Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse.

by Emmett Sanders, February 20, 2024

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one. The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.” $30 million will come from COVID-19 pandemic relief funds; 1 as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country. Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability. New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath. Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.


The three “C’s” of jail construction arguments

Jail proponents usually rely on one or more of three central arguments to make their case:

  • The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
  • The “Contemporary” argument: new construction is needed to update an outdated jail;
  • The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.2

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages. Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations. This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.


If you build it… (the “capacity” argument)

Proponents of jail construction often rely upon jail “needs assessments”3 to bolster their claim that building a bigger jail is the only way to meet capacity needs. These needs assessments come with many biases and flaws — often because they are written by construction firms who hope to eventually make even more money building the new jail. The simple truth is that no jail will ever be big enough to satisfy an over-reliance on incarcerate-first policies. Instead of solving capacity needs, bigger jails enable counties to continue bad practices — leading them to argue that they need newer, even bigger jails in the future, and spending millions of dollars in the process.

Greene County, Missouri, for instance, built a new 552-bed jail in 2001. This was supposed to resolve their capacity needs for at least a decade; however, within just 2 years, the jail had surpassed capacity again. Despite increasing bed space by remodeling and by adding a trailer jail annex, the continuation of bad policies, such as criminalizing poverty by rounding up and arresting unhoused people, led to what a 2017 needs assessment called “unsustainable” jail growth, which forced another $150 million 1,252-bed expansion in 2020.

Similarly, Lubbock County, Texas, spent $94.5 million in taxpayer bonds building a new 1,512-bed jail, which opened in 2010. Though intended to meet their capacity needs well into the future, jail population growth has persisted, leading county officials to spend a million dollars of the county’s budget incarcerating people in other counties. But there are other obvious solutions to Lubbock’s over-incarceration problem. Lubbock County mostly uses its jail to house people who haven’t been convicted of a crime; in January of 2024, 76% of the jail’s population were people being held pretrial, and fully one tenth of the people in the jail were being held pretrial for a misdemeanor. Pretrial detention practices play a huge part in the county’s perpetual capacity problems. County officials have nevertheless repeatedly looked to build their way out of these issues instead of implementing sustainable policy changes like ending pretrial detention for misdemeanors and reexamining alternatives to cash bond. As a result, Lubbock’s sheriff recently proposed a 996-bed expansion projected to cost taxpayers another $464 million, bringing the total to more than half a billion dollars, with no substantial policy change in sight.

bar graph showing costs of jail construction in Greene and Lubbock counties

While capacity arguments are often used to justify jail expansion, the truth is counties cannot build their way out of capacity issues without addressing the policies that created them in the first place. Despite claims that jail construction is driven by need, in many instances, the reverse is actually true. As Greene County’s assessment noted, “The dramatic increase in bookings is probably due [in part to] the increased availability of beds with the opening of the new jail.Simply put, if you build it, they will fill it.


Box office bombs (the “contemporary” argument)

Often, the promise of a shiny new jail with updated facilities leads to over-budget projects that sap taxpayer money far into the future. These projects, focused on building jails with “all the bells and whistles,” often collide with soaring construction costs. This can sometimes lead to facilities that are too costly to staff and maintain or even too costly to complete. As a result, projects can wind up half-finished or sitting empty for years at taxpayer expense.

Despite voters rejecting an $88 million bond initiative to fund a new jail in 2004, by 2008, Thurston County, Washington, accepted a bid for “the cutting-edge $45 million Accountability and Restitution Center (ARC) jail complex,” a building some have referred to as the “Taj Mahal design of Jail, Law and Justice Centers.” Finished in 2010, the jail sat empty for 6 years, costing the taxpayers roughly $430,000 annually, largely because the county did not budget for the additional staff needed to run it. Just three years later, the county would approve a $19-25 million jail expansion featuring a 40-bed “‘flex unit’ with cells that could be used in different ways as needs change” plus a shell for future expansion.

In Wayne County, Michigan, construction began on a “state-of-the-art” $300 million, 2,192-bed jail in 2011. The design included innovations that some claimed would bolster security, largely by further restricting movement. By 2013, the project was already $91 million over budget due to ballooning construction costs, forcing it to be abandoned and leading to the indictment of three Wayne County Officials for lying about the project’s cost. The jail sat incomplete and empty for years, costing the taxpayers around $1 million per month just to maintain.

Though not a jail, Thomson Prison in Illinois shares a similar story. Built in 2001 for $145 million, this new high-tech maximum-security prison sat empty at the taxpayers’ expense for 11 years due to state budgetary restraints impacting the ability to staff it before finally being sold to the federal government4 in 2012.

As these examples illustrate, officials often claim that a new “modern” jail will solve a jurisdiction’s problems. While the drumbeat here is safety or security, these projects almost invariably also include millions for expanding bed space to incarcerate more people. Moreover, while huge amounts of money are poured into building bigger, better, and newer buildings, the massive costs associated with staffing and operating these monstrosities, and the fact that existing prisons and jails around the country are dangerously understaffed as it is, can result in costly projects that can’t be staffed even if they are completed. These monuments to incarceration can sit empty for years, draining the public coffer.


Promises, promises (the “compassionate” argument)

Increasingly, counties cite the need to be compliant with ADA requirements or the idea that jails should be providers of mental health services or substance use treatment as reasons to expand. This “compassionate” argument repackages incarceration as care and can mean taking money away from health services in the community. This is particularly problematic when jails fail to deliver on these promises, as they regularly do.

McLean County, Illinois’ 2015 jail needs assessment called for more space for housing people with mental health needs. In response, the county spent $43.5 million to build a new jail with a “Community Crisis Stabilization Facility” in 2017. A few short years later, however, people with mental health concerns are once again being held in the booking area (a practice the new jail was supposed to end) and are being held at jails outside of the county, unable to “benefit” from McLean’s new $43.5 million carceral alternative to community-based crisis intervention.

Broome County, New York, similarly promised to provide better medical care as part of its argument to secure $6.8 million to expand its jail in 2015. 5 But once the new jail was built, there was little effort to deliver on this promise: Broome County maintained the same dubious medical provider, Correctional Medical Care (CMC), that had been sued multiple times for medical negligence 6 from 2010 all the way until 2022. Many of these claims involved jail deaths. CMC’s practices were so bad that the New York State Commission on Corrections’ Medical Review Board chastised the company for “egregious lapses in medical care” in their 2018 “Problematic Jails” report. More incarcerated people died in the five years after ground broke on jail expansion than in the five years before, during CMC’s contract tenure with Broome County. 7

People interested in improving the lives of incarcerated people are often swayed by “compassionate” arguments. But they should never lose sight of the fact that incarceration itself is inherently harmful to physical and mental health, leaving many with a PTSD-like condition called Post-Incarceration Syndrome, which can even trigger drug use. At best, jail as a place of treatment is ineffectual. At worst, these bad policies drain funding from community-based support systems that can address challenges before a crisis results in incarceration. Jail is a place of trauma, not healing.


Change — The other “C”

While these three C’s are often used to argue for jail construction, advocates can and should confront their local officials with real solutions for reducing jail populations and providing mental health and substance use care.

  • Reduce pretrial detention: Nationwide, 83% of people in jails have not been convicted of a crime. One of the most effective ways to bring down jail populations is to reform the way court systems treat people accused of crimes. Policies ranging from citation and release to ending cash-based pretrial detention can massively reduce jail capacity needs without raising taxes, incarcerating more people, or jeopardizing public safety.
  • Focus on community-based care: Jail was never intended to be a provider of social services. As the Justice LA Coalition successfully argued in opposition to a $2 billion mental health-focused jail in 2019, true compassion comes not in the trauma of a cell but in funding for community-based care and support for those with addiction issues or mental health needs.
  • Reduce total jail capacity: If jail construction absolutely cannot be avoided (as in the case of places under court orders to update or build a new facility), it should be contained so that it does not expand the capacity of the current jail to incarcerate or invest in new carceral technologies. If there’s no way to avoid building a new jail, advocates can at least work on making sure the new one doesn’t expand the number of people behind bars.



Though common arguments in favor of jail expansion are compelling at first glance, investing in jail construction is not a solution to social problems but rather doubling down on policies that caused these problems to begin with that can burden a community for decades to come. Ultimately, many of these arguments can be answered by asking pointed questions, revising policies, and being responsive to the community’s actual needs.



  1. Congress passed the American Relief Plan Act (ARPA) in 2021. Though this act allotted $350B to help state and local governments recover from the economic impacts of the COVID-19 pandemic, many jurisdictions have used this money to expand and build new jails and prisons.  ↩

  2. As Vera notes in their exhaustive 2019 report, which identifies similar arguments and touches on many of the issues here, jurisdictions may also be motivated by “financial incentives.” This can mean increasing jail size to keep from renting bed space from other places or even increasing their ability to rent out space themselves as an extra revenue stream. We did not include it among our three main arguments (though it could certainly be considered a fourth “C” — for “cash”) because this is not typically the main argument for a new facility, but rather an additional supporting argument.  ↩

  3. Needs assessments are studies that look at current jail populations and attempt to forecast future jail populations.  ↩

  4. After the sale, Thomson Prison became one of the most violent and deadly prisons under the auspices of the BOP, with a culture of abuse so ingrained that guards tried to have a warden assassinated when he attempted to intervene.  ↩

  5. Broome County also relied upon a capacity argument, citing a 2014 needs assessment which projected 710 beds to be needed by 2028. However, by 2023, with the sole exception of Lewis County, which increased from 31 to 32 people, every single county across New York state saw a decrease in its average daily jail population. Broome County itself saw the jail population decrease by more than 34% over that span, illustrating how places often overestimate future capacity needs and underestimate the potential of changing policies to decrease jail populations.  ↩

  6. As well as for allegedly forcing its employees to falsify incarcerated people’s medical records.  ↩

  7. CMC held Broome County’s contract to provide medical services to the jail from 2010 until 2022. There were 4 custody deaths in Broome County jail between 2011 and April of 2015, when ground broke on the county’s jail expansion project. From May 2015 until 2020, there were reported 5 custody deaths at Broome County Jail.  ↩

Read the footnotes

Oregon is in danger of repealing one of the most important criminal legal system reforms of recent years: here’s why the state should keep Measure 110 intact.

by Sarah Staudt, February 15, 2024

In 2020, Oregon adopted Measure 110, a transformational change to the way drug possession and addiction were treated by the criminal legal system. Instead of incarceration and criminal charges, Measure 110 ensured that possession of small amounts of drugs was responded to with a ticket and referral to services. Since its passage, more than $302 million has been invested in addiction services and social supports, and more people are going to treatment.

Despite the successes of Measure 110, however, Oregon legislators are threatening to recriminalize drug use in Oregon. The bill, HB 4002-1, would make possession of small amounts of controlled substances a criminal offense once again, reversing a revolutionary reform and returning to the failed policies of the War on Drugs.

Reversing Measure 110 would be harmful to thousands of Oregonians, and would be a failure of leadership. Legislators claim they are responding to an increase in homelessness and public drug use — but recriminalization will only make those problems worse. Instead of resurrecting policies that didn’t work the first time, the Oregon Legislature should invest in proven strategies to prevent and treat addiction, reduce homelessness, and improve public safety, and should invest in treatment and housing, not incarceration.


Measure 110 is working

There’s no evidence Measure 110 is responsible for crime, overdoses, homelessness, or increased drug use. Although COVID-19 made assessing the impact of Measure 110 more difficult, early indicators suggest that the law is achieving its goals: reducing arrests while increasing access to care. Jails and incarceration often strand people without treatment, but the referrals to community-based care created by Measure 110 offer a lasting pathway to health and better quality of life. Here are just some of the successes of Measure 110:

  • The Oregon Health Authority reported a 298% increase in people seeking screening for substance use disorders.
  • More than 370,000 naloxone doses have been distributed since 2022, and community organizations report more than 7,500 opioid overdose reversals since 2020.
  • Although overdose rates have increased around the country as more fentanyl has entered the drug supply, Oregon’s increase in overdoses has been similar to other states’ and actually less than neighboring Washington’s. A peer-reviewed study comparing overdose rates in Oregon with the rest of the country after the law went into effect found no link between Measure 110 and increased overdose rates.
  • There is no evidence that drug use rates in Oregon have increased. A cross-sectional survey of people who use drugs across eight counties in Oregon found that most had been using drugs for years; only 1.5% reported having started after Measure 110 went into effect.
  • There has been no increase in 911 calls in Oregon cities after Measure 110.
  • Measure 110 saves Oregonians millions. Oregon is expected to save $37 million between 2023-2025 if Measure 110 continues. This is because it costs up to $35,217 to arrest, adjudicate, incarcerate, and supervise a person taken into custody for a drug misdemeanor — and upwards of $60,000 for a felony. In contrast, treatment costs an average of $9,000 per person. The money saved by Measure 110 goes directly to state funding for addiction and recovery services.
  • There is no evidence that Measure 110 was associated with a rise in crime. In fact, crime in Oregon was 14% lower in 2023 than it was in 2020.
Graph showing reported crimes in Oregon 2020-2023

All of this has been achieved while Measure 110 also served one of its primary intentions — reducing total arrests. Arrests for possession of a controlled substance dropped 67% after Measure 110 went into effect, meaning that thousands of people have avoided the lifelong barriers caused by arrests and convictions. And although there has been an increase in homelessness in the past few years in Oregon, implementation of Measure 110 also lines up with the lifting of eviction protections in place during the pandemic — a much more likely culprit for increased numbers of people without shelter.


Recriminalization will make Oregon’s problems worse

Recriminalization of drug possession will put Oregon on a path backwards and will damage the lives and livelihoods of its residents — particularly of Black Oregonians.

First, recriminalization will overburden already stretched systems, increasing harm and costing lives. Oregon’s criminal legal system, particularly its public defense system, is massively underfunded and understaffed. Recriminalization will overwhelm the courts with thousands of new cases that they do not have the capacity to adjudicate. This is likely to strand more people in Oregon’s jails — which are already seeing record deaths among people in custody. Jails are particularly dangerous places for the people with substance use disorders who will be most affected by recriminalization; increasing jail populations is likely to exacerbate these existing health problems, costing more lives.

The effects of recriminalization will fall hardest on Black Oregonians, increasing racial disparities. Unfortunately, even under Measure 110, it is clear that Black Oregonians with substance use disorders are much more heavily policed than their white counterparts. Black people have been disproportionately issued citations under Measure 110 — 4.6% of citations went to Black people, who are only 2.3% of Oregon’s population. Portland’s police department has the fifth highest arrest rate disparities in the country, arresting Black people at a rate 4.3 times that of white people. And while proponents of recriminalization claim that diversion programs will still be available, the reality is that Black people are more often excluded from diversion programs than white people are, making them more likely to remain trapped in the criminal legal system.


Forced treatment isn’t the solution

The recriminalization bill focuses on forced substance use treatment as a “solution” to substance use disorders. But forced treatment is a false promise. There are many reasons why people with substance use disorders don’t seek treatment, including problems with lack of access, cost, excessive requirements for getting into and staying in treatment, and having more pressing concerns like needing food, employment, housing, or medical treatment. Addressing those underlying problems — and increasing the availability of voluntary treatment overall — is the best way to get more people into the treatment they need.

Forced treatment is also not effective. A systematic review of studies found no evidence that compelling people to attend substance use treatment leads to improved outcomes. Instead, it can cause harm: people who are forced into treatment can end up at higher risk of overdose. Because forced treatment imposes sudden, enforced abstinence, it can lower people’s drug tolerance — leading to a higher risk of overdose if they relapse. A recent analysis of mandatory abstinence treatment programs found that people who were mandated to attend these programs were 3.7 times more likely to have experienced an overdose in the past 6-12 months.


Oregon should invest in proven solutions

There’s no denying that Oregon, like the rest of the country, is experiencing serious problems with homelessness, substance use disorders, and overdose. To address these problems, Oregon should invest in effective, compassionate solutions, instead of defaulting to criminalization.

The first thing Oregon should do is invest in more housing, focusing on proven housing-first strategies, and strategies that reduce evictions. Investing in housing does not just solve homelessness — it also addresses substance use itself. Evictions are associated with higher rates of death from drug use, and higher rates of public drug use. Making sure people can have and keep housing improves their quality of life, and the quality of life of all Oregonians.

Oregon should also invest in more voluntary treatment beds. Detox centers in Portland are turning away half the people who come to them because of lack of capacity. Overall, Oregon has only a 50% treatment capacity to meet the need. Mandating more treatment won’t fix this problem — indeed, it will make the treatment shortage worse. Instead, Oregon needs to heavily invest in more voluntary drug treatment and crisis centers to meet the needs of its residents.



Oregon is poised to undo one of the most important criminal legal system improvements of the 21st century. Instead of reverting to the mistakes of the past, Oregon lawmakers should act with courage to pursue solutions that work, and reject the pressure to try to arrest their way out of substance use and homelessness. Measure 110 is working to make Oregonians safer and healthier; Oregon’s leaders should stand up for their state’s innovative and successful reforms, and avoid the tired rhetoric and policies of mass criminalization.

We called on the Federal Trade Commission to strengthen its proposed rule to explicitly prohibit some of the most abusive junk fees.

by Mike Wessler, February 12, 2024

In 2023, with considerable fanfare, President Biden announced a new initiative to crack down on “junk fees” — those extra, often hidden charges that seem to do nothing besides jack up the price of a product or service while providing no extra benefit. At the time, we, along with 28 other groups, called on the President to put the junk fees harming incarcerated people and their families at the top of the list of things to be addressed.

As part of this initiative, the Federal Trade Commission recently released a new proposed rule to crack down on junk fees and asked for public comment. Last week, in collaboration with the National Consumer Law Center and our former general counsel, Stephen Raher, we submitted a 27-page comment explaining that these proposed rules will provide more transparency about junk fees but little actual relief for people entangled in the criminal legal system and their families.


Junk fees in the criminal legal system

Junk fees are pervasive in all aspects of the criminal legal system, from arrest through after one’s release from detention. These harmful fees are particularly insidious because they’re generally unavoidable, and people in the system often have lower incomes and are less able to absorb these costs.

We’ve written at length about these fees in the past, but some of the most common and troubling ones are related to:

  • Money transfers: Increasingly, prisons and jails are shifting costs for necessities, like food and hygiene products, onto the people they incarcerate. As a result, having access to money is increasingly important for people behind bars. However, because of the paltry wages incarcerated people earn, their loved ones often have to send them funds. When they do so, the private company the facility contracts with to handle these money transfers usually keeps a cut of the money for themselves. Sometimes that cut is more than 20%.
  • Release cards: When a person is released, the prison or jail that confined them often puts any money from their trust account — wages, support from family, or funds they had in their possession when arrested — on a prepaid debit card. These cards are riddled with fees including for using the card, not using the card, or seeking customer service.
  • Communication services: E-messaging and tablets have become nearly ubiquitous in prisons and jails nationwide. They’ve opened new opportunities for incarcerated people to stay in touch with loved ones and maintain connections to the outside world through books, music, and other services. They’ve also created a new way for the companies behind these services to sap funds from incarcerated people through opaque “infrastructure” or “maintenance” fees and bulk pricing schemes.


The proposed rule is good for transparency but not enough for incarcerated people

The rule proposed by the Federal Trade Commission primarily focuses on making these junk fees more transparent — rather than prohibiting them altogether. For those on the outside, they’ll no longer be surprised by hidden fees when they’re in the final stages of making a purchase. Companies will have to put these unavoidable extra costs front and center. This will make the true cost of a product or service easier to know up front, empowering consumers to make more informed decisions.

Unfortunately, transparency about these fees isn’t enough for incarcerated people and their families. While it is true they’ll be less likely to be surprised by hidden costs, under this rule, they still usually won’t have any way to avoid unfair fees. Unlike on the outside, people in prison and jail can’t use a different business if they think a company is loading a service with excessive fees. For money transfers, release cards, e-messages, and more, they are usually stuck with one company that the prison or jail contracts with to provide the service. Because incarcerated people are literally captive consumers who can’t take their business elsewhere, this type of transparency isn’t likely to reduce costs and abusive practices in any real way.


Giving the rule more teeth

The rule, as written, does not go far enough to protect incarcerated people and their loved ones from junk fees. Transparency isn’t enough; stronger enforcement and explicit prohibitions on certain practices are needed, too.

The good news is that the rule isn’t yet final. The Federal Trade Commission is currently considering comments like ours as they prepare their final rule, so it still has a chance to strengthen it to protect people in prisons and jails.

Here’s how we told the Commission they could strengthen the rule:

  • Explicitly prohibit fees that provide little or no value to consumers: If a company charges a fee, there should be some benefit to incarcerated people. If not, it is simply a mechanism to sap money from them unfairly. While the rule currently relies on transparency to pressure companies to move away from these useless fees, more is needed.
  • Ban junk fees that exceed the cost of providing a good or service: Many companies charge fees that significantly exceed their costs to provide the service. For example, some release card companies charge a $9.95 fee to close an account. This is far more than it costs the company to close the account, indicating it is just a way to get a little bit more money out of incarcerated people while they still can.

A new report from the Vera Institute of Justice finds that the number of people subjected to electronic monitoring in the U.S. increased fivefold between 2005 and 2021 and nearly tenfold by 2022.

by Emmett Sanders, February 8, 2024

In their new report, People on Electronic Monitoring, the Vera Institute of Justice completes a massive undertaking. Collecting data from all 50 states, more than 800 counties, and the federal court and immigration systems, this report offers the most comprehensive picture of the U.S.’s electronic monitoring population to date. Ultimately, their findings provide concrete evidence to support what activists and impacted people have long argued: Electronic Monitoring (EM) is not an effective way to reduce reliance on incarceration but is “often a crucial component of highly punitive, deeply entrenched criminal legal systems.” In other words, Electronic Monitoring is a form of incarceration, not an alternative to incarceration.

Vera’s data collection reveals that EM usage has increased significantly in all sectors since 2005, culminating in more than half a million adults under surveillance nationwide by either the criminal legal system or the immigration system.

Graph showing rise in use of EM in the criminal legal system, 2015-2021

EM usage in the criminal legal system is up significantly, with more than 150,000 people on EM at any given time in state and local monitoring systems. At the state and local level, EM is most heavily used in the Midwest, at a rate of 65 per 100,000 residents, more than a third higher than in the South, the next highest region of use, where it is used at a rate of 41 per 100,000 people. However, every region across the country has seen an increase in EM usage.

Immigration accounts for roughly two-thirds of the total EM population, with around 360,000 people monitored under ICE’s Intensive Supervision Appearance Program (ISAP). Much of this astounding increase occurred between 2021, when ICE monitored around 103,000 people, and 2022. This expansion is particularly concerning as ISAP’s EM conditions can be dehumanizing and physically and mentally taxing for people seeking asylum.

Bar graph showing rise in use of EM by ICE, 2015-2022

Overall, this increased usage has translated to big business for the 11 EM companies that control roughly 99% of the EM industry. Vera notes this translated to more than $1.2B spent on EM in 2023 alone. In many jurisdictions, EM programs are “primarily sustained by user fees,” which can range upward of $900 per month and shift the burden of funding to those least positioned to pay it – low-income individuals and families. As we have noted, however, this massive investment in digital incarceration has not replaced our reliance on more traditional “brick and mortar” incarceration in jails but rather serves as an expansion of overall state surveillance. Vera’s researchers note that an increase in EM usage can often accompany an increase in jail population, as in the case of Detroit, Michigan, which saw a 41 percent increase in EM use coincide with a 60% increase in jail population. Indeed, the report finds that “the majority of local jurisdictions with a high EM rate also had a high jail incarceration rate.”

While some EM expansion can be traced to COVID-19 pandemic response, Vera also notes that evolving technology is a large driver of increasing EM usage. The report points out that the use of GPS devices 1 increased thirtyfold between 2005 and 2021. Advancing technology has also increased the use of programs like cell phone apps to track and monitor people, which has impacted EM populations while raising new areas of concern, such as the potential for highly personal data to be shared and compromised.

Vera finds that other problems with EM usage include limited public accountability due to the “patchwork nature” of EM programs, which operate at multiple often tangled levels; this makes it difficult to track where public jurisdiction ends and private control begins, limiting programmatic accountability to the public and elected officials. Minimal oversight, heavy privatization, and lack of regulation also enable potential corruption, and some claim opens the door for abuses and extortion.

Ultimately, Vera finds that, though EM is touted as an alternative to incarceration, this massively expanding technology “acts as another form of incarceration, relies on technology rife with defects, shifts costs onto people with low incomes, and creates harm for directly impacted people and their loved ones.” We hope advocates can use Vera’s groundbreaking research to oppose the expansion of EM in their own communities.



  1. GPS monitoring devices use global positioning satellite technology to continually track and monitor movement. This is opposed to Radio Frequency devices which are generally connected to a centrally-based monitoring unit and send an alert when someone leaves its proximity.  ↩

We analyzed prison policies for all 50 states and the federal prison system, and found that 16 prison systems actually impose fines — in addition to other punishments — when someone violates a prison rule. We explain why disciplinary fines and fees are bad policy, putting excessive hardship on incarcerated people and their loved ones.

by Leah Wang, February 7, 2024

In yet another example of how the criminal legal system extracts wealth from the poorest families, at least one-third of prison systems nationwide charge fines as a punishment for a rule violation. Prison administrators claim that imposing disciplinary fines, along with other punishments, helps to maintain order and reduce violence in correctional facilities. They also argue that the fines simulate outside-of-prison processes for dealing with misconduct, such as parking tickets.

Though rule violations1 and their corresponding sanctions are a common feature of incarceration, disciplinary fines and fees aren’t the way to create safe environments where people can prepare for their release. On the contrary, when prisons impose these charges and subsequently help themselves to the funds in people’s prison accounts, incarcerated people are often left with little to no money for purchasing essential items and services that the prison doesn’t provide.2 As a result, their mental and physical health suffers, creating a more volatile environment inside. Loved ones also pay the price of these fines — often literally, as a primary source of financial support.

Like medical “co-pays” and exceedingly low wages in prison, disciplinary fines and fees are little more than a means to exploit incarcerated people. Whether they’re tiered fines or flat “administrative” fees, they are an undue burden; prison is already one big financial sanction for those who are already on the lowest rungs of the economic ladder. By focusing on punitive measures that deprive people further, prisons miss the mark on what actually makes prisons safer — providing opportunity rather than taking it away. We hope advocates and policymakers will understand how disciplinary fees, which exist alongside other excessive punishments, undermine the rehabilitative goals of corrections, the safety of people inside, and the odds of success during reentry.

  • chart showing the number of days required to work at a prison job to pay off the maximum disciplinary fine imposed in 16 prison systems
  • chart showing the number of days required to work at a prison job to pay off the lowest-tier disciplinary fine in 16 prison systems

In the 16 prison systems we found that impose fines for disciplinary violations, it would take anywhere from a full day of work to multiple years to pay off a single fine.

Disciplinary fines and fees are used in about one-third of all prison systems

To determine just how common disciplinary fines and fees are, we combed through the publicly available policies on prison disciplinary procedures in each state and the federal prison system. We also looked at policies related to prison-controlled bank accounts (often called “inmate trust accounts”) and related fees, as well as practices relating to collecting debts. We found that at least 16 prison systems charge incarcerated people disciplinary fines or fees:

Prison disciplinary fines and fees

We examined prison discipline and “inmate account” policies in all 50 states and the federal Bureau of Prisons to determine where fines or fees are charged to incarcerated people who are found guilty of (or accept responsibility for) a rule violation. Sixteen jurisdictions either impose fines as a sanction, or charge a questionable “administrative” fee for processing a violation.
Source Jurisdiction Range of fines Violation types How is money collected?
AR 403 Procedures for Inmate Rule Violations Alabama No more than $500 Having a social networking account
AR 403 Procedures for Inmate Rule Violations Alabama $25.00 “processing fee” Possession of cell phone
803 Inmate Disciplinary Procedure Arizona $500 to $2000 First, second, or third violations of types (02A, 03B, 05A, 16A, AND 19A) which include assault on staff, unauthorized access, having a communication device
5270.09 Inmate Discipline Program Federal (BOP) Up to $50, or 12.5% of trust fund balance Low severity level
Federal (BOP) Up to $100, or 25% of trust fund balance Moderate severity level offense
Federal (BOP) Up to $300, or 50% of trust fund balance High severity level offense
Federal (BOP) Up to $500, or 75% of trust fund balance Greatest severity level offense
Authorized Disciplinary Sanctions List Georgia $100 “administrative processing fee” Charge D-3(j), having a cell phone or similar device allowing communication with the outside Account is temporarily frozen pending the outcome of disciplinary proceedings; if person is found guilty, account is permanently frozen for the amount ordered and a check for the amount ordered is written if enough funds exist.
No account deductions are made below an account balance of $10.
201.04 Inmate Accounts Georgia $4 fee Any infraction
Major Discipline Report Procedures Iowa $5 fee In addition to any other medical costs assessed, the fee is imposed for trips to the Univ. of Iowa Hospitals and Clinics (UIHC) or a local hospital caused by an incarcerated individual’s self-injurious behavior, willful neglect, etc.
Conduct and Penalties Kansas Up to $10 Class III (least serious) offense
Kansas Up to $15 Class II offense
Kansas Up to $20 Class I (most serious) offense
20.1 Prisoner Discipline Maine At least $5 Any violation (Class A – C)
Maine Up to $100 Class A (most serious) violation, specifically for assault on a non-incarcerated person, “deadly instrument,” gang-related or substance-related violations
3.4.1 Institutional Discipline Montana $1 to $50 Certain major violations (codes specified in policy)
Montana $1 to $30 First, second, or third instances of certain major violations (codes specified in policy)
Montana Unspecified “fine” A minor violation
4932 Standards Behavior & Allowances New York $5 “surcharge” Any infraction
B.0200 Offender Disciplinary Procedures North Carolina $10 “administrative fee” Any class of offense A-D
Facility Handbook (2021) North Dakota “Financial sanctions” including fees and/or fines Level III (most serious) sanction Funds may be withdrawn without a signature to meet financial obligations; all available money in spending account will be applied. If the obligation is greater than what’s available in account, future pay and money received by outside sources are garnished.
If unable to pay debts owed at release from custody, the debt will remain active should individual return to custody.
Major Violation Grid Oregon $25 to $200 Major violations (specific codes listed in policy)
502.02 Disciplinary Punishment Guidelines Tennessee $3 Class C offense (only assessed if three Class C offenses occur in a 30-day period) Funds are withdrawn from account anytime balance exceeds zero. Individual with confirmed rule violation will be required to fill out a form authorizing withdrawal. Presumably, funds are withdrawn even if they refuse to sign the form, but policy does not state this explicitly.
Tennessee $4 Class B offense
Tennessee $5 Class A offense
FD01 Inmate Discipline Utah $20 to $300 Class B violation
Utah $150 to $600 Class A violation
861.1 Discipline Virginia Up to $15 Category II (less serious) offense
Virginia Up to $25 Category I (more serious) offense
3.101 Code of Inmate Discipline Wyoming Up to $5 Minor violation
Wyoming up to $10 General or major violation

Every jurisdiction that charges disciplinary fines or fees does so a bit differently, but taken together, a few findings stand out:

  • Disciplinary fines and fees are common. In 16 prison systems, we found policies referencing fines and/or fees related to confirmed disciplinary violations (where someone is found guilty or pleads guilty). In many cases, the severity level3 of the rule violation determines the amount of the fine, but in other cases there is a “flat” charge for any violation. In either case, charging fines means that some of the most innocuous behaviors — like making “loud or disturbing noises” in Kansas prisons — have a price tag.
  • Most prison systems impose disciplinary fines between $5 and $25, but some charge hundreds or thousands of dollars. Incarcerated people in five jurisdictions (Alabama, Arizona, Maine, Oregon, Utah, and the federal prison system) can face triple-digit fines for a single disciplinary charge: For example, Arizona’s fines start at a shocking $500 for the first instance of what they consider the most serious violations4 and go as high as $2,000. Utah state prisons impose up to $600 for a more serious “A Code” offense, and up to $300 for a “B code” offense — which can be for things like “horseplay,” or any conduct deemed “disorderly.”
  • Some prison systems insidiously present these charges as “administrative” fees. We found five prison systems that charge “administrative” or “processing” fees for disciplinary violations. We include them here because they’re just as punitive and unaffordable as fines. In Georgia, for example, each guilty finding for a disciplinary violation comes with a $4 fee, unless the violation is for having a cell phone or similar communication device, a harshly-punished violation in several states;5 that specific act will set someone back a $100 “administrative processing fee.” People incarcerated in North Carolina prisons, who are charged a $10 administrative fee per disciplinary infraction, collectively lost $313,000 in fees to the state’s general fund in Fiscal Year 2022 alone.6


For incarcerated people, even “small” fines and fees can be huge setbacks

Do local jails have disciplinary fines too?

Yes, at least some of them do

Although we didn’t look specifically at jail discipline policies, we’re aware of two jail systems where disciplinary violations lead to fines: In Lancaster County, Pa., records we obtained through a Freedom of Information Act request show the enormous and arbitrary range of fines collected from people locked up in the jail. Accounts showed deductions from $0.01 to over $160.

screenshot of Lancaster, PA jail records showing misconduct fees collected in 2022 A snippet of Lancaster, Pa. jail records categorized as “Misconduct Fees” levied on people incarcerated there throughout 2022.

Meanwhile, New York City jails impose a harsh $25 fee on all disciplinary tickets, a policy unearthed by a 2015 New Republic article focused on the backwards practice of charging people for being thrown in solitary confinement.

Outside of prison, a $5 or $10 fine might seem pretty inconsequential, or even surprisingly low. (Parking tickets, for example, are generally much more costly.) But to a typical person behind bars, a loss like this represents a serious change in financial circumstances; the value of money is simply different in prison. Prisons charge people for necessities like food and hygiene products, communication with loved ones, health care, and in some cases, “room and board.”7 And prison wages hardly cover these expenses, averaging less than one dollar per hour in most jurisdictions:

  • Someone in Kansas, for example, would have to work for over two months in the lowest-paying prison job to pay off a $20 disciplinary fine, the maximum charged there.8
  • In Virginia, where any rule violation comes with a flat $15 fine, it could take 33 to 55 hours (or one to two weeks) of work to cover that cost. Of course, this math only applies to the roughly 50% of the prison population with jobs; those earning no wages have to rely on financial support from loved ones. 9

It’s also important to note that prison disciplinary and labor systems already disadvantage some more than others: Black and Indigenous people, women, and those with disabilities10 tend to face prison discipline disproportionately. And research shows racial, gender and disability disparities in how prisons assign jobs. Considering disciplinary fines in this context, it makes little economic or administrative sense to continue picking these pockets.


Almost all prison systems also order restitution, but some states’ policies are excessive and inappropriate

We also found that nearly all prison systems have a policy about facility-owed restitution, or the reimbursement of costs incurred for damaged property or medical expenses that result from a rule violation. We often think of restitution as court-ordered reimbursement to civilian crime victims — and many incarcerated people face this type of debt, too — but in a prison setting, restitution serves as little more than a running tab for the state.

Many prison restitution policies require that the amount being sought reflects the actual cost of an item or service, like the requirement to present an “itemized list of expenses and/or items damaged and costs to repair or replace” in Georgia state prisons. Such efforts to justify restitution amounts might sound reasonable to an outsider, but these “reimbursements” are to state agencies for largely budgeted costs.11 For example, some prison systems pursue restitution for things like staff overtime, vehicle mileage, and workers’ compensation costs.12 13 And in a shameless move only the carceral system could devise, four states (Iowa, Georgia, Nevada, and New Mexico) seek reimbursement for medical charges related to self-harm and/or suicide. The financial cost of events that happen in prisons, which are inherently violent and mentally damaging places, shouldn’t be billed to incarcerated people and their families.


Prison systems often help themselves to the money they charge incarcerated people

In order to collect monetary sanctions, prisons will garnish (deduct) a portion — in some cases, up to 100% — of money credited to an incarcerated person’s account, whether it’s their hard-earned wages, money transfers from loved ones, or economic stimulus payments.14

Fines, fees, and restitution

Learn about the differences between these financial obligations

The fines, fees, and restitution charged to incarcerated people for breaking prison rules are often rationalized by correctional agencies as parallels to the legal-financial obligations ordered by courts outside of prisons. Indeed, courts routinely impose these costs for punitive and revenue-generating purposes. But just what are prison disciplinary systems trying to imitate when they impose these costs on incarcerated people?

Fines refer to monetary punishments. Most instances of breaking the law — from felonies to misdemeanors to municipal code violations — come with some sort of fine handed down from a court system. Like other forms of punishment, fines are meant to deter people from future rule-breaking activity.

Fees are additional costs imposed on people going through legal proceedings that are meant to raise revenue. Fees shift some of the cost of court services directly to impacted people, particularly where governments are wary of raising taxes to fund basic services such as those found in a judicial branch.

Judges are supposed to impose fines and fees after considering individuals’ ability to pay, but policy and discretion vary widely. And because they’re handed down indiscriminately, many people can’t actually pay them off, especially once they’ve accumulated. The cost of pursuing collection on these legal-financial obligations, which includes jailing people for their failure to pay, has proven to be an incredibly inefficient way for governments to raise money.

Restitution, in contrast to fines and fees, is intended to compensate victims of a crime for related loss or injury. Courts will collect restitution from people whose punishment includes it, and distribute it to known victims. Like fines and fees, restitution amounts may be unaffordable to people who owe them — especially once someone enters prison. Research suggests that only a small portion of restitution is ever collected.

A common deduction rate we found in our survey of state policies was 50%: Seven states (Iowa, Kentucky, Minnesota, Oklahoma, Pennsylvania, California, and Rhode Island) deduct up to half of incoming deposits and apply it to a debt. That means, for example, that someone with a disciplinary fine debt in Pennsylvania who earns 50 cents per hour (near the maximum prison wage there) would only receive 25 cents per hour. Some of these states further complicate matters by just taking everything: Rhode Island prisons will begin collection on a debt by taking as much of the amount owed as possible, leaving an account balance of $10, and then begin garnishing 50% of subsequent deposits to cover the rest. This means that money sent in by a loved one may never actually reach its intended recipient, but instead go straight into the prison’s pocket.

A few other states’ policies (Oregon, Texas, and Wisconsin) suggest that 100% of funds are garnished (sometimes referred to as a “freeze” on an account) to cover a debt, without leaving any amount to cover basic necessities. And while nearly all prison systems claim to provide assistance to people who are extremely poor, or “indigent,” we found that prison indigence policies are too narrowly defined and limited to be very helpful.

Prison debt collection policies can also apply post-incarceration: Some prisons hold debts like disciplinary fines or facility-owed restitution on file in case of a future return to custody. And a few cases we found, corrections departments turn into collection agents — or at least threaten to do so: In Iowa prisons, for example, if someone who owes has signed an agreement, staff may pursue debts in small claims court or by seeking to garnish their state tax refunds. In Wisconsin, transfer or release “shall not terminate the inmate’s obligation to pay ordered restitution.” It’s hard to know whether prison systems actually enforce these collection policies, but the possibility looms large over people who work hard to be truly free of prison once they’re released.


Disciplinary fines and fees are just one part of an illegitimate ‘kangaroo court’ system in prisons

Disciplinary fines and fees are only a microcosm of a much larger problem with how prisons treat behaviors and “discipline.” The comprehensiveness of prison policies on rules, sanctions, collecting debts, and disciplinary hearings might suggest that prisons offer incarcerated people transparency and due process when they’re accused of a rule violation, but evidence suggests the opposite.

In fact, incarcerated people are not entitled to many aspects of due process when it comes to disciplinary hearings, like calling witnesses and obtaining counsel. Further, disciplinary hearings in prisons only require “some evidence” (in other words, any small amount of evidence) of misconduct, a much lower standard of proof than courts require in outside legal decision-making.15 This arbitrary and shadowy adjudication process only leads to hurt and mistrust; take this scenario, based on a case observed in a 2015 study of prison discipline:

A male prisoner tosses a plastic cup half-full of liquid toward a prison officer, nearly hitting her…. [T]he result, almost inevitably, will be cellular confinement (segregation) and a loss of privileges of some sort… During this time, the prisoner’s anger at the officer will potentially increase, exacerbated by the painful conditions of solitary lockdown. When the prisoner returns, he or she will make life difficult for the officer and the officer may in turn make life difficult for the prisoner. The cycle continues.

The legitimacy and credibility of prison disciplinary hearings — or lack thereof — matter because the stakes can be high. Being found guilty of a more serious violation, in particular, can change the course of someone’s incarceration drastically, through solitary confinement, the loss of earned good time, restricted access to necessary commissary items, and the potential impact on parole decisions. Prison systems should consider how this “kangaroo court” system of disciplinary hearings unfairly and harshly punishes people for behaviors that, as mounting evidence suggests, are often brought about by the prison environment itself. When harm does occur inside, restorative justice practices present an alternative way to problem-solve, and could lead to a more trusting, safer climate.


Disciplinary fines and fees in prisons are not “accountability”

While they may imitate the broader “justice” system in some ways, disciplinary fines and fees arguably do nothing to promote a sense of accountability or safety inside of prisons. The current approach to handling prison misconduct, in which fines play just a supporting role, is infantilizing and creates bleak conditions like solitary confinement and deprivation, which in turn lead to violence and mental health problems. To make prisons safer for everyone, administrators should overhaul disciplinary processes and provide more access to and opportunities for family contact, education, healthcare, treatment, and repairing harm.

By pulling back the curtain on murky aspects of everyday prison life like discipline, we hope prison administrators and policymakers will see that incarcerated people are starved for opportunities to achieve economic, professional, and personal growth, and that disciplinary sanctions undermine these goals.



  1. There are many terms for alleged rule violations in prisons: tickets, writeups, infractions, violations, disciplinary reports (or D-reports), bookings, etc. Once they are confirmed violations, through a guilty finding or plea, the corresponding punishments are typically called sanctions, or sometimes penalties.  ↩

  2. The punishments for rule violations in prison typically include other losses that put goods and services out of reach, such as being banned from commissary, visitation and/or phone use, and recreation for a period of time, removal from programs, solitary confinement, or confinement to one’s own cell. In states that do impose disciplinary fines, a combination of other sanctions is often handed down at the same time.  ↩

  3. Many prison systems have categorized rule violations in some hierarchy ranging from least to most serious, using letters, numbers, or words like “major” and “minor.” Our disciplinary policies resource page explains these categories where information is available.  ↩

  4. Arizona’s steep prison disciplinary fines are imposed for a strange subset of violations, which include assaults on staff (whether resulting in injury or not), arson, possession of a communication device or a component of one, and tampering with a lock or door. They’re not imposed for other instances of grave misconduct like assault on other incarcerated people, sexual assault, or possessing a weapon.  ↩

  5. Though having a cell phone is essential for navigating the world today, many state prisons treat possession of contraband cell phones and similar devices as one of the most serious types of misconduct, represented in some cases (like Georgia) by a heavy fine. Alabama and Arizona also come down hard on people with cell phones, at least when it comes to disciplinary fines and fees; we haven’t done a 50-state scan of states that treat this violation harshly with non-monetary sanctions.  ↩

  6. This figure came from the response to a public records request we filed with the North Carolina Department of Adult Corrections in October 2023.  ↩

  7. According to analysis from the Brennan Center, as of 2015, at least 43 states authorize room and board (or “pay-to-stay”) fees to incarcerated people.  ↩

  8. According to the ACLU’s report Captive Labor: Exploitation of Incarcerated Workers, the lowest wage paid to incarcerated workers in Kansas’ state prison system is just $0.45 per day; a $20 fine, then, would take 44 work days to pay off, assuming wages aren’t garnished for other reasons.  ↩

  9. In 2020, there were 31,838 people in Virginia state prisons, and approximately 16,000 of them were “wage-earning offenders,” earning $0.27 to $0.45 per hour in non-industry jobs.  ↩

  10. A report from Human Rights Watch explains in detail how incarcerated people with mental disabilities have several aspects of prison environments working against them when it comes to behavior and discipline. Many correctional officers are not trained to recognize signs of mental illness and may find certain behaviors frightening or threatening; as a result, people with mental illness are punished for disciplinary violations at higher rates than general prison populations. And when those people are placed in solitary confinement for disciplinary or other reasons, they are less likely to receive treatment and more likely to engage in misconduct (or perceived misconduct) in the future. Regarding economic status, though not covered in our own report Prisons of Poverty, people with disabilities are much more likely to live in poverty or face economic hardship compared to the average American.  ↩

  11. For example, the Connecticut Department of Corrections budgets included “workers’ compensation claims” as a line item until it was consolidated with other state agencies’ claims, and the Department is required to report to the legislature its “estimated costs associated with staffing deficiencies [and] overtime costs.” In another example, Arizona’s Department of Corrections budget includes “mileage – private vehicle” in several sections. See footnote 11 for similar items in Iowa’s budget.  ↩

  12. These are just a few things included in Iowa’s far-reaching policy on prison-owed restitution. Notably, travel, workers’ compensation reimbursement, and “state vehicle operation” appear throughout the department’s budget as budgeted expenditures.  ↩

  13. While it’s easy to assume that correctional employees hurt on the job are typically injured by incarcerated people (which might justify these restitution policies to some), this may not be the case. An Inspector General report investigating the New York prison system found that “from 2015 through 2021, on average, 66 percent of all workers’ compensation injury claims did not involve contact with an incarcerated person. That is, year after year, on average, the number of claimed injuries not involving contact with an incarcerated person is almost double those injury claims that do.”  ↩

  14. Prison debt collection policies exist even in jurisdictions that don’t charge disciplinary fines, because they collect other fees not related to discipline, and collect debt on behalf of other agencies, like court systems.  ↩

  15. The standard of proof used in legal decision-making is called a “preponderance of the evidence,” which means proving that something is more likely than not to be true.  ↩

See all footnotes

by Sarah Staudt, January 31, 2024

Last week, the Prison Policy Initiative filed an Amicus Curae brief in a suit filed by Rights Behind Bars, who are representing Demmerick Brown, a man incarcerated in Virginia’s Red Onion State Prison.1 In August of 2020, Mr. Brown went to the prison barbershop to get a haircut and a shave. It was the height of the pandemic, and Mr. Brown was wearing a protective mask as required. Naturally, the barber asked him to remove his mask so he could shave his face. There were guards around; none of them said anything. But the next day, he received a disciplinary ticket fining him $15 for failing to wear a mask.

This truly Kafka-esque series of events led Mr. Brown to ask for a hearing to dispute the fine. When he was denied, he sued. But the District Court found that he wasn’t entitled to a hearing. The prison could take his money without ever having to justify themselves. The court said that this was because $15 was too small an amount of money to trigger constitutional protections.

What the court failed to understand is that $15, while just being the cost of a sandwich outside prison walls, represents dozens or hundreds of hours of labor inside, and people rely on the money they make behind bars to fill their basic needs and contact their families. In our brief, we drew on our years of work studying the economics of life behind bars to help the fourth circuit understand that $15 inside doesn’t mean the same thing as $15 does on the outside. In our brief, we show that:

  • In Virginia, the minimum wage in prison is $0.27 an hour, which means it takes 33 hours of work to earn $15. A person earning Virginia minimum wage outside of prison who worked 33 hours would earn $396. In other Fourth Circuit states, the wages are even lower: In North Carolina, $15 inside is the equivalent of 375 hours worked – on the outside, that would be $2,719.
  • Taking away money from someone’s account inside means taking away their ability to pay for the basic things they need to live with dignity. In Virginia, as in prisons around the country, incarcerated people rely on commissary to supplement their diets because prison diets don’t provide the necessary calories and nutrients people need, and to buy hygiene items. $15 represents multiple weeks’ worth of soap, deodorant, and other essentials. Losing $15 could also stop people from seeking health care: it represents 3 or more visits to the doctor in states that charge medical co-pays.
  • $15 represents hours of communication with loved ones, since almost all incarcerated people must pay in order to communicate with their loved ones on the outside. High communication costs put immense pressure on incarcerated people and their families to save every penny possible to put towards paying for the basic human right of communicating with the people that they love. This makes the money charged in arbitrary disciplinary fines and fees uniquely valuable for incarcerated people.

We hope that the Fourth Circuit will make the right decision in this case to give due process rights to incarcerated people when their money is taken away from them. It is one important step in recognizing the lived experiences of people behind bars, and their constitutional rights.


  1. The Prison Policy Initiative is grateful to Covington and Burling LLP, who assisted us with drafting and filing the amicus brief.  ↩

Despite the common refrain that jails and prisons are "de facto treatment facilities," most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare.

by Emily Widra, January 30, 2024

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.1 But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be – and can never function as – healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. 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.


Substance use disorders in jails and prisons far outpace rates in the general public

The prevalence of substance use disorders at every level of the criminal legal system points to an unavoidable fact: despite the deep unpopularity of the War on Drugs, our society still responds to substance use (and related crimes) as individual failures requiring punishment, rather than as a public health problem — and it’s not working.

Nationally, approximately 8% of people met the criteria for substance use disorders in 2019,2 but such disorders are far more common among people who are arrested (41%) and people incarcerated in federal (32%) or state prisons (49%). This means that approximately three million people with substance use disorders are locked up in any given year: at least two million people with substance use disorders are arrested annually and about half a million people in state and federal prisons meet the criteria for such disorders at the time of their admission.3

Bar chart showing that the percent of people in prison and/or those arrested in the past year with substance use disorders is much higher than the national population. 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.

It’s difficult to see more granular trends in the data – such as the type of substances involved or the health outcomes related to these disorders – but we have some clues from nationally representative jail, prison, and mortality data.

Jails. In 2019, only 64% of all people admitted to jail each month were screened for opioid use disorder, but of those people, about 15% met the criteria for opioid use disorder. It’s likely that in jails where not everyone is screened on admission, people have similarly high rates of opioid use disorder, given the widespread extent of the opioid crisis.4 Because we cannot see the full picture through screenings alone, it’s useful to look at mortality data as well. More than 15% of jail deaths in 2019 were attributed to drug or alcohol intoxication (overdose), a significant increase from 4% in 2000 and 7% in 2009.

Prisons. Many people who use drugs and need care are arrested and jailed over and over until, finally, one event lands them in prison. We estimate that more than 578,000 people (47%) in state and federal prisons in 2022 had a substance use disorder in the year prior to their admission.5 And while the mortality rates for drug and alcohol intoxication are lower in prisons than in jails, almost 7% of all deaths in state prisons in 2019 were due to drug or alcohol intoxication, compared to less than 2% in 2009. Meanwhile, in 2019, only 4% of all adult deaths in the U.S. were attributed to drugs or alcohol.6 All of these measures point to much higher rates of substance use disorders in prisons and jails compared to the total population.


Treatment options for opioid use disorder are scarce in jails and prisons

Medication-assisted treatment (MAT) for opioid use disorder

A brief primer on MAT

Medication-assisted treatment (MAT) is widely described in medical literature as the gold standard of care for opioid use disorder. Sometimes referred to as medications for opioid use disorder (MOUD) and opioid substitution treatment (OST), MAT requires the combination of professional counseling or therapy with prescribed medications.7 There are three medications that can be used for MAT for opioid use disorder, and the FDA states that anyone seeking such treatment “should be offered access to all three options”:8

  • Buprenorphine: Partially activates the same brain receptors as opioids, preventing withdrawal symptoms and cravings, but additional doses can have a limited effect (known as the ‘ceiling effect’). An individual is supposed to be in “mild to moderate withdrawal” when beginning treatment. The popular medication Suboxone combines buprenorphine and naltrexone, and can also be highly effective in treating opioid use disorder.
  • Methadone: Fully activates opioid receptors, just like other opioids. It is only available in hospital settings or at federally certified opioid treatment programs.
  • Naltrexone (also known as Vivitrol): Blocks other opioids from having any effect. Importantly, individuals are required to complete withdrawal and remain abstinent for one to two weeks before starting treatment.

A significant body of research shows that MAT is more effective than other treatments – including medications alone or counseling alone – in reducing opioid use, increasing treatment participation, reducing injection drug use, and decreasing transmission of HIV and hepatitis C outside of carceral settings.

The limited – but growing – research regarding MAT in jails and prisons shows similar results. For example, the Rhode Island Department of Corrections became the first state correctional system to institute a comprehensive opioid-treatment program that involved offering MAT with all three medications to incarcerated people in 2016. After the first year of this program, statewide overdose deaths dropped 12% and post-incarceration overdose deaths dropped 61%.

Not every person who uses substances needs or wants treatment, but it is imperative that evidence-based, quality healthcare options be made available for those who do — regardless of their involvement in the criminal legal system. For people with opioid use disorder, this can include psychosocial treatment (including counseling), medication-assisted treatment (MAT), and self-help groups. In correctional settings, the availability of such options pales in comparison to the level of need.

Jails. Of the nearly 3,000 local jails across the country, less than two-thirds (63%) screen people for opioid use disorder when they are admitted. Only half (54%) provide medications for people experiencing withdrawal. An even smaller percentage of jails — 41% — provide behavioral or psychological treatment, and 29% provide education about overdose. In fact, the most effective treatment — medication-assisted treatment (MAT) — is the least commonly provided: just 24% of jails continue MAT for people already engaged in treatment while only 19% initiate MAT for those who are not.

bar chart showing the percent of jails with each kind of opioid use disorder treatment available

Quality medical interventions for people that use opioids are especially urgent in jails because of the rapid and acute risk of withdrawal. Over half a million people9 entering jails across the country each year are experiencing or at risk of this life-threatening medical event.10 Importantly, the percentage of people admitted to jail who receive treatment for opioid withdrawal varies significantly between states, which likely reflects differences in both opioid use and availability of treatment.11 For instance, over 15% of people admitted to jails in June 2019 in four states – New Hampshire, New Jersey, Pennsylvania, and Washington – were treated for opioid withdrawal, compared to less than 1% of admissions in seven other states.12

Prisons. Most state and federal prisons (81%) offered some “drug or alcohol dependency, counseling, or awareness programs” in 2019, but among people in state prisons with a substance use disorder, only 10% had received clinical treatment in the form of a residential treatment program, professional counseling, detoxification unit, or MAT.13 This suggests the “drug or alcohol programming” available in prison facilities is primarily self-help or peer-based.14

bar chart showing that half of people in state prison had substance use disorder, but only 10% received clinical treatment

Unfortunately, MAT is the least common treatment in prisons: only 1% of people with substance use disorders in state and federal prisons reported receiving MAT at any point since their admission. In North Carolina, for example, over 9,000 people admitted to state prisons in Fiscal Year 2021-22 (78% of everyone screened during intake) met the criteria for needing intermediate or long-term substance use treatment, but the clinical director of the Alcoholism and Chemical Dependency Programs reports that they are only able to treat 3,000 cases each year. The state launched a MAT pilot program in 2021, and as of January 2024, only 213 enrollees have received medications prior to release from prison.

Even when correctional facilities do offer necessary treatments, their one-size-fits-all approaches can be limiting, overlooking the specific needs of different populations. For example, women in prison are often expected to participate in treatment programs originally designed for men. Advocates report that because “there are fewer incarcerated women than men… there are fewer programs available for women serving time. If support is available, it is not always effective.”


Ineffective and punitive responses to drug use in correctional facilities

Correctional facilities’ preference for punishment does very little to actually reduce drug use and overdoses. It’s not just that officials fail to provide evidence-based healthcare–they actively ignore evidence that punitive drug interdiction policies like mail scanning and visitation restrictions are ineffective and counterproductive, too.

Mail scanning. Prisons and jails are increasingly diverting incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients.15 Administrators claim this practice will stem the flow of contraband — primarily, drugs — into their facilities, but there is no solid evidence to date that mail scanning has this intended effect.16 In addition to the emotional consequences and needless exploitation inherent in mail scanning, these practices result in long mail delays and the disruption of correspondence-based nonprofits, education programs, and ministries.

There are numerous examples of mail scanning failing to produce any meaningful reduction in drug use or overdoses in prisons across the country:

  • Pennsylvania: After instituting mail scanning, the percentage of incoming mail that the Department of Corrections reported as “tainted” only decreased by 0.1% over the course of a year. As of 2023, the rate of positive drug tests in Pennsylvania prisons is now almost 3 times higher than it was before the policy was introduced.
  • Missouri: In Missouri state prisons, the average number of overdoses per month increased from 34 to 39 after mail scanning was introduced in July 2022.
  • Virginia: Every year since the Virginia Department of Corrections began mail scanning in 2017, there have been more overdoses than in the year prior to instituting mail scanning (even while the state’s incarcerated population declined during the COVID-19 pandemic).
  • New Mexico: After a mail scanning policy went into effect in February 2022, a report on the Corrections Department from the state’s Legislative Finance Committee highlighted a nearly two-percentage point increase in positive random drug test results from Fiscal Year 2021 to Fiscal Year 2022 – almost doubling the positivity rate. This essentially “reverse[d] three years of reduced drug use” in the prison system, and the report authors noted that the mail scanning policy “does not appear to have reduced drug use” during the study period.

In fact, several prison systems seem to actively ignore the lack of evidence supporting mail scanning as a drug interdiction effort. The federal Bureau of Prisons has increasingly adopted mail scanning policies, reportedly following a letter from Pennsylvania congressional representatives “urg[ing] the BOP to follow Pennsylvania’s lead,” and such policies are now in place in almost every federal facility.

Visitation restrictions. There are a variety of policies in jails and prisons that restrict visitation and administrators often defend them as anti-contraband (i.e., anti-drug) initiatives. For example, in Virginia, some of these policies have included requiring visitors to change into state-issued jumpsuits without pockets, limiting approved visitor lists to 10 people, millimeter wave body scanners, and banning feminine hygiene products for visitors.17 In Washington, the latest state budget proposal betrays the state’s biases in responding to drugs in prisons: it includes $4.7 million for MAT in prisons, which is only about half of the funding it would take to meet the needs of people in custody. At the same time, the Department requested $6.5 million for body scanner staff and operations, and the budget proposal offers even more than they asked for: $7.9 million. Incarcerated people routinely face humiliating search practices – including strip searches – following visitation, but considering the prevalence of drug use inside prisons and jails, these tactics do not appear to have made a meaningful impact.

Doubling down on failure: misunderstanding drug use inside

Prison and jail administrators often cite contraband medication as the primary reason for restricting access to MAT. While “diversion” of medications18 like buprenorphine can occur in prisons and jails, there are simple, proven diversion prevention strategies that any facility offering MAT could institute, whether they are correctional facilities or community health centers. 19 We know that generally, “illicitly obtained” buprenorphine is most often used to self-treat opioid withdrawal when treatment is not available or has been denied. While there is much concern regarding diversion, an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013 revealed no overdose or death reports mentioning buprenorphine or Suboxone, consistent with previous research on New York City non-incarcerated overdose fatalities. It is clear that – just like in the community – the proven benefits of MAT outweigh the perceived risks of diversion.

Consistent with their punitive approach to drugs, many corrections officials enforce serious sanctions for positive drug tests, medication diversion, and non-fatal overdoses. Sanctions for drug use in prisons can include solitary confinement, denied visitation, 20 delayed parole hearings, loss of “good time,” reduced access to programming, facility transfers, reclassification, and fines.21 There is, unsurprisingly, no evidence that these disciplinary policies actually reduce drug use behind bars. However, it’s easy to imagine how such approaches create a dynamic in which people hide their drug use and engage in riskier, deadlier behaviors. The culture fostered by punishment does not actually address drug use — it just makes it more dangerous.

Public health research has long been clear that punishing addiction does not actually help address substance use disorders, and there is no reason that it would work in jails and prisons. People who need mental health and substance use treatment are better served in voluntary, non-carceral, clinical treatment settings.


Overdose interventions and deaths

Jail and prison administrators are right to be concerned about drug overdoses behind bars. Overdose deaths are preventable and substance use disorders are treatable, but in 2019, more than 400 people in jails and prisons died of drug or alcohol intoxication.22

Jails. In response to overdoses, some local jails have increased the availability of naloxone (an opioid overdose reversal medication also known by the brand name “Narcan”). In Maine, correctional staff in some facilities now carry naloxone on their belts rather than in a locked first aid kit. In New York City, all housing areas are required to have naloxone available.

Some jails have gone a step further: in San Diego County, the staff and people in custody have access to naloxone throughout the jail facility. In Los Angeles County jails and the Louisville Metro Department of Corrections jail in Kentucky, staff and incarcerated people have access to naloxone and receive training on how to administer it. The benefits of this dual approach cannot be overstated: in a single day in Los Angeles, two overdoses were reversed when incarcerated people administered naloxone and, over the course of a year, incarcerated people in the Louisville jail dispensed naloxone successfully to at least 24 people who had overdosed in the facility.

Prisons. The rates of death from drug or alcohol intoxication may be lower in prisons than in local jails, but they are still a serious – and growing – problem: from 2001 to 2019, the percentage of state prison deaths attributed to drug and alcohol intoxication increased from 1.2% to 6.6%. A September 2022 directive from the New York State Department of Corrections and Community Supervision requires correctional staff to administer naloxone as well as provide first aid and CPR as necessary, and includes a requirement for each facility to institute a procedure to make naloxone more accessible to staff. In Oklahoma, the State Department of Mental Health and Substance Abuse Services reported that naloxone is available “on every unit” in state prisons, and future initiatives where “every CO will have Narcan on them” are expected as of May 2023.

Making naloxone physically present in correctional facilities is a good first step, but it’s not enough. In April 2023, reporting from Filter detailed that, while correctional staff in Washington Department of Corrections facilities have access to naloxone, many are not properly trained. When interviewed, two correctional officers – incorrectly – told the reporter that “Narcan…doesn’t work on fentanyl.” The Filter story cites at least one Department of Corrections report of an overdose scene where staff were unable to locate, and were unsure how to administer, naloxone. As long as the criminal legal system continues to target and incarcerate people who use drugs, screening new admissions for opioid use, training staff and incarcerated people to use naloxone, and making naloxone available throughout facilities are the least these institutions could do.


Making reentry safer for people who use drugs

There are two crucial interventions that every jail and prison should offer upon release: free access to naloxone and appropriate, timely referrals to community-based MAT for people who received treatment while incarcerated. Yet less than one-third of local jails and far fewer prison systems offer either.

Naloxone. While naloxone is relatively inexpensive and easy to administer, in 2019, only 25% of jails provided naloxone to people being released. However, in the years following the 2019 survey, media coverage reveals that many jails – including those in Louisville, Kentucky, and Kershaw County, South Carolina – have added free naloxone vending machines near the facility exits.

In 2020, the California Department of Corrections and Rehabilitation began providing free naloxone kits and training to people preparing for release from prison. By July 2022, 95% of people released from California state prisons had received the kits and training. A handful of other prison systems have publicized similar efforts to provide naloxone on release but with little accompanying data on the success of their projects. For example, the Indiana Department of Corrections announced an initiative in 2020 to offer people released from prison the “opportunity to leave with Naloxone,” but there is little evidence available on the outcome of this program. Meanwhile, some states remain hostile to this very simple and effective intervention. In 2023, Oklahoma Governor Kevin Stitt vetoed a bill that would allow prisons to give Narcan to people upon release.23

Community referrals for MAT. In 2019, only 28% of local jails provided a community link to MAT on release. Jails need to partner with their local public health agencies to identify community-based MAT providers for people returning home. For people who started or continued MAT while in jail, uninterrupted access to that treatment is vital. These efforts must include support in navigating the often-complicated health insurance landscape. In 2019, 27% of people on parole and 23% of people who had been arrested at least once in the past year reported having no health insurance coverage. People leaving jail or prison who need MAT must have primary care providers and Medicaid, Medicare, or other health insurance set up prior to release.



It is clear that the criminal legal system is not suited to the task of acting as the de facto mental health and substance abuse treatment provider many claim it to be. There are at least a few areas ripe for intervention to improve this situation: reducing the number of people with substance use disorders entering the criminal legal system, instituting evidence-based practices in correctional facilities that actually reduce the risk of drug overdoses, and expanding treatment availability inside jails, prisons, and during reentry.

Prevent people with substance use disorders from entering the criminal legal system:

  • Address the social determinants of health and substance use. In order to reduce the flow of people with substance use disorders into jails and prisons, communities must prioritize housing, physical and mental healthcare, employment, and education. Increased funding for community-based drug treatment and other social services are crucial.
  • Decriminalize drug use. People should not be confined in jails or sentenced to incarceration for drug possession, drug checking supplies, or drug paraphernalia. Harm reduction efforts like clean syringe exchanges, overdose prevention centers, safety-focused education programs, and regulating the drug supply will more effectively – and humanely – reduce overdose risk among people who use drugs.

Institute effective, nonpunitive responses to drug use behind bars:

  • Screen for all substance use and mental health disorders. All admissions to prisons and jails should be screened for active substance use, substance use disorders, and mental health conditions.
  • Avoid punishments and restrictions as responses to drug use, particularly when there is no evidence that they meaningfully impact consumption and overdose. Reflexively restricting meaningful contact and relationships under the guise of drug prevention is especially harmful and counterproductive. This inevitably requires divesting from ineffective practices like mail scanning, canine drug detection, and electronic scanning equipment for visitation. There should be more focus on treatment than punishment for incarcerated people who struggle with addiction.
  • Invest in comprehensive MAT in jails and prisons including professional, clinical counseling, the availability of all MAT drugs, referrals to community providers upon release, and support reestablishing health insurance during reentry.

Expand treatment availability for substance use disorders:

  • Treatment participation must be voluntary in jail, prison, and the community. When treatment is involuntary or coerced, when people are re-incarcerated for positive drug tests, or when they’re disqualified from participation in diversion programs based on their history of substance use, treatment is less effective. Instead, as the Drug Policy Alliance recommends, treatment should always be voluntary, involve clinicians rather than law enforcement, incorporate positive incentives, and use gold-standard medication and other practices.
  • Treatment should begin as soon as possible. Any kind of treatment for substance use disorders and mental health conditions cannot be limited to the weeks or months leading up to release from jail or prison.
  • Treatment requires informed consent. Healthcare providers should seek out informed consent from all individuals who are eligible for MAT and they must have access to all treatment options.

Substance use disorder treatment — as handed down by the criminal legal system — is not working as advertised. Jails and prisons are not healthcare institutions and their mandate for punishment makes patient-centered care impossible and health outcomes worse. Instead, the United States desperately needs healthcare infrastructure that can support people who use drugs outside of carceral settings. While corrections officials request further investments under the guise of treatment, the stigma, isolation, and punishment that helped foment the present crisis persist. Our communities cannot punish their way out of public health crises, but as long as policymakers insist on incarcerating people with substance use disorders, they need to at least provide evidence-based care to those who want and need it.



  1. In December 2023, for example, the Arapahoe County (Colorado) Sheriff justified an expected $46 million jail expansion project by claiming the jail needs more space to provide healthcare services to confined people: “The needs of the people that we are in custody of have changed,” Brown said. “We’re not warehousing individuals anymore. We’re treating them.”  ↩

  2. The National Survey of Drug Use and Health (NSDUH) surveys a nationally representative sample of people aged 12 and older. For the purposes of this analysis, we chose to use data collected in the 2019 NSDUH rather than the more recent 2020 survey results. In the 2020 NSDUH report, the authors cautioned that “care must be taken when attempting to disentangle the effects on estimates due to real changes in the population (e.g., the coronavirus disease 2019 [COVID-19] pandemic and other events) from the effects of these methodological changes.” Because of this warning, we elected to use 2019 NSDUH so that our results could be better compared over time and to the available criminal legal system data, which is primarily from 2016-2019. Researchers updating our work in the future, however, should note one important methodological change occurred in 2020: the 2020 survey was the first year in which substance use disorders were evaluated using criteria defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V), as opposed to the 4th edition (DSM-IV).  ↩

  3. In 2016, 47% of people in state and federal prisons met the criteria for substance use disorders prior to admission. Applying this percentage to the 2022 combined state and federal prison population of 1,230,100, we estimate that at least 578,147 people met substance use disorder criteria prior to admission.  ↩

  4. In small jails (holding less than 50 people), only 36% of admissions were screened, but they still had 15% of people screening positive. In jails with 50-250 people, about half (51%) of admissions were screened, and the percentage screening positive was higher: 19-22%. The largest jail jurisdictions (holding 1,000+ people) had higher screening rates but lower rates of positive screenings, which suggests that some smaller jurisdictions may only be screening people whom they suspected of having an opioid use disorder.  ↩

  5. In 2016, 47% of people in state and federal prison met the criteria for substance use disorders in the year prior to admission. Applying this percentage to the 2022 prison population of 1,230,100, we estimate that 578,147 people met substance use disorder criteria in the year prior to admission.  ↩

  6. Centers for Disease Control and Prevention, National Center for Health Statistics. National Vital Statistics System, Mortality 2018-2021 on CDC WONDER Online Database, released in 2021. Data are from the Multiple Cause of Death Files, 2018-2021, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. Query criteria included ages 18 and older, drug- or alcohol-induced causes of death, and data for 2019.  ↩

  7. Other substance use disorders can be addressed with MAT. For example, there are medications for alcohol use disorder (MAUD) that include acamprosate, disulfiram, and naltrexone. However, for the purposes of this briefing, we are focused on MAT for opioid use disorder (also known as MOUD) as there is little to no information about MAUD in prisons and jails.  ↩

  8. A 2019 study based on interviews with state prison representatives from 21 states found that only 7% of prisons in these states offered all three medications. The most commonly provided was naltrexone, which was provided in 36% of prisons in the survey. While any MAT is better than no treatment, there is some evidence that people who receive buprenorphine have significantly lower risk of opioid overdoses than those who receive naltrexone.  ↩

  9. This estimate is calculated based on the 5% of all jail admissions in June 2019 that were treated for opioid withdrawal with medications and the 894,030 jail admissions in June 2019. This is inevitably an undercount, as not all people admitted to jail in active withdrawal are provided with medical care. If 5% of the people admitted to jail in a single month were treated for withdrawal, that means that at least 536,400 people entering jails in 2019 met the criteria for medical intervention for opioid withdrawal.  ↩

  10. Deaths associated with alcohol or drug withdrawal (which can be lethal, especially among people with multiple health concerns) are not included in the “drug or alcohol intoxication” deaths reported in the Bureau of Justice Statistics mortality data, but rather these deaths are most often included in the counts of deaths attributed to “illness” or “other,” according to the Bureau of Justice Assistance. In an extensive analysis of Bureau of Justice Statistics’ mortality data from 2000-2013, researchers found that drug and alcohol related deaths in jails were likely significantly underreported and that there were “roughly 50% more deaths involving drugs or alcohol than previously estimated,” including at least 87 withdrawal-related jail deaths.  ↩

  11. While no region or state in the nation is immune to the opioid crisis, we do know that there is significant variation in opioid use, overdose rates, and access to treatment across the country.  ↩

  12. Kansas, Nebraska, North Dakota, South Dakota, Alaska, Idaho, Wyoming treated less than 1% of statewide jail admissions for opioid withdrawal in June 2019.  ↩

  13. In the Survey of Prison Inmates, 2016, these treatment options are defined as follows:

    • Detoxification: An alcohol or drug detoxification unit where prisoners spent up to 72 hours to “dry out.”
    • Residential program: An alcohol or drug program in which prisoners lived in a special facility or unit designated for treatment.
    • Counseling and therapy: Counseling sessions with a trained professional while not living in a special facility or unit.
    • Self-help group: Includes peer counseling programs, such as Alcoholics Anonymous, Cocaine Anonymous, or Narcotics Anonymous, and other forms of self-help groups.
    • Education program: An education or awareness program “explaining problems with alcohol or drugs in any setting.”
    • Medication-assisted treatment: A maintenance drug, such as methadone, disulfiram, or naltrexone, that is used to “cut a high or make you sick.”


  14. There is nothing inherently wrong with offering self-help, 12-step, or peer-counseling programming in prisons. It is only problematic when facilities only offer these types of interventions to people eligible for MAT and/or other clinical treatments  ↩

  15. Paper mail is often the cheapest and most-used form of communication for people in prison and their loved ones.  ↩

  16. This practice of mail scanning, either performed at the facility or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones. Among other jurisdictions, administrators in the federal Bureau of Prisons, the Pennsylvania Department of Corrections, the New York City Department of Correction, the Virginia Department of Corrections, and the Missouri Department of Corrections claimed that mail scanning policies were instituted to reduce drug contraband.  ↩

  17. In 2018, the Virginia Department of Corrections banned visitors from wearing tampons or menstrual cups because of “many instances” of drug smuggling. The Department never reported a count of these instances, and eventually reversed this unjustified and invasive policy in 2019 following significant pushback.  ↩

  18. Drug diversion, according to the Colorado Department of Public Health & Environment, occurs when a medication is taken for use by someone other than whom it is prescribed or for an indication other than what is prescribed.  ↩

  19. In addition, there are other significant avenues through which drugs flow into prisons – including via correctional officers. The federal Bureau of Prisons reported on staff bringing drugs into facilities as early as 2003. More recently, there have been substantiated reports of correctional officers bringing drugs into an Ohio jail, a federal facility in Atlanta, and New York City jails. A 2018 report from NYC’s Department of Investigation revealed that an undercover investigator smuggled in scalpels, marijuana, and Suboxone into the Manhattan and Brooklyn Detention Centers, passing through “all screening checkpoints at both facilities without being manually searched,” even after triggering multiple metal detection devices. A 2023 report from the Office of the Inspector General in California reported that while all California Department of Corrections and Rehabilitation (CDCR) staff and contractors are supposed to be searched, these searches are often inadequate. The report also cites an agreement between the CDCR and the California Correctional Peace Officers Association that stipulates “enhanced inspections will not include a hands-on, physical search of an employee’s person or the use of canines.”  ↩

  20. In-person visitation is one of the most important factors for maintaining family and community support through incarceration and setting up individuals for successful reentry.  ↩

  21. All prison and jail systems have disciplinary responses to drug use. Some examples can be found in the 2022 Office of the Inspector General’s report, Investigation of New York State Department of Corrections and Community Supervision Incarcerated Individual Drug Testing Program, Kyle Ruggeri’s 2019 reporting on his time spent in solitary confinement while in withdrawal in New York State prison, and recent reporting on a class-action lawsuit against the Washington Department of Corrections. For links to prison system discipline policies for state prisons, the District of Columbia Department of Corrections, and the federal Bureau of Prisons, see our Disciplinary Policies collection.  ↩

  22. The most recent iteration of the Bureau of Justice Statistics’ Mortality in Local Jails and State and Federal Prisons series covers deaths occurring in 2019. This is the most recent national data on cause of death in correctional facilities.  ↩

  23. At the same time, Governor Stitt also vetoed a bill authorizing hospitals to give Narcan to people with opioid use disorders upon discharge.  ↩

See the footnotes

Unfortunately, this year saw the return of many types of failed criminal legal system policies that would be more at home in 1993 than 2023. Here are some arguments to make if these zombie laws come to your state.

by Sarah Staudt, January 24, 2024

For the first time in over a decade, prison and jail populations increased in 2022, and state prison systems and the federal Bureau of Prisons are predicting future growth. Although there are many reasons for this – including courts returning to normal operations after the height of the pandemic – at least some of this expected rise will be the direct result of regressive policy choices made by state legislatures.

The politics we have seen surrounding crime and punishment are eerily reminiscent of 1990s “tough on crime” rhetoric: in Florida, Governor Ron DeSantis suggested that his political opponents are “pro-crime,” throughout the country; while Democrats attacked parole reform, reform-minded prosecutors, and bail reform in their 2022 mid-term election challenges. This rhetoric contradicts the facts: crime across the nation remains at record low levels, including a likely dramatic decrease in violent crime in 2023.

bar graph showing decline in crime rates from 2018 to 2023

As our partner organizations around the country decry this resurrection of bad policy, we looked at recent legislation passed around the country to identify trends in this most recent crop of throwback laws. In this briefing, we present some of the most common kinds of tough-on-crime laws passed in 20231 and the best arguments against them, so that advocates can be ready if these trends appear in their state.


Renewing the War on Drugs

In recent years, substantial progress has been made to address and begin to reverse the harmful policies from the War on Drugs. The authors of these policies, passed between the 1970s and 2010s, created draconian mandatory minimum sentencing laws, established a racist sentencing disparity between crack and powder cocaine, and led to the incarceration of millions of people. Despite spending billions each year to enforce these policies, the drug war has not reduced drug use rates, drug prices have dropped, and overdose deaths have risen. Based on our experience with the Drug War, there is no reason to think that arrest and incarceration can stop drug use or trade.

Fentanyl now permeates the United States drug market, leading to higher risks of overdose. Experts and advocates consistently urge a public health approach to fentanyl, but, unfortunately, too many states are treating it as “Crack 2.0“, pursuing the same failed policies that sent millions of people to prison. This includes penalty enhancements for both possession and distribution of fentanyl and increased penalties for homicide charges leveled against people who provide drugs to a person who subsequently dies of an accidental overdose – often called “drug-induced homicide” laws. These laws are often levied against people using drugs together, who may or may not know that fentanyl is present in what they are using.

This year, a number of states passed laws resurrecting failed war on drugs policies:

  • Alabama (HB 1) created mandatory minimums for possession of fentanyl. This bill was especially concerning because it passed the legislature unanimously, suggesting that there was no meaningful debate about whether the policy would be effective.
  • Iowa (HB 595) increased penalties for both possession and distribution of fentanyl.
  • Wisconsin (AB 68) increased penalties to 60 years for reckless homicide involving delivering fatal drugs. The law would apply to people using drugs together.

Arizona and the federal government have also come close to passing retrograde drug legislation. Arizona’s legislature passed a presumptive 10 year mandatory minimum sentence for possession of as little as 2 milligrams of fentanyl; that bill was vetoed by the governor. At the federal level, the HALT Act would trigger new and increased mandatory minimum sentences for fentanyl; it has passed the House and currently sits in the Senate.

Fighting back against zombie drug policies

Advocates facing regressive drug policy changes have the benefit of decades of research showing that these policies do not work, have never worked, and cause massive harm to communities.

First, advocates can rely on the mountain of evidence showing mandatory minimums and longer prison terms do not reduce crime, drug use, or overdoses. Families Against Mandatory Minimums has compiled a wealth of resources on sentencing reform, including a handy guide to arguments against mandatory minimums. They argue that mandatory minimums create racially biased outcomes – Black people are 65% more likely to face mandatory minimum charges. Advocates can also point to the ways that lengthening prison sentences will expand prison populations in the long run.

Second, advocates can educate lawmakers on how carceral approaches fail to address the fentanyl crisis. In particular, many lawmakers believe that jails and prisons will provide treatment for opioid users – in fact, incarceration increases overdose risk, and few people receive treatment inside. Policymakers also believe they can target drug dealers with harsh penalties without harming people who use drugs. In fact, drug users and drug suppliers are most often the same people; sentencing enhancements are unlikely to affect so-called drug “kingpins” and will more likely target users and low-level sellers. Drug Policy Alliance has a great video on this subject.

Lastly, advocates can provide lawmakers with alternatives to these carceral policies. Kneejerk penalty increases are often the product of a desire to “do something” about the very real devastation that fentanyl and overdoses are wreaking in communities across the country. But doing things differently during this overdose crisis means taking a public health approach to drug use. Drug Policy Alliance has created a comprehensive toolkit on such health-centered approaches, including increasing access to treatment and harm reduction approaches like safe consumption sites and fentanyl test strips.


Criminalizing the homeless

The United States has a long history of responding to the problem of homelessness with criminalization and punishment. Homelessness has risen in recent years, driven by economic factors like increased housing costs, as well as by the COVID-19 pandemic.

As concern about homelessness rises, some jurisdictions are trying to criminalize their way out of a problem that can only be addressed with social services and housing.

  • In Georgia (SB 62), the state legislature passed a law requiring that municipalities enforce anti-camping laws.
  • Alabama (HB 24) expanded the definition of loitering to encompass more unhoused people.

Arizona also came disturbingly close to passing similar policies. A vetoed bill in Arizona (SB 1024) would have created an anti-camping law, and two other bills proposed further criminalized homeless encampments but failed.

There are dozens of ways that policymakers have targeted people experiencing homelessness. In 2021, the National Homelessness Law Center published a guide to laws around the country criminalizing homelessness; they note that as of 2021, almost every state has at least one law restricting behaviors associated with the experience of being homeless.

Protecting unhoused people from backwards policies

There’s no denying that rising housing insecurity is a genuine concern. Unfortunately, the solutions are complex, and can’t be solved by simply outlawing living outside. Advocates can help lawmakers understand the feedback loop between criminalizing homelessness and increasing mass incarceration. Further criminalizing homelessness is likely to increase jail populations – and jails are ill-equipped to address the poverty, mental health, and substance use related reasons why people are experiencing homelessness. The National Homeless Law Center’s comprehensive guide notes that criminalization harms the health and wellbeing of unhoused people, and is an extremely expensive reaction to homelessness. Incarcerating someone costs over $47,000 a year; a week in a jail cell might cost the equivalent of a month or more of housing.

Advocates can also help lawmakers find and implement successful, humane, and non-carceral approaches to this crisis. “Housing First” policies, which give people housing as the first step in holistically addressing their challenges, have been shown to interrupt cycles of criminalization and give people a path to long-term, stable housing. Housing First is part of a suite of innovative approaches to homelessness cataloged by the National Homelessness Law Center; other approaches include expanding access to affordable housing subsidies, embracing innovative housing solutions like “tiny home” communities, and preventing homelessness before it happens by reforming eviction laws and prohibiting discriminatory housing policies.

Lastly, the Homelessness Law Center notes that some policies criminalizing homelessness violate constitutional rights, and can be challenged in the courts. The Ninth Circuit has ruled that imposing criminal penalties for people who cannot obtain shelter violates the Eighth Amendment prohibition on cruel and unusual punishment. Sweeps of tent cities have been found to violate due process rights when governments destroy or confiscate personal property without notice. The courts may provide another avenue for protecting the basic human rights of people experiencing homelessness


Resurrecting failed sentencing policies

2023 saw a resurgence of so-called “Truth in Sentencing” laws. In the 1990s, federal legislation established funding incentives that encouraged states to pass laws requiring that people charged with certain offenses serve at least 85% of their sentences in prison. In the mid- to late 90s, 21 states passed these laws. These policies sometimes as much as doubled people’s actual prison terms overnight, as states that had historically allowed people access to parole after half or less of their sentences were suddenly requiring much more time in custody before parole. Notably, these sentencing structures reduce the ability of people to earn time off their sentences for good behavior or for completing programming, and therefore remove powerful incentives that support prison safety and reentry success. In 2022 and 2023:

  • Louisiana (HB 70) reduced the ability of people convicted of repeated non-violent offenses to earn time off their sentence for good behavior.
  • South Dakota (SB 146) eliminated parole eligibility for many offenses and reduced the ability to earn sentencing credit.
  • Arkansas (SB 495) changed sentence structures and made certain felonies ineligible for sentence credits.

In 2022, Tennessee’s SB 2248 served as a cautionary tale. Tennessee’s Department of Corrections projects that the resulting increases in incarceration will cost taxpayers at least $40 million over the next 8 years. Chillingly, when asked about these costs, the Speaker of the House simply said, “if we need to build more prisons, we can.”

The truth about “Truth in Sentencing”

Because Truth in Sentencing has been tried before, advocates have lots of resources showing that it is a failed and counterproductive policy. Research consistently shows no public safety benefit to increased incarceration, and that longer sentences do not deter crime. Research also shows that Truth in Sentencing reduces incentives for incarcerated people to complete rehabilitative programming, increases safety risks for people in prison and corrections officers, and increases recidivism. Truth in Sentencing leads directly to prison overcrowding, which causes immense suffering.

Truth in Sentencing and other “tough-on-crime” policies are often enacted in the name of crime victims. Advocates can help policymakers understand that most victims of violence prefer that money be spent on violence prevention, not incarceration.

bar graph showing victims of violent crime prefer less punitive measures

Lastly, because of the immense expense of Truth in Sentencing policies, progressive advocates may find unlikely bedfellows in the fight against these laws. In Tennessee, the American Conservative Union opposed the Truth in Sentencing bill; voices on both sides of the aisle understand that investing in prisons is an ineffective, wasteful, and dangerous approach to public safety.


Building more prisons

States continue to invest hundreds of millions of dollars into building new prisons instead of pursuing decarceration strategies. These efforts often cite prison overcrowding or aging buildings to justify this immense expenditure – but fail to explore proven strategies to reduce the number of people behind bars. In 2023, states made major moves towards prison construction:

  • Arkansas (SB 495) appropriated $470 million for 3,000 new prison beds.
  • South Dakota (HB 1016) appropriated $60 million for a new women’s prison and $340 million for a new men’s state prison.
  • Montana (HB 817) appropriated $211 million for capital improvements at Montana state prisons.

Combatting prison construction

Demands for new or expanded prison construction are constant features of the criminal legal reform landscape. Often, these efforts are sold to lawmakers as either necessary or actually progressive, when in fact they are neither. Although it may be true that prison buildings are aging and that prisons are overcrowded, the most straightforward – and most cost-effective – approach to addressing these problems is decarceration. Substantially reducing prison populations can allow states to close decrepit buildings instead of spending millions renovating or rebuilding them. Around the country, states have successfully reduced their prison populations enough to close facilities; twenty-one states fully or partially closed prisons between 2000 and 2022.

Advocates arguing against prison construction can look to the detailed plans created by activists to close 10 prisons in California by 2025. They may also find the Prison Policy Initiative’s anti-jail expansion materials helpful – many of the arguments against building new jails also translate to the prison context. Even in states where active plans to build prisons are not on the table, advocates can argue for prison and jail construction moratoriums, which can give state policymakers time and space to genuinely pursue decarceral solutions, instead of investing in our failed mass incarceration system.


Undermining reform prosecutors

In recent years, many jurisdictions have elected reform-minded prosecutors (sometimes called “progressive prosecutors”) who are interested in changing the tough-on-crime policies behind mass incarceration. The American criminal legal system is designed to give substantial discretionary power to prosecutors, and prosecutors are increasingly using this discretion to roll back some of the most damaging parts of the system. These prosecutors have taken a range of approaches, from increasing access to diversion programs to creating conviction integrity units that examine the cases of incarcerated people asserting their innocence. Although some reform prosecutors have seen pushback from voters in recent years, most still enjoy widespread support.

Unfortunately, conservative state legislatures continue to try to undermine these democratically elected local officials with legislation designed to take their discretionary power away and force them to adhere to carceral policies – or risk being removed from office.

  • Florida Governor DeSantis has continued a trend of removing popular States Attorneys – including the state’s only Black woman state prosecutor – because of complaints about sentencing decisions and statements opposing his attacks on reproductive rights and gender-affirming health care.
  • In Georgia (HB 231), the state legislature created a “Prosecuting Attorneys Oversight Commission” empowered to investigate and remove local prosecutors.
  • In Texas (HB 17), the legislature passed a bill allowing courts to remove district attorneys for failing to pursue certain types of prosecutions.

Protecting local control of prosecutions

Advocates can help policymakers and the media understand that state legislative efforts like these undermine local elections and reduce confidence in the democratic process. Although rhetoric against reform prosecutors has been loud and sometimes extreme, it can be helpful to point to evidence that Americans are still broadly supportive of criminal legal system reform, and continue to support it at the polls. Reform prosecutor races are often high profile and hard-fought, and voters have made a clear and intentional choice to go against the status quo of harsh criminal legal system policies. Those choices should be respected.

Importantly, there is no evidence that crime has worsened under reform prosecutors. In fact, between 2015 and 2019, cities with reform prosecutors were less likely to experience a rise in homicides than those with traditional prosecutors.



We unfortunately couldn’t possibly cover all of the “zombie policies” cropping up around the country. Other notable examples include bills to enshrine cash bail more deeply in state law (Wisconsin), and expanding the use of non-unanimous jury verdicts for the death penalty (Florida), among many others. And by highlighting these setbacks, we don’t intend to diminish the real progress made around the country in 2023. Our Winnable Battles report details some of these successes; the Sentencing Project’s roundup of 2023 trends in criminal legal system reform highlights even more.

But the forces that seek to entrench and expand mass incarceration remain active across the country. We hope that this guide helps arm advocates with some of the arguments they need to avoid history repeating itself.



  1. For the sake of brevity, this piece considers only legislation that actually passed into law in 2023. This narrow focus is not meant to discount the ongoing fights going on around the country to protect reform efforts from repeal and fight back retrograde laws that were proposed but ultimately not passed. This focus is also not meant to diminish or ignore the real progress on criminal legal system reform that has been made around the country in 2023.  ↩

Child protective service agencies position themselves as providers of welfare, but their relationship to the criminal legal system demonstrates their shared role in punishing families and exacerbating the conditions that lead to system involvement in the first place.

by Emma Peyton Williams, January 8, 2024

The harmful effects of the criminal legal system on children are well-established. For years, evidence has shown that a parent’s involvement with the criminal legal system can harm kids, and incarcerating children has lifelong consequences. We’ve reported on efforts in several states to mitigate the negative impact of the criminal legal system on children but seldom discussed how the criminal legal and child welfare systems are deeply interwoven. A growing number of advocates and experts are bringing these connections to light and are organizing for momentous change. This briefing draws attention to their work to argue that, by expanding our view beyond jails and prisons to include these related systems, advocates and policymakers can safeguard against creating prisons by another name.


By the numbers: involvement in each system

Presently, the child welfare system surveils millions of families each year, many of whom are also impacted by the criminal legal system. Though data about the overlap between the two systems are faulty and likely underreported,1 data about strictly parental incarceration or child protective services2 involvement are more accessible. In our August 2022 briefing, Both sides of the bars: How mass incarceration punishes families, we explained the magnitude of the criminal legal system’s impact on children and families, noting that nearly half of people in prison are parents to minors and that 1.25 million children are impacted by parental imprisonment on any given day.3

Annual government reports illustrate the size and scope of child protective services. In 2021, nearly 4 million calls were made to those agencies, alleging that around 7.2 million children were being neglected or abused. Each year, approximately half of these calls are immediately determined to be illegitimate, lack enough information, or otherwise fail to meet the criteria for a child maltreatment report. In other words, rampant overreporting is the norm. Even when such reports are screened out, mere contact with the child welfare system can have damaging effects on families that last for decades, much like collateral consequences from brushes with the criminal legal system.


The consequences of dual-system involvement

Child welfare investigations bring parents and children in closer contact with the criminal legal system, increasing the likelihood of dual-system involvement. A 2010 study noted that there are four likely pathways to a family becoming involved with the child welfare and criminal legal systems simultaneously:

  1. A parent’s arrest coincides with child welfare system involvement, such as an arrest leading to a maltreatment report;
  2. A parent’s record is determined to compromise their child’s safety;
  3. Relatives who might ordinarily be considered for next-of-kin placement (placement of a child in the temporary or long-term custody of a non-parent relative) are determined ineligible due to their record;
  4. A child enters foster care because of issues with the temporary guardian they are staying with while their parent is incarcerated.

The limited data on dual-system involvement show that parental incarceration was listed as the reason for entry for 6% of children who entered foster care in 2022.4 Estimates range, but one 2017 study estimated that 40% of children who have been in foster care have also had a parent incarcerated in their lifetime. Parental incarceration is just one pathway to criminal legal system involvement: over half of youth in foster care will have an encounter with the juvenile legal system by age 17, a phenomenon that some have dubbed the foster care-to-prison pipeline.

Beyond quantitative data, several recent publications expose the connective tissue between the criminal legal and child welfare systems. In her recent piece for In These Times, Roxana Asgarian writes:

Critics say [the child welfare system] is more akin to law enforcement than social services, given its ability to surveil parents and hand down the ultimate punishment — terminating the legal bonds between parent and child.

In recognition of these similarities, advocates for child welfare system reform and abolition have taken to calling it the “family regulation” or “family policing” system, arguing that it, too, primarily functions to surveil, regulate, and punish disproportionately Black and Brown families.

Estimated percent of Black children, compared to all U.S. children, who experience each successive stage of the child welfare system’s process to separate children from their families before age 18, from investigation to out-of-home placement and termination of parental rights. To see the estimated rates for other racial and ethnic groups, see the appendix table.

Just as Black and Brown people are overrepresented in jails and prisons, their families are overrepresented at every stage of a child protective services case. Black and Indigenous parents, in particular, are over-reported and over-investigated and are more likely to have their children removed and their parental rights terminated. Black and Brown youth are also overrepresented in the foster system: In California, for example, Black children are represented in foster care at a rate of 3.7 times their proportion in the population.5 Further, Black and Indigenous children enter foster care at roughly double the rate of white children nationally. These systems not only target the same communities, but the same individuals: incarcerated people are more likely to have been in foster care previously than others, and youth in foster care are more likely to become incarcerated as adults. Involvement in one system makes families vulnerable to becoming involved with the other.


Dual punishment: Incarceration and termination of parental rights

We have previously reported on the harm of family separation by incarceration, which is amplified by the threat of permanent termination of parental rights that can follow. Impossible-to-follow service plans and legislative loopholes make it so that 1 in 8 incarcerated parents who have a child in foster care will lose their parental rights entirely.

Service plans — the behavioral modification programs that child protective services can impose on families who are involved in an active case — often require that parents attend mandated classes, see specific counselors, engage in supervised visits, and take other steps to regain their custody, all of which is nearly impossible when a parent is incarcerated. But prisons and jails are not required to accommodate the service plans that parents must follow in order to regain custody, and child welfare agencies are not required to accept available prison programming as “reasonable progress” towards reunification. Meanwhile, the clock is ticking: federal legislation mandates that states must move to terminate a parent’s rights when a child is out of their parent’s custody for 15 out of 22 consecutive months during a child welfare case, even if that separation is due to a parent’s incarceration.6

According to a 2023 study called The Relationship Between Black Maternal Incarceration and Foster Care Placement, “Parental incarceration can also qualify as an ‘aggravated circumstance,’ relieving child welfare agencies from the [statutory requirement] to make ‘reasonable efforts’ to reunify families or limiting the number of months in which ‘reasonable efforts’ must be made.” These systems intensify the impacts of each other in a feedback loop, causing parents and their children to experience multiple forms of punishment, often for the same offenses.


The same problems pervade both systems

In the absence of flourishing social safety nets, both the criminal legal and child welfare systems have become catch-all nets to address social issues that they’re not equipped to deal with. Just as many adults who are experiencing intimate partner violence call the police not to report a crime, but because they need crisis management, child welfare reports are often used to mediate interpersonal conflict. Reports of people weaponizing child welfare reports during disputes, or making retaliatory reports to gain leverage during custody battles, are common.

Both systems respond to substance use or mental health challenges with punishment, not treatment. Much like treatment mandates handed down by drug courts ignore research indicating treatment is less effective when it’s coerced,7 the same ineffective requirements are imposed on parents in child welfare cases. These requirements often feel more like punishment than help, and they fail to give parents real agency or choice. If the alternative to accepting treatment is becoming incarcerated or losing custody of your child, who is in a position to refuse? Child welfare agencies don’t make treatment affordable or accessible, failing to consider a parent’s schedule, life responsibilities, and transportation options. Further, parents are frequently required to pay for their mandated treatment, even though financial insecurity often leads to their involvement with the system in the first place.

State registries, much like those in the criminal legal system, have become commonplace, too. However, the threshold for appearing on a child welfare registry in many states is even lower: state central registers document substantiated and unsubstantiated allegations, not just findings of guilt. As is the case with an arrest or conviction record, or being listed on the sex offense registry, inclusion in the state central register can create future obstacles to accessing employment and child custody. In this way, both systems operate as agents of surveillance, not justice.

The interplay between these two systems is increasingly alarming. States that spend more on carceral practices have higher rates of child removal than states that spend more on social welfare. Federal grants for universities incentivize social work schools to partner with child welfare agencies, developing pipelines that push social workers into collaborating with them. Many jurisdictions are developing more partnerships between police and social workers, which are often lauded as progressive reforms. This has led many in the social work field to question whether their role is to punish people. Criminal legal system and social work advocates must ask, can we address issues in the criminal legal system by investing in another system that’s riddled with the same problems?


How advocates are addressing the problem

Over three-quarters of child welfare cases in 2021 alleged neglect, a vaguely-defined term that is often used to blame to parents for having insufficient resources to care for their children.8 Rather than using the child welfare and criminal legal systems to punish parents who are facing resource scarcity, advocates are tackling the resource gaps that led families to become system-involved in the first place by providing direct cash assistance. Family policing abolitionists want to confront child abuse while providing solutions that resource parents and communities and keep them united with their children. They question the true function of the family regulation system and point to how it worsens many of the issues seen in the criminal legal system.

In the last several years, a number of groups have emerged to formalize Black mothers’ longstanding efforts to resist state interventions and family separation and repeal the Adoption and Safe Families Act. These and other coalitions of advocates have been working towards expanding representation for impacted parents and attempting to create Miranda Rights for those under investigation by New York’s Administration for Children’s Services. In 2019, New York passed legislation to limit the scope of its state central register by raising standards of evidence for being placed upon it, creating new and shorter pathways to sealing a record, and options to mitigate its effects on employment.

A steadily increasing number of advocates and social service providers are developing tools to expand the practice of mandatory supporting, instead of mandatory reporting,9 by prioritizing resourcing families over making child welfare reports. In 2021, New York advocates introduced legislation to make reports confidential instead of anonymous to increase accountability and minimize malicious reporting. In 2023, New York City parents rallied to support legislation to repeal mandatory reporting altogether. Meanwhile, legislation introduced in Colorado that same year would require the courts to make it feasible for incarcerated parents to adhere to the requirements of their ongoing neglect case or service plan.

Universal basic income pilots for formerly incarcerated people, such as those in Chicago and Durham, show promise at improving post-release outcomes and decreasing recidivism rates.10 Financial assistance for families reduces rates of child maltreatment, and California is exploring how basic income programs can improve outcomes for young adults leaving foster care.


Breaking the cycle: applying lessons from both systems

Dispelling the myth that most harm against children is caused by “criminally-minded” individuals whom courts can pathologize and punish away requires addressing the material causes of child maltreatment. In the 70% of child welfare cases that are strictly for neglect, that means addressing poverty. In every case, that means contending with the barriers that prevent people from obtaining quality mental and physical healthcare and the structures that bar parents from getting the support they need to be their best selves for their kids. If child maltreatment is a structural issue rooted in poverty and interpersonal violence, then structural solutions are necessary to alleviate both.

The child welfare and criminal legal systems are failing to provide families with the safety and transformative resources that they need. Both systems surveil, regulate, and punish people, and do nothing to transform their conditions. Both are fraught with racist and bureaucratic structures that formalize the repression of Black and Brown families. And neighborhoods that have frequent contact with child protective services and police often suffer from fraught and less trusting community relationships, pushing them further from, not closer to, true public safety.

Because they are so intertwined, each system’s damaging impacts can and should be remedied concurrently: advocates are fighting to better resource families before they ever come in contact with them; they are shrinking their footprint in schools, healthcare, and other public services that surveil them; and they are ensuring better representation for families who are already ensnared. Policymakers must look to these advocates as leaders and respond to their calls for more resources and less punishment.

Criminal legal system reformers’ work can be strengthened through solidarity with people who are fighting family policing and regulation. They provide prescient guidance about the pitfalls of investing in supposed “helping” alternatives to incarceration that produce more mandated programs, surveillance, and criminal legal system involvement. Their work inspires advocates to think more critically about the true meaning of community safety and invites us all to expand our focus from “fixing prisons and jails” to ending the systems of oppression that built jails, prisons, and their welfare system counterparts in the first place.



  1. Caseworkers often only record one reason for entry, so parental incarceration may not be listed as the reason for removal even if it was a factor in the case.  ↩

  2. We are using “child protective services” and “child welfare agencies” to refer to state agencies that respond to alleged acts of child abuse and neglect. However, we should note that these agencies often go by a variety of names in different states; for example, Wyoming’s agency is called the Department of Family Services, and in Ohio, it’s called the Ohio Department of Job and Family Services.  ↩

  3. On a given day, an estimated 1.25 million minor children have a parent incarcerated in a state prison. This estimate excludes those with parents in federal prisons and locally-operated jails, and overlooks the ongoing impacts of prior parental incarceration and collateral consequences from past arrests or convictions.  ↩

  4. This data covers Federal Fiscal Year 2021, which ranges from October 1, 2021 to September 30, 2022.  ↩

  5. Black, multiracial, and Indigenous (i.e., American Indian or Alaska Native) youth are overrepresented nationally, compared to their shares of the total youth population. White, Asian, and Latino (or Hispanic) youth are underrepresented nationally, though Latino (or Hispanic) youth are overrepresented in some states. By using this Adoption and Foster Care Analysis and Reporting System Data Dashboard, you can change the “Data Display” to look at different rates of disproportionality by area and race.  ↩

  6. Six states prohibit filing for termination of parental rights solely due to incarceration.

  7. The literature is mixed but largely inconclusive as to whether compulsory treatment for substance use disorder is effective. A large meta-analysis from 2008 revealed that voluntary treatment, as compared to mandatory or coerced treatment, produced the largest treatment effect (non-recidivism) in participants. Meanwhile, the advocacy group Physicians for Human Rights has pointed out that mandatory treatment can be ordered for people for whom it’s not appropriate, and take opportunities away from people who are seeking it voluntarily.  ↩

  8. According to an analysis of statutory definitions of child neglect that looked at laws in all 50 states, “in many cases, neglect definitions contain vague or subjective descriptions of parental acts or omissions and do not require evidence of serious harm or imminent risk of serious harm.” Often, these subjective descriptions are suggestive of scarcity more than anything else: In New Jersey, for example, this includes “failure to provide ‘clean and proper home.'”  ↩

  9. The concept of “mandatory supporting” is an idea that was initially conceptualized by Joyce McMillan of JMAC for Families.  ↩

  10. Recividism is a loaded and misleading term that often equates technical parole violations with getting charged with new crimes. For a more nuanced discussion of this term, see our recidivism explainer in Mass Incarceration: The Whole Pie.  ↩


Cumulative prevalence of child welfare system contact before age 18 by race or ethnicity

Estimated percentages of U.S. children, by race or ethnicity, who experience each successive stage of the child welfare system’s process to remove children from their families, from investigation to out-of-home placement and termination of parental rights, before the age of 18 (“cumulative prevalence” rates).
All U.S. children American Indian or Alaska Native children Asian or Pacific Islander children Black children Hispanic or Latino children White children Source
Investigation of alleged maltreatment before age 18 37.4% 23.4% 10.2% 53.0% 32.0% 28.2% H. Kim et al. (2017), “Lifetime Prevalence of Investigating Child Maltreatment among U.S. Children,” American Journal of Public Health
Substantiated report of maltreatment before age 18 11.7% 15.8% 3.5% 18.4% 11.0% 10.5% Y. Yi et al. (2020). “Cumulative Prevalence of Confirmed Maltreatment and Foster Care Placement for US Children by Race/Ethnicity, 2011-2016,” American Journal of Public Health
Out of home placement before age 18 5.3% 11.4% 1.5% 9.1% 3.8% 5.0% Y. Yi et al. (2020). “Cumulative Prevalence of Confirmed Maltreatment and Foster Care Placement for US Children by Race/Ethnicity, 2011-2016,” American Journal of Public Health
Termination of parent’s rights before age 18 1.1% 2.7% 0.2% 1.7% 0.9% 1.0% C. Wildeman et al. (2020), “The Cumulative Prevalence of Termination of Parental Rights for U.S. Children, 2000-2016,” Child Maltreatment

New data on the overuse of probation and parole, insights into the racial disparities in prisons and jails, and much more. Here are the highlights of our work in 2023.

by Danielle Squillante, December 21, 2023

2023 was a big year at the Prison Policy Initiative. We exposed how the overuse of probation and parole serves to extend the prison walls into our communities, produced new datasets and graphics that show just how vast the racial disparities in prisons and jails actually are, and highlighted how the same companies that profited off of over-priced prison phone calls have moved into the e-messaging industry. Didn’t catch everything we published in 2023? We’ve curated a list of some of our best work from this year below.


Mass Incarceration: The Whole Pie 2023

We released an update of our flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Women experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. To fill these data gaps, we also released an updated Women’s Whole Pie report in partnership with the ACLU Campaign for Smart Justice, which includes richly-annotated data visualizations about women behind bars.

  • pie chart showing national offense types and places of incarceration
  • pie chart showing national offense types and places of incarceration for women

Punishment Beyond Prisons 2023

Our report shows the full picture of correctional control in the U.S., with a particular focus on the overuse of probation and parole. It includes data for all 50 states and D.C. on the number of people under correctional control, including community supervision. We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems. Our findings raise the question of whether probation and parole systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.

bar chart showing the 50 states and D.C. in terms of their overall mass punishment rate


SMH: The rapid & unregulated growth of e-messaging in prisons

To better understand the explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation. Our review found that, despite its potential to keep incarcerated people and their families connected, e-messaging has quickly become just another way for companies to profit at their expense.

a map showing which prison telecommunication company has contracts for e-messaging in that state's prison system

Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.

We released new data visualizations and updated tables showing the national landscape of persistent racial disparities in state prisons and local jails. Unlike other datasets, ours provides apples-to-apples state comparisons in three formats: counts, rates, and percentages. Using this data, we’ve updated over 100 of the key graphics on our State Profile pages, showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compares to the total state population.

bar chart showing the ratios of black and white imprisonment rates by state using 2021 data


What is civil commitment? Recent report raises visibility of this shadowy form of incarceration

Twenty states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex-related offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence. This deep dive into recently-published data from a survey of individuals confined in an Illinois civil commitment facility sounds the alarm about how these “shadow prisons” operate and the high rates of violence and trauma that people detained in the facilities are subjected to.

map of all 50 states with the number of people being held in civil commitment in each state


The aging prison population: Causes, costs, and consequences

Our briefing examines the inhumane, costly, and counterproductive practice of locking up older adults. The U.S. prison population is aging at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly.


How 12 states are addressing family separation by incarceration — and why they can and should do more

Our briefing assesses the legislative action taken by 12 states and the federal government to address the growing crisis of family separation caused when a primary caregiver is incarcerated. All too often, incarceration destroys family bonds as parental rights are terminated or children end up in foster care. We explain how advocates across the country are fighting for creative and holistic solutions.

map of all 50 states showing which have taken legislative action to address family separation by incarceration


No Release: Parole grant rates have plummeted in most states since the pandemic started

With parole board practices in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving. We surveyed 27 states and found only 7 saw an increase in their parole approval rate since the pandemic began, and almost every state held substantially fewer hearings than in years past.

bar chart comparing changes in parole grant rates in 27 states with discretionary parole between 2019 to 2022

Breaking news from inside: How prisons suppress prison journalism

In response to a move by New York prison officials in May to introduce a policy to effectively suppress prison journalism, we released a briefing building off of data from the Prison Journalism Project that detailed restrictions on prison journalism in prison systems across the country. Prison journalism affirms some of our most basic democratic principles — the exercise of speech free from government influence — and is an essential check on the extreme power these institutions wield over life and death.


A profile of Native incarceration in the U.S.

Adding to our 50 State Profile pages, we’ve created a profile of Native incarceration in the United States to illuminate what data exists about the mass incarceration of Native people. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate and more than four times higher than the state and federal prison incarceration rate of white people. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.


States to the Census Bureau: You created prison gerrymandering, you need to end it.

Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. In a May blog post, we reviewed a new National Conference of State Legislatures report that outlines the experiences and recommendations from states that implemented anti-prison gerrymandering reforms in the 2020 redistricting cycle. The report makes clear that state officials agree that prison gerrymandering is important, worth fixing, and the Census Bureau should be responsible for ending it. With roughly half of U.S. residents now living in a state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear. But will the Bureau listen?

map of all 50 states showing which state and local governments have taken action to address prison gerrymandering

Advocacy Toolkit

We continue to update our Advocacy Toolkit, a collection of web-based resources designed to improve advocates’ skills (such as locating data and conducting public records requests) or to plug directly into their campaigns (such as fighting new jail proposals). New this year is a guide to help advocates identify ways public housing policies can be more inclusive to people with criminal histories, as well as a guide that explains why charge-based carveouts are problematic and provides messaging to combat justifications for including them in criminal justice reforms.


This is only a small piece of the important and impactful work we published in 2023 and our work is far from over. We’ve got big things planned in 2024, when we’ll continue to expose the broader harms of mass criminalization and highlight solutions that keep our communities safe without expanding prisons, jails, and the carceral system.

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