How inflation makes your state’s criminal justice system harsher today than it was yesterday

The case for increasing the monetary level for felony theft.

by Tiana Herring, June 10, 2020

Each state sets a statutory definition of which thefts are felonies (punishable by longer sentences in prison) and which are misdemeanors (punishable by shorter sentences in jail). But in many states, the dollar amount separating felony theft from misdemeanor theft has not been increased in years, even though inflation makes the older laws more punitive each year.

These limits vary from New Jersey (a $200 theft is a fourth-degree felony) to Texas and Wisconsin where a theft must be worth $2,500 before you can get a state prison sentence. New Jersey’s limit is so low because it is one of the oldest in the country — it remains unchanged from when it was originally enacted in 1978.¹ Only one state — Alaska — automatically adjusts the felony theft threshold with inflation.² The range between the states is tremendous:

Updating felony theft statutes is one simple way to reduce the number of people serving time in prison for low-level offenses. Making more minor thefts into misdemeanors will also spare more people from the often lifelong collateral consequences of felony convictions that can limit their access to public housing, welfare benefits, and even voting.

Decreasing the punishment for minor thefts is unlikely to encourage more thefts. As Pew Charitable Trusts found in their invaluable 2018 report, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, South Carolina’s property crime rates actually continued to fall years after the threshold increased. This isn’t unique to South Carolina, either. Pew’s article also included a brief comparison of crime rates in all 50 states, reporting that between 2000 and 2012, the 30 states that increased their thresholds had property crime rates similar to the 20 states that had not yet updated their laws.

Appendix table

Ten key facts about policing: Highlights from our work

Police disproportionately target Black and other marginalized people in stops, arrests, and use of force; and are increasingly called upon to respond to problems, such as homelessness, that are unrelated to public safety.

by Wendy Sawyer, June 5, 2020

Many of the worst features of mass incarceration — such as racial disparities in prisons — can be traced back to policing. Our research on the policies that impact justice-involved and incarcerated people therefore often intersects with policing issues. Now, at a time when police practices, budgets, and roles in society are at the center of the national conversation about criminal justice, we have compiled our key work related to policing (and our discussions of other researchers’ work) in one briefing.

1. Nearly 1 million people in the U.S. experience the threat or use of force by police annually, and they are disproportionately Black and Latinx.

The scale of police use of force is an important fact in and of itself, made more troubling by the racial disparities evident in police stops and use of force. In a national survey, Black respondents were more likely to be stopped by police than white or Latinx respondents, and both Black and Latinx respondents were more likely to be stopped multiple times over the course of a year than white respondents. The survey also showed that when they initiated a stop, police were twice as likely to threaten or use force against Black and Latinx respondents than whites. These disparate experiences have predictable effects on public trust in police: white respondents were more likely to view police use of force as legitimate and more likely to seek help from police than were people of color.

2. Over 4.9 million people are arrested each year.

In all, there are over 10 million arrests in the U.S. each year, but many people are arrested multiple times per year. From responses to a national survey, we estimate that at least 4.9 million unique individuals are arrested and jailed each year, and at least one in four of those individuals are arrested more than once in the same year. The massive scale of these police responses means that there are millions of opportunities each year for police-civilian encounters to turn violent or fatal, and an estimated 77 million people are now saddled with a criminal record.

3. Most policing has little to do with real threats to public safety: the vast majority of arrests are for low-level offenses. Only 5% of all arrests are for serious violent offenses.

The “massive misdemeanor system” in the U.S. is an important but overlooked contributor to overcriminalization and mass incarceration. For behaviors as benign as jaywalking, sitting on a sidewalk, or petty theft, an estimated 13 million misdemeanor charges sweep droves of Americans into the criminal justice system each year (and that’s excluding civil violations and speeding). And while misdemeanor charges may sound like small potatoes, they carry serious financial, personal, and social costs, especially for defendants but also for broader society, which finances the enforcement of these minor violations, the processing of these court cases, and all of the unnecessary incarceration that comes with them.

4. Policing criminal law violations costs taxpayers over $63 billion each year.

Policing costs the public $126.4 billion per year, nationwide. In our report about the fiscal costs of mass incarceration to the government and families of justice-involved people, we used only half of that figure – $63.2 billion – because only about half of police work is devoted to criminal law enforcement. The other half is spent on things unrelated to criminal law violations, such as traffic control, responding to civil disputes, and administration. Even at half the total cost of policing, $63.2 billion represents a huge public investment in criminalization. As many Americans are questioning the role of police in society, they should know just how much money is available to redirect to more humane community-based responses to social problems.

5. People who are Black and/or poor are more likely to be arrested, and to be arrested repeatedly.

People who are arrested and jailed are often among the most socially and economically marginalized in society. The overrepresentation of Black men and women among people who are arrested is largely reflective of persistent residential segregation and racial profiling, which subject Black individuals and communities to greater surveillance and increased likelihood of police stops and searches. Poverty, unemployment, and educational exclusion are also factors strongly correlated with likelihood of arrest.

6. People with mental illnesses or substance use disorders are also more likely to be arrested, and to be arrested repeatedly.

People who are arrested often have serious health needs that cannot and should not be addressed through policing or incarceration. Even a few days in jail can be devastating for people with serious mental health and medical needs, as they are cut off from their medications, support systems, and regular healthcare providers. Even worse, many people are arrested in the midst of a health crisis, such as mental distress or substance use withdrawal. History has shown that jails are unable to provide effective mental health and medical care to incarcerated people, and too often, jailing people with serious health problems has lethal consequences.

7. Women make up a growing share of arrests and report much more use of force than they did 20 years ago, with Black women most likely to be targeted.

The experiences of women and girls – especially Black women and other women of color – are often lost in the national conversation about policing. But of course women, too, are subject to racial profiling, use of excessive force, and any number of violations of their rights and dignity by police. Our analysis of national data shows that women now make up over a quarter of all arrests, with an estimated 2.8 million arrests in 2018. At the same time, the use of force has become much more common among women: the number of women who experienced police use of force (about 250,000) was 3.5 times greater in 2015 compared to 1999.

A closer examination of the data also reveals racial disparities in police stops, arrests, and use of force involving women. Black women are more likely than white or Latina women to be stopped while driving, and Black women are arrested 3 times as often as white women and twice as often as Latinas during police stops. Black women also report experiencing police use of force at higher rates than white or Latina women. With an estimated 12 million women per year experiencing police-initiated encounters – many of which involve searches, use of force, and other traumatizing experiences – the harms of policing to women demand more attention.

8. Disabled people represent a disproportionate number of those stopped, arrested, and killed by police.

As the ACLU of Southern California and the Bazelon Center for Mental Health Law report, many criminalized behaviors targeted by law enforcement are related to disability: substance use (often used as self-medication for pain and other symptoms), homelessness (an estimated 78% of people in shelters have a disability), and atypical reactions to social cues, which may be interpreted as vaguely defined crimes such as “disorderly conduct.” The Ruderman Foundation reports that in police use-of-force incidents, the media and police often blame disabled people for their own victimization, especially by characterizing disabled people of color as “threatening” and “refusing to comply.”

The frequent use of police as first responders to individuals in crisis only compounds these problems. Too often, officers who are called to help individuals get medical treatment end up shooting them instead. Public funds should be redirected to community health providers to handle mental and physical health crises, rather than trying to meet this critical need with militarized police forces, who sometimes receive little training on crisis response or de-escalation.

9. Police treat Black Americans with less respect.

A Stanford University analysis of police bodycam footage from nearly 1,000 vehicle stops substantiates what Black Americans already know: police officers treat Black people differently than they do whites. This study, discussed in our briefing, finds that “police officers speak significantly less respectfully to black than to white community members in everyday traffic stops,” and that this happens irrespective of officer race, severity of the infraction, and outcome of the stop. These findings lend important context to the racial disparities observed in police encounters.

10. State and federal law enforcement practices target poor Black and Latinx residents.

Separate reports focusing on policing in Chicago highlighted two law enforcement strategies justified as ways to protect communities – drug stings and asset forfeiture – that facilitate widespread targeting of low-income communities of color. Federal agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) arranged drug stings that set up fake drug stash houses and lured people into committing new crimes. But they didn’t single out just anyone: At least 91% of the time, agents targeted Black and Latinx people. Columbia professor Jeffrey Fagan’s analysis found no statistical explanation for this except disparate racial treatment. A District Court judge described these cases as “ensnaring chronically unemployed individuals from poverty-ridden areas.”

Meanwhile, Cook County police conducted 23,000 seizures of assets connected to civil and criminal cases, a practice that is supposed to disrupt major illegal drug trades. But an analysis by Reason and the Lucy Parsons Lab showed that police officers were often taking petty property and the lowest-value seizures (valued under $100) were clustered in predominantly poor and Black communities on Chicago’s South and West Sides. These examples illustrate that at every level, the “war on drugs” functions as a war on communities of color.

For more information, the reports and briefings summarized here – and more – can be found on our Policing Issue page.

Acknowledgements: This briefing was compiled by Wendy Sawyer based on previously published writing by current staffers Wanda Bertram, Alexi Jones, Wendy Sawyer, and by Policy Initiative alumns Joshua Aiken, Alex Clark, Lucius Couloute, and Elliot Oberholtzer.

Compassionate release was never designed to release large numbers of people

With help from artist Kevin Pyle, we explain why very few people who apply for compassionate release are approved — even during a pandemic.

by Emily Widra and Wanda Bertram, May 29, 2020

With the coronavirus pandemic threatening to turn prison sentences into death sentences, many incarcerated people are seeking compassionate release — the release of people who are facing imminent death and who pose no threat to the public — to save them from dying of COVID-19 in prison. Unfortunately, what they, and the American public, are learning is that compassionate release is not a transparent and linear process, but an unpredictably ordered series of obstacles. As artist Kevin Pyle depicts here, these hurdles and delays kill the vast majority of compassionate release petitions:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.¹

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.),² but the basic framework is the same: An incarcerated person is recommended³ for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

• Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.⁴
• Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”⁵
• Allowing the ultimate decision-makers⁶ to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one.

There is plenty of room for states to improve their compassionate release processes. In our 2018 report Eight Keys to Mercy, we recommended that states:

• Make compassionate release available to all incarcerated people, irrespective of the offenses for which they are incarcerated.
• Streamline all compassionate release processes and set reachable deadlines so that petitioners don’t die due to bureaucratic bottlenecks before they are released.
• Limit the ability of prison officials to overrule, on medical grounds, a recommendation of release by medical professionals.

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

When parole doesn’t mean release: The senseless “program requirements” keeping people behind bars during a pandemic

Parole boards are granting parole contingent on participation in programs that are often not readily available for people behind bars, especially during the pandemic.

by Emily Widra and Wendy Sawyer, May 21, 2020

With public health officials and criminal justice reform advocates urging prisons to reduce their populations, people who have already been approved for release should be the first to return to their communities and families. Instead, thousands of them are waiting behind bars — where social distancing is impossible — as prisons across the country become the epicenters of the COVID-19 pandemic.

These are the people who have already been granted parole by the state parole boards, but have not yet taken a class or program that the parole board requires them to complete before they can go home. They are near enough to the end of their sentences to be parole-eligible, and the parole board has determined that they are “safe” to return to the community, but they cannot be released until they complete a program, often a drug and alcohol treatment program.

Parole boards are granting parole contingent on participation in programs that are often not readily available for people behind bars. If states changed their policies to allow for these programs to occur in the community upon re-entry, they would see the prison population drop without making any other significant release policy changes. Studies show that, at least for the therapeutic community model used in many prison systems, there is nothing unique to the prison context that makes these programs more effective than when they are done in the community.

Tennessee offers a striking example of this potentially devastating policy failure. Over 1,300 COVID-19 cases in Tennessee are connected to a single state prison — Trousdale Turner Correctional Center — making it the third largest source of COVID-19 cases in the country. As Nashville defense attorney David Raybin explained to NewsChannel5, over 1,000 people in Tennessee prisons have been approved for parole but are waiting to participate in the mandated programming, most often the Department of Correction’s therapeutic community program, which lasts 9-12 months. That means Tennessee could reduce its prison population by almost 4% by releasing just those who have already been approved for parole.¹

Evidence shows that these programs are effective whether offered before or after release, but states have been reluctant to offer these programs in communities instead of in prisons. But of course, education and treatment programming across the nation’s prison systems have been interrupted by the virus, as volunteers and educators are no longer entering the prison system on a regular basis; in Tennessee, the Department of Correction released a statement that the virus is causing “some disruption in programming.” Even in the best of times, participation in these programs is limited and people wait behind bars for a space in the program before they can be released.

This is not a new problem for Tennessee. Before the pandemic, a taskforce commissioned by the governor found that 40% of people granted parole from 2015-2019 had not actually been released because they were still waiting to participate in pre-release programs mandated by the parole board. That means that over those four years, more than 6,000 people were parole-eligible, reviewed and approved for release by the parole board, and then remained in prison simply because the mandated program was not offered at their facility or the maximum number of participants had already been reached.

Nor is this problem unique to Tennessee. A 2015 survey by the Robina Institute revealed that at least 40 states use “institutional program participation” as a factor in release decision-making for parole. In Texas, families have voiced their concern about loved ones who have been granted parole, but are still waiting to complete a pre-release program. Officials report that people often wait for months after being granted parole to begin these programs that provide education, life skills and employment training, substance abuse treatment, and other important re-entry supports. But waiting for programming that is on-hold or indefinitely postponed is no reason for people to remain in prison, especially when incarceration puts them at a heightened risk for contracting the virus.

If parole boards do not change this practice, for as long as the virus causes a “disruption in programming,” the number of people approved for parole but still in prison will continue to grow. The solution is obvious: Parole boards can waive the requirement or offer the therapeutic community programming after release. Especially given the current public health crisis, it makes sense for these programs — which, again, have been shown to be effective when offered after release — to be moved to the community setting when it is safe to do so. And in the meantime, people who have been approved for parole should be released as quickly as possible as part of the state’s efforts to protect incarcerated people and the larger community.

The Prison Policy Initiative is exploring doing a larger project evaluating prison programming, particularly the programming used to make parole decisions. If you happen to have copies of the curricula for any programs run in your state, please send a copy to virusresponse@prisonpolicy.org.

While jails drastically cut populations, state prisons have released almost no one

Our updated analysis finds that jails are responding to the unprecedented public health crisis by rapidly dropping their populations. In contrast, state prisons have barely budged.

by Emily Widra and Peter Wagner, May 14, 2020

This article was updated on October 21st, 2021 with more recent jail and prison population data. That version should be used instead of this one.

In the last two months, local governments across the U.S. have drastically reduced their jail populations to slow the spread of the coronavirus. The typical jail has reduced its population by more than 30%. But state prisons — where social distancing is just as impossible as in jails, and correctional staff still move in and out every day — have been much slower to release incarcerated people: The typical prison system has reduced its population by only 5%. Below, we compare the population cuts in local jails to those in state prisons, discussing just how little states are doing to keep their residents (and the general public) safe. (And note, our use of the term “reduction” is a purposeful distinction from “release,” as we have found that there are multiple mechanisms impacting populations, of which releases are but one part.)

While jails continue to make quick changes in the face of the pandemic, they house only 1/3rd of the incarcerated population, while the other two-thirds are held by state and federal authorities, who are moving far too slowly. After North Dakota, the six states with the largest reductions share an important quirk: they are all small state prison systems that serve as both prisons and jails. For that reason, much of their reduction could be the result of drops in the jail portion of their populations and it is possible that the reduction of their sentenced prison population may be much smaller. The one exception is Connecticut, which after the previous version of this report sent us data showing that their pretrial population decreased 10% and their sentenced population decreased by 11% from March 1st to April 29. (For detailed data on 131 large jails, see Table 1 below and for the data on more than 600 jails see our appendix, and for the smaller changes in 41 state prison systems and the federal Bureau of Prisons, see Table 2 below.)

The strategies jails are using to reduce their populations vary by location, but they add up to big changes. In some counties, police are issuing citations in lieu of arrests, prosecutors are declining to charge people for “low-level offenses,” courts are reducing the amounts of cash bail, and jail administrators are releasing people detained pretrial or those serving short sentences for “nonviolent offenses.” (We’re tracking news stories and official announcements of the most important changes in the country on our virus response page.)

Table 1: Largest known population reductions in large local jails

Meanwhile, state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small.

Table 2: Most state prison systems show only very modest population reductions (showing 41 states — and the Federal Bureau of Prisons — where the data was readily available)

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails. (At least Colorado, Illinois, California, and Oklahoma are doing this.) While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still being held in different correctional facilities.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases have not amounted to significant population reductions. For example, the Iowa Department of Corrections has released over 800 people nearing the end of their sentences since March 1st, but the overall net change in Iowa’s incarcerated population has only been about 4%. Kentucky Governor Andy Beshear commuted the sentences of almost 200 people convicted of felonies in early April, and the state also planned to release 743 people within 6 months of completing their sentences. Since December 2019, the Kentucky prison population has only decreased by a net 9%, while more than 85% of the jails we analyzed had dropped their populations by 10% or more.

Of the states we analyzed, those with smaller pre-pandemic prison populations appeared to have reduced their populations the most drastically. The prison population has dropped by 19% in North Dakota, the same state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey. North Dakota has done more to reduce its state prison population than any other state, but even that state has done less than the typical jail in the country which has reduced its population by more than 30%.

States clearly need to do more to reduce the density of state prisons. For the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, and to release those that are already in confinement for those same technical violations. (In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.) Similarly, other obvious places to start are releasing people nearing the end of their sentence, those who are in minimum security facilities and on work-release, and those who are medically fragile or older.

If the leadership and success of local jails in reducing their populations isn’t enough of an example for state level officials, they may find some inspiration in the comparative success of other countries:

Table 3: Countries reducing their incarcerated populations in the face of the pandemic (showing 13 countries where current population data was readily available)

Prisons and jails are notoriously dangerous places during a viral outbreak, and public health professionals, corrections officials, and criminal justice reform advocates agree that decarceration will help protect both incarcerated people and the larger communities in which they live. It’s past time for U.S. prison systems to meaningfully address the crisis at hand and reduce the number of people behind bars.

This article updates one published on May 1st with a larger dataset of state prison population reductions collected by the Vera Institute of Justice and released alongside their report Prisoners in 2019, and with updated jail reduction figures collected by the NYU Public Safety Lab.

Since you asked: How many people aged 55 or older are in prison, by state?

Our table shows that more than 10% of people incarcerated in state prisons are 55 or older - and in some states, like Montana, the percentage is much higher.

by Emily Widra, May 11, 2020

This briefing has been updated to a new version with data through 2021.

Prisons and jails have become the epicenter of the COVID-19 pandemic, with seven of the ten largest hotspots identified as state prisons and local jails. With the CDC having warned that older adults are at heightened risk for severe complications and death from COVID-19, readers have asked us: Just how many people in state prisons are older adults? We’ve answered this question — state by state — in a handy table below.

To prepare our table, we drew on the most recent age data from the National Corrections Reporting Program, 1991-2015. Age data for state prisons is broken down into categories, and older adults fall into the category of “55 and older.” Although outside of correctional facilities, the term “older adults” often refers to people 65 and older, incarceration itself shortens life expectancy and hastens physiological aging. So for the purposes of addressing how vulnerable different groups are to the coronavirus, it makes sense to consider adults 55 and older behind bars as “older adults.”

We found that, on average, more than 10% of people in state prisons are over the age of 55. Some state prison systems have much higher percentages of older adults, like in Montana, where over 17% of the state prison population is 55 years or older.

Regardless of their preexisting health conditions, all older adults are at greater risk for complications from COVID-19. As this virus threatens to turn their prison sentences into death sentences, states should use all possible strategies to release them to the care of their families.

Our new fact sheet illustrates what’s in store if prisons and jails don’t decarcerate now

Our fact sheet for advocates shows how rapidly the coronavirus can spread through correctional facilities, and how high infection rates in prisons and jails already are.

by Wendy Sawyer, May 8, 2020

To help advocates argue for more aggressive decarceration as COVID-19 spreads rapidly through the nation’s prisons and jails, we’ve created a one page PDF fact sheet.

The fact sheet includes new analysis of recent COVID-19 data, largely gathered by the UCLA School of Law COVID-19 Behind Bars Data Project, put into context using other government data sources. As a result, we were able to make a series of tables and charts to show:

• Prevalence rates of the virus in facilities that have conducted widespread testing;
• How many asymptomatic people test positive in facilities with universal testing — indicating that in places where only the few people with symptoms are being tested, many more untested people are spreading the virus;
• The largest outbreaks in jails and prisons where facilities are testing incarcerated people; and
• The rapid spread of the virus over time in the few places that publish historical data, such as the Cook County (Chicago) jail and Arkansas prison system.

We also discuss the problems with prison and jail COVID-19 data; namely, that the data we have only reflect test results, and most places still are not testing widely. What we’ve learned from the places testing everyone — not just people showing symptoms — is that the virus is rampant among incarcerated people and correctional staff, which means that some prisons and jails are acting as “spreaders” of the virus in local communities.

The rapid spread of the virus among incarcerated people is unsurprising, since social distancing is impossible in the close quarters of prisons and jails. And incarcerated people, who disproportionately suffer from chronic illnesses that make them more vulnerable to the virus, are at incredible risk. As our new fact sheet shows, federal, state, and local authorities must freeze admissions and release more people now to prevent further spread of the virus through incarceration.

Federal court responses to COVID-19: From vague statements to concrete national models to reduce pretrial detention and protect rights

We review how federal courts are modifying their procedures in the face of the COVID-19 pandemic.

by Wendy Sawyer, May 6, 2020

As we have argued recently, in order to prevent more unnecessary COVID-19 related deaths among incarcerated people, authorities must minimize the use of pretrial incarceration. In the case of local jails, “authorities” means a complex web of jurisdictions and officials who have the authority to release people from jail. The federal system is a different story. Unlike local jails, federal pretrial detention is governed by a single set of laws, but that doesn’t simplify matters much when the actual decision-makers are spread out among 94 judicial districts.

So what are federal courts doing to reduce pretrial incarceration? We looked at some of the orders that federal courts have issued to deal with pretrial populations during the COVID-19 pandemic, and identified some important issues, promising approaches, and places where more dramatic action is needed.

Judges are traditionally hesitant to involve themselves with carceral operations, given the central role of separation-of-powers in American governance. But pretrial detention is a special situation, since people who are not convicted are in the custody of the court, and judges must decide whether or not defendants should be incarcerated pending trial.

Every federal court in the country has issued general orders modifying their operations during the current pandemic. Dozens of these orders address the treatment of pretrial detainees, but most of these provisions are disappointing in their narrow scope: Many orders simply require screening of symptoms, or encourage the use of video appearances, but do nothing to actually address the public health crisis posed by incarceration during a viral pandemic. Most notably, many orders instruct the US Marshals Service (which operates federal pretrial detention) to develop procedures for monitoring the health of incarcerated people, despite the Marshals’ well-documented indifference to the health of the people in its custody.

However, a handful of court orders — ranging from generalized statements of goals to specific policy changes — stand out as actually addressing the problem, and are worthy of discussion:¹

Statements of policy. On the more generalized end of the spectrum, Minnesota’s district court has entered an order directing its office of pretrial services to “reassess whether alternatives to detention exist that in its judgment will reasonably assure the appearance of the defendant and the safety of the community.” This approach is commendable, but without careful attention to the details, it runs the risk of widening the use of troublesome “alternatives” like electronic monitoring.

Protecting health one case at a time. In the middle of the spectrum of judicial responses are courts that have decided to make case-by-case decisions on pretrial detention, but have provided new procedures for speeding up the process. The federal court for Alaska has created an expedited procedure to rule on requests from people seeking release from custody prior to trial or sentencing, which includes a procedure for defendants to obtain their own medical records for use as evidence. The courts in Massachusetts and the Eastern District of Michigan have entered similar orders, with the Michigan court specifically noting the need to “reduc[e] population density in BOP and detention facilities.”

Anticipating how facilities may undermine justice. The federal court in Montana has recognized that social distancing measures will inevitably lead to more defendants being forced to communicate with their lawyers via phone or video. Accordingly, that court’s general order specifies that when that happens, “the attorney-client privilege…is not waived by the presence of third parties or the existence of monitoring.” Importantly, these protections apply whether or not facilities or phone companies advise callers that their communications are being monitored.

The court for the Eastern District of New York has taken the most comprehensive approach, by emphasizing the need for meaningful information on the conditions in facilities where people are held. The court has identified the four facilities that hold most pretrial defendants in the Eastern District, and has ordered the wardens of those facilities to provide twice-weekly reports on mitigation measures and test results. The court order goes on to direct that such reports be posted on the court’s public website.

As one can see from reading the reports submitted to the New York Court, they are sparse on details and use the bureaucratic jargon common among correctional administrators. Nonetheless, this reporting requirement is an important first step in combatting one of the pandemic’s most important drivers of fear: the lack of information.

As a currently incarcerated author noted in an article published last week, “The only way to significantly reduce inevitable deaths from an outbreak inside is to reduce the number of people inside.” While none of the court orders discussed here directly release anyone from custody, they highlight some of the issues that we will have to address when pushing for large-scale reductions in incarceration: facilitating judicial decision-making about releases, preserving privacy in an age of digital communications, and prying factual information out of correctional bureaucracies that are generally hostile to transparency.

Since you asked: What data exists about Native American people in the criminal justice system?

Problems with data collection - and an unfortunate tendency to group Native Americans together with other ethnic and racial groups in data publications - have made it hard to understand the effect of mass incarceration on Native people.

by Roxanne Daniel, April 22, 2020

The scarcity of data on Native Americans in the U.S. criminal justice system comes up a lot in our conversations with activists and reporters, who rightly wonder why Native populations are often excluded from comparisons with other racial and ethnic groups. While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse. So, we compiled the information that does exist — which is fractured and hard to locate — in one place below.

Preface: What the Census data says

We’ve previously used data from the 2010 Census to analyze incarcerated populations by race/ethnicity and sex for each state. In our analysis, data on prisons and jails were combined. We found that, in 2010, there were a total of 37,854 American Indian/Alaskan Natives in adult correctional facilities, including 32,524 men and 5,132 women (and 198 who were 17 or younger). That is equivalent to a total incarceration rate of 1,291 per 100,000 people, more than double that of white Americans (510 per 100,000). In states with large Native populations, such as North Dakota, American Indian/Alaskan Native incarceration rates can be up to 7 times that of whites. Once the 2020 Census data is released, we will update our analysis, since it is 10 years old now.

Other data on Native Americans in the criminal justice system

Prisons: In 2016, 19,790 Native men and 2,954 Native women (22,744 total) were incarcerated in U.S. state and federal prisons, according to the Bureau of Justice Statistics’ (BJS) National Prisoner Statistics (NPS) series. The NPS series reports the population of state and federal prisons – but not local jails – by race/ethnicity and sex, but the most recent data available with that level of detail is from 2016. However, other sources supplement these findings:

• BJS reports an increase to 23,701, in Prisoners in 2017. Oklahoma tops the list as the state with the highest number of American Indian/Alaskan Natives incarcerated, followed by Arizona, Alaska, and California. However, this data is not broken down further by sex and race.
• Limited state-level data is also available from some state Departments of Corrections, like Alaska’s, which identifies Alaskan Native populations in its annual Offender Profile. However, many other states, even those with large Native populations like California and Texas, group these populations into an “other” category when reporting demographics. (More on that in our discussion of data limitations below.)

Jails: The BJS annual report on jail inmates estimates 9,700 American Indian/Alaskan Native people – or 401 per 100,000 population – were held in local jails across the country as of late June, 2018. That’s almost twice the jail incarceration rates of both white and Hispanic people (187 and 185 per 100,000, respectively). Frustratingly, this data is also not reported by sex.

The 2016 BJS Jails in Indian Country report identifies 80 facilities operating on tribal lands, holding 2,540 people – 1,750 men and 620 women – in mid-2016. The number of inmates admitted to Indian country jails was 9,640 during the month of June 2016, giving us an idea of “jail churn” in facilities on tribal lands. Additionally, this report is one of the very few sources for this population’s offense data, although even here, about 35% of offenses are unhelpfully categorized as “other.”

Youth: People under the age of 21 make up 42% of American Indian/Alaskan Native populations in the United States, so Native youth confinement is a special concern. With a detention rate of 255 per 100,000 in 2015, Native youth are approximately three times more likely to be confined than white youth (83 per 100,000). In Indian country jails, approximately 6% of the confined population was 17 or younger in 2016; unfortunately, the number of youth held in other adult prisons and jails is not broken down by race/ethnicity. The Census of Juveniles in Residential Placement reports data on Native youth in juvenile justice facilities across the U.S., most recently for 2017, including details about offense type, facility type, sex, age, and more.

Contributing to these confinement rates is disproportionate police contact: Native youth are arrested at a much higher rate than white youth. The 2018 arrest rate for Native youth was 2,251 per 100,000 while white youth were arrested at a rate of 1,793 per 100,000.

Data collection from Native populations suffers from a number of limitations

Data collection efforts in tribal communities face a number of problems that limit the data’s accuracy and comprehensiveness.

According to the National Institute of Justice, issues such as difficulty in outreach, overlapping jurisdictions, and differences between tribal justice systems make the collection of data from these communities especially challenging. U.S. government policies and priorities also limit the data it collects and reports about Native populations:

• The DOJ has moved slowly: A Department of Justice (DOJ) oversight report in compliance with the 2010 Tribal Law and Order Act (TLOA) states that the “TLOA requires the Department’s BJS to collect data related to crimes in Indian country. However, 7 years after TLOA became law, its data collection and reporting efforts are still in development.”
• Reporting is voluntary: According to the same report,“…because participation in the FBI’s Uniform Crime Reporting (UCR) Program is voluntary, not all tribes report crime statistics into the UCR database. As a result, Indian country crime statistics are so outdated and incomplete as to be virtually useless.” The BJS derives most of its crime data from the UCR program, which is especially incomplete when it comes to tribal jurisdictions’ data. The DOJ report found that while “207 tribes reported to the UCR in 2014, only 115 tribes submitted complete information that was included in the final UCR report.” It’s worth mentioning that there are, as of 2017, 226 tribal law enforcement agencies recognized by the federal government. Assuming the same number existed in 2014, that means 19 (8%) did not report crime data at all.
• Data collection does not distinguish between tribes: According to the DOJ report, the National Crime Victimization Survey “does not allow the calculation of separate crime statistics for each American Indian tribe.” A report from the United States Sentencing Commission’s Tribal Issues Advisory Group also cites a lack of accurate databases in tribal courts, consistent and comparable disaggregation, and data sharing between federal and tribal entities.
• Data aren’t used to help Native communities: The U.S. Sentencing Commission’s Report notes that the limited data that is collected has not been used to “evaluate and improve” law enforcement activities in Indian country. This adds to the strain caused by the general lack of cooperation between U.S. and tribal justice systems: According to a report by the National Tribal Judicial Center, federal and state correctional facilities “do not notify tribes of inmate release to parole or probation.” The report notes that tribal “protection orders are not validated by or enforced by state courts or state law enforcement. No outside agencies honor tribal court subpoenas.” This lack of reciprocity worsens the already countless issues with data collection and sharing.
• Cultural and socioeconomic barriers lead to undercounting: More broadly, a “distrust of the U.S. government, a youth-heavy population, nontraditional addresses, low internet access, language and literacy barriers, weather and road access issues, and high rates of poverty and houselessness” create a deeply problematic undercounting of American Indian/Alaskan Native people. (A report by Rewire.News examines the consequences of this undercounting, including lower representation in Congress, funding deficits in health and human services, and a decline in tribal recognition and enrollment.)

“Other” data obscurities

Criminal justice data often uses racial and ethnic categories to break down the disproportionately high representation of Black and Hispanic populations in prisons and jails. Beyond these categories, however, lies the illusive “other” designation, which lumps together Asian Americans, Pacific Islanders, Native Hawaiians, and of course, American Indians and Alaskan Natives. However, as the Census data reveals, disproportionate incarceration rates for these groups are not negligible. This practice obscures differences between these groups and makes it difficult to determine how the justice system plays a role in Native communities. Specifically:

• The Bureau of Justice Statistics categorizes American Indian/Alaskan Natives as “other” in their Felony Sentences in State Courts data series. According to research by the Native American Voting Rights Coalition, several Native women surveyed mentioned that their husbands/partners were ineligible to vote due to felony convictions, contributing to a variety of barriers that hinder Native American political participation. The lack of disaggregated data makes it difficult to determine the exact proportion of Natives who are disenfranchised.
• According to the American Indian and Alaskan Natives in Local Jails report, there were 56,400 individuals in jails – in addition to those categorized as “single race” American Indian/Alaskan Native – who identified as American Indian/Alaskan Native and another race(s) or ethnicity, suggesting higher rates of incarceration nationwide if multi-racial individuals were included in Native population counts or rates.
• Rewire.News’s report also highlights how gender categorization of Native populations can often obscure those who identify as Two Spirit, non-binary, or transgender.

As it stands, there are many more questions than answers about Native Americans in the criminal justice system. Until criminal justice agencies overcome the limitations on data collection — and until the offices that publish the data are willing to list Native Americans as a distinct demographic group, rather than a member of an “Other” category — informational gaps will continue to make it difficult to understand how overcriminalization has impacted Native populations.

How prepared are state prison systems for a viral pandemic?

We sent state prison systems a 5-question survey, and the answers – largely – are not encouraging.

by Emily Widra and Peter Wagner, April 10, 2020

Many local jails and pretrial systems are taking action to reduce their populations in advance of the COVID-19 pandemic, but state prison systems are not, raising the question: Are state prisons prepared to handle a pandemic within their walls? We set out to survey prison systems on the capacity of their health facilities, their plans for any necessary external hospitalizations, their levels of equipment, their staffing levels and their general priorities.

Unfortunately, our April 3-10 survey shows that state prisons are still largely unprepared for a global pandemic that can reasonably be expected to hit their entire state prison system — and their supporting state government — all at the same time.

Most prisons are still aiming to keep the virus out of their facilities, rather than focusing on how to minimize the harm to incarcerated people, to their staff and to society as a whole. Containment might be a reasonable goal when it comes to outbreaks of flu, tuberculosis, or MRSA – diseases that prison systems know how to guard against by vaccinating people, screening, and so on. But COVID-19 is different both in terms of how it spreads and by the fact that it is already stressing the public hospital system that state prisons historically rely on for back-up support.

Given the number of large number of staff required to run a facility¹ and the apparent ease with which asymptomatic people can infect others, no combination of security restrictions — such as suspending family visitation, checking the temperature of incoming staff, or confining the entire population to their cells — can keep out the virus that causes COVID-19 for long.² And once the virus enters a facility, the density and lack of sanitation will allow it to spread quickly to all incarcerated people and staff, and will accelerate the spread to the surrounding community.

Ideally, state prisons’ first response to the pandemic should have been to do like many jails and reduce the number of people incarcerated. But at the very least, we expected to see them developing plans that acknowledged the inevitability of a COVID-19 outbreak and its unique challenges. Their plans should anticipate the need to isolate vulnerable people, work around staffing shortages, and navigate shortages of medical supplies and hospital beds. But except for a few notable exceptions — particularly North Dakota — most states have not even gotten that far.

The good news is that in some states, the spread of the virus is several weeks behind other states, so some of the states that are the least ready still have the potential to learn from other states and improve their planning.

The state of pandemic planning in state prisons

In our survey of state Departments of Corrections, we sought to gather more information about how states are preparing for the pandemic to breach the prison gates. We asked about five major topics of pandemic preparedness:

1. the capacity for isolating particularly vulnerable individuals and quarantining people with suspected cases of COVID-19 within facilities,
2. protocols for people requiring hospitalization,
3. equipment (including ventilators, medical-grade PPE, COVID-19 tests) accessible to facilities,
4. anticipated staffing changes and availability of healthcare staff within facilities, and
5. what the most immediate priorities are in planning for a COVID-19 outbreak in correctional facilities.

You can read the individual responses, but let’s jump to what the answers should have been.

We hoped to hear from each state that steps were being taken to prepare facilities to navigate the inevitable: a positive COVID-19 test among the hundreds of people living in close proximity to one another in prison. We expected each facility to have designated cells, units, or wings that could be easily isolated from the rest of the facility to allow either isolation of people who are particularly vulnerable to complications from COVID-19, or quarantine of people who test positive for COVID-19.

Given the recommendation from expert Dr. Homer Venters that facilities establish a plan for hospitalizations that recognizes that staff will be in short supply, and thus does not require the usual 2:1 ratio of correctional officers to patients, we expected correctional departments to have established new pathways and protocols for hospitalization.

We also expected that because prisons have finite resources for respiratory support (such as oxygen), facilities would have realistic plans to transfer people to hospitals while protecting staff from exposure. We hoped prisons could tell us how they would secure sufficient equipment and supplies, and how they will respond when supplies run out or when hospitals refuse to admit. (For example, there is already a shortage of COVID-19 tests, restrictions on who can be tested, and personal protective equipment (PPE) for medical professionals is already in short supply.) This planning, unfortunately, was largely absent.

Given the rate of infection and the length of hospitalization for severe cases of COVID-19, it is reasonable to assume facilities will encounter staffing shortages and that plans need to be in place for making sure the essential services behind bars continue in the face of staff calling out sick (i.e. food, medical care, telephone access, etc.). Given that most correctional staff are already stretched thin, departments should have begun planning for a staffing shortage weeks ago by reducing the number of people incarcerated and reducing the burden on staff. Most departments did not, but we still expected that they were preparing for the medical challenge created by that inaction.

The responses we received were largely disappointing. Rather than developing plans to mitigate the harm of an inevitable outbreak, most states are still focusing on restricting the movements of incarcerated people within facilities — in other words, attempting to “contain” the virus, which is all but impossible with COVID-19.

Even worse, some state departments of corrections informed us that no changes to their existing medical capacity were needed, suggesting that their established medical facilities and staff were sufficient to combat a disease that is overwhelming entire city infrastructures across the nation. Other states notified us that because no positive cases had occurred in their prisons, many changes have not yet been implemented. A number of states referred us back to their websites, which although providing up-to-date information on some aspects of their COVID-19 response, did not answer the specific questions about policy and planning changes in the past few weeks.

The good news is that many states still have time to do a far better job. At this point, on April 10, state Departments of Corrections need to be focused on mitigating the disastrous consequences of the COVID-19 pandemic entering prisons, rather than sticking to the belief that their high prison walls can effectively keep a global virus at bay.