August 14, 2024: Many jails nationwide are now video-visit only, meaning there are no longer in-person visits allowed between incarcerated people and their loved ones, including children. Communications Strategist Wanda Bertram will be a panelist on a webinar hosted by the Center for Just Journalism to discuss the impact of these bans and how journalists can cover them.
One of the many reasons mass incarceration persists is because people too poor to afford their own lawyers are denied meaningful representation in court. This injustice happens because public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened.
Public defender offices, assigned counsel, and contract counsel
Three models, similar challenges.
As the Brennan Center explains: In the United States, “there are three main forms of indigent defense delivery: public defender offices, assigned counsel, and contract counsel.” In some states, local governments establish and staff public defender offices. In others, courts assign private attorneys to represent people (who could not otherwise afford an attorney) on a case-by-case basis. In places utilizing contract counsel, the court assigns some or all cases to private attorneys on a flat-fee basis. The questions in this briefing are — by and large — relevant to all three models.
While every state and local public defense system is unique, we’ve identified nine urgent and common problems that plague public defense systems nationwide. Unfortunately, there isn’t enough current data for us to explain how every state stacks up on these issues, but we’ve done the next best thing: We’ve created a list of nine questions you can ask to assess where your state’s public defense system might need help, and we’ve highlighted helpful and detailed resources that can assist reform efforts.
Use these questions as a guide to learn whether your state public defense system is facing common problems and what can help to solve them:
Does an independent agency oversee public defense in your state? As the Sixth Amendment Center has explained, it is critical to have a statewide agency responsible for both “the oversight and [the] evaluation of defender services.” Such agencies must have authority to create and enforce standards for effective representation (such as those related to workloads, supervision, and performance). Alongside these supervisory duties, oversight agencies that have meaningful independence1 can also insulate public defense systems from the whims of political pressure or judicial interference, which enhances the long-term stability of public defense provision.
Notwithstanding the importance of such agencies, as recently as 2017, 16 states lacked any such entity, and more than half the agencies that did exist lacked independence.
Does your state shoulder the cost of public defense or leave the burden to local governments? As the Brennan Center notes, public defense “has always been and remains an unfunded federal mandate.” Where states don’t assume financial responsibility, local governments are left to cover the cost.2 As recently as a few years ago, 11 states provided “minimal to no state funding” for public defense, leaving their local governments to shoulder the entire financial burden. By contrast, 27 states relieve local governments of “all responsibility for funding right-to-counsel services.”
As the Sixth Amendment Center succinctly explains: “State funding of indigent defense services has proven to be the most stable for two principal reasons. First, local governments have significant revenue-raising restrictions placed on them by the state while generally being statutorily prohibited from deficit spending. Second, the jurisdictions that are often most in need of indigent defense services are the ones that are least likely to be able to afford it.”3
Does your state increase public defense funding when demands on public defenders increase? Just as important as whether public defense funding is adequate at a moment in time is whether that funding grows when other parts of the criminal legal system are expanded. For example, is funding for police-worn body cameras accompanied by funding to help public defenders review collected camera footage? If new conduct is criminalized, is there an increase in public defense funding to deal with the increased criminal caseload? As the American Bar Association notes: “No part of the justice system should be expanded or the workload increased without consideration of the impact that expansion will have on the balance and on the other components of the justice system.”4
Does the way attorneys are compensated create perverse incentives? In places without public defender offices, counsel is provided in several ways. Sometimes, courts appoint counsel on a case-by-case basis. As the Brennan Center has explained, appointed counsel are frequently compensated at very low hourly rates, and total compensation is often limited by fee caps that restrict how much attorneys can earn per case. Similarly, courts may hire private attorneys to “represent an unlimited number of clients for a set fee.” Under either model, such arrangements “incentivize attorneys to do as little work as possible on each case…because all costs for a case, such as investigation or consulting expert witnesses, come out of the same fee and thus directly eat away at whatever profit the attorney makes.” Accordingly, many legal groups (including the ABA) recommend banning flat-fee contracts and restrictive fee caps–nonetheless, these approaches remain the most common method of providing and funding public defense across the country.
Do fines and fees fund public defense? Some places (like New Orleans) cover the cost of operating the criminal legal system through the collection of fines and fees. Public defenders, prison and jail expenses, probation and parole services, GPS monitors, and court processes can all be funded in this way. However, this “user-funded” approach is both cruel and unstable. Many people saddled with fines and fees are unable to afford them, and being forced to pay can push people deeper into debt, subject people to predatory debt collection practices, and even result in incarceration. Moreover, given widespread inability to pay, revenue from fines and fees is an unstable source of funding for public defense offices.
Some places have started to abolish such fines and fees and to commit to more reliable funding for public defense. For example, California recently abolished many criminal legal fees, including the fee charged for representation by a public defender.5
Are there meaningful, enforceable workload limits for public defenders? One of the most widespread and pernicious problems facing public defenders is the burden of crushing caseloads. To address such problems, states must adopt realistic and enforceable workload standards. However, few jurisdictions have adopted any such limits.
Importantly, it is also critical to note that some of the most widely promulgated national standards weren’t actually “based on any empirical research and were set too high” initially, so it is critical that states adopt standards tailored to the reality of criminal practice in their own jurisdictions. As the American Bar Association has explained: “National caseload standards should [never] be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney’s nonrepresentational duties) is a more accurate measurement.”
Does the state give public defenders access to the information they need to do their jobs effectively? While prosecutors are required to turn over exculpatory evidence to the defense, violations of this rule are not uncommon. In particular, defense attorneys often find it difficult to obtain information about prior police or prosecutor misconduct that may be relevant to their cases. This reality can mean that law enforcement officials with a history of abusing their power and prosecutors who shirk their ethical obligations can continue to do so. However, states can remedy this problem by making information about police misconduct and prosecutorial misconduct available to defense counsel or to the public at large. For example, California recently passed a law intended to make police misconduct records publicly available. And states like Ohio have passed open-file discovery laws, which require the prosecution to share everything in their file with the defense — a practice that can lead to “a more efficient criminal justice system that better protects against wrongful imprisonment and renders more reliable convictions.”
Is counsel appointed before a client’s very first court appearance, or is appointment delayed until later in the process? Increasingly, it is clear that justice is better served when defense counsel is involved in the earliest stages of a criminal proceeding. Ideally, this will mean meeting a client prior to arraignment (the stage at which charges are formally announced) and representing them at that hearing and/or at any prior appearance that might occur. As one project in California demonstrated, meeting clients within hours of an arrest can increase the chance that someone will be released on bail, which means that someone won’t remain incarcerated while their case makes its way through the system. Another California pilot program found that, where public defenders represented clients at arraignment, defendants spent less time in custody, the county benefited financially, and due process was better safeguarded. 6
Does your public defense system provide holistic defense for clients who need other legal (or even non-legal) assistance? For many people summoned to criminal court, the charges pending against them are only one of numerous challenges they face. Collateral consequences like deportation or losing access to social services may flow from a conviction, and may even result from merely facing criminal charges or being detained. Furthermore, issues like a pending eviction, a denial of public benefits, or a need for counseling may also predate the filing of any charges.
Exemplary public defense systems across the country are finding ways to help their clients and advocate for their rights even beyond representing them in criminal proceedings. For example, in Alameda County, the public defender’s office launched an immigration representation project through which the office now represents noncitizen clients in subsequent removal proceedings and helps them obtain lawful permanent resident status in the United States. And the Bronx Defenders Office commits “to addressing clients’ most pressing legal and social support needs” and pledges to begin representation by “identifying [and supporting] the full range of client needs.” Likewise, some public defender offices have started to embed social work teams within their departments. As one study found, the involvement of social workers has a positive impact on “sentencing, attorney-client relationships, defendant experiences with the court systems, and connecting clients to community services, as well as building court actors’ knowledge of services available in their own community.”
Conclusion
Even an excellent public defense system in every state would not, on its own, end mass incarceration, but ensuring that every person accused of a crime has satisfactory assistance of counsel would certainly help. As many others have noted before us, the constitution’s promise that every criminal defendant has the right to legal counsel has never been a reality in this country.7
Today, at least 4.9 million people are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can’t afford their own lawyer. Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist.
Footnotes
To be “meaningfully independent,” an oversight agency might (for example) have members appointed by diverse authorities, such that the agency is not controlled by any one branch of government. ↩
The cost of a public defense system includes not only compensation for attorneys, but also funding for “technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts.” ↩
A report from Gideon at 50notes: “Without adequate state financial support, counties must rely on property tax generated income to support public defense services. In localities with poor economic bases, the counties are hard-pressed to provide adequate services (and are more likely to have a higher percentage of people qualifying for such services).” ↩
The ABA and other organizations (as well as vocal public defense leaders) have recommended that jurisdictions ensure funding parity between public defenders’ offices and district attorneys’ offices. While pay or funding parity with district attorneys’ offices does not, on its own, ensure adequate funding for public defense, it is certainly a meaningful place to begin. ↩
As recently as 2014, 43 states were charging fees for representation by a public defender — representation that, by law, is available only to people who are indigent. ↩
For a useful discussion of the benefits of having “counsel at first appearance,” see this report by the National Legal Aid and Defender Association and the Safety and Justice Program. ↩
The constitution requires states to ensure that people facing criminal charges are provided with adequate counsel. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). Despite this constitutional requirement, many people facing criminal charges still lack adequate access to counsel. Along these lines, Professor Paul Butler notes that, at its worst, Gideon “has not improved the situation of most poor people, and in some ways has worsened their plight” because it “provides a degree of legitimacy for the status quo.” ↩
Locking up the most medically vulnerable people in our society has created a public health crisis not just inside prison walls,1 but in the outside community and across the country: The health of individuals, families, and entire communities is clearly associated with incarceration.
That’s according to a recent study from a team of researchers from the University of California – Los Angeles, University of Massachusetts – Amherst, Yale School of Medicine, University of Cincinnati College of Medicine, Duke University, and Washington University in St. Louis, which reveals how strongly incarceration is associated with family member health and well-being, as well as with racial disparities in health and mortality.
In the study, Exposure to family member incarceration and adult well-being in the United States, researchers found that people who have an incarcerated or formerly incarcerated family member2 consistently rate their health and well-being lower than those without a family history of incarceration, and have an estimated 2.6 years shorter life expectancy than those with no incarcerated family members, even when adjusted for demographic characteristics like race, household income, gender, and age.
This groundbreaking study was based on a nationally representative sample3 of individuals who rated their own physical health, mental health, social well-being, and spiritual well-being on a scale from zero to ten. Their responses were then scored to categorize the respondents as “thriving,” “surviving,” or “suffering” in each area, as well as in a comprehensive and holistic category of “overall well-being.” Based on the health differences reported by people with and without incarcerated family members, the researchers then estimated the changes in life expectancy associated with family member incarceration.
How exactly did researchers measure well-being and estimate life expectancy?
Some of the tools used in this study are specific to the public health world, so we’ve done our best to outline their purpose and explain how they are used:
The Cantril Self-Anchoring Striving Scale asks respondents to imagine a ladder with steps numbered from zero at the bottom (indicating the worst possible life for the respondent) to 10 at the top (indicating the best possible life for the respondent) and to identify where on the ladder they currently identify themselves and where they think they will be on the latter in five years. This is a widely used and validated tool for measuring population health and well-being as a part of the 100 Million Healthier Lives Adult Well-Being Assessment.
To calculate the changes in life expectancy reflected by the results of the self-reported health measures in the Cantril scale, the researchers used the validated Life Evaluation Index. For a subset of the population (in this case, people with incarcerated family members), the Life Evaluation Index can be calculated by subtracting the percentage of respondents who were classified as “suffering” from the Cantril Scale from the percentage of respondents who were identified as “thriving” from the scale and multiplying that result by 100. An increase of 1 standard deviation in the Life Evaluation Index reflects a 1.54-year longer life expectancy at the population level.6
The researchers broke down their results by demographic categories, allowing us to see how the impact of family incarceration on well-being varies by age, gender, race and ethnicity, education level, household income, housing type, marital status, family size, and the respondent’s own history of incarceration or substance use disorders. The results were further broken down to how the effects of family incarceration differ depending on whether it’s an immediate family member4 or extended family member5 that was incarcerated, on the length of their incarceration, and on the number of incarcerated family members (the impacts were greatest for those with multiple incarcerated immediate family members).
In this briefing, we discuss two types of analyses conducted by the researchers. First, the researchers analyzed the demographic differences between people with incarcerated family members and people without incarcerated family members, giving a clearer picture of just who is most likely to experience family member incarceration. Their analysis shows stark racial disparities in family incarceration, as well as differences in physical and mental health between those who have incarcerated family members and those who do not.
Second, the researchers isolated the impact of incarceration on life expectancy, by presenting a statistical analysis of their findings that accounted for differences in age, gender, race and ethnicity, education level, household income, housing type, marital status, family size, and the respondent’s own history of incarceration or substance use.
People with incarcerated family members have poorer health outcomes
We already know that having a family member incarcerated can cause financial instability, reduce social support, and increase the burden on caregivers. Studies have also shown that women with incarcerated partners experience depression, hypertension (high blood pressure), and diabetes at higher rates than those with non-incarcerated partners, and children with incarcerated parents are at increased risk for mental health problems and substance use disorders, which have long-term impacts on health.
This new study, however, is the first to look at how the incarceration of a family member is associated with overall well-being, using a comprehensive, holistic measure of well-being (see sidebar for more details on measuring well-being). And the findings show that people with incarcerated immediate family members – such as a parent, partner, child, or sibling – are less likely to report good physical and mental health and less likely to rate as “thriving” in terms of overall well-being, all else being equal.7 A “thriving” score overall or in any subcategory (like physical health or mental health) is significant, because it is strongly correlated with fewer health problems, fewer sick days, fewer negative emotions (worry, stress, sadness, anger) and more positive emotions (enjoyment, interest, happiness, respect).8
People with three or more incarcerated immediate family members are less likely to report “thriving” mental and physical health as compared to people with fewer incarcerated family members and those without any incarcerated family members. Those who do not meet the criteria for “thriving” scores are more likely to report difficulty accessing basic food and shelter, more likely to report health concerns and physical pain, and have less access to health insurance and care. These findings do not adjust for demographic characteristics like race, gender, or age.
A demographic analysis of people with incarcerated family members
This study provides further evidence of the strong overlap between overcriminalized communities and people experiencing disparities in health care. The study found that individuals with any immediate or extended family member incarcerated were more likely to be Black, live in a low-income household, have a history of a substance use disorder, and have a personal history of incarceration.
That Black families are disproportionately likely to have had a family member locked up is unsurprising, given the well-documented racism in the criminal justice system and the rampant racial disparities in prisons and jails. Compared to white respondents, Black respondents were more than twice as likely to have multiple family members incarcerated and over eight times more likely to have had an immediate family member incarcerated for at least a decade.9
In the 2018 Family History of Incarceration Survey, Black people were overrepresented in the number of people who reported having an incarcerated immediate or extended family member, having a family member incarcerated for over 10 years, and having 3 or more incarcerated family members. Black people make up 40% of the incarcerated population, but only 13% of the general United States population and Black families, regardless of individual involvement with the criminal-legal system, lose their loved ones to prisons and jails at higher rates than their white counterparts. These findings do not adjust for demographic characteristics like gender, income, or age.
Incarceration reduces life expectancy of family members, not just those locked up
A 2016 study from Professor Christopher Wildeman found that the sheer magnitude of mass incarceration in the United States has shortened the overall U.S. life expectancy by 2 years, and that each year in prison reduces an individual’s life expectancy by about 2 years.
This new study from 2021 shows that not only does incarceration impact the population-level life expectancy and the life expectancy of individuals behind bars, but it also impacts families and communities. People with one immediate family member who has ever been incarcerated lose 2.6 years of life expectancy, and people with more than 3 immediate family members with incarceration histories lose almost two times as many years (4.6 years) off their life expectancies, regardless of age, race/ethnicity, gender, income level, housing type, family size, or personal history of incarceration or substance use.
This study is the first to identify the extent to which incarceration is associated with the overall well-being and lifespan of an incarcerated person’s children, spouses, parents, and grandparents. Nationally, an estimated 45% of people have an immediate family member who has been incarcerated and 35% of people have an extended family member with a history of incarceration–suggesting that mass incarceration harms the health and well being of tens of millions of Americans, regardless of their personal involvement in the justice system. The study’s authors conclude that decarceration efforts could have wide-ranging outcomes in terms of national health and life expectancy. Their findings confirm what people with incarcerated loved ones already know: far from keeping people safe, prisons and jails are public health disasters, and closing them is imperative to public health.
Footnotes
People incarcerated in prisons and jails are more likely to have health conditions that shorten their life expectancy, like lung disease, heart conditions, diabetes, renal or liver disease, and other immunocompromising conditions. ↩
For the purposes of discussing this study, “an incarcerated family member” refers to an immediate or extended family member that was incarcerated at any time. These data do not differentiate between currently or formerly incarcerated. ↩
The sample used in this study was a cross-sectional, nationally representative sample of respondents from the 2018 Family History of Incarceration Survey. 2,815 individual respondents were included in the analysis of this study. ↩
Immediate family members are defined as parents, partners, siblings, or children. ↩
Extended family members are defined as grandparents, aunts or uncles, nieces or nephews, cousins, parents- or siblings-in-law, or godparents. ↩
For more details about the Cantril Scale and the Life Evaluation Index, see Arora, A., et al., 2016. ↩
The researchers note that the association between immediate family member incarceration and “thriving” remained statistically significant after adjusting for age, gender, race/ethnicity, education level, household income, housing type, marital status, family size, and the individual respondents’ history of incarceration or substance use disorders. The association between extended family member incarceration and “thriving” was no longer statistically significant after adjusting for respondents’ own incarceration history and immediate family incarceration history. ↩
These findings discussed here are not adjusted to account for age, gender, ethnicity, education level, household income, housing type, marital status, family size, and the respondent’s own history of incarceration or substance use disorders. Rather, these findings are a comparison between two groups of respondents: the percentage of white respondents with incarcerated family members and the percent of Black respondents with incarcerated family members. ↩
How law enforcement and jail architects almost duped taxpayers into approving a new jail far bigger than the county needs, by offering biased analysis and misleading arguments.
We’ve called on counties before to ask the right questions before deciding to build a costly new jail, because history has shown that expanded jails are quickly filled with people who wouldn’t have been jailed before, with serious personal and community consequences. A recent jail expansion proposal in Otsego County, Michigan now shows us what happens when a county either doesn’t ask those key questions about how its jail is used – or doesn’t offer the public good answers.
Correctional, law enforcement, and court officials in Otsego County, a northern Michigan county with a population of about 25,000, have been pushing to expand their 34-bed jail for fifteen years. They’ve solicited at least three studies to evaluate local correctional systems and recommend solutions to reduce jail overcrowding. So why aren’t voters convinced of the need for a $30 million, 120-170 bed jail? We looked at the arguments offered to the public and quite simply, the arguments aren’t convincing to anyone who doesn’t build new jails or lock people up for a living.
The worst jail assessment we’ve ever seen
In its most recent attempt to justify a much-bigger jail, the county enlisted an architectural firm to conduct a “feasibility study.” The architects were not criminal justice experts – and it shows.1 The 13 pages of the report dedicated to “analysis” rationalizing the need for a bigger jail are heavy on charts and light on analysis; the 30 pages of architectural and construction plans that follow show where the authors’ expertise and priorities lie. The “Analytics” section of the report includes many charts and arguments that nevertheless fail to advance the case, including:
Sample image from the architects’ report. Why does the scale of this graph appear to change in 2019, so that 24,985 appears lower than 24,665? And why does the chart show the population at 10-year intervals except for 2018 and 2019? What is the community supposed to take away from this inscrutable chart?
Four charts on county population projections through 2049, ostensibly meant to tie the need for a 253% increase in jail space to the county’s current 0.11% annual growth rate (and some of these charts are nonsensical, as shown in the screenshot here);
A summary of annual court caseloads from 2008-2018, which shows a trend of decreasing caseloads over time, and also concludes “no apparent relationship to population growth” and “projection modeling does not indicate probability/necessity for future court [sic] within the study milestone periods”;
A summary of jail bookings, average daily populations, and average length of stay from 2009-2012 and 2014-2018, showing that the jail typically operated at between 100-115% capacity before 2013, but has operated at 70-88% capacity for four out of five years since;23
A confusing array of jail population “projection models” based on average daily populations from different years of historical data: The model that includes all nine years of past data predicts an average daily population of 29 people or less through 2049; the model based on only the three most recent years of data projects a maximum average daily population of 66 people in the jail in 2049. There is no discussion of why the county should base its plans on one model over any other, and you can probably guess what projection the authors base their recommendation on (yes, the biggest one).
Scant attention to the composition of the jail population, making it hard to see how the jail is currently used: There is one chart about the gender breakdown of the daily population. There is no analysis of the population by offense type, sentence length, classification levels, or conviction status. The closest the report gets to evidence-based analysis of how the jail is currently used is one chart showing that, of all the people booked into the jail between 2009-2018, about half were sentenced and half were unsentenced.
The most damning sentence in the architects’ report (our highlighting added) calls the jail population data “unreliable,” even though that data makes up most of their own Analytics section.
The most telling parts of the consultants’ report are its conclusions that the jail population data are “unreliable” and “invalid,”even though those data make up most of the Analytics section. If the data are really “unreliable” or “invalid,” why did the consultants include them and make so many charts about them? Was it simply to give their recommendations the appearance of impartiality and rationality?Instead of basing their recommendations on the data available and presented to the public, the final recommendation for the new jail size is based largely on “interviews with justice and law enforcement personnel” and the “experience of the study team.” And, of course, both groups – justice and law enforcement personnel and the team of architects and engineers – stand to benefit from building a bigger jail.
Law enforcement and judicial officials complained to the consultants that, with the jail often near maximum capacity, they “have one hand tied behind their back,” and have been forced to come up with alternative sanctions instead of jailing people for all of the offenses they’d like to. Ironically, many of the alternatives officials complained about being forced to use are widely considered “best practices” today:
Avoiding the misuse of the jail to lock people up for mental health or substance use disorders
Local officials often dodge the question asked by community leaders: “If we let you build a bigger jail, will you just fill it?”
In Otsego County, instead of expanding upon the alternative sanctions already in place, law enforcement and judicial officials estimated that if they had a bigger jail, they “could now have 90-100” people in jail instead of 30-40. And just who are these residents that they “can’t” lock up now, but would, if only they had a bigger jail? According to the feasibility study, these include 45 “potential probation violators” and 20 people who would – with the current system – be sentenced to the alternative work release program. Their intention is clear: if taxpayers let them build a bigger jail, they can and will fill it.
Community members have received mixed messages from local officials in response to their concerns that the new jail will immediately be filled once police have a place to book more people and judges have a place to detain and incarcerate them. In a local newspaper series about the need for a new jail, the county jail administrator said that’s “not necessarily true”: “We have great judges and I don’t see them being overzealous and automatically going to the jail commitment.” But in the same article, one of those local judges commented:
“What it comes down to is it hampers my ability to do my job, which is to protect our community by creating this deterrent effect and this punishment. If I’ve got to give this person work camp or probation, I’m not accomplishing that goal because it doesn’t have the same effect as sitting in jail for 30 or 60 days.”
It’s true that sitting in jail has a different effect than sentences that allow people to remain in the community, such as probation – but the evidence is clear that the costs of locking people up are much greater than the negligible (if any) deterrent effect of incarceration:
A pair of studies comparing two groups of people convicted of felonies in Michigan – some sentenced to prison and some sentenced to probation – found that (1) incarceration did not reduce the likelihood of future violent crimes after release and (2) incarceration increased the odds of re-incarceration, mainly due to technical violations of post-release supervision. In other words, compared to probation, incarceration had no deterrent effect, but did lead to more incarceration for low-level offenses and violations.
Even a short stint in jail can seriously destabilize individuals and families: In a study of people detained in jail pretrial before being released on bond, those who were jailed for three days or more were almost 2.5 times less likely to be employed, 40% more likely to struggle with housing instability, and 59% more likely to report negative impacts on their children compared to people jailed for less than three days, when surveyed after release.
Short sentences to incarceration lead to long-term employment problems: Another study found that young people who were incarcerated after being convicted for the first time were more likely to be unemployed afterwards than similar individuals who were not incarcerated. Even though the average sentence length for the incarcerated individuals was only about four months, the effect on employment lasted for up to six years after their release.
Another bad-faith argument from jail proponents: “But we have outstanding warrants!”
In addition to the seriously flawed “feasibility study,” Otsego County law enforcement also point to “over 1,100 outstanding warrants” as evidence that they need a bigger jail. However, a closer look at those warrant details shows that only a fraction are clearly related to public safety. Additionally, many of the underlying offenses are no longer criminal or jailable under Michigan’s recent jail reforms – meaning that even with a bigger jail, very few are likely to actually lead to jail time as our closer look at the warrant list reveals:
Our analysis of the county’s backlog of warrants. We took a close look at the list of outstanding warrants jail proponents point to as evidence that more jail space is needed. In our analysis, we paid particular attention to how old the warrants are, whether or not they are “bench warrants” meant to bring someone back to clear up court matters, whether or not the underlying offenses would likely lead to jail time under Michigan’s recent jail reforms, and whether the offenses are related to public safety. The center image shows just a sample page of the 36-page “warrant details” document, and the highlighted lines of text are illustrative examples of our overall findings, explained in the surrounding text boxes.
Proponents of the Otsego jail expansion rely on some thin and out-of-date arguments to make their case. For example, they point to a summary of drug cases initiated by a regional undercover drug task force that includes Otsego County, which shows that the task force initiated an increasing number of cases in Otsego County from 2016-2019, with a high of 56 cases in 2019. That summary does not offer a detailed breakdown of these cases, but a local news report shows that in 2018, the task force’s work – across all seven counties – most typically involved prescription opiates and marijuana, which accounted for 44% of all cases that year.4 Now that Michigan has legalized recreational marijuana use, possession, and licensed sale, the county can expect few, if any, new marijuana arrests. And of course, in 2021, no one would argue that jail is any kind of solution for the prescription opioid problem.
How the county’s jail assessment went wrong and how other counties can get it right
What a national jail planning expert has to say
We asked David Bennett, one of the authors of the Jail Capacity Planning Guide, to review Otsego County’s recent “feasibility study,” and he, too, concluded that it fell far short of a comprehensive assessment. He writes:
We asked David Bennett, one of the authors of the Jail Capacity Planning Guide, to review Otsego County’s recent “feasibility study,” and he, too, concluded that it fell far short of a comprehensive assessment. He writes:
“Jail planning can no longer use forecasting exercises based on current practices of a criminal justice system. Using this process assumes that the criminal justice system is operating as effectively as possible and that no changes will occur in the future. Both of these assumptions are false.
The system procedures needs to be analyzed and the analytics prepared to measure system effectiveness. New and innovative additions need to be considered to address the various populations in a county jail—pretrial inmates, post trial prisoners, and those in jail on holds. The mentally ill and substance abusers need unique programs designed for their specific needs and to minimize the threat of their returning to the system. Front-end diversion programs need to be implemented. A Pre-Trial Services program is critical to assessing front end decision making. Specific programs for the sentenced population to ensure coordination with out of custody programs is necessary to prevent released inmates returning to custody.
The efficiency with which the system processes cases has a lot to do with the number of jail beds needed. If changes can be made that reduce the length of time it takes to resolve cases fewer beds will be required and better outcomes will occur without impacting public safety.
All of the above needs to be included in the development of a criminal justice system master plan that includes that need for the number of jail beds. Relying upon incarceration rates to determine the number of jail beds needed for the future will guarantee that a new jail will fill up and simply exacerbate the problems of jail overcrowding.”
The National Institute of Corrections – part of the U.S. Department of Justice – has a Jails Division for the express purpose of offering technical assistance, information resources, networks and training to local jail systems – including help with jail and justice system assessment and planning. Among the agency’s numerous publicly available resources is a Jail Capacity Planning Guide, which emphasizes “a systems approach.” The authors emphasize the need to look at the ways various parts of the local justice system impact a jail’s population and how the jail is used.
A “systems approach” looks closely at all the moving parts that impact jail populations, instead of focusing on those populations alone. This makes sense: Jails are just one facet of a community’s criminal justice system, and any of those facets can be changed – not just jail size:
Laws determine which offenses are “jailable” and which should result in a citation or summons at most.
Law enforcement use their discretion to arrest, issue citations, connect people with services, or simply let people go.
Prosecutors make charging decisions and can offer diversion programs or decline to prosecute.
Judges and magistrates order people detained or released pretrial, impact court processes, and make sentencing decisions.
Court systems, including data and information sharing systems,affect how long a case takes to process, and therefore how long people are detained pretrial or before sentencing.
Finally, jail administrators can also influence who is held in the jail, under what conditions, and for how long.
Unfortunately, the county’s “jail first” approach looked at the jail population alone as evidence of whether the jail is “big enough.” A community should get a chance to understand how all of these different parts of the system are contributing to the jail situation before taking the huge and irreversible step of sinking tens of millions of taxpayer dollars into a bigger jail that will lock up more of their own.
Conclusion and recommendations: Separating what law enforcement wants from what the community needs
The good news in Otsego County is that despite the aggressive public relations campaign launched by its proponents, taxpayers were not convinced and voted down a tax increase to pay for the new jail. But the argument will surely be back, and the whole experience is a warning to other communities.
Advocates working to prevent criminal justice system expansion should anticipate that local criminal justice officials may frame their professional wants as community needs. But law enforcement have a singular perspective on community needs, a view colored by the particular anxieties, frustrations, and mandates of their job. The power to arrest and detain is also a key tool of the trade. Police and sheriffs are bound to favor solutions that enhance those powers – including more jail space to lock people up for lower-level offenses, probation violations, failure to appear at court hearings, and “quality of life” issues (which Otsego County officials seem to hint at with a mention of the “transient” population).
But most community members do not stand to benefit from a bigger jail or the increase in arrests and detention that are certain to come with it. Yet they are the people expected to pay for the multimillion-dollar project and the hundreds of thousands of dollars in additional annual operational costs.
Of course, the community does need improvements to its justice system. It needs court matters to be resolved rather than being converted to bench warrants that hang over residents’ heads, threatening to send them to jail for offenses as minor as old traffic tickets. It needs more non-jail sanctions to respond to probation violations and low-level offenses, and yes, it needs safety improvements for jail staff, incarcerated people, and their visitors. But none of these needs requires a big, new jail. The community has also made clear, through its vote, that it wants to keep jail-related costs as low as possible, now and moving forward. Ultimately, what the community needsis an unbiased, evidence-based, affordable plan to improve their justice system, starting with an open conversation about what that means to residents versus law enforcement. In all likelihood, the community isn’t looking to lock up more people, but rather for a more robust system of alternative responses and community resources.
We recommend that any county considering a new jail should first:
Engage the community in conversation about their public safety priorities, including a broad cross-section of community members, not just public safety and administrative officials. This conversation should consider the human costs as well as the economic costs of increasing arrests and jail detention. Any information cited by justice system officials should be provided to community members – with as much detail as possible – to analyze independently.
Build upon the jail alternatives the county has already implemented to keep people out of jail. For example, Otsego County already operates a drug court program and an alternative to jail, the sheriff’s “work camp” (day reporting program). At least as recently as 2013, the county also used alternative sentencing such as:
Community service in lieu of jail or fines and fees
Frequent drug testing in lieu of jail
Deferred or delayed sentences
Residential treatment
Maintaining employment or schooling in lieu of jail
“Tether” (electronic monitoring) in lieu of jail, and
Probation in lieu of jail
In its public relations materials advocating for a bigger jail, the county government claims that these programs are already “at capacity,” but if the county is willing to spend taxpayer money to expand the jail’s capacity, it should consider first expanding these existing programs.
Change pretrial policies and practices that result in unnecessary jail detention. Pretrial policies have been driving jail growth for decades. Nationwide, about three-quarters of people held in jails for local authorities are not convicted of any crime, very often because they can’t afford the money bail amount required for release before trial. Pretrial detention is rarely necessary to ensure appearance in court and it causes lasting harm to defendants and their families. Counties across the country have implemented an array of reforms to reduce their pretrial populations without putting community safety at risk.
Revisit past efforts and recommendations that have been ignored but might be effective under current circumstances. In Otsego County, past jail studies and the Master Plans developed in 2008-2013 by the Criminal Justice Coordinating Committee have recommended further solutions and alternatives that were rejected or abandoned for one reason or another, but which are worth reconsidering now. These include:
Resurrecting a restorative justice program that was used successfully to divert prosecution in the 1970s, until the death of the key volunteer
Trying new restorative justice programs
Seeking additional funding for alternative programs, including by hiring a grant writer
Establishing a mental health court, a juvenile drug court, and a peer-led teen court
Improving court notifications
Educating physicians about available programs to monitor prescription drugs, and
Investing in crime prevention programs, such as community-based parenting programs, mental health counseling in schools, affordable after school programs, etc.
Implement new programs to minimize missed court appearances and the resulting bench warrants: Many counties have begun using electronic and automatic court reminder programs that defendants can opt-in to for text message or email reminders as their court dates approach. Hennepin County, Minnesota, introduced such a program in 2017, and after the first 2.5 years of the program, defendants who received reminders were 35% more likely to appear as scheduled.
Counties can also create a bench warrant clearing process that encourages defendants who have missed court dates or outstanding fines to appear in court without fear of jail detention, and that cleans out backlogs of old warrants. “Warrant amnesty” programs operated by local courts around the country designate specific time periods during which individuals with eligible outstanding warrants can make arrangements – without arrest – to have their cases go straight to disposition by paying the original fines, participating in diversion programs, etc. The Hennepin County District Court operates a Warrant Hotline for people with outstanding warrants to schedule a hearing over the phone to take care of their case and to get more information about what options are available. In the first six months of the Hotline program, court staff fielded over 500 calls, with 85% of callers who scheduled hearings over the phone appearing in court to clear up their warrants.
Consult a criminal justice system expert who will evaluate the jail as part of the greater local criminal justice system, not just the historical use of the jail – or worse, simple population projections. Many examples of local jail assessments are available online that demonstrate what a “systems approach” to analysis looks like, including those from Hennepin County, Minn. (2018), Macomb County, Mich. (2016), and Monroe County, Ind. (2021), which demonstrate a range of studies in terms of depth and scope. And again, the National Institute of Corrections’ Jail Division offers local jurisdictions technical assistance – including jail planning services and information.
Footnotes
A consultant on the Otsego study conducted by Byce & Associates, Joe Mrak, is the owner and principal of Securitecture, “an analytics company specializing in public safety buildings,” according to a 2019 article. However, a close study of Mr. Mrak’s qualifications shows that the only credentials implying any criminal justice system expertise is a CPTED certification. CPTED, which stands for Crime Prevention Through Environmental Design, is an “approach to crime prevention that uses urban and architectural design and the management of built and natural environments,” according to the International CPTED Association. For example, CPTED practitioners might recommend additional lighting or changes to landscaping in parking lots to increase visibility and thereby reduce the likelihood of assault or robbery outside of a shopping center. While CPTED certification is certainly a useful credential for architects working in the criminal justice space, CPTED is not a comprehensive approach to crime prevention and has nothing at all to do with assessing justice system processes. ↩
The average daily population has shifted in tandem with the average length of stay, declining from 2014-2017 and then jumping back up in 2018. These numbers are related because jail populations build up as individuals are forced to stay longer. In 2018, the average daily population jumped from 24 up to 39 people, at the same time that the average length of stay rose from 13 days to 39 days. The report does not explain the dramatic change in 2018. ↩
For context, in 2018, U.S. jails nationwide operated at about 81% capacity, but small jails of less than 50 people were only about 58% occupied. ↩
Data from the first quarter of 2019 (in the same article) showed an uptick in meth-related cases, but again, the data aren’t detailed enough to show whether these are cases that made a real dent in the availability of drugs or whether the task force was often targeting addicts with overly aggressive policing tactics, as residents of nearby Emmet County – covered by the same task force – have claimed and protested against. ↩
Acknowledgements
We thank the John D. and Catherine T. MacArthur Foundation Safety and Justice Challenge for their support of our research into the use and misuse of jails in this country. We’re also grateful to the residents of Otsego County who brought their experiences and the relevant documents provided by the County to our attention.
Just because vaccines are increasingly available does not mean that the COVID-19 crisis in prisons and jails is over - far from it. Yet new data show more prisons and jails are returning to “business as usual.”
This article was updated on October 21st, 2021 with more recent jail and prison population data. That version should be used instead of this one.
At the start of the pandemic, public health and medical officials were already warning that incarcerated people would be uniquely vulnerable to the spread of the disease and its most serious medical consequences, due to their close quarters and high rates of preexisting health conditions. But after a year and a half of outbreak after outbreak in prisons and jails, correctional authorities have largely failed to reduce their populations enough to protect the health and lives of those who are incarcerated. The consequences of this failure are serious: According to the UCLA Law COVID-19 Behind Bars Project, more than 412,000 people incarcerated in prisons have had confirmed cases of COVID-19 and over 2,700 people have died from COVID-19 behind bars. And that’s to say nothing of the outbreaks in surrounding communities that have been linked to the crowded, unsanitary conditions of prisons and jails.
Despite the growing availability of vaccines, 17 state prison systems and the Bureau of Prisons had vaccinated less than half of their incarcerated populations by mid-May 2021, and 20 states and the Bureau of Prisons are reporting that less than half of their prison staff had received their first dose of a vaccine by the end of April. With slow uptake of vaccines, the advice from early in the pandemic continues to be the most important: prisons and jails need to keep working to reduce the number of people locked up, by both reducing admissions and ramping up early releases.
Prisons
Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and increased health care requirements. For example, although California has reduced the state prison population by about 19% in the past 18 months, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons. In fact, as of June 16th, 2021, California’s prisons were still holding more people than they were designed for, at 107% of their design capacity (and up from 103% in January 2021).
Figure 1. Prison population data for 30 states where sufficient population data was readily available from January 2020 to May or June 2021, either directly from the state Departments of Correction, the Vera Institute of Justice, or the federal Bureau of Prisons. The lighter lines in our graph indicate prison systems where the population is actually increasing since early 2021. See our COVID-19 response tracker for more information on many of the most important policy changes that led to these slow reductions in some states. For the population data for these 30 states and the Bureau of Prisons, see Appendix A.
Sharp-eyed readers may wonder if Connecticut and Vermont are showing larger declines than most other states because those two states have “unified” prison and jail systems, which hold both pretrial defendants and people serving sentences, and pretrial populations typically respond to policy changes more quickly than prisons. However, data from both states show that the bulk of their population reduction is coming from within the “sentenced” portion of their populations. (For the Connecticut data, see the Correctional Facility Population Count Report, and for Vermont, see the daily population reports.)
Many states’ prison populations are the lowest they’ve been in decades,but this is not because more people are being released from prisons. The limited data available from six states shows that the number of prison releases did not change significantly between 2019 and 2020, suggesting that most of the population drops that we’ve seen over the past year are due to reduced prison admissions. In addition, we can see that the number of monthly prison releases in five of these states has been decreasing over the past three years. Only one state for which we found data–Alabama–has seen an increasing trend in the number of monthly releases since 2018. Reducing the number of people admitted to correctional facilities is critical to reducing the number of people behind bars, but to quickly decarcerate, states should be releasing far more people, too.
Figure 2. These six states publish monthly release and admission data for 2018, 2019, 2020, and the beginning of 2021. Although we cannot be certain that this analysis is representative of the other 44 state prison systems and the federal Bureau of Prisons, these data do show us a pattern of responses to the COVID-19 pandemic: reducing prison admissions, while maintaining the status quo of prison releases.
Figure 3. These ten states published monthly release data for 2019, 2020, and the beginning of 2021. While not nationally representative, these ten states show that fewer people have been released from these state prisons in response to COVID-19 in 2020 than in 2019. We’re also seeing that at the start of 2021, prison releases are even lower.
Thankfully, some states have recognized the inefficiency of case-by-case releases and the necessity of larger-scale releases. For example, in New Jersey, Governor Phil Murphy signed bill S2519 in October 2020, which allowed for the early release of people with less than a year left on their sentences.1 A few weeks after the bill was signed, more than 2,000 people were released from New Jersey state prisons on November 4th.2 In February 2021, North Carolina Governor Roy Cooper announced plans to release 3,500 people in state custody (with 1,500 of those releases to take place within 90 days). The releases were the result of a NAACP lawsuit challenging prison conditions in North Carolina during COVID-19. The state said it would release people using discretionary sentence credits (similar to “good time credits”), home confinement, and post-release supervision. But these are the only two instances we are aware of where large-scale release efforts are actually taking place in state prison systems.
Jails
Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 388 county jails of varying sizes, most (88%) decreased their populations from March to July of 2020, resulting in an average population reduction of 23% across all 388 jails.3 These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent” offenses.
But the data tell a different story about the latter part of the pandemic. Between July 2020 and January 2021, the populations of 66% of the jails in our sample increased, reversing course from the earlier months of the pandemic. Since this past January, populations increased again in 61% of the jails in our sample, with an average increase of 10%. Overall, the average population change across these 388 jails since March 2020 has diminished to only a 7% decrease, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned. For example, by mid-April 2020, the Philadelphia city jail population reportedly dropped by more than 17% after city police suspended low-level arrests and judges released “certain nonviolent detainees” jailed for “low-level charges.” But just two weeks later — as the pandemic raged on — the Philadelphia police force announced that they would resume arrests for property crimes, effectively reversing the earlier reduction efforts. Similarly, on July 10th, 2020, the sheriff of Jefferson County (Birmingham), Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.”4 That effort was quickly abandoned when the jail resumed normal admission operations just one week later. The increasing jail populations across the country suggest that after the first wave of responses to COVID-19, many local officials have allowed jail admissions to return to business as usual.
Figure 4. Despite the rising national case rate of COVID-19, the number of people held in our sample of 388 county jails across the country has not continued to decrease over the past six months, following initial reductions. This graph contains aggregated data collected and provided by NYU’s Public Safety Lab and updates a graph in our February 3rd briefing. It includes all jails where the Lab was able to report data on March 10th and for at least 75% of the days in our research period, which ended June 17th, 2021. (Data are not available for all facilities for all days.) This graph presents the data as 7-day rolling averages, which smooths out most of the variations caused by individual facilities not reporting population data on particular days. The temporary population drops during the last weeks of May, August, and November 2020 and February 2021 are the result of more facilities than usual not being included in the dataset for various reasons, rather than any known policy changes. To see county level data for all 388 jails included in this analysis, see Appendix B.
Even before COVID-19, prisons and jails were a threat to public health and considered notoriously dangerous places during any sort of viral outbreak. And yet, correctional facilities continue to be a major source of a large number of infections in the U.S. The COVID-19 death rate in prisons is three times higher than among the general U.S. population, even when adjusted for age and sex (as the prison population is disproportionately young and male). Since the early days of the pandemic, public health professionals, corrections officials, and criminal justice reform advocates have agreed that decarceration is necessary to protect incarcerated people and the community at large from COVID-19. Decarceration efforts must include releasing more people from prisons and jails. Despite this knowledge, state, federal, and local authorities have failed to release people from prisons and jails on a scale sufficient to protect incarcerated people’s lives – and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.
Footnotes
New Jersey is not included in the above graph of state prison population changes because the New Jersey Department of Correction has not published monthly population data for 2020. However, in an October 2020 press release (prior to the November implementation of bill S2519), Governor Phil Murphy claimed the population in state correctional facilities had “decreased by nearly 3,000 people (16%)” since March. ↩
Unfortunately, this major victory for public health was immediately undercut by the federal Immigration and Custom Enforcement (ICE) agency which quickly arrested 88 people who were released under bill S2519. A spokesperson from ICE claimed that these 88 individuals were “violent offenders or have convictions for serious crimes such as homicide, aggravated assault, drug trafficking and child sexual exploitation.” However, these claims are brought into question when considering that the releases that took place under bill S2519 specifically excluded “people serving time for murder or sexual assault” and those serving time for sexual offenses. Although we did not include ICE facilities in our analysis, there is evidence that ICE detention facilities have a COVID-19 case rate that is up to 13 times higher than that of the general U.S. population. ↩
Our analysis is based on a subset of the excellent dataset created by the NYU Public Safety Lab Jail Data Initiative which is collecting jail populations for a diverse group of over 1,000 facilities across the country. For each of our analyses of jail and prison populations during the pandemic (including our earlier analyses in May, August, September, and December 2020 and February 2021), we included all jails from this database that had population data available for at least 75% of the days in the period being studied and had data going back to the start of the pandemic on March 10th, 2020. For this June 2021 analysis, we included all 388 jails that had at least 346 days worth of data, representing at least 75% of the days between March 10th, 2020 and June 17th, 2021. Readers may notice that this sample is slightly smaller than in our previous publications, which is due to varying data availability from some jurisdictions. ↩
The news story from Jefferson County does not make clear whether officials are using “violent” to refer to the crime a person is charged with, crimes of which they have already convicted, a label imposed on them by a risk assessment tool, or something else. ↩
Appendix A: State and federal prison populations during COVID‑19
Prison populations for the federal Bureau of Prisons and 30 states where monthly data was readily available for the period from January 2020 to June 2021. When available, we used point-in-time population counts from the last day of the month. If that data point was not available, we then used either the monthly average daily population (ADP) or the point-in-time population count for latest date available in each month.
Appendix B: County jail populations during COVID-19
This table shows the jail populations for 388 county jails where data was available where data was available for March 10th (the day the pandemic was declared) and for 75% of the days between March 10th, 2020 and June 17th, 2021. (This table is a subset of the population data available for over 1,000 local jails from the NYU Public Safety Lab Jail Data Initiative.)
New data show record high deaths of people locked up in jail, as jail populations have shifted toward smaller, rural jails and growing numbers of women. A lack of accountability and acknowledgement of women’s unique disadvantages all but ensures more deaths to come.
In so many communities nationwide, jails act as reception centers for those experiencing poverty, mental health crises, or substance use disorders. Just a few days ago, Representative Alexandria Ocasio-Cortez referred to jails as “garbage bins for human beings.” This statement tracks with new data that show that even before the COVID-19 pandemic, deaths in jail had reached record high numbers, because they continue to be unregulated, under-resourced places where disadvantaged people are sent to languish.
The Bureau of Justice Statistics (BJS) recently came out with the 2018 mortality data for local jails. Nationwide, there were 1,120 deaths reported, or a rate of 154 deaths per 100,000 people in jail, the highest levels since BJS’ first report on this topic in 2000. The jail population has grown since 2000, of course, but jail deaths have grown more. These deaths spared no demographic, and almost no state; more jurisdictions than ever reported one or more deaths in 2018.
Dying in jail often happens within days or weeks
As in past years, suicide was the single leading cause of death for people in jails, accounting for almost 30% of deaths. Someone in jail is more than three times as likely to die from suicide as someone in the general U.S. population (and still twice as likely when the population is adjusted for age, sex and race/ethnicity to match jail populations).
Suicide in jail tends to happen quickly: half of all those who died by suicide between 2000 and 2018 had been in jail for 9 days or less – compared to a median stay of 17 days for all causes of death. A short stay in jail can be extremely harmful, a fact that even our nation’s top officials acknowledge, noting that “certain features of the jail environment enhance suicidal behavior.”1 For suicide and deaths linked to drugs or alcohol, it’s those first few days in jail that are deadliest.
Millions of people are booked into jails each year with alcohol or drug use disorders, and the number who died of reported intoxication while locked up reached record highs in 2018. Since 2000, these deaths are up 381 percent, and over the entire 18 years of data collection, the median time served before a drug or alcohol intoxication death was just 1 day. One Texas woman, for example, was jailed for unpaid traffic tickets and died after 3 days from complications of withdrawal after begging for medical care, and instead, being asked to clean up her own vomit. With 18 years of data showing that jailing people with substance use disorders for low-level offenses so often leads to death, why are we still using jails as de facto detox facilities?
More women are entering – and dying in – jail
Women made up one-sixth of all jail deaths in 2018, slightly more than their share of the total jail population. Women also had a 7% higher mortality rate than men in jails; this isn’t the first year that was true, but because women are a key driver of jail population growth, the rise in their mortality rate should send correctional leaders and policymakers running toward solutions aimed at keeping women out of confinement.2
Previous research offers solid clues as to where to begin addressing the over-incarceration and preventable deaths of women. Between 2000 and 2018, women in jail died of drug and alcohol intoxication at twice therate of men. (In state prisons, women died this way at half the rate of men.)3 Women are also more likely than men to enter jail with drugs in their system, with a medical problem or chronic condition, or with a serious mental illness.
As we’ve reported before, arrests of women, often for low-level drug offenses like possession, have increased (while men’s arrests have decreased) over the past 35 years. In general, those arrested and put in jail more frequently (a population that is disproportionately Black, too) face other major disadvantages: they’re much more likely to lack health insurance, education, and employment, and to have serious health needs. That’s not to mention the high probability of jail separating a mother from children or the estimated 55,000+ women who enter jail while pregnant and face abysmal nutrition and prenatal care. These statistics paint a bleak picture of what it’s like to be a woman in contact with the criminal justice system, but they also form a clear wishlist of social services that could exist to meet women’s needs outside of jail.
Rural jails, a growing force, had the highest death rates in 2018
Small jails – particularly those with an average daily population of 49 or fewer people – reported the highest mortality rates again in 2018. A long-standing reality, the mortality rate in these smallest jails has actually been more than double the overall jail mortality rate in some years. By absolute numbers, these deaths make up a small portion of all jail deaths each year, but rural areas have become major players in jail incarceration.4
And yes, women and rural jails are growing together. Between 2004 and 2014, the number of women in jail increased 43 percent in rural counties, while declining 6 percent in urban counties. For decades, jails in non-urban jurisdictions have quietly proliferated, fueled by increases in pretrial detention. Additionally, researchers have found that women entering rural jails are significantly more likely to have co-occurring serious mental illness and substance use disorder, despite being severely under-identified by their jails as having such needs.
Jail healthcare is sketchy at best, and deadly at worst
But what does the growth of women’s jail populations across America have to do with mortality? In 2020, Reuters published an unsparing 3-part investigation of jail healthcare systems, deaths, and the increasing presence of women entering and dying there. Reporters established a devastating pipeline of women being arrested, locked up, and left to detox, give birth, or go without necessary psychiatric care in jail cells.
According to the report, on average, deaths were higher in those jails with privately contracted healthcare services, and rural jails are likely to go the private healthcare route.5 These companies’ profit motives shine through in haunting examples of neglect. At a Georgia jail managed by Corizon – a major private correctional healthcare company – senior leadership routinely overrode the recommendations of medical staff; patient names or prescription orders were simply removed from lists to avoid the bad optics of providing untimely care. But when counties move to end their healthcare contracts, there are few real competitors.
The idea that jails are falling short in their care sometimes fuels short-sighted arguments for expanding or building new facilities. One county in Texas was considering a new women’s facility in order to provide “gender-specific” and “trauma-informed” services to this population; fortunately, county commissioners recently postponed the vote to approve its construction at the suggestion of local activists and the county judge. These myopic projects are expensive and do not help communities – in fact, research shows that jail incarceration drives deaths within those counties.
Jails are shameful replacements for key social and medical services, and too often low-level offenses are used to justify locking people up, out of sight, when they simply need help. For women, “gender-responsive” strategies for diversion and treatment do exist, but policymakers should exercise caution in implementing those that are simply new forms of supervision; these programs will only increase the footprint of the criminal justice system. Decriminalization and the provision of gold-standard medical care, followed by a halt to jail construction, should be top of mind when addressing record mortality in jails; our mass incarceration crisis is troubling enough when people survive.
Footnotes
The Bureau of Justice Statistics plans to publish detailed data on suicide in U.S. correctional facilities in August 2021; the most recent version of this report is from 2002. ↩
Not only has the number of incarcerated women increased 14-fold from 1970 to 2014, but women are now found in jails in nearly every county in the US, whereas they were only found in about one-fourth of jails back then. This trend is so troubling, we made a Whole Pie focused on women’s mass incarceration. ↩
The Reuters investigation obtained jail mortality data through 2019, one year beyond what BJS published, and found that drug and alcohol-related deaths among women in jails has not subsided. From 2017 to 2019, about one-fourth of female deaths were linked to drugs or alcohol, compared to just one-eighth of deaths from 2008 to 2016. Still, both of these percentages were double those of men’s drug- and alcohol-related deaths. ↩
In one sense, rural jails and deaths receive lots of attention in localnews and culturalcommentary. In another, policy and research have largely focused on large urban jails and overlooked the complex needs of rural jails. General issues faced by rural jails and their surrounding communities include: an insufficient tax base to support adequate medical or social services, a serious shortage of lawyers and public defenders, and a dearth of general criminal justice system administration, from court hours of operation, to machinery, to investigators. ↩
Jails are not held to any national standard of healthcare, private or public, but can seek optional accreditation. The National Commission on Correctional Health Care offers accreditation to jails, prisons and other detention centers, but does not publish a full list of accredited facilities “by policy.” ↩
Proposal would make an already bad situation worse by removing nearly all First-Class mail from airplanes and putting it on trucks, no matter how far it has to travel.
On the heels of a sharp price increase, the United States Postal Service is now proposing to slow down the speed at which letters are delivered, a change that would hit incarcerated people particularly hard. As we’ve noted before, incarcerated people are uniquely dependent on sending and receiving letters through the mail, and the USPS isn’t doing a good job of serving this population. The new proposal would make an already bad situation worse by removing nearly all First-Class mail1 from airplanes and putting it on trucks, no matter how far it has to travel.
Despite the USPS’s disingenuous claim that most mail won’t be impacted by this proposal, the opposite appears to be true. Because states in the west and northeast currently rely more heavily on air transport for mail, postal customers in those states (including those in prison or jail) will be most penalized by the current proposal.
Incarcerated postal customers deserve better. In many situations (like filing a tax return or court document), incarcerated people have no alternative to the mail. In other situations (like maintaining family connections), alternative channels such as phone and electronic messaging might be available, but they are often expensive and/or plagued with problems. The price of a stamp represents a substantial expense for the average incarcerated person, and that stamp should purchase prompt and reliable delivery.
Our detailed argument is set forth in comments that we filed with the Postal Regulatory Commission opposing the USPS proposal. If you want to make your voice heard, contact your congressional representatives today and tell them to prevent the USPS’s proposed changes to First-Class Mail service standards.
Footnotes
Specifically, the USPS proposal would cover First-Class letters within the continental United States. Mail traveling to or from Alaska and Hawaii could still be transported by plane. ↩
On May 24, the Federal Communications Commission released a historic order lowering existing caps on rates and fees in the prison and jail telephone industry. The same document also signals the FCC’s intent to further lower rates in the future, and create additional rules governing this industry. The public is invited to comment on a wide range of topics.
The FCC’s newest order applies only to out-of-state calls, where the caller and called person are physically in different states, but not to in-state calls, where the caller and called person are physically in the same state. Importantly, the FCC says that companies must charge the out-of-state rate unless they know where the parties are physically located. Previously, many companies calculated rates based on area codes, which will no longer be allowed. (This means some third-party services that offer different phone numbers with a different area code to obtain better calling rates will no longer be effective).
These newly lowered caps go into effect October 26, 2021. Here is what families with incarcerated loved ones can expect to be charged:
Rate caps:
For prisons: With one exception,out-of-state calls will not cost more than 14¢ per minute. Previously, rates were capped at either 21¢ or 25¢ depending on whether the call was collect or debit. The exception is that the FCC is allowing companies to charge higher rates if a mandatory state statute or regulation requires a commission payment to the facility, however, “in no event…can the total rate cap exceed $0.21 per minute.” (FCC Order at fn309).1
For jails with an average daily population of 1,000 or more: With one exception, out-of-state calls will not cost more than $0.16 per minute. Previously, rates were capped at either 21¢ or 25¢ depending on whether the call was collect or debit. The exception is that the FCC is allowing companies to charge higher rates if a mandatory state statute or regulation requires a commission payment to the facility, however, “in no event…can the total rate cap exceed $0.21 per minute.” (FCC Order at fn309).2
For all other jails: Out-of-state calls can cost no more than 21¢ per minute. Currently, collect calls can cost up to 25¢ per minute at these jails, but when the new regulations take effect, collect calls and debit calls will both be capped at 21¢.
International rate caps:
International calls from both prisons and jails will now be capped at the out-of-state rate that applies (above), plus the amount that the provider pays to an underlying wholesale carrier for the cost of the call. Prior to these rules, international calls were not subject to price caps. The exact caps will be hard to predict because the “underlying wholesale” cost is not widely known. But for context, calls from the United States to Mexico via one wholesaler, Twilio, cost between $0.013 and $0.045 per minute depending on the location within Mexico and whether it is to a cell phone. The prices for other countries vary and other wholesalers may have different prices, but the FCC’s intent is clearly to restrict price gouging by the providers.
Single calls:
From both prisons and jails, single call products, like Text2Connect™ and PayNow™, will now be capped at $6.95 per call, plus the applicable per-minute rate. We have previously found that companies were charging $9.99-14.99 for a single telephone call.
Third-party financial transaction fees:
In both prisons and jails, third-party financial transaction fees, like fees associated with Western Union and MoneyGram payments, will be capped at $6.95 per transaction. Currently, these fees can be as high as $9.99.
Footnotes
We note that calls in some states are already less than 14¢ per minute, and while many states still choose to collect a commission, most states do not appear to do so under a “mandatory” structure that would allow them to increase the cost of a call beyond 14¢ per minute. ↩
We note that calls in some county jails are already less than 16¢ per minute, and while many county jails still choose to collect a commission, most county jails do not appear to do so under a “mandatory” state structure that would allow them to increase the cost of a call beyond 16¢ per minute. ↩
New data from the Bureau of Justice Statistics shows that state prisons are seeing alarming rises in suicide, homicide, and drug and alcohol-related deaths.
The latest data from the Bureau of Justice Statistics (BJS) on mortality in state and federal prisons is a reminder that prisons are in fact “death-making institutions,” in the words of activist Mariame Kaba. The new data is from 2018, not 2020, thanks to ongoing delays in publication, and while it would be nice to see how COVID-19 may have impacted deaths (beyond the obvious), the report indicates that prisons are becoming increasingly dangerous – a finding that should not be ignored. The new numbers show some of the same trends we’ve seen before – that thousands die in custody, largely from a major or unnamed illness – but also reveal that an increasing share of deaths are from discrete unnatural causes, like suicide, homicide, and drug and alcohol intoxication.
State prisons, intended for people sentenced to at least one year, are supposed to be set up for long-term custody, with ongoing programming, treatment and education. According to one formerly incarcerated person, “if you have the choice between jail and prison, prison is usually a much better place to be.”
Deaths in jail receiveconsiderableattention in popular news, and hereon ourwebsite – which they should, given the deplorable conditions that lead to tragedy among primarily unconvicted people. State prisons, on the other hand, are regarded as more stable places, where life is slightly more predictable for already-sentenced people. Why, then, are suicides up 22 percent from the previous mortality report, just two years prior? Why are deaths by drug and alcohol intoxication up a staggering 139 percent from the previous mortality report, just two years prior?
The answer isn’t just because there are more incarcerated people. The very slight net change in the state prison population since 2001 pales in comparison to the increase in overall deaths occurring in these facilities. (Prison populations have actually decreased since peaking in 2009, but they’re still larger in 2018 compared to 2001.) Prisons have been, and continue to be, dangerous places, exposing incarcerated people to unbearable physical and mental conditions. State prison systems must greatly improve medical and mental healthcare, address the relationship between correctional officers and the health of their populations, and work with parole boards to accelerate release processes. Then, maybe, a state prison sentence would not become a death sentence for so many.
Record-setting deaths in almost all categories
In 2018, state prisons reported 4,135 deaths (not including the 25 people executed in state prisons); this is the highest number on record since BJS began collecting mortality data in 2001. Between 2016 and 2018, the prison mortality rate jumped from 303 to a record 344 per 100,000 people, a shameful superlative. It may seem like a foregone conclusion that more people, serving decades or lifetimes, will die in prison. But for at least 935 people, a sentence for a nonviolent property, drug, or public order offense became a death sentence in 2018.1
BJS slices mortality data in many ways, one of which is “natural” versus “unnatural” death; “natural” deaths are those attributed to illness, while “unnatural” deaths are those caused by suicide, homicide, accident, and drug or alcohol intoxication. Any death pending investigation or otherwise missing a distinct cause gets filed away as “other,” or “missing/unknown.” Other than accident deaths, every cause of death had its worst year yet in 2018.
Taking BJS’ definitions of “natural” and “unnatural” deaths at face value2, the data shows that, like in past years, most (77%) of all prison deaths in 2018 were “natural.” However, “unnatural” or preventable deaths make up an increasing share of overall mortality: In 2018, more than 1 in 6 state prison deaths (17%) were “unnatural,” compared to less than 1 in 10 (9%) in 2001.3 Clearly, prisons are doing poorly at keeping people in their care safe. We must remember that being locked up is the punishment itself; inhumane conditions are not supposed to be part of a prison sentence.
Suicide rates in prison are higher than ever
Incarceration is not only difficult for someone who comes in with mental health needs, but it creates and exacerbates disconnection, despair, and overall psychological distress. Prison is basically a mental health crisis in and of itself, and too many incarcerated people contemplate and/or complete suicide.
In 2018, state prisons saw the highest number of suicides (340) since BJS began collecting this data 20 years ago. Compared to the 1% net growth of state prison populations since 2001, suicides have increased by a shocking 85 percent. Suicide is an affliction for the general U.S. population, but the mortality rate from suicide in state prisons has always been higher.
The BJS data does not allow us to compare death rates by sentence length, but it’s hard to ignore the possibility that longer sentences are contributing to a sense of hopelessness and forcing incarcerated people into harmful situations. Other data collected by BJS shows that between 2001 and 2015, the number of people admitted annually to state prison with a sentence of 5 years or longer grew by nearly 12,000 people, accounting for almost all of the growth in new prison admissions over that time period.4
At the end of 2015, 1 in 6 people in state prisons had already served over 10 years. To add insult to injury, between 2016 and 2018, the average state prison sentence grew by about four months.
Not only does a longer incarceration increase the sheer probability of having a mental health crisis inside, but it also creates the conditions for this to happen. With longer periods of separation from loved ones, and a rapidly changing outside world, people serving long sentences are isolated and deprived of purpose.
When someone in prison is clearly in crisis, correctional officers are supposed to act swiftly to prevent suicide and self-harm. Not only do officers routinely fail to recognize mental health warning signs, but they’ve been found allowing and even encouraging self-harm, a disturbing reality. And on an institutional level, prison systems avoid making the necessary changes to protect people in dangerous conditions: In response to a Department of Justice investigation finding that the Massachusetts Department of Correction “exposes [people experiencing a mental health crisis] to conditions that harm them,” the DOC is piloting Fitbit-like bracelets for its population to track changes in vital signs related to mental health distress. Instead of rolling back harsh solitary confinement practices and improving how correctional officers respond to crises, the DOC is increasing surveillance and allowing another private company to profit off of prisons.
Who is committing homicide in prison?
The number of homicides in state prisons reached a record high of 120 deaths in 2018, a reminder that while prisons are secure, they are largely unsafe.Violence in prison is commonplace, tied to trauma prior to incarceration as well as mental health stressors inside. The rate of homicide in state prison is 2.5 times greater than in the U.S. population when adjusted for age, sex, and race/ethnicity.
The age of those who died in prison seems most relevant when talking about illness, but older people were actually more at risk of homicide and all other causes of death, except for accidents. By absolute numbers, more homicide deaths affected people in their 20s, 30s and 40s, but the homicide rate was highest for incarcerated people aged 55 and older. They were twice as likely to die by homicide as anyone aged 25 to 44.
What about who is actually behind the deaths that are ruled homicides? The BJS data does not separate homicide committed by incarcerated people from death “incidental to the use of force by staff,” or even “resulting from injuries sustained prior to incarceration.” While correctional officials might go right to “prison gangs” or otherwise blame incarcerated people for these deaths, it’s a bit more complicated than that. In this terrible instance, a correctional officer heeded a request to close a cell door remotely, allowing someone to fatally wound a 72-year-old man in total privacy. The nuance of who is responsible for prison homicides points to huge gaps in security and staffing, but also a clear indifference to people’s lives and unaddressed anger and trauma.
How can drug and alcohol intoxication deaths be so high, when prison security is so strict?
As we look back to the beginning of mortality data collection in 2001, no manner of death has spiked more than drug overdoses and alcohol intoxications. (Unfortunately, the BJS data does not distinguish between the two.)
With such coarse data, it’s difficult to pinpoint an explanation for this trend with certainty. However, no conversation about illicit substances inside prisons would be complete without mention of contraband, particularly drugs brought in by correctional staff.
In the name of preventing contraband from entering prisons, many state prison systems have cracked down on incoming mail and visitation, two major lifelines for incarcerated people. However, there’s evidence to suggest that the majority of drugs, as well as sought-after items like cell phones and cigarettes, are brought in directly by prison staff. In 2018, we conducted a survey of local news coverage that revealed a dozen instances in that year alone where staff were fired, arrested, or sentenced with smuggling drugs and other items into correctional facilities.
A recent Twitter poll doubles down on the premise that prison security staff are the major players in contraband movement. Initiated by Worth Rises director Bianca Tylek, the poll and resulting thread brought formerly incarcerated voices into what could be the most revealing look to date at how correctional officers in particular are wound up in contraband dealings.
With so many people in state prisons lacking proper treatment for substance use disorders, it’s no wonder corrections staff will use their access to the outside and charge exorbitantly for drugs like Suboxone or potent synthetic cannabinoids. Instead of improving the quality of healthcare and treatment for drug addiction, prisons are imposing costly restrictions on mail and visitation and incentivizing their own staff to carry out illegal activity.
Mortality data for 2020 won’t be released for another two years or so, but we don’t have to wait to see whether drug contraband was drastically reduced when state prisons banned in-person visitation due to the pandemic: it wasn’t. In Virginia, for example, the Department of Corrections found that drugs did not become more scarce; positive drug tests actually increased after pandemic restrictions went into effect. Texas prisons also saw an uptick in drug contraband and related disciplinary reports in 2020, even as prison populations declined and visits were limited or cut off entirely.
Can we relate the thriving drug market in prisons to increasing drug-related deaths? Not directly. Clearly, though, the people working in prisons, who already turn a blind eye to violence and suffering, are responsible for introducing some of the dangerous substances that killed 249 people in 2018.
Illness is still the most common cause of death, but how natural is illness in prison?
Even though most prison deaths each year are attributed to illness, and are therefore “natural,” being sick or old in prison is not quite what it is on the outside. Incarceration can add 10 or 15 years to someone’s physiology, and take two years off of their life expectancy per year served, alarming statistics when considered alongside longer sentences and high costs of healthcare for older people.
The systemic neglect of illness and aging in prison populations isn’t natural at all. Every summer, we hear about prisons in hot climates that lack air conditioning, exposing incarcerated people to consistent temperatures of over 100 degrees. We’ve previously reported on these extreme heat conditions that exacerbate chronic diseases, counteract medications, and increase the risk of dehydration and heat stroke among even the healthiest people. In Texas, for example, when summer incarceration is described as unconstitutional, deadly, and a practice in reckless indifference, how natural are some deaths due to “illness”?
Again, consider the mortality data that will eventually come out for 2020, when prisons and jails played host to the COVID-19 pandemic and over 2,600 incarcerated people (and over 200 staff) died as a result. We know how badly every state handled this situation; it will be important not to brush these deaths aside as simply succumbing to illness – nor the deaths caused by other illnesses that went untreated in understaffed, overwhelmed prison health systems. These thousands of people were failed by state criminal justice systems, and deserved care and precaution while in custody.
State criminal justice systems can improve prison healthcare and loosen their grip on parole processes
We are supposed to trust prison systems to keep people alive and safe, so they can serve their sentences and be released back to their communities. The significant increase in overall “unnatural” deaths, like suicide, homicide, and drug intoxication tells us that state prisons are failing to provide humane conditions for incarcerated people, and it’s killing them. There are many ways that state prisons and related agencies can reduce the risk of death.
A surefire way to reduce risk is to reduce prison populations, and parole boards are a natural bottleneck to this end. Parole hearings and approval rates must increase in order to move large numbers of incarcerated people back into their communities, despite many states failing to do this in 2020 when it was clearly a matter of life and death. Compassionate release should be ramped up, and no one should be ordered to return to prison after recovering from illness. Burdensome in-person check-ins should also be eliminated to reduce the incidence of low-level technical violations of parole and probation.
States can also consider major sentencing policy changes to address the scourge of long prison sentences that only worsen physical health, mental health, and preparation for reentry. Dozens of state legislatures are considering “second-look” policies to review cases for those currently serving excessive, costly sentences.
As one of the most basic services guaranteed to people in custody, healthcare must be improved. And if it feels like prison healthcare spending is already outrageous, releasing people – especially older, sicker people – would certainly mitigate those costs. Medical care aside, correctional officers must respond swiftly to sick calls and emergencies.
Providing high-quality treatment for substance use disorders would prevent incarcerated people from turning to desperate and dangerous solutions. State correctional agencies must acknowledge the scale of drug smuggling facilitated by correctional staff. Instead of banning in-person visitation and meaningful resources like books, prison staffshould be subject to stricter security measures and enduring consequences.
Improving prison conditions can also prevent many “natural” deaths in prison; for example, there should be universal standards for indoor temperatures where extreme heat can be deadly. In a decently climate-controlled space, medications will work as intended, and people can remain focused on education, employment, and connection with loved ones, and deadly viruses might not spread so easily. And as we have learned through the pandemic, improving ventilation, access to healthcare, coordination with public health departments, and reducing population density by releasing more people from prison can prevent countless deaths when infectious diseases enter prisons.
Under pressure, change does happen, and we have been tracking state-level changes due to the COVID-19 pandemic. Some changes were only temporary or did not go far enough to slow the spread of the deadly virus. Had states taken these actions years ago to reduce other dangers in prisons, we might not have seen record mortality in 2018 – or for that matter, in 2020.
Footnotes
This calculation, based on Table 4 in Time Served in State Prisons, 2018, excludes state prison deaths among people convicted of any violent offense, many of whom may also have been serving relatively short sentences. Also, this data set is not perfectly consistent with the Mortality data set; data in the Time Served report was not available from 8 states and D.C. ↩
It’s reasonable to be skeptical of the natural/unnatural distinction put forth by BJS: Missing/unknown deaths happen to be up almost 700% from 2016, but are conveniently left out of this binary. ↩
Federal prison deaths (including private facilities) were only reported as an aggregate count until 2015, with limited details about cause of death. In 2015, “unnatural” deaths made up 11% of federal prison deaths. In 2018, they accounted for just over 14% of all federal prison deaths. ↩
According to data from the National Corrections Reporting Program, 127,060 people (36% of all new court commitments) were admitted to state prisons in 2001 with a new sentence of 5 years or longer. In 2015, that number had grown to 138,975 (38% of all new court commitments), an increase of 11,915 admissions. Over the same time period, the total number of new court commitments to state prisons – of any sentence length – grew by 12,029. ↩
We’re excited to introduce Prison Policy Initiative Research Analyst, Leah Wang! Leah holds a M.S in Sustainability Science from the University of Massachusetts Amherst, and a B.A in Economics and Environmental Studies from Bowdoin College. Prior to joining the Prison Policy Initiative, Leah was an analyst at the Massachusetts Department of Correction, and has worked in agriculture, local food systems, and outdoor education. Leah has spent several years teaching and working with prison and jail education programs, like Petey Greene and The New Garden Society.
Most states did not prioritize incarcerated people in their vaccination plans. As a result, seven months since the first vaccines were distributed, just 55% of people in prison have been vaccinated, leaving them vulnerable to infection.
Throughout the pandemic, prisons have been a hotspot for COVID-19, with case rates in prisons betweenfour to five times higher than in the general population. Despite being disproportionately impacted by the pandemic, however, most states did not prioritize incarcerated people in their vaccination plans. As a result, seven months since the first vaccines were distributed, just 55% of people in prison have been vaccinated,1 leaving them vulnerable to infection.
Using data from the UCLA Law COVID-19 Behind Bars Data Project, The Marshall Project/AP, and other state-specific sources,2 we calculated the current rate of vaccinations among incarcerated people in 48 state prison systems and the federal Bureau of Prisons.3 For our measure of vaccination, we counted anyone who had received at least one dose of a vaccine as of May 14, 2021.4 Our findings are disheartening:
In 17 state prison systems and the Bureau of Prisons, less than half of incarcerated people have received a vaccine.
Vaccination rates are the worst in Utah, South Carolina, and Alabama where 20% or less of the prison population has received the first dose of a vaccine.
And two states – Florida and Wyoming – have not released any vaccination information at all. Their lack of transparency makes it impossible to hold these Departments of Corrections accountable and ensure they are doing all they can to limit the spread of the virus.
As we recently reported, many states prioritized correctional staff for early vaccine access, under the misguided assumption that a fully-vaccinated staff would act as a preventative “barrier” between incarcerated people and the communities surrounding prisons. With many correctional staff refusing to be vaccinated, the median staff vaccination rate across the country was still just 48% at last count. To meaningfully protect people in prison, incarcerated people need to be vaccinated at much higher rates than we’re seeing thus far.
Figure 1. Data compiled from the UCLA Law COVID-19 Behind Bars Data Project, The Marshall Project, and several state-specific data sources (see footnote 1). See the appendix to this article for a table with details about all 48 prison systems for which we gathered data.
Only ten states have vaccinated more than 70% of people incarcerated in their prison systems. Some of these states – Massachusetts, Oregon, and California – included incarcerated people in the early phases of their vaccination schedules. Had more states prioritized vaccinating people in prisons, vaccination rates would be higher across the board.
Vaccinating incarcerated people may be one of the only fast and effective mitigation strategies available to prevent the spread of the virus and save lives: The inability to socially distance in prisons combined with the higher rates of chronic health issues among incarcerated people has led to prison mortality rates two to three times higher than that of the general population.
Since vaccinations started in the U.S., there have been too many avoidable deaths. In Nevada, for example, one-third of COVID deaths in prisons occurred this year(after vaccines became available). Similarly, New Hampshire’s first COVID prison death didn’t occur until December 30, 2020, and there have since been two more deaths in 2021. In Oklahoma, incarcerated people became eligible to receive the vaccine late last year, but vaccinations did not start until March; and since January, at least 11 people may have died from COVID-19. Although the number of new cases each day has gone down in the United States since January, incarcerated people are still unprotected and dying, even when we have effective vaccines available.
The dark history of the prison medical system could be a huge barrier to vaccine uptake in prisons. Many incarcerated people are wary of the prison medical system, and for good reason: prison medical systems have long been notorious for unethical experimentation and inadequate medical care. According to the results of a survey published by The Marshall Projectin February, more than half of incarcerated respondents did not believe the prison was acting in their best interest by making the vaccine available, and very few respondents believed medical staff would provide accurate information about the vaccine.
To address these concerns, public health experts have been clear: education is crucial to vaccine acceptance behind bars. There are educational resources designed specifically for COVID-19 vaccine education for people in prisons that can be used to address common questions and concerns. The reality is that vaccine education needs to be more than just handing out flyers and hanging up posters: to combat distrust in the prison system, prisons should bring in outside experts and trusted community members to discuss the vaccines with incarcerated people. Correctional staff – who have shown widespread reluctance to take the vaccine themselves – should not be relied up on to deliver accurate information about vaccines.
Nearly 397,000 people in prisons have tested positive for COVID-19 since March 2020, and the virus will only continue to spread without widespread vaccinations behind bars. For more than a year, incarcerated people have dealt with devastating consequences of the virus, ranging from the inability to see their loved ones, to the unnecessary use of solitary confinement, to death. Lack of visitation and the use of solitary confinement, as well as discontinued programming and limited access to health care are all incredibly dangerous, in addition to the dangers of COVID-19. States need to start investing in and accelerating vaccine education and administration for people in prisons.
Appendix
Prison System
Number of incarcerated people who have received at least one dose
Total prison population
Percentage of incarcerated people who have received at least one dose
We’ve opted to use the vaccination numbers reported by the Associated Press on 5/9/21 because the Arkansas Department of Corrections hasn’t provided The Marshall Project with updated data since 4/20/21. The article provides the number of doses and the percentage of people who have recieved the vaccine, but not the total population.
The Marshall Project/AP does not include the number of people who have received the one dose Johnson & Johnson vaccine; we’ve added these vaccinations, however, for accuracy and consistency with the UCLA data.
Vaccine data was last updated on 5/12/21. The Marshall Project/AP doesn’t include the number of people who have received the one dose Johnson & Johnson vaccine; we’ve added these vaccinations, however, for accuracy and consistency with the UCLA data.
This article from 4/12/21 reports the number of vaccines distributed and the percentage of people who have recevied the vaccine, but not the total number of incarcerated people.
The Marshall Project/AP doesn’t include the number of people who have received the one dose Johnson & Johnson vaccine; we’ve added these vaccinations, however, for accuracy and consistency with the UCLA data.
Vaccine data was last updated on 4/16/21. The Marshall Project/AP doesn’t include the number of people who have received the one dose Johnson & Johnson vaccine; we’ve added these vaccinations, however, for accuracy and consistency with the UCLA data.
It’s important to note that states do not report vaccination data consistently, so we made every effort to avoid double-counting people and overestimating vaccination rates. Specifically, we typically defined people receiving “at least one dose” of a vaccine as those who were reported as “partially” vaccinated, or having “initiated” vaccination or “received first dose.” This is because many states record vaccinated people twice – once when a two-dose vaccine schedule is started and once when it’s completed; those receiving the one-shot Johnson & Johnson vaccine may be included in both categories as well (as a “first dose” and as “completed”). In states where the available data suggested a different definition, we have noted those differences in “notes/clarifications” in the appendix table. ↩
Source notes: In addition to the data from UCLA and The Marshall Project/AP, we sought vaccination data for people in prison from state Department of Corrections websites and news articles. Our vaccination rates are calculated based on prison populations reported in The Marshall Project/AP dataset. Data from UCLA, The Marshall Project/AP, and state Department of Corrections websites were accessed on May 17, 2021. ↩
Readers who want to conduct their own analysis can access data from previous weeks and months from both UCLA and The Marshall Project/AP. ↩
For Texas and the states with vaccinations counts from UCLA’s dataset, the data are as of May 14. For most states with vaccination counts from The Marshall Project/AP dataset, the data are as of May 11. In the appendix table, we noted the date of the data for states that have vaccination counts for only earlier than May 11. ↩
August 14, 2024: Many jails nationwide are now video-visit only, meaning there are no longer in-person visits allowed between incarcerated people and their loved ones, including children. Communications Strategist Wanda Bertram will be a panelist on a webinar hosted by the Center for Just Journalism to discuss the impact of these bans and how journalists can cover them.
