Decarceration—and support on the outside—is the answer, not therapy behind bars

A new report finds little evidence supporting the idea that building new prisons for women will lead to better outcomes, even with gender-responsive and trauma-informed programming.

by Prison Policy Initiative, February 3, 2021

In January, as the United States government prepared to execute Lisa Montgomery, news stories described the horrific sexual and physical abuse Montgomery experienced throughout her childhood and adult life. These accounts are shocking — but devastatingly, not so unusual. Studies suggest that more than half of women in state prisons survived physical and/or sexual abuse prior to their incarceration.

Prison is a horrible place for people struggling with symptoms of past trauma, as well as those with histories of mental illness and substance abuse. Well-meaning policymakers sometimes suggest building “kinder, gentler” prisons that offer needed counseling — and indeed, one such project has recently been proposed for convicted women in Massachusetts — but in practice, prisons themselves are fundamentally in opposition with goals of supportive programming.

In fact, Professor Susan Sered, along with Erica Taft and Cherry Russell, have just published an extensive review of the research on the outcomes of existing, prison-based therapeutic treatments — particularly for women. They conclude that the value gained from prison-based trauma, mental health, and substance abuse interventions are far outweighed by the harms caused by incarceration. Instead, they argue, alternatives outside of prisons that provide trauma-informed support, alongside practical interventions such as housing assistance and health care, are far more beneficial than anything that can be offered in a prison setting.

Prison is inherently traumatizing

Incarceration itself is retraumatizing and damaging to mental health. “Prisons are full of trauma-triggers,” Sered and her co-authors write, “such as unexpected noises, sounds of distress from other people, barked orders, pat-downs, strip searches, and looming threats of punishment for breaking any one of myriad rules.” Incarcerated women often experience new traumas and indignities, including the loss of their children and families, their bodily privacy, and their freedom of movement, time, and personal space. Meanwhile, “prison conditions including noise, crowding, lack of privacy, substandard diet, insufficient fresh air, harassment and ongoing threats of violence and punishment are further associated with negative health impacts.”

Even the most well-designed and decorated prison is still a prison, and inherently unconducive to trauma-informed therapeutic programs, where participants are encouraged to acknowledge their trauma and engage in practices that promote recovery and wellness. “Treatment can retraumatize clients when authoritative or coercive methods are used,” the authors explain. “Ideally, trauma-informed treatment should take place in a warm, welcoming and uncrowded space that provides room for a ‘time-out’ option. These conditions are difficult to meet in a prison context.”

There is insufficient study of the long-term benefits of prison-based therapy

Prison-based therapy programs show some benefits: The review notes that “a meta-analysis of studies published between 2000 and 2013 identified reduced recidivism rates for women who participated in gender-informed correctional interventions.”

However, the authors also point out that there has been little study of long-term benefits. This is in part due to logistical challenges: It can be difficult to locate and follow up with study participants post-release. Summarizing a study from 2020, they write: “while mental health services in prison can partially protect some women from some of the strains of being in prison, there is little evidence that these services are of much benefit after they leave prison.” They further note that they “could not identify any studies that evaluate program impact in terms of variables such as post-incarceration employment, health or family reunification.”

What’s more, while gender-sensitive prison-based programs may benefit participants in some ways in the short term (a welcome effect in a prison setting), troublingly, at least one cited study suggests that these programs may over-emphasize “individual pathology.” Along the same lines, another study finds that staff often urge incarcerated women to see the error of their ways and “self-improve.” Incarcerated men, meanwhile, are more likely to report more practical supports, such as staff helping them gain real-world job and educational skills.

Similar problems plague drug treatment in prisons

Prisons are also inherently difficult places to participate in substance abuse treatment. “The prison environment itself creates added stress which may lead some people to seek psychotropic substances—both prescribed and illicit,” the authors write, noting that many prisons also resist evidence-driven, medication-assisted substance abuse treatment.

To study the results of compulsory drug treatment, the authors point to a 2018 Canadian review of court-mandated drug programs, which found that “forced treatment did not improve outcomes for substance use. Instead, findings showed higher levels of mental duress, homelessness, relapse and overdose among adults after discharge from mandated treatment.” They also quote a 2016 meta-analysis of compulsory drug treatments, which concluded: “Evidence does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms.”

Recommendations:

Unfortunately, while there are numerous models for community-based alternatives to incarceration, they generally suffer from a similar lack of rigorous, long-term research as prison-based therapies. Therefore, the authors cannot recommend specific programs.

They do note, however, that studies suggest successful prison alternatives would “set realistic expectations for participants, avoid using threats of punishment to obtain compliance, and refrain from sending participants to prison because of drug use.” Research into the reentry needs of formerly incarcerated women shows that justice-involved women often benefit from support in the areas of economic marginalization and poverty, housing, trauma, and family reunification.

This fits with the recommendations of Sered and her coauthors: They suggest that alternatives-to-prison programs for women provide practical support, including housing assistance, family reunification, help establishing community relationships, health care and substance abuse support, and restorative justice programs. When executed correctly, the authors argue that community-based alternatives could be cost-effective and help keep women out of prison in the first place.

How much have COVID-19 releases changed prison and jail populations?

The good news is that jail and prison populations remain lower than they were before COVID-19, but it’s not obvious just how much of that is attributable to additional releases.

by Emily Widra, February 3, 2021

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.

Families and advocates want to know: How many people have been released from prisons and jails specifically because of efforts to reduce the spread of COVID-19 in correctional facilities and surrounding communities? Despite our ability to track overall correctional populations during the pandemic, the answer to this crucial question isn’t clear. Because of the disparate, disjointed nature of our local, state, and federal criminal justice systems, it is always difficult to track the effects of specific reforms, or to determine which policies are driving changes in the overall number of incarcerated people. During the current pandemic, this makes it impossible to pinpoint just how much of the recent population reductions were the result of special efforts to release people due to COVID-19 — as opposed to “normal” releases or changes in incoming admissions. But what is clear is that there are plenty of ways to reduce correctional populations, and that states and local governments are not using these tools to their full potential.

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 22% in the past 12 months, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons. In fact, as of January 20th, 2021, California’s prisons were still holding more people than they were designed for, at 103% of their design capacity.

Figure 1. Prison population data for 30 states where sufficient population data was readily available from January 2020 to January 2021, either directly from the state Departments of Correction or the Vera Institute of Justice. See our COVID-19 response tracker for more information on many of the most important policy changes that led to these (generally small) reductions in some states. For the population data for these 30 states, 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, 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 a handful of states shows that the number of prison releases did not change much 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. (Certainly, 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 four states publish monthly release and admission data for 2018, 2019, and most of 2020. Although we cannot be certain that this analysis is representative of the other 42 state prison systems and the federal Bureau of Prisons, these data do begin to show us a pattern of responses to the COVID-19 pandemic: reducing prison admissions, while maintaining the status quo of prison releases. (We’ll be collecting this data going forward and in additional states to build an even more comprehensive picture of how federal and state prison systems have responded to COVID-19.)

Figure 3. These eight states published monthly release data for 2019 and for most of 2020. While not nationally representative, these eight states show that fewer people have been released from these state prisons in response to COVID-19 than in the previous year.

Despite evidence that large-scale releases do not inherently endanger public safety, states have elected to release people from prison on a mostly case-by-case basis, which an October 2020 report from the National Academies described as “procedurally slow and not well suited to crisis situations.”

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, 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

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 429 county jails of varying sizes, most (87%) decreased their populations from March to July, resulting in an average population reduction of 23% across all 429 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 now tells a different story about the latter part of the pandemic. Since July, 66% of the jails in our sample had population increases, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned. For example, by mid-April, 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 on May 1st — 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, 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 429 county jails across the country has not continued to decrease over the past six months, following early initial reductions. This graph contains aggregated data collected by NYU’s Public Safety Lab and updates a graph in our December 2nd 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 Jan. 20, 2021. (The Public Safety Lab is continuing to add more jails to its data collection and data is 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 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 429 jails included in this analysis, see Appendix B.

Why is it so hard to identify the cause of population shifts?

Even under normal circumstances, prison and jail populations fluctuate frequently due to a variety of factors, making it difficult to pinpoint what is causing specific changes. In a way, visualizing shifts in the number of people confined is a bit like talking about how much water is in a bathtub that has multiple faucets and multiple drains, each controlled by different people who don’t necessarily communicate with each other. Measuring the depth of the water (or the number of people locked up) is easy, but determining why the water level changes is complicated. The criminal justice system is not so different, in that different agencies affect the number of incoming incarcerated admissions via arrest, prosecution, conviction, and sentencing policies. At the same time, there are many ways that people can leave prison or jail, too — which are also controlled by various agencies — such as release without bail, maxing out a sentence, parole, clemency (including mass clemencies), retroactive sentence reductions by a legislature, compassionate release, or death.

During the COVID-19 pandemic, the number of people incarcerated across the country is clearly down, but it is not immediately clear how much of that reduction we can attribute to admission mechanisms, as opposed to release mechanisms. For example, changes to the admission mechanisms that we have seen enacted to reduce jail and prison populations include:

• Reduced arrests,
• Fewer prosecutions,
• Slower — or even suspended — court systems, and
• Fewer incarcerations for probation and parole violations.

On the other hand, public health officials have emphasized the need to increase the number of people being released from prison and jail. These releases can occur via changes to any number of release mechanisms, including:

• Reduced pretrial detention,
• Increased commutations and pardons,
• Adding good time credits to hasten release dates,
• Judicial orders for administrative releases, and
• Releases for people who are:
  • Nearing the end of their sentence in prisons or jails,
  • Serving short sentences for misdemeanors in jails, and
  • Medically vulnerable to COVID-19.

Prisons and jails are notoriously dangerous places during a viral outbreak, and 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. The best way to decarcerate is to release 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 major scale, which continues to put incarcerated people’s lives at risk — and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.

*Some jails did not have population data in the NYU database for the first Monday in July. We used the population for the closest date available for those jails.

Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic

Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic

by Tiana Herring, February 3, 2021

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic. Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes. In over half of the states we studied—Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina – between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times. Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations. And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.¹ But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release. Parole boards often choose to deny the majority of those who appear before them.

Of the 34 states with discretionary parole, we were able to find parole data for both 2019 and 2020 for these 13 states. Four states – Alabama, Hawaii, Iowa, and New Jersey – report their parole data by the fiscal year instead of the calendar year. Thus, the impact of the pandemic on parole releases may appear less extreme in these four states. (Fiscal Year 2020 data from Alabama reflects hearings held between Oct 1, 2019 and Sept 1, 2020, while Fiscal Year 2020 data in the other three states reflects hearings held between July 1, 2019 and June 30, 2020.) We’ve still included these states, however, as they capture early parole responses to the pandemic.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole. This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months. Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states – Hawaii, Iowa, New Jersey, and South Dakota – actually approved more people for parole in 2020 than in 2019.

Denying people parole during a pandemic only serves to further the spread of the virus both inside and outside of prisons. As the number of cases and deaths in prisons due to COVID-19 continue to rise, parole boards still have the opportunity to help slow the spread of the virus by releasing more people in 2021.

We list 27 “winnable, high-impact” state legislative reforms that would change the justice system and save lives in 2021

Our new “Winnable Criminal Justice Reforms” report lists 27 policy ideas for state legislators, as well as model bills and links to more information on each policy.

by Wanda Bertram, January 27, 2021

This report has been updated with a new version for 2022.

The new president and new Congress are stirring hopes for federal criminal justice reform, but in 2021 — just like every other year — it is state legislators who will have the power to free the most people from prisons and jails.

Because the vast majority of people locked up in this country are held in facilities controlled by state and local lawmakers, we’ve just published a report about 27 winnable criminal justice reforms that state legislators can take on. Our report includes links to model bills and studies supporting each of our recommended reforms.

Getting people out of prisons and jails — and out of the “nets” of constant surveillance that can get them thrown back in prison for minor violations — is a matter of life and death this year, as the COVID-19 pandemic continues to kill people behind bars. Our list of reforms ripe for legislative victory includes many policy changes that will save lives during the pandemic, including:

• Funding non-police responses to crises involving people with disabilities or mental illnesses
• Decriminalizing youth offenses and ending the prosecution of youth as adults
• Radically reducing pretrial detention and ending money bail
• Updating the dollar threshold for felony theft
• Ending incarceration for noncriminal violations of probation and parole
• Ending driver’s license suspensions for nonpayment of fines and fees
• Eliminating medical copays in prisons and jails

Our full report on winnable criminal justice reforms includes more ideas for reducing state prison populations, eliminating burdensome costs for incarcerated people, supporting people leaving prison, and promoting public health and community safety.

This week, we’re mailing our report to hundreds of state legislators and urging them to introduce these critical reforms. Will your state make criminal justice reform a priority in 2021?

People in jails are using more phone minutes during the COVID-19 pandemic, despite decreased jail populations

Our study of 14 jails finds that there were 8% more overall minutes used during the pandemic, despite the fact that nationwide jail populations have fallen about 15%.

by Andrea Fenster, January 25, 2021

People in jails spent 8% more time on the phone over a three-month period of 2020 than in the same timeframe of 2019, according to data gathered from facilities around the country. This may come as a surprise, considering that there were fewer people behind bars to make these calls: jail populations have fallen about 15% on average since March, thanks to modest COVID-19 protection measures.

But, like the jail population reductions, the increase in phone minutes is attributable to COVID-19. Across the country, COVID-19 cases have ballooned in prisons and jails. Insufficient medical care, aging populations, poor preparedness, inability to social distance, and lack of sanitation combine in correctional facilities to create deadly conditions amidst a global pandemic. As a result, many jails have suspended in-person visitation, leaving phone and video calls as the main way for people to communicate with loved ones.

It makes sense, then, that more minutes were used in 2020 than 2019. This increase was attributable to both longer and more frequent calls: the number of calls increased by 3% and calls, on average, were 5% longer. These increases came despite the fact that many correctional facilities have used lockdowns as a COVID-19 prevention measure, which generally limit movement and phone access.

Calls from jails can be costly. For example, in one of the jails that provided data, in Pierce County, ND, a 15-minute call can cost $8.36. So when call volumes go up, billion-dollar companies like Securus–and the jails themselves–rake in the profits. Families around the country were already stretching their wallets to afford calls from their incarcerated loved ones. Now, during a pandemic that has caused mass unemployment, these phone bills are increasing as people accept longer and more frequent calls to help their loved ones maintain a lifeline to the outside world.

Methodology

To calculate changes in call volumes, we studied Securus Call Commission Reports from 2019 and 2020 in city and county jails across the nation. (We chose Securus both because it is the second-largest phone provider in prisons and jails, and because its reports are standardized across facilities, making them easy to compare.) To ensure that changes in the rates would not impact our results, we first identified Securus facilities where the per-minute call rates had not changed between our 2018 Phone Rates Survey and December 2020. We then sent record requests to 23 randomly-selected jails of varying populations, as well as 14 of the largest jails in the country, requesting each facility’s three most recent Call Commission Reports, as well as those for the same time period one year prior.

Ultimately, we received 14 complete responses as of January 21, 2021, from facilities ranging in average daily population from 12 to 3,844. ¹ (The average daily population for each facility was gathered from Securus’s 2019 Annual Report to the FCC, filed October 23, 2020.)

More states need to use their “good time” systems to get people out of prison during COVID-19

Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren't more states using this tool to safely reduce prison populations during COVID-19?

by Emily Widra and Wanda Bertram, January 12, 2021

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives. But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect:

• Correctional agencies have suspended programs, classes, and other valuable resources for incarcerated people. Not only does suspending programming make life in prison more difficult; it also slows down upcoming releases: People who have been approved for parole are still waiting behind bars to complete programs required for their release.
• Shockingly, despite clear evidence that solitary confinement is not a suitable replacement for medical isolation or quarantine, the use of solitary confinement has increased 500% during the pandemic.
• Visitation has been limited or completely suspended in all 50 states and the federal prison system, and only some states have provided free video and phone calls while visitation is suspended.
• Prison systems have delayed thousands of releases scheduled for 2020, scrambling to balance the need for fewer people behind bars with the need to connect people to community health resources if they have been exposed to COVID-19 prior to release.
• Transfers have slowed, and in some places, completely halted to prevent the spread of COVID-19 between facilities. As a result, people have been stuck in limbo at transitional facilities that are not designed to house people for months at a time, or imprisoned in higher security facilities than are necessary.
• Corrections staff are reprimanding incarcerated people for inadequate social distancing, even though maintaining physical distance from others is impossible in prison.

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions. A solution — albeit one that will require legislative action in most states — is for states to immediately change their “good time” policies.

“Good time” — also called “earned time,” “meritorious credit,” or similar — is a system by which people in prison can earn time off their sentences. States award time “credits” to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether. Good time systems vary between states (see the National Conference of State Legislatures’ detailed table) but time credits are often given out for participating in programs. For example, New York offers a six-month credit for completion of the GED. 26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting). Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules. During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions “akin to solitary confinement.” Yet most have not been rewarded with additional “good time” for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it’s the fair thing to do but because it will allow some people to leave prison immediately. At least one state — New Jersey — has already used time credits to get people safely out of prison, with impressive results.

In October, New Jersey Governor Phil Murphy signed Bill No. 2519 into law to shorten sentences and allow for early releases during the COVID-19 crisis. The bill mobilized “public health emergency credits” and “compliance credits” to shorten sentences, similar to the way good time credits can reduce sentence lengths. Almost immediately after the bill was implemented, more than 2,000 people were released from New Jersey state prisons, signifying one of the first large-scale releases during COVID-19.

New Jersey is not the only state changing its good time policies during the pandemic. Stateline reports that in August, California gave 12 weeks of good time to people who had no rules violations on their records. (This policy only benefited 7,000 people out of the hundreds of thousands in California prisons, however — possibly because it is easy to accrue violations for disobeying the most minor rules.) And the New Hampshire Department of Corrections recently created new opportunities for people to earn time credits. Even more impressive is a recently-introduced bill in Delaware, which “would award six months of credit toward every month served during the public health emergency, with a maximum sentence reduction of one year.”

Changing good time policies has advantages over other mechanisms that states can use to release people. For example, 16 states have revoked the right to parole for most people in prison (the disastrous result of Truth in Sentencing laws). These states should bring back parole as soon as possible, but in the meantime, they can use good time credits to hasten decarceration. Awarding more good time credits is also efficient, as it leads to immediate release for people who were already close to their release dates anyway.

It is likely that other states will also have to pursue these efforts through new legislation, which is not ideal during a public health crisis. But New Jersey has demonstrated is that it is possible to enact such a bill quickly (Bill No. 2519 was passed in mid-October, and the 2,000 people were released shortly after, during the first week of November).

New Jersey’s release of thousands of incarcerated people is a good start, but states looking to use their legislation as an example should expand upon the work New Jersey began. For example, the New Jersey legislation excludes people who are serving sentences for specific offenses and only applies to people who are within a year of their scheduled release dates. States should award credits to shorten the sentences of all people incarcerated during COVID-19, regardless of offense type or sentence length.

Specifically, we recommend that state prison systems with existing good time systems make these permanent reforms immediately:

1. Grant additional good time credits to all incarcerated people for serving time during the pandemic.
2. At a minimum, people who would be earning good time through a program that has been suspended during the pandemic should be credited with that time, since they lost the opportunity through no fault of their own.
3. Expand eligibility to all incarcerated people, regardless of offense type or sentence length.
4. Refrain from revoking good time credits that people in prison have already accrued, except for the most serious of offenses.
5. Protect good time that people have already earned by making time earned credits vested and immune from forfeiture after five years.

States that do not have systems that allow people to earn time off their sentences should create those systems, and give all incarcerated people a meaningful opportunity for release. Good time is one of the most effective mechanisms that states can use to release incarcerated people in a timely manner (we wrote about the other seven in our report Eight Keys to Mercy). As a pandemic continues to turn prison sentences into death sentences, it has never been more urgent that state prison systems strengthen their levers of mercy.

Prison Policy Initiative and allies oppose new banking rule

Trump administration proposes to prohibit banks from considering morality when making loans to the prison industry. We say no.

by Stephen Raher, December 31, 2020

Why do bank regulators care about the private prison industry? Most people would probably respond “they don’t,” and that answer would have been correct until a few months ago when the Office of the Comptroller of the Currency (“OCC”) proposed a troublesome new rule on bank lending.

In recent years, numerous social justice movements have used public education and advocacy to successfully persuade banks to stop financing certain industries like fossil fuel extraction, gunmakers, and private prison companies. In response to these generally beneficial movements, the OCC (an obscure but powerful federal agency) has proposed a rule that would prohibit federally chartered banks from considering non-quantitative aspects of a borrower’s business when making lending decisions. In other words, banks could no longer just say “we have moral or ethical problems with a certain industry and will not lend to such companies anymore.” An excellent general background and commentary on the rule can be found in this blog post by Prof. Adam Levitin (Georgetown Law School).

To be sure, private prisons are an unfortunate development, but the Prison Policy Initiative generally agrees with the assessment of Prof. Ruth Wilson Gilmore that the private prison industry receives disproportionate attention. Like Prof. Gilmore, we agree that private prisons are bad actors, but they do not drive policy and they represent a small sliver of the enormous system of mass incarceration. Still, the OCC’s proposed rule bothers us. We may not prioritize campaigns aimed at the private prison industry, but if our allies want to undertake that work, they should be able to. Plus, some of those campaigns have been successful, and those victories benefit everyone by chipping away at an indefensible and immoral industry.

So, we decided to speak up. On December 30, joined by a great group of allies (American Friends Service Committee, Beneficial State Foundation, Families Belong Together, Human Rights Defense Center, In the Public Interest, Make the Road New York, MomsRising, Presente.org, and Worth Rises), we submitted comments in opposition to the proposed rule. With the imminent change in presidential administration, we are hopeful that this bad idea can nipped in the bud.

Stimulus, round 2: Incarcerated people will be eligible for new round of payments

At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

by Stephen Raher, December 30, 2020

In the wake of the recently passed stimulus bill, many Americans are complaining about the paltry direct payments of $600. Without detracting from Congress’s failure to support the millions of people who need help, it is worth pausing to acknowledge one unexpected victory in the bill: It contains no prohibition on stimulus payments for incarcerated people.¹

The previous stimulus bill, passed in March, took some people by surprise by not making incarcerated people ineligible for direct cash payments. The IRS made an ill-advised (not to mention unauthorized) attempt to exclude incarcerated people, but this policy was slapped down by the federal courts. As we wrote previously, because Congress did not exclude people in prison or jail, the IRS had no choice but to issue the payments to incarcerated people who otherwise qualified. Others who made this same argument ultimately prevailed in court and incarcerated people began to receive stimulus checks.

In July, when Congress first started to consider a subsequent round of stimulus, the Senate Finance Committee proposed legislative language that would exclude incarcerated people from receiving funds (both going forward and retroactively). The fact that no such language appears in the bill passed in December suggests that this issue was probably the subject of actual negotiation.

It’s a good thing that Congress stuck to the policy of including incarcerated people in the pool of eligible recipients. Even before the pandemic, day-to-day life in prison and jail was getting expensive, with commissary charges for basic food and hygiene items, and increasingly common pay-to-play e-book and music programs. But the COVID-19 crisis has brought communications costs (phone, video, and electronic messaging) into sharp contrast. In the many facilities that have suspended in-person visits, phone and video are now essential services (which come with a price tag). When incarcerated people lack the money needed to pay for basic health and communications items, the financial burden typically falls on their loved ones on the outside who may have to sacrifice basic needs to support family members in prison.

The second round of stimulus payments will help people pay for basic necessities in prison or jail, and perhaps begin saving to cover expenses upon release from custody. At the end of an otherwise disappointing session of Congress, the inclusion of incarcerated people in the stimulus program is a small ray of hope.

Prisons shouldn’t be charging medical co-pays – especially during a pandemic

Our December survey of medical co-pay policies shows that some states are reinstating medical co-pays as COVID-19 continues to spread in prisons.

by Tiana Herring, December 21, 2020

This briefing has been updated with updated data in February 2022.

Despite a record number of new COVID-19 cases in prisons this month, some state departments of correction are already starting to roll back necessary suspensions of medical co-pays. Prior to the pandemic, most prison systems charged incarcerated people between $2 and $5 for each medical appointment — a fee that can make attaining medical care burdensome or impossible. In March, we found that many states had relaxed these policies in response to the pandemic, either suspending all medical co-pays, or suspending those for respiratory or flu-like symptoms. But in a follow-up survey of medical co-pay policies, we found that since March, three states have made their policies more restrictive in the middle of the pandemic.

Arkansas, Idaho, and Minnesota had previously suspended all co-pays as of March, but have since reinstated co-pays for non-flu-like symptoms. They are now among 29 states that currently suspend co-pays only for visits involving respiratory, flu-related, or COVID-19 symptoms — a policy that discourages many from seeking treatment. Even worse, Nevada has continued to charge co-pays throughout the pandemic, regardless of symptoms.

Meanwhile, three states have improved their policies since March: New Jersey has suspended all medical co-pays, and Delaware and Hawaii suspended co-pays for those with flu-like symptoms.

Most states are still charging medical co‑pays in prisons
despite the ongoing pandemic

Before the pandemic prompted these suspensions, all but 11 states charged medical co-pays. While a $2 to $5 co-pay may not seem like much to a “free world” worker, unconscionably low wages in prisons make even the lower medical co-pays entirely too expensive. Because incarcerated people typically earn 14 to 63 cents per hour, these charges are the equivalent of charging a free-world worker $200 or $500 for a medical visit.

Currently, most states are suspending co-pays for flu-like or respiratory symptoms. But this is not enough to ensure that people are comfortable seeking treatment, and thereby preventing the spread of the virus. As we’ve seen over the course of the pandemic, not all COVID-19 symptoms fall within these vague categories – and many people don’t display symptoms at all. And some states, such as Indiana, have implemented policies that charge co-pays to those who “disingenuously” report symptoms. Policies like these could lead people to hold off on seeking care until their symptoms become more severe. What’s more, it’s likely harder than ever for many incarcerated people to afford medical copays, due to possible loss of paid work for themselves and their loved ones.

Prisons should instead enact policies that mirror the outside world, where people are encouraged to get tested often and carefully monitor their symptoms to prevent outbreaks. Suspending medical co-pays for everyone for the duration of the pandemic – or better yet, beyond the pandemic, as 11 states and D.C. have already done – is a necessary step departments of corrections should take to attempt to stop the spread of COVID-19 in prisons.

Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now?

As states mandate reducing the capacity of public spaces to slow the spread of COVID-19, we collect the data to show just how overcrowded almost every state prison system still is.

by Emily Widra, December 21, 2020

Before the pandemic, nine state prison systems and the BOP were operating at 100% capacity or more. These prison systems were holding more people than their facilities were designed to house. Now, 10 months into the pandemic, we find that there are still far too many people crowded into prisons across the country.¹ Despite the ongoing pandemic, and efforts to reduce the number of people behind bars, we calculated that 41 states are currently operating at 75% or more of their capacity, with at least nine of those state prison systems and the federal Bureau of Prisons are still operating at more than 100%. Only one state — Maine — has a current prison population below 50% of their capacity.²

Prison overcrowding has always been a serious problem, correlated with increased violence, lack of adequate health care, limited programming and educational opportunities, and reduced visitation. But during the current pandemic, overcrowded prisons — and even prisons operating at levels approaching capacity — are more deadly than ever. In a recent study of Texas prison capacity, COVID infection rates, and mortality, researchers found that prisons holding between 94 and 102% of their capacity had higher infection rates and more deaths than prisons operating at 85% of their total capacity, suggesting that a prison’s crowdedness correlates with viral spread.³ This makes sense when we consider that many state and local governments have mandated restaurants, retail spaces, and schools to operate at a reduced capacity to slow the spread of COVID-19 through communities.

Public health and medical experts have recommended decarceration since the beginning of the pandemic, arguing that fewer people behind bars would protect those who remain incarcerated and correctional staff, as well as slow the spread of COVID-19 in surrounding communities. But even as many prison populations slowly decrease in response to the pandemic, there is still not enough space inside most prisons to allow for adequate social distancing or medical isolation and quarantine. Prisons were not designed to address a public health crisis, and even before COVID-19 entered the picture, public health officials knew that correctional and detention settings were breeding grounds for all sorts of communicable diseases.

Throughout the country, states and the federal system have failed to carry out major prison reductions, leaving prisons operating at, close to, or even above their stated capacities. This contributes to deadly outcomes, as close quarters and high rates of preexisting health conditions among incarcerated people exacerbate the crisis behind bars. As a result, our crowded state and federal prisons have a COVID-19 case rate four times higher, and a death rate twice as high as in the general population.