30 visualizations expose long-standing truths about mass incarceration in the U.S. and highlight the need for change
March 14, 2023
Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2023, its flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.
Highlights from the report include:
Prison populations are starting to rebound. Although prison populations are still lower than they’ve been in decades, prison populations are beginning to increase as pandemic-related slowdowns in the criminal legal system are no longer driving down prison admissions. Additionally, officials continue to release fewer people from prison than before the pandemic.
Recent claims about increasing crime are not supported by data. Crime rates remain at near historic lows. However, some in law enforcement and on the right have sought to blame changes to the criminal legal system — such as bail reform, changes to police budgets, or electing “progressive” prosecutors — for increases in some crime rates since the start of the pandemic. However, these claims are not supported by the evidence: murder rates were an average of 40% higher in “red” states compared to blue states in 2020, police budgets have recently increased in the vast majority of cities and counties in the country, and places that did not implement any of these reforms also saw increases in crime rates.
In total, roughly 1.9 million people are incarcerated in the United States, 803,000 people are on parole, and a staggering 2.9 million people are on probation.
“The pandemic presented government leaders with the chance to turn the page on the era of mass incarceration, but the emerging data show that they largely squandered this opportunity,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “While incarceration rates dropped quickly at the start of the pandemic, this was the result of pandemic-related slowdowns rather than any deliberate or decisive action by elected leaders. It is disappointing, but not surprising that prison populations are already beginning to creep up again.”
The report includes 30 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:
The U.S. continues to lock up hundreds of thousands of people pretrial, and therefore legally innocent, every day.
Black people are still overrepresented behind bars, making up about 38% of the prison and jail population and only 12% of U.S. residents.
Harsh sentences don’t deter violent crime, and most victims don’t support them. Contrary to popular narratives, most victims of violence prefer investments in violence prevention and alternative ways of holding people accountable rather than more incarceration.
At least 113 million adults in the U.S. (roughly 45%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.
“As our society transitions to a new ‘post-pandemic’ normal, we are seeing a return to business as usual as officials are beginning to abandon positive practices implemented in response to the pandemic,” said Sawyer. “The size of The Whole Pie should serve as a wakeup call for both the government and the public that if we don’t take meaningful action to disrupt the real drivers of mass incarceration — poverty, criminalization, low levels of investment in services that meet people’s needs, draconian policies that fuel the systems’ expansion — then the U.S. will retain the dubious distinction as the top incarcerator in the world.”
Federal prison officials are proposing to garnish 75% of any deposits made into incarcerated people's personal accounts if those people have court-related debts. It's an extremely harmful policy that will keep incarcerated people from buying basic needs.
The Biden Administration’s Federal Bureau of Prisons (BOP) recently proposed new, draconian rules on how and when the government will seize money earned by or sent to people in federal prisons. We signed on to a 37-page letter written by the National Consumer Law Center and former Prison Policy Initiative staff member and volunteer Stephen Raher opposing this proposal.
These proposed rules are complex, legally dubious, and far-reaching, so we wanted to explain what they would do and their devastating consequences. This proposal is the latest in a trend that we’ve followed closely for years: prisons and jails, which already lock up some of the most financially vulnerable people in the country, making their lives even more difficult. Our research on this topic offers important insights into why these policies harm not just people behind bars but also our communities and the nation as a whole.
What do the proposed rules do?
The proposed rules, which apply to people who owe outstanding court debts and participate in the Inmate Financial Responsibility Program (IFRP), would allow the government to take a huge portion of the small amount of money that people incarcerated in federal prisons earn or have sent to them by loved ones on the outside. On paper, the IFRP is a voluntary program. But while people in federal prison may not be forced to take part in it, there are consequences if a person doesn’t participate. Most notably, if an incarcerated person doesn’t participate, they likely won’t receive their “release gratuity” — the small bit of money the prison gives to an incarcerated person upon their release; essentially saying, “Give us the money you’re trying to save for your release, or else we won’t provide you with a little bit of money when you’re released.” In this situation, people in federal prison are damned if they do participate and damned if they don’t.
The proposal is a response to recent and sensational stories about ultra-wealthy people in federal prisons who have amassed unusually large amounts of money in their prison trust accounts while failing to pay legal fees and restitution. These examples are the exception, not the rule; most incarcerated people are poor before prison and even poorer once they get there. Rather than crafting rules that target these outliers, the BOP has written them in a way that will make it harder for people in prisons to survive today and more difficult to establish a life after they’re released. They’ve effectively taken a sledgehammer to a problem that requires a scalpel.
As prisons across the country increasingly force incarcerated people to purchase many of their daily basic needs, money plays a more important role in helping them obtain essentials like hygiene products, over-the-counter medication, and food, not to mention covering the costs of phone calls with loved ones on the outside. This proposal would take four steps that would make it harder for incarcerated people to access and save the little money they have:
Confiscate at least 75% of money sent to incarcerated people from their loved ones on the outside. One of the main ways incarcerated people get money is through money transfers from their loved ones on the outside. Under this change, if a person wanted their incarcerated loved one to have $25 to make phone calls to their child, they would actually have to send that person $100 — four times more than they actually will get.
Seize roughly 25-50% of wages earned from work. Prison wages — including federal prisons, where wages are regularly as low as 12-23¢ an hour — are notoriously bad. Under these proposed rules, a quarter or half (depending on what type of job they had) of the money earned by an incarcerated person would be seized, making these already abysmal wages even worse.
Eliminates protections that ensure incarcerated people have the money to call loved ones. Currently, the first $75 that a person in federal prison earns or receives every month is exempted from being taken to pay for legal financial obligations, so this money can instead be used on phone calls between the person in prison and their loved ones on the outside. These proposed rules would eliminate this exemption completely, making it much more challenging to maintain these social connections, which are critical for incarcerated people’s mental health and success after prison.
Pressures incarcerated people to make a one-time payment to pay off obligations, with the threat of notifying the U.S. Attorney’s Office if they don’t. Under the proposal, if a person has enough money in their trust account to pay off their financial obligations completely, they will be encouraged to pay off the entire balance in one lump sum payment, even if that leaves them with essentially no money for other essentials. While people would not be required to make the lump sum payments, the U.S. Attorney’s Office would be notified if they don’t, an implied threat that is significant enough to be considered coercive.
These rules are a bad idea
For many people, there is a self-evident, moral reason that these rules don’t make sense: They make the lives of tens of thousands of people in federal prisons — some of the most disadvantaged people in our country — even worse, in order to punish a handful of wealthy people in prison skirting their responsibilities. However, for those not convinced by this moral argument, there are other important reasons President Biden and the BOP should trash these rules.
They exacerbate existing inequalities
On the first day of his presidency, President Biden ordered all executive branch agencies — including the BOP — to work to redress inequities in their own policies and programs, including ensuring fair and just treatment of “Black, Latino, … and persons otherwise adversely affected by persistent poverty or inequality.” Rather than addressing these inequities, these proposed rules would make them worse, particularly for women of color. Rather than targeting the assets of a few ultra-wealthy individuals, they will impact all people in federal prisons — people who are disproportionately Black and Hispanic. However, the pain doesn’t end there. If the proposed rules were adopted, family members of incarcerated people would lose at least 75% of the funds that they send to their incarcerated loved ones. This change would dramatically increase the burden borne predominantly by women — disproportionately women of color — on the outside trying to provide for their families.
They undermine successful reentry
A person’s successful transition from incarceration is something we all have a stake in. However, this punitive proposal would work against this goal in two ways.
Research has consistently shown that one of the strongest predictors of whether someone will end up back behind bars after their release is whether they have strong family and social connections on the outside. These rules would make it much more difficult and costly to maintain these connections by making it harder for people to secure the money needed to make phone calls and send letters to loved ones on the outside.
Additionally, when a person is released, they need money almost immediately to secure housing, buy food, purchase clothing for job interviews, and secure transportation to those interviews and other appointments. These rules would make it harder for people in federal prisons to earn and save money to help them upon their release. Poverty is one of the greatest indicators of a person’s likelihood of taking part in criminalized behavior and ending up behind bars. This proposal would almost certainly condemn tens of thousands of people in federal prisons to poverty, even after their release.
These misguided rules would harm nearly all people in federal prisons to address a handful of extreme cases. They’re not just cruel, though; they also undermine the Administration’s stated goal of addressing racial and economic disparities while making it harder for a person to reenter society after their release. President Biden and the BOP should abandon this deeply flawed proposal.
Research shows diversion “works,” reducing harmful outcomes and increasing access to social services. However, studies also suggest diversion is routinely denied to people of color, sending them deeper into the criminal legal system. We review the research and remind practitioners that most diversion programs aren’t designed around racial equity — but should be.
As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process.1 This practice sounds like a win-win for communities — and it’s successful by manymetrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.
This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.
Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too.2 Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.
Cost: “Pay-to-play” diversion programs leave low-income Black and Hispanic people unable to participate
More often than not, diversion levies exorbitant fees on its participants. Indeed, many prosecutor-led diversion programs are funded by users (i.e., participants) themselves, creating a two-tiered system where those who can pay will receive the benefits of diversion. Desperate for an option that avoids prison time, others may enroll in diversion only to be kicked out when they can’t afford fees for participation, treatment, drug testing, or something else.
Across the country, prosecutors’ offices have pitched user-funded diversion as a virtuous and fiscally responsible approach to reducing mass incarceration.3 But the indisputable relationship between income, race, and ethnicity means that fee-based diversion remains out of reach for people of color, the same way that bail and other fines and fees disproportionately burden Black and Hispanic people.
A groundbreaking report from the Alabama Appleseed Center for Law and Justice highlights the bleak financial landscape of diversion.Their survey of nearly 1,000 people involved in diversion programs in Alabama revealed that low-income people resort to extreme measures to pay their fees: The majority of respondents (82%) gave up one or more basic necessities like rent, medical bills, or car payments in order to pay various fees. Unsurprisingly, more than half of a subset of survey-takers (55%) made less than $15,000 per year, and 70% had been found indigent. Despite this high level of need, only 10% were ever offered a reduced fee or a fee waiver for a diversion program.
Even though that survey’s respondents were about equally white (45%) and Black (47%) and the survey responses were not broken out by race, the report’s authors assert that the Black-white wealth gap in Alabama “could be a major reason” that Black Alabamians are disproportionately excluded from diversion opportunities.
Fee waivers are clearly the exception, rather than the rule: In 2016, The New York Timesreviewed diversion guidelines issued by 13 of South Carolina’s 16 state prosecutors, and found that only two documents mentioned the possibility of a fee waiver for indigent people. When we know so much about how poverty is criminalizedandracialized, diversion programs designed this way seem particularly cruel.
Eligibility: Diversion programs have narrow eligibility criteria, excluding people with prior “system” contact — who are disproportionately people of color
In a world where not every individual can be diverted, someone must decide who (or what type of charge) is eligible for diversion. The “seemingly neutral constraints” on diversion programs often prioritize people with little to no criminal history, with often arbitrary rules. Criminal history is also built into risk assessment tools, which quantitatively express a person’s public safety or “flight” risk.4 These tools are favored by courts nationwide because they appear accurate and objective, when in fact they’re built on racially-biased data.
Right away, these eligibility criteria disproportionately exclude Black people, who are arrested as youth, stopped by police generally, and jailed and imprisoned at higher rates than any other racial or ethnic group in the United States. For example, a recent study found that a Jacksonville, Fla. diversion program required a third degree, “nonviolent” felony charge and no more than one prior conviction for a “nonviolent” misdemeanor: In other words, a random and nearly impossible standard to meet. Unsurprisingly, only 16% of Black felony defendants were eligible for this program, compared to 23% of white and 28% of Hispanic defendants. Rules that unnecessarily limit diversion to “first-timers” only serve to keep criminalized, marginalized groups trapped in the carceral system.
Another vexing but all-too-common feature of post-filing5 prosecutor-led diversion programs is that they often require a guilty plea in order to participate. In pleading guilty, an individual signs away their right to any further due process, and faces immediate sentencing if they’re terminated from their diversion program. While these “post-plea” diversions (also called deferred adjudications) may be convenient for a prosecutor, who wouldn’t have to take further action on that person’s case, it’s unjust to force someone into this high-stakes situation just to receive social services.
Research also finds that some diversion programs require that participants have a specific family structure at home. According to the Sentencing Project, Black youth are more likely to live in single-parent, multi-generational, or blended households that do not meet these criteria, leading to a baseless finding of ineligibility. A 2018 study found that a youth’s family structure had no effect on whether or not they completed diversion; neither did race. Youth diversion programs also often require an admission of guilt, as explained above; research illustrates that Black and Native youth, likely due to greater mistrust of the criminal legal system, are less likely than white youth to admit guilt. This reality keeps youth of color from accessing diversion, which hurts their future prospects through the mark of a juvenile adjudication.
But eligibility is not always enough: A 2021 multi-site study found that in Tampa, Fla., qualified white defendants were more likely (29%) to be diverted to their drug pretrial diversion program, compared to qualified Black (22%) or Hispanic (18%) defendants. In Chicago and Milwaukee, racial and ethnic disparities in felony diversion rates were large, too, favoring white defendants; updated data from Chicago show that the disparity is shrinking, but still present.6
Discretion: Prosecutors decide who they think is capable or worthy of diversion; biases can leave racial minorities behind
Diversion decisions are often highly subjective, leaving candidates vulnerable to the racial biases held by police, prosecutors, judges, or other decisionmakers. Even when an individual qualifies based on their charge, criminal record, or need for treatment, they must ultimately be offered diversion. Unfortunately, research has shown that prosecutors offer diversion to Black defendants much less often than white defendants with similar legal circumstances.
A 2013 study found that Black, Hispanic, Asian and Native American (the last two grouped as “Other race”) male defendants were always less likely to receive pretrial diversion compared to similarly situated white defendants in 40 large jurisdictions in the U.S. The study’s author found that additional charges, or more than one felony charge, lowered the odds of pretrial diversion by as much as 35 percent. Since prosecutors tend tobring more charges, and more punitive plea offers, against Black and/or Hispanic defendants, factoring in the number of charges can hardly be considered racially neutral.
Similarly, in 2014, a group of researchers looked at people diverted to drug treatment in California, finding that differences in how Black and white people were diverted could not be explained by case-level details or by the state’s law implementing mandatory diversion for eligible drug offenses. In the end, they concluded that “diversion to treatment appears to be driven by the discretion of court officials” rather than any other factor.
Diversion can trigger devastating immigration consequences for non-citizens
One other insidious way that diversion (or lack of access to diversion) can perpetuate racial injustice is how it interacts with immigration law.
According to the Immigrant Legal Resource Center, a criminal conviction will set off federal immigration consequences, like deportation; therefore, someone who is required to plead guilty, or fails to complete a diversion program and is then convicted, suddenly faces incarceration and removal from the country, an excessive punishment that breaks apart families.
Take, for instance, one man whose first arrest led to a diversion opportunity, for which he pled guilty in order to participate. A legal resident of the United States, he learned that his guilty plea actually meant he could be deported, despite having no connections to the place he would be sent. In a move that only underscores this bizarre chain of consequences, the man asked his state (Ohio) Supreme Court to reverse course and allow the case to be prosecuted, due to the high likelihood that his charge would be lessened, and its outcome would not trigger deportation.
But the absurdity doesn’t end there: In federal immigration statute, the definition of a conviction is broad enough that even some defendants who haven’t pled guilty to a criminal charge, and have completed diversion, may be considered to have a conviction. The way individual diversion agreements are written will determine how “immigration-safe” the program is, an indication that diversion was not designed with this complex law, let alone the well-being of immigrant families, in mind.
Sadly, evidence also points to discretion working against Black youth and their families when it comes to diversion. A 2013 review of racial and juvenile justice mentions dangerous stereotyping of Black parents “unwilling to control” or supervise their child, leading to a subjective decision of ineligibility for diversion.
It’s difficult to pin down whether cost, eligibility, discretion, or some other mechanism is the most insidious when it comes to racial disparities in diversion. They all appear to burden Black families the most, even when accounting for other factors.
Diversion programs can address racial disparities by increasing access and eliminating collateral consequences
The research is clear: Diversion alone isn’t enough to address the harms of racialized mass criminalization. Left to their own devices, people who design diversion programs and policies have built in restrictions and subjectivity that disproportionately thwart people of color, forcing them further down the road to incarceration. Existing or proposed programs must take steps to ensure that post-arrest diversion programs are equitable and accessible by all, particularly communities that are overrepresented in the criminal legal system. These steps include (but are not limited to):
Vastly expanding eligibility criteria to address the reality that Black and Hispanic people have more frequent contact with police, jails, and courtrooms that can lead to exclusion from diversion programs. With so many more qualified participants, prosecutors or other decisionmakers may rely less on discretion and more on presumptive eligibility to move people off overwhelmed court dockets (or prevent them from formal “system” involvement in the first place).
Making diversion financially accessible to all participants, especially low-income people who may resort to extreme measures in order to stay in compliance. The status quo of user-funded diversion is out of touch with its purported goal of keeping people on pathways to health and success in their communities. Fee waivers should be automatic for those who have already shown indigency.
Mitigating collateral consequences of a conviction. The requirement to plead guilty in order to participate in diversion is illogical and overly burdens defendants of color who, once they have a conviction record, are likely to struggle finding employment, housing, or a future diversion opportunity. People who successfully complete diversion should have any relevant records expunged, preventing collateral consequences. Practices like leaving charges pending during a program or simply dismissing charges at the end often isn’t enough, as that activity may still appear in a background check.
Finally, research specifically about how race or ethnicity impact access to, or success with, diversion programs remains somewhat sparse.7 Individual program evaluations often show that diversion “works” and is cost-effective, but they typically don’t consider race or ethnicity, cost to participants, or apples-to-apples comparisons to other programs. Data collection on racial and ethnic groups in diversion must extend beyond Black and Hispanic groups, and should also include sex and gender identity. Failure to acknowledge and address inequities can exacerbate existing racial divides — saving the harshest aspects of the system for people of color while providing easier pathways for white people entangled in the criminal legal system.
Ultimately, leaders should keep in mind that even if these pretrial diversion programs are administered perfectly, they still come with a host of collateral consequences that can last for years or the rest of their lives. The best diversion programs are actually investments in social services and non-law enforcement responses to community needs, keeping people out of the criminal legal system entirely. These investments prioritize community well-being and public safety over punishment and can reduce the footprint of mass criminalization in America.
It’s also worth mentioning that we include diversion research in both adult and youth populations, even though our diversion report assumed an adult’s experience. Diversion actually originated in the juvenile justice system, and academic research has remained focused on outcomes of youth diversion programs. ↩
Not all fee-based diversion programs make headlines, but a marijuana diversion program in Arizona faced scrutiny in 2018 when advocates discovered that Maricopa county and its attorney raked in $2 million annually from the program, which is available to those who can afford the $1,000 fee. And a quick Google search for “program diversion fees” leads to similarly harsh fee structures, like a Broome County, N.Y. traffic diversion program charging $200 or $400 per ticket, or this Lee County, Ala. program extracting a $100 application fee, plus administrative fees ranging from $10 to $1,000 depending on the offense. ↩
Risk assessment tools are often mentioned with respect to pretrial decision-making, when a judge must determine if someone in jail should remain there with or without bail, or be allowed to await trial at home. However, risk assessments are frequently used in other parts of the criminal legal system, like in diversion, in correctional institutions, and for reentry and supervision purposes, with similar frameworks. ↩
Prosecutor-led diversion can occur at one of two stages in the evolution of a criminal case: pre-filing, or before the prosecutor files formal charges, or post-filing, after the court process has begun but before a final case disposition. Completion of post-filing diversion program leads to the initial charges being dismissed without a trial. But while charges are pending, or even after they’re dismissed, they can show up in a background check, harming employment, housing, and other prospects. ↩
According to analysis from Prosecutorial Performance Indicators (see “PPI 7.5, Diversion Differences by Defendant Race/Ethnicity”), the diversion rate for Black felony defendants in Cook County, Ill. (Chicago) was over 15 percentage points lower than the diversion rate for white felony defendants; in the first few months of 2020, this difference hovered around 6 percent. ↩
This may be because diversion programs are “local creations,” formulated by agencies and offices with their own rules and measures of success, making them hard to analyze and compare. ↩
The report examines the unique challenges women in the criminal legal system face and provides the clearest look at how the pandemic impacted women's incarceration in the U.S.
March 1, 2023
A report released today by the Prison Policy Initiative and the ACLU Campaign for Smart Justice presents the most recent and comprehensive data on how many women are locked up in the U.S., in what kinds of facilities, and why; as well as detailed data on incarcerated women’s demographic makeup and health.
Women in the U.S. experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. The new edition of Women’s Mass Incarceration: The Whole Pie, which the Prison Policy Initiative and ACLU have published since 2017, fills this gap with richly-annotated data visualizations about women behind bars.
The report reveals that the number of women behind bars fell significantly as a result of the COVID-19 pandemic, but is already rapidly returning to pre-pandemic levels. “The drop in women’s incarceration that we saw in 2020 was the kind of change needed to actually start ending the mass incarceration of women,” said report co-author Aleks Kajstura. “Unfortunately, because the changes during the first year of COVID-19 were due more to systemic slowdowns than policy changes, we’re already seeing the downward trend being reversed and more vulnerable women ending up in prison.”
The report highlights the importance of jails — an under-discussed part of the criminal legal system — to the story of women’s incarceration. Approximately the same number of women are locked up in jails as in state prisons. Jails are built for short stays, meaning that the disproportionate number of women locked up in jails (compared to incarcerated men) are stuck in facilities with worse healthcare and less programming.
Significant numbers of women in prison end up there after being disadvantaged as children: 12% report homelessness before they turned 18; 19% were in foster care at some point; and 43% came from families that received welfare or other public assistance.
53% of women were jobless in the month before the arrest that led to their incarceration, suggesting that unemployment is a major factor in leading women to interactions with the criminal legal system.
Most women in prison have physical/cognitive disabilities (50%) and/or mental illnesses (76%), showing the punitive approach state and local criminal legal systems have taken to people struggling with these serious health issues.
58% of women in state prisons are parents to minor children, and of those, most are single mothers who were living with their children prior to imprisonment — making it likely that incarceration uprooted their children and led to the termination of their parental rights, permanently breaking up their families.
Finally, the report breaks down the racial demographics of women in prison and jail, details the number of women on probation and parole, and provides key statistics on the incarceration of girls in juvenile facilities.
“Too often, low-income women are punished by laws criminalizing poverty and caught in the wide net of Broken Windows policing that harms families and communities,” said Kajstura. “Both criminal justice reform and broader efforts to expand welfare and healthcare in this country will be necessary to end our nation’s tenure as the world’s leading incarcerator of women.”
Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue.
by Emma Peyton Williams,
February 27, 2023
Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.
Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights, but advocates are fighting for creative and holistic solutions.
As a result of tireless advocacy, often led by formerly incarcerated women, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)
Caregiver mitigation and diversion laws: The best existing reform targeting family separation
Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,1Louisiana, Oregon,2Tennessee, Washington, and Missouri, 34 caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill proposed in Tennessee.)
It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.
Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)
Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”7 Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.8Further, many states only have one women’s prison that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.
Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”9 such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.
Case Study: A Look At Parental Incarceration in Illinois
The experiences of advocates in Illinois show effective implementation of laws is essential for success.
While Illinois advocates have won several reforms that expand incarcerated parents’ rights, many barriers have hindered their implementation. Observing this long uphill battle offers interesting insights about the limited value of passing legislation without effective implementation measures in place.
Illinois is one of seven states with a nursery where incarcerated new mothers can spend up to two years with their newborns, but there are often more than three times as many pregnant people in the Illinois Department of Corrections than there are spaces in the Moms and Babies program. Even though demand outweighs capacity, admissions requirements are so strict that spaces in the program often sit empty. At the beginning of the COVID-19 pandemic, all program participants were released, which is a promising reminder that simply releasing parents from prison is possible. As of April 2021, the program had not resumed accepting participants even though the DOC had started re-admitting people, including pregnant people.10
In 2019, Illinois attempted to expand incarcerated parents’ rights by passing the Children’s Best Interest Act, inspired by legislation crafted by members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, such as the original Tennessee bill. The Children’s Best Interest Act requires that a court consider whether a defendant is the parent of a child or a caregiver for a relative who will be negatively impacted by the defendant’s absence. The act specifies that the following factors be considered:
If the parent is breastfeeding the child;
the age of the child, with strong consideration given to avoiding disruption of the caregiving of an infant, pre-school, or school-age child by a parent;
the role of the parent in the day-to-day educational and medical needs of the child;
the relationship of the parent and the child;
any special medical, educational, or psychological needs of the child;
\the role of the parent in the financial support of the child.
The Act also allows defendants to present another form of mitigation during sentencing: “a Family Impact Statement…which the court shall consider before imposing any sentence and may include testimony from family and community members, written statements, video, and documentation.”12
While the potential benefits of this legislation are promising, many limitations have stifled its impact so far. After going into effect in January 2020, the COVID-19 pandemic delayed sentencing hearings, pushing back implementation. Further, though advocates on the ground are organizing to spread the word, the legislation did not create an initiative to educate judges and attorneys about the changes that result from this legislation. Finally, the act does not change or bypass mandatory minimums, meaning there are limitations to the discretion that a judge can exercise during sentencing. Illinois advocates continue resisting these barriers to implementation, and their struggle can provide insights that advocates in other states might consider when pursuing legislation about incarcerated parents in their own state.
Considerations for successful policy and advocacy efforts
A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.
Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:
Model legislation: the original draft of the Tennessee legislation, shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and a 2018 Louisiana bill drafted by Operation Restoration, which would have also allowed courts to vacate the judgment of conviction with successful completion of the program, and would broaden eligibility to include caretakers of people with mental or physical disabilities of any age who cannot take care of themselves.13
Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.
Most of these states’ laws create diversion programs that begin during the sentencing process, allowing defendants to avoid incarceration but not a criminal conviction. California’s law goes further: Its program diverts primary caregivers from incarceration during the pretrial period, and individuals who successfully complete the program avoid not just incarceration, but the collateral consequences of a criminal conviction. ↩
Oregon’s law, passed in 2015, established a “Family Sentencing Alternative Pilot Program,” to sunset in 2025 (or, presumably, to be replaced with more permanent legislation). Currently, the diversion program is only active in 5 of the state’s counties: Deschutes, Jackson, Marion, Multnomah, and Washington. The linked report includes more information about outcomes of the program. ↩
One more state — Minnesota — is not on this list but deserves a mention. In 2021, Minnesota passed the “Healthy Start Act,” allowing the Department of Corrections Commissioner to conditionally release people to community-based programming who are pregnant or immediately postpartum for up to 12 months. We did not include this among the states that have passed primary caregiver legislation because of how few caregivers are eligible for this program and for how limited the diversionary period is. However, it is a vast improvement on the previous law, which only allowed a 36-to-72 hour departure from the correctional facility for a mother to give birth and separated mothers from their newborns immediately. ↩
Texas and Arizona also introduced caregiver diversion bills that did not pass in 2019 and 2021, respectively. ↩
This study states that “Recidivism, the outcome variable, was measured two different ways in this study. It was operationalized as 1) a reconviction for a felony-level offense, and 2) a revocation for a technical violation.” We believe that how you measure “recidivism” is complex and that the equation of these two outcomes is problematic, as is outlined here. ↩
Operation Restoration also successfully passed a related Primary Caretakers Arrest Bill in 2021, which sets out training and procedures for arrests of people caring for minor children, to reduce the traumatic impact of primary caretakers’ arrests on children. ↩
Millions of people with criminal records likely meet the income eligibility requirements for public housing assistance. But needlessly strict local policies lock them out of housing. We explain how your public housing authority may be overly exclusionary.
by Selena Muñoz-Jones and Emily Widra,
February 15, 2023
Housing is a human right: the right to adequate housing is recognized by international law, including the Universal Declaration of Human Rights. But we know that in the U.S., hundreds of thousands of people face homelessness, and there are particularly high rates of homelessness and housing insecurity among formerly incarcerated people across the country. Our previous research found that people who have been to prison just once experience homelessness at a rate nearly 7 times higher than the general public. But people incarcerated more than once have rates 13 times higherthan the general public. Inevitably, part of the problem is that public housing policies — which should be a part of a crucial safety net against housing insecurity — actually discriminate against people with criminal legal involvement and criminal records.
Part I of this briefing delves deep into the policies of the U.S. Department of Housing and Urban Development (HUD) that give local public housing authorities (PHAs) overly broad discretion to deny housing to people with criminal records. We review how PHAs wield this discretion to deny people housing in more ways than required by federal law. Part II of this briefing is a guide to critically reviewing public housing policies to help you identify the criteria your local PHA has chosen to use to exclude people with criminal records and to help you evaluate whether those criteria are necessary or potential targets for local-level reforms.
Part I: An introduction to local public housing authorities’ exclusion of people with criminal histories
We know that access to safe, stable, and affordable housing is crucial for healthandwell-being, and for formerly incarcerated people, housing is also crucial for successful reentry. The transition from prison to the community is rife with challenges. But before formerly incarcerated people can begin to address health problems, find stable jobs, or learn new skills, they need a place to live.
While the available data do not allow us to determine exactly how many people would qualify for public housing if not for their prior criminal legal system contact, based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people. The criminal legal systemdisproportionatelytargetspeople of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies.
Introduction to public housing authorities
There are over 3,000 public housing authorities (PHAs) granting access to the more than 970,000 public housing units for low-income families and individuals across the country. PHAs are local agencies that determine public housing eligibility based on general guidelines published by the federal Department of Housing and Urban Development (HUD).
In 1968, the Fair Housing Act expanded the Civil Rights Act of 1964, prohibiting discrimination in housing transactions (renting, buying, and selling) on the basis of race, religion, sex, national origin, family status, and disability. Importantly, the 1968 Fair Housing Act — nor any subsequent revision — has not considered criminal history status as a protected class, meaning that housing policies can legally discriminate based on criminal legal system involvement.2
However, in 2016, HUD issued a memo to PHAs clarifying that while having a criminal record is not a protected status, criminal records alone do not justify an automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination. Even without identifying people with criminal histories as a protected class, this memo should have created a pathway to hold PHAs responsible for denials of housing with discriminatory intent or effects as violations of the Fair Housing Act. But although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement, as we explain below.
Doubling down on its 2016 guidance, in June 2022, HUD published the most recent changes to federal public housing policies. These guidelines advocated for PHAs to make their 2023 public housing policies3as inclusive as possible for people with histories of criminal legal system involvement. It remains to be seen how PHAs will — or will not — incorporate this directive, as there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.
Denial of public housing assistance for people with criminal histories
HUD establishes two types of denials — mandatory and permissive — that local authorities use in making decisions about housing for people with criminal histories. The language in both sections leaves far too much room for discriminatory decision-making by local public housing authorities (PHAs).
First, there are automatic reasons for which local PHAs must issue denials, as decreed by HUD (“mandatory prohibitions”) (24 CFR §982.553):
The PHA determines that any household member is “currently engaging in illegal use of a drug;”
The PHA determines that it has reasonable cause to believe that a household member’s “illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents;”
Any household member has ever been convicted of “drug-related criminal activity for manufacture or production of methamphetamine” on the premises of federally assisted housing;
A household member has been evicted from federally assisted housing for “drug-related criminal activity” in the past three years; or
Any member of the household is subject to a lifetime registration requirement under “a State sex offender registration program.”
As you can see, throughout these reasons for mandatory denials, there is still significant room for discretion at the local level. For example, there is no definition of what “currently” means and each PHA has the authority to define this timeframe however they want: for example, “currently” could be defined as within the last week, the last six months, or within the last year.
The second kind of denial issued for people with criminal histories is not federally required, but instead, the PHA elects to expand the criteria for denial. These “permissive prohibitions” often build on the above federal requirements to make public housing access even more restrictive. PHAs “may prohibit admission” if the PHA determines that any household member “is currently engaged in, or has engaged in during a reasonable time before the admission” the following behaviors (24 CFR §982.553):
“Drug-related criminal activity;”
“Violent criminal activity;”
“Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;” or,
“Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).”
Ultimately, the federal government offers PHAs freedom in determining how to define all of the terms used above, including “currently,” “reasonable time,” “threaten,” and “peaceful enjoyment,” essentially granting PHAs vast autonomy over denials of public housing assistance for virtually any criminal history they choose.
Addressing your local PHA policies
Local PHAs can — and do — exercise a great deal of discretion when crafting and implementing their policies that determine who is and isn’t eligible for low-income public housing. While HUD provides guidelines on criteria for access and denial (24 CFR §982.553), individual PHAs often make their policies even more restrictive than the HUD recommendations. In fact, almost all PHAs use permissive prohibitions to make their policies more restrictive.
Not all public housing policies are created equal, and we encourage you to investigate your local policies. To that end, because these policies often use the same general template, we have looked at general trends across these policies to outline key areas for local advocates to take a closer look at. In Part II below, we offer a guide for analyzing of public housing policies. If you find your local public housing authority is needlessly discriminating against people with criminal histories, we encourage you to advocate for changes to the policies for the coming year. These documents are public and are often updated annually with public comment periods (often in the first few months of the calendar year). This is an opportune time to view the documents, provide necessary feedback, and advocate for fair and just housing policies in your community before they are submitted for approval and implemented.
Part II: How to critically review your local public housing authority policy’s exclusions for people with criminal histories
Local public housing authority policies often limit or completely deny public housing assistance to people with criminal histories. Some of the reasons for exclusion are mandatory and determined by the federal Department of Housing and Urban Development (HUD) (see Part I for more information on these mandatory prohibitions). But most public housing authority policies are even more exclusionary than the federal regulations require, needlessly denying housing assistance to those likely to need it most.4
It’s not always clear how or why people with criminal histories are denied public housing assistance, nor which rules could be changed through advocacy efforts. We put together this guide to help local advocates and decision-makers identify questions to consider when looking for ways to make local public housing policies more inclusive and housing more accessible to residents with criminal histories.
Here are 5 major questions to look at in your local policy:
What actions and behaviors that exclude people from public housing?⤵
How does the PHA define “current” and “currently”?⤵
What evidence does the PHA uses to identify prohibited actions and behaviors?⤵
What kinds of actions and behaviors exclude people from public housing assistance?
There are five federally required “mandatory prohibitions”, or behaviors for which PHAs are required by HUD to deny public housing assistance. But there are far more “permissive prohibitions” — i.e., behaviors for which PHAs can choose to deny assistance regardless of federal guidelines — and we find that PHAs exercise significant discretion to make these policies more exclusive than necessary:
“Drug-related criminal activity.” HUD defines “drug-related criminal activity” as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug” (24 CFR §5.100). Federal regulations require denial of assistance if there is “current” engagement “in the illegal use of a drug” or “a pattern of illegal drug use [that] may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents” (24 CFR §982.553). However, federal regulations do not require PHAs to look for any history of “drug-related criminal activity” nor does HUD require PHAs to deny assistance to people with such a history.
Importantly, throughout all public housing authority policies, “illegal drugs” refers to federally illegal drugs, including marijuana (the medical use of cannabis has been legalized in 37 states and D.C., and the recreational adult use of cannabis has been legalized in 21 states and D.C.). So, for example, while someone has not participated in the “illegal use of a drug” by using marijuana in the state of Colorado (where it is legalized), for the purposes of public housing assistance, a Colorado PHA can and will consider this “drug-related criminal activity” to deny assistance. At a minimum, PHA policies should be written to be in line with state law, specifying exceptions for drug-related activities in states where those drugs have been decriminalized. A more comprehensive step would be to pass H.R. 3212,5 a bill introduced in the House to resolve this discrepancy between state and federal marijuana laws in public housing assistance.
“Violent criminal activity.” HUD defines this as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage” (24 CFR §5.100). Federal regulations do not require PHAs to look for any history of “violent criminal activity” nor does HUD require PHAs to deny assistance to people with this history.
While HUD provides this loose definition of “violent criminal activity,” it does not actually specify which criminal offenses may or may not be included, allowing the PHA freedom, again, to decide what behaviors can be considered “violent criminal activity.” This matters because what constitutes a “violent crime” varies between jurisdictions,6 and HUD’s provided definition does not even try to clarify what offenses are encompassed by this vague definition. In some states, entering a dwelling that you do not own is a burglary, a “violent” offense.7 Similarly, several states consider “purse snatching” and theft of drugs to be “violent” offenses. The reality is that while these offenses may momentarily shock or scare someone, they are hardly indicative of a long-term pattern of “violence” towards people, and certainly not indicative of an inability to safely live in publicly assisted housing, but PHAs are still able to consider them when denying someone housing.
PHAs currently denying housing on the basis of “violent criminal activity” in an applicant’s past should reconsider. People convicted of violent offenses have among the lowest rates of recidivism, illustrating again that people who have committed a violent act are not inherently violent people and can succeed in the community. People convicted of violent offenses are less likely to be re-arrested in the years after release than those convicted of property, drug, or public order offenses.8 An act of violence represents a single moment in someone’s life, and shouldn’t be the only factor that determines their access to housing.
Other, unspecified “criminal activity.” HUD permits — but does not require — PHAs to deny public housing assistance if the PHA determines that a household member is engaged in “criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity” (24 CFR §982.553).
HUD provides this purposefully vague language, allowing PHAs to determine what behaviors they consider to “threaten the health, safety, or right to peaceful enjoyment.” Without any definition of what a threat to “the right to peaceful enjoyment of the premises” refers to, PHAs are free to discriminate against people who participate in almost any “criminal activity,” no matter how innocuous.
What does it mean that the PHA is evaluating “current” actions and behaviors?
Some “lookback periods” (that is, the timeframe in which behaviors are evaluated in determining eligibility for public housing assistance) are mandated by HUD (see sidebar). But there are also lookback periods that the PHAs are able to determine on their own, with no minimum or maximum guidelines from HUD. When evaluating “current” behaviors, PHAs have the ability to define what “current” means. While to most people, “current” means “right now,” PHAs define “current” in a number of different ways:
For example, some PHA policies define “currently engaged in the use of illegal drugs” to include “any use of illegal drugs in the previous six months,” or any other period of time they choose.
Similarly, “any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol” can mean almost any range of time chosen by the PHA.
Some PHAs do not even try to define “currently” or “current” in their policies, shifting this significant amount of discretion to individual decision-makers within the PHA, leaving room for inequitable decisions even within the same agency.
Lengthy lookback periods are a serious problem because they cast such a wide net. Looking at drug convictions alone, almost 400,000 people are currently incarcerated for a drug offense, and law enforcement make over 1 million drug possession arrests each year (many of which lead to convictions). The number of people excluded by lengthy lookback periods for “current” or “patterns of” drug use when they apply for public housing is staggering, given these statistics. Stable, safe, and affordable housing is crucial to reducing recidivism for all types of offenses, including drug offenses. To enhance public safety, PHAs should be expanding access to housing for people with criminal histories, not limiting it.
What time limits does HUD specify for mandatory denials?
If any household member has ever been convicted of “production or manufacture of methamphetamine on the premises of federally assisted housing,” regardless of how long ago this occurred, the PHA must deny assistance. The federally mandated lookback period here is “lifetime”.
Similarly, if any household member has ever been subject to a lifetime registration requirement under a “sex offender registration program,” the PHA must deny assistance, no matter how long ago it was. The federally mandated lookback period here is “lifetime”.
HUD also requires the PHA to deny assistance if any household member has been evicted from federally-assisted housing in the last 3 years for “drug-related criminal activity,” but PHAs can extend this time period as much as they would like, and we have seen cases where this was extended from the federally required 3 years to upwards of 5 years. The federally mandated lookback period here is 3 years, but that is only a minimum.
Given what we know about substance use, harm reduction, and the importance of housing in recovery,9 HUD should consider removing drug use as a criterion for denial. Until then, local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for “current drug use.” Some PHAs rightly have policies in place to overlook possible drug use in the lookback periods if a person has completed a drug rehabilitation program. Another possibility is for PHAs to create a process of (1) informing applicants who are denied housing for this reason of the PHA’s policies regarding drug use, (2) connecting them with community resources for treatment or supportive housing, if desired, and (3) encouraging them to reapply for public housing assistance after participating in a drug rehabilitation program.
What evidence is the PHA using to identify prohibited actions and behaviors?
Federal guidelines grant PHAs significant discretionary power in determining an individual’s participation in “criminal activity” (whether “current” or within a specific lookback period). PHAs can — and do — use the following “evidence of criminal activity” to determine eligibility for public housing assistance:
Arrests. PHAs cannot use arrest history alone to deny public housing, but they can use a known arrest as a trigger to look for more “evidence of criminal activity” or to be used in conjunction with other “evidence of criminal activity,” like convictions.
Arrests can’t be used as the sole “evidence of criminal activity” because they are not reliable indicators of actual criminal behavior, as evidenced by the large number of criminal cases that are dismissed or otherwise result in non-conviction. For example, Measures for Justice found case dismissal rates (the percentage of cases filed in court that were dismissed) ranging from 14% (in Pennsylvania) to 46% (in North Carolina) in the 16 states for which they had access to the data. And even before cases are filed in court, many cases referred by law enforcement are rejected by prosecutors; Measures for Justice found that prosecutors rejected 20% of all cases in Missouri, and 22% in Florida (the two states for which they had these data).10
Convictions. PHAs can deny public housing assistance based on conviction records. Many PHA policies will state something indicating that a “conviction is more heavily weighted than an arrest,” but it’s important to note that arrests without convictions can — but shouldn’t — still be used in conjunction with a historic conviction to deny public housing.
Evictions. A history of eviction is not an indicator of “criminal activity,” but a PHA can use an eviction history “related to the use of illegal drugs or the abuse of alcohol” as a reason to deny public housing assistance. And that creates a loophole to the “arrests aren’t evidence enough” rule: Considering that the federal regulation disallowing the use of arrests alone to deny housing is relatively recent (dating back to the 2016 HUD memo), people who were evicted following an arrest prior to the rule change could still be barred from public housing today because of the past arrest and subsequent eviction (regardless of conviction).
In addition, evictions are used to determine whether a household can meet the financial obligations of public housing. But by definition, people applying to public housing are doing so because they have difficulty meeting current financial obligations for housing, so policies that use prior evictions to determine eligibility for housing support are particularly nonsensical.11
What happens when someone is denied public housing assistance?
When a PHA denies housing assistance for a reason other than “mandatory prohibitions”, the individual or family can petition for an informal review process. However, HUD offers a long list of reasons that the PHA does not have to grant an informal review, including “discretionary administrative determinations by the PHA,” which could include almost any reason for the PHA to deny assistance (24 CFR §982.554). Additionally, if an informal hearing is required to determine if the reasons for denial “are in accordance with the law” (24 CFR §982.555), individual PHAs create the parameters of the hearing, including how quickly a family needs to request a review or hearing and instances where the denial automatically stands if the individual or family is late to the hearing. For instance, we’ve found PHA policies that state denials will stand automatically if someone is more than 15 minutes late to the hearing.
The review and hearing process is often impossible for people with criminal histories and low incomes. People with low incomes are less likely to have reliable transportation or child care, and sometimes criminal legal system involvement itself can interfere with daily life in ways that can be disqualifying.12 For example, people on probation and parole are often required to submit to random, unannounced home or work visits, which could interfere with timely arrival at scheduled hearings.
A standardized, best practice outlined by HUD would offer consistency and clarity to the review and hearing process. Instead of permitting individual PHAs to determine what “discretionary administrative determinations” do not require an informal review, HUD should outline exactly what determinations are not subject to external oversight. Similarly, while certain timelines may inevitably vary between localities based on their infrastructure, it is important for HUD to restrict situations in which denials automatically stand despite the PHA agreeing to an informal review. People with criminal histories should not be forced to jump through countless extra hoops to have the PHA’s decisions reviewed. Again, housing policies should be working towards expanding housing access, not restricting it.
Who makes the decisions?
The decision-makers that determine who gets access to public housing assistance vary by locality, but are almost never specified in the policies. Often, these policies state that “the PHA decides to offer or deny assistance,” which provides no information about who, exactly, is making these critical decisions. While every PHA has a director — and we can assume most decisions go through them — there are often cases where a city or county board of commissioners can be heavily involved in the decision-making process.
Because of the variance — and often the obscurity — of who the decision-makers are, we encourage advocates to reach out to their local PHAs for clarity and to advocate for adding this information to the public housing policy.
The discretionary power of PHAs resides in the ability of these systems to work without much public investment and oversight. Wherever possible, we encourage advocates to participate in public comment periods when these policies are drafted annually and let the PHAs know that you are invested in expanding housing access for all.
While local advocacy efforts can’t change HUD’s mandatory reasons for denial, which of course, should be changed, local advocates can make important changes in how their local PHAs set, interpret, define, and measure criteria for denial:
Invest in expanding affordable housing and public housing. Currently, every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability. A 2022 Human Rights Watch report finds that “policy decisions taken by the U.S. federal government have resulted in a housing assistance system that fails to ensure the human right to housing,” in part due to serious reductions in federal funding of public housing. The report proposes two practical recommendations: the federal government should increase funding for affordable housing, expand funding for public housing, and review other housing assistance programs to ensure they are adequately serving the lowest-income families, and state and local governments should allocate more financial support for public housing to maintain safe, affordable low-income housing regardless of federal funding.
Eliminate additional reasons for denial beyond those required by HUD. All of the “permissive” denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.
Remove local discretion to “look back” into criminal history further than HUD requires. There are two ways to implement this reform:
Require PHAs to provide evidence-based justification for lookback periods beyond the few minimums set by HUD. HUD could require PHAs to provide their reasoning and justification for lookback periods that go beyond the HUD requirements. We would encourage HUD to oversee these justifications and only allow those based in fact, rather than in stereotypes of people with criminal legal system contact.
A HUD mandated standard lookback period. A mandatory lookback period that is as short as possible — without permitting the PHA to extend the lookback period — would eliminate much of the discretionary, subjective power the PHAs hold over people looking for safe and affordable housing. HUD should provide reasoning and justification for whatever lookback period it imposes.
To reduce opportunities for mistakes or discrimination, require PHAs to always issue crystal clear explanations as to why they denied housing. At a minimum, PHAs should provide clear standards for denial, including specific disqualifying offenses, allowable types of evidence, clear and relevant lookback periods, and what person(s) or decision-making bodies have discretionary power.
Make the appeal process clear and fair. While HUD does require any denial to include a “notice of denial” that includes “a brief statement of the reasons for the PHA decision,” we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based (24 CFR §982.555). Currently, HUD mandates that any denial “must notify the family that the family may ask for an explanation of the basis of the PHA determination, and that if the family does not agree with the determination, the family may request an informal hearing on the decision” (24 CFR §982.555). HUD provides guidelines on how reviews and hearings operate, but again, a lot of local discretion is built in: for example, the PHA determines the deadline for requesting an informal hearing. Furthermore, HUD states that the family may be represented by a lawyer or other representative “at [their] own expense” (24 CFR §982.555), but we know that people facing discretionary denials of public housing assistance for criminal legal reasons are unlikely to be able to afford an attorney. To make this process clear and fair, advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service (often run by state and local bar associations).
Not all people with a criminal record have been incarcerated in a jail or prison. ↩
A protected class refers to people who have “a common characteristic and who are legally protected from discrimination based on that characteristic.” Under federal law, people are protected from discrimination based on race, color, religion, sex, gender, sexual orientation, pregnancy, national origin, age, disability, and genetic information. People in protected classes can sue for discrimination based on their protected class status in housing and employment. In 2022, Atlanta added formerly incarcerated people to their list of protected classes, which “prohibits discrimination against individuals for criminal convictions, just as it offered legal protections against racial, age-based and other forms of discrimination.” For more information on making formerly incarcerated people a protected class, seeEnding Legal Bias Against Formerly Incarcerated People from the Haas Institute at UC Berkley. ↩
Throughout this briefing, we refer to the policies from public housing authorities as “public housing policies” that outline the criteria for access to housing assistance. These are often called Administrative Plans (APs) and/or Admissions and Continued Occupancy Plans (ACOPs), and serve to establish the local policies for the administration of public housing assistance. These plans are usually updated annually and these documents are often quite long and can range anywhere from fifty to five hundred pages in length. For an example of what to watch out for in these policies, see Part II of this briefing. ↩
As discussed in Part I and the 2018 Prison Policy Initiative report, Nowhere to Go: Homelessness among formerly incarcerated people, formerly incarcerated people are almost 10 times more likely to be homeless than the general public, and people who have been incarcerated multiple times are twice as likely to be homeless as those who are returning from their first prison term. ↩
In 2021, House of Representatives Delegate for Washington, D.C. Eleanor Holmes Norton introduced H.R.3212 to remedy this discrepancy between state and federal marijuana laws: “This bill specifies that (1) an individual may not be denied occupancy of federally assisted housing on the basis of using marijuana in compliance with state law, and (2) the Department of Housing and Urban Development may not prohibit or discourage the use of marijuana in federally assisted housing if such use is in compliance with state law.” (As of January 2023, there has been no movement with this bill since it was introduced in May 2021). ↩
The distinction between “violent” and other crime types is a dubious and subjective one; what constitutes a “violent crime” varies from state to state and from policy to policy, and acts that are considered “violent crimes” do not always involve physical harm. The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its comprehensive and relevant report, Defining Violence. ↩
This statistic is based on re-arrest, which, as a measure, casts the widest net — and therefore estimates the highest rates of recidivism — but does not actually reflect anything about actual guilt or convictions. (For more information on recidivism and “violent” offenses, see our 2020 report, Reforms without Results.) ↩
With stable housing, people’s capacity to seek out regular healthcare, employment opportunities, and community support expands significantly. With a serious shortage of supportive sober or harm reduction housing options in the U.S., many formerly incarcerated people and many people who use drugs may not have access to stable, affordable housing. ↩
For a detailed discussion of how arrests are misused by non-criminal justice authorities to make decisions (such as those made by public housing authorities discussed here), see “Arrests as Regulation,” (Jain, 2015). ↩
Even in instances where PHAs offer remote informal hearings, this can still create a burden to the family for the same reasons, but in addition, low-income families may lack ready access to computers and other necessary technology. ↩
In the United States, Native people1 are vastly overrepresented in the criminal legal system. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate (350 per 100,000) and more than four times higher than the state and federal prison incarceration rate of white people (181 per 100,000). These disparities exist in jails as well, with Native people being detained in local jails at a rate of 316 per 100,000. Nationally, the incarceration rate in local jails is 192 per 100,000, and for white people, the jail incarceration rate is 157 per 100,000.
Even when government data on incarceration are disaggregated by race, the way that Native incarcerated people are counted is inconsistent and often underreports their numbers, because people reporting two or more races are lumped into various categories depending on who is publishing the data. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.
“Junk fees,” those hidden charges attached to purchases or transactions, are something we’ve all faced. For those outside the prison walls, they are an inconvenience that may force them to find another company to do business with or grumble as they pay more for a product than they expected.
For incarcerated people, though, there is no escape. They don’t have the option to use a different service or company. And their ability or inability to pay these fees often has dramatic consequences, determining whether they can stay in touch with a loved one or buy food at the commissary to supplement the paltry meals the prison provides. And considering the unconscionably low wages they earn for their labor, these fees are no minor inconvenience.
As part of a broader effort by the Biden administration, the Federal Trade Commission (FTC), an independent agency charged with protecting consumers and enforcing antitrust laws, is currently considering new measures to crack down on these fees. This week, along with the National Consumer Law Center and 27 other organizations, we explained to the agency that because of their low incomes and uniquely constrained position as consumers, providing incarcerated people relief from junk fees should be at the top of their list.
In an 18-page joint letter, this coalition highlighted some of the most abusive financial practices in prisons and jails and the ways incarcerated people are especially vulnerable to these junk fees.
As facilities increasingly shift the costs of incarceration to the people who are locked up, money plays a more important role than ever in the lives of people in prisons and jails. They now often have to pay for essentials like hygiene products, food, and paper from the commissary. As a result, many families have to send money to their incarcerated loved ones to help them make these purchases.
Sensing an opportunity for profit, companies have sprung up to facilitate these money transfers. Our 2021 analysis of this industry found that these companies charge steep fees — up to 37% — and have complex pricing structures that make it hard to know exactly how much it’ll cost to send money to your loved one.
These fees are tough to justify at a time when services like Venmo and Zelle make transferring money outside of the prison walls easy and free.
Communication and technological services
As prison and jail phone rates recently came under increased scrutiny, the companies behind these services have evolved to offer new services that have, thus far, largely evaded government regulation and oversight. As these companies moved into these unregulated industries, they packed their products with unfair and unclear fees that sap money from incarcerated people and their loved ones.
Electronic messaging: In recent years, electronic messaging has exploded in popularity in prisons and jails. While the service has immense potential to strengthen connections between incarcerated people and their loved ones, unreasonably high costs and hidden fees have, thus far, made this yet another way for these companies to reap immense profits off the backs of some of the poorest people in society.
Tablets: Similarly, so-called “free” tablets offer the promise of maintaining stronger connections to the outside by allowing incarcerated people to access music, videos, and other digital content, but are often little more than a tool to sap money from incarcerated people. For example, one tablet provider charges incarcerated people a $14.99 fee for a 14-day digital music subscription. For comparison, Spotify’s standard price is $9.99 a month, and its most expensive plan, the “family plan” — which provides six accounts that can stream music at the same time — is only $15.99 a month.
Even when a person is released, they’re still not free from the exploitative grasp of these companies, thanks to the advent of “release cards.” These prepaid debit cards, which we’ve covered extensively, are often given to people as they leave prison or jail. They’re loaded with any funds they had in their trust account — wages earned while behind bars, support from family members, or money the person had in their possession when arrested.
At first, this may sound like a convenient way to give someone their money when they’re released, until you learn of the complex and costly fees that quickly drain their value. This includes fees for:
Using your card for a purchase,
Not using your card recently enough,
Using your card at the wrong ATM or bank, and
Closing your account.
Often the only way to avoid these fees is by closing your account almost immediately upon your release, a time when you’re likely to be looking for stable housing and employment — things that are often necessary conditions for someone’s release to be approved.
This push by the FTC and the Biden Administration to address junk fees is laudable — and long overdue. However, if it is to be successful, they must recognize that you can’t truly address the worst impacts of junk fees without addressing how they harm incarcerated people and their families.
The nearly two million people behind bars (and their loved ones on the outside) are unfairly exploited by corporations and governments every day. Addressing these junk fees will not end this exploitation entirely, but it will be a significant and meaningful step toward economic justice.
Earlier this month, President Biden signed the Martha Wright-Reed Just and Reasonable Communications Act of 2022, a bill that we and other advocates for prison phone justice have been supporting for years. Below, we explain what the new law accomplishes and what comes next. While the fight for phone justice is far from over, the bill empowers the Federal Communications Commission to take major steps to bring down communication costs for incarcerated people and their families — and the FCC has indicated that it plans to do so soon.
What does the new law do?
The Martha Wright-Reed Act accomplishes two main things: It clarifies the FCC’s authority to regulate in-state calls placed from correctional facilities, as well as clarifying the agency’s authority to regulate video calls.
For context: The FCC has successfully imposed caps on rates for out-of-state calls from prisons and jails, but not in-state calls. After the agency created regulations in 2015 that lowered the cost of both in-state and out-of-state calls, telecom corporations sued the regulator, and a federal court ultimately ruled that the FCC exceeded its legal authority in capping in-state calls. Since then, the FCC has made no attempt to cap in-state phone rates.
Most incarcerated people today who call loved ones in the same state are likely charged rates similar to out-of-state rates (or just charged the out-of-state rate), as we explain in our recent report State of Phone Justice 2022. But some are charged much higher rates. The Martha Wright-Reed Act will allow the FCC to bring relief to this minority of people still paying higher in-state rates, and protect all people in jail and their families from future attempts by the telecom industry to block regulation.
The Act also clarifies the FCC’s jurisdiction over video calling costs. We and others have long argued to the FCC — over a flood of misinformation from prison telecom companies — that the agency has the authority to regulate the exorbitant cost of video calls behind bars. But the agency has not taken action so far.
Video calls are especially important to regulate, because the companies rapidly pivoted to this technology when the FCC began to restrict what could be charged for phone calls. As a result, video calling rates are much higher than phone rates today. In a four-state survey for State of Phone Justice 2022, we found that families of people in prisons and jails are paying as much as $8 to make a 20-minute video call, for a much lower-quality version of the technology that most people today are able to use for free. Even worse, jails and companies often use video technology as a pretext for eliminating or curtailing in-person family visits, as we exposed in our 2015 report Screening Out Family Time. The new law empowers the FCC to cap the amount that companies can charge for video calls, which will make these harmful contracts less attractive to jails.
When will the law be implemented, and how?
While we don’t know exactly when the FCC will take action to implement the Martha Wright-Reed Act, the law requires the FCC to promulgate regulations “not earlier than 18 months and not later than 24 months after the date of enactment of this Act” — in other words, sometime in the latter half of 2024. In a press release, FCC Chairwoman Jessica Rosenworcel committed to “expeditiously move new rules forward” in light of the bill’s passage.
The FCC already has all the data it needs to begin setting “just and reasonable rates” as soon as the law allows. In 2021, the agency collected rate data from every phone company serving prisons and jails. That data is still current enough for the FCC to use it to set new rate caps that apply to in-state as well as out-of-state calls. (We offer a few more recommendations to the FCC in State of Phone Justice 2022.) Additionally, while data about video calling rates is spotty and hard to come by, there is still plenty of information already in the record that the FCC can use to put initial price caps in place. In fact, there is precedent for doing so: When the agency took steps to rein in the cost of phone calls in 2015, it relied on similarly incomplete data to set initial rates and then revised those rates as it gathered more information. The agency should replicate that successful process now to provide the quickest relief possible to incarcerated people and their families. As the agency gathers more data, it can and should take more fine-tuned action to rein in exorbitant video calling rates.
Is the fight for phone justice over?
In a word: No. The cost of phone and video calls in almost all jails and many state prisons is still way too high, and even when the FCC implements the new law, there is no guarantee that the agency will set caps as low as it should.
One piece of important good news: The phone rate caps that the FCC has set so far (and will set going forward) don’t preempt states that want to pass laws setting even tighter caps. Illinois, for example, capped phone rates from prisons at 7¢ per minute for prisons, and New Jersey capped rates from prisons and jails at 11¢ per minute.
Rather than wait on FCC action, state legislatures should act now to bring down phone and video calling rates to a few cents a minute, or follow the example of California and Connecticut by just making calls free.
In the meantime, even as voice and video calling regulations become stronger, the corporations that dominate the industry are expanding telecom exploitation. Companies are working hard to evade regulation by growing the number of “services” they offer to prisons and jails. People desperate to stay in touch with their incarcerated parents, kids, and other loved ones as much as possible are being squeezed by companies for electronic messaging as well as phone calls and video, and stricter policies around mail and in-person visits are pushing them towards these more convenient, but also more expensive, options. State legislators and regulators should act to make sure that telecom companies are not able to simply replace one exploitative service with another.
The Martha Wright-Reed Act is an important step forward in the fight for prison and jail phone justice, but it doesn’t guarantee effective action at the FCC; nor does it spell the end of this movement. Prisons and jails are still charging exorbitant rates for phone calls, while implementing many other “services” that fleece poor families desperate to stay in touch.
The FCC must act swiftly and set bold caps on both phone and video calls, to ensure that families never again pay hundreds of dollars a month to stay connected to a single loved one. State and municipal governments, meanwhile, should not rest on their laurels. If anything, policymakers, regulators and legislators should recommit themselves to the fight against these exploitative companies. After all, at a time when the price of a phone call outside the walls of a prison or jail is approaching zero, you can’t help but ask yourself, “why are incarcerated people and their families being charged for calls at all?”
Medicare expands enrollment periods for people released from prison after January 1, 2023, but offers no relief for people who have been paying premiums for zero Medicare benefits while incarcerated, nor for those released before 2023 who signed up late and are stuck paying jacked-up premiums for the rest of their life.
As the prison population in the United States gets older, more and more incarcerated people have faced an expensive and unenviable choice when it comes to Medicare: pay for coverage you couldn’t use or afford, or pay increasingly higher premiums for the rest of your life once you were released. People incarcerated when they initially become eligible for Medicare — the national health insurance program for people 65 and older and some younger people with certain disability statuses1 — were expected to enroll and pay monthly premiums without access to any Medicare benefits or coverage. This rule has changed, but formerly incarcerated people released from prison prior to 2023 are left out of this reform and are expected to keep paying penalty fees for not signing up for Part B before release.
While the change marks an important shift in Medicare policy, it does nothing to alleviate the financial stress placed on formerly incarcerated people who are already being charged higher premiums. As one woman whose husband has been struggling with the implications of this unfair policy for years recently told us:
“My husband turned 65 while incarcerated with a long sentence. He signed up as required for Medicare Part A but when he signed up as required for Medicare Part B, he learned he was going to be charged a premium of $135 per month, even while incarcerated and earning just $20 per month. He disenrolled from Part B due to lack of funds. When he was released years later and tried to re-enroll in Part B, he was charged a penaltythat would raise his premiums for the rest of his life – by about $50 per month –because he did not enroll at age 65. The penalty is waived for people who were covered by another group health insurance plan, but apparently, prison medical services don’t count.”
This past November, the Centers for Medicare and Medicaid (CMS) fixed this policy problem — effective January 1, 2023 — to create a Special Enrollment Period for recently released, formerly incarcerated people. The creation of a Special Enrollment Period allows formerly incarcerated people to enroll in Medicare in the 12 months following their release without facing any financial penalties for late enrollment. This is undoubtedly a good change, but it is not retroactive: as written, this policy only applies to people released from prison after January 1, 2023.
Because the letter writer’s husband was released a few years prior to this policy change, he will likely be stuck paying surcharged monthly premiums for his Medicare Part B coverage for the rest of his life. He is one of thousands of individuals released over the years who have found themselves, without warning, charged Medicare premium penalties in perpetuity because they didn’t sign up for a benefit they could neither use nor afford while incarcerated. For advocates and policymakers looking for an impactful way to reduce the collateral consequences of conviction and incarceration, particularly those that impact vulnerable populations like the elderly and disabled, this briefing provides the details you need to know to take action.
For currently incarcerated people and their loved ones: What you need to know
The following information outlines what we know about Medicare enrollment for people released from incarceration after January 1, 2023.
First, you no longer need to enroll in Medicare Part B from prison, even if you first become eligible while incarcerated. Instead, you will have a Special Enrollment Period that starts the day of release and lasts for 12 months, during which you will need to enroll in Part B to avoid a late enrollment penalty. Generally, Medicare coverage will start the first day of the month following enrollment. You will not be assessed a late enrollment penalty when you sign up during the Special Enrollment Period.
Second, if you are currently enrolled in Medicare Part B, you can contact Medicare to disenroll from Part B coverage, since you can’t use it while incarcerated anyway. When you are released, you should re-enroll during the Special Enrollment Period.
Third, if you enroll in the first six months of the Special Enrollment Period (i.e., within six months of release), your coverage can be retroactive to the date of release. And if you enroll in the last six months of the Special Enrollment Period, it can be retroactive to six months after your release.
Finally, and unfortunately, there is currently no way to request repayment for premiums or penalties that you’ve already paid.
Medicare policies prior to the rule change
Medicare Part A is health insurance that covers hospitalizations and usually has no monthly premiums. Medicare Part B covers non-hospital medical care and requires beneficiaries to pay a monthly premium. The lowest monthly premium changes annually: in 2022, the lowest Part B premium was $170.10 per month and in 2023, the lowest Part B premium will be $164.90 per month. For most Medicare beneficiaries, the Part B premium is paid out of their Social Security payments.
Incarcerated people have historically been expected to enroll in Medicare Part A and Part B when they become eligible, usually when they turn 65 years old. This means that incarcerated people over 65 were expected to cover their monthly Part B premiums even though Medicare does not provide coverage for any healthcare services provided in prison2 and Social Security payments are suspended for the duration of their imprisonment. How and why the federal government expected incarcerated people to pay for Medicare that provides no benefits in prison — while withholding the usual means of paying for it (Social Security) — defied all logic. The penalties charged in perpetuity to people who enrolled late because of these policies are a further irrational injustice.
Additional penalties for the incarcerated and formerly incarcerated prior to the rule change
Most people in prison can not afford to pay the monthly premiums for Part B coverage while incarcerated. In the case of our letter writer, her husband was expected to pay $130 per month for Medicare Part B despite his only income being the $20 per month he made working in prison. This was likely the case for most incarcerated people. In our 2017 survey of prison wages, we found that the average wages for an incarcerated person ranges from $0.14 to $1.41 per hour, leaving people in prison with no way to make enough money to pay monthly Medicare premiums.
When people eligible for Medicare are returning to their communities, medical care needs to be accessible and affordable, but if they haven’t been able to afford monthly premiums during their incarceration, the monthly premiums after their release — and for the rest of their lives — will be even higher. This is no way to set already-vulnerable people up for success during reentry.
New Medicare rules for formerly incarcerated people
For people released from prison after January 1, 2023, there are new Medicare enrollment rules that create a 12-month Special Enrollment Period during which recently released people can enroll in Medicare Part A and Part B without any financial penalties for late enrollment (known as “late enrollment penalties” or “LEPs”) due to incarceration. While we applaud this policy change, we are left wondering about the tens of thousands of people released from prison before January 1, 2023. The Centers for Medicare and Medicaid Services (CMS) said that it “does not have the authority” to waive LEPs paid in the past or currently being paid by formerly incarcerated people, because “LEPs are governed by statute.”5
It is unreasonable to expect incarcerated people to be able to pay premiums while incarcerated or to afford surcharged monthly payments after their release, and the regulation changes reflect some understanding of this fact. The next step needed is to apply this same understanding to all formerly incarcerated people, not just those released after 2022. Members of Congress and advocates, take note!
Reforms should cover all people released from prison
The failure to apply these changes to people released from prison before January 1, 2023 inflicts real and lasting financial burdens — and healthrisks — on them and their families. The man whose wife wrote to us was expected to pay at least6 $1,600 a year in Medicare Part B premiums while earning just $240 per year — for benefits he could not even access while he was incarcerated. The alternative — not enrolling until release, and then paying a permanent late enrollment penalty — is no better. If he had been released in January 2022 at age 70 and immediately re-enrolled after disenrolling from Part B at 65, he would have been expected to pay at least7 $2,970 in premiums (including a penalty of a 50% surcharge each month) every year for the rest of his life. Meanwhile, a low-income person who was never incarcerated during their Medicare-eligible years and never disenrolled from Part B would be paying less than $1,980 per year for the same level of coverage. Formerly incarcerated people who were released prior to 2023 should not be forced to pay significantly higher monthly premiums simply because of their release date: this is not only unfair, but counterproductive when it comes to supporting low-income older adults and their reentry success. Congress should take immediate action to make these common-sense changes retroactive.
Medicare is for people 65 years and older, but people with a disability, end-stage renal disease, or ALS may be eligible for Medicare coverage before they are 65 years old. ↩
Medicare Part A may cover community hospitalizations over 24 hours, but not any other medical care provided while in prison. According to the Centers for Medicare and Medicaid Services (CMS), Medicare “generally won’t pay for medical items and services provided to a patient who [is] incarcerated or in custody at the time items and services are provided.” CMS cites regulations stating that Medicare will not cover the following:
Services provided to a patient who has no legal obligation to pay for the service and no other person or organization has a legal obligation to provide or pay for the service (42 C.F.R. § 411.4);
Services provided by a federal service provider or other federal agency (42 C.F.R. § 411.6); or,
This is the 2022 Part B premium, but the premiums change annually, so this is an estimate. ↩
CMS stated, “This suggestion is outside the scope of this rulemaking, and CMS does not have the authority to unilaterally waive LEPs that were paid in the past or are currently part of an individual’s Medicare premium(s) as the LEPs are governed by statute.” CMS went on to state that, while they have the authority to establish a Special Enrollment Period and to provide that those who enroll during this period are not subject to LEPs, those who are being charged LEPs because they registered before the Special Enrollment Period existed (that is, before January 1, 2023) are required to pay LEPs under federal law. CMS does not have the “authority to unilaterally waive” these financial penalties. ↩