷

Graying of prisonsOlder people are locked at record rates. Why?

Older people are vulnerable to harmful interactions with police. More than 1 in 7 people age 65 or older reported police contact, and the number of older people experiencing the threat or use of force nearly doubled between 2018 and 2020.⁸ Meanwhile, the number of people experiencing force declined among all other age groups. Other data show that arrests of people 65 and older have increased over the past decades, too, unlike overall arrests.⁹ These concerning trends should spark urgent conversations about the role and training of police when it comes to aging populations.

More and more, police are threatening or using force against women. Women accounted for an alarming 31% of all people experiencing the threat or use of force by police, and over half of women (51%) who experienced threat or use of force in their most recent police interaction reported that such conduct by police was “excessive,” a result which is up a significant 8 percentage points from the last survey in 2018. These findings raise the obvious question: Why are women increasingly targeted by police hostility while men’s police encounters, including arrests, continue to plummet?¹⁰

Police act “properly” most of the time, but do they provide solutions to people needing help? Of those who initiated contact with police, most (91%) perceived the police as behaving properly when they showed up, and most (93%) were at least equally likely to contact police in the future, varying little by sex, race and ethnicity, or age. But over a third of people (36%) who contacted police for help felt that the police response didn’t improve their situation. The fact that most people would contact police in the future even when they haven’t been helpful in the past is a clear indication of our dependence on police, and the need for alternatives to policing.

Additional context: Data on law enforcement staffing levels in 2020

The Bureau of Justice Statistics also released a number of publications based on regular administrative surveys of law enforcement personnel. These staffing surveys, unlike the Police-Public Contact Survey, actually cover the full calendar year for 2020, when policing was central to national conversations about safety and social justice.

If there’s one timely thing to come out of this recent wave of data, it’s that police were not “defunded” in 2020 — since 2016, the number of full-time staff has barely changed in local police departments (down one-tenth of one percent), and has even slightly increased in sheriff’s offices and federal agencies employing law enforcement. This finding tracks with reports of stagnant or increased budgets in the 2021-22 fiscal year in many police departments nationwide, including 34 of the largest 50 U.S. cities.

Sheriffs and police chiefs also continue to be overwhelmingly white (87% each) and male (99% of sheriffs and 96% of police chiefs). If law enforcement agencies continue to operate at current scales without leadership or staff that actually represent the diversity of their communities, how can they hope to equitably protect and serve those communities?

The results of the 2020 Police-Public Contact Survey and other staffing surveys only scratch the surface of how police function in our communities (for example, the data don’t tell us about police contact by sex and race or ethnicity, obscuring the experiences of women of color and of LGBT people with police), let alone how police interactions shifted throughout the tumultuous first year of the COVID-19 pandemic. Still, these data are essential to assessing whether on-the-ground police interactions are actually happening at a scale that is appropriate, and with outcomes that are safe and appropriate, for issues that actually require police. For many people engaged in the reimagining of public safety, police should have a greatly reduced role in areas like traffic safety and crisis response.

Hopefully, future versions of this survey will help paint a clearer picture of how policing has evolved over the past two years and how advocates and lawmakers can continue to push for change, like halting the overuse of police and jails to respond to the needs of people with economic disadvantages or health needs. As the data show, we’ve yet to see meaningful shifts in policing institutions.

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

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

by Wanda Bertram, December 21, 2022

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

Mass Incarceration: The Whole Pie 2022

Our annual Whole Pie report returned in 2022, after pandemic-related data problems forced us to cancel it last year. The report compiles national data sources to offer the most comprehensive view of how many people are locked up in the U.S. — and where they are being held — two years after the COVID-19 pandemic began. It explains how the pandemic has impacted prison and jail populations, and pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

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

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

Beyond the Count: A deep dive into state prison populations

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

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

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

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

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

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

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

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

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

Mail scanning: A harsh and exploitative new trend in prisons

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

Advocacy Toolkit

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

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

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

Correctional Contracts Library

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

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

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

Welcome, Danielle Squillante!

Please welcome our new Development and Communications Associate, Danielle Squillante!

by Mike Wessler, December 5, 2022

We’re excited to welcome Danielle Squillante, who will serve as our new Development and Communications Associate. In this role, she’ll handle the day-to-day fundraising activities for the organization and help it reach new audiences with its work.

She previously worked for ROCA in Springfield, Mass. as a program manager and education support specialist. Danielle is also a former public school teacher. She has a master’s degree from Mount Holyoke College and a bachelor’s degree from Hampshire College.

Welcome, Danielle!

Why states should change Medicaid rules to cover people leaving prison

People leaving prison have sky-high mortality rates. Most are likely Medicaid-eligible. Making sure they are covered upon release from prison would save lives and reduce recidivism.

by Emily Widra, November 28, 2022

The gap in healthcare coverage following incarceration leads to high rates of death just after release: During just the first two weeks after release from prison, people leaving custody face a risk of death more than 12 times higher than that of the general U.S. population, with disproportionately high rates of deaths from drug overdose and illness. A huge contributing factor to this astronomically high death rate following release is the healthcare coverage gap: People lose health insurance coverage while in jail or prison and their lack of coverage continues post-release, leaving many without access to adequate, timely, and appropriate health care in those critical first weeks of reentry.

Fortunately, we have a way to address this healthcare coverage gap, and to improve the health and safety of our communities in general: Medicaid. Research shows that expanding access to healthcare through Medicaid saves lives and reduces crime and arrest rates — along with state spending — making this a reform strategy whose time has come.

How Medicaid’s “inmate exclusion policy” leaves formerly incarcerated people without healthcare

When Medicaid was authorized in 1965, the “inmate exclusion policy” was established to prevent state and local governments from receiving matching federal funds to cover the healthcare costs of people in state prisons and local jails. This policy leaves state and local governments solely responsible for financing the healthcare of incarcerated people,¹ even when those people were covered by Medicaid prior to their incarceration. This means that in most states, Medicaid coverage is terminated when someone is incarcerated.²

The Center for Medicare and Medicaid Services (the federal agency responsible for Medicare and Medicaid) has advocated that people be returned to the Medicaid eligibility rolls “immediately upon release from a correctional facility,” and has even provided resources to correctional systems, probation officers, and parole officers to help make this happen. Nevertheless, as things stand now – despite most people being financially eligible for Medicaid upon release – connecting with appropriate healthcare providers and reapplying for Medicaid is no easy feat for people going through reentry, leaving too many medically vulnerable and disconnected from healthcare services in the community.

Most incarcerated and formerly incarcerated people are probably eligible for Medicaid

In all states, Medicaid provides health coverage for low-income people who qualify based on income, household size, disability status, and a handful of other factors. Most people in contact with the criminal legal system are likely eligible for Medicaid: People in prisons and jails are among the poorest in the country and have high rates of disabilities, making them likely eligible for Medicaid in almost every state. People in contact with the criminal legal system have drastically lower pre-incarceration incomes than people who are never incarcerated. In fact, 32% of people in state prisons in 2016 who had insurance at the time of their arrest were covered by Medicaid (compared to about 19% of insured people nationwide). As an additional indicator of need among this population, 50% of people in state prisons were uninsured at the time of arrest.

See our 2022 report, Chronic Punishment, for methodology details.

Formerly incarcerated people face low incomes and high rates of unemployment, meaning that they too are likely to be eligible for Medicaid, especially in states where Medicaid eligibility is based solely on income. After incarceration, people experience unemployment at high rates and report low incomes. Formerly incarcerated people are unemployed at a rate of over 27%, which is higher than the total U.S. employment rate during any historical period, including the Great Depression. When formerly incarcerated people do land jobs, they are often the most insecure and lowest-paying positions: the majority of employed people recently released from prison receive an income that puts them well below the poverty line.

Excluding justice-involved people from Medicaid can be lethal

People in prison have higher rates of certain chronic conditions and infectious diseases, disabilities, and face exceptionally high rates of mental illness compared to the general U.S. population, but medical and mental health care in prisons and jails are grossly inadequate.³ As a result of such inadequate healthcare, many people in prison end up worse off upon release. Subpar healthcare behind bars and the post-release healthcare coverage gap are pivotal factors in the heightened risk of death after release.

The risk of death is particularly high in the first two weeks following release from prison (12 times higher than the general population), but the lethal consequences of incarceration continue beyond these first two weeks. A 2021 study found that high county jail incarceration rates are associated with high mortality rates, but most acutely with deaths by infectious disease, respiratory disease, drug overdose, suicide, and heart disease. In 2019, a study of people released from North Carolina prisons found that people who spent any time in solitary confinement⁴ were 24% more likely to die in the first year after release (with an extraordinarily high risk of death from opioid overdose in the first two weeks after release). Another study found that people in their sample who were released from prison were twice as likely to die within 30 days and 90 days of release than those who were not incarcerated.

Many of these deaths following release are preventable with appropriate medical, mental health, and substance use interventions, which usually require health insurance. But because people are released from prisons and jails without insurance, they are less likely to receive the necessary interventions upon release. Uninsured people are less likely to seek medical care (because of the financial costs), and when they do seek out care, the care is likely of poor quality or too late, resulting in worse health outcomes and higher rates of death when compared to insured people.

How states can reform Medicaid to cover people leaving prison

A number of states have utilized Medicaid to start to bridge the healthcare coverage gap, and there are encouraging results. Given that some of the predominant healthcare-related concerns among recently-released people include lack of insurance and difficulty accessing care and medication, bridging this gap is a crucial step to mitigating the harms caused by barriers to healthcare services.

Reduce barriers to Medicaid eligibility

In a handful of states, Medicaid coverage is expanded to allow people to qualify based solely on finances (with an income below 133% of the federal poverty line). In these states, there are now fewer barriers to Medicaid eligibility, and therefore more people receiving Medicaid. While this reform does not exclusively target people leaving prison, it benefits them: Following Medicaid expansion in New York and Colorado, state officials estimated that 80-90% of people in state prisons would now be eligible for Medicaid coverage upon release (based on their pre-incarceration incomes).

Enroll people in Medicaid before their release from prison

Oklahoma began a program in 2007 to help people in prison with severe mental illness apply for Medicaid benefits during their final months in prison. This program had quick results: after one year, the share of people who were enrolled in Medicaid on their day of release increased by 28 percentage points.

A 2022 study of Louisiana’s Prerelease Medicaid Enrollment Program found that there was a 34.3 percentage point increase in Medicaid enrollment, and of those who were successfully enrolled before release, 98.6% had attended at least one outpatient visit within the first 6 months of release. These findings – along with similar programs in other states – suggest that pre-release Medicaid enrollment programs are a relatively simple way to connect people to necessary healthcare services and bridge the healthcare coverage gap.

In Connecticut and Massachusetts, there are statewide programs that enroll all Medicaid-eligible people who are being released from prison to parole. While incarcerated and waiting for their release date, incarcerated people work with “discharge planners” in correctional facilities to complete and submit Medicaid applications that are then held by the state’s Medicaid agency until they are released on parole. In Massachusetts, the state reports that 90% of people released to parole are covered by Medicaid upon their release.

Suspend – rather than terminating – Medicaid coverage for incarcerated people

In twelve states,⁵ Medicaid coverage is suspended – rather than terminated – when someone is incarcerated in state prison, which makes the process of reinstating Medicaid coverage upon release much simpler and avoids the need for “discharge planners” to help with applications or make other arrangements. In Maricopa County, Arizona, an agreement with the state Medicaid agency allows Medicaid eligibility to be suspended – not terminated – upon jail incarceration in the county.

Request federal Medicaid waivers

States can petition the U.S. Department of Health and Human Services to waive federal guidelines⁶ to allow states to trial new approaches and pilot new policies.⁷ At least nine states – Arizona, California, Kentucky, Massachusetts, Montana, New Jersey, Oregon, Utah, and Vermont – have submitted requests for waivers to modify the “inmate exclusion policy” and allow for coverage of certain health services provided pre-release. The proposals vary in what incarcerated populations they are seeking eligibility for, what services they would like to be Medicaid-eligible prior to release, and when coverage would be offered. Some states are seeking eligibility for a specific group of incarcerated people, such as four behavioral health case management visits for those with behavioral health diagnoses (New Jersey) or specific substance use disorder treatment services for incarcerated people with substance use disorders (Kentucky). Other states are seeking the full set of Medicaid benefits for incarcerated people with chronic conditions (Massachusetts) or for all incarcerated people (Utah). As of March 2022, the Center for Medicare and Medicaid Services (CMS) had not yet issued decisions on any of these proposals.

A bill in Congress would allow Medicaid coverage for people leaving prison or jail

In 2021, members of the House of Representatives introduced the Medicaid Reentry Act. This bill would allow Medicaid coverage to begin 30 days before people are released from prisons or jails, allowing medical services during that time period to be covered by Medicaid and for people to be insured the moment they are released from the facility. Legislation like this would vastly expand access to healthcare after incarceration, closing the dangerous healthcare coverage gap and thereby reducing the preventable deaths and health problems that occur in the immediate post-release period.

Other benefits of closing the healthcare coverage gap

The effects of bridging the healthcare coverage gap are far more expansive than one might expect. Increasing access to healthcare appears to have significant effects on reducing arrests, crime rates, criminal-legal system involvement, recidivism, and state expenditures.

Reducing arrests and lowering crime rates

In states with Medicaid expansion (i.e., where eligibility is based solely on income), there have been correlated reductions in crime rates and arrests. Compared to counties in states that had not implemented expanded Medicaid coverage, counties in states with Medicaid expansion saw a 25% decrease in drug arrests, a 19% decrease in “violent offense” arrests, and a 24% decrease in “low-level” offense arrests.⁸ Looking at more specific types of crimes, researchers also found a 3.7% to 7.5% decrease in burglary, motor vehicle theft, robbery, and violent crime rates in counties with statewide Medicaid expansion.⁹

Preventing contact with the criminal-legal system

In 1990, the federal government expanded Medicaid to provide coverage for more children and families living below the federal poverty line. Research shows that the expanded Medicaid eligibility among youth actually reduced the incarceration rates in Florida: there was a 3.5% reduction in incarceration for each additional year of population-level Medicaid eligibility. These results suggest that by investing resources in healthcare and expanding Medicaid coverage to as many people as possible up front, we can actually begin to reduce our reliance on the carceral system.

Reducing recidivism

Increased access to healthcare through Medicaid coverage also reduces recidivism. Prior to the Affordable Care Act (ACA), there were eligibility requirements that restricted Medicaid eligibility for formerly incarcerated people, but with expanded Medicaid coverage, most previously incarcerated people who meet the necessary income criteria are eligible for Medicaid. A study published in 2022 found that expanded Medicaid coverage resulted in significant reductions in the rate of rearrest, with a 16% reduction in arrests for violent crime for two years following release.

Reducing state expenditures

The direct costs of incarceration are immense: it costs more than $225 to incarcerate someone in New York county jail for a single night and nationally, it costs an average $31,307 a year to incarcerate a single person in state prison. Meanwhile, 2019 estimates suggest that total annual Medicaid spending per person ranged from a low of $4,970 in South Carolina to a high of $12,580 in North Dakota, suggesting that even where Medicaid is spending the most per person, it is far less expensive than incarceration. While these are just rough estimates of the per capita costs of incarceration and Medicaid coverage, more in depth research implies substantial cost reductions by expanding Medicaid coverage to all Medicaid-eligible formerly incarcerated people. The estimated costs of expanded Medicaid coverage – by reducing the economic and social costs of victimization and the expenditures on multiple incarcerations – are significantly less than state and local governments are currently spending on arrest, jail, court, and imprisonment.

Conclusion

The healthcare coverage gap that threatens the lives of people recently released from prison is not inevitable. Incarcerated people and those released from incarceration face poverty, unemployment, and disproportionately high rates of disability, disease, and illness, but Medicaid is a tool we can use to expand healthcare coverage and reduce the number of preventable deaths after release. Evidence from states with these kinds of Medicaid programs in place suggests that hundreds of thousands of people being released across the country each year would benefit from such efforts. Expanding access to affordable, quality healthcare results in a myriad of benefits to public health, public safety, and public coffers. Perhaps most encouragingly, the drop in arrests and crime following expanded Medicaid coverage offers evidence that by ensuring people’s most basic needs are met, we can begin to reverse our nation’s reliance on mass incarceration.