Yesterday, Prison Policy Initiative’s Advocacy Director, Sarah Staudt, testified in the House Judiciary Committee in the Colorado Legislature to support a bill that would guarantee visitation rights to people in Colorado prisons.
HB25-1013, sponsored by Representatives Regina English and Jennifer Bacon, would make visitation a right, not a privilege, for people in Colorado prisons. While the Department of Corrections would maintain the ability to restrict visitation for safety reasons, visitation would no longer be able to be taken away for disciplinary reasons, like as punishment for refusing work within the prison.
At the request of Together Colorado, we provided testimony about the wealth of research that shows that visitation is vital for helping incarcerated people maintain their mental health, reintegrate into society, and avoid returning to the criminal legal system.
Visitation has numerous benefits for incarcerated people, including decreasing recidivism; people who experience visitation were 25% less likely to be rearrested within two years of release from prison. Visitation also improves the likelihood of employment after release. Incarcerated people who had family visitation had odds of finding employment almost 2 times higher than those who were not visited by family. Lastly, visitation helps incarcerated people cope with the inherent stressors of incarceration, decreasing mental health issues.
Visitation is also a key tool in decreasing the harm that incarceration causes to children and families beyond prison walls. Nationwide, half of people in prison are parents to minor children, including 80% of all incarcerated women. Incarceration of a parent is a stressor for children that affects overall wellbeing, family dynamics, poor school performance, and a heightened risk of eventual involvement in the criminal legal system. Visitation with family has been shown to lessen these negative outcomes.
Prison Policy Initiative is proud to support HB25-1013, and hopes that it can serve as a model for legislatures around the country to improve access to visitation for incarcerated people.
A little-known 1988 law called the Thurmond Amendment stripped people with drug distribution convictions of federal protections under the Fair Housing Act, making it even more difficult for many people with criminal records to secure housing - even when they are qualified in every other way, and even when the conviction is decades old. By our count, this law makes it more difficult for as many as 3 million people with these kinds of convictions to secure housing.
You’ve probably never heard of the Thurmond Amendment, but for almost 40 years, it has been quietly enabling landlords to deny housing to people based solely on a past conviction for selling drugs — no matter how qualified they are as tenants, no matter what drugs or quantities were involved, and no matter how long ago they were convicted. This lifelong collateral consequence, tied to this one specific type of conviction, makes it even more difficult for people with criminal records to find housing at a time when it’s already a near-impossible task given the highly competitive rental markets in the U.S. As we and many other researchers haveexplainedbefore, safe and stable housing is a critical factor in reentry success, while homelessness puts people directly in the crosshairs of law enforcement. These facts put the Thurmond Amendment directly at odds with correctional and public safety interests.
A coalition of advocates is working to repeal the law, led by a real estate investor who was directly impacted by the Thurmond Amendment. Their first step: gathering the available data about its impact and raising awareness of this overlooked relic of the failed “war on drugs.” That’s where we at the Prison Policy Initiative come in. One form of support we offer advocates — particularly through our Policy & Advocacy team — is to bring to light the relevant data that exists about an issue, and to find ways to fill in the gaps where the necessary information simply isn’t available. When the coalition came to us with the question of how many people are potentially impacted by the Thurmond Amendment, we combed through the available historical data to come up with an estimate, ultimately finding that over 3 million people in the U.S. have received drug distribution convictions since 1986 (which is as far back as the available data go).
How we developed our estimate
Our approach, sources, and assumptions
You might think it would be easy to answer the question, “How many people in the U.S. have a drug distribution conviction and could therefore be excluded from Fair Housing Act protections?” but the unfortunate fact is that criminal legal system data are rarely collected or reported in ways that provide simple answers to simple questions. In this case, we were lucky to find that the annual number of felony convictions in state courts for “drug trafficking” (manufacturing or distribution) was published every other year from 1986 to 2006; for federal court convictions, this number was published every year from 1990 to 2014. We found no data for years prior to 1986, and had to use less-relevant but related data to produce estimates for the missing years. Then, to avoid double-counting people who had more than one such conviction (because they would be excluded under the Thurmond Amendment for their first conviction), we had to estimate how many of these convictions were “firsts” for people as opposed to subsequent convictions of the same individuals. Inevitably, because of the gaps in the available data, our estimates are conservative and inexact, but we believe they are the only ones produced to date. This is how we did it.
For felony convictions in state courts:
In even-numbered years from 1986 to 2006, the National Judicial Reporting Program reported estimated numbers of felony convictions based on a nationally representative sample of counties. These were published in a Bureau of Justice Statistics report series, Felony Sentences in State Courts.
For odd-numbered years from 1987 to 2005, we used the reported even-numbered year estimates to calculate the least squares regression line and interpolated values for the missing years along that line.
For the years 2007-2023, we calculated estimates based on (a) annual arrests of adults for drug trafficking and (b) the most recent known ratio of felony convictions for drug sale or manufacturing to arrests for drug trafficking, which was 62 per 100 arrests in 2009. However, the number of annual arrests specifically for drug trafficking are not reported; instead, the FBI reports the number of all drug arrests — combining both sale/manufacturing and possession — and the percentage of drug arrests that were for sale or manufacturing versus possession. Once we had estimates of how many people aged 18 years and older were arrested for drug-related offenses each year, we multiplied those estimates by the annual percentages attributed to sale/manufacturing to produce estimates of adult arrests specifically for drug distribution or manufacturing. 5
We wanted to exclude people under the age of 18 from our estimates because minors are typically (though not always) referred to juvenile courts, where they would not receive a felony conviction that would exclude them from fair housing protections. But this, too, required a few steps. Because not every jurisdiction reports its arrest data to the FBI every year, the FBI reports arrest data by most serious charge in two ways: the reported numberof arrests and the estimated number of arrests. The estimated number adjusts for jurisdictions that did not report their data, providing the FBI’s best estimate of how many arrests were made nationwide in a given year. Unfortunately, these estimates can’t be broken down in as much detail as the reported numbers are, by characteristics such as age or sex. However, relying only on the reported numbers would lead to a serious undercount of arrests: for almost every year from 2007 to 2023, for example, the reported total was roughly 20% to 30% lower than the estimated total for drug arrests. For this reason, we calculated our own estimate of adult drug arrests based on the percentage of reported drug arrests that involved adults for each year, multiplying the FBI’s estimated total drug arrests by the adult percentage, which was between 89% and 96% for all years.
Once we had annual estimates of adult arrests for drug sale or manufacturing for each year, we multiplied those estimates by 62% (the most recently reported ratio of drug sale/manufacturing arrests that result in felony convictions) to estimate how many arrests led to felony convictions.6
Finally, to avoid double-counting people with multiple felony convictions for drug sale/manufacturing, we relied on the most recently reported percentage of people whose most serious arrest charge was drug trafficking who had no prior felony conviction, which was 51% (again, from 2009). We multiplied each of the annual estimates of felony convictions for drug sale/manufacturing by 51%, resulting in a conservative final estimate, since those previous felony convictions could be for any offense type, not necessarily for drug sale/manufacturing (the only felony convictions that would be disqualifying under the Thurmond Amendment). Our final estimate of first-time convictions for drug sale/manufacturing through state systems for 1986-2023 was approximately 3,023,773.
To varying degrees, these state-level estimates all rely on data from the National Judicial Reporting Program and/or State Court Processing Statistics Program, which in turn are based on data from a sample of the nation’s 75 largest counties. Crime and law enforcement patterns vary by urbanicity (that is, places that are more rural or suburban have different policing patterns than more urban jurisdictions), so our estimates are not as accurate as they would be if we had access to data from a broader range of counties. Unfortunately, that level of data collection has never existed at the national level, to our knowledge.
For felony convictions in federal courts:
For the years 1990-2014, the U.S. Sentencing Commission (USSC) published the number of felony convictions for drug “trafficking” (sale/manufacturing) in its Annual Reports and Sourcebooks. For the years 2015-2023, the USSC publishes the same data on its Dashboard.
For the years 2016-2023, the USSC Dashboard also reports the annual number of people sentenced for drug trafficking who had a prior conviction for drug trafficking, which we used to adjust for the double-counting of people who received more than one such conviction. We removed the reported annual number of people with prior drug trafficking convictions from the reported annual number of trafficking convictions for those years. For the previous years for which we could not find similar estimates (1990-2015), we removed 30.3% of the reported annual convictions — the average share of people with prior trafficking convictions reported for the years 2016-2023.7
Finally, we summed our annual estimates of first-time felony drug trafficking (sale/manufacturing) convictions for all years, giving us a total of approximately 483,643 people convicted through the federal system.
Our final national estimate is the sum of our state court and federal court estimates: 3,507,417 U.S. adults with felony convictions for drug distribution or manufacturing. This is likely a significant underestimate of the actual number of people denied legal protection for housing discrimination based on their conviction under the Thurmond Amendment, because at every decision point that would impact our final estimate, we erred on the conservative side.8
Understanding the Fair Housing Act and the Thurmond Amendment
The Fair Housing Act of 1968, a key piece of civil rights legislation, declared discrimination by housing providers on the basis of race, religion, sex, national origin, familial status, or disability illegal. The 1988 Fair Housing Amendments Act strengthened the Department of Housing and Urban Development’s (HUD’s) power to enforce the Act, creating a new avenue of legal recourse for tenants and homebuyers who experience discrimination when applying to rent an apartment, buy a home, or take out a mortgage.
Enacted at the height of the racist “war on drugs,” however, the 1988 law includes an amendment named for its sponsor, the notorious segregationist Strom Thurmond, which explicitly denies fair housing protections to people who have been convicted of drug manufacturing or distribution. While this amendment may seem like an odd thing to tack onto civil rights legislation that does not explicitly protect people from discrimination based on criminal history, it creates a carveout that allows landlords to deny housing to this specific population. Because drug distribution convictions — and criminal records more broadly — disproportionately impact Black and Brown people, discrimination against all individuals with criminal records is effectively a form of racial discrimination.1 On this basis, when housing providers discriminate against people with criminal records, individuals can make “discriminatory effect” claims under the Fair Housing Act. However, when landlords discriminate against people with drug distribution convictions specifically, the Thurmond Amendment makes these claims impossible. No other category of criminal conviction is excluded in the same way.
Importantly, repealing the Thurmond Amendment would do nothing to diminish the autonomy of landlords and other housing providers. The Fair Housing Act doesn’t require anyone to provide housing to people with drug distribution convictions, or any other kind of conviction for that matter. It just encourages them to consider applications more fully instead of automatically disqualifying people on the basis of a criminal record alone.
We know better now: Lessons learned about drugs, crime, and housing
The Thurmond Amendment was an expression of “tough on crime” 1980s politics, which were rationalized by false beliefs about drugs, crime, and punishment. For instance, in a recent op-ed, Yusef Dahl, who has been leading the effort to repeal the Amendment, points to the misconception that people who sell drugs are different from people who use drugs, which was central to how Thurmond sold the amendment to the rest of Congress: “drug dealers,” he argued, don’t deserve federal protection. In reality, these are often the same people: the most recent national data show that 78% of people in state prisons whose most serious offense was drug-related 2 reported using any drug in the month before their arrest. More than half (55%) were using at the time of the offense itself. 3 Among people sentenced to local jails for drug-related offenses (i.e., those serving shorter sentences than people in prison), the most recent data show 74% met the criteria for a substance use disorder. While it may be rhetorically convenient for politicians to vilify people who sell drugs, doing so necessarily casts a wide net around drug users who are often coping with poverty and illness.
Second, the Thurmond Amendment’s complete exclusion of people convicted of drug distribution, no matter how long ago, implies a belief that people don’t change.4 Decades of criminological research on desistance (the individual process of shifting away from lawbreaking behavior) prove otherwise. In fact, among the recommendations of experts Shawn Bushway and Christopher Uggen, authors of the chapter linked above, are “eliminat[ing] most collateral consequences of criminal justice involvement,” such as barriers to housing. Putting a finer point on it, they write: “Policies that continue to center a criminal act years after that act was committed directly contradict everything we know about desistance.”
Ultimately, this is the problem with the Thurmond Amendment: while it was added ostensibly so landlords could “protect other tenants,” it actually works directly against public safety interests. Securing safe, stable housing is one of the greatest challenges for people during reentry, and it makes a difference in reentry success, as previous research has shown. Creating additional barriers to housing for people with criminal records is simply bad policy.
This is known as the “discriminatory effects rule,” which the Department of Housing and Urban Development (HUD) explains in this helpful Fact Sheet: “The Fair Housing Act bars more than intentionally discriminatory conduct — it also bars policies that have an unjustified discriminatory effect based on race, national origin, disability, or other protected class. As an example, a landlord’s policy of excluding people who have any criminal record… often will have a discriminatory effect based on race, national origin, and disability.” While these policies are not always unlawful, as HUD points out, “a policy that ha[s] a discriminatory effect on a protected class [is] unlawful if it [is] not necessary to achieve a substantial, legitimate, nondiscriminatory interest or if a less discriminatory alternative could also serve that interest.” ↩
Most of these people (72%) were in prison for drug trafficking (manufacturing or distribution) as opposed to possession (25%) or other drug offenses (3%). See Table 3 in the Bureau of Justice Statistics report Profile of Prison Inmates, 2016. ↩
These percentages were also high, if less dramatically so, among people in federal prisons whose most serious offense was drug-related: 61% reported using any drug in the month before the arrest that led to their incarceration, and 38% reported using at the time of the offense. See tables 4 and 5 in the Bureau of Justice Statistics report Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016. ↩
On this point it is worth noting that before Sen. Thurmond introduced his amendment, the bill already included language allowing discrimination against people “convicted two or more times … of illegal manufacture or distribution of a controlled substance” (emphasis added). In his rationale for that amendment, Rep. Bob Walker noted that, on the question of whether people who used drugs would be protected under the law, an earlier committee report had made clear that the intent was that “somebody who has cleaned up their act” would not be excluded from protections but that “we are not going to allow current users to have the protection.” Walker saw his amendment (excluding “dealers” with two or more convictions) as an extension of that logic, suggesting that he and other members of Congress — unlike Thurmond — recognized that people change and that they should not be treated differently under the law if they were not “currently engaged” in drug distribution (emphasis added). ↩
For the years 2007-2023, for which our state court estimates are based on arrests for drug sale/manufacturing and the proportion of those arrests that result in felony convictions, we did not attempt to disentangle arrests that might have resulted in federal court convictions. However, we believe that this likely results in an undercount of felony convictions rather than double-counting, because arrests by the Drug Enforcement Agency (DEA) — the federal agency that makes the most drug arrests — are not reported to the FBI’s Uniform Crime Reporting program (our source for arrest data). And because most DEA arrests result in federal rather than state prosecution, the resulting convictions are captured in the federal United States Sentencing Commission conviction data. ↩
This ratio has varied over the years; in 2004, 71 per 100 arrests for drug sale/manufacturing resulted in felony convictions, and in 1986 it was 41 per 100 arrests. ↩
The percentage of people convicted of drug “trafficking” who had prior convictions for the same offense increased fairly steadily over the years it was reported, from 27.3% in 2016 to 33.3% in 2023. Because of this linear trend, we considered using estimates based on the least squares regression line for those years, but ultimately decided that those estimates were likely to underestimate the number of people with prior convictions (for example, this method would predict just 5% of people convicted in 1990 had a prior conviction for the same offense). Instead, we opted to use the larger proportion which produced a more conservative final estimate of unique convictions for drug sale/manufacturing. ↩
For example, we excluded about half of all estimated state court convictions under the assumption that they could all be subsequent convictions for the same offense, even though the data we used to rationalize their exclusion was based on how many people arrested for drug sale/manufacturing had any prior felony conviction, not specifically drug distribution or manufacturing convictions. Given the relatively small proportion of drug sale/manufacturing convictions out of all state felony convictions reported from 1986 to 2009 (an average of 19%), and the fact that more people released from prison sentences for drug offenses are rearrested for non-drug charges than for drug charges, this choice almost certainly excluded many people who did not have a prior conviction for drug sale/manufacturing. ↩
A recent study from a researcher at University of Pennsylvania finds that higher jail rates are associated with higher death rates, especially for Black people and women.
The health, social, and economic harms of incarceration extend far beyond the people behind bars to their children, families, and entire communities, as a large body of research has shown. New research from Anneliese Luck at the University of Pennsylvania adds to this evidence, finding strong links between higher county jail incarceration rates and higher county mortality (death) rates. While researchers have alreadyestablished the clear connections between jail incarceration, community health, and deaths, Luck’s analysis in The Distribution of Carceral Harm: County-level jail incarceration and mortality by race, sex, and age reveals how these connections vary across age, sex, and race. Generally, Luck finds that higher jail rates are associated with higher death rates for Black people and for women than for white people and men — with the notable exception of older Black men, for whom the “mortality penalty” of higher jail rates is most dramatic.
Luck’s analysis of racial differences is a particularly important contribution, given that the burden of incarceration falls disproportionately on Black communities. While Black people make up less than 14% of the U.S. population, they account for 42% of people who are incarcerated; unsurprisingly, Black people are also overrepresented among people with an incarcerated family member. Ultimately, Luck’s breakdown of the relationship between higher jail rates and elevated death rates by demographic characteristics gives us a clearer picture of the carceral system’s disproportionate impacts on the health and well-being of some of the most vulnerable populations.
Methodology
It may be useful to define some of the terms used in Luck’s study and in this briefing discussing her findings. The main variables of interest are:
County-level jail incarceration rates (more simply, “jail rates”): This is the number of people held in a local jail relative to the number of people in the jail’s jurisdiction, which is usually a county (jails are usually run by counties or municipalities). Incarceration rates are typically expressed “per 100,000 residents,” but they can also be calculated for specific groups within the larger population — for instance, Luck uses the number of Black people in a county jail relative to the number of Black people in the county to express the county-level Black jail rate. A higher jail rate indicates that the county incarcerated a larger portion of its population.
County-level mortality rates (or “death rates”): This is the number of people in the county who die within a certain time period (in this case, five years), relative to the total number of people in the county. This rate is also expressed “per 100,000 residents” or per 100,000 people who share a certain characteristic, such as race, sex, or age group. A higher mortality rate indicates that a greater portion of its residents died over a certain period of time.
Race, age group, and sex: The data used in Luck’s study include two racial categories (non-Hispanic Black and non-Hispanic white), five age groups (19 and younger, 20-34, 35-49, 50-64, and 65+), and two sexes (male and female).
As an additional note on the language used in this briefing, we (like Luck) also use the term “mortality penalty” as a kind of shorthand to describe the increase in death rates associated with increases in jail incarceration rates. While the word “penalty” often implies a causal relationship, it’s important to note that the findings we discuss describe correlations between county jail rates and county death rates, not direct causes and effects.
For data sources, Luck used the race-specific1 jail incarceration rates from the Vera Institute of Justice’s Incarceration Trends database2 for over 1,000 counties across the country.3 She calculated the county-level death rates by combining restricted vital statistics death data from the National Center for Health Statistics with publicly available population estimates from the U.S. Census Bureau by age, sex, race, ethnicity, county, and year; this gave her age-specific death rates by county and year for four groups: Black men, Black women, white men, and white women. She then pooled (merged) the county death rates for 2010-2014 and 2015-2019, which she analyzed in comparison to the 2009 and 2014 jail incarceration rates, respectively.4
In this study, the average jail incarceration rate for Black people across all counties in the sample (1,060 per 100,000 Black residents) is more than four times that of white people (260 per 100,000 white residents) in 2014.5 This is a reflection of the well-documented racial disparities in U.S. incarceration. There is also a much wider range of county jail incarceration rates for Black people than for white people: one standard deviation6 in the race-specific jail rate is 1,500 per 100,000 Black people, but just 400 per 100,000 white people.7 Because of these differences, the findings of this study are expressed differently for Black and white populations.
Luck analyzed the data using two models that each included different variables; both showed strong, statistically significant links between county-level, race-specific jail rates and death rates across both sexes and races, and across almost all age groups. The first model simply looked at the relationship between the county-level, race-specific jail rates and the county-level death rates of the various demographic groups. In the second model, Luck controlled for a number of county-level characteristics like poverty rate, violent crime rate, percent with a college education, urbanicity, and race, age, and sex distributions. This more sophisticated model accounts for factors besides jail rates that could explain the differences in death rates, to try to isolate the relationship between jail rates and death rates as much as possible. In this briefing, we focus on the results of this second model.
Limitations of the study: Some contextual notes on the findings
Like every study, this study has some limitations. Luck relies on existing data gathered for different purposes, so there were some constraints on how she could use the data to assess the relationship between jail incarceration, deaths, and demographics. She explains various data limitations in her publications, but we thought these two were worth noting here:
The sample was limited to counties with large enough Black and white populations to allow for valid comparisons between racial groups. So while the sample represents the majority of the nation’s Black and white residents, it reflects a somewhat more racially diverse and less rural subset of counties than we would see if every single county was included. In order to include as many less-populous and rural counties as possible (375 in the final sample), Luck pooled the mortality data into two five-year periods (instead of looking at just a few deaths in a county in one year, she used the larger number of deaths over a five-year period).
Previous research indicates that the association between jail incarceration rates and community death rates weakens over time: the link is strongest when you compare jail rates to mortality rates a year later, and weaker when you compare them to mortality rates five or ten years later. Because Luck uses mortality data pooled across a five-year period, her analysis likely underestimates the associations she finds in this study.
To be clear, these limitations do not diminish this study’s contribution to a robust body of evidence of the harms of incarceration on entire communities; they simply provide additional context.
Race-specific measures reveal more about the link between incarceration and death rates
By incorporating race-specific measures into the analysis, Luck’s new study is able to show how different demographic groups in the same communities fare under aggressive jailing. Importantly, it also demonstrates that using “race-neutral” measures, as mostpreviousstudiesdo, actually underestimates the scale of the “mortality penalty” — that is, the increase in death rates associated with increases in jail rates. To show this, Luck ran her analysis again using total population rates (i.e., not differentiated by race), and found increases in total jail rates were associated with death rate increases of 0.3 to 1% across the various demographic groups she studied. While this is a statistically significant difference, using race-specific measures yielded a much greater difference in death rates (1.4% to 1.9%). As a result, the new study’s use of race-specific data provides a more nuanced look at the people facing the most serious harms associated with jail incarceration.
Higher jail rates are associated with greater increases in death rates for women than men
The new study finds that both Black and white women’s death rates in almost every age group increase more dramatically with higher jail rates than men’s do. An increase of one standard deviation in the white jail rate (400 per 100,000) corresponds to an increase in the death rate by 1.4% for white men and 1.9% for white women of all ages. An increase of one standard deviation in the Black jail rate (1,500 per 100,000) corresponds to an increase in the death rate by 1.8% for Black men and 1.7% for Black women of all ages — but this is driven by a single age group of Black men (65+) for whom the increase in mortality is more than twice that of Black women (65+), as we explain below. For all other age groups, the “mortality penalty” is higher for Black women than Black men. Because men are incarcerated at rates far higher than women,9 the impact of the carceral system on women’s lives is often overlooked, but this research underscores the need to study how mass incarceration endangers women’s lives inside and outside of jails and prisons, too.
The one exception: The “mortality penalty” is greatest for Black men 65 and older
The larger increases in women’s death rates that we see with higher jail rates are consistent across all age groups and both races — except among Black people 65 or older. Across counties with higher Black jail rates, the death rates of Black women under 65 were 1% to 3.4% higher (depending on the age group) than in the counties with lower Black jail rates; these are greater differences than observed among Black men under 65 in the same counties. However, for people 65 years or older, this trend was reversed: higher Black jail rates were associated with a 2.1% increase in death rates for Black men over 65, but a smaller 1% increase in death rates for Black women over 65.10 The author explains the implications of this finding:
“The disproportionate toll absorbed by older Black populations—particularly men, and largely driven by coupling of the increasing penalties of jail incarceration with already high levels of mortality—calls attention to the ways racial inequalities in incarceration may exacerbate other forms of socioeconomic, political, social, and health disadvantage that have been historically shouldered by Black individuals in the United States.”
Because Luck’s research is among the first to examine the relationship between jail incarceration and mortality by race, sex, and age, these findings offer new and damning evidence for what we already know: the burdens associated with incarceration are disproportionately carried by those who are already most vulnerable to other socioeconomic disadvantages.
Conclusion
This study contributes to the growing body of evidence that mass incarceration has fatal consequences that extend far beyond jail cells and prison walls. Luck’s use of race-specific jail rates to assess the ways in which jail incarceration affects white men and women differently from Black men and women calls attention to the racially disparate community consequences of incarceration.
Women and older Black men are particularly vulnerable to the “mortality penalty” associated with higher jail incarceration rates, suggesting that jails contribute to the “uneven geography of health and mortality” across the United States. In addition, this research underscores the role jails and short jail stays play in public health. While much research on the association between population-level health outcomes and incarceration has been focused on policing and prisons, these new findings emphasize the need for research to incorporate local jails into our understanding of how the carceral system hurts the health of individuals, families, and communities.
Footnotes
“Race-specific” rates are rates calculated for a specific racial group. The race-specific jail incarceration rate is the number of people in jail in a specific racial group relative to the total jurisdiction-wide population of that racial group. ↩
In its Incarceration Trends dataset, Vera presents jail incarceration rates for counties per every 100,000 residents aged 15-64. Because these jail incarceration rates exclude youth under 15 years and older adults, we can assume they represent at least a slight undercount of the total number of people incarcerated in jail. In 2022, the Bureau of Justice Statistics reported that there were 1,900 people under 18 years old in local jails, but we do not know how many of those youth were under 15 years old. Vera’s Incarceration Trends dataset has been used frequently in studies of mortality and incarceration, including Kajeepeta et al. (2021), Weidner & Schultz (2019), and Nosrati et al. (2021). ↩
Luck included counties with populations of at least 5,000 people in each race-sex category (Black-male, Black-female, white-male, white-female) in her analysis. Ultimately, the study included 1,103 counties, representing more than 95% of the total U.S. Black population and approximately 76% of the total U.S. white population. Luck explains that while this sample is not entirely nationally representative — for example, the sample reflects a slightly more racially diverse and slightly less rural subset of counties — there are only “marginal” differences between this sample and all counties in the U.S. in terms of mortality, jail incarceration, and the county covariates (county-level poverty rate, violent crime rate, college education, percent of population that is Black, percent of population that is male, percent of population that is aged 20-30, and urbanicity). ↩
Luck explains that she did this to ensure the temporal ordering of the relationship between jail incarceration rates and the subsequent five-year pooled death rates. Her use of the two time periods (2010-2014 and 2015-2019) offered more stability to her mortality estimates and allowed the inclusion of more counties. For more information on this process, please see the author’s explanation in her Data and Methods section. ↩
These rates are slightly different from the race-specific jail incarceration rates calculated by the Vera Institute of Justice, which were 944 per 100,000 for Black people and 266 per 100,000 for white people in quarter two of 2014. These rates differ because Luck indirectly estimated the mean (average) incarceration rates based on a weighted average of race-specific jail rates across counties, weighted by the total population. ↩
The standard deviation is a measure of how much variation there is in a certain measure (like county-level jail rates) within a sample population (like the counties included in a study). Where there is wider variation in the individual data points, the standard deviation is greater, and where there is less variation, the standard deviation is smaller. Standard deviations can be useful to distinguish between observed measures (like county jail rates) that are more typical (closer to the average for the population) versus those that are especially low or high compared to the others in the dataset. That is how Luck uses standard deviations in this study: when she uses “an increase of one standard deviation” to describe a difference in jail rates, you might think of that as “in counties with jail rates well above average for the population” or “in counties with higher jail rates than most.” ↩
Luck expresses the standard deviations as changes in percentage points, which we reframed as change in incarceration rate: for example, an increase of 0.4 percentage points from an incarceration rate of 1,000 per 100,000 would be 1,400 per 100,000 people, and an increase of 1.5 percentage points from an incarceration rate of 1,000 per 100,000 would be 2,500 per 100,000 people. ↩
Because of the nature of the data and research included in this study, we cannot necessarily draw causal conclusions about the direct impact incarceration rates have on mortality rates. ↩
In 2022, men had a national jail incarceration rate of 345 per 100,000 male residents, while women had a jail rate of 55 per 100,000 female residents, according to Table 4 of the Bureau of Justice Statistics report Jail Inmates in 2022 — Statistical Tables. ↩
The systems meant to maintain order and safety in prisons are ripe for abuse by corrections staff, are frequently used to dole out extreme punishments, and play a key role in keeping people in prison longer, a new report shows. The Prison Policy Initiative’s report Bad Behavior: How prison disciplinary policies manufacture misconduct, released this morning, offers an overview of all 50 state prison systems’ disciplinary policies, and explains how the use of these policies as a tool for mass punishment works against prisons’ stated goal of rehabilitation.
Bad Behavior is the broadest review of disciplinary policies to date, and draws on original research as well as testimony from 47 currently incarcerated people, providing an essential look at how prisons are run in the age of mass incarceration. The report’s findings help explain why over 50% of people in state prisons in a typical year are punished at least once for misconduct:
It is nearly impossible to avoid disciplinary infractions behind bars: Prison rules cover a vast range of possible conduct, including vague conduct such as “disrespect” and redundant rules about rulebreaking, and the vast majority of disciplinary cases are for minor violations rather than interpersonal harm.
Incarcerated people have no meaningful way to defend themselves when accused of infractions: Accused people are typically not allowed to seek representation, and face significant obstacles to finding and presenting evidence (including witnesses) at disciplinary hearings, meaning that many people are severely punished based solely on the testimony of a corrections officer.
Discipline policies are exacerbating America’s mass incarceration crisis: People found guilty of disciplinary violations are frequently put in solitary confinement or have good-time credits revoked, both of which can effectively lengthen their prison sentences.
The report notes that misconduct records impact incarcerated people’s chances of earning early release in other ways as well, such as by preventing them from participating in educational or job training programs, and working against them in hearings before parole boards.
“Whether it’s being stripped of one’s ability to visit with family, getting expelled from programs, or being put in solitary, punishments for rulebreaking always come with a cost to rehabilitation and reentry,” said report author Brian Nam-Sonenstein. “State lawmakers should be paying close attention to how many minor infractions are punished in prisons, and the impact this has on people’s circumstances when they’re released.”
The report issues recommendations to departments of corrections for how to immediately make their disciplinary systems fairer and more constructive, including:
Reduce the number of misconduct rules, focusing first on rules that are redundant and that create opportunities for discrimination and abuse.
Limit the influence of misconduct records on early release decisions, recognizing that most infractions are minor and that rules are often enforced arbitrarily.
End solitary confinement and bans on family contact, and institute non-punitive responses to violations such as drug use behind bars — especially in facilities where treatment is practically nonexistent.
Improve fairness and accountability in disciplinary processes, starting with basic measures such as allowing people representation at hearings and the ability to gather and present evidence and witnesses.
“The disciplinary system behind bars is largely a mirror of the criminal legal system on the outside, with one crucial difference — departments of corrections can modify their systems at any time,” Nam-Sonenstein said. “Immediate action can — and should — be taken to stop people in prisons being thrown in solitary or having their release jeopardized because of a system that is so reactive to minor misbehavior, and often manufactures it out of whole cloth.”
This week, we released Bad Behavior: How prison disciplinary policies manufacture misconduct, the first 50-state analysis of prison disciplinary systems published in decades. Here, we discuss how journalists can dig deeper into disciplinary policies — a topic that touches many other aspects of life behind bars.
As the report explains, prison misconduct rules cover a vast range of behavior, making these systems ripe for abuse by corrections staff. The four dozen incarcerated people we corresponded with in developing our report described frequent charges for vague offenses like “not standing for count”; harsher punishments for accused people when they attempted to defend themselves against charges; and hearing officers finding people guilty on scant evidence rather than going against the word of another officer.
Our report is a high-level overview of how disciplinary systems work. But for journalists, there is a lot more room to explore how these systems are enforced in practice and how incarcerated people are impacted by the sanctions that follow a guilty plea.
A good place to start is finding out how many misconduct cases were processed in your state’s prison system in the last 1-2 years. (That will require a public records request, as we explain more below.) The following questions about disciplinary action could also jumpstart your reporting:
If your state DOC classifies different violations by severity, in how many recent cases was the most serious charge a minor or moderate one? (You may want to drill down on specific charges, and our report includes a table of common infractions.)
How many disciplinary cases processed in recent years resulted in someone being sent to solitary confinement? How many resulted in lost visitation or communication “privileges”?
How many days of good time were lost in recent years due to disciplinary action? (We suggest also asking what types of offenses are leading to people having time credits revoked.)
How do women, and racial minorities, experience disciplinary action differently? (For instance, our report shows that women are slightly more likely to be written up than men and much more likely to receive “minor” violations.)
In addition to the sanctions imposed when someone is found guilty, misconduct records also carry collateral consequences. You might want to ask these questions to get a better sense of the impact of disciplinary action:
Do misconduct records disqualify people in your state’s prisons from participating in any educational, job training, or behavioral programs?
What kinds of disciplinary offenses impact parole decisions in your state? Does the parole board ever consider minor violations enough to deny someone early release?
Does your state allow prisons to extend someone’s sentence past their original release date due to disciplinary infractions? (For example, in Wisconsin, being found guilty of infractions or being in solitary confinement can both lead to someone’s release being postponed.)
Talking to incarcerated people about disciplinary systems
Incarcerated people are essential sources for reporting on disciplinary policies, and are often eager to share their experiences and views. Be aware, though, that your sources are taking a risk in talking to you. (Ironically, unsanctioned communication with the media may be grounds for disciplinary charges.)
Anytime you’re working with incarcerated sources, setting clear expectations is key. Make sure to communicate the scope of your project and the terms of your conversations with your sources, as well as the risk of retaliation. Be clear about when you are planning to use their quotes and personal information in your story and make plans to protect their identities if necessary. For more guidance, read the Freedom of the Press Foundation’s guide to interviewing incarcerated people.
In talking to incarcerated sources about prison discipline, we suggest asking questions like:
Do you feel that the discipline system in your prison is effective at maintaining order and keeping people safe?
Are there any conduct rules (or categories of rules) that seem to be enforced more than others?
Are people accused of disciplinary infractions in your prison able to meaningfully defend themselves, such as by interviewing witnesses at hearings and presenting evidence?
How often are incarcerated people successful in defending themselves from disciplinary charges?
How would you change the system, if you could?
We urge journalists to only share biographical information about incarcerated people that pertains to the story. An incarcerated individual’s crime of conviction, for example, might be relevant insofar as it explains how long they have been behind bars. But being judicious about including biographical details will help you build trust with your sources.
Finding data on prison disciplinary systems
The bad news for journalists is that we don’t know how much data departments of corrections maintain about disciplinary action. The good news is that every disciplinary case — whether or not it goes to a hearing — begins with a write-up, and you can file public records requests for these reports and analyze them yourself if necessary.
In some states, the state government is supposed to conduct regular audits or analyses of prison disciplinary systems. The DOC’s official discipline policy should specify whether that is the case. If so, we recommend requesting any reports or audits of the disciplinary system from the last several years.
When requesting copies of actual disciplinary reports, you can ask the DOC to provide only reports from a certain time frame, where a certain charge was filed, where a certain type of penalty was imposed, and so on. If your investigation is looking at trends in prison discipline (rather than the treatment of a specific person), we suggest specifying in your records request that you are not seeking personally-identifiable information, and that the DOC can redact any details that could identify someone. This precaution can preempt records request denials based on privacy concerns.
For general advice on filing public records requests with criminal legal system agencies, check out our records request guide.
Using our report as a resource in other investigations
Disciplinary systems are relevant to many other aspects of the prison experience that journalists may find themselves reporting on. Our report may come in handy if you’re covering:
Solitary confinement. As our report notes, 35% of people who reported receiving disciplinary action in a sample year said they were put in solitary confinement as punishment. The section of our report about disciplinary processes dives into how people can end up saddled with punishments like this, with little or no opportunity to defend themselves against the charges.
Parole, “good time,” and other early release mechanisms. In nearly all states that use discretionary parole, release rates are declining. As news outlets like AL.com and Cleveland.com have reported, misconduct records play a significant role in release decisions. We also encourage reporters to dig deeper into how disciplinary action affects how much “good time” incarcerated people are able to accrue.
Protests and strikes in prison. Disciplinary codes punish several forms of dissent against prison conditions and rules, and in some states, dissenting behaviors like refusing to go to one’s prison job are treated as serious offenses. Our table of common disciplinary offenses helps explain how prison authorities can turn nonviolent protests into punishable infractions.
Prison programming. Reporters investigating the availability of educational, job training, or behavioral programs in prisons may want to find out whether misconduct records can exclude someone from participation. While we can’t say for sure, it’s possible that overactive disciplinary systems are effectively barring many people from rehabilitative programs — programs that can be a key part of securing early release.
Discipline systems are administrative processes in prisons that mimic criminal courts, and punishments for infractions are — in the words of corrections officials themselves — “the jail of the prison.” In other words, these systems are a black box within a larger, more well-known black box. Without investigative journalism, it is likely that these systems will remain largely obscure.
If you’re considering writing about prison discipline — or have any questions about our report or this guide — we encourage you to reach out to us through our contact page.
At the Prison Policy Initiative, we are often cited in academic articles and advocacy materials, but for the first time, we’ve published our own standalone chapter in an academic collection of critical essays and original research. The American Society of Criminology’s (ASC) Division on Corrections and Sentencing, one of several professional groups within ASC, has just published the ninth volume of its Handbook, with a theme of contemporary issues in health and punishment.1 This 800-page behemoth is a goldmine for people interested in how the criminal legal system intersects and interacts with physical, mental, and public health. Our own chapter offers “An Overview of Health and Access to Healthcare for People in State Prisons.”
Many other divisions of ASC publish an academic journal as a contribution to the field, but this division’s Handbook is a unique product that curates the very best in recent scholarship — including critical policy recommendations. The editors of this particular volume also sought insights from people with lived experience, practitioners, policy advocates, and scientists, in addition to the impressive lineup of academic researchers.
Our contribution to this edition of the Handbook is based on our original analysis of a national survey of people in state prisons, summarized in our 2022 report Chronic Punishment: The unmet health needs of people in state prisons. But the chapter goes further than that, explaining how people in prison access healthcare and the barriers they face, and providing an overview of our work on the flawed Medicaid and Medicare policies that exclude and punish system-impacted people. (We are pleased to report that since we wrote the chapter, there have been a few wins for system-impacted people regarding Medicaid and Medicare.)2 We conclude with recommendations to drastically increase access to healthcare services, acknowledge specific areas of need, and above all, move people out of prisons and jails permanently.
The interdisciplinary topics of health and punishment allowed the Handbook’s other authors to showcase their expertise on gender, aging, public health policy, social determinants of health, environmental justice, and more. As a result, the Handbook is an invaluable resource for readers from a wide range of fields, from criminal justice to public health, sociology, medicine, ethics, law, and policy. In the words of Dr. Homer Venters, who wrote one of the Handbook’s closing chapters, this volume offers “a sober understanding of the deep and systemic failures in our national system of mass incarceration.”
We’re delighted to be in the literary company of professors, practitioners, and advocates whose work we admire and rely on as we examine the far-reaching impacts of mass incarceration. You can learn more about the Division or the Handbook here.
Footnotes
Previous volumes of the ASC Division on Correction and Sentencing Handbook have focused on sentencing policy, pretrial justice, and collateral consequences, among other topics. Each volume can be purchased as a hard copy or an e-book from the publisher’s website. ↩
In November 2024, the federal government approved an important new rule that makes people on community supervision (probation, parole, supervised on bail, or living in a halfway house) eligible to receive Medicare benefits. A year prior, Medicare expanded its enrollment period, undoing the rule requiring incarcerated people to enroll in and pay premiums for Medicare coverage while still incarcerated — a time when they’re excluded from benefits. As for Medicaid, states are increasingly taking advantage of federal 1115 waiver demonstrations, which can provide pre-release Medicaid coverage for people nearing their release from jail or prison (among other expansion efforts). ↩
Criminal legal system data is important to understanding how the system operates, but it’s highly limited, inaccessible, outdated, and fractured across thousands of jurisdictions. We spotlight some of the most persistent data gaps we came across in 2024.
At the Prison Policy Initiative, we often hear from journalists, advocates, and others looking for basic information about the criminal legal system. Unfortunately, too often we find ourselves unable to help because rudimentary facts about the system are hard to come by: a lot of things are simply not tracked, and the data that do exist are often limited, inaccessibly formatted, fractured across thousands of jurisdictions, and/or severely outdated.
So, this year, we began collecting some of the data gaps we’ve encountered in the course of our work, which we’ve compiled into a Data Wishlist. We’re publishing the wishlist for two reasons: 1) to highlight just how much basic information is missing in the criminal legal space, and 2) to encourage agencies, researchers, and others to compile and publish these data sets and fill these gaps, chipping away at the information black box around so many aspects of mass incarceration. As you will see, many of the gaps identified in our list would answer exceedingly simple questions about the system, how it functions, and who does (and does not) get punished. This list is by no means a comprehensive survey of criminal legal system data gaps, but we hope it helps people understand just how poor the data environment is and encourages people to chase down this information.
Do you have research, or are you planning to do research, that answers any of these questions? Reach out and let us know through our contact page.
Community supervision
Technical violation data
Data we’re looking for: What percentage of all annual arrests are for supervision violations?
Why it matters: We’ve written on several occasions about how technical violations contribute to unnecessary jailing.1 These violations contribute to crowding in jails and prisons, forcing people into traumatizing, burdensome interactions with the criminal legal system for acts that are not technically crimes at all. We know that, at the most recent count, at least 128,000 people were incarcerated for technical violations of probation and parole. While the FBI tracks arrests across many types of crimes, arrests for supervision violations are notably absent. “What proportion of arrests each year are for supervision violations” is an exceedingly basic question that we are sadly unable to answer without these data.
Pretrial supervision data
Data we’re looking for: How many people are under pretrial supervision of any kind?
Why it matters: Pretrial supervision has gained popularity as an ‘alternative to incarceration,’ but we’ve repeatedly covered how it functions as a pipeline to incarceration. This includes pretrial electronic monitoring — a faulty technology that further embeds systemic injustices in communities of color, creates new avenues of harm, and does remarkably little to increase court compliance or public safety. As pretrial supervision spreads across jurisdictions and takes many forms, it’s important that we have a better picture of how many people are being monitored under those various forms and, over time, to see which forms of supervision are becoming more (or less) common, or result in better (or worse) individual outcomes.
Conviction-based public registries and community supervision
Data we’re looking for: How many people are exclusively on registries as a form of supervision?
Why it matters: We’ve previously pointed out how the available data do not allow us to break apart those on registries from those still serving a sentence, making it difficult to get an accurate picture of how many people are being monitored outside of formal community supervision like probation and parole. Given the well-documented harms of registration, the variety of crimes that require registration, and the failures of registration to increase safety, it’s essential that we improve our understanding of the size and scope of this population.
Offense, sentencing, and conviction data
Conviction status for people on electronic monitoring
Data we’re looking for: What are the conviction statuses (e.g., pretrial vs. sentenced) for people on electronic monitoring?
Offense data, by conviction status and demographics, for people in local jails
Data we’re looking for: What charges are people in local jails being held on? How do they vary by conviction status and demographic characteristics like state of residence, sex, race, and age?
Why it matters: Most people in local jails have not been convicted, but are detained on bail while awaiting trial. Knowing the charges for which they’re being held helps us evaluate how local jurisdictions are using jails, as well as how many people could be safely released. The Bureau of Justice Statistics (BJS) last collected these data at the national level in 2002, which we have had to rely on for the past two decades. The next iteration of that survey is currently underway, but it will likely be at least 2026 before BJS publishes the results. The Jail Data Initiative offers an alternative source for this data, but because jails include different information on their rosters, there are limitations to what we can do with it. The BJS is uniquely positioned to collect this information and should do so more than once every two decades.
Women’s offenses related to intimate partner violence
Data we’re looking for: How many women convicted of homicides committed offenses in the context of intimate partner violence?
Felony and misdemeanor sentencing by state (and nationally)
Data we’re looking for: What are the mean and/or median felony prison or jail sentences in each state (or nationally)? And what do misdemeanor sentences look like on the state or national level?
Why it matters: National felony sentencing data hasn’t been compiled since at least 2009, and more recent data published by the Bureau of Justice Statistics are based only on people who have been released. Ideally, data on felony sentencing that aren’t limited to carceral sentences (i.e., include probation, fines, or other requirements) would help us get a better sense of trends in felony sentencing. Simply put: we don’t really know, on an aggregate level, how judges are responding to felony convictions. Meanwhile, we know practically nothing about misdemeanor sentencing but would like answers to basic questions, such as how many people are released with “time served” from pretrial detention, how many are incarcerated (and for how long), how many receive intermediate sanctions such as community service or fines, and how many receive community supervision (and for how long)?
Updated sentencing outcomes for convictions internationally
Data we’re looking for: What do sentencing outcomes for convictions look like globally, and how do they compare to those in the United States?
Why it matters: Through our States of Incarceration series, we’ve tried contextualizing the U.S.’s reliance on mass incarceration by comparing it to that of other nations, but data are limited. We could improve this picture if we had up-to-date information on sentencing outcomes in other nations. New data haven’t been released since the early 2000’s.
Good time credit application
Data we’re looking for: At the state level, how have “good time” or earned time sentence credits been applied and how often are they applied incorrectly, leading people to spend more time locked up than they should?
Why it matters: We’ve noted that good time credits are a potentially powerful tool for decarceration and an important mechanism for shortening prison sentences. Misapplied good time is therefore a serious obstacle to release. In this 2023 article from Kentucky, Jason Riley reports that people with good time credits have been held long after their release dates because the credits were misapplied. The underlying data here are from a state audit. This information should be publicly available, and we should have it for every state, but we don’t.
U.S. Marshals conviction and sex data
Data we’re looking for: How many people in U.S. Marshals custody have been convicted, and how does that data break down by sex?
Why it matters: We know tragically little about people in custody of the U.S. Marshals. Currently, we only have the percentage of people in jail who were female and held for the Marshals at the time of the Bureau of Justice Statistics’ 2002 publication of the Survey of Inmates in Local Jails. These data are not just old – they’re also self-reported and therefore not consistent with the more recent administrative data available about people in Marshals’ custody. Additionally, it’s unclear how many people in Marshals’ custody have even been convicted or not. Their website says they house over 63,000 “pre-sentenced” people in various jurisdictions, but the Bureau of Justice Statistics’ 2019 Census of Jails shows a conviction rate of 35% for those held in local jails. We’d like answers to these very simple questions.
Family policing and youth detention data
Referrals by race and ethnicity for the child welfare system
Data we’re looking for: How do referrals to the child welfare system (often referred to by advocates as the family policing system) break down by race/ethnicity?
Why it matters: We’ve written about how the family policing system operates as an extension of the carceral state, but a glaring omission in the available data pertains to the race and ethnicity of children referred to the system. As with all criminal legal system data, this information is crucial to understanding patterns of practice in enforcement — who gets targeted for family policing and who does not?
Youth who are parents in detention
Data we’re looking for: How many youth in juvenile detention are pregnant or have children?
Why it matters: We’ve covered the traumatic consequences of mass incarceration on children and incarcerated parents, and while there’s information on parents in the adult system, we haven’t seen as much on parents in youth confinement. There’s data from the 2003 Survey of Youth in Residential Placement, but it’s extremely outdated. This 2018 article mentions that “approximately one third of female juvenile offenders have ever been pregnant,” and “male adolescents involved with the juvenile justice and foster care systems are also at high risk for getting someone pregnant, with 18% to 31% reporting that they have fathered a child.” But for the most part, we don’t really have any idea of how many kids in youth confinement are also struggling with parenthood while incarcerated.
The flow of youth through confinement facilities
Data we’re looking for: How many youth exit residential placement facilities each year, and how many of them receive aftercare or reentry services?
Why it matters: We’ve written before about how many of the problems plaguing the adult criminal legal system are mirrored in the juvenile justice system. And we know that in the adult context, there aren’t enough reentry services to meet the need – but is the same true for youth? The most recent data we know of were collected in 1999, but much has changed since then. Without the relevant data, it’s difficult to tell how many youth today who are at risk of further criminal legal system involvement are getting the support they need.
Incarceration experience and conditions
Healthcare quality
Data we’re looking for: What is the quality of healthcare in jails and prisons?
Why it matters: While we know that criminalized populations tend to be sicker and have more serious healthcare needs than the general population, we know practically nothing about the quality of healthcare in jails and prisons, other than that it’s bad. Additionally, much of the data we do have lacks the perspectives and experience of the patients: incarcerated people. A basic evaluation of the state of healthcare delivery in jails and prisons is an entry-level need in the corrections space.
Healthcare outcomes in corrections compared to the community
Data we’re looking for: How do healthcare outcomes in prisons and jails compare to the rest of their state?
Why it matters: Similarly, there’s little research available attempting to compare healthcare outcomes in community versus carceral settings. It’s difficult to gauge the extent to which poor healthcare outcomes have to do with the provision of care in punitive settings compared to in the community.
Mortality among states with privatized healthcare
Data we’re looking for: How do mortality rates compare between states with different kinds of healthcare delivery?
Why it matters: While most jails and prisons in the U.S. have privatized medical services, there’s very little research available comparing mortality outcomes between different healthcare delivery models. Having this data could help improve our understanding of whether there’s a distinction between public and private healthcare delivery. This information would be a tiny step forward in evaluating basic outcomes of different correctional healthcare delivery models.
Perspectives of incarcerated people on understaffing
Data we’re looking for: How do incarcerated people experience understaffing? Where do they feel it most acutely, and what do they think should be done about it?
Why it matters: “Understaffing” is the scapegoat for virtually all crises in corrections today, but notoriously absent from analyses are the perspectives of incarcerated people on the subject as well as calls for decarceration as a solution. There have been some efforts to incorporate their perspectives in examining understaffing, but we think there should be much more research and reporting to this end.
Strip search data, broken down by geography and including historical data
Data we’re looking for: How many strip searches are happening in state prisons, and which states do not require tracking this information?
Why it matters: Strip searches are used routinely in jails and prisons, including around visitation, as a general contraband and drug interdiction strategy. These searches have profoundly harmful and counterproductive effects, and create opportunities for acts of sexual violence by corrections officers. Without basic data on strip searches, it’s impossible to know the frequency with which they’re practiced and whether they’re more common in the U.S. compared to other countries.
Economics and financial exploitation
Relative costs for jail, prison, work release, house arrest, probation, and treatment/counseling
Data we’re looking for: What are the costs for incarcerating someone in a jail or prison compared to placement in work release, house arrest, probation, and treatment/counseling, and how do these vary across states or regions?
Why it matters: We have very little sense of how the costs of incarceration compare to things like work release, house arrest, and probation, let alone responses like treatment/counseling or other non-punitive measures. Having this comparative economic data could help shed light on how our society spends money – and what it does (or doesn’t) get in return on that investment.
Jail-level inmate welfare fund data
Data we’re looking for: How many jail jurisdictions have “Inmate Welfare Funds,” and what are their cash balances?
Why it matters: Earlier this year, we published a detailed report on Inmate Welfare Funds (IWFs) – special prison and jail accounts that are funded with money from phone calls, commissary purchases, and other fees. IWFs are intended to benefit the incarcerated population but are often used as slush funds for corrections departments. While we were able to collect IWF policies for all 50 state prison systems, a much heavier lift is to collect and organize these policies for jail systems. Additionally, it would be helpful to have a sense of IWF balances and cash flows in state prison and local jail systems. Having these data would help greatly expand our window into IWFs, how they are designed, how they function, and their exploitative power over incarcerated people and their families.
Pre- and post-incarceration data
Labor force participation for formerly incarcerated people
Data we’re looking for: What percentage of the U.S. labor force is formerly incarcerated?
Why it matters: This past Labor Day, we chronicled ten ways in which mass incarceration is an engine of economic inequality, including using criminalization as a means to discipline and contain labor movements. While we have some data on the experience of trying to obtain work and working after incarceration, we don’t know what proportion of the labor force is made up of formerly incarcerated people. (We would also love to be able to update our research on the unemployment rate of formerly incarcerated individuals, but to our knowledge, no comparable national data have been collected since 2008.)
Updated pre-incarceration incomes of people in prison and jail
Data we’re looking for: How much did incarcerated people earn before they went to prison or jail?
Why it matters: Evidence that incarcerated people are typically much poorer than non-incarcerated people — even before they are arrested — helps show the injustice of a criminal legal system that treats people differently based on their wealth. For example, many people in local jails are there simply because they can’t afford money bail, and people who can’t afford private attorneys may be assigned public defenders with unmanageable caseloads who can’t spend the same time on their cases. Yet the Bureau of Justice Statistics has not published income data since its surveys in 2002 (for jails) and 2004 (for prisons).2 We have had some success using the National Survey of Drug Use and Health to get income data about people recently arrested and booked into jails, as well as people recently on probation and parole, but a more targeted sample of people with current criminal legal system involvement would be better.
Footnotes
Technical violations are behaviors that break probation or parole rules, such as missing curfew, failing a drug test, or missing a check-in meeting; they are not behaviors that would count as “crimes” for someone not under community supervision. ↩
BJS is currently fielding a survey of people in jails that may include this information, and it attempted to survey people in prison on this question in 2016, but a computer error made those data unusable. ↩
New Bureau of Justice Statistics data reveal that concerning trends in policing persisted in 2022, even while fewer people interacted with police than in prior years.
Almost 50 million people reported contact with police in 2022, reflecting the fewest number of police encounters with the public since 2008. But just because the sheer number of police interactions was lower than it has been in decades does not mean the problems with our nation’s fraught system of policing are solved. The newest report from the Bureau of Justice Statistics’ Public-Police Contact series reveals that racial disparities in police interactions, misconduct, and use of force remained pervasive in 2022. In this briefing, we examine the latest data showing that Black people continued to face higher rates of enforcement actions, police misconduct, and use of force despite relatively similar rates of contact with police. These new data also show heightened levels of police interaction and use of force against young adults, and a growing rate of use of force against women, warranting further investigation of trends in policing.
Millions of people contacted police, but mostly not to report crime
Most police contacts are initiated by residents: almost 30 million people initiated contact with police in 2022. However, only half of these people ever reported possible crimes. More often, they were seeking help. Among people who initiated their most recent contact with police, 25% were reporting a non-crime emergency (like a medical emergency or car accident they weren’t involved in), 26% were reporting other non-emergencies (including requests for custody enforcement or other services, accidental 911 calls, asking for directions, and looking for lost pets), and 3% were block watch-related contacts.1
Although we have little national context regarding the reasons for resident-initiated police contact and the outcome of those interactions, a 2022 analysis of over 4 million 911 calls for police service in eight major U.S. cities found that only 4% of calls were related to violent offenses (including gunshot reports); the majority of calls for service did not result in any action related to law enforcement or crime prevention.2 In other words, most calls to the police would be best directed elsewhere if communities had the necessary funding and capacity. Given how dangerous seemingly innocent police interactions can be, this is a sign of the need for community investments and government infrastructure that are better suited to address concerns about quality of life (e.g., noise, animals, or disorderly behavior), health (mental, physical, and behavioral), and vehicle and traffic issues – some of the most common themes of 911 calls for service in the 2022 study.
Traffic stops remain the most common reason for police-initiated contact across all demographics
In 2022, fewer than 1 in 5 U.S. residents over the age of 16 (or 18.5%) had face-to-face contact with police, down from 24% in 2018. The Bureau of Justice Statistics attributes this decline to a decrease in the number of traffic stops,3 which fell by 33% from over 24 million to 16.2 million over this same four-year period.4 Despite this decline, traffic stops were still the most common type of police-initiated contact, regardless of gender, race, or age: more than 12 million drivers5 were stopped by police in 2022, and these stops are often fraught with racial bias and violence.
Racial disparities pervade police encounters
White people were far more likely than Black people, Hispanic people, and Asian people to initiate contact with the police, for reasons including to report possible crimes and emergencies, to participate in block watches, or to seek other kinds of help from police. In fact, 2 out of every 5 (42%) U.S. residents over the age of 16 who had any police contact in 2022 were white people initiating police contact.6
On the other hand, people of color — and Black people in particular — were more likely to experience police-initiated contact, including street stops, traffic stops, and arrests. Forty-five percent of Black and Hispanic people who had any contact with the police were approached by police, compared to 40% or less of white people, Asian people, and people of other races. Not only were Black people disproportionately likely to experience traffic stops and arrests, but they were also more likely to experience enforcement actions7 from police during street stops and traffic stops, and to face police misconduct and use of force:
Street stops:8 While the survey found little racial or ethnic difference in the likelihood of being stopped on the street by police, Black people were somewhat more likely9 to face enforcement actions from police in street stops: 18% of Black people stopped received a warning compared to 15% of white people, and 8% of Black people stopped were searched or arrested compared to 6% of white people.10 Hispanic people were far less likely (11%) to receive an enforcement action when stopped than white (24%) or Black people (25%).
Traffic stops: Traffic stops are a common site of police violence: according to the 2023 Police Violence Report from Mapping Police Violence, more than 100 police killings (13%) occurred at traffic stops in 2023. The new Bureau of Justice Statistics data show traffic stops continued to be the most common reason for police-initiated contact across all races, but Black people are stopped at higher rates than others: almost two-thirds (62%) of all Black people whose most recent contact with police in 2022 was police-initiated were the driver in a traffic stop compared to 56-59% among all other groups. Black drivers were also searched or arrested at a rate more than double that of other racial groups: 9% of Black drivers were searched or arrested during traffic stops, compared to 4% of Hispanic drivers, 3% of white drivers, and 5% of drivers of other races. In fact, this represents an increase in the proportion of Black people stopped while driving and subsequently searched or arrested by police: in 2020, less than 6% of Black drivers were searched or arrested during a traffic stop. As was the case with street stops, these trends serve as further evidence of racist policing during traffic stops.11
Arrests: Black people were more than twice as likely to be searched or arrested during a traffic stop as white people and Hispanic people. This is consistent with total arrest rates reported by law enforcement, which showed Black people were arrested at a rate (4,544 per 100,000) more than double that of white people (2,155 per 100,000) in 2022.12
Police misconduct: Serious racial disparities persisted in the experience of police misconduct.Black people disproportionately experienced police misconduct – defined as the use of slurs, bias, and sexual harassment – in their most recent encounters with police.13 Four percent of Black people experienced misconduct in their most recent police contact – including those who initiated the contact to report crimes, emergencies, or otherwise seek police help – which is six times the proportion of white people who experienced misconduct (0.7%). Hispanic people also experienced police misconduct in their most recent encounter with police at a significantly higher rate – twice the rate of white people.
Threat or use of force: In their most recent police encounters,14 Black people were over three times as likely as white people to experience the threat or use of force – defined as threat of force, handcuffing, pushing, grabbing, hitting, kicking, using a weapon or other use of nonfatal force (these data do not include people who died from fatal use of force) – and more than twice as likely to experience police shouting or cursing at them. Since 2020, the proportion of white and Hispanic people experiencing the threat or use of force has actually decreased, while the proportion of Black people experiencing threats or nonfatal use of force has increased slightly. In particular, Black people were more likely to be handcuffed, pushed, grabbed, hit, or kicked, or have a weapon used against them by police in 2022 than they were in 2020. And while they accounted for only 12% of people whose most recent contact was police-initiated or traffic accident-related, Black people represented one-third (32%) of all people reporting threatened or nonfatal use of force in their most recent encounter, and one-quarter (24%) of those reporting shouting or cursing by police.
Ultimately, reducing the number of police encounters does mean fewer opportunities for misconduct or use of force, but it has done little to address racism in policing. Black people’s disparate experiences in police encounters that result in searches, arrests, misconduct, or use of force make those encounters more dangerous and deadlier. While information on fatal use of force is not included in this Bureau of Justice Statistics report, we know that Black people are killed by police at a higher rate than other racial groups. The data in this report provide further evidence of the pervasive pattern of racism throughout the criminal legal system.
Police interactions and use of force are most common among young adults
Young adults aged 18-24 years were the most likely age group to experience any police contact at all (25%), including police-initiated contact (15%), and police contact related to a traffic accident (4%). Young adults were also the most likely age group to experience some kind of law enforcement action – a warning, a ticket, a search or arrest – when their most recent police contact was as a driver during a traffic stop (95%) or in a street stop (28%).
While these rates are concerning, what’s most alarming is the rate of use of force against young adults: more than 1 in 5 people (21%) who experienced the threat or use of force in their most recent police encounter were between 16 and 24 years old. Millions of young adults come into contact with police each year, and the consequences of those interactions are serious and can be life-threatening.15 Police contact of any kind is not innocuous: over 70% of police killings in 2023 began with officers responding to a suspected non-violent situation or a case where no crime had been reported, and more than a hundred police killings took place after a traffic stop in 2023. The high rate of police contact among young adults ultimately places them at high risk for dangerous and even fatal consequences.
Disproportionate experiences of use of force among older adults and women
On the other end of the age spectrum, the Bureau of Justice Statistics data reveal a concerning trend among older adults experiencing use of force. While people aged 65 years or older were the least likely adults to experience police contact, they accounted for a growing portion of people experiencing force in police encounters. In 2015, only 0.4% of people who experienced the threat or use of force were 65 or older and by 2022, the proportion of people experiencing use of force that were 65 or older increased more than tenfold to 5%.
Although women are just as likely to encounter police as men, more and more women are experiencing use of force over time: 28% of people experiencing the threat or use of force by police in 2022 were women, compared to 13% in 1999. While the new Bureau of Justice Statistics report did not include statistics on women’s perceptions of police force, the 2020 iteration of the report revealed that women (51%) were more likely than men (44%) to perceive the force they experienced as “excessive.” Women with any police contact were also somewhat less likely than men to perceive the police as responding promptly and to be satisfied with the police response.
Conclusion
The Police-Public Contact Survey continues to be one of the few opportunities we have to monitor the big picture of police encounters, but it still falls short of revealing how police actually function in our communities. The current survey does not offer information about the motivations behind police-initiated contact, nor does it provide contextual information behind threatened or nonfatal use of force, such as which type of police contact is most frequently associated with force. Without data broken down by sex or gender and race or ethnicity, we have little insight into the impacts police contact has on women of color, trans people, and other demographics not captured by this dataset. Given these limitations, we are often left pulling details from multiple sources to try to piece together some semblance of an understanding of police encounters in the United States. However, even with those restrictions, this Bureau of Justice Statistics report offers a crucial – and rare – opportunity to assess how and why police interactions are happening and whether the outcomes are safe and appropriate for situations actually requiring police intervention at a national level.
Footnotes
Block watch-related contacts refer to police contact within the context of participating in a block or neighborhood watch or other “anti-crime” program. ↩
The Public-Police Contact Survey from the Bureau of Justice Statistics only offers us the most basic insight into police contact and does not explain the motivations or drivers of police contact. However, data published in the New York Times reveal that the number of traffic stops began declining in 2018 and 2019, and that this decline was subsequently hastened during the COVID-19 pandemic, and has yet to return to pre-2018 levels. The Vera Institute for Justice published an analysis in early 2024 that found many communities that reduced traffic stops in recent years have seen positive results: reduced complaints about police, fewer injuries to police, reduced racial disparities in traffic enforcement, and fewer stops for minor infractions like lighting violations. ↩
A total of 16.2 million people reported contact with police at traffic stops; more than 12.4 million people were the drivers and 3.8 million people were passengers during these traffic stops. ↩
It is worth noting that Black and Hispanic respondents to the Bureau of Justice Statistics survey were more likely than white respondents to contact police to report a possible crime or in relation to a block watch, yet they were less likely to report positive perceptions of police responses. In particular, many people who initiated their most recent police encounter (37%) did not think that the police improved the situation; this opinion was most common among Hispanic and “other” racial/ethnic group respondents (42% each). Meanwhile, white respondents gave their police encounters the highest marks across all measures. These differences add to the evidence that police are not serving Black, Hispanic, and other racial and ethnic minority communities as well as they are white communities, despite their arguably greater need, as expressed by residents reporting crime. ↩
An “enforcement action” is defined as the outcome of the police encounter. Only the most serious enforcement action is counted for those who experienced more than one action. The actions include a warning (the least serious), a ticket, and search or arrest (the most serious). ↩
In the Public-Police Contact Survey, “street stops” refer to stops by police while in a public place or parked vehicle. ↩
These differences were not statistically significant at the 90% confidence level, however. ↩
While the “stop-and-frisk” policies in New York City are particularly notorious for racial profiling, racial disparities in street stops and law enforcement actions occur regularly across the country, including in Washington, D.C., Wisconsin, and California, among many other jurisdictions. In the 2024 annual report of the California Racial and Identity Profiling Advisory Board, stop data reveals that people perceived as Native American had the highest search rates (22%), followed by people perceived as Black (21%). People perceived as white were searched at a rate of 12%, and those perceived as Asian (6%) and Middle Eastern/South Asian (4%) had the lowest search rates of all racial or ethnic categories. ↩
For example, a 2023 report form the Illinois Department of Transportation found that state-wide, Black and Latino drivers were stopped at rates higher than white drivers, and that in 2023, Black drivers were three times more likely to be stopped a total of two to ten times, and nine times more likely to be stopped more than 10 times compared to white drivers who were stopped. ↩
The Bureau of Justice Statistics report describes instances of sexual harassment by police as “sexual misconduct,” which includes residents “whom police made a sexual comment to, touched in a sexual way, or had any physical contact with that was sexual in nature.” ↩
The percentages reported by the Bureau of Justice Statistics about use of force and shouting/cursing are among people whose most recent police contact was initiated by police or related to a traffic accident. ↩
2024 was a busy year for the Prison Policy Initiative. We exposed how prisons and jails are exploiting incarcerated people and their families for millions of dollars each year, highlighted how cruel abortion restrictions affect women throughout the carceral system, saw a major victory for phone justice, and so much more. We curated some of our most important pieces from the last 12 months.
This year was the tenth anniversary of our flagship report, Mass Incarceration: The Whole Pie. It provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. In addition to showing that more than 1.9 million people are behind bars on any given day in the U.S., it uses 34 visualizations of criminal legal system data to bust 10 of the most persistent myths about prisons, jails, crime, and more.
Recognizing that 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, we released a new edition of Women’s Mass Incarceration: The Whole Pie. This report fills this gap with richly-annotated data visualizations about women behind bars.
The U.S. has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations. In the global context, even “progressive” U.S. states like New York and Massachusetts appear as extreme as Louisiana and Mississippi in their use of prisons and jails.
Our report examines the incarceration rates of every U.S. state and territory alongside those of the other nations of the world. Looking at each state in the global context reveals that, in every part of the country, incarceration is out of step with the rest of the world.
Prisons and jails generate billions of dollars each year by charging incarcerated people and their communities steep prices for phone calls, video calls, e-messaging, money transfers, and commissary purchases. A lot of that money goes back to corrections agencies in the form of kickbacks. But what happens to it from there?
Our report analyzes how prisons and jails funnel money from incarcerated people and their families into “Inmate Welfare Funds” — and then use it to cover the costs of incarceration.
An investigative report in Dauphin County, Pa., found that only a small fraction of welfare fund expenditures from 2019 to 2023 directly benefitted people incarcerated in the jail. While few jail and prison policies explicitly outline what qualifies as an appropriate use of funds, our breakdown above generally follows the logic of a Montana audit that attempts to parse appropriate, questionable,and inappropriate expenditures.
More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation. Our report provides one of the most comprehensive 50-state compilations of “standard” conditions of probation to date, shining a light on the burdensome rules that govern the lives of nearly 3 million people and that doom many to inevitable further punishments.
To understand how the overturn of Roe impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We found that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women(82%) on probation or parole nationwide. That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.
Map 1 The vast majority of states have some kind of abortion ban as well as standard conditions of both probation and parole that restrict interstate travel. Click here to see a map of abortion bans in place as of May 2024.
Map 2 Probation is the most common form of correctional control for women in the U.S., and almost every state has a standard condition of probation restricting travel. Probation populations here exclude federal. Click here to see a map of abortion bans in place as of May 2024.
Map 3 While fewer women are on parole supervision compared to probation, nearly all live in states that restrict interstate travel for everyone on parole. Parole populations here excluded federal. Click here to see a map of abortion bans in place as of May 2024.
Donald Trump’s legal proceedings would not have stopped him from being president and most likely won’t create many obstacles that a billionaire can’t handle. But there are still more than 19 million people in the US with felony convictions that face hiring discrimination for ordinary jobs every single day. In this briefing, we explain how states can end removed barriers that prevent people with felony convictions from securing good jobs.
In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice. We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.
The U.S. incarceration rate has closely tracked the rise in the share of national income held by the wealthiest 1% of Americans. For most of the 1950s, 60s, and 70s, the top 1% held about 10% of the total national income while the U.S. imprisoned about 100 people per 100,000. By the 2000s, the share held by the top 1% had doubled to around 20% while the incarceration rate grew to five times the historical norm.
Journalists, advocates, and other users of our website reach out frequently to ask if we know the total number of people released from prisons and jails in their state each year. Many are trying to fight for more resources for people returning home and want to know how these numbers break down by sex. While these are numbers you might expect would be easy to find, they aren’t published regularly in annual reports on prison and jail populations by the Bureau of Justice Statistics (BJS). To make this information more accessible, we’ve drilled down into the most recent data available to show how many men and women are released from prisons and jails each year.
Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare. But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.
Based on 2019 data from the National Survey of Drug Use and Health (NSDUH) from SAMHSA, approximately 8% of people over the age of 12 met the criteria for a substance use disorder, and 41% of people who had been arrested in the last year met the criteria for a substance use disorder. In 2016 (the most recent year for which the Bureau of Justice Statistics published national prison data), 47% of people in state and federal prisons met the criteria for a substance use disorder in the 12 months prior to their most recent prison admission.
The Federal Communications Commission voted to implement several new regulations on phone and video calling services in prisons and jails. As required by the 2022 Martha Wright-Reed Fair and Just Communications Act, the FCC laid out new price caps that prisons, jails, and their telecom providers must abide by, significantly lowering the existing caps which were set in 2021. The agency also made a number of long-sought reforms that will bring critical relief to families of incarcerated people and reduce incentives for bad policy in prisons and jails.
This year, Minnesota joined the rapidly growing list of states that have taken action against prison gerrymandering. The measure requires state and local governments to count incarcerated people at their home addresses when drawing new political districts during their redistricting process. This is a huge win and yet another reason for the Census Bureau to finally change how it counts incarcerated people and end prison gerrymandering nationwide.
At the request of the Georgia-based Community Over Cages Coalition, the Prison Policy Initiative examined the proposal for a new jail and found serious shortcomings. In a 17-page memo, we explained how the overuse of pretrial incarceration hurts communities, the feasibility study the county commissioned failed to consider alternatives to new jail construction, and it also ignored that a massive new jail would exacerbate existing staffing issues. Less than one month after the release of our findings, the Fulton County Board of Commissioners voted to scrap its $2 billion plan, marking a major victory for advocates.
If your community is considering building a new jail or expanding the capacity of its existing facility, we may be able to help you push back. Drop us a line to tell us about your fight.
This collection of work only scratches the surface of what we accomplished in 2024 — and our work is far from over. Next year, we’ll continue to expose the ways that mass incarceration harms people on both sides of the bars and highlight solutions that keep communities safe without expanding prisons, jails, and the carceral system.
Broad policies prohibiting prison and jail staff from talking to reporters are common but likely unconstitutional. Here’s how reporters can push back against these policies.
Journalists play an essential role in spotlighting the terrible conditions and circumstances that incarcerated people face every single day. It’s perhaps no surprise then that corrections departments routinely make it harder for reporters to get information about their facilities. Some of the most common obstacles to reporting on jails and prisons are “gag rules” that forbid anyone on staff from talking to journalists without approval from their supervisor or a public information officer (PIO).
Here’s the dirty little secret about these gag rules: despite being incredibly common, they are almost certainly unconstitutional and unenforceable. In fact, within the last year, journalists have successfully challenged gag rules to provide more transparency on what is happening within carceral facilities and make more thorough reporting possible.
In this briefing, we reviewed research from the Society of Professional Journalists and from Frank LoMonte,1 currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice, to show how common and far-reaching these gag rules are in the criminal legal system. We also explain why courts have consistently struck down gag rules, and provide an actionable pathway for journalists to challenge them.
What are “gag rules” and how common are they?
A gag rule seeks to do exactly what it sounds like: keep people from talking. In this case, gag rules deter jail and prison employees from speaking to the media.
In corrections departments, gag rules generally take three forms:
An explicit policy from the department’s legal team that lays out specific rules, procedures, and punishments for failing to follow the policy when communicating with journalists.
Directives from a public information officer that tell employees how to respond if they’re contacted by a member of the media.
An organizational culture of silence, where there isn’t a specific written policy or directive but rather a general understanding that staff should not talk to journalists.
Gag rules are incredibly common.2 A 2016 survey by the Society of Professional Journalists found that more than 55% of journalists covering law enforcement agencies said they are never or rarely allowed to interview officers without a public information officer’s involvement. Additionally, 41% of surveyed journalists said that accessing police officers and law enforcement agents has gotten marginally or significantly more difficult in the last five to ten years.
Policies from correctional agencies are often quite explicit in prohibiting staff3 from speaking with the press:
The Alabama Department of Corrections’ policy manual says: “If a reporter or news media representative contacts an employee of ADOC for an interview, that employee or their supervisor shall notify the PIM (public information manager) and gain approval before speaking with the news media.”
In its policy manual, Arizona’s Department of Corrections states: “Department staff shall refer all media requests to the Media Relations Director and the Deputy Media Relations Director.”
These are just a handful of examples that can be found by reviewing departments of corrections’ policy manuals, and there is every reason to believe that local jails have similar — if not even more restrictive — rules on the books.
Courts have routinely struck down stringent “gag rules”
Even though gag rules are incredibly common, courts have consistently struck down blanket policies that restrict public employees from talking to members of the press without authorization.4 In his review of court rulings on this issue, LoMonte found nearly two dozen cases in which courts have rejected policies that require government employees to get approval before speaking to the media.
Courts — including the Supreme Court of the United States — have looked most harshly upon rules prohibiting speech before it can be heard as a form of censorship known as “prior restraint.” The Supreme Court has said government agencies must show an overwhelmingly compelling reason to prohibit employees from speaking publicly. Importantly, federal courts have clarified that avoiding accountability does not constitute an overwhelmingly compelling reason.
At least four federal circuit courts5 have struck down broad restrictions on government employees speaking publicly, and two additional ones6 have suggested they would act similarly. In fact, no federal court of appeals has upheld these broad restrictions.
It is worth noting that the courts haven’t struck down all prohibitions on public employees speaking to the press, just those determined to be overly broad. For example, agency policies that don’t outright ban unapproved communication between the press and employees, but do urge caution or encourage employees to consult with PIOs, would likely pass constitutional muster because they are not as stringent and lack a threat of punishment.
How journalists can fight gag rules
Most journalists who have covered prisons, jails, or other aspects of the criminal legal system have almost certainly encountered gag rules. Often, these rules feel like insurmountable obstacles that hinder an otherwise promising story. Fortunately, that doesn’t have to be the case. If you run into a gag rule, here’s a clear strategy to overcome it or, if necessary, challenge it in court.
First, you should aim to get prisons, jails, or other law enforcement agencies to do one of two things:
Acknowledge in writing that its “policy” around employees talking to the press isn’t really a policy at all but more of a request or recommendation that has no consequences for violating it and is otherwise unenforceable.
Admit that it’s a formal policy that includes the threat of punishment and, thus, is ripe for a legal challenge.
To accomplish this, you should request a written copy of the policy. In addition, you should ask who drafted the policy, how it is enforced, and what the punishment is for an employee or journalist7 who violates the rule. You may need to file a public records request to get some of this information.
Once you have that information, consider the following issues:
Is there a written policy? If not, you should get documentation from the agency indicating this fact and use this information to assure agency employees that speaking to the press is not prohibited.
What does the policy look like? With this question, you want to understand whether the policy was created through the facility’s formal drafting process and is enforced, or whether it was more of an informal request made to staff.
Who drafted it? This question will allow you to assess how seriously the policy has been thought out by the agency. Policy from the legal department has likely gone through a formal implementation process, while a guideline from the PIO likely has not followed that official pathway.
What are the consequences of violating it? This will indicate whether employees or journalists who violate the rule should be worried about punishment.
Once you have this information, you have to make a judgment call:
If it appears the agency has no real policy, or it is a policy that there are no repercussions for violating, you can take that information to agency employees and explain the situation. There is always the possibility employees will fear speaking to reporters simply because they know their superiors will not like it or will not like what they say to the reporter. But knowing the rules may give the reporter more leverage.
If it appears the agency has an official policy with explicit consequences, your first step should be to investigate whether similar policies have been struck down by federal courts in your area. If so, bring this to the attention of the agency’s legal department to make sure they know that they are at risk of a lawsuit. This may be enough to get them to abandon the policy. If that doesn’t work, you will likely need to challenge the policy in court.8
If you determine a lawsuit is necessary to overcome a gag rule, you should first contact your newsroom’s legal team to discuss the matter. You should also check out the Yale Law Media Information & Access Clinic’s website, which has more information and resources. This organization also provides legal assistance in some cases involving government agencies inappropriately hiding information from the public and press and wants to hear from journalists encountering these gag rules.
These gag rules, while incredibly common and frustrating, don’t have to be the end of your story. This strategy and these resources can help you get to the truth about what is happening within the walls of prisons and jails and your community, and provide much-needed public scrutiny of how incarcerated people are treated.
Footnotes
Journalists who want a deeper analysis of the authority (or lack thereof) to prevent government employees from speaking to the media should also check out this law review article from LoMonte. ↩
While this piece focuses on prisons and jails, these gag rules are common throughout other government agencies as well. ↩
While it is less common than punishing employees for unauthorized communications with members of the press, some public agencies also punish journalists who don’t follow its processes. The most common punishment in these circumstances is “blacklisting” or prohibiting all future communication with that journalist. ↩