New report, Women’s Mass Incarceration: The Whole Pie 2024, shows the size and scope of women’s incarceration in America

Report shows the unique and troubling role that jails play in women’s incarceration.

March 5, 2024

190,600 women and girls are locked up in the United States on any given day. That’s the top-line number from the new report Women’s Mass Incarceration: The Whole Pie 2024, released today by the Prison Policy Initiative. However, that number tells only part of the story of women’s incarceration in America. The report dives deep into the data to provide the most recent and comprehensive data on how many women are incarcerated in the U.S., in what kinds of facilities, and why; as well as detailed data on incarcerated women’s demographic makeup and health.

Women in the U.S. experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. The new edition of Women’s Mass Incarceration: The Whole Pie, which the Prison Policy Initiative has published since 2017, fills this gap with richly-annotated data visualizations about women behind bars.

“Like in so many other aspects of life in America, the unique experiences of women in the criminal legal system are obscured by those of men, treated as an afterthought,” said Aleks Kajstura, co-author of the report. “While incarceration impacts all people, tearing them away from their families, damaging their health, and putting an additional financial strain on those already living on a razor’s edge, the criminal legal system is particularly harsh for women in unique and damaging ways.”

“The data in this report should serve as a wake-up call for policymakers. Mass incarceration is failing everyone in the country — and when the country locks up women, the ripple effects are especially devastating,” said Wendy Sawyer, research director for the Prison Policy Initiative and co-author of the report. “Instead of continuing with this failed policy, they should work to address the issues that get women locked up in the first place — poverty, unmet physical and mental health needs, and the over-policing of Black women and girls.”

The report particularly examines the important role of jails in women’s incarceration. 93,000 women are held in jails, and the majority— 51,000 — have not been convicted of a crime. It explains that unaffordable cash bail and a criminal legal system that funnels them into jails after conviction are likely responsible for so many women being held in these facilities. The report goes on to show that jails can be especially deadly for women, with high rates of death from suicide and drug or alcohol intoxication. Additionally, the report highlights that, because they’re generally designed for shorter stays, jails are poorly positioned to provide healthcare for women, and that these facilities make it difficult for women to stay in touch with their families, by charging high rates for phone calls and restricting mail.

Women’s Mass Incarceration: The Whole Pie 2024 also includes a section offering insights about the backgrounds and experiences of women in state prisons. Key takeaways include:

• In the U.S., women are held in 446 state prisons, 27 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 80 Indian country jails, and 80 immigration detention facilities, as well as in military prisons, civil commitment centers, and prisons in the U.S. territories.
• 58% of women in state prisons are parents to minor children, and of those, most are single mothers who were living with their children prior to imprisonment — making it likely that incarceration uprooted their children and led to termination of parental rights, permanently breaking up their families.
• Nearly 7,000 young women and girls are caught up in the various systems of confinement. Almost half are held in facilities for the juvenile justice system, and almost as many are unaccompanied migrant children in Office of Refugee Resettlement facilities.
• Girls of color and those who identify as LBTQ+ are disproportionately confined by the juvenile justice system. Black girls account for 32% of all girls in juvenile facilities despite making up just 14% of girls under 18 nationwide. Similarly, 40% of girls in the juvenile justice system are lesbian, bisexual, or questioning and gender non-conforming.
• Probation and parole play a significant role in the women’s criminal legal system, with an additional 808,700 women under these forms of control. They are forced to live under a complex set of rules and restrictions that set them up to fail and threaten them with reincarceration.

The new report is available here: https://www.prisonpolicy.org/reports/pie2024women.html

Since you asked: How many women and men are released from each state’s prisons and jails every year?

We’ve drilled down into 2019 data to show prison and jail releases by sex in each state and made our best estimates of how many women and men were released from prisons and jails nationwide in 2022.

by Leah Wang, February 28, 2024

We often think about incarceration as something only experienced behind bars, but millions of people leave correctional facilities every year in serious need of services and reentry resources. Journalists, advocates, and other users of our website reach out frequently to ask if we know the total number of people released from prisons and jails in their state each year. Many are trying to fight for more resources for people returning home and want to know how these numbers break down by sex. While these are numbers you might expect would be easy to find, they aren’t published regularly in annual reports on prison and jail populations by the Bureau of Justice Statistics (BJS).

In fact, the annual data collected by the federal government about local jails (the Annual Survey of Jails) cannot generally be broken down by state at all; only the more infrequently-collected Census of Jails data can be used to make state-level findings. As for prisons, 2019 is also the latest year for which state-level release data by sex ¹ have been published by the Bureau of Justice Statistics. (The total number of people released by each prison system is published annually by the BJS, most recently reporting 2022 data.)

To make this information more accessible, we’ve drilled down into the most recent data available to show how many men and women are released from prisons and jails each year.²

Why we need data disaggregated by sex or gender identity

For years, the mass incarceration of women has been overlooked, even though women’s incarceration has grown at twice the pace of men’s incarceration in recent decades. Women are disproportionately locked up in local jails, where they’re less likely to be able to afford money bail if they’re not convicted, or are more likely to be serving a shorter sentence for a property or drug offense. While there, women in jail experience bleak conditions like expensive phone calls, a lack of programming and education opportunities, and poor quality healthcare.

Being locked up in a state prison also presents a unique set of challenges for women, including the higher chance of being hundreds of miles away from loved ones. No matter how or where a woman is incarcerated, women are generally worse off than men leading up to their incarceration. And entire families are harmed when a woman is put in prison or jail: More than half of incarcerated women are mothers, and women are more likely than men to be primary caregivers to children. Ultimately, keeping women out of correctional facilities and supporting them post-release should be a top priority for lawmakers.

Unfortunately, data regarding women in the criminal legal system are neither updated regularly nor always compatible across years, obscuring our collective view of what’s happening to women in the criminal legal system and how specific reforms impact them. When it comes to gender identity in prisons and jails, the data are even worse, as government surveys typically include trans men under “females” and trans women under “males,” and do not ask further about self-reported gender identity.³ Without better data collection and reporting, the unique needs of women, as well as transgender and nonbinary people, will go on being disregarded in policy and practice.

Any work that chips away at mass incarceration for people of all genders should include fighting back against carveouts of “non-violent” offenses, addressing family separation, drastically improving reproductive and gender-affirming healthcare, and ramping up gender-responsive reentry services for these individuals.

What’s changed since these data were collected in 2019?

The COVID-19 pandemic caused a dramatic drop in correctional populations in 2020 and 2021 – although this was due to fewer admissions, not more releases – so there have been fewer people eligible for release in the last couple of years. Even though prison and jail populations have unfortunately largely rebounded since then, there were still 29% fewer releases from prisons and jails in 2022 compared to 2019.⁴ Because of this dramatic difference from 2019, we also calculated rough estimates of releases by sex in 2022 on the national level for those interested in what more recent release numbers look like:

Estimated releases from prisons and jails, by sex, in 2022

To estimate what 2022 releases from prisons might look like by sex, we started with the number of state and federal prison releases, excluding deaths, reported in 2022 by the Bureau of Justice Statistics: 443,534.⁵ We then used the 2019 data to find the percentage of all prison releases that were from female prisons, which was about 12%; this percentage was based on all releases including deaths, because deaths in prison aren’t reported by sex. Applying this percentage to total prison releases in 2022, we estimate that about 55,179 people were released from female state and federal prisons in 2022, of which about 3,951 were from federal prisons.⁶

To estimate the number of releases from local jails in 2022 by sex, we first had to estimate the number of total releases, which the Bureau of Justice Statistics did not publish. We started with the number of jail admissions reported for that year: 7.3 million, according to the Bureau of Justice Statistics.⁷ Most people are jailed for a relatively short time, typically released from jail the same year they are admitted, so we would expect the number of admissions to be very close to the number of releases.⁸ In 2019, there were just 1.15% fewer people released from jails nationwide than were admitted that year. We applied this percentage to the 7.3 million jail admissions in 2022, arriving at an estimated 7,215,958 releases from local jails in 2022. To estimate how many of those releases were women, we calculated the percentage of all jail releases in 2019 that were women (23%) and applied that percentage to our estimate for total jail releases in 2022. Because there is no national source of data for jail deaths in 2022, we could not exclude deaths from these estimates of jail releases.

Opportunities for further data analysis

We also get lots of questions about the number of people released to local communities (counties, cities, et cetera). While we don’t have a solution that works for every state, we do suggest two different ways to generate estimates in our previous briefing about releases.

Data collection efforts regarding incarcerated women are slowly improving in some areas: For example, the Bureau of Justice Statistics is considering adding questions about pregnancy and maternal health in its national surveys of correctional facilities. In the meantime, we hope this dataset is useful in your advocacy work. The 2019 release data can be accessed from our Data Toolbox; for more information about mass incarceration in your state, see our State Profiles pages.

Cautionary jails: Deconstructing the three “C”s of jail construction arguments

Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse.

by Emmett Sanders, February 20, 2024

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one. The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.” $30 million will come from COVID-19 pandemic relief funds; ¹ as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country. Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability. New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath. Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.

The three “C’s” of jail construction arguments

Jail proponents usually rely on one or more of three central arguments to make their case:

• The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
• The “Contemporary” argument: new construction is needed to update an outdated jail;
• The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.²

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages. Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations. This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.

If you build it… (the “capacity” argument)

Proponents of jail construction often rely upon jail “needs assessments”³ to bolster their claim that building a bigger jail is the only way to meet capacity needs. These needs assessments come with many biases and flaws — often because they are written by construction firms who hope to eventually make even more money building the new jail. The simple truth is that no jail will ever be big enough to satisfy an over-reliance on incarcerate-first policies. Instead of solving capacity needs, bigger jails enable counties to continue bad practices — leading them to argue that they need newer, even bigger jails in the future, and spending millions of dollars in the process.

Greene County, Missouri, for instance, built a new 552-bed jail in 2001. This was supposed to resolve their capacity needs for at least a decade; however, within just 2 years, the jail had surpassed capacity again. Despite increasing bed space by remodeling and by adding a trailer jail annex, the continuation of bad policies, such as criminalizing poverty by rounding up and arresting unhoused people, led to what a 2017 needs assessment called “unsustainable” jail growth, which forced another $150 million 1,252-bed expansion in 2020.

Similarly, Lubbock County, Texas, spent $94.5 million in taxpayer bonds building a new 1,512-bed jail, which opened in 2010. Though intended to meet their capacity needs well into the future, jail population growth has persisted, leading county officials to spend a million dollars of the county’s budget incarcerating people in other counties. But there are other obvious solutions to Lubbock’s over-incarceration problem. Lubbock County mostly uses its jail to house people who haven’t been convicted of a crime; in January of 2024, 76% of the jail’s population were people being held pretrial, and fully one tenth of the people in the jail were being held pretrial for a misdemeanor. Pretrial detention practices play a huge part in the county’s perpetual capacity problems. County officials have nevertheless repeatedly looked to build their way out of these issues instead of implementing sustainable policy changes like ending pretrial detention for misdemeanors and reexamining alternatives to cash bond. As a result, Lubbock’s sheriff recently proposed a 996-bed expansion projected to cost taxpayers another $464 million, bringing the total to more than half a billion dollars, with no substantial policy change in sight.

While capacity arguments are often used to justify jail expansion, the truth is counties cannot build their way out of capacity issues without addressing the policies that created them in the first place. Despite claims that jail construction is driven by need, in many instances, the reverse is actually true. As Greene County’s assessment noted, “The dramatic increase in bookings is probably due [in part to] the increased availability of beds with the opening of the new jail.” Simply put, if you build it, they will fill it.

Box office bombs (the “contemporary” argument)

Often, the promise of a shiny new jail with updated facilities leads to over-budget projects that sap taxpayer money far into the future. These projects, focused on building jails with “all the bells and whistles,” often collide with soaring construction costs. This can sometimes lead to facilities that are too costly to staff and maintain or even too costly to complete. As a result, projects can wind up half-finished or sitting empty for years at taxpayer expense.

Despite voters rejecting an $88 million bond initiative to fund a new jail in 2004, by 2008, Thurston County, Washington, accepted a bid for “the cutting-edge $45 million Accountability and Restitution Center (ARC) jail complex,” a building some have referred to as the “Taj Mahal design of Jail, Law and Justice Centers.” Finished in 2010, the jail sat empty for 6 years, costing the taxpayers roughly $430,000 annually, largely because the county did not budget for the additional staff needed to run it. Just three years later, the county would approve a $19-25 million jail expansion featuring a 40-bed “‘flex unit’ with cells that could be used in different ways as needs change” plus a shell for future expansion.

In Wayne County, Michigan, construction began on a “state-of-the-art” $300 million, 2,192-bed jail in 2011. The design included innovations that some claimed would bolster security, largely by further restricting movement. By 2013, the project was already $91 million over budget due to ballooning construction costs, forcing it to be abandoned and leading to the indictment of three Wayne County Officials for lying about the project’s cost. The jail sat incomplete and empty for years, costing the taxpayers around $1 million per month just to maintain.

Though not a jail, Thomson Prison in Illinois shares a similar story. Built in 2001 for $145 million, this new high-tech maximum-security prison sat empty at the taxpayers’ expense for 11 years due to state budgetary restraints impacting the ability to staff it before finally being sold to the federal government⁴ in 2012.

As these examples illustrate, officials often claim that a new “modern” jail will solve a jurisdiction’s problems. While the drumbeat here is safety or security, these projects almost invariably also include millions for expanding bed space to incarcerate more people. Moreover, while huge amounts of money are poured into building bigger, better, and newer buildings, the massive costs associated with staffing and operating these monstrosities, and the fact that existing prisons and jails around the country are dangerously understaffed as it is, can result in costly projects that can’t be staffed even if they are completed. These monuments to incarceration can sit empty for years, draining the public coffer.

Promises, promises (the “compassionate” argument)

Increasingly, counties cite the need to be compliant with ADA requirements or the idea that jails should be providers of mental health services or substance use treatment as reasons to expand. This “compassionate” argument repackages incarceration as care and can mean taking money away from health services in the community. This is particularly problematic when jails fail to deliver on these promises, as they regularly do.

McLean County, Illinois’ 2015 jail needs assessment called for more space for housing people with mental health needs. In response, the county spent $43.5 million to build a new jail with a “Community Crisis Stabilization Facility” in 2017. A few short years later, however, people with mental health concerns are once again being held in the booking area (a practice the new jail was supposed to end) and are being held at jails outside of the county, unable to “benefit” from McLean’s new $43.5 million carceral alternative to community-based crisis intervention.

Broome County, New York, similarly promised to provide better medical care as part of its argument to secure $6.8 million to expand its jail in 2015. ⁵ But once the new jail was built, there was little effort to deliver on this promise: Broome County maintained the same dubious medical provider, Correctional Medical Care (CMC), that had been sued multiple times for medical negligence ⁶ from 2010 all the way until 2022. Many of these claims involved jail deaths. CMC’s practices were so bad that the New York State Commission on Corrections’ Medical Review Board chastised the company for “egregious lapses in medical care” in their 2018 “Problematic Jails” report. More incarcerated people died in the five years after ground broke on jail expansion than in the five years before, during CMC’s contract tenure with Broome County. ⁷

People interested in improving the lives of incarcerated people are often swayed by “compassionate” arguments. But they should never lose sight of the fact that incarceration itself is inherently harmful to physical and mental health, leaving many with a PTSD-like condition called Post-Incarceration Syndrome, which can even trigger drug use. At best, jail as a place of treatment is ineffectual. At worst, these bad policies drain funding from community-based support systems that can address challenges before a crisis results in incarceration. Jail is a place of trauma, not healing.

Change — The other “C”

While these three C’s are often used to argue for jail construction, advocates can and should confront their local officials with real solutions for reducing jail populations and providing mental health and substance use care.

• Reduce pretrial detention: Nationwide, 83% of people in jails have not been convicted of a crime. One of the most effective ways to bring down jail populations is to reform the way court systems treat people accused of crimes. Policies ranging from citation and release to ending cash-based pretrial detention can massively reduce jail capacity needs without raising taxes, incarcerating more people, or jeopardizing public safety.
• Focus on community-based care: Jail was never intended to be a provider of social services. As the Justice LA Coalition successfully argued in opposition to a $2 billion mental health-focused jail in 2019, true compassion comes not in the trauma of a cell but in funding for community-based care and support for those with addiction issues or mental health needs.
• Reduce total jail capacity: If jail construction absolutely cannot be avoided (as in the case of places under court orders to update or build a new facility), it should be contained so that it does not expand the capacity of the current jail to incarcerate or invest in new carceral technologies. If there’s no way to avoid building a new jail, advocates can at least work on making sure the new one doesn’t expand the number of people behind bars.

Conclusion

Though common arguments in favor of jail expansion are compelling at first glance, investing in jail construction is not a solution to social problems but rather doubling down on policies that caused these problems to begin with that can burden a community for decades to come. Ultimately, many of these arguments can be answered by asking pointed questions, revising policies, and being responsive to the community’s actual needs.

Oregon shouldn’t go backwards on drug decriminalization

Oregon is in danger of repealing one of the most important criminal legal system reforms of recent years: here’s why the state should keep Measure 110 intact.

by Sarah Staudt, February 15, 2024

During the 2024 legislative session, the Oregon legislature passed legislation that largely repealed Measure 110.

In 2020, Oregon adopted Measure 110, a transformational change to the way drug possession and addiction were treated by the criminal legal system. Instead of incarceration and criminal charges, Measure 110 ensured that possession of small amounts of drugs was responded to with a ticket and referral to services. Since its passage, more than $302 million has been invested in addiction services and social supports, and more people are going to treatment.

Despite the successes of Measure 110, however, Oregon legislators are threatening to recriminalize drug use in Oregon. The bill, HB 4002-1, would make possession of small amounts of controlled substances a criminal offense once again, reversing a revolutionary reform and returning to the failed policies of the War on Drugs.

Reversing Measure 110 would be harmful to thousands of Oregonians, and would be a failure of leadership. Legislators claim they are responding to an increase in homelessness and public drug use — but recriminalization will only make those problems worse. Instead of resurrecting policies that didn’t work the first time, the Oregon Legislature should invest in proven strategies to prevent and treat addiction, reduce homelessness, and improve public safety, and should invest in treatment and housing, not incarceration.

Measure 110 is working

There’s no evidence Measure 110 is responsible for crime, overdoses, homelessness, or increased drug use. Although COVID-19 made assessing the impact of Measure 110 more difficult, early indicators suggest that the law is achieving its goals: reducing arrests while increasing access to care. Jails and incarceration often strand people without treatment, but the referrals to community-based care created by Measure 110 offer a lasting pathway to health and better quality of life. Here are just some of the successes of Measure 110:

• The Oregon Health Authority reported a 298% increase in people seeking screening for substance use disorders.
• More than 370,000 naloxone doses have been distributed since 2022, and community organizations report more than 7,500 opioid overdose reversals since 2020.
• Although overdose rates have increased around the country as more fentanyl has entered the drug supply, Oregon’s increase in overdoses has been similar to other states’ and actually less than neighboring Washington’s. A peer-reviewed study comparing overdose rates in Oregon with the rest of the country after the law went into effect found no link between Measure 110 and increased overdose rates.
• There is no evidence that drug use rates in Oregon have increased. A cross-sectional survey of people who use drugs across eight counties in Oregon found that most had been using drugs for years; only 1.5% reported having started after Measure 110 went into effect.
• There has been no increase in 911 calls in Oregon cities after Measure 110.
• Measure 110 saves Oregonians millions. Oregon is expected to save $37 million between 2023-2025 if Measure 110 continues. This is because it costs up to $35,217 to arrest, adjudicate, incarcerate, and supervise a person taken into custody for a drug misdemeanor — and upwards of $60,000 for a felony. In contrast, treatment costs an average of $9,000 per person. The money saved by Measure 110 goes directly to state funding for addiction and recovery services.
• There is no evidence that Measure 110 was associated with a rise in crime. In fact, crime in Oregon was 14% lower in 2023 than it was in 2020.

All of this has been achieved while Measure 110 also served one of its primary intentions — reducing total arrests. Arrests for possession of a controlled substance dropped 67% after Measure 110 went into effect, meaning that thousands of people have avoided the lifelong barriers caused by arrests and convictions. And although there has been an increase in homelessness in the past few years in Oregon, implementation of Measure 110 also lines up with the lifting of eviction protections in place during the pandemic — a much more likely culprit for increased numbers of people without shelter.

Recriminalization will make Oregon’s problems worse

Recriminalization of drug possession will put Oregon on a path backwards and will damage the lives and livelihoods of its residents — particularly of Black Oregonians.

First, recriminalization will overburden already stretched systems, increasing harm and costing lives. Oregon’s criminal legal system, particularly its public defense system, is massively underfunded and understaffed. Recriminalization will overwhelm the courts with thousands of new cases that they do not have the capacity to adjudicate. This is likely to strand more people in Oregon’s jails — which are already seeing record deaths among people in custody. Jails are particularly dangerous places for the people with substance use disorders who will be most affected by recriminalization; increasing jail populations is likely to exacerbate these existing health problems, costing more lives.

The effects of recriminalization will fall hardest on Black Oregonians, increasing racial disparities. Unfortunately, even under Measure 110, it is clear that Black Oregonians with substance use disorders are much more heavily policed than their white counterparts. Black people have been disproportionately issued citations under Measure 110 — 4.6% of citations went to Black people, who are only 2.3% of Oregon’s population. Portland’s police department has the fifth highest arrest rate disparities in the country, arresting Black people at a rate 4.3 times that of white people. And while proponents of recriminalization claim that diversion programs will still be available, the reality is that Black people are more often excluded from diversion programs than white people are, making them more likely to remain trapped in the criminal legal system.

Forced treatment isn’t the solution

The recriminalization bill focuses on forced substance use treatment as a “solution” to substance use disorders. But forced treatment is a false promise. There are many reasons why people with substance use disorders don’t seek treatment, including problems with lack of access, cost, excessive requirements for getting into and staying in treatment, and having more pressing concerns like needing food, employment, housing, or medical treatment. Addressing those underlying problems — and increasing the availability of voluntary treatment overall — is the best way to get more people into the treatment they need.

Forced treatment is also not effective. A systematic review of studies found no evidence that compelling people to attend substance use treatment leads to improved outcomes. Instead, it can cause harm: people who are forced into treatment can end up at higher risk of overdose. Because forced treatment imposes sudden, enforced abstinence, it can lower people’s drug tolerance — leading to a higher risk of overdose if they relapse. A recent analysis of mandatory abstinence treatment programs found that people who were mandated to attend these programs were 3.7 times more likely to have experienced an overdose in the past 6-12 months.

Oregon should invest in proven solutions

There’s no denying that Oregon, like the rest of the country, is experiencing serious problems with homelessness, substance use disorders, and overdose. To address these problems, Oregon should invest in effective, compassionate solutions, instead of defaulting to criminalization.

The first thing Oregon should do is invest in more housing, focusing on proven housing-first strategies, and strategies that reduce evictions. Investing in housing does not just solve homelessness — it also addresses substance use itself. Evictions are associated with higher rates of death from drug use, and higher rates of public drug use. Making sure people can have and keep housing improves their quality of life, and the quality of life of all Oregonians.

Oregon should also invest in more voluntary treatment beds. Detox centers in Portland are turning away half the people who come to them because of lack of capacity. Overall, Oregon has only a 50% treatment capacity to meet the need. Mandating more treatment won’t fix this problem — indeed, it will make the treatment shortage worse. Instead, Oregon needs to heavily invest in more voluntary drug treatment and crisis centers to meet the needs of its residents.

Conclusion

Oregon is poised to undo one of the most important criminal legal system improvements of the 21st century. Instead of reverting to the mistakes of the past, Oregon lawmakers should act with courage to pursue solutions that work, and reject the pressure to try to arrest their way out of substance use and homelessness. Measure 110 is working to make Oregonians safer and healthier; Oregon’s leaders should stand up for their state’s innovative and successful reforms, and avoid the tired rhetoric and policies of mass criminalization.

Proposed Biden junk fees rule provides lots of transparency but little protection for incarcerated people

We called on the Federal Trade Commission to strengthen its proposed rule to explicitly prohibit some of the most abusive junk fees.

by Mike Wessler, February 12, 2024

In 2023, with considerable fanfare, President Biden announced a new initiative to crack down on “junk fees” — those extra, often hidden charges that seem to do nothing besides jack up the price of a product or service while providing no extra benefit. At the time, we, along with 28 other groups, called on the President to put the junk fees harming incarcerated people and their families at the top of the list of things to be addressed.

As part of this initiative, the Federal Trade Commission recently released a new proposed rule to crack down on junk fees and asked for public comment. Last week, in collaboration with the National Consumer Law Center and our former general counsel, Stephen Raher, we submitted a 27-page comment explaining that these proposed rules will provide more transparency about junk fees but little actual relief for people entangled in the criminal legal system and their families.

Junk fees in the criminal legal system

Junk fees are pervasive in all aspects of the criminal legal system, from arrest through after one’s release from detention. These harmful fees are particularly insidious because they’re generally unavoidable, and people in the system often have lower incomes and are less able to absorb these costs.

We’ve written at length about these fees in the past, but some of the most common and troubling ones are related to:

• Money transfers: Increasingly, prisons and jails are shifting costs for necessities, like food and hygiene products, onto the people they incarcerate. As a result, having access to money is increasingly important for people behind bars. However, because of the paltry wages incarcerated people earn, their loved ones often have to send them funds. When they do so, the private company the facility contracts with to handle these money transfers usually keeps a cut of the money for themselves. Sometimes that cut is more than 20%.
• Release cards: When a person is released, the prison or jail that confined them often puts any money from their trust account — wages, support from family, or funds they had in their possession when arrested — on a prepaid debit card. These cards are riddled with fees including for using the card, not using the card, or seeking customer service.
• Communication services: E-messaging and tablets have become nearly ubiquitous in prisons and jails nationwide. They’ve opened new opportunities for incarcerated people to stay in touch with loved ones and maintain connections to the outside world through books, music, and other services. They’ve also created a new way for the companies behind these services to sap funds from incarcerated people through opaque “infrastructure” or “maintenance” fees and bulk pricing schemes.

The proposed rule is good for transparency but not enough for incarcerated people

The rule proposed by the Federal Trade Commission primarily focuses on making these junk fees more transparent — rather than prohibiting them altogether. For those on the outside, they’ll no longer be surprised by hidden fees when they’re in the final stages of making a purchase. Companies will have to put these unavoidable extra costs front and center. This will make the true cost of a product or service easier to know up front, empowering consumers to make more informed decisions.

Unfortunately, transparency about these fees isn’t enough for incarcerated people and their families. While it is true they’ll be less likely to be surprised by hidden costs, under this rule, they still usually won’t have any way to avoid unfair fees. Unlike on the outside, people in prison and jail can’t use a different business if they think a company is loading a service with excessive fees. For money transfers, release cards, e-messages, and more, they are usually stuck with one company that the prison or jail contracts with to provide the service. Because incarcerated people are literally captive consumers who can’t take their business elsewhere, this type of transparency isn’t likely to reduce costs and abusive practices in any real way.

Giving the rule more teeth

The rule, as written, does not go far enough to protect incarcerated people and their loved ones from junk fees. Transparency isn’t enough; stronger enforcement and explicit prohibitions on certain practices are needed, too.

The good news is that the rule isn’t yet final. The Federal Trade Commission is currently considering comments like ours as they prepare their final rule, so it still has a chance to strengthen it to protect people in prisons and jails.

Here’s how we told the Commission they could strengthen the rule:

• Explicitly prohibit fees that provide little or no value to consumers: If a company charges a fee, there should be some benefit to incarcerated people. If not, it is simply a mechanism to sap money from them unfairly. While the rule currently relies on transparency to pressure companies to move away from these useless fees, more is needed.
• Ban junk fees that exceed the cost of providing a good or service: Many companies charge fees that significantly exceed their costs to provide the service. For example, some release card companies charge a $9.95 fee to close an account. This is far more than it costs the company to close the account, indicating it is just a way to get a little bit more money out of incarcerated people while they still can.

Watching the Watchers: Vera releases national census on electronic monitoring

A new report from the Vera Institute of Justice finds that the number of people subjected to electronic monitoring in the U.S. increased fivefold between 2005 and 2021 and nearly tenfold by 2022.

by Emmett Sanders, February 8, 2024

In their new report, People on Electronic Monitoring, the Vera Institute of Justice completes a massive undertaking. Collecting data from all 50 states, more than 800 counties, and the federal court and immigration systems, this report offers the most comprehensive picture of the U.S.’s electronic monitoring population to date. Ultimately, their findings provide concrete evidence to support what activists and impacted people have long argued: Electronic Monitoring (EM) is not an effective way to reduce reliance on incarceration but is “often a crucial component of highly punitive, deeply entrenched criminal legal systems.” In other words, Electronic Monitoring is a form of incarceration, not an alternative to incarceration.

Vera’s data collection reveals that EM usage has increased significantly in all sectors since 2005, culminating in more than half a million adults under surveillance nationwide by either the criminal legal system or the immigration system.

EM usage in the criminal legal system is up significantly, with more than 150,000 people on EM at any given time in state and local monitoring systems. At the state and local level, EM is most heavily used in the Midwest, at a rate of 65 per 100,000 residents, more than a third higher than in the South, the next highest region of use, where it is used at a rate of 41 per 100,000 people. However, every region across the country has seen an increase in EM usage.

Immigration accounts for roughly two-thirds of the total EM population, with around 360,000 people monitored under ICE’s Intensive Supervision Appearance Program (ISAP). Much of this astounding increase occurred between 2021, when ICE monitored around 103,000 people, and 2022. This expansion is particularly concerning as ISAP’s EM conditions can be dehumanizing and physically and mentally taxing for people seeking asylum.

Overall, this increased usage has translated to big business for the 11 EM companies that control roughly 99% of the EM industry. Vera notes this translated to more than $1.2B spent on EM in 2023 alone. In many jurisdictions, EM programs are “primarily sustained by user fees,” which can range upward of $900 per month and shift the burden of funding to those least positioned to pay it – low-income individuals and families. As we have noted, however, this massive investment in digital incarceration has not replaced our reliance on more traditional “brick and mortar” incarceration in jails but rather serves as an expansion of overall state surveillance. Vera’s researchers note that an increase in EM usage can often accompany an increase in jail population, as in the case of Detroit, Michigan, which saw a 41 percent increase in EM use coincide with a 60% increase in jail population. Indeed, the report finds that “the majority of local jurisdictions with a high EM rate also had a high jail incarceration rate.”

While some EM expansion can be traced to COVID-19 pandemic response, Vera also notes that evolving technology is a large driver of increasing EM usage. The report points out that the use of GPS devices ¹ increased thirtyfold between 2005 and 2021. Advancing technology has also increased the use of programs like cell phone apps to track and monitor people, which has impacted EM populations while raising new areas of concern, such as the potential for highly personal data to be shared and compromised.

Vera finds that other problems with EM usage include limited public accountability due to the “patchwork nature” of EM programs, which operate at multiple often tangled levels; this makes it difficult to track where public jurisdiction ends and private control begins, limiting programmatic accountability to the public and elected officials. Minimal oversight, heavy privatization, and lack of regulation also enable potential corruption, and some claim opens the door for abuses and extortion.

Ultimately, Vera finds that, though EM is touted as an alternative to incarceration, this massively expanding technology “acts as another form of incarceration, relies on technology rife with defects, shifts costs onto people with low incomes, and creates harm for directly impacted people and their loved ones.” We hope advocates can use Vera’s groundbreaking research to oppose the expansion of EM in their own communities.

Prison disciplinary fines only further impoverish incarcerated people and families

We analyzed prison policies for all 50 states and the federal prison system, and found that 16 prison systems actually impose fines — in addition to other punishments — when someone violates a prison rule. We explain why disciplinary fines and fees are bad policy, putting excessive hardship on incarcerated people and their loved ones.

by Leah Wang, February 7, 2024

In yet another example of how the criminal legal system extracts wealth from the poorest families, at least one-third of prison systems nationwide charge fines as a punishment for a rule violation. Prison administrators claim that imposing disciplinary fines, along with other punishments, helps to maintain order and reduce violence in correctional facilities. They also argue that the fines simulate outside-of-prison processes for dealing with misconduct, such as parking tickets.

Though rule violations¹ and their corresponding sanctions are a common feature of incarceration, disciplinary fines and fees aren’t the way to create safe environments where people can prepare for their release. On the contrary, when prisons impose these charges and subsequently help themselves to the funds in people’s prison accounts, incarcerated people are often left with little to no money for purchasing essential items and services that the prison doesn’t provide.² As a result, their mental and physical health suffers, creating a more volatile environment inside. Loved ones also pay the price of these fines — often literally, as a primary source of financial support.

Like medical “co-pays” and exceedingly low wages in prison, disciplinary fines and fees are little more than a means to exploit incarcerated people. Whether they’re tiered fines or flat “administrative” fees, they are an undue burden; prison is already one big financial sanction for those who are already on the lowest rungs of the economic ladder. By focusing on punitive measures that deprive people further, prisons miss the mark on what actually makes prisons safer — providing opportunity rather than taking it away. We hope advocates and policymakers will understand how disciplinary fees, which exist alongside other excessive punishments, undermine the rehabilitative goals of corrections, the safety of people inside, and the odds of success during reentry.

Disciplinary fines and fees are used in about one-third of all prison systems

To determine just how common disciplinary fines and fees are, we combed through the publicly available policies on prison disciplinary procedures in each state and the federal prison system. We also looked at policies related to prison-controlled bank accounts (often called “inmate trust accounts”) and related fees, as well as practices relating to collecting debts. We found that at least 16 prison systems charge incarcerated people disciplinary fines or fees:

Prison disciplinary fines and fees

Every jurisdiction that charges disciplinary fines or fees does so a bit differently, but taken together, a few findings stand out:

• Disciplinary fines and fees are common. In 16 prison systems, we found policies referencing fines and/or fees related to confirmed disciplinary violations (where someone is found guilty or pleads guilty). In many cases, the severity level³ of the rule violation determines the amount of the fine, but in other cases there is a “flat” charge for any violation. In either case, charging fines means that some of the most innocuous behaviors — like making “loud or disturbing noises” in Kansas prisons — have a price tag.
• Most prison systems impose disciplinary fines between $5 and $25, but some charge hundreds or thousands of dollars. Incarcerated people in five jurisdictions (Alabama, Arizona, Maine, Oregon, Utah, and the federal prison system) can face triple-digit fines for a single disciplinary charge: For example, Arizona’s fines start at a shocking $500 for the first instance of what they consider the most serious violations⁴ and go as high as $2,000. Utah state prisons impose up to $600 for a more serious “A Code” offense, and up to $300 for a “B code” offense — which can be for things like “horseplay,” or any conduct deemed “disorderly.”
• Some prison systems insidiously present these charges as “administrative” fees. We found five prison systems that charge “administrative” or “processing” fees for disciplinary violations. We include them here because they’re just as punitive and unaffordable as fines. In Georgia, for example, each guilty finding for a disciplinary violation comes with a $4 fee, unless the violation is for having a cell phone or similar communication device, a harshly-punished violation in several states;⁵ that specific act will set someone back a $100 “administrative processing fee.” People incarcerated in North Carolina prisons, who are charged a $10 administrative fee per disciplinary infraction, collectively lost $313,000 in fees to the state’s general fund in Fiscal Year 2022 alone.⁶

For incarcerated people, even “small” fines and fees can be huge setbacks

Outside of prison, a $5 or $10 fine might seem pretty inconsequential, or even surprisingly low. (Parking tickets, for example, are generally much more costly.) But to a typical person behind bars, a loss like this represents a serious change in financial circumstances; the value of money is simply different in prison. Prisons charge people for necessities like food and hygiene products, communication with loved ones, health care, and in some cases, “room and board.”⁷ And prison wages hardly cover these expenses, averaging less than one dollar per hour in most jurisdictions:

• Someone in Kansas, for example, would have to work for over two months in the lowest-paying prison job to pay off a $20 disciplinary fine, the maximum charged there.⁸
• In Virginia, where any rule violation comes with a flat $15 fine, it could take 33 to 55 hours (or one to two weeks) of work to cover that cost. Of course, this math only applies to the roughly 50% of the prison population with jobs; those earning no wages have to rely on financial support from loved ones. ⁹

It’s also important to note that prison disciplinary and labor systems already disadvantage some more than others: Black and Indigenous people, women, and those with disabilities¹⁰ tend to face prison discipline disproportionately. And research shows racial, gender and disability disparities in how prisons assign jobs. Considering disciplinary fines in this context, it makes little economic or administrative sense to continue picking these pockets.

Almost all prison systems also order restitution, but some states’ policies are excessive and inappropriate

We also found that nearly all prison systems have a policy about facility-owed restitution, or the reimbursement of costs incurred for damaged property or medical expenses that result from a rule violation. We often think of restitution as court-ordered reimbursement to civilian crime victims — and many incarcerated people face this type of debt, too — but in a prison setting, restitution serves as little more than a running tab for the state.

Many prison restitution policies require that the amount being sought reflects the actual cost of an item or service, like the requirement to present an “itemized list of expenses and/or items damaged and costs to repair or replace” in Georgia state prisons. Such efforts to justify restitution amounts might sound reasonable to an outsider, but these “reimbursements” are to state agencies for largely budgeted costs.¹¹ For example, some prison systems pursue restitution for things like staff overtime, vehicle mileage, and workers’ compensation costs.^{12 13} And in a shameless move only the carceral system could devise, four states (Iowa, Georgia, Nevada, and New Mexico) seek reimbursement for medical charges related to self-harm and/or suicide. The financial cost of events that happen in prisons, which are inherently violent and mentally damaging places, shouldn’t be billed to incarcerated people and their families.

Prison systems often help themselves to the money they charge incarcerated people

In order to collect monetary sanctions, prisons will garnish (deduct) a portion — in some cases, up to 100% — of money credited to an incarcerated person’s account, whether it’s their hard-earned wages, money transfers from loved ones, or economic stimulus payments.¹⁴

A common deduction rate we found in our survey of state policies was 50%: Seven states (Iowa, Kentucky, Minnesota, Oklahoma, Pennsylvania, California, and Rhode Island) deduct up to half of incoming deposits and apply it to a debt. That means, for example, that someone with a disciplinary fine debt in Pennsylvania who earns 50 cents per hour (near the maximum prison wage there) would only receive 25 cents per hour. Some of these states further complicate matters by just taking everything: Rhode Island prisons will begin collection on a debt by taking as much of the amount owed as possible, leaving an account balance of $10, and then begin garnishing 50% of subsequent deposits to cover the rest. This means that money sent in by a loved one may never actually reach its intended recipient, but instead go straight into the prison’s pocket.

SHADOW BUDGETSIn some prisons, fine revenue pays for incarceration

A few other states’ policies (Oregon, Texas, and Wisconsin) suggest that 100% of funds are garnished (sometimes referred to as a “freeze” on an account) to cover a debt, without leaving any amount to cover basic necessities. And while nearly all prison systems claim to provide assistance to people who are extremely poor, or “indigent,” we found that prison indigence policies are too narrowly defined and limited to be very helpful.

Prison debt collection policies can also apply post-incarceration: Some prisons hold debts like disciplinary fines or facility-owed restitution on file in case of a future return to custody. And a few cases we found, corrections departments turn into collection agents — or at least threaten to do so: In Iowa prisons, for example, if someone who owes has signed an agreement, staff may pursue debts in small claims court or by seeking to garnish their state tax refunds. In Wisconsin, transfer or release “shall not terminate the inmate’s obligation to pay ordered restitution.” It’s hard to know whether prison systems actually enforce these collection policies, but the possibility looms large over people who work hard to be truly free of prison once they’re released.

Disciplinary fines and fees are just one part of an illegitimate ‘kangaroo court’ system in prisons

Disciplinary fines and fees are only a microcosm of a much larger problem with how prisons treat behaviors and “discipline.” The comprehensiveness of prison policies on rules, sanctions, collecting debts, and disciplinary hearings might suggest that prisons offer incarcerated people transparency and due process when they’re accused of a rule violation, but evidence suggests the opposite.

In fact, incarcerated people are not entitled to many aspects of due process when it comes to disciplinary hearings, like calling witnesses and obtaining counsel. Further, disciplinary hearings in prisons only require “some evidence” (in other words, any small amount of evidence) of misconduct, a much lower standard of proof than courts require in outside legal decision-making.¹⁵ This arbitrary and shadowy adjudication process only leads to hurt and mistrust; take this scenario, based on a case observed in a 2015 study of prison discipline:

A male prisoner tosses a plastic cup half-full of liquid toward a prison officer, nearly hitting her…. [T]he result, almost inevitably, will be cellular confinement (segregation) and a loss of privileges of some sort… During this time, the prisoner’s anger at the officer will potentially increase, exacerbated by the painful conditions of solitary lockdown. When the prisoner returns, he or she will make life difficult for the officer and the officer may in turn make life difficult for the prisoner. The cycle continues.

The legitimacy and credibility of prison disciplinary hearings — or lack thereof — matter because the stakes can be high. Being found guilty of a more serious violation, in particular, can change the course of someone’s incarceration drastically, through solitary confinement, the loss of earned good time, restricted access to necessary commissary items, and the potential impact on parole decisions. Prison systems should consider how this “kangaroo court” system of disciplinary hearings unfairly and harshly punishes people for behaviors that, as mounting evidence suggests, are often brought about by the prison environment itself. When harm does occur inside, restorative justice practices present an alternative way to problem-solve, and could lead to a more trusting, safer climate.

Disciplinary fines and fees in prisons are not “accountability”

While they may imitate the broader “justice” system in some ways, disciplinary fines and fees arguably do nothing to promote a sense of accountability or safety inside of prisons. The current approach to handling prison misconduct, in which fines play just a supporting role, is infantilizing and creates bleak conditions like solitary confinement and deprivation, which in turn lead to violence and mental health problems. To make prisons safer for everyone, administrators should overhaul disciplinary processes and provide more access to and opportunities for family contact, education, healthcare, treatment, and repairing harm.

By pulling back the curtain on murky aspects of everyday prison life like discipline, we hope prison administrators and policymakers will see that incarcerated people are starved for opportunities to achieve economic, professional, and personal growth, and that disciplinary sanctions undermine these goals.