An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform

Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar “zombie policies” are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety.

by Emmett Sanders, August 21, 2024

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons. Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country. These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024. Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Louisiana’s moves are remarkably out of touch, coming at a time when many states are engaging in genuine efforts to reform sentencing and parole, including expanding release through discretionary parole for all or some part of their prison populations. Since the Supreme Court’s 2012 decision in Miller v. Alabama, which found that judges must consider age and maturity when imposing life without parole sentences, 28 states and Washington D.C. have eliminated juvenile life without parole, with states like Minnesota implementing new juvenile parole review boards. Meanwhile, at least 46 states and Washington D.C. have established either medical parole, geriatric parole, or both, creating new release pathways for the elderly and chronically infirmed. Even in states where discretionary parole has long been abolished, such as Illinois, Virginia, and Maine, there have been strong pushes to see it restored. Louisiana itself had been slowly moving in the right direction, having seen an almost 30% reduction in its prison population over the past twelve years largely thanks to previous sentencing reforms that have driven down the number of people entering prisons. Now, however, Louisiana is reversing a decade of progress under the cover of false narratives.

Louisiana’s parole system was bad, but it was better than nothing

Louisiana is already a world leader in incarceration. The Pelican State holds the dubious distinction of having the highest incarceration rate in the United States, and is second only to El Salvador for the highest incarceration rate among the world’s independent democracies.¹

Their parole system, which earned an “F” in our 2019 report grading parole systems across the country, is partially to blame: In 2023, the board held only 790 hearings, and granted only 387 people parole. Discretionary parole hearings declined 52% from 2019 to 2022 — a period of time which also saw a staggering 59% drop in the number of people released via discretionary parole, and a 15% reduction in parole grant rates. In short, fewer and fewer people were already being released from prison in Louisiana, and those with violent crimes were already serving 25% more time in 2022 than they were in 2018. Nevertheless, discretionary parole remained a ray of hope for many in Louisiana’s prisons. Now, that meager but meaningful release mechanism will be available to far fewer people.

Keeping people in prison longer harms public safety, rather than helping it

Proponents of “tough on crime” bills like HB 9 and HB 10 often depict them as efforts to improve public safety. However, their arguments that more time in prison leads to more public safety are not only misleading, they are costly and dangerous.

Louisiana’s historical and projected prison population, 2012-2034.

According to estimates from the Crime and Justice Institute, HB 9 and 10 are poised to almost double Louisiana’s prison population by 2034. HB 10 alone will double the number of people convicted of non-violent crimes in Louisiana’s prisons and triple the state’s prison budget. The resulting growth in prison populations will almost certainly require new prison construction, which could come at a price tag of $2 billion.

These costs represent billions of dollars that could be spent on actually-effective means of improving public safety, like investments in better community-based violence interruption, crisis response, and youth programs. The ACLU of Louisiana has noted that savings generated by the state’s decarceral reforms over the past decade were successfully reinvested in innovative programs that prevented recidivism. As Louisiana lawmakers should know by now, communities are safest when the state invests money in proven violence solutions, not harsh sentences.

In addition, overcrowded prisons are dangerous prisons for those who are incarcerated as well as prison staff. Overcrowding is often cited as a primary reason for chronic severe understaffing in prisons and jails because it creates deadly conditions for staff and incarcerated people alike. Studies abound that show overcrowding and understaffing are associated with high levels of prison violence. To make matters worse, taking away discretionary parole and the ability to earn good conduct credits inside crowded prisons only adds fuel to the fire by eliminating a major incentive for people in prisons to engage in programming, avoid confrontations, and adhere to prison rules, all of which improve safety for those who are incarcerated, their families, and the communities to which they return. Indeed, another state has experimented with similar law changes to Louisiana’s, with disastrous results: Tennessee’s decision to implement truth-in-sentencing laws lead to numerous riots in the state’s prisons. Given that at least 95% of people confined in state prisons will eventually be released, subjecting them to increased violence and doubling down on trauma — rather than addressing it — ensures that these experiences will follow people home.

Conclusion

Ultimately, abolishing discretionary parole and imposing truth-in-sentencing in Louisiana is a backward move that essentially guarantees the state will remain one of the worst incarcerators in the world for years to come. Politicians who are truly concerned about public safety should focus on making sure that people in prison have access to programming, education, and the resources they need to make a successful transition into society as soon as possible, and that communities are well-supported to help them once they get out, rather than spending billions of dollars to ensure that incarceration is as long and as traumatic an experience as possible.

Advocacy Spotlight: Texas Jail Project

How one small organization in Texas is fighting to get answers for families of people who die in jails and forcing accountability from the jails they die in.

by Emmett Sanders, August 6, 2024

Across the country, people are dying in jails. Often, these deaths are used as the basis of arguments to spend millions or even billions of dollars on jail construction. As our research has shown, however, a new jail is by no means a guarantee that jail deaths won’t continue or even increase. Meanwhile, far less scrutiny is being paid to whether all jail deaths are even being reported. Some jails have implemented policies of not reporting deaths to media outlets, intentionally obscuring transparency. Many jails do not adhere to rules requiring jail death reporting; one report found that at least 990 in-custody deaths went unreported to the federal government in 2021 alone.

Texas, which saw at least 95 reported in-custody jail deaths in 2019, has a dark history of disguising deaths in custody and failing to report them, leaving the public and families without answers. Texas Jail Project, a small non-profit largely made up of advocates who have had family members incarcerated in the state’s county jails, has been working tirelessly to find who is missing from the in-custody death reports, and to compel accountability from jails.

About Texas Jail Project

Texas Jail Project, whose work Prison Policy Initiative’s advocacy department is proud to support, is a tiny, women-of-color-led organization whose impact is far larger than its team of four full-time employees. For more than 17 years, Texas Jail Project has worked to inform, educate, empower, and liberate communities and people impacted by incarceration in 244 county jails across the state of Texas. Under the guidance of Executive Director Krish Gundu, their goal is not only to, as one of their clients phrased it, “end the investment in death-making facilities such as jails” but to “redirect that investment into life-affirming” community-based resources. Responsivity to the needs of the community they serve has led them to tackle a wide range of issues from opposing the shackling of pregnant women in jail while giving birth, to advocating for people in jail with disabilities or who have mental health or substance use needs, to providing a wide array of direct aid to individuals in jails and their families. For years, they have also been relentless champions for those whose deaths in Texas’ county jails have gone unreported.

The Problem: A strategic lack of accountability

Although Texas has a detailed statute surrounding the reporting of jail deaths in the state, many deaths in jails go unreported. When the system is working as it should, deaths are supposed to be reported to the Texas Commission on Jail Standards within 24 hours. This triggers a third-party investigation, and a custodial death report from that investigation must be filed with the Attorney General’s Office within 30 days. This process is vital not only for public accountability but for families and loved ones – these reports are sometimes the only source of information about the circumstances of jail deaths.

However, through their work directly with families of people incarcerated in jails, Texas Jail Project learned that this process is not being consistently followed. Although some failures to report are an administrative oversight, not all lack of reporting is accidental. Places like Harris County have a record of issuing personal recognizance bonds to critically ill people in their custody and releasing them shortly before they die to avoid being responsible for their deaths. This practice of issuing “medical bonds” is often a way for jails to get off the hook for the costs associated with treating those who are in their care, and happens in many counties in Texas. Texas Jail Project discovered that in Ellis County, for example, two women had died in a period of just two weeks, both shortly after having been issued medical bonds.

In addition, some counties in Texas regularly ship people in their custody to jails in other states, citing overcrowding concerns. Once there, if the person dies, the jail that sent them will often claim to have no responsibility to report their deaths, as the deceased is no longer in their custody.

How Texas Jail Project is making a difference

Texas Jail Project developed a strategy for finding and correcting failures to report jail deaths. By scouring the list of in-custody deaths submitted to the Texas Commission on Jail Standards and comparing them to the Attorney General’s records, the organization began to identify missing cases. They then issued letters of notification to the jails that had failed to report these deaths, copying both the Commission on Jail Standards and the Attorney General, and citing the jail’s violation of state law. Often, this simple act of notification alone was enough to have the person added to the list and provide families with information they’d been denied. Since 2023, Texas Jail Project has discovered 18 unreported jail deaths and has successfully forced reports to be issued in 14 of them.

In one of these cases, a woman named Ruby McPeters died in Hood County Jail from complications following a C-section she underwent while in custody. Her death went unreported for nearly 5 years due to simple clerical error before Texas Jail Project discovered the omission. After Texas Jail Project contacted the jail, Ms. McPeters was added to the Office of the Attorney General’s list of in-custody deaths that very day. Making sure that deaths like Ms. McPeters’ are reported is vital to exposing medical maltreatment in jails and forcing changes.

The organization has also worked tirelessly to correct the problem of unreported out-of-state deaths. Harris County, for instance, regularly outsources its incarceration to jails in other states, such as LaSalle Parish, Louisiana, and when someone dies while being held there, Harris County has steadfastly refused to acknowledge responsibility for their death. Texas Jail Project is making progress in holding Harris County accountable; The Texas Commission on Jail Standards is holding a session on August 8th and has put the issue on their agenda.

Although reporting requirements for jail deaths vary by state, advocates throughout the country can follow Texas Jail Project’s lead to ensure jail deaths are more consistently and thoroughly reported. The first step is to develop a deep understanding of what the reporting requirements are for jail deaths, and, if there are gaps in that accountability framework, to lobby regulatory bodies and state legislatures to impose additional requirements. When it comes to making sure the laws on the books are actually followed, Texas Jail Project’s work shows how publicly and consistently informing jails of their oversight responsibilities can be highly effective in forcing jails to actually follow the rules.

Deep Impacts

For the family members of those who die in pretrial detention in Texas jails who have sometimes waited years to learn what happened to their loved ones, Texas Jail Project’s work is profound. Lack of transparency can bring a lack of resolution that can devastate families. Krish Gundu recalls one mother whose 32-year-old son died just six days after being arrested during a mental health crisis and who was “stonewalled” for answers for months. “It nearly killed her,” Gundu notes. In another instance, a family member was so visibly upset over the lack of transparency that they were nearly escorted out of a public meeting with the Jail Commissioners before Texas Jail Project intervened. Texas Jail Project not only compels people in positions of power to follow the statutes, but their efforts provide relief for grieving families and ensure people are not forgotten. As Gundu notes, “This is an essential piece of history that needs to be written.”

Learn More

See more of Texas Jail Project’s work and find out how you can support their efforts here.

Visit our work on jails and jail deaths, and resources for advocates in counties considering jail expansion. You can also use our toolkit to learn how to respond when officials try to avoid transparency by citing HIPAA laws and get better information about jail deaths in your county.

Research roundup: Evidence that a single day in jail causes immediate and long-lasting harms

Recent research suggests the onset of pretrial detention’s criminal legal system, social, and economic harms is earlier than previously thought.

by Brian Nam-Sonenstein, August 6, 2024

The criminal legal system views pretrial detention as a necessary sacrifice that prioritizes crime prevention and court attendance over personal liberty. However, detention is demonstrably ineffective on both fronts: when compared to releasing people pretrial, jail counterintuitively worsens these outcomes on day one while making the system decidedly more unjust for those behind bars. These failures come at a steep cost, as detention also immediately disrupts a person’s ability to work and increases their risk of death. Horrendous jail conditions are only partially to blame; on a more basic level, pretrial detention’s disruptive and stigmatizing effects help explain why it fails to live up to its promises, and no amount of newer, nicer jails can change that.

Judges contemplate the risk a person poses to the community if released, but — crucially — not the risk detention poses to individuals and the community. What are the risks of detention, how quickly do they materialize, and what might the system look like if they mattered in bail determinations? To answer these questions, we examined recent studies that measure pretrial detention’s impact on people, particularly within the first 72 hours in jail.¹ Building on our investigations into pretrial detention’s role in destructive cycles of arrest and incarceration, the benefits of pretrial release, and the dangers of jail expansion, we find that there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves and their communities.

As we discuss below, if judges considered these harms and their implications for public safety when deciding whether to initially release or detain people, far fewer people would be jailed pretrial, shrinking the system to a tiny fraction of its current size.

Each day a person spends in pretrial detention was strongly associated with a consistently higher likelihood of a new arrest pending trial compared to those who are not detained.

Pretrial detention doesn’t deter crime or ensure court attendance, but it does undermine basic fairness in the legal process

At arraignment, judges are tasked with quickly deciding whether the defendant is likely to commit a new crime and whether they are likely to return to court if they are released.² However, they do not consider detention’s impact on those outcomes. For many defendants, a judge’s decision to initially detain means they will be forced to remain in jail for the duration of the pretrial period simply because they cannot afford their bail. But roughly two-thirds of people who are initially detained (62%) spend a week or less in jail according to the most recent data available.³ In other words, some people are immediately released while others are initially detained and later released while their trial is still pending. Researchers have compared these two groups to try and measure the impact of decisions to release or detain on public safety and court appearance. In doing so, they have unearthed a baffling contradiction at the core of this routine process: pretrial detention is seen as tough medicine but it is often a completely unnecessary and short-sighted approach to safety and justice — one that can quickly have opposite, unintended effects.

Despite its rationale, pretrial detention does not deter crime

In general, there is no evidence to support detaining people in the name of public safety before they’ve been convicted of a crime. In fact, just a day or two in pretrial detention makes communities less safe. One 2022 study, for example, examined a robust dataset collected from 1.5 million people booked into a Kentucky jail between 2009 and 2018. Researchers found that each day a person spent in pretrial detention was strongly associated with an escalating risk of a new arrest when that person was later released before the end of their trial. After one day in jail, the risk of rearrest was 24%; after the third day, it jumped to 45%, eventually reaching nearly 60% by the 12th day. Other studies with longer timelines produced similar results: researchers investigating Harris County, Texas — home to some of the most sweeping pretrial reforms in recent memory — found that detention increased the number of new charges. Compared to people who had been released, misdemeanor defendants who had been detained for at least a week were charged with 11% more new misdemeanors within a month of their bail hearings.⁴

Consistent with these findings, and contrary to fears that releasing people pretrial will lead to more crime, communities that have reformed their pretrial processes have repeatedly reported successful outcomes. New Jersey, for example, implemented a risk-informed approach to pretrial release and virtually eliminated the use of cash bail in 2017. Serious crime rates fell and the percentage of people arrested for new crimes while awaiting trial only increased by one percentage point. In Illinois, early results indicate re-arrests have not substantially increased for people awaiting trial after the state ended money bond, even as jail populations have declined. Another study examining 421,850 cases from Philadelphia (Pa.) and Miami-Dade (Fla.) counties also concluded release had no detectable effect on new crime in the two years after the initial bail hearing.

There are better ways to ensure court attendance than pretrial detention

It may seem intuitive that short jail stays can “scare someone straight” and deter them from missing court when they’re later released before the end of their trial. But detention does not work this way.⁵ This is because, for the most part, people who miss court are not trying to evade the legal process. On the contrary, when people are jailed, they can lose their housing, jobs, and transportation, making it harder for them to get to court. The same Kentucky study, for example, found that the chances a person would miss court were actually higher for those who were detained: they were 6% more likely to miss court after being held for just one day and 26% more likely after eleven days of detention. Overall, though, the degree of increased risk varied, leading researchers to conclude that detention doesn’t have a consistent relationship with court attendance. Again, we see similar results in other studies examining detention’s impact on court appearance: in New Jersey, court attendance dropped only 3% after the state drastically reduced the use of cash bail. In short, the evidence shows that pretrial detention has no meaningful benefit for court appearances.

Detention is a very blunt tool for ensuring court attendance. There are other, more effective, and less destructive alternatives that directly address the barriers people most often face.⁶ Court reminders, flexible scheduling, transportation and language support services, and simplified court procedures attend to the causes of failure to appear without exposing people to the toxic effects of jail.

Detention undermines fairness in the legal process

Pretrial detention is a source of injustice in the legal process because it puts people under enormous pressure to plead guilty and resolve their cases, regardless of actual guilt or innocence. As a result, people who are detained pretrial are more likely to be sentenced to jail or prison — and receive a longer sentence — than those who are released. The Kentucky study found that people released pretrial were about 25-50% less likely to receive a sentence of incarceration than people who were detained. This dynamic endures even for people who are released pretrial and fail to appear in court or are rearrested — this group still had better case outcomes on average compared to those who were detained. The Philadelphia/Miami-Dade study similarly found release reduced both the likelihood of pleading guilty (by 25%) and conviction (by 24%) compared to the average person in detention.

It’s easy to understand why release leads to better case outcomes: it strengthens defendants’ bargaining positions, particularly for those charged with less serious crimes and who have no prior offenses. The stressful, disruptive, and dangerous experience of detention pressures many people into simply pleading guilty⁷ in hopes that doing so will more quickly end their contact with the system. Furthermore, it is very, very hard to defend oneself from criminal charges while in jail, where it is much harder to contact people who can help. The final analysis is exceedingly grim: the research suggests that pretrial detention fails to produce safety and encourage court attendance at the immense cost of undermining the basic fairness of the criminal legal process.

Part of what makes this all so baffling is that detaining people unnecessarily and subjecting them to the harms of jail degrades their belief in the criminal legal system as a legitimate institution, which studies of “procedural justice” have linked to law-abiding behavior. In other words, when people are treated unjustly by the police or courts, they see less reason to comply with them. Judges and prosecutors may believe detention is a safer choice, even despite the research, but this impulse may actually set off a chain reaction that puts justice further out of reach and makes everyone less safe all at once.

Employment, health, housing, government benefits, and more are jeopardized by detention

Even a day or two in pretrial detention can destabilize a person’s life for years to come, contributing to its counterproductive influence on safety and justice. Courts should consider these outcomes in their pretrial calculus. One study looking at participants in two San Francisco pretrial diversion programs between 2013 and 2018 found that nearly half reported suffering a “material loss” from detention, including legal debt (36%), missed work (40%), lost jobs (18%), and lost property (18%). Focusing specifically on employment, this study suggests that people’s livelihoods are at stake within the first three days behind bars: 7% of people held for just one to three days, and 30% of people held for four to seven days, reported losing their jobs.⁸ Black (64%) and multiracial (50%) workers who missed work due to detention fared the worst, losing jobs more often than white (36%) and Latino (33%) workers because they were held in detention longer on average.

People who were detained, but who had been employed most if not all of their adult lives, were dramatically more likely to lose their jobs due to missing work than those released. This risk only got worse the longer they were in detention.

Even those with strong work histories are no match for the destructive power of pretrial detention. The same study found people who lost their jobs or whose vehicles were seized when they were detained struggled to maintain stable employment, even years later. Twenty-five percent of people with strong work histories who lost their jobs or vehicles while they were detained reported being unemployed immediately after detention and three years later — more than twice the rate of those who didn’t lose their jobs or cars. Black and Latino defendants suffered vehicle loss at disproportionately high rates, further contributing to employment instability.

Regardless of the amount of time spent behind bars, pretrial detention poses other serious threats to people’s livelihoods when they are eventually released. One survey of over 1,500 people arrested and charged in New York City between 2019 and 2021 found:

Lost jobs and barriers to employment. People who have been detained pretrial lose jobs more frequently than those who are released, while also struggling to get new jobs, encountering transportation issues, and contending with more “job issues” like fewer hours, demotions, and lost clients. In particular, detained people were 34% more likely to report that they had job issues than those who were released. Stigma and discrimination against people who have been detained, regardless of whether they had a record of prior convictions, deterred employers from hiring this group. Some people internalized this experience and were discouraged from job-seeking and participating in the labor market at all.

Loss of government benefits and housing. People who are detained pretrial are more likely to lose government benefits than those who are released. Those who were detained were around 30% more likely to lose benefits since their arrest than released respondents. People who were detained were also more than four times (420%) more likely to become unhoused than those who were released.

Pretrial detention raises the risk of death, including suicide, almost immediately upon admission. Twenty percent of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year, and most suicides in jails occurred shortly after entering detention.

Other research shows that pretrial detention can be immediately life-threatening. Suicide becomes a serious risk very quickly: even our nation’s top officials acknowledge that “certain features of the jail environment enhance suicidal behavior.” A recent study estimated that 20% of all adult suicides in the U.S. in 2019 were among people who had spent at least one night in jail in the past year.

For suicide and deaths linked to drugs or alcohol, those first few days in jail are the deadliest. Most suicides in jail occurred shortly after admission: 12% of jail suicides between 2015 and 2019 occurred in the first 24 hours, 44% occurred within the first week, and two-thirds (66%) occurred within the first 30 days of incarceration. From 2000 to 2019, the median time in jail before a drug or alcohol intoxication death was just one day. Jail’s lethality has been trending upward over the years: from 2000 to 2019, the number of jail deaths occurring within the first 7 days of detention rose by nearly 44%.

This growing body of research refutes the rampant myths and fear-mongering that suggest pretrial detention is a bitter pill that is ultimately in everyone’s best interests. They show that even a day or two in jail can cause immense and long-lasting harm — harm that judges tragically and systematically ignore when deciding whether to release or detain someone. If detention’s costs were considered, however, they would almost certainly tip the scales toward release in nearly every case, leading to better public safety outcomes, improved court attendance, a more just legal process, and fewer destructive effects on people’s livelihoods.

If judges considered detention’s risks to our communities, they would detain far fewer people

Under our current system, judges only weigh the government’s interest in public safety and court appearance against an individual’s constitutional right to liberty and due process. In other words, judges are entirely focused on the risks of release and whether they outweigh someone’s right to freedom — ignoring detention’s serious, immediate risks to individuals and public safety.

But what would happen if judges considered the costs of detention more holistically, as anyone facing detention naturally would? Recently, scholars have tackled this exact question in a novel way. In Pretrial Detention and the Value of Liberty, researchers asked survey respondents to compare spending time in jail to being the victim of a crime, to gauge how much future crime would have to be avoided to reasonably justify preventative detention.⁹ They asked questions like, “If you had to choose between spending a month in jail or being the victim of a burglary, which would you choose?” Their results show that people see pretrial detention as an extremely bad experience:¹⁰ Most said that spending just one day in jail would be as bad as being the victim of a burglary, and a month would be as bad as an aggravated assault.¹¹ This finding held across subgroups, including those who have experienced victimization and incarceration, and across racial and ethnic groups.¹²

The results show that the public has a much higher risk threshold for detention than courts do. If it were up to a typical respondent, even a day of pretrial detention would only be justified on public safety grounds if the defendant was virtually certain to commit a serious crime if released. In reality, even people considered to pose the highest risk of committing a violent offense if released (according to a risk assessment tool) have a relatively low risk of rearrest.¹³ By this study’s measure, then, detaining even the “highest risk” defendants would prevent too little crime to justify the immense human cost of detention. If courts also recognized that the harms are so severe that detention can rarely be justified, and other, less costly alternatives are available, society’s current investment in pretrial detention would make a lot less sense.

There are better alternatives for public safety than pretrial detention

As argued earlier in this briefing, judges are generally absolved of having to consider the dangers posed by detaining people. That’s awfully convenient because, from the perspective of prosecutors and judges — largely elected officials whose own statuses are at stake when they make decisions — the risks of releasing the “wrong person” far outweigh those of detaining the “wrong person.” If the dangers of even a few days in detention were part of the cost-benefit analysis, however, this tradeoff would be far less of a commonsense slam dunk.

Given the immediate, long-lasting, and sometimes irreversible harms of pretrial detention, reforms that prevent as many people as possible, as early as possible, from being detained can have significant, positive downstream effects on public safety. Such reforms include:

• Creating diversion opportunities at multiple points in the legal process, especially before and directly after arrest;
• Ending cash bail;
• Providing public defenders at first court appearance to ensure people’s unique circumstances are communicated to decision-makers;
• Developing more robust, voluntary, community-based pretrial supports that help people navigating the system; and
• Encouraging judges and prosecutors to be less punitive by educating them on the risks of pretrial detention, carefully and publicly monitoring their decision-making, and removing judges and prosecutors who continue to overuse pretrial detention.

Interventions earlier in the legal process can also make a meaningful difference by heading off the risk of detention from the start — especially interventions that reduce the frequency and seriousness of police contact and prevent jail capacity from expanding. These include:

• Reducing police contact and reclassifying offenses and how they’re treated, such as reducing misdemeanors to non-jailable infractions and implementing a presumption of citation in lieu of arrest;
• Reducing reliance on pretrial detention by limiting jail capacity. This can be done by, for example, preventing the construction of new jails and ending bedspace rental (which increases demand beyond pretrial detention and fuels jail growth); and
• Decriminalizing drugs, poverty, sex work, and homelessness.

Taking risks to public safety seriously requires an accounting of the harms of detention. The data show that jurisdictions can much more heavily favor release without sacrificing public safety and may be more likely to improve safety over the status quo by doing so. The logic of pretrial detention does not stand up to scrutiny, and its mythical power to protect public safety should be abandoned in favor of less harmful alternatives.

Prison Policy Initiative endorses the Environmental Health in Prisons Act

Act recognizes the right to live in a healthy environment and offers much-needed environmental protections for people in prisons.

by Emmett Sanders, July 18, 2024

On Thursday, July 18, 2024, U.S. Senator Ed Markey and Congressperson Ayanna Pressley, both of Massachusetts, introduced the Environmental Health in Prisons Act. Prison Policy Initiative is proud to support this bill, which seeks to address hazardous environmental conditions in federal prisons.

The bill has several provisions, all focused on increasing transparency and creating healthier environments for those in prisons. This act:

• Requires stricter monitoring and reporting from federal carceral agencies on a wide array of pollutants and environmental hazards, including air and water quality, temperature, mold, pests, light levels, noise pollution, and more, and establishes oversight through an independent advisory panel.
• Requires people held in federal carceral facilities to be informed as to potential environmental hazards, their effects, and precautions they can take to protect themselves.
• Mandates and funds several feasibility studies and pilot programs, including studies on decarceration as well as those that address mitigating environmental harm.
• Offers much-needed whistleblower protections for both incarcerated people and prison staff who request information about a facility’s environmental data or who raise concerns about potential unreported hazards.

Advocates have long sounded the alarm that prisons are situated, constructed, and operated in ways that perpetuate environmental injustices. Fully one-third of all federal and state prisons lie within three miles of designated federal “superfund” sites — toxic waste areas most needing extensive cleanup. Pollutants such as arsenic and lead are regularly found in prison water, and people in prison often are forced to suffer through dangerously excessive heat and other extreme and sometimes deadly conditions.

We at Prison Policy Initiative strongly support the Environmental Health in Prisons Act. It adds a much-needed layer of independent oversight for a prison system that has long deprioritized the environmental well-being of those it imprisons. The hazardous conditions in prisons can have deep and long-lasting physical and mental health consequences, can socially and economically devastate families and communities, and can create enormous strain on the prison system, which is tasked with providing long-term medical care and mental health care in the aftermath. We are proud to support these efforts toward better policy, more equitable and ethical environmental justice, and the recognition of incarcerated people as human beings with a right to be free of toxic prison conditions.

Read the official press release for the Environmental Health in Prisons Act here.

For further information on the need for environmental justice in prisons, consider the following resources:

• Heat, floods, pests, disease, and death: What climate change means for people in prison
• Prisons are a daily environmental injustice

FCC votes to slash prison and jail calling rates and ban corporate kickbacks

New rules, the result of the bipartisan passage of the Martha Wright-Reed Fair and Just Communications Act, are a massive victory in the decades-long fight for prison and jail communication justice.

by Wanda Bertram, July 18, 2024

Today, the Federal Communications Commission voted to implement several new regulations on phone and video calling services in prisons and jails. As required by the 2022 Martha Wright-Reed Fair and Just Communications Act, the FCC laid out new price caps that prisons, jails, and their telecom providers must abide by, significantly lowering the existing caps which were set in 2021. The agency also made a number of long-sought reforms that will bring critical relief to families of incarcerated people and reduce incentives for bad policy in prisons and jails.

The new caps on phone and video calling rates in prisons and jails

The FCC voted to set price caps for phone calls of 6¢ per minute for prisons and large jails, 7¢/minute for medium-sized jails, and slightly more for small and “very small” jails. This move lowers the existing caps by more than half, a tremendous step forward that will save the families of incarcerated people many millions of dollars every year.

The FCC also laid down the first rate caps for video calling — a quickly growing industry, which we put on the national radar with our 2015 report — though it should be noted that these are interim rates as the agency decides on permanent regulations. Prisons will be required to keep video calling rates at or below 16¢/minute, and jails are required to keep rates between 11¢/minute and 25¢/minute, depending on facility size. While this is an intermediate step, it stands to substantially lower the cost of video calls, for which families currently pay about 25¢ a minute on average.

Additionally, the FCC finally prohibited the companies from charging additional fees for “ancillary services” like making a deposit to fund an account, and now will just require the companies to recover those costs within their per-minute charge for phone or video service. This technical-sounding change ends a long debate around the best way to eliminate some of the industry’s dirtiest tricks that shortchange both the families and the facilities.¹ The FCC itself recognized in 2015 that fees were “the chief source of consumer abuse and allow circumvention of rate caps” when it set caps on five types of fees and prohibited all the others. Since then, the FCC has struggled to keep up with some providers’ attempts to circumvent the fee caps, so with this order the FCC will lower costs to the families while offering more simplicity and consistency to the companies and the facilities.

The FCC’s new rule on ancillary fees also effectively blocks a practice that we have been campaigning against for years: companies charging fees to consumers who choose to make single calls rather than fund a calling account, and deliberately steering new consumers to this higher-cost option in order to increase fee revenue. (Our 2019 State of Phone Justice report offers a visual depiction of this reprehensible practice.)

Other important financial regulations in the FCC’s order

The FCC’s order takes the momentous step of prohibiting companies from paying most kickbacks — or in the industry’s and FCC’s terminology, “site commissions” — to contracting agencies. Commissions, as we have written before, are a major factor driving up the costs of prison and jail telecom services: Counties and states choose their telecom provider based on which one will offer the highest commission payments, and companies offset the cost of paying these kickbacks by raising their rates. The new rules appear to restrict site commissions in all of their many forms, including “donations” of free technology or other gifts to the facilities.

There is an important caveat to this reform: Companies can still make payments to agencies totaling up to 2¢ for every calling minute, provided they can show that these are reimbursements for costs the facilities themselves are paying for “used and useful” calling services. (These commissions must be built into companies’ rates, within the caps listed above.) In other words, commission payments are not completely eliminated, but the biggest perverse incentive they exert in the prison and jail telecom market has been greatly curtailed.

Alternative pricing plans

In another departure from their previous regulatory approach, the FCC voted to allow companies to offer “alternative pricing plans” for phone and video calling. Over the past several years, the agency has required companies to price their services in terms of rates per minute, preventing abusive pricing systems like “flat rate calling” that charge consumers a fee for calls regardless of length (or that make the first minute cost much more than subsequent minutes). This time around, the FCC is allowing alternative pricing plans — with some key caveats.

Per the new rules — and in keeping with advocates’ strong recommendations — companies can only offer alternative pricing plans that they can show generate cost savings for consumers as a group and individually. Critically, the intent of the new rules is to allow the companies and facilities to experiment with new pricing structures but not to circumvent the existing rate caps.

New accessibility and consumer protection rules

Another important issue in the FCC’s rulemaking concerns incarcerated people with disabilities. The agency ruled that telecom providers must make “advanced communications services” (i.e. audio or video communications services and electronic messaging), and any equipment associated with those services, accessible for people with disabilities except when doing so is “not achievable.” In cases where it is not achievable, providers must ensure that their services and infrastructure can integrate with “existing peripheral devices” commonly used by people with disabilities.

Additionally, the FCC issued strong permanent rules to keep the companies from seizing funds that consumers leave behind in their accounts when a loved one is released from jail or prison. The new rules require the companies to make reasonable efforts to return funds when they know that a person has been released or when funds have gone unused for 180 days. If the companies are unable to return these funds, they must turn over those funds to the state’s unclaimed asset programs that hold funds in trust for consumers. This is a significant victory that the Prison Policy Initiative has long sought, because many companies would simply seize these unused funds as a secret form of profit, which in the case of industry giant GTL, averaged to more than $1.2 million per month of consumer funds seized by phone providers just because they could.

Conclusion

Advocates following these developments at the FCC should also be aware of upcoming opportunities to make the new rules even better. The FCC has released a “Notice of Proposed Rulemaking” (see paragraph 608 of the final order) pertaining to a number of topics, most notably video calling and “quality of service” issues. Advocates should act soon to ensure the FCC hears about excessive video calling charges, problems with dropped calls, and other technical issues. (The deadline for comments is 30 days after the order is published in the Federal Register, which probably will be at least a week after today’s vote.)

The FCC’s order is a massive victory for incarcerated people, their families, and their allies who have spent decades fighting the exploitative prison telecom industry. Of course, it does not mean the long fight for communications justice is over: Companies looking for ways to exploit consumers still have plenty of options for doing so, including bundling regulated services into contracts with unregulated services that charge unfair and unreasonable rates (like electronic messaging and tablet features). But the order delivers on the promise of the Martha Wright-Reed Act and accomplishes many of the key goals that we and other advocates have been campaigning on for years.

Webinar: In their own words: Organizing legislative testimony from incarcerated people

Learn strategies advocates around the country are using to help incarcerated people be heard at legislative committee hearings.

by Emmett Sanders, July 1, 2024

Americans have a fundamental right to engage with legislators about decisions that affect their lives, and one of the most powerful ways to do that is by testifying at state legislative hearings. People in prison, however, are routinely denied this right. Silencing incarcerated people is not only unjust, but deprives the public of valuable insights and expertise from those most affected by criminal legal system reforms. Even well-intended changes may ultimately be short-sighted or even harmful when created without any input from the people who bear the brunt of their effects. Advocates across the country are taking advantage of the recent expansion of communication technology to help incarcerated people have their voices heard in legislative committee hearings. Through these efforts, the testimony of incarcerated people has been a driving force behind bills to end the use of solitary confinement, end life without parole, and more in Massachusetts, Washington, and Connecticut, among other states.

On August 5, 2024, Prison Policy Initiative hosted a panel of advocates from around the country for a discussion on the importance and challenges of helping people in prisons engage in legislative hearings and introduce our new legislative testimony toolkit.

Webinar Materials

• Webinar Transcript
• Webinar Slides

Additional Resources

Below are the websites for the organizations of our panelists:

• Christopher Blackwell, Look 2 Justice: https://look2justice.org/
• Anthony Blankenship, Civil Survival: https://civilsurvival.org/
• Jesse White, Prisoners’ Legal Services of Massachusetts: https://plsma.org/

Additional Resources:

• The ACLU of DC provides some general tips for testifying in front of the DC Council that provide a great outline for anyone testifying in a legislative context.
• The Boston Institute for Nonprofit Journalism published a detailed article about the impact of testimony from incarcerated people in Massachusetts.

Calling on the FCC to make the most of its upcoming rulemaking on prison and jail telecom rates

Ahead of the FCC’s vote on new prison and jail phone rate caps, The Leadership Conference sent a letter to the agency, and we signed on.

by Wanda Bertram, June 20, 2024

The landmark 2023 Martha Wright-Reed Fair and Just Communications Act set in motion a new round of rulemaking at the Federal Communications Commission to ensure that incarcerated people and their families are paying fair rates for phone and video calls. As the FCC prepares to vote on new regulations, we joined The Leadership Conference (a coalition of over 200 civil rights organizations) in a letter sent to the agency this week with recommendations for how it can make the most of this opportunity.

First and foremost, we urge the FCC to set rate caps as low as possible for voice and video calls. The current rate caps, handed down in 2021, allow local jails to charge a maximum of 21 cents per minute, a rate that family members say can still add up to several hundred dollars a month. The letter notes that costs could be brought down “as low as pennies per minute,” as evidenced by the rates companies are already charging in counties like San Mateo, Cali. and Dallas, Texas, as well as many state prisons.

Beyond setting rate caps, The Leadership Conference letter also calls on the FCC to:

• Adopt consumer disclosure labels for prison and jail telecom products, to help customers understand whether they are being illegally charged (particularly after the new rate caps go into effect).
• Take extreme care when considering new pricing structures proposed by the companies, particularly subscription-based pricing, and only approve them if they are shown to save consumers money.
• Close regulatory loopholes to ensure that all prisons and jails are providing people who have hearing disabilities with the services they need to call home.

Recent data have shown how prison telecom companies continue to strike lucrative contracts with correctional facilities, particularly jails, deals that impose high costs on consumers and strain their bonds with loved ones. Diligent federal regulation can stop the worst of these abuses. We call on the FCC to use its rare mandate from Congress to guarantee the fairest possible deal for incarcerated people and their families.

Read the full letter from The Leadership Conference here: https://www.fcc.gov/ecfs/document/10617989616085/1

Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care

Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision.

by Wendy Sawyer, June 18, 2024

June 24 marks two years since the Supreme Court stripped Americans of their constitutional right to abortion. The court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization permitted state governments to limit and even ban abortion care — and they did. As a result, the share of patients who cross state lines for abortion care has almost doubled, from about 1 in 10 to almost 1 in 5. Traveling out-of-state for health care, including abortions, is a hardship for anyone, but it is especially challenging for people on probation or parole.

According to The New York Times, since the Dobbs decision, 21 states have implemented abortion rules more restrictive than the standard under Roe v. Wade.¹ Fourteen states now ban abortion altogether, and most other states ban abortion after a certain point in pregnancy. And while some of these less-restrictive bans preserve abortion as an option for most people who need one, these bans are nonetheless as obstructive for people who need abortion care after their state’s time limit.² In all, 41 states have some kind of abortion ban in place post-Dobbs, whether “total bans” or bans based on gestational duration.³ In every one of these states, standard conditions⁴ of probation and/or parole require permission to travel out of state, county, or another specified area.⁵

To understand how this post-Dobbs landscape impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women⁶ (82%) on probation or parole nationwide.⁷ That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision,⁸ 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

Every state and D.C. restrict the movement of people on probation or parole
For our analysis, we first looked at rules related to travel in the standard conditions of probation and parole in each state and D.C. (These are summarized in the table below.) We find that probation agencies in all but two states (Ala. and Iowa) generally require permission to leave the state, county, or other designated area. Four of these states empower the court or probation officer to set the boundaries for travel restrictions on an individual basis.⁹ Rules restricting interstate travel are just as common in the context of parole and post-release supervision: 40 states have a standard condition requiring permission to leave the state. Among the states that do not, five (Ark., Iowa, Mont., N.M., and Pa.) require permission to leave an even smaller area — the county or district.¹⁰ West Virginia and D.C. require permission to travel, but individualize the specific geographic boundaries in the supervision contract.

Excluding federal supervised populations, the vast majority of women on probation (98% or 672,000) and parole (96% or 60,000) live in states where their standard supervision conditions require permission to leave the state, if not an even smaller geographic area. Every single state and D.C. require permission to travel for either their probation or parole population — and almost all require permission for both.

It’s important to note that “standard conditions” are just part of the picture of probation and parole conditions, because courts can — and very frequently do — impose any number of additional “special conditions.”¹¹ So even if travel restrictions are not included in the standard conditions that apply to everyone on probation or parole, they may still be imposed at the discretion of the court or community supervision agency.

Limited abortion care options are made worse by these standard conditions

We next looked at each state’s abortion bans and restrictions alongside their standard conditions of probation and parole. This analysis gets to how quickly state laws foreclose the possibility of in-state abortion care for women under either form of community supervision, forcing them to request permission to seek care in another state instead.¹² We find that the much tighter restrictions imposed by states since the Dobbs decision put over 400,000 more women in this precarious position than there were under the protections of Roe v. Wade. Alarmingly, we find that only 1 in 6 women on probation or parole can access abortion care at any stage of their pregnancy without needing permission to cross state lines.

Delving deeper, our analysis shows that, excluding federally supervised populations:

• Over half (53%) of women on probation and parole live in the 21 states that the Times identified as banning abortion care at an earlier point than the standard set by Roe v. Wade (i.e., the highly variable point of “fetal viability”). Less than 3% of these women are able to travel across state lines without permission.
• Nearly one-third (31%) of all women on probation and parole live in states that now have a total abortion ban. Of these, just 4% have no standard condition restricting travel.
• Another 17% of women on community supervision live in states that ban abortions at six weeks — a point at which more than 1 in 4 women are not yet aware of their pregnancy.
• Only 16% live in places without abortion bans and can access abortion care at any gestational point without crossing state lines.

Importantly, even when parole or probation authorities approve interstate travel, the process of getting a “travel permit” takes time and logistical coordination — and sometimes even fees.¹³¹⁴ This necessarily delays abortion care, increasing the risk of complications and often further limiting access.¹⁵ For example, a woman on probation in South Carolina who only becomes aware of her pregnancy when she’s eight weeks along will have to travel out-of-state for an abortion. But if it takes two weeks for her to get permission to travel, a non-surgical abortion is likely no longer an option, as the necessary medications are only approved for use until 10 weeks’ gestation.

A travel restriction is just one of many barriers to healthcare for people on probation and parole

Interstate travel restrictions are just one of the barriers women — or for that matter, everyone on probation and parole — face when it comes to accessing health care. As we’ve already touched upon, some standard conditions restrict travel across much smaller areas, such as counties or court districts. Similarly, people on electronic monitoring — an increasingly common condition of community supervision that amounts to a form of “e-carceration” — are regularly blocked from leaving their home, workplace, or other approved locations. As we have explained before, people on electronic monitoring often report being denied permission to see a doctor or go to the pharmacy to have prescriptions filled.

Even in the few places that don’t impose restrictions on movement, financial costs often put healthcare out of reach for people on probation and parole. As we’ve found in previous research, people on community supervision tend to have lower incomes, with about 60% reporting annual incomes below $20,000. About 25% don’t have health insurance to cover the cost of even basic care — despite reporting worse overall health and greater levels of need.¹⁶ Probation and parole conditions often come with additional expenses as well, such as monthly fees and the costs of drug testing or electronic monitoring devices, which leave even less money for healthcare.

Finally, for women on probation and parole who need abortion care, there is a special risk of further criminalization, either for violating the conditions of their supervision or for the abortion itself. A recent law review article details the various laws used historically and currently to criminalize abortion seekers and providers, paying special attention to laws targeting people who choose “self-managed abortions” when they are unable to access care from the formal healthcare system. A report by researchers at If/When/How describes 61 cases, across 26 states, in which people were investigated or arrested for allegedly ending their own pregnancy or helping someone else end theirs. All were from 2000-2020 — in other words, pre-Dobbs. Efforts to criminalize abortion have only gained momentum since.

Conclusions

Ultimately, Dobbs not only made abortion care much less accessible for everyone who may become pregnant; it created new risks of criminalization as well. For people under supervision, those risks are intensified by the travel restrictions found in standard conditions across the country. As the Community Justice Exchange and Repro Legal Defense Fund explain in their organizing guide, “In states where clinical abortion is banned or inaccessible … [self-managed abortion] will likely be the abortion option most accessible to people under carceral surveillance, putting them at a risk for criminalization that people who can travel freely do not face.”

For this reason (among others), state legislators, courts, and community supervision agencies should minimize the number and restrictiveness of standard conditions imposed on everyone on probation and parole — and greatly reduce the use of these massive supervision programs in general. Courts should limit who they place on supervision, individualize supervision conditions, and apply those conditions only for as long as necessary to achieve results. This approach is far more likely to set people up for success than relying on restrictive, one-size-fits-all rules that only act as tripwires to further criminalization and punishment.

Certainly, whether it’s appropriate to restrict someone’s movement is among the most situation-dependent decisions supervision authorities can make, whether for work, family, religious, educational, or — as we’ve discussed here — health reasons. Restricting where people can go inevitably blocks many from accessing the resources they need, which in turn creates health and safety risks for both individuals and communities. These very real and life-threatening consequences must be taken into account and not discounted simply because of a criminal legal status.

Author’s note: Amelia Wittig and Emily Widra provided the foundational research for our analysis of standard probation conditions by collecting and categorizing the relevant forms, web pages, and statutes that stated whether travel restrictions apply to everyone on probation. These sources are on file with the author. As part of a forthcoming report on probation conditions more broadly, we plan to upload the publicly-accessible documents and those we were given permission to share, and to provide a summary table with links in our Data Toolbox.

New memo shows Fulton County, Ga., should rethink proposal for massive new jail

At the request of the Georgia-based Community Over Cages Coalition, the Prison Policy Initiative examined the proposal for a new jail and found serious shortcomings.

by Mike Wessler, June 14, 2024

UPDATE: On July 11, 2024, the Fulton County Board of Commissioners voted to scrap its $2 billion plan to build a new jail, marking an important victory for the advocates who opposed the proposal. Learn more here.

On Wednesday, the Georgia-based Community Over Cages Coalition hosted a press conference at the Fulton County Superior Court and released a new analysis by the Prison Policy Initiative that called into question the county’s proposed massive new jail.

In the 17-page memo, we make three key points:

1. The overuse of pretrial incarceration hurts communities, and Fulton County is no exception. Pretrial incarceration undermines public safety by increasing the likelihood that people will be arrested in the future by up to 21%. It also harms employment and housing rates, increases overdoses and suicides, and undermines the presumption of innocence by increasing guilty pleas and sentences. These harms fall squarely on the shoulders of Fulton County’s Black and Brown residents, who make up a disproportionate number of people in the jail.
2. The feasibility study fails to consider alternatives to new jail construction. For example, the study fails to sufficiently consider the possibility of renovations to the existing jail or the impact of decarceration efforts. It also does not take into account the fact that crime rates in Fulton County are falling, not rising.
3. The feasibility study ignores the reality that a massive new jail would likely exacerbate its existing staffing issues. The feasibility study claims that updating the jail will completely solve staffing shortages and attempts to highlight other jails around the country as “model jails.” However, we show that even in these updated “model” jails, staffing concerns run rampant, jail deaths are on the rise, and conditions in these new facilities are still bad enough that they are leading to human suffering and costly lawsuits. The reality is that there is no “model jail”, and creating a massive new facility will make staffing problems worse, not better.

The Community Over Cages Coalition was formed to oppose the county’s proposal to build a $2 billion new jail. The coalition includes legal experts, people with lived experience in Fulton’s legal system, healthcare providers, and community organizers and activists with a shared goal of a Fulton County that enables the health and safety of all communities.

Is your community seeking to build a new jail or expand the capacity of its existing facility? We’re happy to help you push back on their arguments (drop us a line to tell us about your fight). There is no need to wait, though. We have created a how-to-guide with tips for pushing back on “jail needs assessments” that local leaders put together to justify the construction and provide strategies for pushing back on false or misleading arguments they’re making.

What can journalists do when prisons and jails cite HIPAA to withhold information about deaths in custody?

If you're a journalist who's been stonewalled while seeking public records about deaths in custody, you are not alone. We offer tips for requesting information and strengthening your story against HIPAA-related denials.

by Wanda Bertram, June 11, 2024

Prisons and jails often claim that the Health Information Portability and Accountability Act (HIPAA) privacy rule prevents them from sharing information about in-custody deaths with the press, or even with families of people who have died. Since these agencies have also been known to invoke HIPAA in denying information not remotely related to health,¹ one might assume that many of these denials have no clear legal basis. But because prison oversight is abysmally weak — and because most people impacted by prisons’ lack of transparency are too poor to fight back — not a lot of legal precedent exists around what prisons and jails must or must not share.

The good news is that despite the grey area around health privacy law, HIPAA obstacles don’t have to spell the end of an investigation into deaths behind bars. This briefing lays out the HIPAA-related challenges for journalists investigating deaths in custody, offers tips for overcoming those challenges, and suggests ways to strengthen your stories against information denials.

HIPAA and common questions about in-custody deaths

HIPAA is a federal law passed in 1996 to set legal standards around healthcare coverage, efficiency in sharing of healthcare information, and processes for preventing healthcare fraud and data theft. Its Title II “privacy rule” prohibits healthcare providers — implicitly including confinement facilities — from sharing their patients’ “protected health information” (or PHI) with anyone other than approved family members and sometimes healthcare authorities.

When information requests remotely involve issues related to health, prisons and jails tend to default to denying journalists access to information. But journalists have the power to push corrections agencies to be more transparent about in-custody deaths.

Here are some of the obstacles you might encounter when asking common questions about deaths — and tips for getting around them:

1. “Did someone die in this prison recently?”  
   While you may be denied even this most basic information, it’s worth pointing out that HIPAA applies only to someone’s personally identifiable health information, which generally does not include the fact that someone died. Furthermore, a jail or prison refusing to release this information upon request is a red flag, given that at least 15 prison systems proactively make this information public:

2. “What was the deceased person’s name?”  
   Many prison systems post the names of the deceased as a matter of policy (see table above). If a prison or jail refuses to provide names, you may want to point out to them that other prison systems have done so without running afoul of the law. If that doesn’t work, you should consider challenging the DOC’s policy. When Hawaii’s Department of Public Safety refused to release the names of people who died during COVID-19, the Honolulu Civil Beat sued the department and won, with a Hawaii Circuit Court ordering the Department to release the names of people who die in custody going forward.
3. “What was the cause of death?”  
   It’s common for officials to deny reporters information related to the cause of someone’s death, often citing HIPAA as the reason — and in many cases, this may be a legitimate claim. However, you’re wise to remember that several different documents are created when someone dies behind bars. There may be a death certificate, coroner’s report, medical examiner’s report, “death review” or incident reports, and/or an autopsy. While not every death triggers an autopsy, autopsies are public records in many states, so they are typically easier to obtain.

Journalists should also keep in mind that if a prison or jail refuses to release information and vaguely cites “health privacy law,” it’s worthwhile to clarify which law. Most often, the answer will be HIPAA, but some states have their own laws that go beyond HIPAA’s prohibitions to exclude additional information from public records disclosure.

Making the most of your public records request

Here are a few ways to maximize your chances of a fruitful records request and to fight back against stonewalling:

• Review the basics about public records laws concerning the criminal legal system in your state before you file. (We wrote a 50-state guide to filing public records requests to criminal legal agencies.)
• Call the public records official at the DOC or jail before you file to get an idea of what records exist and in what format. Ask them what kinds of records and reports the agency creates around deaths in custody, including any records of internal investigations of deaths.
• Find out what kind of reporting about healthcare is made between the correctional agency and other parties. If the jail or prison uses a private healthcare provider, what kinds of reports does the company have to make to the agency regularly? The prison/jail may also make reports to hospitals it partners with and to any state or local oversight bodies. Reports that aggregate data without personally identifiable information may be easier to release than records pertaining to individuals.
• If possible, clarify in your records request that you do not intend to seek personally identifiable health information and ask for the agency to redact any such information.
• Appeal denials to your Attorney General’s public records ombudsman, whose job it is to determine if denials of public records requests were legitimate. If you think a prison or jail is denying you information that is not necessarily protected by HIPAA, it’s worth at least telling the ombudsman what is going on. (You may also want to alert prison oversight officials in your state when you get an unreasonable denial.)

Tip: If your public records requests are denied or delayed, you can also try searching the jail or DOC’s website for the records you’re looking for.² Occasionally, correctional agencies store sensitive documents on their web server without strong security.

Privacy law obstacles can be the beginning, not the end, of a good story

Being stonewalled is frustrating, but if getting the information you want seems impossible, broadening or adjusting the focus of your story can allow you to hold the prison (or jail) system accountable even in the face of information denials. We suggest that you:

• Look for patterns of medical neglect rather than individual cases. There may already be public evidence of neglect in the prison or jail system you’re investigating. States and large counties often audit correctional facilities’ healthcare systems, and the auditor/comptroller, Inspector General, and Attorney General’s office may have information about prior medical issues in the facility. (For an example of a story that uses evidence from local audits, see Arizona Luminaria’s reporting on jail deaths in Tucson.) You can also search legal databases like PACER for the name of the facility you’re investigating, or the names of any healthcare companies contracting with the facility, to find evidence of prior healthcare issues, which could put the deaths you’re investigating into context.
• Connect with families. If you’re having trouble getting basic facts about in-custody deaths, chances are that families are, too. Ask the families of people who died in the facility about their experiences with the prison or jail after their loved ones’ deaths. Journalists have written powerful stories about correctional agencies stonewalling families who ask for information, or waiting hours or days to tell them about deaths or injuries.
  

  Conversely, it’s also possible that the jail or prison will release medical records to the family that they wouldn’t release to the media. Building strong relationships with impacted communities and working with them to pressure the facility to release records may help you overcome HIPAA-related obstacles.

• Talk to prison and jail oversight officials. Ask these officials if they have had trouble getting information about deaths and medical care in the facility. Again, a corrections agency that keeps journalists in the dark about deaths is probably creating similar obstacles for others. The Sacramento Bee, for example, has reported skillfully on the barriers facing Sacramento’s Inspector General.

Beyond the story: pushing for systemic change

Obstacles to transparency around prison conditions often go beyond a single story, revealing a larger problem with corrections agencies stonewalling journalists who are working in the public interest. News organizations, particularly in partnership with impacted communities, have the power to change that. In Massachusetts, for example, news organizations campaigned successfully for public records reform.

Remember: Journalists do critical work to bring deaths behind bars to light, but they’re far from the only ones fighting the lack of “sunlight” in jails and prisons. The more creative you can be with your investigations, the greater the chances that family members, oversight officials, and even corrections officers will come forward to strengthen your story — and, hopefully, help you build the case that in-custody deaths should not be obscured by health privacy law.

Did you find this briefing helpful? Have a story to share? Let us know through our contact page.