As jail populations have skyrocketed over the past three decades, jails around the country have become dangerously overcrowded. The reflexive response is often to start the long, expensive process of building a larger jail. However, this report provides a roadmap to easier, quicker, cheaper, and more just solutions to jail overcrowding. It is organized around a series of questions that local decisionmakers should be asking advocates of jail expansion, and then lays out a detailed briefing on best practices for reducing jail overcrowding.
These questions are designed to help local decisionmakers determine how many people in their county’s jail are needlessly incarcerated, and whether the county has taken steps to reduce this number in order to avoid jail expansion.1 They are also meant to ensure the county has a full grasp of how much building a new jail will cost the community. Counties should not build a larger jail without getting answers from county sheriff departments, prosecutor offices, and jail administrators.
Nationally, the majority of people detained in jail are awaiting trial and are legally presumed innocent. Many people detained pretrial pose no public safety or flight risk but are incarcerated simply because they cannot afford cash bail. Recognizing this injustice, some counties around the country are reforming their pretrial release systems to prevent unnecessary pretrial detention. To judge whether pretrial detention should be reduced in the county, decisionmakers should ask:
People who come in contact with the criminal justice system are disproportionately low-income, yet are often charged fines and administrative fees that can add up to thousands of dollars. Those who cannot afford to pay are often punished with incarceration, despite the fact that the Supreme Court has ruled debtors’ prisons unconstitutional.2 To determine whether fees and fines are fueling incarceration in the county, decisionmakers should ask:
In the United States, people incarcerated in jails are five times more likely than the general population to have a serious mental illness,3 and 68% of the jail population meets medical standards for having a diagnosable substance abuse disorder. However, the majority of them do not receive appropriate treatment.4 The best solution is to invest in programs that divert people with mental illness and substance use disorder out of jail and into appropriate treatment in their communities. To determine how many people with mental illness and substance use disorder are incarcerated in the county, and whether the county has taken steps to reduce this number, local decisionmakers should ask:
Even for people who have been convicted, incarceration may not be an appropriate solution. The majority of people in jail who have been convicted are incarcerated for nonviolent offenses, and could be better served in the community rather than in jail. To determine the extent that misdemeanors and low-level offenses contribute to the county’s jail overcrowding, decisionmakers should ask:
As of 2013, 84 percent of jails held some people, either pretrial or sentenced, for other county jails, state prisons, or federal authorities like the Federal Marshals, the Bureau of Prisons, or Immigration and Customs Enforcement (ICE). To determine whether ending contracts with other authorities would reduce overcrowding in the local jail, decisionmakers should ask:
Many people are in jail for violations of their probation or parole. Frequently, these are technical violations, which are violations of probation and parole rules that are not criminal offenses, but can still result in incarceration. For example, someone on probation or parole can be sent to jail or prison for failing to report for a scheduled office visit, missing curfew, failing to obtain employment or attend school, or testing positive for drugs or alcohol. County probation, state probation, and state parole offices should prioritize helping people succeed in the community rather than returning people to incarceration. To determine whether minor probation and parole violations are contributing to jail overcrowding, local decisionmakers should ask:
Jails often cost far more than communities anticipate. Constructing a new jail often costs the county tens of millions of dollars. It also diverts a large portion of the county’s budget, preventing them from investing in education, drug treatment, affordable housing, and other services that could reduce crime and incarceration. To determine how much building a new jail will cost the county and its residents, local decisionmakers should ask:
This section details six practices counties can use to reduce jail overcrowding, examples of jurisdictions that have used these practices to lower their incarceration rates, and additional resources on each practice. Each of the practices laid out in this section can be effective independent of the others. However, for the maximum effect, we recommend using all of these strategies.
It’s worth noting that many of the best practices discussed in this report use examples from large urban counties, and there are important differences between these counties and the rural counties where jail growth is now concentrated. However, rural counties can benefit from the experiences of larger jurisdictions that have assumed the much of the early risk of these innovations and reforms and can find ways to adapt those lessons in the rural communities where it is now most urgently needed.
Nationally, 76% of people held by local jails are not convicted of a crime and are legally presumed innocent. While some people are incarcerated because they pose a significant safety or non-appearance risk, many are there simply because they cannot afford to pay cash bail. This creates a two-tiered justice system in which people who have enough money to pay cash bail are released, while poor Americans are forced to remain in jail as their case moves through the system. There are also significant racial disparities in pretrial detention, as Black and Hispanic individuals accused of crimes are more likely to be detained pretrial compared to similarly situated white individuals.
Pretrial detention can have devastating impacts on individuals, families, and communities. Even a few days in jail can drastically interfere with people’s employment, housing, healthcare, and child custody, and research suggests that even brief jail stays (particularly for low-risk defendants) can increase an individual’s chance of committing a future crime.5 Pretrial detention is also extremely expensive for counties. Together, local communities spend at least $14 billion every year to detain people who have not been convicted.
As more states and counties move away from unnecessary pretrial detention, research has demonstrated that reforming pretrial detention does not lead to an increase in crime rates, recidivism, or failures to appear in court.6 Counties have implemented the following reforms to reduce their pretrial detention populations:
Reforming pretrial detention has allowed counties to dramatically reduce their jail populations:
For more information on reforming pretrial detention:
People who come in contact with our criminal justice system are disproportionately poor, but are often charged fines and fees that are impossible for them to pay. People are charged fines as sanctions for anything from municipal or traffic violations to felony cases. On top of fines, people are often charged numerous fees as they move through the court and criminal justice system, including pre-sentence report fees, public defender fees, fees for electronic monitoring, pay-to-stay fees, supervision fees, and more. When fines and fees are issued, people’s ability to pay is rarely taken into account. As a result, people, especially people of color,9 can end up saddled with thousands of dollars of criminal justice debt that they have no hope of paying off.
When people are not able to pay off their criminal justice debt, they are subject to even more sanctions. These include additional fines and fees, interest, driver’s license suspension, extension of supervision, and even incarceration. In some jurisdictions, as many as 20% of people in local jails are incarcerated because they could not afford to pay court-imposed fines and fees.
Counties should stop incarcerating people for their inability to pay fines and fees and should implement the following reforms:
Counties must also ensure that they do not issue sanctions that limit people’s ability to work or earn money and thereby pay off their fees, such as driver’s license suspension.
Some states and counties have taken steps to limit the number of people incarcerated for unpaid court-related debt, which has allowed them to decrease their jail populations and dedicate resources to protecting public safety, rather than incarcerating the poor. For example:
For more information on fees and fines justice, see:
It is estimated that 2 million people with mental illness are booked into jails each year. Nationally, about 15% of men and 31% of women in jails have a serious mental illness compared to 3% and 5% percent in the general population. And about 68% of the jail population meets medical standards for having a diagnosable substance use disorder.
Despite the high rates of mental health and substance use disorders, jails rarely have adequate resources available, nor are they the appropriate places, to treat people with mental health and substance use disorders. This can have devastating consequences. Research has shown that in the two weeks after their release, recently incarcerated people are 40 times more likely to die from an overdose than the general population.
Instead of incarcerating people with mental health and substance use disorders, counties should invest in a public health approach. First and foremost, counties should ensure that everyone in the community has access to evidence-based substance use treatment and mental health care, which can prevent criminal justice involvement in the first place. Research has demonstrated that access to substance use treatment can reduce both violent and financially motivated crimes in a community. Moreover, investing in substance use treatment is estimated to yield a $12 return for every $1 spent, as it reduces future crime, costly incarceration, and lowers health care expenses.
Secondly, counties should implement the following reforms to divert those who do come in contact with the criminal justice system:
Establishing these programs can be more difficult in smaller communities. However, rural counties with limited behavioral health services should consider developing partnerships with neighboring counties, which can provide opportunities to share services, resources, and funding for treatment.
Counties and states around the country have implemented programs to avoid jailing people with mental health or substance use disorders:
For more on mental health and substance use diversion, see:
Even for people who have been convicted, incarceration may not be an appropriate response. Three-quarters of people in jail who have been convicted are incarcerated for nonviolent offenses. For people convicted of such low-level crimes, incarceration is tremendously counterproductive: It cuts them off from people and programs that could help them turn their lives around while yielding virtually no benefits to public safety.
Counties can reduce the number of people with misdemeanor convictions in local jails by:
For more information on alternatives to incarceration:
In 2013, 8 in 10 jails held people, either pretrial or sentenced, for other county jails, state prisons, or federal authorities such as the U.S. Marshals Service, the Bureau of Prisons, or Immigration and Customs Enforcement (ICE). As a result, 22% of people held in local jails nationwide are not under the jurisdiction of the jail in which they are incarcerated. County jails are either required or financially incentivized to hold people under federal (such as the U.S. Marshals Service or ICE) or state jurisdiction. However, accommodating these agencies can pose additional burdens on county jail systems, and relying on these contracts for revenue can backfire when, due to policy changes outside of local control, the state or federal system’s need for jail space dwindles.11 By stopping their practice of renting out beds, counties have been able avoid building larger jails altogether:
For more information on how many people your county is incarcerating for other authorities, see:
Probation and parole impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails. People on probation and parole are often subject to intense surveillance and a long list of restrictions that, if not met, can land them in jail. In fact, the leading reason for revocation of probation and parole is not new crimes, but technical violations, such as being out past curfew, testing positive for drug usage, or traveling to another state without permission. Every year, 350,000 people, disproportionately people of color, have their probation or parole revoked. Some counties have found that as many as 14% of people booked into their jails are there for technical violations.
In some states, counties have authority over felony and or misdemeanor probation. And in all states, county jails end up carrying the consequences of state decisions on the revocation of probation and parole. Counties can reduce their jail populations by:
Some counties and states around the country have gradually started reforming their probation and parole systems.
For more information:
Before beginning the long, expensive process of building a new jail, counties must take a critical look at who they are incarcerating and why. Using this report as a guide, counties will likely find that most people incarcerated in their local jail do not need to be incarcerated and would be better served in the community, allowing the county to avoid the costly and harmful route of jail expansion altogether.
The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. Through accessible, big-picture reports, the organization helps the public engage more fully in criminal justice reform. Its previous reports Era of Mass Expansion and Detaining the Poor helped put the need for jail and bail reform into the national conversation. The Prison Policy Initiative also leads the nation’s fight against prison-based gerrymandering and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone and video calling industries.
Alexi Jones is a policy analyst at the Prison Policy Initiative, and a graduate of Wesleyan University, where she worked as a tutor through Wesleyan’s Center for Prison Education. Before joining the Prison Policy Initiative, Lexi conducted research related to health policy, neuroscience, and public health. Since joining the Prison Policy Initiative, Lexi has authored Correctional Control 2018: Incarceration and supervision by state, which shows that prison is just one piece of the much larger picture of correctional control, discusses the harms of probation in particular, and provides breakdowns of the criminal justice system in each state. Most recently, she co-authored State of Phone Justice: Local jails, state prisons, and phone providers with Peter Wagner.
This report was made possible thanks to the generous support of the MacArthur Foundation’s Safety and Justice Challenge, and the contributions of individuals across the country who support justice reform. This report benefitted from the expertise and input of many individuals. Lois Ahrens, Jerry Zorsch, Jasmine Heiss, Laurie Jo Reynolds, and Craig Gilmore provided invaluable feedback for this report. I am also indebted to Wendy Sawyer, Wanda Bertram, and Peter Wagner for their support throughout the writing process, and Emily Widra and Maddy Troilo for their research support.
When assessing the need for a new jail, counties often rely on future jail population projections, which are often based on projections of overall county population growth, and assume no change to current offense patterns or practices in law enforcement, prosecution, and sentencing. Such projections can be unreliable, and may overstate the county’s true jail needs, especially if the county implements reforms to reduce the jail population before expanding jail capacity. ↩
The U.S. federal government outlawed debtor’s prisons nearly 200 years ago. In 1970, the Supreme Court ruled that extending a maximum prison term because a person is too poor to pay fines or court costs violates the right to equal protection under Fourteenth Amendment in Williams v. Illinois. And, in the 1983 case Bearden v. Georgia, the Supreme Court ruled local government cannot imprison or jail someone for not paying a fine unless it can be shown through a hearing that the person in question could have paid it but “willfully” chose not to do so. ↩
Data collected 2002-2003 and 2005-2006 revealed that 14.5% of males and 31.0% of females in jails have a current serious mental illness. In contrast, 3.2% of men and 4.9% of women in the general population have a diagnosable serious mental illness. ↩
Only one third of people in jail experiencing serious psychological distress receive appropriate treatment. Similarly, research has shown that only a quarter of people only a quarter of people in jail with substance use disorders received treatment. ↩
Research has shown that incarceration can be counterproductive and increase the frequency and severity of recidivism. For more information, see:
New York, New Jersey, and Philadelphia all increased their use of pretrial release without significant increases in crime or non-appearance rates:
Aubrey Fox and Stephen Koppel Pretrial Release Without Money: New York City, 1987-2018
The Leadership Conference on Civil and Human Rights outlined six principles that can mitigate the harms of risk assessments. For example, risk assessments should not recommend detention. Pretrial risk assessment instruments, if used at all, should only identify groups of people to be released immediately. Anyone deemed ineligible for immediate release should have an individualized pretrial release hearing as soon as possible. ↩
For more information on Washington, DC’s outcomes, see: Pretrial Services Agency for the District of Columbia’s Congressional Budget Request ↩
Due to racial profiling and the excessive policing of communities of color, people of color, especially Black Americans, are disproportionately impacted by fines and fees. This is especially damaging, as people of color tend to have lower levels of income and wealth compared to white people, and are therefore less likely to be able to pay fines and fees. ↩
While this legislation is a step in the right direction, Texas must take further action to reduce the number of people incarcerated for the inability to pay criminal justice debt. The legislation encourages judges to use alternatives to jail, but does not require it. Many judges still sentence people to jail time for unpaid fines and fees. In 2018, hundreds of thousands of people were still incarcerated for not paying fines and fees. ↩
The Vera Institute of Justice explains the risks to counties that depend on contract beds: “Jails confront similar financial incentives [to private prisons] when they are reimbursed for people they hold for other agencies, especially when they are under-resourced. And when the state and feds send fewer people, local taxpayers are on the hook for the budget shortfall, while the availability of more jail beds invites the specter of unnecessary pretrial detention.” ↩