Addicted to punishment: Jails and prisons punish drug use far more than they treat it

Despite the common refrain that jails and prisons are "de facto treatment facilities," most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare.

by Emily Widra, January 30, 2024

Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.¹ But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be – and can never function as – healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.

Substance use disorders in jails and prisons far outpace rates in the general public

The prevalence of substance use disorders at every level of the criminal legal system points to an unavoidable fact: despite the deep unpopularity of the War on Drugs, our society still responds to substance use (and related crimes) as individual failures requiring punishment, rather than as a public health problem — and it’s not working.

Nationally, approximately 8% of people met the criteria for substance use disorders in 2019,² but such disorders are far more common among people who are arrested (41%) and people incarcerated in federal (32%) or state prisons (49%). This means that approximately three million people with substance use disorders are locked up in any given year: at least two million people with substance use disorders are arrested annually and about half a million people in state and federal prisons meet the criteria for such disorders at the time of their admission.³

Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.

It’s difficult to see more granular trends in the data – such as the type of substances involved or the health outcomes related to these disorders – but we have some clues from nationally representative jail, prison, and mortality data.

Jails. In 2019, only 64% of all people admitted to jail each month were screened for opioid use disorder, but of those people, about 15% met the criteria for opioid use disorder. It’s likely that in jails where not everyone is screened on admission, people have similarly high rates of opioid use disorder, given the widespread extent of the opioid crisis.⁴ Because we cannot see the full picture through screenings alone, it’s useful to look at mortality data as well. More than 15% of jail deaths in 2019 were attributed to drug or alcohol intoxication (overdose), a significant increase from 4% in 2000 and 7% in 2009.

Prisons. Many people who use drugs and need care are arrested and jailed over and over until, finally, one event lands them in prison. We estimate that more than 578,000 people (47%) in state and federal prisons in 2022 had a substance use disorder in the year prior to their admission.⁵ And while the mortality rates for drug and alcohol intoxication are lower in prisons than in jails, almost 7% of all deaths in state prisons in 2019 were due to drug or alcohol intoxication, compared to less than 2% in 2009. Meanwhile, in 2019, only 4% of all adult deaths in the U.S. were attributed to drugs or alcohol.⁶ All of these measures point to much higher rates of substance use disorders in prisons and jails compared to the total population.

Treatment options for opioid use disorder are scarce in jails and prisons

Not every person who uses substances needs or wants treatment, but it is imperative that evidence-based, quality healthcare options be made available for those who do — regardless of their involvement in the criminal legal system. For people with opioid use disorder, this can include psychosocial treatment (including counseling), medication-assisted treatment (MAT), and self-help groups. In correctional settings, the availability of such options pales in comparison to the level of need.

Jails. Of the nearly 3,000 local jails across the country, less than two-thirds (63%) screen people for opioid use disorder when they are admitted. Only half (54%) provide medications for people experiencing withdrawal. An even smaller percentage of jails — 41% — provide behavioral or psychological treatment, and 29% provide education about overdose. In fact, the most effective treatment — medication-assisted treatment (MAT) — is the least commonly provided: just 24% of jails continue MAT for people already engaged in treatment while only 19% initiate MAT for those who are not.

Quality medical interventions for people that use opioids are especially urgent in jails because of the rapid and acute risk of withdrawal. Over half a million people⁹ entering jails across the country each year are experiencing or at risk of this life-threatening medical event.¹⁰ Importantly, the percentage of people admitted to jail who receive treatment for opioid withdrawal varies significantly between states, which likely reflects differences in both opioid use and availability of treatment.¹¹ For instance, over 15% of people admitted to jails in June 2019 in four states – New Hampshire, New Jersey, Pennsylvania, and Washington – were treated for opioid withdrawal, compared to less than 1% of admissions in seven other states.¹²

Prisons. Most state and federal prisons (81%) offered some “drug or alcohol dependency, counseling, or awareness programs” in 2019, but among people in state prisons with a substance use disorder, only 10% had received clinical treatment in the form of a residential treatment program, professional counseling, detoxification unit, or MAT.¹³ This suggests the “drug or alcohol programming” available in prison facilities is primarily self-help or peer-based.¹⁴

Unfortunately, MAT is the least common treatment in prisons: only 1% of people with substance use disorders in state and federal prisons reported receiving MAT at any point since their admission. In North Carolina, for example, over 9,000 people admitted to state prisons in Fiscal Year 2021-22 (78% of everyone screened during intake) met the criteria for needing intermediate or long-term substance use treatment, but the clinical director of the Alcoholism and Chemical Dependency Programs reports that they are only able to treat 3,000 cases each year. The state launched a MAT pilot program in 2021, and as of January 2024, only 213 enrollees have received medications prior to release from prison.

Even when correctional facilities do offer necessary treatments, their one-size-fits-all approaches can be limiting, overlooking the specific needs of different populations. For example, women in prison are often expected to participate in treatment programs originally designed for men. Advocates report that because “there are fewer incarcerated women than men… there are fewer programs available for women serving time. If support is available, it is not always effective.”

Ineffective and punitive responses to drug use in correctional facilities

Correctional facilities’ preference for punishment does very little to actually reduce drug use and overdoses. It’s not just that officials fail to provide evidence-based healthcare–they actively ignore evidence that punitive drug interdiction policies like mail scanning and visitation restrictions are ineffective and counterproductive, too.

Mail scanningA harsh new trend in prisons

Mail scanning. Prisons and jails are increasingly diverting incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients.¹⁵ Administrators claim this practice will stem the flow of contraband — primarily, drugs — into their facilities, but there is no solid evidence to date that mail scanning has this intended effect.¹⁶ In addition to the emotional consequences and needless exploitation inherent in mail scanning, these practices result in long mail delays and the disruption of correspondence-based nonprofits, education programs, and ministries.

There are numerous examples of mail scanning failing to produce any meaningful reduction in drug use or overdoses in prisons across the country:

• Pennsylvania: After instituting mail scanning, the percentage of incoming mail that the Department of Corrections reported as “tainted” only decreased by 0.1% over the course of a year. As of 2023, the rate of positive drug tests in Pennsylvania prisons is now almost 3 times higher than it was before the policy was introduced.
• Missouri: In Missouri state prisons, the average number of overdoses per month increased from 34 to 39 after mail scanning was introduced in July 2022.
• Virginia: Every year since the Virginia Department of Corrections began mail scanning in 2017, there have been more overdoses than in the year prior to instituting mail scanning (even while the state’s incarcerated population declined during the COVID-19 pandemic).
• New Mexico: After a mail scanning policy went into effect in February 2022, a report on the Corrections Department from the state’s Legislative Finance Committee highlighted a nearly two-percentage point increase in positive random drug test results from Fiscal Year 2021 to Fiscal Year 2022 – almost doubling the positivity rate. This essentially “reverse[d] three years of reduced drug use” in the prison system, and the report authors noted that the mail scanning policy “does not appear to have reduced drug use” during the study period.

In fact, several prison systems seem to actively ignore the lack of evidence supporting mail scanning as a drug interdiction effort. The federal Bureau of Prisons has increasingly adopted mail scanning policies, reportedly following a letter from Pennsylvania congressional representatives “urg[ing] the BOP to follow Pennsylvania’s lead,” and such policies are now in place in almost every federal facility.

Visitation restrictions. There are a variety of policies in jails and prisons that restrict visitation and administrators often defend them as anti-contraband (i.e., anti-drug) initiatives. For example, in Virginia, some of these policies have included requiring visitors to change into state-issued jumpsuits without pockets, limiting approved visitor lists to 10 people, millimeter wave body scanners, and banning feminine hygiene products for visitors.¹⁷ In Washington, the latest state budget proposal betrays the state’s biases in responding to drugs in prisons: it includes $4.7 million for MAT in prisons, which is only about half of the funding it would take to meet the needs of people in custody. At the same time, the Department requested $6.5 million for body scanner staff and operations, and the budget proposal offers even more than they asked for: $7.9 million. Incarcerated people routinely face humiliating search practices – including strip searches – following visitation, but considering the prevalence of drug use inside prisons and jails, these tactics do not appear to have made a meaningful impact.

Doubling down on failure: misunderstanding drug use inside

Prison and jail administrators often cite contraband medication as the primary reason for restricting access to MAT. While “diversion” of medications¹⁸ like buprenorphine can occur in prisons and jails, there are simple, proven diversion prevention strategies that any facility offering MAT could institute, whether they are correctional facilities or community health centers. ¹⁹ We know that generally, “illicitly obtained” buprenorphine is most often used to self-treat opioid withdrawal when treatment is not available or has been denied. While there is much concern regarding diversion, an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013 revealed no overdose or death reports mentioning buprenorphine or Suboxone, consistent with previous research on New York City non-incarcerated overdose fatalities. It is clear that – just like in the community – the proven benefits of MAT outweigh the perceived risks of diversion.

Consistent with their punitive approach to drugs, many corrections officials enforce serious sanctions for positive drug tests, medication diversion, and non-fatal overdoses. Sanctions for drug use in prisons can include solitary confinement, denied visitation, ²⁰ delayed parole hearings, loss of “good time,” reduced access to programming, facility transfers, reclassification, and fines.²¹ There is, unsurprisingly, no evidence that these disciplinary policies actually reduce drug use behind bars. However, it’s easy to imagine how such approaches create a dynamic in which people hide their drug use and engage in riskier, deadlier behaviors. The culture fostered by punishment does not actually address drug use — it just makes it more dangerous.

Public health research has long been clear that punishing addiction does not actually help address substance use disorders, and there is no reason that it would work in jails and prisons. People who need mental health and substance use treatment are better served in voluntary, non-carceral, clinical treatment settings.

Overdose interventions and deaths

Jail and prison administrators are right to be concerned about drug overdoses behind bars. Overdose deaths are preventable and substance use disorders are treatable, but in 2019, more than 400 people in jails and prisons died of drug or alcohol intoxication.²²

Jails. In response to overdoses, some local jails have increased the availability of naloxone (an opioid overdose reversal medication also known by the brand name “Narcan”). In Maine, correctional staff in some facilities now carry naloxone on their belts rather than in a locked first aid kit. In New York City, all housing areas are required to have naloxone available.

Some jails have gone a step further: in San Diego County, the staff and people in custody have access to naloxone throughout the jail facility. In Los Angeles County jails and the Louisville Metro Department of Corrections jail in Kentucky, staff and incarcerated people have access to naloxone and receive training on how to administer it. The benefits of this dual approach cannot be overstated: in a single day in Los Angeles, two overdoses were reversed when incarcerated people administered naloxone and, over the course of a year, incarcerated people in the Louisville jail dispensed naloxone successfully to at least 24 people who had overdosed in the facility.

Prisons. The rates of death from drug or alcohol intoxication may be lower in prisons than in local jails, but they are still a serious – and growing – problem: from 2001 to 2019, the percentage of state prison deaths attributed to drug and alcohol intoxication increased from 1.2% to 6.6%. A September 2022 directive from the New York State Department of Corrections and Community Supervision requires correctional staff to administer naloxone as well as provide first aid and CPR as necessary, and includes a requirement for each facility to institute a procedure to make naloxone more accessible to staff. In Oklahoma, the State Department of Mental Health and Substance Abuse Services reported that naloxone is available “on every unit” in state prisons, and future initiatives where “every CO will have Narcan on them” are expected as of May 2023.

Making naloxone physically present in correctional facilities is a good first step, but it’s not enough. In April 2023, reporting from Filter detailed that, while correctional staff in Washington Department of Corrections facilities have access to naloxone, many are not properly trained. When interviewed, two correctional officers – incorrectly – told the reporter that “Narcan…doesn’t work on fentanyl.” The Filter story cites at least one Department of Corrections report of an overdose scene where staff were unable to locate, and were unsure how to administer, naloxone. As long as the criminal legal system continues to target and incarcerate people who use drugs, screening new admissions for opioid use, training staff and incarcerated people to use naloxone, and making naloxone available throughout facilities are the least these institutions could do.

Making reentry safer for people who use drugs

There are two crucial interventions that every jail and prison should offer upon release: free access to naloxone and appropriate, timely referrals to community-based MAT for people who received treatment while incarcerated. Yet less than one-third of local jails and far fewer prison systems offer either.

Naloxone. While naloxone is relatively inexpensive and easy to administer, in 2019, only 25% of jails provided naloxone to people being released. However, in the years following the 2019 survey, media coverage reveals that many jails – including those in Louisville, Kentucky, and Kershaw County, South Carolina – have added free naloxone vending machines near the facility exits.

In 2020, the California Department of Corrections and Rehabilitation began providing free naloxone kits and training to people preparing for release from prison. By July 2022, 95% of people released from California state prisons had received the kits and training. A handful of other prison systems have publicized similar efforts to provide naloxone on release but with little accompanying data on the success of their projects. For example, the Indiana Department of Corrections announced an initiative in 2020 to offer people released from prison the “opportunity to leave with Naloxone,” but there is little evidence available on the outcome of this program. Meanwhile, some states remain hostile to this very simple and effective intervention. In 2023, Oklahoma Governor Kevin Stitt vetoed a bill that would allow prisons to give Narcan to people upon release.²³

Community referrals for MAT. In 2019, only 28% of local jails provided a community link to MAT on release. Jails need to partner with their local public health agencies to identify community-based MAT providers for people returning home. For people who started or continued MAT while in jail, uninterrupted access to that treatment is vital. These efforts must include support in navigating the often-complicated health insurance landscape. In 2019, 27% of people on parole and 23% of people who had been arrested at least once in the past year reported having no health insurance coverage. People leaving jail or prison who need MAT must have primary care providers and Medicaid, Medicare, or other health insurance set up prior to release.

Recommendations

It is clear that the criminal legal system is not suited to the task of acting as the de facto mental health and substance abuse treatment provider many claim it to be. There are at least a few areas ripe for intervention to improve this situation: reducing the number of people with substance use disorders entering the criminal legal system, instituting evidence-based practices in correctional facilities that actually reduce the risk of drug overdoses, and expanding treatment availability inside jails, prisons, and during reentry.

Prevent people with substance use disorders from entering the criminal legal system:

• Address the social determinants of health and substance use. In order to reduce the flow of people with substance use disorders into jails and prisons, communities must prioritize housing, physical and mental healthcare, employment, and education. Increased funding for community-based drug treatment and other social services are crucial.
• Decriminalize drug use. People should not be confined in jails or sentenced to incarceration for drug possession, drug checking supplies, or drug paraphernalia. Harm reduction efforts like clean syringe exchanges, overdose prevention centers, safety-focused education programs, and regulating the drug supply will more effectively – and humanely – reduce overdose risk among people who use drugs.

Institute effective, nonpunitive responses to drug use behind bars:

• Screen for all substance use and mental health disorders. All admissions to prisons and jails should be screened for active substance use, substance use disorders, and mental health conditions.
• Avoid punishments and restrictions as responses to drug use, particularly when there is no evidence that they meaningfully impact consumption and overdose. Reflexively restricting meaningful contact and relationships under the guise of drug prevention is especially harmful and counterproductive. This inevitably requires divesting from ineffective practices like mail scanning, canine drug detection, and electronic scanning equipment for visitation. There should be more focus on treatment than punishment for incarcerated people who struggle with addiction.
• Invest in comprehensive MAT in jails and prisons including professional, clinical counseling, the availability of all MAT drugs, referrals to community providers upon release, and support reestablishing health insurance during reentry.

Expand treatment availability for substance use disorders:

• Treatment participation must be voluntary in jail, prison, and the community. When treatment is involuntary or coerced, when people are re-incarcerated for positive drug tests, or when they’re disqualified from participation in diversion programs based on their history of substance use, treatment is less effective. Instead, as the Drug Policy Alliance recommends, treatment should always be voluntary, involve clinicians rather than law enforcement, incorporate positive incentives, and use gold-standard medication and other practices.
• Treatment should begin as soon as possible. Any kind of treatment for substance use disorders and mental health conditions cannot be limited to the weeks or months leading up to release from jail or prison.
• Treatment requires informed consent. Healthcare providers should seek out informed consent from all individuals who are eligible for MAT and they must have access to all treatment options.

Substance use disorder treatment — as handed down by the criminal legal system — is not working as advertised. Jails and prisons are not healthcare institutions and their mandate for punishment makes patient-centered care impossible and health outcomes worse. Instead, the United States desperately needs healthcare infrastructure that can support people who use drugs outside of carceral settings. While corrections officials request further investments under the guise of treatment, the stigma, isolation, and punishment that helped foment the present crisis persist. Our communities cannot punish their way out of public health crises, but as long as policymakers insist on incarcerating people with substance use disorders, they need to at least provide evidence-based care to those who want and need it.

Zombie politics: The return of failed criminal legal system policies in 2023 – and how to fight back

Unfortunately, this year saw the return of many types of failed criminal legal system policies that would be more at home in 1993 than 2023. Here are some arguments to make if these zombie laws come to your state.

by Sarah Staudt, January 24, 2024

For the first time in over a decade, prison and jail populations increased in 2022, and state prison systems and the federal Bureau of Prisons are predicting future growth. Although there are many reasons for this – including courts returning to normal operations after the height of the pandemic – at least some of this expected rise will be the direct result of regressive policy choices made by state legislatures.

The politics we have seen surrounding crime and punishment are eerily reminiscent of 1990s “tough on crime” rhetoric: in Florida, Governor Ron DeSantis suggested that his political opponents are “pro-crime,” throughout the country; while Democrats attacked parole reform, reform-minded prosecutors, and bail reform in their 2022 mid-term election challenges. This rhetoric contradicts the facts: crime across the nation remains at record low levels, including a likely dramatic decrease in violent crime in 2023.

As our partner organizations around the country decry this resurrection of bad policy, we looked at recent legislation passed around the country to identify trends in this most recent crop of throwback laws. In this briefing, we present some of the most common kinds of tough-on-crime laws passed in 2023¹ and the best arguments against them, so that advocates can be ready if these trends appear in their state.

Renewing the War on Drugs

In recent years, substantial progress has been made to address and begin to reverse the harmful policies from the War on Drugs. The authors of these policies, passed between the 1970s and 2010s, created draconian mandatory minimum sentencing laws, established a racist sentencing disparity between crack and powder cocaine, and led to the incarceration of millions of people. Despite spending billions each year to enforce these policies, the drug war has not reduced drug use rates, drug prices have dropped, and overdose deaths have risen. Based on our experience with the Drug War, there is no reason to think that arrest and incarceration can stop drug use or trade.

Fentanyl now permeates the United States drug market, leading to higher risks of overdose. Experts and advocates consistently urge a public health approach to fentanyl, but, unfortunately, too many states are treating it as “Crack 2.0“, pursuing the same failed policies that sent millions of people to prison. This includes penalty enhancements for both possession and distribution of fentanyl and increased penalties for homicide charges leveled against people who provide drugs to a person who subsequently dies of an accidental overdose – often called “drug-induced homicide” laws. These laws are often levied against people using drugs together, who may or may not know that fentanyl is present in what they are using.

This year, a number of states passed laws resurrecting failed war on drugs policies:

• Alabama (HB 1) created mandatory minimums for possession of fentanyl. This bill was especially concerning because it passed the legislature unanimously, suggesting that there was no meaningful debate about whether the policy would be effective.
• Iowa (HB 595) increased penalties for both possession and distribution of fentanyl.
• Wisconsin (AB 68) increased penalties to 60 years for reckless homicide involving delivering fatal drugs. The law would apply to people using drugs together.

Arizona and the federal government have also come close to passing retrograde drug legislation. Arizona’s legislature passed a presumptive 10 year mandatory minimum sentence for possession of as little as 2 milligrams of fentanyl; that bill was vetoed by the governor. At the federal level, the HALT Act would trigger new and increased mandatory minimum sentences for fentanyl; it has passed the House and currently sits in the Senate.

Fighting back against zombie drug policies

Advocates facing regressive drug policy changes have the benefit of decades of research showing that these policies do not work, have never worked, and cause massive harm to communities.

First, advocates can rely on the mountain of evidence showing mandatory minimums and longer prison terms do not reduce crime, drug use, or overdoses. Families Against Mandatory Minimums has compiled a wealth of resources on sentencing reform, including a handy guide to arguments against mandatory minimums. They argue that mandatory minimums create racially biased outcomes – Black people are 65% more likely to face mandatory minimum charges. Advocates can also point to the ways that lengthening prison sentences will expand prison populations in the long run.

Second, advocates can educate lawmakers on how carceral approaches fail to address the fentanyl crisis. In particular, many lawmakers believe that jails and prisons will provide treatment for opioid users – in fact, incarceration increases overdose risk, and few people receive treatment inside. Policymakers also believe they can target drug dealers with harsh penalties without harming people who use drugs. In fact, drug users and drug suppliers are most often the same people; sentencing enhancements are unlikely to affect so-called drug “kingpins” and will more likely target users and low-level sellers. Drug Policy Alliance has a great video on this subject.

Lastly, advocates can provide lawmakers with alternatives to these carceral policies. Kneejerk penalty increases are often the product of a desire to “do something” about the very real devastation that fentanyl and overdoses are wreaking in communities across the country. But doing things differently during this overdose crisis means taking a public health approach to drug use. Drug Policy Alliance has created a comprehensive toolkit on such health-centered approaches, including increasing access to treatment and harm reduction approaches like safe consumption sites and fentanyl test strips.

Criminalizing the homeless

The United States has a long history of responding to the problem of homelessness with criminalization and punishment. Homelessness has risen in recent years, driven by economic factors like increased housing costs, as well as by the COVID-19 pandemic.

As concern about homelessness rises, some jurisdictions are trying to criminalize their way out of a problem that can only be addressed with social services and housing.

• In Georgia (SB 62), the state legislature passed a law requiring that municipalities enforce anti-camping laws.
• Alabama (HB 24) expanded the definition of loitering to encompass more unhoused people.

Arizona also came disturbingly close to passing similar policies. A vetoed bill in Arizona (SB 1024) would have created an anti-camping law, and two other bills proposed further criminalized homeless encampments but failed.

There are dozens of ways that policymakers have targeted people experiencing homelessness. In 2021, the National Homelessness Law Center published a guide to laws around the country criminalizing homelessness; they note that as of 2021, almost every state has at least one law restricting behaviors associated with the experience of being homeless.

Protecting unhoused people from backwards policies

There’s no denying that rising housing insecurity is a genuine concern. Unfortunately, the solutions are complex, and can’t be solved by simply outlawing living outside. Advocates can help lawmakers understand the feedback loop between criminalizing homelessness and increasing mass incarceration. Further criminalizing homelessness is likely to increase jail populations – and jails are ill-equipped to address the poverty, mental health, and substance use related reasons why people are experiencing homelessness. The National Homeless Law Center’s comprehensive guide notes that criminalization harms the health and wellbeing of unhoused people, and is an extremely expensive reaction to homelessness. Incarcerating someone costs over $47,000 a year; a week in a jail cell might cost the equivalent of a month or more of housing.

Advocates can also help lawmakers find and implement successful, humane, and non-carceral approaches to this crisis. “Housing First” policies, which give people housing as the first step in holistically addressing their challenges, have been shown to interrupt cycles of criminalization and give people a path to long-term, stable housing. Housing First is part of a suite of innovative approaches to homelessness cataloged by the National Homelessness Law Center; other approaches include expanding access to affordable housing subsidies, embracing innovative housing solutions like “tiny home” communities, and preventing homelessness before it happens by reforming eviction laws and prohibiting discriminatory housing policies.

Lastly, the Homelessness Law Center notes that some policies criminalizing homelessness violate constitutional rights, and can be challenged in the courts. The Ninth Circuit has ruled that imposing criminal penalties for people who cannot obtain shelter violates the Eighth Amendment prohibition on cruel and unusual punishment. Sweeps of tent cities have been found to violate due process rights when governments destroy or confiscate personal property without notice. The courts may provide another avenue for protecting the basic human rights of people experiencing homelessness

Resurrecting failed sentencing policies

2023 saw a resurgence of so-called “Truth in Sentencing” laws. In the 1990s, federal legislation established funding incentives that encouraged states to pass laws requiring that people charged with certain offenses serve at least 85% of their sentences in prison. In the mid- to late 90s, 21 states passed these laws. These policies sometimes as much as doubled people’s actual prison terms overnight, as states that had historically allowed people access to parole after half or less of their sentences were suddenly requiring much more time in custody before parole. Notably, these sentencing structures reduce the ability of people to earn time off their sentences for good behavior or for completing programming, and therefore remove powerful incentives that support prison safety and reentry success. In 2022 and 2023:

• Louisiana (HB 70) reduced the ability of people convicted of repeated non-violent offenses to earn time off their sentence for good behavior.
• South Dakota (SB 146) eliminated parole eligibility for many offenses and reduced the ability to earn sentencing credit.
• Arkansas (SB 495) changed sentence structures and made certain felonies ineligible for sentence credits.

In 2022, Tennessee’s SB 2248 served as a cautionary tale. Tennessee’s Department of Corrections projects that the resulting increases in incarceration will cost taxpayers at least $40 million over the next 8 years. Chillingly, when asked about these costs, the Speaker of the House simply said, “if we need to build more prisons, we can.”

The truth about “Truth in Sentencing”

Because Truth in Sentencing has been tried before, advocates have lots of resources showing that it is a failed and counterproductive policy. Research consistently shows no public safety benefit to increased incarceration, and that longer sentences do not deter crime. Research also shows that Truth in Sentencing reduces incentives for incarcerated people to complete rehabilitative programming, increases safety risks for people in prison and corrections officers, and increases recidivism. Truth in Sentencing leads directly to prison overcrowding, which causes immense suffering.

Truth in Sentencing and other “tough-on-crime” policies are often enacted in the name of crime victims. Advocates can help policymakers understand that most victims of violence prefer that money be spent on violence prevention, not incarceration.

Lastly, because of the immense expense of Truth in Sentencing policies, progressive advocates may find unlikely bedfellows in the fight against these laws. In Tennessee, the American Conservative Union opposed the Truth in Sentencing bill; voices on both sides of the aisle understand that investing in prisons is an ineffective, wasteful, and dangerous approach to public safety.

Building more prisons

States continue to invest hundreds of millions of dollars into building new prisons instead of pursuing decarceration strategies. These efforts often cite prison overcrowding or aging buildings to justify this immense expenditure – but fail to explore proven strategies to reduce the number of people behind bars. In 2023, states made major moves towards prison construction:

• Arkansas (SB 495) appropriated $470 million for 3,000 new prison beds.
• South Dakota (HB 1016) appropriated $60 million for a new women’s prison and $340 million for a new men’s state prison.
• Montana (HB 817) appropriated $211 million for capital improvements at Montana state prisons.

Combatting prison construction

Demands for new or expanded prison construction are constant features of the criminal legal reform landscape. Often, these efforts are sold to lawmakers as either necessary or actually progressive, when in fact they are neither. Although it may be true that prison buildings are aging and that prisons are overcrowded, the most straightforward – and most cost-effective – approach to addressing these problems is decarceration. Substantially reducing prison populations can allow states to close decrepit buildings instead of spending millions renovating or rebuilding them. Around the country, states have successfully reduced their prison populations enough to close facilities; twenty-one states fully or partially closed prisons between 2000 and 2022.

How to close prisons30+ reforms to shrink the criminal legal system

Advocates arguing against prison construction can look to the detailed plans created by activists to close 10 prisons in California by 2025. They may also find the Prison Policy Initiative’s anti-jail expansion materials helpful – many of the arguments against building new jails also translate to the prison context. Even in states where active plans to build prisons are not on the table, advocates can argue for prison and jail construction moratoriums, which can give state policymakers time and space to genuinely pursue decarceral solutions, instead of investing in our failed mass incarceration system.

Undermining reform prosecutors

In recent years, many jurisdictions have elected reform-minded prosecutors (sometimes called “progressive prosecutors”) who are interested in changing the tough-on-crime policies behind mass incarceration. The American criminal legal system is designed to give substantial discretionary power to prosecutors, and prosecutors are increasingly using this discretion to roll back some of the most damaging parts of the system. These prosecutors have taken a range of approaches, from increasing access to diversion programs to creating conviction integrity units that examine the cases of incarcerated people asserting their innocence. Although some reform prosecutors have seen pushback from voters in recent years, most still enjoy widespread support.

Unfortunately, conservative state legislatures continue to try to undermine these democratically elected local officials with legislation designed to take their discretionary power away and force them to adhere to carceral policies – or risk being removed from office.

• Florida Governor DeSantis has continued a trend of removing popular States Attorneys – including the state’s only Black woman state prosecutor – because of complaints about sentencing decisions and statements opposing his attacks on reproductive rights and gender-affirming health care.
• In Georgia (HB 231), the state legislature created a “Prosecuting Attorneys Oversight Commission” empowered to investigate and remove local prosecutors.
• In Texas (HB 17), the legislature passed a bill allowing courts to remove district attorneys for failing to pursue certain types of prosecutions.

Protecting local control of prosecutions

Advocates can help policymakers and the media understand that state legislative efforts like these undermine local elections and reduce confidence in the democratic process. Although rhetoric against reform prosecutors has been loud and sometimes extreme, it can be helpful to point to evidence that Americans are still broadly supportive of criminal legal system reform, and continue to support it at the polls. Reform prosecutor races are often high profile and hard-fought, and voters have made a clear and intentional choice to go against the status quo of harsh criminal legal system policies. Those choices should be respected.

Importantly, there is no evidence that crime has worsened under reform prosecutors. In fact, between 2015 and 2019, cities with reform prosecutors were less likely to experience a rise in homicides than those with traditional prosecutors.

Conclusion

We unfortunately couldn’t possibly cover all of the “zombie policies” cropping up around the country. Other notable examples include bills to enshrine cash bail more deeply in state law (Wisconsin), and expanding the use of non-unanimous jury verdicts for the death penalty (Florida), among many others. And by highlighting these setbacks, we don’t intend to diminish the real progress made around the country in 2023. Our Winnable Battles report details some of these successes; the Sentencing Project’s roundup of 2023 trends in criminal legal system reform highlights even more.

But the forces that seek to entrench and expand mass incarceration remain active across the country. We hope that this guide helps arm advocates with some of the arguments they need to avoid history repeating itself.

Force multipliers: How the criminal legal and child welfare systems cooperate to punish families

Child protective service agencies position themselves as providers of welfare, but their relationship to the criminal legal system demonstrates their shared role in punishing families and exacerbating the conditions that lead to system involvement in the first place.

by Emma Ruth, January 8, 2024

The harmful effects of the criminal legal system on children are well-established. For years, evidence has shown that a parent’s involvement with the criminal legal system can harm kids, and incarcerating children has lifelong consequences. We’ve reported on efforts in several states to mitigate the negative impact of the criminal legal system on children but seldom discussed how the criminal legal and child welfare systems are deeply interwoven. A growing number of advocates and experts are bringing these connections to light and are organizing for momentous change. This briefing draws attention to their work to argue that, by expanding our view beyond jails and prisons to include these related systems, advocates and policymakers can safeguard against creating prisons by another name.

By the numbers: involvement in each system

Presently, the child welfare system surveils millions of families each year, many of whom are also impacted by the criminal legal system. Though data about the overlap between the two systems are faulty and likely underreported,¹ data about strictly parental incarceration or child protective services² involvement are more accessible. In our August 2022 briefing, Both sides of the bars: How mass incarceration punishes families, we explained the magnitude of the criminal legal system’s impact on children and families, noting that nearly half of people in prison are parents to minors and that 1.25 million children are impacted by parental imprisonment on any given day.³

Annual government reports illustrate the size and scope of child protective services. In 2021, nearly 4 million calls were made to those agencies, alleging that around 7.2 million children were being neglected or abused. Each year, approximately half of these calls are immediately determined to be illegitimate, lack enough information, or otherwise fail to meet the criteria for a child maltreatment report. In other words, rampant overreporting is the norm. Even when such reports are screened out, mere contact with the child welfare system can have damaging effects on families that last for decades, much like collateral consequences from brushes with the criminal legal system.

The consequences of dual-system involvement

Child welfare investigations bring parents and children in closer contact with the criminal legal system, increasing the likelihood of dual-system involvement. A 2010 study noted that there are four likely pathways to a family becoming involved with the child welfare and criminal legal systems simultaneously:

1. A parent’s arrest coincides with child welfare system involvement, such as an arrest leading to a maltreatment report;
2. A parent’s record is determined to compromise their child’s safety;
3. Relatives who might ordinarily be considered for next-of-kin placement (placement of a child in the temporary or long-term custody of a non-parent relative) are determined ineligible due to their record;
4. A child enters foster care because of issues with the temporary guardian they are staying with while their parent is incarcerated.

The limited data on dual-system involvement show that parental incarceration was listed as the reason for entry for 6% of children who entered foster care in 2022.⁴ Estimates range, but one 2017 study estimated that 40% of children who have been in foster care have also had a parent incarcerated in their lifetime. Parental incarceration is just one pathway to criminal legal system involvement: over half of youth in foster care will have an encounter with the juvenile legal system by age 17, a phenomenon that some have dubbed the foster care-to-prison pipeline.

Beyond quantitative data, several recent publications expose the connective tissue between the criminal legal and child welfare systems. In her recent piece for In These Times, Roxana Asgarian writes:

Critics say [the child welfare system] is more akin to law enforcement than social services, given its ability to surveil parents and hand down the ultimate punishment — terminating the legal bonds between parent and child.

In recognition of these similarities, advocates for child welfare system reform and abolition have taken to calling it the “family regulation” or “family policing” system, arguing that it, too, primarily functions to surveil, regulate, and punish disproportionately Black and Brown families.

Estimated percent of Black children, compared to all U.S. children, who experience each successive stage of the child welfare system’s process to separate children from their families before age 18, from investigation to out-of-home placement and termination of parental rights. To see the estimated rates for other racial and ethnic groups, see the appendix table.

Just as Black and Brown people are overrepresented in jails and prisons, their families are overrepresented at every stage of a child protective services case. Black and Indigenous parents, in particular, are over-reported and over-investigated and are more likely to have their children removed and their parental rights terminated. Black and Brown youth are also overrepresented in the foster system: In California, for example, Black children are represented in foster care at a rate of 3.7 times their proportion in the population.⁵ Further, Black and Indigenous children enter foster care at roughly double the rate of white children nationally. These systems not only target the same communities, but the same individuals: incarcerated people are more likely to have been in foster care previously than others, and youth in foster care are more likely to become incarcerated as adults. Involvement in one system makes families vulnerable to becoming involved with the other.

Dual punishment: Incarceration and termination of parental rights

We have previously reported on the harm of family separation by incarceration, which is amplified by the threat of permanent termination of parental rights that can follow. Impossible-to-follow service plans and legislative loopholes make it so that 1 in 8 incarcerated parents who have a child in foster care will lose their parental rights entirely.

Service plans — the behavioral modification programs that child protective services can impose on families who are involved in an active case — often require that parents attend mandated classes, see specific counselors, engage in supervised visits, and take other steps to regain their custody, all of which is nearly impossible when a parent is incarcerated. But prisons and jails are not required to accommodate the service plans that parents must follow in order to regain custody, and child welfare agencies are not required to accept available prison programming as “reasonable progress” towards reunification. Meanwhile, the clock is ticking: federal legislation mandates that states must move to terminate a parent’s rights when a child is out of their parent’s custody for 15 out of 22 consecutive months during a child welfare case, even if that separation is due to a parent’s incarceration.⁶

According to a 2023 study called The Relationship Between Black Maternal Incarceration and Foster Care Placement, “Parental incarceration can also qualify as an ‘aggravated circumstance,’ relieving child welfare agencies from the [statutory requirement] to make ‘reasonable efforts’ to reunify families or limiting the number of months in which ‘reasonable efforts’ must be made.” These systems intensify the impacts of each other in a feedback loop, causing parents and their children to experience multiple forms of punishment, often for the same offenses.

The same problems pervade both systems

In the absence of flourishing social safety nets, both the criminal legal and child welfare systems have become catch-all nets to address social issues that they’re not equipped to deal with. Just as many adults who are experiencing intimate partner violence call the police not to report a crime, but because they need crisis management, child welfare reports are often used to mediate interpersonal conflict. Reports of people weaponizing child welfare reports during disputes, or making retaliatory reports to gain leverage during custody battles, are common.

Both systems respond to substance use or mental health challenges with punishment, not treatment. Much like treatment mandates handed down by drug courts ignore research indicating treatment is less effective when it’s coerced,⁷ the same ineffective requirements are imposed on parents in child welfare cases. These requirements often feel more like punishment than help, and they fail to give parents real agency or choice. If the alternative to accepting treatment is becoming incarcerated or losing custody of your child, who is in a position to refuse? Child welfare agencies don’t make treatment affordable or accessible, failing to consider a parent’s schedule, life responsibilities, and transportation options. Further, parents are frequently required to pay for their mandated treatment, even though financial insecurity often leads to their involvement with the system in the first place.

State registries, much like those in the criminal legal system, have become commonplace, too. However, the threshold for appearing on a child welfare registry in many states is even lower: state central registers document substantiated and unsubstantiated allegations, not just findings of guilt. As is the case with an arrest or conviction record, or being listed on the sex offense registry, inclusion in the state central register can create future obstacles to accessing employment and child custody. In this way, both systems operate as agents of surveillance, not justice.

The interplay between these two systems is increasingly alarming. States that spend more on carceral practices have higher rates of child removal than states that spend more on social welfare. Federal grants for universities incentivize social work schools to partner with child welfare agencies, developing pipelines that push social workers into collaborating with them. Many jurisdictions are developing more partnerships between police and social workers, which are often lauded as progressive reforms. This has led many in the social work field to question whether their role is to punish people. Criminal legal system and social work advocates must ask, can we address issues in the criminal legal system by investing in another system that’s riddled with the same problems?

How advocates are addressing the problem

Over three-quarters of child welfare cases in 2021 alleged neglect, a vaguely-defined term that is often used to blame to parents for having insufficient resources to care for their children.⁸ Rather than using the child welfare and criminal legal systems to punish parents who are facing resource scarcity, advocates are tackling the resource gaps that led families to become system-involved in the first place by providing direct cash assistance. Family policing abolitionists want to confront child abuse while providing solutions that resource parents and communities and keep them united with their children. They question the true function of the family regulation system and point to how it worsens many of the issues seen in the criminal legal system.

In the last several years, a number of groups have emerged to formalize Black mothers’ longstanding efforts to resist state interventions and family separation and repeal the Adoption and Safe Families Act. These and other coalitions of advocates have been working towards expanding representation for impacted parents and attempting to create Miranda Rights for those under investigation by New York’s Administration for Children’s Services. In 2019, New York passed legislation to limit the scope of its state central register by raising standards of evidence for being placed upon it, creating new and shorter pathways to sealing a record, and options to mitigate its effects on employment.

A steadily increasing number of advocates and social service providers are developing tools to expand the practice of mandatory supporting, instead of mandatory reporting,⁹ by prioritizing resourcing families over making child welfare reports. In 2021, New York advocates introduced legislation to make reports confidential instead of anonymous to increase accountability and minimize malicious reporting. In 2023, New York City parents rallied to support legislation to repeal mandatory reporting altogether. Meanwhile, legislation introduced in Colorado that same year would require the courts to make it feasible for incarcerated parents to adhere to the requirements of their ongoing neglect case or service plan.

Universal basic income pilots for formerly incarcerated people, such as those in Chicago and Durham, show promise at improving post-release outcomes and decreasing recidivism rates.¹⁰ Financial assistance for families reduces rates of child maltreatment, and California is exploring how basic income programs can improve outcomes for young adults leaving foster care.

Breaking the cycle: applying lessons from both systems

Dispelling the myth that most harm against children is caused by “criminally-minded” individuals whom courts can pathologize and punish away requires addressing the material causes of child maltreatment. In the 70% of child welfare cases that are strictly for neglect, that means addressing poverty. In every case, that means contending with the barriers that prevent people from obtaining quality mental and physical healthcare and the structures that bar parents from getting the support they need to be their best selves for their kids. If child maltreatment is a structural issue rooted in poverty and interpersonal violence, then structural solutions are necessary to alleviate both.

The child welfare and criminal legal systems are failing to provide families with the safety and transformative resources that they need. Both systems surveil, regulate, and punish people, and do nothing to transform their conditions. Both are fraught with racist and bureaucratic structures that formalize the repression of Black and Brown families. And neighborhoods that have frequent contact with child protective services and police often suffer from fraught and less trusting community relationships, pushing them further from, not closer to, true public safety.

Because they are so intertwined, each system’s damaging impacts can and should be remedied concurrently: advocates are fighting to better resource families before they ever come in contact with them; they are shrinking their footprint in schools, healthcare, and other public services that surveil them; and they are ensuring better representation for families who are already ensnared. Policymakers must look to these advocates as leaders and respond to their calls for more resources and less punishment.

Criminal legal system reformers’ work can be strengthened through solidarity with people who are fighting family policing and regulation. They provide prescient guidance about the pitfalls of investing in supposed “helping” alternatives to incarceration that produce more mandated programs, surveillance, and criminal legal system involvement. Their work inspires advocates to think more critically about the true meaning of community safety and invites us all to expand our focus from “fixing prisons and jails” to ending the systems of oppression that built jails, prisons, and their welfare system counterparts in the first place.

12 of our most important reports, briefings, and tools in 2023

New data on the overuse of probation and parole, insights into the racial disparities in prisons and jails, and much more. Here are the highlights of our work in 2023.

by Danielle Squillante, December 21, 2023

2023 was a big year at the Prison Policy Initiative. We exposed how the overuse of probation and parole serves to extend the prison walls into our communities, produced new datasets and graphics that show just how vast the racial disparities in prisons and jails actually are, and highlighted how the same companies that profited off of over-priced prison phone calls have moved into the e-messaging industry. Didn’t catch everything we published in 2023? We’ve curated a list of some of our best work from this year below.

Mass Incarceration: The Whole Pie 2023

We released an update of our flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Women experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. To fill these data gaps, we also released an updated Women’s Whole Pie report in partnership with the ACLU Campaign for Smart Justice, which includes richly-annotated data visualizations about women behind bars.

Punishment Beyond Prisons 2023

Our report shows the full picture of correctional control in the U.S., with a particular focus on the overuse of probation and parole. It includes data for all 50 states and D.C. on the number of people under correctional control, including community supervision. We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems. Our findings raise the question of whether probation and parole systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.

SMH: The rapid & unregulated growth of e-messaging in prisons

To better understand the explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation. Our review found that, despite its potential to keep incarcerated people and their families connected, e-messaging has quickly become just another way for companies to profit at their expense.

Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.

We released new data visualizations and updated tables showing the national landscape of persistent racial disparities in state prisons and local jails. Unlike other datasets, ours provides apples-to-apples state comparisons in three formats: counts, rates, and percentages. Using this data, we’ve updated over 100 of the key graphics on our State Profile pages, showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compares to the total state population.

What is civil commitment? Recent report raises visibility of this shadowy form of incarceration

Twenty states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex-related offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence. This deep dive into recently-published data from a survey of individuals confined in an Illinois civil commitment facility sounds the alarm about how these “shadow prisons” operate and the high rates of violence and trauma that people detained in the facilities are subjected to.

The aging prison population: Causes, costs, and consequences

Our briefing examines the inhumane, costly, and counterproductive practice of locking up older adults. The U.S. prison population is aging at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.

How 12 states are addressing family separation by incarceration — and why they can and should do more

Our briefing assesses the legislative action taken by 12 states and the federal government to address the growing crisis of family separation caused when a primary caregiver is incarcerated. All too often, incarceration destroys family bonds as parental rights are terminated or children end up in foster care. We explain how advocates across the country are fighting for creative and holistic solutions.

No Release: Parole grant rates have plummeted in most states since the pandemic started

With parole board practices in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We surveyed 27 states and found only 7 saw an increase in their parole approval rate since the pandemic began, and almost every state held substantially fewer hearings than in years past.

Breaking news from inside: How prisons suppress prison journalism

In response to a move by New York prison officials in May to introduce a policy to effectively suppress prison journalism, we released a briefing building off of data from the Prison Journalism Project that detailed restrictions on prison journalism in prison systems across the country. Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death.

A profile of Native incarceration in the U.S.

Adding to our 50 State Profile pages, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate and more than four times higher than the state and federal prison incarceration rate of white people. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.

States to the Census Bureau: You created prison gerrymandering, you need to end it.

Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. In a May blog post, we reviewed a new National Conference of State Legislatures report that outlines the experiences and recommendations from states that implemented anti-prison gerrymandering reforms in the 2020 redistricting cycle. The report makes clear that state officials agree that prison gerrymandering is important, worth fixing, and the Census Bureau should be responsible for ending it. With roughly half of U.S. residents now living in a state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear. But will the Bureau listen?

Advocacy Toolkit

We continue to update our Advocacy Toolkit, a collection of web-based resources designed to improve advocates’ skills (such as locating data and conducting public records requests) or to plug directly into their campaigns (such as fighting new jail proposals). New this year is a guide to help advocates identify ways public housing policies can be more inclusive to people with criminal histories, as well as a guide that explains why charge-based carveouts are problematic and provides messaging to combat justifications for including them in criminal justice reforms.

This is only a small piece of the important and impactful work we published in 2023 and our work is far from over. We’ve got big things planned in 2024, when we’ll continue to expose the broader harms of mass criminalization and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.

Going back to Cali: Revisiting California’s parole release system

More than 9,000 people were eligible for hearings in California last year, though the state abolished discretionary parole in 1977. With grant rates among the lowest in the nation and people forced to wait up to 15 years between hearings, the Golden State's parole system is far from glittering.

by Emmett Sanders, December 19, 2023

In 2019, we graded parole release systems across the US. Though no state performed particularly well, the 16 states that have mostly abolished discretionary parole since 1976 received our lowest grade, an F-. California was among them. Advocates from California asked us, however, to take a closer look at California’s parole system. Unlike other states that have abolished discretionary parole, California’s discretionary parole system since 2014 has significantly expanded eligibility for a large number of incarcerated people who meet certain criteria, and more become eligible each year.

We revisited California’s existing parole system to see how it would score using criteria we reserved for states with discretionary parole. In keeping with our more recent parole research, we also examined recent trends in the state’s parole process to see how it is being (mis)used and how often parole hearings actually result in release. While California may score slightly better this time around, ultimately, it still merits a solid “F.”

What makes California different from other states that have abolished parole?

California replaced parole with determinate sentencing for most people in the state’s prison system in 1977.¹ As in the 15 other states that have done this, discretionary parole was not entirely abolished. Almost all states that have abolished discretionary parole still retained it for small slices of their prison populations. However, California differs from other states that have abolished parole because it largely determines who is still eligible for parole based on criteria other than the the date that someone was sentenced. When California moved to a determinate sentencing scheme in 1977, it retained life sentences with the possibility of parole for the most serious offenses, such as murder and kidnapping with ransom.

In the other states that abolished discretionary parole, the only people still eligible for parole are those who were “grandfathered in” — that is, who were sentenced before parole was abolished.² In these states, the number of people eligible for parole shrinks every year, as people are released or die in prison. This is not true in California, where people sentenced for certain very serious felonies and some people sentenced under the Three Strikes Law can still receive life sentences with the possibility of parole. Every year, new people are sentenced who will eventually become eligible for parole. Due to new laws since 2014 that have significantly expanded parole eligibility, including for the elderly and people sentenced as youths, other people can also now become eligible for parole based on factors like their current age, age when convicted, and the amount of time served. As a result of these new laws, almost all incarcerated people now have an opportunity for parole release during their lifetime.

What does parole look like in California?

Every state differs, though elements of California’s parole process are similar to others. In a nutshell,³ the Board of Parole Hearings determines when a person becomes parole-eligible and sets an initial parole suitability hearing. Like in other states, the Board considers factors such as the offense, institutional records, and the results of a comprehensive risk assessment. They often consider input from the DA and survivors of violent crimes. People have access to legal representation, though in 2021, those with state-appointed attorneys were granted parole at half the rate of those with private counsel, which many cannot afford. Unlike Alabama, which denies incarcerated people any access to the parole board, California interviews the person, generally via video. If the Board makes a decision,⁴ they either grant release or deny it, in which case the person won’t get another hearing for between 3 to 15 years. The number of times the board may see a person is bound only by the duration of their sentence, so those with lengthy or life sentences are often reviewed and denied many, many times.

How many people does this affect?

In 2022, there were 9,017 scheduled hearings, up 49% since 2019, when there were 6,061. Meanwhile, the prison population in the state dropped by around 21%. Not only did the percentage of the prison population that was eligible for parole actually increase from around 5% in 2019 to more than 9% by 2022, but it made up almost a quarter of everyone who was eligible for release from California prisons by any means that year. Because of California’s low grant rate, however, people released on parole accounted for just 4% of all people released from California prisons in 2022.

Parole grant rates 2019-2022

California has made several recent moves to expand parole eligibility. However, these efforts appear to have been undermined by a parole board reluctant to release anyone. California’s actual grant rate,⁵ the percentage of scheduled parole suitability hearings that resulted in parole approval, was just 14% in 2022, barely above South Carolina (13%) and Alabama (10%) for the worst among those we examined.⁶

From 2019 to 2022, California’s actual parole grant rate fell 29%. Additionally, while hearings increased significantly, the vast majority of new hearings resulted in non-decisions, which increased by 75%, and denials, up by 41%. Ultimately, nearly 3,000 more hearings resulted in only 75 more people being released in 2022 compared to 2019, making the likeliest outcome of a parole hearing in California, by far, continued incarceration.

Grading California

Even adjusting for its limited use of discretionary parole, California’s parole system is more box office bomb than Hollywood hit. Overall, the state scored just 60 out of 120 possible points, earning only a slightly higher F than in the original report. While there were a number of issues here, three stood out as particularly egregious:

• Prosecutorial influence: Prosecutors often attend hearings and heavily influence the outcome. In 2022, prosecutors attended 60% of hearings held. The hearings attended by prosecutors resulted in about 24% fewer grants than when prosecutors did not attend.
• Extremely lengthy time between hearings after denials: Incarcerated people have to wait a minimum of three years and sometimes up to 15 years between denials.
• Unequal weighting of risk-assessment results: While California does issue a detailed annual report, there are massive deviations between the risk-assessment results, which are supposed to weigh heavily on the guidelines, and actual hearing outcomes. In 2022, people deemed “Low Risk” were paroled only 65% of the time, while folks with “Moderate Risk” were granted parole only 22% of the time, and those deemed “High Risk” were almost never paroled <1%. This suggests that negative risk assessments weighed far more against people than positive risk assessments did in their favor.

Moving forward: Ways California could improve its system

• Reduce the time between all hearings to no more than 1 year: Setting time between denials to up to 15 years fails to take into account changing policies, people, or parole board compositions. Additionally, the discrepancy in time between denials vs. time between waivers (1 to 5 years) encourages people to self-select.
• Eliminate reliance on “fixed-moment factors” and increase focus on objective factors that are better suited to measure personal growth and mitigated risk. Like many parole boards, California’s guidelines for parole consideration place heavy emphasis on “fixed-moment factors” — such as the crime of conviction, the person’s actions, and even their mental state during the commission of the crime — which are unchangeable regardless of effort on the part of the incarcerated person or the passage of time. These are ill-suited to measure things like personal growth or the risk a person might pose if released.

Conclusion

Though partially abolished almost 47 years ago, California’s discretionary parole system is alive and unwell as 2023 draws to a close. More and more people find themselves parole-eligible each year, and many are denied their chance at freedom and are forced to wait a decade or more before applying again. Ultimately, though parole does exist in some form in California, it is far from being at the head of the class.

Why did prison and jail populations grow in 2022 — and what comes next?

Recently published data from the Bureau of Justice Statistics show growing prison and jail populations, but this has little to do with crime. Instead, the trend reflects court systems’ slow return to “business as usual” and lawmakers’ resurrection of ineffective “tough on crime” strategies.

by Wendy Sawyer, December 19, 2023

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

Upward trends in prison and jail populations in 2022

Prisons

The new BJS data show that the total national prison population grew by over 2%, with 42 states and the federal Bureau of Prisons (BOP) incarcerating more people at the end of 2022 than 2021. In 14 states, the prison population grew by 5% or more,¹ with just 9 states (mostly in the South) and the BOP accounting for 91% of all prison growth nationwide.² The number of imprisoned women grew proportionally more than the number of imprisoned men (up 5% compared to 2%). At the end of 2022, 16 states held 90% or more of their pre-pandemic (2019) prison populations.

Just like the prison population changes we saw during the early and mid-pandemic (2020 and 2021), these increases were driven by changes in admissions more than anything else: 11% more people — about 48,000 more — were sent to prison in 2022 than in 2021. One narrow silver lining from this update: The number of people released from prisons increased for the first time since 2015; unfortunately, this was only a tiny increase of 1% compared to 2021. (As we recently reported, parole boards have been approving fewer people on discretionary parole in recent years, and compassionate release systems are woefully under-utilized.)

Local jails

Local jail populations grew at an even faster pace than prisons in 2022; jails held 4% more people at the end of June 2022 than at the end of June 2021.³ The women’s jail incarceration rate grew 9% compared to 3% for men, and Black, American Indian or Alaska Native, and Native Hawaiian or Pacific Islander⁴ rates all rose proportionally more than white and Hispanic jail rates.

As with prisons, jail growth was driven by a nearly 7% increase in admissions over last year. The pretrial population was almost back to its full pre-pandemic size (at 97%); more than 70% of people in jail had not been convicted of a crime. Another contributing factor to jail growth: the use of jail detention as a response to probation violations, up 5% compared to 2021. During the pandemic, many jurisdictions reduced their use of jails for punishing these typically low-level, noncriminal violations, but it appears that costly practice is “back to normal.”

A preliminary look at 2023 and beyond: Prison and jail populations continue to grow

In an effort to see whether the growth trend in jail and prison populations has continued since the BJS collected data in 2022, we looked for more recent data. While the data we found are neither complete nor perfectly comparable to those published by the BJS,⁵ we were able to look at year-to-date 2023 jail data from the Jail Data Initiative and at 2023 prison population data published by 42 states and the federal Bureau of Prisons (BOP). (For the 2023 prison data we found, see the Appendix table.)

What we found was troubling but not surprising:

• The jail data, collected from 942 jails across the U.S., show another modest (0.7%) increase in the average daily population in 2023 compared to 2022.⁶
• In two-thirds (28) of the 43 prison systems for which we found more recent prison data, it appears that even more people were incarcerated in 2023, with at least six states again showing increases of 5% or more over their 2022 populations.⁷
• At least two of the eight states where prison populations shrank in 2022 showed increases in 2023 prison populations; in Massachusetts and Arizona, the growth in 2023 erased the population drops in 2022.

Many state prison systems with available 2023 data have already returned to — if not surpassed — their 2019 pre-pandemic sizes.

Explaining recent prison and jail growth

It wasn’t crime

There’s been a lot of ink spilled about relatively modest changes in crime trends over the past few years, but nationally, total crime has remained near historic lows. While the specific factors that influence changes in prison and jail populations vary from place to place and from year to year, we conclude that “rising crime” is among the worst explanations for the growth of incarcerated populations over the past couple of years.

In considering this possibility, we looked at national crime victimization data as well as officially reported crime data.⁸ We see that the rate at which people reported any personal victimization in 2022 (23.5 per 1,000 people aged 12 or older) was almost exactly what it was five years ago, before the pandemic. Similarly, when we look at crime statistics reported by the FBI over a timeframe longer than one or two years, the rate of violent crime has held remarkably steady (and actually declined). In general, the fluctuations that have made headlines are within the range of what we have observed for the past 15 years or so. We see a similar story with property crime (with the exception of auto theft), which has also remained near its historic low, and is trending more steeply downward overall:

We looked at two indicators of crime — self-reported victimization and officially-reported crime — and observed the same patterns in both.

Because we are attempting to uncover trends beyond 2022 in this briefing, we also considered preliminary 2023 crime data released by the FBI in advance of its official annual estimates. For this, we turned to crime analyst Jeff Asher’s recent analysis of the available data. Asher concludes:

“Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded. What’s more, every type of [FBI] Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year…. The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.”

We won’t know how accurate Asher’s analysis is for almost another year, when the FBI releases the 2023 year-end data, but we agree that all signs point to crime continuing to trend downward. Of course, incarceration trends do not track directly with crime trends, anyway; they have more to do with how law enforcement, prosecutors, and judges choose to police and punish certain people, places, and behaviors — and how efficiently they can do so.

Changes in court processes

The 2022 increase in incarceration is actually exactly what we have been anticipating since the dramatic drops we observed early in the pandemic. When populations shrank in 2020 and 2021, we noted that court data showed what happened when courts suspended jury trials and other operations to slow the spread of COVID-19: The number of incoming (new) cases dropped, dispositions (decisions) dropped, and overall case clearance rates (the ratio of new to disposed cases) dropped, creating massive backlogs in the court system. This was a major reason that prison admissions fell so dramatically in the early pandemic.

To see if these data could explain the increase in admissions in 2022, we revisited the same data source, and found that all of those measures have more or less recovered from the slowdowns. Many court systems are still not fully caught up, but by 2022, they had resolved much of the backlog, which in turn caused the shift of many people from pretrial status to disposition, sentencing, and ultimately, admission to jail or prison.

In 2020, many courts shut down jury trials and other in-person operations, creating a backlog of cases that are still being cleared in many states. As more cases work their way through the courts, more people are sentenced to incarceration, resulting in more prison admissions.

Indeed, when we looked through individual states’ own interpretations of their 2022 population changes, most cited slowdowns and backlogs in the court system:

• Virginia: “From mid-March to mid-May 2020, an emergency order issued by the Chief Justice of the Supreme Court of Virginia suspended all non-essential and nonemergency proceedings in the state’s courts. During that time, significantly fewer sentencing hearings were held, resulting in fewer offenders being sentenced to a prison term. Reports suggest that court caseloads have not returned to pre-COVID levels.” (October 2022)
• Wisconsin: “Populations have grown significantly in the past several months as courts are working to address the backlog of cases incurred during the pandemic.” (June 2023)
• Michigan: “…[I]t is projected the prison population will continue rebounding through 2024 due to processing of the court backlog.” (November 2023)
• Rhode Island: “[The Rhode Island Judiciary spokesperson] noted that ‘over the last year the courts were still hearing cases that were delayed or carried over due to COVID-19 procedures and protocols….’” (December 2023)
• Minnesota: “Now, as courts catch up, the prisons are filling to levels not seen in about four years.” (March 2023)

State prison systems and the BOP predict future growth

We also found documents showing that at least 22 states and the federal Bureau of Prisons (BOP) have calculated projections for their prison populations, and they almost uniformly predict further growth. Nineteen states and the BOP expect to incarcerate more people in the years ahead. Only California, Hawaii, and New Mexico expect to incarcerate fewer people in the foreseeable future — and even then, New Mexico anticipates a slight increase in its incarcerated women’s population. (For a list of reports with projections, see the Projections Appendix table.)

This example of a prison system’s population projections, from Colorado, shows that correctional authorities expect the male prison population to return to its pre-pandemic (2019) size by 2026; the report also shows the total population is expected to return to its pre-pandemic size by 2027.

The explanations offered by the states that predict further prison growth share a common theme: in addition to courts catching up with any lingering backlogs, they point to recent changes in legislation that will lead to longer sentences. New laws enacted in the past couple of years have increased penalties for some offenses, created new felony offenses, and made it harder to shorten excessively long sentences.

A Wisconsin report puts this plainly: “one additional potential factor that may influence the population projection… is 2021 enacted legislation, which increased penalties and created additional crimes.” The Oregon Office of Economic Analysis was more specific, pointing to a law passed in 2019 that made it easier to convict defendants of unlawful use of a vehicle, which had resulted in an additional 92 people in the annual prison population so far. While we couldn’t find projections for Tennessee, advocates offered similar explanations for the state’s current prison growth: the “Truth in Sentencing” bill enacted in 2022 put the possibility of parole or early release out of reach for many people, even though the Sentencing Commission determined sentence lengths “with the understanding that people would be paroled.” As a result, people are now serving sentences much longer than intended in the original sentencing laws.

Of course, projections are often wrong, but these reports give us some insight into how state correctional and budgetary agencies are contending with the specter of “tough on crime” politics and policy changes. Having seen the results in the 1980s and 90s, these projections may not be far off.

Returning to ‘business as usual’

The increase in incarceration in 2022 was the predictable outcome of (a) the criminal legal system return to “business as usual” and (b) the return of 1980s- and 90s-style “tough on crime” legislation. It was not caused by a crime wave. We can expect further growth in prison and jail populations unless states and localities redouble their efforts to safely reduce incarceration through criminal legal system reforms such as abolishing cash bail, eliminating incarceration for lower-level crimes (including non-criminal violations of probation and parole), shortening sentence lengths and making those changes retroactive, and expanding access to earned early release and discretionary parole. State and local governments must also make greater investments in strategies that we know protect people from criminal legal system contact: reinvesting in communities impacted by crime, with a focus on jobs, housing, education, and access to community-based mental health and substance use treatment.

Appendix tables

Prison population projections and sources

State and federal prison populations 2019-2023 and sources

New reentry simulator highlights the perils of life after prison

"ReEntry" was created by formerly incarcerated people to communicate the contradictions, difficult decisions, and unexpected events that make staying out of prison nearly impossible for people under community supervision.

by Brian Nam-Sonenstein and Lucius Couloute, December 5, 2023

It’s not easy leaving prison. Most people go through the reentry process with little to no preparation, planning, or support and face a barrage of rules that turn everyday activities into trapdoors to incarceration. But because many people have no idea what it’s like to live under supervision, it’s easy for the media, politicians, and law enforcement to capitalize on the fiction that recidivism rates¹ reflect personal – and not institutional – failure.

Thankfully, a Community Spring program known as Just Income, which is led by formerly incarcerated people, offers a new way to understand these experiences through a simulator they designed called “ReEntry: A Look at the Journey Back to Life.” We think it can help people better understand the profoundly burdensome hurdles and contradictions facing people leaving incarceration.

The “ReEntry” simulator presents a variety of no-win dilemmas that people on probation have to navigate on a regular basis. In this screenshot, you have to decide which presents a bigger risk: missing an appointment with your probation officer or missing work.

In “ReEntry,” you have seven minutes to navigate life on probation while adhering to the terms of your release. Unfortunately, three violations of your probation conditions will send you back behind bars. Such non-criminal or “technical” violations are a significant engine of incarceration for people on probation and parole and, indeed, the system as a whole: supervision violations account for 42% of prison admissions nationwide.

You start the simulator with $60 in your pocket and instructions to meet with your probation officer at regular intervals. But within seconds of your journey, the simulator asks you to “spin the wheel,” which presents you with difficult decisions and circumstances out of your control — many of which pose imminent threats to your freedom. Your $60 disappears quickly, of course, as various fees and everyday costs start to pile up.

For example, the simulator demonstrates how, in many states, a single monthly probation fee would eat up your entire $60, and you’ll be hit with a violation if you can’t pay. What happens when a traffic accident blocks the road on your way home, and you miss curfew? Do you spend your last few dollars getting an ID or try to wing it without one? Do you take your friend’s under-the-table job offer and make the money you desperately need, or turn it down to avoid being punished for unreported income? These scenarios demonstrate the contradictory nature of reentry and shed light on the artificial roadblocks facing those simply trying to get their lives on track.

Soon, it’s time for your appointment with your probation officer. They’re running behind, but you can’t afford to be late for work. Do you wait for your meeting, or do you leave for work? As the simulator continues, it becomes clear why, in states like Colorado, two-thirds of people who had their probation revoked in 2019 had at least one missed appointment (as compared to less than a quarter of those who successfully completed probation).

Reentry is an inherently insecure and uncertain experience; you never quite know which twist or turn might lead you back to jail or prison. Spinning the wheel is, on some level, a profound metaphor for the lack of control and agency afforded to criminalized people.

We’ve run through the simulator dozens of times and have yet to successfully navigate probation—a taste of how “unwinnable” it is for people in the system. Anyone who spends time with “ReEntry” will find themselves feeling frustrated and defeated because that’s the experience of being under supervision. Give it a try and see if you can make it through unscathed.

32 reforms to the criminal legal system ripe for victory in 2024

New report highlights actionable solutions that will shrink the size of the carceral system, promote public safety, and take action on racial inequities in the system.

November 29, 2023

Today, as lawmakers across the country prepare to return to state capitol buildings for their 2024 legislative sessions, we released our annual list of high-impact, legislative reforms that are ripe for victory in the new year. These 32 reforms will reduce the number of people behind bars, make communities safer, and take steps to address long-standing racial inequities in the system.

The reforms focus on nine areas:

• Expanding alternatives to criminal legal system responses to social problems;
• Reducing the number of people entering the “revolving doors” of jail and prison;
• Improving sentencing structures and release processes to encourage timely and successful releases from prison;
• Reducing the footprint of probation and parole systems and supporting success on supervision;
• Protecting incarcerated people and families from exploitation;
• Promoting physical and mental health among incarcerated and formerly incarcerated people;
• Giving all communities equal voice in how our justice system works;
• Setting people up to succeed upon release; and
• Eliminating relics of the harmful and racist “war on drugs.”

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

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

We sent this list to over 600 lawmakers, in all 50 states, from all political parties, who have shown a commitment to reducing the number of people behind bars in their state and making the criminal legal system more just and equitable. As they craft legislation for the upcoming legislative sessions, this list will provide them with actionable solutions to some of the most pressing challenges their states’ criminal legal system faces.

The full report is available at: https://www.prisonpolicy.org/reports/winnable2024.html.

Guilty by association: When parole and probation rules disrupt support systems

Requiring people on supervision to avoid others with criminal legal system contact can actually hinder their success in the community. We found that it’s common for probation and parole agencies to impose these “association” restrictions, tearing apart critical social networks and threatening to lock people up for harmless — and even helpful — interactions.

by Leah Wang, November 8, 2023

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact. Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.¹ Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision. And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date. We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Someone paroled from prison or ordered to probation must navigate the world underneath burdensome and unrealistic rules. Association restrictions may prohibit people on supervision from communicating, working, or living with family, friends, or other community members with a criminal history. If an officer or judge finds they have violated this rule, they could be sent back behind bars. In many states, a parole or probation officer can cut someone off from “associating” with any particular individual at all, due to their wide discretion under state statutes and supervision contracts. (Image by Kevin Pyle.)

Parole and probation conditions outlaw crucial relationships

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.” They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole. As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

In most parole systems, association conditions are standard

While they’re not the most infamous supervision conditions,² association restrictions are incredibly common across probation and parole systems, and impact hundreds of thousands of people. In a recent study, researchers found that over half of the 187 supervision programs they examined (including parole, probation, and electronic monitoring) in 2023 had some regulation about “who people can be around, talk with, or socialize with.” But these rules are especially entrenched in parole systems: A recurring census of standard parole conditions revealed that rules related to “undesirable associates/correspondence” have been used by an average of 30 jurisdictions over each of the six censuses, the first of which was in 1956.³

But when we look beyond standard conditions, it’s clear these restrictions are imposed almost universally. According to a 2019 law review article, nearly all parole jurisdictions (50 states, D.C. and the federal supervised release system)⁴ have association restrictions, whether they are standard or special conditions that could be imposed at any time by an authority such as a parole officer or judge. This valuable survey, which we’ve updated for this briefing, also identifies which categories of people are off-limits for individuals on supervision. (We’re thankful to Professor James M. Binnall for this work addressing association restrictions so comprehensively.) Using Professor Binnall’s categories, we found that some states go to great lengths to control these relationships:

• More than half of jurisdictions (28 of 52) have some form of association restriction that is standard. But even states where it wasn’t a standard condition (California, Colorado, Pennsylvania, Nevada, and Minnesota) had an association restriction spelled out in its optional special conditions.
• Ten states have a problematic “discretionary” condition, where a parole officer, parole board, judge, or other authority can simply decide to restrict interactions with any individual or group of people they claim would undermine their client’s success.⁵
• Association restrictions most commonly prohibit contact with people with felony convictions (7 states) or people with any criminal conviction (10 additional states). Massachusetts and Iowa have a restriction on associating with anyone with a criminal record, which would apply to others on supervision and currently incarcerated people, too. It’s worth noting that an estimated 1 in 3 U.S. adults has a criminal record.
• Fourteen states explicitly restrict association with people described vaguely as “involved in” or “actively engaged in” criminal activity; this restriction often extends to places where criminal activity is or may be happening. Here we included vague restrictions like Mississippi’s “persons of bad reputation” and Alabama’s “persons of disrepute or harmful character.”
• Twelve states restrict association with currently incarcerated people and visiting correctional institutions generally, and eight states restrict other people on supervision. Given how many people in prison report a family history of incarceration,⁶ there are countless family visits and communications that are prohibited as a result of these restriction categories.
• Five states restrict association with purported members of gangs or other “criminal organizations,” who are already tracked in some cities in a separate effort to over-police neighborhoods of color.⁷

In many states, people on supervision can seek permission to associate with specific individuals in restricted categories — to visit a loved one in prison, for example — by asking their supervision officer or through a more formal hearing. But many may decide that these extra hurdles aren’t worth it to be told “no” or to have their interactions even more closely scrutinized. Overall, the landscape of association restrictions is highly repressive, leaving people to navigate reentry without valuable support.

Probation agencies ban certain people from interacting as well

Nearly 3 million people are on probation, the most common type of mass punishment. While we don’t have a complete picture of how the thousands of probation agencies nationwide approach association restrictions, research confirms that some of the largest jurisdictions impose them:

• Georgia, which has the largest probation population in the U.S. at over 347,000, requires people to “avoid persons or places of disreputable or harmful character.”
• The three biggest counties in Texas — Harris, Dallas, and Tarrant counties — also impose this condition on anyone under probation supervision.
• California, which had over 157,000 people on probation in 2021, imposes a standard condition wherein people must “refrain from becoming abandoned to improper associates.”⁸

If these conditions sound a bit archaic and vague, it’s because they are. Association restrictions needlessly complicate life in the community and should be eliminated from supervision rules.

Association restrictions are presumptuous and undermine social networks that are important for reentry

The senselessness and cruelty of association restrictions undermine the very purpose of supervision, which includes helping people get the resources and build the relationships they need to achieve stability in the community. Breaking down some of their biggest harms, we argue that:

1. Association restrictions have it wrong and backward. The idea that someone with even a minor or bygone criminal history will have a negative influence on someone under supervision is unfounded. The myth of the “career criminal” or permanent criminal disposition has been busted, time and time again. Evidence shows that the opposite is true: people actually benefit from associating with those with lived experience. Highly regarded reentry organizations often use “mutual-help” or “credible messenger” models employing formerly incarcerated people as counselors and mentors to others navigating reentry. This supportive, non-judgemental model is shown to have positive impacts on both participants and staff.
2. They are vague. Even when states are clear in categorically excluding whole groups of people, they are comically unclear about what it means to “associate” with those people. This nebulous language makes it difficult to know what counts as an association: Does an interaction with someone’s social media post, sending money through an app, or an accidental encounter at a gas station threaten public safety? It’s also difficult, then, for someone to challenge the legality of an association restriction when the courts can make their own interpretation. According to law professor Fiona Doherty, these restrictions are “purposefully — indeed, rigorously — unclear.”
3. They force people on supervision to live in isolation and fear. Many people plan to live with or receive substantial support from family after being released from prison. But such relationships and living options may suddenly be off-limits due to an association restriction, forcing stressful and costly relocation. Some people on supervision have desperately turned to internet forums, reasonably confused about how their living situation could be prohibited, given the requirement to maintain housing. Their fear and lack of clarity puts them at risk of violating their terms of release and being subject to incarceration — but it may also feel risky to seek answers from their supervision officer. Loved ones, too, are pulled into enforcing and cooperating with these restrictions, impacting many people beyond those with an actual supervision contract.
4. The millions of people in restricted categories make it nearly impossible to avoid prohibited associations. An estimated 24 million people in the U.S. have a felony conviction on record, while an estimated 80 million people have a criminal record of any sort.⁹ And nearly 2 million more people are currently incarcerated, which means they’re off-limits to people on parole in eight states, according to our analysis. Given that 44% of parole jurisdictions¹⁰ restrict at least one of these large categories of people, association restrictions have an outsized impact compared to the little criticism they’ve received.
5. These restrictions disproportionately impact Black communities. We know that Black people are overrepresented everywhere within the criminal legal system, including parole and probation systems,¹¹ and most likely those with criminal records.¹² The sheer scale of overcriminalization, as well as geographic and social segregation that continues to hinder economic opportunity, makes it difficult to avoid regular contact with other people in restricted categories, tearing apart vital relationships and community ties for Black people in particular.

Unfortunately, we don’t know how many people face consequences for violating association restrictions. But as with other over-enforced conditions, association restrictions that lead to any time behind bars are an example of excessive and costly “technical” violations. And judges have imposed some extreme punishments: In Texas, a man on probation was sentenced to four years in prison for being seen near enough to a “crack house” to be in association with people who sell drugs or engage in other illegal activity, thus violating Texas’ condition to “avoid persons or places of disreputable or harmful character.” Another man, on federal supervised release, received 18 months in prison, followed by three more years on supervised release for speaking to a fellow member of his treatment group on the subway.

As supervision technology advances, association is an easy target for aggressive enforcement

Experts studying association restrictions and other onerous supervision conditions warn of the creep of new surveillance technology into carceral systems like probation and parole. Smartphones and location-tracking apps, for example, may supplement older methods like GPS-enabled ankle monitoring, and artificial intelligence (AI) promises “real-time” monitoring of people on supervision. Those engineering or hoping to deploy these technologies may view them as benign or even altruistic developments, but we see them as an ominous new frontier in the enforcement of supervision conditions that are already burdensome.

As law professor Kate Weisburd warns, “There is little doubt that improved surveillance capabilities enhance the ability of supervising agents to detect violations.” The recurring parole census mentioned earlier also sounds the alarm: An “ever-expanding” arsenal of technological solutions, they argue, will lead to “enhanced micro-surveillance” of people on supervision. New technology will undoubtedly appeal to lawmakers as an acceptable mechanism for moving people out of prisons and saving taxpayer money. But as widely understood extensions of carceral systems (rather than alternatives to incarceration), probation and parole shouldn’t be given invasive technologies that expand their reach into people’s lives.

If association restrictions go unchecked as surveillance technology expands, state and local lawmakers will continue to trap people on supervision in cycles of incarceration and being “free.” People who judges or parole boards have already deemed “safe” to release to the community should be able to decide with whom they associate and from whom they seek support, housing, or job opportunities. Association restrictions perpetuate harmful assumptions about people with criminal legal involvement, set people up for failure, and should be abolished as a condition of probation or parole.

Not an alternative: The myths, harms, and expansion of pretrial electronic monitoring

The expansion of pretrial electronic monitoring across 70 counties threatens to undermine Illinois’ groundbreaking Pretrial Fairness Act, despite both the lack of evidence of EM's efficacy and its well-documented flaws and harms.

by Emmett Sanders, October 30, 2023

Illinois recently made history by becoming the first state in the nation to end money-based pretrial detention with the implementation of the Pretrial Fairness Act. In response, the Illinois Office of Statewide Pretrial Services announced the expansion of pretrial electronic monitoring (EM) to 70 of Illinois’ 102 counties, many of which did not have it before. While Pretrial Services touts this as something to be celebrated, the advocates who originally fought for the Pretrial Fairness Act and other scholars have pointed out that this massive expansion of state control undermines the spirit of bail reform.

The Pretrial Services agency’s statement reveals a fundamental misunderstanding of what research and evidence shows about electronic monitoring. As Michelle Alexander, legal scholar and author of The New Jim Crow, recently explained in an impassioned video, electronic monitoring is faulty technology that further embeds systemic injustices in communities of color, creates new avenues of harm, and does remarkably little to increase court compliance or public safety.

Electronic monitoring is not evidence-based

Stakeholders looking to innovate in pretrial policy often look for evidence-based practices—strategies with a documented ability to increase court compliance and positively impact public safety. While electronic monitoring proponents present the technology’s ability to do these things as a forgone conclusion, the reality is that few rigorous studies have been done to examine these claims. However, those that have, such as this new study conducted by nonprofit research group MDRC, find EM neither increased court appearances nor reduced new arrests. As this study notes, people on EM may have more new arrests than those not monitored, as the intense scrutiny of people on EM spotlights even minor infractions that might otherwise go unremarked. Researchers also note pretrial EM creates an entirely new path to incarceration via “technical violations,” which have nothing to do with criminality or public safety, but rather with the impacted person’s ability to navigate a multitude of ambiguous and often draconian conditions. In Los Angeles County between 2015 and 2021, 94% of people on EM who did not successfully complete EM were sent back to jail for technical violations rather than for a new arrest:

Figure 1: From Pretrial Electronic Monitoring in Los Angeles County 2015-2021, (Virani, 2021)

People may even be charged with felony escape for violating conditions or tampering with the device, and serve years in prison even after being found innocent of the charges that garnered them pretrial EM to begin with.

Electronic monitoring does not reduce jail populations

While EM programs are often depicted as replacing traditional brick-and-mortar incarceration, the reality is these programs are often used to augment and expand the reach of incarceration and may have little effect on the population of the jail itself. EM programs around the country have massively expanded, often in the wake of successful pretrial reform efforts. This has prompted advocates such as the No New SF Jails Coalition to include halting the expansion of EM in their decarceration demands, as they did when they finally closed the 402-bed jail at 850 Bryant in 2020. Nevertheless, San Francisco’s jail population was back up to 1,061 at last count, even though the number of people released on EM grew from 60 in 2016 to 1,659 by 2021. Similarly, the Harris County, Texas jail population of 9,533 reported for October 2023 is even higher than it was before the county’s EM usage exploded from 27 in 2019 to nearly 4,000 in 2021. Ultimately, jail populations in many jurisdictions have remained essentially the same or have even increased while EM usage has skyrocketed, significantly increasing the total number of people under surveillance:

Figure 2:Data on EM and jail populations were only available through 2021. As we note in the text above, however, average daily jail populations in these places are significantly higher at present than in 2021.

Electronic monitoring uses faulty technology

Proponents of EM also downplay the reality that the technology itself is unreliable. Signal drift (the propensity of GPS to place people where they are not), interference from architecture, and data issues are widespread and persistent:¹

• In May of 2017, Wisconsin’s Department of Corrections lost GPS signals for the 864 people electronically monitored roughly 57,000 times, translating to more than 2 false alarms per person per day.
• In 2021 researchers in Chicago discovered that of the tens of thousands of alarms received each month, roughly 80% are non-actionable.
• A 2021 article revealed a massive security breach with EM company Protocol which resulted in the private data of thousands under Chicago’s EM program being exposed online.

None of this prevents monitored people from being woken up in the middle of the night to be harassed, handcuffed, and even arrested in their own home after being falsely accused of absconding. Ultimately, faith in EM is as misplaced as Milwaukee advocate Amari Jones’ GPS signal when it identified him as being in the middle of Lake Michigan.

Harms of electronic monitoring

While little evidence exists to justify the hundreds of millions of dollars spent on electronic monitoring contracts around the country each year, firsthand accounts of the harms inflicted by EM are well-documented and plentiful, with folks such as long-time researcher and activist James Kilgore leading the charge.

Electronic monitoring creates huge financial burdens for many in already economically precarious positions

Electronic monitoring is often paired with conditions that restrict people’s ability leave their homes, thus severely limiting their ability to secure and/or maintain employment. People on EM may have to go through extremely complicated and lengthy processes just trying to gain approval to go to a job interview, and they may be able to work only on a fixed schedule or in a fixed location, precluding the flexibility required to work in industries like food service, waste management, or construction. Of course, these are some of the main industries in which many people impacted by the criminal legal system are able to find employment—when they can find employment at all.

Though some jurisdictions, including Illinois, have eliminated user fees for electronic monitoring, many programs charge anywhere from $1.50 to $47 per day, with a potential initial enrollment fee of up to $300 for the “privilege” of being imprisoned in one’s own home instead of in a jail or prison cell. Some have challenged these rates as extortion, particularly as agreeing to pay these fees they can ill afford may be the only way some can get out of jail to take care of their children or receive medical care.

Electronic monitoring limits access to healthcare while exacerbating or creating physical and mental health issues

Electronic monitoring doesn’t just jail people in their homes and strain their finances, it can also negatively impact their health—both physical and mental. People on EM often report being denied permission to simply go to the doctor or to the pharmacy to have life-saving prescriptions filled.

Moreover, the devices themselves can be a source of acute physical and mental trauma. A survey of individuals subjected to EM by ICE found that an astonishing 90% experienced harm to their physical health due to their time on EM. Those monitored may experience physical harms such as open sores and even electrical shocks. Likewise, the negative impact on mental health created by the stigmatization and isolation imposed by the devices has often been noted by those subjected to EM, with some reporting depressive and even suicidal thoughts. Others have reported that EM can be a trigger for those combatting addiction issues, which could potentially lead not only to new offenses, but relapse, overdose, and even death.

Electronic monitoring reinforces racial disparities and undermines families and communities of color

While the focus here has been primarily on the individual monitored, many harms are also inflicted upon the family and the overwhelmingly Black and Brown communities from which they come. Electronic monitoring impedes a person’s ability to take their kids to school or to doctor appointments, to engage in key family events such as the birth of the child or a funeral, and, as some have noted, has been used in an attempt to turn those who seek justice for their communities into “cautionary tales” for others in order to undermine social justice movements.

Conclusion

While this litany of the harms of electronic monitoring is expansive, it is far from exhaustive. As those directly impacted have told us time and again, there is no part of life that EM does not make more difficult, and as studies have shown there is little evidence to support EM as a viable alternative to incarceration. These are facts the Office of Statewide Pretrial Services should have taken into consideration as Illinois began its move into the realm of Pretrial Fairness.