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

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

by Mike Wessler, December 13, 2024

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

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

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

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

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

In corrections departments, gag rules generally take three forms:

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

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

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

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

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

Courts have routinely struck down stringent “gag rules”

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

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

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

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

How journalists can fight gag rules

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

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

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

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

Once you have that information, consider the following issues:

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

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

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

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

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

The 2024 reporting on incarceration that newsrooms should emulate in 2025

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

by Wanda Bertram, December 11, 2024

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

Best of 2024See Prison Policy Initiative’s best work & biggest wins

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

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

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

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

Questions to jumpstart your reporting on parole grant rates:

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

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

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

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

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

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

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

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

Questions to jumpstart your reporting on solitary confinement:

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

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

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

Questions to jumpstart your reporting on prison and jail commissaries:

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

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

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

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

Questions to jumpstart your reporting on inmate welfare funds:

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

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

Idaho jails withheld details about dozens of detainee deaths, InvestigateWest

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

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

Questions to jumpstart your reporting on deaths behind bars:

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

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

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

Be a Jail Watchdog, New York Focus

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

Questions to jumpstart your reporting on jail oversight:

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

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

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

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

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

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

Has Prison Programming Recovered from Covid?, Mother Jones

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

Questions to jumpstart your reporting on prison programming:

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

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

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

Questions to jumpstart your reporting on lockdowns:

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

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

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

Why jails and prisons can’t recruit their way out of the understaffing crisis

Jails and prisons across the country have record-high vacancies, creating bad working conditions for corrections staff and nightmarish living conditions for incarcerated people. Why haven’t pay raises, benefits, and new facilities turned recruitment around, and what does that tell us about the state of mass incarceration?

by Brian Nam-Sonenstein and Emmett Sanders, December 9, 2024

Prisons and local jails struggled with staffing well before the COVID-19 pandemic spurred a national labor shortage, and they haven’t bounced back since. Recruitment and retention are still a high priority for corrections agencies,¹ with nearly half reporting between 20 and 30% of their workers leaving each year. Many departments have tried increasing compensation, lowering employment requirements, hiring more part-time workers, and building new facilities to attract recruits but it hasn’t worked. Why not? Because “understaffing” is an untreatable symptom of mass incarceration — not a recruitment problem.

When there are fewer workers than necessary to operate facilities as planned, correctional authorities cut back on the things staff are needed to manage, and conditions get worse: people are stuck in ‘lockdown’ conditions, they’re transferred around, housing units are consolidated, access to services and programming is limited, and fights break out. As conditions deteriorate, fewer people want to work in these facilities. Decarceration should seem like the obvious way to break the cycle, but it’s readily dismissed by corrections leaders² whose livelihoods depend on mass incarceration. In this light, understaffing is a bad way to understand what’s plaguing jails and prisons but a good way to demand more investment; it’s why recruitment is the only solution corrections can offer and a dead end at the very same time.

It has become clichéd for corrections departments and news media to blame understaffing for nearly every problem in jails and prisons; everything would be so much better (the thinking goes) if departments simply had enough workers. This framing conveniently overlooks mass incarceration as a policy choice, restricting the universe of available policy solutions to greater investments in locking people up. Many of the issues for which “understaffing” is blamed are fundamental to mass incarceration, and are best addressed through decarceration — not a jobs program for corrections officers or further investments in surveillance and imprisonment. Decarceration takes incarcerated people (and workers) out of harm’s way while freeing up resources for more constructive uses in the community, which are far more effective at deterring crime and ensuring safety than criminalization.

In this briefing, we look at what’s happening to the corrections workforce, how staff shortages harm incarcerated people and workers, and how corrections agencies have tried (and failed) to address staffing problems without addressing mass incarceration. In the end, we urge jurisdictions to prioritize release and reduced admissions over futile attempts to make mass incarceration “work.”

Staffing is down despite annual wage growth

Prisons and local jails have shed thousands of full-time workers in recent years. Despite rising wages, this decline in the workforce — which began to accelerate in 2020 — is expected to continue into the next decade and has been markedly worse in state prisons than in local jails.

Employment. State prisons lost 12% of their full-time workforce between 2013 and 2023, with nearly all (93%) of this decline coinciding with the pandemic, according to our analysis of the Census Bureau’s Annual Survey of Public Employment & Payroll.³ Local jails lost 2% of their full-time workers over the past decade, with a 7% decline in the workforce since 2020.⁴ Meanwhile, part-time employment⁵ in jails and prisons has grown since the first year of the pandemic.⁶ The total correctional workforce⁷ has shrunk by 11% in state prisons and 7% in local jails since 2020, and agencies are expected to see, on average, a 6% decline in employment between 2023 and 2033.⁸

Corrections wages have risen and largely kept pace with inflation over the past 10 years; even during high inflation following the onset of the COVID-19 pandemic, the purchasing power of corrections workers’ salaries remained relatively consistent.

Wages. According to the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics,⁹ the median annual wage for correctional officers and jailers in 2023 was $53,300.¹⁰ The median corrections salary grew by 35% in the decade between 2013 and 2023, and 12.5% since 2020 alone. Wages have remained relatively consistent with inflation for the last 10 years, but these figures notably exclude premium wages,¹¹ which are significant and have skyrocketed in recent years. There are no public data on premium pay, but news reports indicate that workers racked up hundreds of millions of dollars of these additional wages in many prison systems.¹² While overtime puts more money in workers’ pockets, demanding work schedules burn people out and deter them from seeking or keeping corrections jobs.

Working as a delivery truck driver is roughly 15 times as deadly as working in a jail or prison, and yet corrections workers’ median annual salary is around $13,300 higher.

Jail and prison officials consistently blame low wages as an obstacle to recruitment, but it’s worth noting that the median annual corrections wage ($53,300) is higher than professions requiring more training and education, like EMTs ($53,180) and counselors and social workers ($44,040). Additionally, corrections work isn’t among the top 10 most dangerous jobs in America, but their median annual salary is still higher than those for jobs that are, such as loggers ($48,910 per year), roofers ($50,030), delivery truck drivers ($39,950 per year), and construction workers ($44,310 per year).

Recruitment strategies can’t address fundamental problems in jails and prisons

The narrow focus on recruitment as the antidote to understaffing poses serious risks to the health and well-being of incarcerated people and workers (albeit in very different ways). To be clear, incarcerated people undeniably face the worst harms of understaffing. Incarcerated populations are consolidated and crowded together when there’s not enough staff, and they’re often transferred to other facilities and housing units. Those transfers disrupt supportive connections to local communities, programming, and services like visitation, medical services, or the commissary. Crowding and transfers also lead to violence and the spread of infectious diseases. Lockdowns and other restrictions on movement have become more brutal and frequent without the necessary staff to facilitate movement throughout facilities or to and from court. As a result, time out-of-cell is significantly limited.¹³ All of this has contributed to the deterioration of incarcerated peoples’ mental health and their inability to get care, raising the risk of death and suicide: in-custody deaths have spiraled out of control as staff shortages intensified, forcing more people to endure the trauma of witnessing and being victims of violence. Understaffing is routinely blamed for deaths in part because there is also a shortage of medical and social work staff — shockingly, these professionals are sometimes tapped to handle officer duties when there is a shortage of trained security staff.

While our work focuses mostly on how the system harms incarcerated people and their communities, we’ve written before about how corrections work harms workers. A recent job posting for a Georgia corrections officer provides an instructive example, noting that applicants must be prepared to work nights, weekends, and holidays; be exposed to violence and disease; strip search people; and kill them “if necessary:”

Select requirements listed in an additional “Note” in all Georgia Department of Corrections job vacancy listings for Correctional Officers (accessed December 7, 2024).

In addition to working in the same overcrowded and dangerous environments facing incarcerated people, corrections workers are exposed to physical health risks such as injury or an increased risk of infectious diseases including COVID-19, tuberculosis, and hepatitis B. They have high rates of death and suicide from routinely experiencing trauma: one 2013 study of nearly 3,600 corrections professionals from all over the country estimated that 34% of correctional staff in security roles have post-traumatic stress disorder (PTSD) while 31% have depression — rates that are much higher than the 6 out of every 100 people (or 6% of the U.S. population) who will have PTSD at some point in their lives.

With that in mind, it’s no wonder why several recruitment strategies have failed to make these jobs more attractive:

Pay increases haven’t worked: As we’ve noted, the median annual salary for corrections officers has increased year over year. Agencies have tried to use higher salaries, signing bonuses, generous benefit packages, and other compensation to recruit workers but this generally hasn’t made a difference. Atlanta’s Fulton County Jail, which has a lot of problems including that it hasn’t had enough staff for many years, deployed hiring bonuses and the highest salaries of any sheriff’s department in the state but still struggles to fill positions.¹⁴ Meanwhile, the Colorado Department of Corrections has tried offering up to $7,000 in bonuses and received around $192 million to increase compensation, recruitment/retention incentives, staff overtime, and contracted personnel, but still faces a major labor shortage.

Easing employment requirements hasn’t worked: Corrections officials have also tried to relax various employment requirements to boost recruitment. In most cases, this involves changing the minimum or maximum age requirement to work as a corrections officer. In Mississippi, teenagers are expected to manage people incarcerated in state prisons with as little as an 8th-grade education, and the state still ranks among the worst of the worst for understaffing. The federal Bureau of Prisons, meanwhile, faces staff shortages despite temporarily raising its maximum age for corrections officers to 40 years old.

Staff wellness programs haven’t worked: Employee wellness programs are a popular approach to making corrections workplaces more attractive. The American Correctional Association surveyed 45 state prison systems and 25 local jails and found that 96% of those corrections agencies offered some form of employee wellness programming. However, over half of the 61 corrections agencies that reported barriers to wellness programs said that “lack of adequate staffing” was a barrier to implementation.

New facility construction hasn’t worked: Correctional facilities are often cited as obstacles to recruitment for reasons that include their vulnerability to climate change and old and crumbling architecture. We’ve previously written about the dangers of new jail and prison construction (and how to fight it), and one of the most pernicious myths supporting these projects is that newer, nicer facilities will stimulate recruitment by improving working conditions for staff. Yet time and time again, agencies struggle to staff new facilities. Marion County, Indiana built a new $570 million campus for its courts and a jail, arguing it would help resolve staff shortages, which it did not. Denver, Colorado spent millions to renovate a jail and improve working conditions and still can’t fully staff it.

Other desperate measures: Florida and West Virginia have called in the National Guard to maintain a brutal state of emergency rather than release people in response to staff shortages. West Virginia recently ceased its emergency as staffing levels have improved compared to two years ago, but overcrowding and staff vacancies persist nonetheless. Meanwhile, Nevada has contemplated turning to drones and monitoring shackles, and the federal government is considering taking over Alabama prisons amid hundreds of deaths, years of understaffing, and a plan to build a new $1 billion prison.¹⁵

Conclusion

Understaffing is a real problem in jails and prisons, and is directly tied to the living conditions of incarcerated people. It is an inevitable consequence of the U.S.’s limitless dependence on criminalization and mass incarceration — not a failure to provide higher wages, new prisons, and yoga classes. We know this because narrowly focusing on the needs of the corrections workforce has not made a dent in staffing, nor has it improved conditions for incarcerated people.

8 keys to mercyHow to shorten excessive prison sentences

Decarceration is the most straightforward, workable solution to the problems for which “understaffing” is blamed. This means increased use of parole and other forms of release, ending cash bail, reducing arrests and police contact, and other interventions aimed at removing people from the system and preventing more people from going in are all targeted policy solutions to understaffing. When policymakers abandon the idea that these problems can be addressed as narrow recruitment and human resources issues, and instead move away from mass criminalization and incarceration, we will finally see real movement on these issues and real relief for workers and incarcerated people alike.

34 criminal legal system reforms that can win in 2025

In a new report, we highlight reforms that are ripe for victory in the new year and provide tips for advocates to oppose lawmakers pushing for failed "tough-on-crime" lawmaking.

December 4, 2024

Today, we released our annual list of actionable and specific criminal legal system reforms state legislators can pursue as they return for the new legislative session. This sweeping resource offers examples of reform victories that policymakers can emulate to make the criminal legal system fairer without making it bigger.

The 34 reforms focus on eight areas:

• Expanding alternatives to criminal legal system responses to social problems;
• Protecting the presumption of innocence so people receive a fair shot at justice;
• Decreasing the length of prison sentences, and providing pathways for all people to exit prison;
• Treating people humanely during incarceration;
• Treating people on community supervision fairly, and helping them thrive in their communities;
• Setting people up to succeed when they leave prisons and jails;
• Giving incarcerated/formerly incarcerated people political representation and voice;
• Reducing spending on the criminal legal system while increasing investment in communities.

Each reform provides critical context about the problem it seeks to solve, points to high-quality research on the topic, and highlights solutions and legislation that have already been implemented in other states.

The list is not intended to be a comprehensive platform. Instead, we’ve curated it to offer policymakers and advocates straightforward solutions that would have a significant impact without further investments in the carceral system. We particularly focused on reforms that would reduce the number of people needlessly confined in prisons and jails. Additionally, we selected reforms that have gained momentum in recent years, passing in multiple states.

2024 carried several big setbacks for those pushing for an end to mass incarceration. In response, this year’s report includes a new section, offering tips for advocates to oppose their legislators backsliding into “tough-on-crime” lawmaking.

We sent this list to roughly 700 lawmakers, in all 50 states, from all political parties, who have shown a commitment to reducing the number of people behind bars in their state and making the criminal legal system more just and equitable. As they craft legislation for the upcoming legislative sessions, this list will provide them with actionable solutions to some of the most pressing challenges their states’ criminal legal system faces.

The full report is available at: https://www.prisonpolicy.org/reports/winnable2025.html.

Advocacy Spotlight: The Humanization Project

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

by Emmett Sanders, December 2, 2024

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

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

Virginia researchSee all our research on Virginia prisons and jails.

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

The Humanization Project provides a powerful framework for advocacy

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

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

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

Anatomy of a victory: Earned sentence credit in Virginia

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

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

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

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

Humanizing future advocacy can strengthen reform

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

Conclusion

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

Learn More

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

New rule means people on community supervision now qualify for Medicare

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

by Mike Wessler, December 2, 2024

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

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

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

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

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

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

Who is jailed, how often, and why: Our Jail Data Initiative collaboration offers a fresh look at the misuse of local jails

Using a novel data source, we examine the flow of individuals booked into a nationally-representative sample of jails along lines of race, ethnicity, sex, age, housing status, and type of criminal charge.

by Emily Widra and Wendy Sawyer, November 27, 2024

Millions of people are arrested and booked into jail every year, but existing national data offer very little information about who these people are, how frequently they are jailed, and why they are jailed. Fortunately, we now have new data through a collaboration with the Jail Data Initiative to help answer these questions: In 2023, there were 7.6 million jail admissions; but 1 in 4 of these admissions was someone returning to jail for at least the second time that year. Based on the Jail Data Initiative data, we estimate that over 5.6 million unique individuals are booked into jail annually¹ and about 1.2 million are jailed multiple times in a given year. Further analysis reveals patterns of bookings — and repeat bookings in particular — across the country: The jail experience disproportionately impacts Black and Indigenous people, and law enforcement continues to use jailing as a response to poverty and low-level “public order” offenses.

We first looked into these questions about repeat jail bookings in our 2019 report, Arrest, Release Repeat: How police and jails are misused to respond to social problems. In particular, our 2019 analysis found that repeated arrests are related to race and poverty, as well as high rates of mental illness and substance use disorders. While these new data don’t include as many contextual details as the survey we used in that analysis, the Jail Data Initiative data offer a more accurate accounting of unique versus repeat jail bookings — a number that the Bureau of Justice Statistics still does not collect or report. Our two analyses are not directly comparable: Our 2019 report uses data from a public health survey, the National Survey of Drug Use and Health, while the Jail Data Initiative data we use here are collected directly from online local jail records and updated daily.²³ As a result, these reports have different strengths: this analysis can provide more accurate jail booking data because of the much larger sample size, while Arrest, Release, Repeat offers more descriptive data about people who have been jailed, including details regarding health, education, and income.

More than 1 in 5 people are jailed multiple times a year

While unique jail admissions (the number of individual people admitted to jail) account for three-quarters of jail bookings, more than 1 in 5 people (22%) booked into jail are booked again within 12 months. People who are jailed multiple times a year inevitably face exacerbated consequences of incarceration: As we have discussed before, there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves, their families, and their communities, including rearrest, legal debt, missed work, lost jobs, and health risks.

Racial disparities in jail admissions extend to repeat bookings

Black people are overrepresented in every part of the criminal legal system including jails, and this new data reveal that not only are Black people jailed at alarmingly high rates, but they are jailed again and again. Relative to their share of the total US population (14%), Black people are greatly overrepresented among the unique jail admissions in this sample (32%) and the people booked multiple times in a year (29%), while white people are underrepresented in both populations. This is consistent with what we know about the over-incarceration of Black people in this country, but the rebookings data add another layer of detail about their experiences with law enforcement, which often targets Black communities.⁴

Indigenous people account for only 1% of the total U.S. population, but 3% of the incarcerated population, with incarceration rates between two and four times higher than that of white people.⁵ In the Jail Data Initiative data, we find that Indigenous people are especially likely to be booked into jail multiple times: 33% of Indigenous bookings were people who had been booked at least once in the past 12 months, compared to 18-22% among other racial and ethnic groups.

Women are funneled into jails

Women make up about a quarter of individuals booked into jail each year, which is in line with annual arrest data showing 27% of arrests in 2023 were of women.⁶ While we found no significant difference between men and women in terms of multiple jail admissions, we do know that the jail incarceration of women is growing: From 2021 to 2022, the number of women in jail increased 9% while the number of men in jail increased only 3%. The jailing of women has a devastating “ripple effect” on families: At least 80% of women booked into jail are mothers, including over 55,000 women who are pregnant when they are admitted. Beyond having to leave their children in someone else’s care, these women are impacted by the brutal side effects of going to jail: aggravation of mental health problems, a greater risk of suicide, and a much higher likelihood of ending up homeless or deprived of essential support and benefits. So while women may account for a relatively small share of people booked into jails, those jail admissions have serious and long lasting consequences for the women, their families, and their communities.

1 in 10 people booked are 55 years or older

Older adults account for one in ten of all jail bookings, but a slightly smaller share of rebookings (7%). This is consistent with existing arrest data that show an increasing proportion of older adults caught up in the criminal legal system: In 2021, people 55 years or older accounted for 8% of all arrests, a four-fold increase from their share of arrests in 1991. The Bureau of Justice Statistics only began publishing the age ranges of people in jails in recent years, but from 2021 to 2022, the jail incarceration rate of people 55 and older increased by 8%, compared to a 3% increase in jail incarceration rates across all other age groups. Considering most older adults are arrested for low-level, non-violent offenses like trespassing, driving offenses, and disorderly conduct,⁷ it is likely that the older adults admitted to jail are in need of other systems of support outside of the criminal legal system, like substance use treatment, accessible medical care, and behavioral health services.

More than 40% of unhoused people booked into jail were booked again within the year

Poor people in the United States are a primary target for policing, especially those forced to live on the streets: In a 2022 analysis of Atlanta city jail bookings, we found that 1 in 8 admissions involved people experiencing homelessness, a proportion more than 30 times greater than the city’s total unhoused population. In this analysis of the Jail Data Initiative data, we find that across the 140 jails that include housing status on their online rosters, 4% of individuals booked are explicitly listed as unhoused, although this is almost certainly a significant undercount.⁸ While this is a relatively small portion of all bookings, unhoused people were the most likely to be jailed multiple times across all the demographic categories we looked at: Over 40% of unhoused people booked into jail were booked more than once in a twelve month period. This finding adds to the existing evidence of law enforcement’s ineffective but disproportionate and deliberate targeting of people experiencing homelessness.

Most people are jailed for public order, property, or drug charges — not “violent” charges

The Bureau of Justice Statistics last collected charge data for jail populations in their 2002 Survey of Inmates in Local Jails. Given that the most recent jail offense data is over 20 years old, the Jail Data Initiative dataset offers a rare opportunity to analyze the top charges⁹ that people are booked under nationwide. Of course, the difference in data sources makes a fully apples-to-apples comparison of the 2002 data and the more recent Jail Data Initiative data impossible.¹⁰ The data provided in the Bureau of Justice Statistics survey reflects self-reported information from people detained in a sample of local jails on a single day in June 2002, while the Jail Data Initiative data is based on jail bookings across a two-year time period and relies on administrative data. Nevertheless, the overall trends since 2002 offer some valuable insights into the reasons people are detained in jails today:

• Drug charges appear to play a smaller role now than they did two decades ago, when the “war on drugs” was in full effect. In 2002, a quarter of people in jail were held for drug charges, compared to 14% of people admitted to jail in our 2021-2023 sample.
• Property charges also appear to represent a smaller portion of the jail population now than they did in 2002: Property charges are the top charge for 19% of jail admissions, compared to 24% of the jail population in 2002.
• In 2002, public order charges were the top charge for 25% of people in jail, but now, 31% of people admitted to jail are booked for a most serious charge related to public order, such as disorderly conduct, loitering, and public intoxication.
• We see very little change in the proportion of people in jail for violent charges: in 2002, 25% of people were in jail for a violent charge and in our analysis of more recent jail bookings, about 26% of jail bookings were for violent charges.

In our 2021-2023 sample, only one-third (33%) of people booked multiple times had a top charge categorized as violent in the study window, suggesting that the vast majority of people admitted to jail — including people booked repeatedly — are not accused of violent charges like homicide, assault, robbery, or sexual assault.

In their own analysis of a similar sample of the dataset, researchers at the Jail Data Initiative, Orion Taylor and Anna Harvey, found that rebooking rates vary by the type of initial booking charge. Looking closely at the rates of people returning to jail on serious violent charges¹¹ within six months of their release from jail, they found the average rebooking rate for a serious violent charge was only 2% for people initially booked into jail on any other kind of top charge. The rate was only slightly higher (9%) if they were also jailed on a serious violent charge initially.¹²

Conclusion

The Jail Data Initiative offers a sorely-needed alternative source of information about jail admissions and about people who are jailed repeatedly. In many ways, our findings from this analysis support what we already know: people who are arrested and booked more than once per year often have other vulnerabilities, including homelessness, in addition to the serious medical and mental health needs of this population that we discussed in our 2019 analysis based on public health data. In addition, this dataset fills a serious gap in our knowledge about the demographics and charges of people booked into jails, given that comparable data has not been collected or published from the Bureau of Justice Statistics in over twenty years.

Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now

President Biden and three governors should use their clemency powers before they leave office to save the lives of people facing the death penalty, our nation’s cruelest punishment.

by Leah Wang, November 18, 2024

On December 23, 2024, President Biden announced that he was commuting the sentences of all but three people on federal death row to a sentence of life-in-prison.

On December 31, 2024, North Carolina Governor Roy Cooper commuted the sentences of 15 people on that state’s death row to a sentence of life-in-prison without the possibility of parole. This is an important step, but North Carolina continues to have one of the highest death row populations in the nation.

Every November, it has become a light-hearted tradition for the president and some governors to “pardon” turkeys before the Thanksgiving holiday, sparing them from the dinner table. But when the nation’s political leaders take part in an annual turkey pardon, it’s hard not to think about the chronic underuse of clemency¹ powers across the U.S., especially for people on death row.

If turkey pardons are about choosing life over death, using clemency powers to empty remaining death rows is a straightforward way for elected leaders to act on those values and reject a horrific practice. President Biden and the outgoing governors of North Carolina, Indiana, and Missouri in particular can use clemency for those facing a state-sanctioned death before they leave office early next year. More than a dozen other governors can stop executions in their states, too, by exercising their unilateral power to modify or reduce criminal convictions and sentences at any time.

In this briefing, we show that the outgoing president and some governors’ tactless traditions of granting relief to turkeys casts a harsh light on their records of granting relief to people condemned to die. Ultimately, their legacies won’t be shaped by crass Thanksgiving rituals, but by how they tapped their power to intervene in the moral atrocity that is the death penalty.

A national patchwork of policy and practice leads to a geography-based punishment system for people convicted of the most serious crimes.

Outgoing political leaders can turn the page on the death penalty

In addition to being the only irreversible punishment, the death penalty — a sentencing option still on the books in 27 states and at the federal level² — is widely understood as the most cruel, discriminatory, and corrupt punishment, rife with due process and human rights violations. From deep racial injustice and legal misconduct, to horrific botched executions and shadowy methods of acquiring lethal drugs, to wide public opposition to many executions, the death penalty is an unpopular³ and grotesque public experiment.⁴ Almost half of U.S. states have already abolished the death penalty, and many victims’ families oppose it, helping to lead the way in repeal efforts.

While the following leaders have no record of sparing anyone from the death penalty, they still have several weeks to change course; it’s customary to wait to use clemency powers until the end of a political term, as a final boost to one’s legacy without the risk of political blowback. (And former leaders following custom have used clemency for people on death row, sometimes with a blanket commutation, converting all death sentences to life in prison.) But as the holiday and family-gathering season kicks off, the choice to ignore death row and spare a turkey instead is no act of festive good will.

President Joe Biden

Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences.

But Biden does pardon condemned turkeys, issuing a pair of pardons each year he’s been President. These fowl, by the names of Peanut Butter and Jelly (2021), Chocolate and Chip (2022), and Liberty and Bell (2023), are greeted in Washington with pomp and circumstance, and are returned to their home pastures under the care of animal experts.

Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.

Governor Roy Cooper, North Carolina

Governor Roy Cooper has only used clemency sparingly throughout his eight-year term.⁵ But even after issuing relief to several people just before Thanksgiving — including five people convicted of murder — the outgoing governor has withheld clemency from everyone on North Carolina’s death row, which has the fifth-highest death row population as of January 2024 with 138 people condemned to die.

Governor Cooper has, however, consistently pardoned turkeys, showing mercy toward at least eight birds since he took office. During the most recent pardoning event in 2022,⁶ Gov. Cooper told spectators that “Thanksgiving is a time to come together and appreciate the many blessings our families, friends and communities have to offer.” These words would be just as appropriate for sparing human life.

The North Carolina Coalition for Alternatives to the Death Penalty has been in Governor Cooper’s ear since 2022, when they launched a campaign calling on him to empty the state’s death row, commuting all sentences to prison terms before his term is over. He still has time to heed their advice.

Governor Eric Holcomb, Indiana

Indiana’s Governor Holcomb has a weak record for granting clemency,⁷ but could spare the eight individuals on Indiana’s death row with the stroke of a pen,⁸ including one man scheduled to be put to death in December — resuming executions in the state after more than a decade.

Notably, Holcomb governs a state with a legacy of rethinking death sentences: According to the Indiana Public Defender Council, more than half of all death sentences handed down in the Hoosier State since 1977 have been commuted, reversed, or dismissed, with Indiana governors taking clemency action as recently as 2005. And between 2000 and 2015, few cases that initially sought the death penalty actually resulted in a death sentence.

We couldn’t find evidence of Gov. Holcomb participating in a turkey pardon during his time in office. If he refrains this year, he should have plenty of time to acknowledge Indiana’s de facto moratorium on death sentences and extend clemency to the eight people on Indiana’s “X Row.”

Governor Mike Parson, Missouri

Governor Mike Parson of Missouri is leaving office after nearly seven years with a decent clemency record,⁹ having cleared a backlog of over 3,500 clemency applications.¹⁰ It’s unclear, though unlikely, whether Gov. Parson has ever commuted a death sentence; the clemency data produced by the governor’s office do not include crime or sentencing information. Nor could we find evidence of Parson participating in a Thanksgiving turkey pardon.

Considering Gov. Parson’s record of harmful policies, like bans on nearly all abortions and on gender-affirming care for minors, it seems unlikely that he would consider saving the lives of the dozen men on Missouri’s death row. Parson has overseen the executions of 12 people during his tenure as governor, including the execution of Johnny Johnson, a man with serious mental illness whose clemency was supported by his victim’s own father, and Marcellus Williams, whose advocates included prosecutors and the victim’s family.

As Parson considers his gubernatorial legacy, he should continue to use his unilateral clemency power for the Missourians who deserve better than the abhorrent practice of taxpayer-funded executions.

We applaud elected leaders when they use clemency to relieve people of excessive or unnecessary criminal sentences. But too often, they overlook those given the most draconian punishment on the books. Only a consistent practice of commuting death sentences and issuing pardons can combat the horrifying persistence of the death penalty. With Thanksgiving right around the corner, and their days in office numbered, outgoing leaders can spare human beings, rather than just birds.

California may take a big step backwards towards more incarceration with Proposition 36

The measure would defund prevention and reentry services, and is projected to grow the state prison population by 35% over the next 5 years.

by Sarah Staudt, October 17, 2024

Update: Californians approved Proposition 36 in the November 2024 elections.

This November, Californians will see an initiative on their ballots proposing a way to curb retail theft and drug use. In reality, this measure would undo a decade of progress towards unraveling mass incarceration without any public safety benefit. Bankrolled primarily by major retail brands like Walmart and Target, the ballot initiative known as Proposition 36 would cut millions of dollars from reentry and prevention services in favor of more prison sentences for theft and drug charges. It would punish people with substance use disorder who relapse, increase penalties for many people who use and sell drugs by increasing penalties and makes some small scale thefts eligible for felony charges. Overall, by 2029, Prop 36 is projected to fully undo hard fought progress made in reducing California’s prison population.

Prop 36 is part of a wave of recent measures across the country attempting to resurrect “tough-on-crime” policies. But this one is particularly concerning because it directly repeals decade-old reforms that have been proven to reduce both prison populations and recidivism. Californians who are interested in basing their criminal legal system policy on facts, not fear, should reject the measure — and other states should be on the lookout for similar efforts in their legislatures and on their ballots.

Prop 36 defunds critical prevention and reentry services

The text of Prop 36 doesn’t say it defunds prevention and reentry services, but that’s exactly what it does. In order to understand Prop 36, it’s important to examine another ballot initiative from a decade ago: Proposition 47 in 2014. Sixty percent of Californians voted for Prop 47 that year, a transformative initiative that reduced certain drug possession and theft crimes from felonies into misdemeanors. Lowering charges to misdemeanors decreases the long-term impact of criminal convictions on people’s housing and employment, and misdemeanors have shorter sentences than felonies. Changing these common low-level charges from felonies to misdemeanors dramatically lowered the prison population over time.

The most innovative part of Prop 47, however, was its re-investment provision. It required that the money saved by incarcerating fewer people be calculated by the state and then re-invested in a grant program for local reentry, diversion, substance and mental health treatment and crime prevention programs. So far, Prop 47 has saved the state almost a billion dollars, which has been funneled directly into local programs.

Now, Prop 36 will grow prison populations by reversing the sentencing policy changes of Prop 47. However, because Prop 36 has no funding stream of its own, it will cut into those same Prop 47 savings that fund essential local programs. This will leave local communities without the resources they need to reduce recidivism, house people, treat mental health and substance use disorders, and help people reenter society successfully after incarceration. In other words, it will stoke many of the problems that have fueled tough-on-crime narratives in the first place: fewer reentry programs mean higher recidivism rates, higher homelessness rates, and lower employment rates. Re-conviction rates for participants in Prop 47 reentry programs were 15.3% — 2-3 times lower than the average for people who have served prison sentences. The proportion of Prop 47 reentry participants who were homeless decreased by 60%, and the proportion of people who were unemployed dropped by 50%. These programs are demonstrably effective and essential public safety measures that address homelessness and poverty while reducing crime.

Prop 36 will directly harm Californians, especially those who use drugs

Prop 36 would raise the prison population by filling jails and prisons mostly with people charged with low-level theft and drug possession, while also draining resources from local community programs, and providing less effective treatment for people with substance use disorders and lengthening prison terms.

Draining resources: Prop 36’s proponents claim that they are promoting treatment for drug use even though the proposition drains funding from substance use programs. Instead of helping increase the availability of desperately-needed substance use disorder treatment, Prop 36 is an unfunded mandate, allowing prosecutors to seek “treatment mandated felonies” for people who are charged for a third time with drug possession without providing the funding to make that treatment possible. People who successfully complete these treatment mandates could have their charges dismissed, but people who do not successfully complete these programs would be convicted of a felony and potentially sentenced to prison or jail. And remember, Prop 36 does not do anything to fund these mandatory programs, so cash-strapped county governments will be left to pick up the slack.

Less effective treatment: One concerning feature of drug courts and similar mandatory treatment programs is that they put the rules and regulations of treatment programs in the hands of the courts, not medical professionals. People in community-based voluntary programs work with medical professionals who understand that relapse is part of recovery, while people in court-mandated programs may be labeled as a failure for one relapse and incarcerated. The proposition’s language allows courts and prosecutors to declare that the person has “failed” the program for incredibly broad reasons, including, “If at any time, it appears that the defendant is performing unsatisfactorily in the program, is not benefitting from treatment [or] is not amenable to treatment.”

Mandatory treatment programs are significantly less effective than voluntary treatment programs, and they have higher rates of relapse and overdose deaths. A recent review of 45 studies linking incarceration records with overdose deaths found that, in the first two weeks of release from mandatory treatment programs, opioid overdose deaths were 27 times higher than the general population. People in mandatory treatment programs often spend time in jail, either while awaiting evaluation or as a sanction for relapse and other violations. Even one day in jail can trigger a cascade of problems that are particularly acute for drug users — including heightened risk of death and suicide. Jail also disconnects them from effective treatment: only 24% of jails provide medication assisted treatment (considered the “gold standard” for opioid use disorder care).

Longer sentences: Prop 36 also increases penalties for many people who use and sell drugs by implementing sentencing enhancements for distribution and possession with intent to distribute fentanyl. The impact of expanding these excessively long sentencing enhancements to fentanyl could be disastrous, because fentanyl is so prevalent in the drug supply that most people who buy, use, and sell drugs do not know whether their drugs contain fentanyl. In one recent study, 83% of the study cohort tested positive for fentanyl — but only 18% reported that they intended to use fentanyl. This means that these sentencing enhancements will not just target the people putting fentanyl into the drug supply — they will target the majority of drug users. Prop 36 is likely to simply increase drug offense penalties across the board for Californians, rather than aiming policy at “the worst of the worst”.

Prop 36 would make California’s already-punitive theft laws harsher, locking up more people for low-level theft.

Prop 36 claims to be a response to rising retail theft, and two of the biggest donors supporting the initiative are Walmart and Target. Although retailers have worked hard to claim they are losing large amounts of money and goods from retail theft, it is far from clear that this is true.

What Prop 36 would actually do is make thefts of less than $950 dollars — with no minimum — a “strike” for the purposes of future felony charges. In other words, stealing a candy bar at some point would be enough to enhance someone’s later charge to a felony. Incarcerating more people for retail theft is likely to have notably disproportionate impacts, since people arrested for retail theft are disproportionately young and Black despite white people being more likely to engage in shoplifting. Turning more theft and drug charges into felonies instead of misdemeanors also specifically harms immigrant communities by making more people deportable for minor crimes — even people who are legally in the United States.

These changes aren’t necessary, even according to their own logic. California already has one of the lowest thresholds for felony theft in the nation, and just last month, Governor Gavin Newsom signed a series of “tough on crime” retail theft bills that allow businesses to aggregate the total amount stolen in multiple thefts to reach felony charging thresholds. Prop 36’s draconian punishment for a non-violent crime — crime that is driven most often by poverty and need — is neither needed nor helpful.

Conclusion

Prop 36 is not an isolated policy effort. It is part of a wave of measures across the country that are trying to resurrect “tough on crime” policies that claim to improve public safety or combat drug use or homelessness. But those approaches didn’t work in the past and won’t work now. What communities all over the United States need is more investment in communities, treatment, and reentry — the exact kind of investment that Prop 47 provides in California today, and the exact kind of investment that Prop 36 would undo. If you are interested in learning more about the efforts to defeat Prop 36, California United for a Responsible Budget has compiled a set of resources and ways to get involved. Californians — and people around the country — should reject punitive policies that will simply reboot mass incarceration instead of investing in proven solutions.