Methodology & Scoring

Composite score:

The final composite score for each state equals the total of all points received ranging from zero to 485. To make the scores easier to read, we then divided the final number of points by 4.85 to give each state a grade on the scale of 0-100. Because every state scored so poorly, we decided to adjust the traditional school grading scale down¹ to create some meaningful differentiation in the scores, and to better identify the states that, despite falling far short of these minimum standards, did make some notable strides. This differentiation and specificity is important because this report, while assessing what has happened thus far, should also help create a blueprint for what states can do to save lives as the pandemic continues.

How we graded and what distinguishes a higher score:

To assess the degree to which each state has responded to the COVID-19 pandemic and the particular threat of viral infection behind bars, we looked at whether:

• The state Department of Corrections provided testing and personal protective equipment (PPE) to correctional staff and the incarcerated population. (maximum 65 points) ⤵
• The state reduced county jail populations and state prison populations. (maximum 300 points) ⤵
• The governor issued an executive order — or the Department of Corrections issued a directive — accelerating the release from state prisons of medically vulnerable individuals and/or those near the end of their sentence. (maximum 60 points) ⤵
• The state published regularly updated, publicly available data on COVID-19 in the state prison system. (maximum 60 points) ⤵

Recognizing that no metrics can account for all differences between states, including the fact that the virus reached some states earlier than others, we then deducted points from the final scores of states that have had COVID-19 deaths in their state prisons. Information regarding testing, personal protective equipment (PPE), and regularly updated, publicly available data was collected from the states’ Department of Correction websites in early June 2020. Some states may have implemented more widespread testing — or are providing PPE to all incarcerated people — but if that information is not clearly shared on their website at the time of our data collection, we could not include it in our scoring.

Has the Department of Corrections provided comprehensive testing and personal protective equipment (PPE) to correctional staff and the incarcerated population? (maximum 65 points)

The easiest steps states can take to prevent COVID-19 deaths behind bars are to provide testing and protective equipment to incarcerated people and prison staff.² These measures will also slow the spread of COVID-19 into the communities surrounding prisons.

Only five states — Massachusetts, Michigan, Tennessee, West Virginia, and Vermont — were awarded 20 points for completing comprehensive testing of the population in state prisons. Three states — New Mexico, Massachusetts, and West Virginia — completed comprehensive testing of all correctional staff and were awarded 15 points. States that are in the process of comprehensive testing of incarcerated people and correctional staff were awarded 5 points for testing of incarcerated people and 5 points for testing of correctional staff.

We also awarded states 15 points for providing personal protective equipment (PPE) to all staff, and 15 points for providing PPE to all incarcerated people. Most, if not all, PPE in the correctional setting, especially for confined populations, consists of non-surgical masks. States received 5 points for only providing PPE to some incarcerated people and some staff (i.e. incarcerated people who were exposed to someone who tested positive, or only intake unit staff). Only three states — Florida, Rhode Island, and North Dakota — do not have information about providing PPE to incarcerated people.

Because we wanted to keep our scoring consistent across states, we chose to utilize the data provided by individual Departments of Correction on their websites. To the degree that states are not following their own policies mandating access to face masks and other PPE, the reality behind bars may be worse.³

If there was no reliable evidence that states were providing those tests or PPE, we awarded states zero points.

How much has each state reduced incarcerated populations in both local county jails and state prisons? (maximum 300 points)

The high rate of coronavirus infections and deaths in correctional facilities is due to their population density: incarcerated people frequently have to sleep, eat, and shower within a few feet of one another, and share common amenities such as phones. Public health experts have been clear that reducing facility density — allowing people to return home — is the most critical and necessary step to save lives. States that have reduced the population density in correctional facilities — starting by releasing old and frail people especially vulnerable to COVID-19 — have slowed the spread of the virus more effectively and saved more lives.⁴

Jails

Jail population mitigation needs to be a key part of the national response to COVID-19. If jails fail to drastically reduce their populations, COVID-19 could claim up to 100,000 more people than the current projections. In mid-April, an epidemiological study conducted by the ACLU and university researchers found that keeping people out of jail saves lives — both inside the jail and in the surrounding communities. And while nationally jail populations have decreased much more than state prison populations, not all states are taking this call to decarcerate jails seriously. We awarded one point for each percentage point that each state reduced its median jail population.⁵

The median jail population reductions in each state vary drastically from a 42% reduction in Arkansas to only 2% in Texas, and some states appear to have had increases in jail populations.⁶ To calculate the median jail population change, we analyzed data collected from the NYU Public Safety Lab, supplemented by data collected by the Vera Institute of Justice, on population changes from January 2020 to June 1, 2020.⁷ For Massachusetts jail data, we analyzed the data published by the ACLU of Massachusetts for all counties. West Virginia and Maryland jail data were provided by ACLU of West Virginia and ACLU of Maryland. The jail population data for the ten largest counties in Missouri came from the ACLU of Missouri, and for the 35 other counties included in this report the data was collected by the NYU Public Safety Lab.

The jail data used for this report has population data over time for over 1,200 county jails, with a nationwide median population reduction of about 20%.⁸

Prisons

The public health response cannot end in jails — states must also address their prisons, with a combined and dense population of 1.3 million. Reducing the number of people who are currently incarcerated will limit the burdens people face due to incarceration or supervision that place them at elevated risk of being affected by the coronavirus pandemic. We awarded two points for each percentage point that a state reduced its prison population.

We analyzed the change in state prison population counts from the start of 2020 (using data from either December 31, 2019 or January 1, 2020) and four months later (using data from April 30, 2020 or May 1, 2020).⁹ We note that state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small, at about only 5%.

This report collected data from 49 states. We note that we awarded Maryland zero points in section for the prison population reduction efforts that may or may not have taken place in this study period because that state did not provide April/May data to the Vera Institute of Justice and failed to respond to two requests by the Prison Policy Initiative for April/May data. All other states provided population data to either the Vera Institute of Justice or the Prison Policy Initiative.

Has the governor issued an executive order to halt jail admissions or to mandate the release of medically vulnerable individuals or those who are nearing the end of their sentence? Has the DOC issued a statewide directive to release medically vulnerable individuals or those who are nearing the end of their sentence?  (maximum 90 points)

Some governors and Departments of Correction have led their state’s criminal justice systems in a coordinated response to the pandemic in jails and prisons.¹⁰ Others have left it up to local criminal justice stakeholders — police, prosecutors, judges, sheriffs, and supervision agents — to implement their own individual responses to COVID-19, leading to inevitable delays, confusion, and inefficient allocation of resources.

In some states — such as Colorado, Pennsylvania, Virginia, and Washington — release orders from the governor or the Department of Correction authorized the release of both medically vulnerable people and those nearing the end of their sentences.¹¹ Other governors issued executive orders that called for the release of either the medically vulnerable or those nearing the end of their sentence. Every executive release order analyzed contained specific offense criteria, most often excluding those charged with felonies, “violent offenses,” or sexual offenses. Governors in a number of states — including Colorado — that received points for executive orders have since let these executive orders expire.

If any states had issued an order that would release all people who were determined to be medically vulnerable and/or nearing the end of their sentence regardless of offense type, we would have awarded them up to 60 points; but no states took these essential steps.

Partial release orders — release orders that exclude people based on offense type — or non-mandatory guidance were awarded 10 points, and states with no executive or DOC release orders received 0 points (out of 50 states, only 20 states received any points for executive release orders). States also received 10 points if they suspended incarceration for technical violations of community supervision, which occurred in Alabama, Michigan, and Washington.

States with executive orders that put a moratorium on all jail admissions were awarded 30 points (no states received all 30 points).¹² States with executive orders or Department of Correction orders that halted some admissions to jails, for example halting jail bookings for certain misdemeanors or technical violations of probation or parole, received 10 points. States without orders addressing jail admissions received zero points.

Does the state or Department of Corrections provide publicly available, regularly updated data on COVID-19 behind bars? Is this data disaggregated by race? (maximum 30 points)

COVID-19 is killing more Black people and more people of color across the nation. And in a criminal justice system that disproportionately locks up Black people, the threat of the pandemic is heightened. Because of this, we need to know — and address — how COVID-19 is affecting people behind bars in order to slow the continued spread of the pandemic.

To assess states’ responses to COVID-19 behind bars in the appropriate context, it is necessary to know how many incarcerated people and staff in each state have already contracted the virus and how fast it is spreading. We awarded points to states that have published this data for state prisons. States providing frequently updated, accessible, and comprehensive correctional data on COVID-19 received 15 points; those providing more limited data received 5 points.

We awarded additional points to states that have provided data disaggregated by race — data that can help us assess whether prison and jail officials have taken Black individuals’ health complaints less seriously than those of incarcerated white people and staff. (Black people are overrepresented in incarcerated populations and among correctional staff, and the disproportionate number of coronavirus deaths among people of color in the general public is already well documented.) States providing data that is disaggregated by race received 15 points. If only some sections of a state’s correctional data were disaggregated by race, we awarded 5 points.

There are two states with limited correctional COVID-19 data — New Mexico and Wyoming — and those states received only 5 points. 12 states offer publicly available and regularly updated data and received 15 points.¹³ Only eight of those states’ data includes specifics on race; and those states — Delaware, Maine, Michigan, Missouri, Oklahoma, Tennessee, Vermont, and West Virginia — received an additional 15 points.

Points deducted for COVID-19 deaths in state prisons

In recognition of the fact that human life is precious and that policy decisions have real life consequences, we deducted points for deaths in state prison custody. States should have immediately taken the common sense actions described in the report, but they largely have not, even months later. And even the states that took positive steps did so much later than they should have, raising the human cost.

For that reason, we deducted from the final score of each state 1 point for every 5 prison deaths per 10,000 people in the state’s prison system. (By tying the deductions to the number per 10,000 we account for vastly different prison population sizes in different states.)

We considered weighting this outcome more heavily, but we ultimately did not do so for several reasons. First, the difference in death rates between states is in part the result of policy differences and in large part the temporary result of the fact that the virus started spreading in some places earlier than others. If we weighted this factor more heavily, we’d be giving a pass to states that took little action and saw their deaths predictably spike after publication of this report. Second, even while comparing prison death rates — rather than counts — a single death in any of the smaller states still has an outsized impact on the overall scoring. Third, as this report has argued, prison deaths are just one part of the human cost that we do not, at this time, have a way to calculate. In particular, we do not yet have a reliable way to calculate all of the other ways in which criminal justice failures lead to deaths from COVID-19, including: undisclosed COVID-19 deaths in prisons, deaths from other causes in incarcerated people who were weakened by COVID-19, or deaths from community spread that was first incubated in the state’s prisons. For that reason, for a report written while the pandemic is still in its early stages, we chose to include these deaths and challenge all states to do far better. The final history will not be written until long after the pandemic ends, but elected officials need to be on notice that history is watching.