Wide variation in the rates of reported infections and deaths in state prisons reflect the uneven spread of the virus and disparate responses by state criminal justice systems.

by Emily Widra, June 24, 2020

We’re frequently asked about the number of infections and deaths in prisons from the coronavirus that causes COVID-19. The UCLA COVID-19 Behind Bars Data Project is helpfully collecting all of the official reports of infections and deaths into one spreadsheet. But state prison systems are vastly different sizes, so it’s impossible to make direct comparisons using only the counts provided in the UCLA spreadsheet. So we’ve calculated the rates of infection and deaths in state prison systems, which allow us to compare the impact of the pandemic across all 50 states’ prison populations. Our findings, presented in the table below, suggest three possible – and troubling – conclusions:

  1. Some states may not be properly testing or may not be accurately reporting infections and deaths;
  2. People incarcerated in different states may face very different odds of infection and death from COVID-19, depending on how their state responds to the crisis; and/or
  3. Some states have been lucky in that the virus has been slow to reach their facilities. But, as we’ve seen with the uneven spread of the pandemic across states, this likely means the full force of the virus has yet to hit these facilities, so they need to redouble their efforts at population reduction and other preparations.

Number and rate of COVID-19 deaths, cases, and tests in state prisons

This table shows the numbers and rates of confirmed COVID-19 deaths and infections in state prison systems. The “case-fatality rates” in states with very few reported cases should not be directly compared to those in states with many cases, because even one or two cases would drastically change the rates in those states. We did not calculate testing rates because there was not enough detail in the data to know whether the number of “inmates tested” referred to unique individuals or included some who were tested multiple times, and how consistent this was across states. See sourcing information following the text of this briefing.
State COVID deaths in prisons COVID confirmed cases in prisons Number of tests given Prison population Deaths per 10,000 incarcerated people Infections per 10,000 incarcerated people Deaths per confirmed case (“case fatality rate”)
Alabama 4 41 27,164 1.47 15.09 9.8%
Alaska 0 2 717 3,985 0 5.02 0%
Arizona 7 252 3,005 41,386 1.69 60.89 2.8%
Arkansas 5 1,277 17,331 2.89 736.83 0.4%
California 17 3,215 119,327 1.42 269.43 0.5%
Colorado 3 627 18,419 1.63 340.41 0.5%
Connecticut 7 871 10,973 6.38 793.77 0.8%
Delaware 0 148 5,081 0 291.28 0%
Florida 18 1,665 92,574 1.94 179.86 1.1%
Georgia 20 496 53,648 3.73 92.45 4.0%
Hawai’i 0 16 4,260 0 0
Idaho 0 0 62 9,028 0 0
Illinois 256 37,731 0 67.85
Indiana 19 697 1,798 26,707 7.11 260.98 2.7%
Iowa 30 2,068 8,899 0 33.71
Kansas 4 894 9,740 4.11 917.86 0.4%
Kentucky 2 366 21,397 0.93 171.05 0.5%
Louisiana 15 614 29,682 5.05 206.86 2.4%
Maine 0 4 982 2,123 0 18.84 0%
Maryland 7 357 32,848 18,686 3.75 3.75 2.0%
Massachusetts 7 416 6,958 7,778 9.00 534.84 1.7%
Michigan 68 3,981 38,191 36,980 18.39 1,076.53 1.7%
Minnesota 0 290 8,457 0 342.91 0%
Mississippi 2 34 18,553 1.08 18.33 5.9%
Missouri 1 52 25,133 0.40 20.69 1.9%
Montana 1 2 760 2,674 3.74 7.48 50.0%
Nebraska 0 7 5,537 0 12.64 0%
Nevada 1 7 12,127 0.82 5.77 14.3%
New Hampshire 1 33 2,513 0 3.98
New Jersey 46 2,518 17,519 26.26 1,437.30 1.8%
New Mexico 1 117 6,558 1.52 178.41 0.9%
New York 16 516 40,956 3.91 125.99 3.1%
North Carolina 5 713 3,451 32,795 1.52 217.41 0.7%
North Dakota 0 5 1,461 0 34.22 0%
Ohio 79 4,513 13,197 48,453 16.30 931.42 1.8%
Oklahoma 0 1 2,544 24,947 0 0.40 0%
Oregon 1 168 670 14,355 0.70 117.03 0.6%
Pennsylvania 9 262 43,852 2.05 59.75 3.4%
Rhode Island 0 48 2,395 0 200.42 0%
South Carolina 108 18,160 0 59.47
South Dakota 0 4 3,679 0 10.87 0%
Tennessee 4 3,141 23,091 27,946 1.43 1,123.95 0.1%
Texas 54 7,445 151,126 3.57 492.64 0.7%
Utah 0 14 315 6,064 0 23.09 0%
Vermont 0 48 1,369 0 350.62 0%
Virginia 9 1,328 28,595 3.15 464.42 0.7%
Washington 108 16,531 0 65.33
West Virginia 0 124 6,550 0 189.31 0%
Wisconsin 264 12,779 22,681 0 116.40
Wyoming 0 0 2,465 0 0

An important disclaimer: It would be a mistake to use this table as an indication of “how good a job” any state has done in responding to the threat of the pandemic behind bars. No state has even come close to adequately protecting its incarcerated people. Certainly, some states have done more than others to release more medically vulnerable people, and some states’ correctional healthcare systems are less terrible than others, which may increase the odds of surviving COVID-19 in some prisons. We also acknowledge that some states have taken small steps to reduce the population density of their facilities; still, none have done so on a scale that would make social distancing possible or otherwise slow the spread of the virus.

We are skeptical of the officially reported data for several reasons, but especially because of the wide variation in the “case-fatality rates” – that is, the number of deaths relative to the number of infections reported by each state. Why does Tennessee report 785 infections for every death and Alabama reports 10 infections for every death? Both states have similarly-sized prison populations and both states report 4 confirmed COVID-19 deaths among incarcerated people. But it would appear that Tennessee is doing a lot of testing and Alabama is not.

Comprehensive and frequent testing offers the prison system – and the public – a clearer view of the virus spread. If correctional facilities are only testing people with extreme symptoms, we gain very little information about what to expect and how to protect vulnerable lives.

The number of reported deaths may also reflect undercounts for other reasons. For example, unless a state tests everyone who dies in custody, it is likely excluding a number of deaths that were caused by COVID-19 but were not confirmed by testing. Especially where states are severely under-testing, people will be dying of COVID-19 but left out of the official death counts because they were never tested. Similarly, it would be appropriate to classify people who “recover” from COVID-19, but remain weakened and then die of another cause, as COVID-19 deaths. We have not heard of any state prison systems that are counting deaths other than those confirmed by tests, however.

The data, imperfect as it is, tells us that people incarcerated in different states may face vastly different odds of infection and death from COVID-19. The inaction of state prison systems is unconscionable given that, for months, the largest outbreaks of the coronavirus have been in correctional facilities. States put their residents at grave risk by failing to prevent the spread of the virus in the “petri dishes” that are prisons and jails. They should be using every tool available to ramp up efforts to protect incarcerated people, which includes widespread testing and using testing data to target resources to the people and places most at risk.

 

Table sources

  • COVID deaths in prisons: UCLA Law School’s Covid-19 Behind Bars Data Project
  • COVID confirmed cases in prisons: UCLA Law School’s Covid-19 Behind Bars Data Project
  • Number of tests given: Covid Prison Data Table 2, as of June 19, 2020
  • Prison population: Vera Institute of Justice’s People in Prison 2019, supplemented by correspondence between the Prison Policy Initiative and individual state Departments of Correction. All population counts are from May 2020 except for Maryland’s, which is from December 31, 2019.
  • Deaths per 10,000 incarcerated people: Calculated by dividing the number of COVID deaths by the prison population, then multiplying by 10,000
  • Infections per 10,000 incarcerated people: Calculated by dividing the number of COVID cases by the prison population, then multiplying by 10,000
  • Deaths per confirmed case (“case fatality rate”): Calculated by dividing the number of deaths by the number of COVID cases, then multiplying by 100. For more information about case fatality rates and factors that affect the accuracy of these rates, see this New York Times article. The wide variation seen in the prison data suggests that these rates may reflect differences in testing more than differences in severity or treatment of the disease across different states.

The Prison Policy Initiative signs on to a letter urging Massachusetts state lawmakers to stop jailing people who need substance use treatment.

by Jenny Landon, June 23, 2020

In the midst of an uprising against police violence and racism, communities across the country are asking a simple question: why are police and jails used to treat social problems? Wouldn’t mental illness, substance use, homelessness, and poverty be better handled within the community, and without the threat of incarceration?

In Massachusetts, men who have substance use disorder can be put in jail or prison when they are committed for drug treatment (“committed” meaning involuntarily taken into state custody). This is not a rare occurance: in 2018, courts committed over 5,700 people under “Section 35.” Nearly two-thirds of those evaluated for commitment were men, and nearly a quarter were homeless. These men have not committed a crime, but wind up in jail nonetheless. As we know, jails have an abysmal track record when it comes to health care—and jail time is no substitute for substance use treatment.

Massachusetts is the last state in the country that locks people up when they’re committed for substance use, but now, the state’s Joint Committee on Health Care Financing is considering advancing a bill that would end this practice. We signed on to a letter written by Prisoners’ Legal Services of Massachusetts that supports H.4531, the bill that would ban the use of incarceration for men who are committed for drug treatment.

It is past time for Massachusetts to stop using the criminal justice system as a band-aid for social problems, and to stop punishing people with medical conditions. A good place to start would be to stop locking up people who need drug treatment.


Joining over 80 partner organizations, the Prison Policy Initiative signs on to a set of principles calling for the protection of privacy and democracy as the technology sector responds to the pandemic.

by Jenny Landon, June 12, 2020

As the United States begins to consider strategies for reopening, we signed on to a set of principles designed to guide policymakers, businesses, and public health officials in the use of information technology to help quell the virus.

Too often, information technology is weaponized against communities of color, undocumented people, and other marginalized communities to track and monitor their whereabouts and behaviors.

In the face of the COVID-19 pandemic, it is heartening to see the tech world step up with potential solutions for containment. However, plans to reopen must not harm those already suffering disproportionately from the health and economic fallout of the virus.

The letter reads, in part:

No COVID-19 response technology has been proven trustworthy and effective for combating the pandemic in the United States. The principles state that use of such technology must only be allowed if it is:

  • Nondiscriminatory
  • Used Exclusively for Public Health Purposes
  • Effective
  • Voluntary
  • Secure
  • Accountable

For more information, check out the full text of the principles, as well as the list co-signing organizations.

To learn more about how information technology negatively impacts marginalized communities and democracy, you can read Stephen Raher’s book review Automated Justice: A Review of Weapons of Math Destruction.


We list some high-impact policy ideas for state legislators looking to reform their criminal justice system without making it bigger.

by Wendy Sawyer and Peter Wagner, June 10, 2020

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory. We’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system. We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own. The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful. For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states. But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

End unnecessary jail detention for people awaiting trial and for low-level offenses

End pretrial detention for most defendants

Problem: Many people who face criminal charges are unnecessarily detained before trial. Often the sole criteria for release is access to money for bail. This puts pressure on defendants to accept plea bargains, even when they are innocent, since even a few days in jail can destabilize their lives: they can lose their apartment, job, and even custody of children. Pretrial detention also leads to jail overcrowding, which means more dangerous conditions for people in jail, and also drives sheriffs’ demands for more and bigger jails — wasting taxpayer dollars on more unnecessary incarceration.

Solutions: States are addressing this problem with a variety of approaches, including bail reforms that end or severely restrict the use of money bail, establishing the presumption of pretrial release for all cases with conditions only when necessary, and offering pretrial services such as postcard or phone reminders to appear in court, transportation and childcare assistance for court appearances, and referrals to drug treatment, mental health services, and other needed social services.

More information: See The Bail Project’s After Cash Bail: A Framework for Reimagining Pretrial Justice; Pretrial Justice Institute; Massachusetts Women’s Justice Network’s Moving Beyond Incarceration for Women in Massachusetts: The Necessity of Bail/Pretrial Reform; the Criminal Justice Policy Program at Harvard Law School’s Primer on Bail Reform; and our briefing Technical violations, immigration detainers, and other bad reasons to keep people in jail.

Use alternatives to arrest and incarceration for low-level offenses

Problem: One out of every three people behind bars is being held in a local jail, and most for low-level or nonviolent offenses. Spending time in jail leads to a number of collateral consequences and financial roadblocks to successful reentry, and higher recidivism rates that quickly lead to higher state prison populations.

Solutions: Although jails are ostensibly locally controlled, the people held in jails are generally accused of violating state law, so both state and local policymakers have the power to reduce jail populations. State leaders should address state causes of growing local jail populations, such as:

  • Encourage judges to use non-monetary sanctions, rather than fines and fees, and ensure that judges are holding indigency hearings before imposing and enforcing unaffordable fees.
  • Reclassify criminal offenses and turn misdemeanor charges that don’t threaten public safety into non-jailable infractions, or decriminalize them entirely.
  • Make citations, rather than arrest, the default action for low-level crimes.
  • Institute grace periods for missed court appearances to reduce the use of “bench warrants,” which lead to unnecessary incarceration for low-level and even “non jailable” offenses. Establish an “open hours court” for those who have recently missed appearances to reschedule without fear of arrest.

More information: See our reports Era of Mass Expansion: Why State Officials Should Fight Jail Growth and Arrest, Release, Repeat: How Police and Jails Are Misused to Respond to Social Problems, and The Bail Project’s After Cash Bail: A Framework for Reimagining Pretrial Justice.

 

Shorten excessive prison sentences and improve release processes

Shorten excessive prison sentences

Problem: Nationally, one of every six people in state prisons have been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.

Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding good time. All of these changes should be made retroactive, and must include people convicted of both violent and nonviolent offenses.

More information: See our reports Eight Keys to Mercy: How to shorten excessive prison sentences and Reforms Without Results: Why states should stop excluding violent offenses from criminal justice reforms.

Stop mandating programming requirements that impede release on parole

Problem: The release of individuals who have already been granted parole is often delayed for months because the parole board requires them to complete a class or program (often a drug or alcohol treatment program) before they can go home — yet those programs are not readily available to them. In some states — especially Tennessee, Texas, and Vermont — thousands of people whom the parole board has been deemed “safe” to return to the community remain incarcerated simply because the state has imposed this bureaucratic hurdle.

Solution: Parole boards can waive these requirements or offer community-based programming after release. Research shows that these programs are effective when offered after release, as part of the re-entry process.

More information: See our briefing When parole doesn’t mean release.

 

Sentence fewer people to incarceration and make sentences shorter

Properly fund and oversee indigent defense

Problem: Low-income adults and children are frequently found guilty and incarcerated without an attorney or they are given an appointed attorney who is unqualified, financially conflicted, or who is so overworked that the defendant receives, in effect, no representation at all. This happens despite the fact that the Sixth and Fourteenth Amendments to the U.S. Constitution require states to provide effective representation to the indigent accused of crimes where incarceration is a potential punishment. Many states delegate this constitutional obligation to local governments, and then completely fail to hold local governments accountable when they fail to provide competent defense counsel.

Solution: States must require either: (a) directly fund and administer the services that provide indigent defense; or (b) create a state entity with the authority to set, evaluate, and enforce indigent defense standards for services funded and administered by local governments.

More information: Know Your State from the Sixth Amendment Center is an invaluable guide to the structure of each state’s indigent defense system, including whether each state has an independent commission with oversight of all public defense services (most do not). See also the American Bar Association’s Ten Principles of a Public Defense Delivery System and the American Legislative Exchange Council’s (ALEC) Resolution in Support of Public Defense.

Abolish mandatory sentencing

Problem: Mandatory minimum sentences and similar automatic sentencing structures like “sentencing enhancements” have fueled the country’s skyrocketing incarceration rates, harming individuals and undermining our communities and national well-being, all without significant increases to public safety.

Solution: The best course is to repeal mandatory minimum laws so that judges can craft sentences to fit the unique circumstances of each crime and individual, but where that option is not possible — either because of political or legislative realities — states should adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances.

More information, model bill language, and example bills: See Families Against Mandatory Minimums’ (FAMM) Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money and American Legislative Exchange Council’s (ALEC) Justice Safety Valve Act. See also our Geographic Sentencing Enhancement Zones page.

Increase the dollar threshold for felony theft

Problem: Generally, the dollar amount of a theft controls whether the crime is treated as a felony or a misdemeanor. In many states, these limits have not been increased in years, even though inflation has risen almost every year, making stagnant thresholds increasingly punitive over time.

Solution: States should increase the dollar amount of a theft to qualify for felony punishment, and require that the threshold be adjusted regularly to account for inflation. This change should be made retroactive for all people currently in prison, on parole, or on probation for felony theft.

More information and model bill language: For the felony threshold in your state and the date it was last updated, see our explainer How inflation makes your state harsher today than it was yesterday. The Pew Charitable Trusts report States Can Safely Raise Their Felony Theft Thresholds, Research Shows demonstrates that in the states that have recently increased the limits, this did not increase the risk of offending nor did it lead to more expensive items being stolen. For a model bill see the Public Leadership Institute’s Felony Threshold Reform Act.

 

Change the financial incentives that fuel punitive justice system responses

Redirect public funds to community organizations that provide social services

Problem: State and local investments in public safety often only fund strategies involving police and punishment. But the communities most impacted by these investments (i.e. those with the highest arrest and incarceration rates) often have little voice in these decisions, and are deprived of the resources they need for priorities such as reducing poverty and improving health, housing, education, and employment opportunities — all critical to community health and safety.

Solution: Community members can engage in budgetary advocacy to shift funding from local or state budgets into a local grant program to support community-led health and safety strategies in communities most impacted by mass incarceration, over-policing, and crime. States can use Colorado’s “Community Reinvestment” model, which is designed to support community efforts by requiring the use of a community-based intermediary organization (not a state agency) to manage the grant program and provide technical assistance. Colorado currently has four separate Community Reinvestment Initiatives that will provide over $88 million over the next few years to support community-based services in reentry, harm reduction, crime prevention, and underserved crime survivors.

More information: See the Colorado Criminal Justice Reform Coalition’s Community Reinvestment Overview Memo and a short video describing their community development approach to public safety. See also the Urban Institute’s Investing Justice Resources to Address Community Needs.

End civil asset forfeiture

Problem: Police are empowered to seize and keep any personal assets, such as cash or cars, that they suspect are involved in a crime, even when there is never a related arrest or conviction. While this practice is supposed to disrupt major criminal organizations, it is disproportionately used against poor people who can not afford to challenge the seizures. Civil asset forfeiture makes poor communities poorer and incentivizes aggressive policing. (Even in states that have tightened asset forfeiture laws, local police can receive financial incentives to cooperate in federal property siezures from the federal “equitable sharing” program.)

Solutions: Legislatures can pass laws removing the profit motive from policing by requiring a criminal conviction for permanent forfeiture, by creating a presumption that low-value seizures are not connected to a crime and therefore not eligible for forfeiture, ending participation in the “equitable sharing” program, and requiring proceeds from forfeitures to go not to the police but to the state’s general fund or a fund dedicated to community development, education, or crime victim compensation.

More information: See the Center for American Progress report Forfeiting the American Dream and the Drug Policy Alliance’s work on Asset Forfeiture Reform.

 

Stop probation and parole systems from fueling incarceration

Reduce the length of probation sentences

Problem: Because probation is often billed as an alternative to incarceration and is imposed through plea bargains, the lengths of probation sentences do not receive as much scrutiny as they should. Excessively long sentences put defendants at risk of lengthy incarceration for subsequent minor offenses or, even worse, incarceration for minor violations of probation rules (“technical violations”).

Solutions: States should set upper limits for probation sentences and enable early discharge by awarding “compliance credits” for successfully meeting probation’s requirements for a given time period.

Example bills: Several states, including Louisiana (Act 280 (2017)), Florida (Fla. Stat. S 948.04), and New York (S4664A (2014), have shortened probation sentences by eliminating minimum sentences, setting caps on probation sentences, and awarding compliance credits. Although Louisiana’s law is stronger, ALEC has an Earned Compliance Credit Act.

More information: For more on how probation sets people up to fail, see our report Correctional Control 2018: Incarceration and supervision by state and for more on downsizing probation, see the Executive Session on Community Corrections report Less Is More: How Reducing Probation Populations Can Improve Outcomes.

Eliminate financial incentives that encourage unnecessary probation sentences

Problem: Most states charge people on probation a monthly fee, even though many probationers are among the nation’s poorest, and these fees put them at risk of being jailed for nonpayment. The Supreme Court has ruled it unconstitutional to incarcerate someone because they cannot afford to pay court ordered fines and fees, but many courts effectively do just that, by ignoring the question of ability to pay and treating nonpayment as a probation violation. When counties rely on these fees for revenue, courts are incentivized to impose unnecessary or excessive probation sentences. Moreover, the growth of privatized probation in some states has led to unnecessary “pay only” probation supervision for minor offenses.

Solutions: Pass legislation that would eliminate probation fees, require hearings on ability to pay before assessing fees, and/or regulate the use of privatized probation.

Example bills: San Francisco County Ordinance No. 131-18 (2018) eliminated all discretionary criminal justice fees, including probation fees; the ordinance includes a detailed discussion of the County’s reasons for ending these fees. Louisiana HB 249 (2017) makes many reforms, including requiring inquiries into ability-to-pay before imposing fines and fees or enforcing any penalties for failure to pay.

More information: See our briefing with national data and state-specific data for 15 states as well as our report Punishing Poverty: The high cost of probation fees in Massachusetts. States with privatized misdemeanor probation systems will find helpful the nine recommendations on pages 7-8 of the Human Rights Watch report Profiting from Probation: America’s “Offender-Funded” Probation Industry.

Eliminate re-incarceration and minimize jail time for technical violations of probation or parole rules

Problem: Incarcerating people for “technical violations” of probation and parole conditions is a common but harmful and disproportionate response to minor rule violations. These unnecessary incarcerations make it harder for people under supervision to succeed and lead to higher corrections costs. In many states, incarceration for technical violations is more common than incarceration for new crimes.

Solutions: States should limit incarceration as a response to supervision violations to only when the individual has committed a new crime and poses a direct threat to public safety. When incarceration is used to respond to technical violations, the length of time served should be limited and proportionate to the harm caused by the non-criminal rule violation.

More information: See the Pew Charitable Trusts report To Safely Cut Incarceration, States Rethink Responses to Supervision Violations.

Ending electronic monitoring for individuals on parole

Problem: Individuals on parole face an array of conditions that may result in them being returned to prison even without committing another crime. Electronic monitoring imposes unnecessary, often contradictory, conditions on recently released individuals, hindering their movement, and creating serious barriers to successful reentry.

Solutions: States can introduce and enforce legislation that would outlaw the imposition of electronic monitoring devices for individuals on parole. Until then, individuals forced to wear electronic monitors should not be required to pay for those devices nor be fined or re-incarcerated for their inability to pay monitoring fees.

More information: Challenging E-Carceration provides details about the encroachment of electronic monitoring into community supervision, and fact sheets, case studies, and possible solutions are available from the Center for Media Justice.

 

Keep criminal justice, juvenile justice, and immigration processes separate

Decriminalize youth and stop prosecuting and sentencing them as adults

Problem: Research has shown that adolescent brain development affects youth decision-making in ways that make it impossible to hold youth fully culpable or deem them incapable of change; the Supreme Court has supported these arguments in a series of decisions. Yet in every state, youth under age 18 can be tried and sentenced in adult criminal courts, either because the state has a lower maximum age of juvenile court jurisdiction or through juvenile transfer laws. Some state laws specify that children as young as 10 years old can be transferred to adult courts for prosecution. Even the juvenile justice system can be shockingly punitive: Most states don’t specify a minimum age of juvenile court jurisdiction, so even elementary schoolers can be found delinquent and punished by the state, and children are punished for “status offenses” that aren’t law violations for adults, such as running away or truancy.

Solutions: State legislatures should “raise the age” of juvenile court jurisdiction to reflect our current understanding of brain development, if they haven’t already, and they should also “raise the floor” to stop criminalizing young children. States should end the transfer of youth to adult courts and systems of punishment, and move “status offenses” out of the court’s jurisdiction. Finally, as in the adult justice system, public funds should be redirected from systems that punish and confine youth to community-based services that have better outcomes for youth.

More information: For an overview of youth confinement, see our report Youth Confinement: The Whole Pie. The National Conference of State Legislatures has created a map and summary of Juvenile Age of Jurisdiction and Transfer to Adult Court Laws. The Campaign for Youth Justice has an array of resources, including summaries of legislative reforms to Raise the Age, limit youth transfers, and remove youth from adult jails, and more recent recorded webinars on these and other solutions. For
community-driven solutions, see Youth First Initative’s No Kids in Prison campaign, and for status offense reform, see the Vera Institute of Justice’s toolkit.

End immigration detention in jails and ICE transfers from jails

Problem: Local jails and sheriffs departments cooperate with federal immigration enforcement (ICE) in many ways. Two significant ways that local jails help ICE are by: 1) agreeing to rent jail beds to ICE for people whose immigration cases are pending, and 2) routinely honoring ICE detainer requests to hold people with alleged immigration violations. By renting jail space to ICE, jails expand federal capacity for unnecessary immigration detention, and by holding people on ICE detainers, they prolong the custody of people who would otherwise be released from jail. In fact, jail transfers are the primary driver of ICE detention: About 70% of people arrested by ICE are transferred directly from the criminal justice system.

Solutions: In all but a few states, holding people for transfer to ICE is voluntary, so state policymakers and especially local sheriffs have the power to end justice-system collaboration with immigration enforcement. Local and state officials can also end the Intergovernmental Service Agreements (IGSAs) that contract jail beds out to ICE, and terminate agreements with private prison companies.

More information: From the Immigrant Legal Resource Center, see ICE Detainers Are Illegal — So What Does That Really Mean?, Responsible Releases: Safeguards to Protect Immigrants Released from Jails and Prisons,and the videos Fighting Where We Can Win: Successful Local Campaigns Against Immigration Enforcement and Dismantling Detention.

 

Give all communities equal voice in how our justice system works

End felony disenfranchisement and allow all citizens to vote

Problem: Most states bar some or all people with felony convictions from voting, sometimes while they are in prison, sometimes for life, and in some states for various times in between. (The laws vary by state: 18 states bar people in prison; 3 states bar people in prison or on parole; 17 states bar people in prison, on parole, or on probation; and 11 states disenfranchise some or all people for life after a felony conviction. Only two states — Maine and Vermont — have no restrictions.) Given the racial disparities in the criminal justice system, these policies disproportionately exclude Black Americans from the ballot box. As of 2016, almost 8% of Black adults nationwide were disenfranchised because of a felony conviction.

Solutions: Change state laws and/or state constitutions to remove disenfranchising provisions. Additionally, most governors also have the power to immediately restore voting rights to disenfranchised people via commutation or other similar means.

More information: See Felony Disenfranchisement: A Primer from the Sentencing Project and 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement (2016) by Uggen, Larson and Shannon.

Stop “prison gerrymandering” from giving people who live near prisons more political power

Problem: The Census Bureau’s practice of counting incarcerated people at correctional facility locations (rather than at their home addresses) leads state and local governments to draw skewed electoral districts that grant undue political clout to people who live near large prisons and dilute the representation of people everywhere else.

Solutions: States can pass legislation to count incarcerated people at home for redistricting purposes, as nine states — California, Colorado, Delaware, Maryland, Nevada, New Jersey, New York, Virginia, and Washington State — have done. Ideally, the Census Bureau would implement a national solution by agreeing to tabulate incarcerated people at home in the next Census, but time ran out for that change before the 2020 Census, so states must prepare their own fix to the redistricting data released in 2021. (And the Census Bureau should make this change for the 2030 Census.)

Legislator’s guide: See our guide to ending prison gerrymandering for state legislators, published jointly with SiX.

Model bill: See our Example bill.

More information: See our Prison Gerrymandering Project website.

For interesting reports that can help you make the case for criminal justice reform in your state, see our Publications. For our work on specific problems, see our Issues page. And for data about your state, see our State Profiles.


The case for increasing the monetary level for felony theft.

by Tiana Herring, June 10, 2020

Each state sets a statutory definition of which thefts are felonies (punishable by longer sentences in prison) and which are misdemeanors (punishable by shorter sentences in jail). But in many states, the dollar amount separating felony theft from misdemeanor theft has not been increased in years, even though inflation makes the older laws more punitive each year.

These limits vary from New Jersey (a $200 theft is a fourth-degree felony) to Texas and Wisconsin where a theft must be worth $2,500 before you can get a state prison sentence. New Jersey’s limit is so low because it is one of the oldest in the country — it remains unchanged from when it was originally enacted in 1978.1 Only one state — Alaska — automatically adjusts the felony theft threshold with inflation.2 The range between the states is tremendous:

Table showing felony theft thresholds in each state as of 2018. For more detail including the amount of the previous threshold for most states, see the appendix table below. *The exact year of the last update to the felony theft threshold in each state was not readily available for all states, but Pew Charitable Trusts’ 2018 article reports that that the felony theft threshold in these states predate the year 2000.
State Felony Theft Threshold Year Threshold Last Updated
Alabama $1,500 2015
Alaska $1,000 2016
Arizona $1,000 2006
Arkansas $1,000 2011
California $950 2010
Colorado $2,000 2013
Connecticut $2,000 2009
Delaware $1,500 2009
District of Columbia $1,000 2010
Florida $750 2019
Georgia $1,500 2012
Hawaii $750 2016
Idaho $1,000 before 2000*
Illinois $500 2010
Indiana $750 2013
Iowa $1,000 before 2000*
Kansas $1,500 2016
Kentucky $500 2009
Louisiana $1,000 2017
Maine $1,000 before 2000*
Maryland $1,500 2016
Massachusetts $1,200 2018
Michigan $1,000 before 2000*
Minnesota $1,000 2007
Mississippi $1,000 2014
Missouri $750 2014
Montana $1,500 2009
Nebraska $1,500 2015
Nevada $650 2011
New Hampshire $1,000 2010
New Jersey $200 1978
New Mexico $500 2006
New York $1,000 before 2000*
North Carolina $1,000 before 2000*
North Dakota $1,000 2013
Ohio $1,000 2011
Oklahoma $1,000 2016
Oregon $1,000 2009
Pennsylvania $2,000 before 2000*
Rhode Island $1,500 2012
South Carolina $2,000 2010
South Dakota $1,000 2005
Tennessee $1,000 2016
Texas $2,500 2015
Utah $1,500 2010
Vermont $900 2006
Virginia $1,000 2020
Washington $750 2009
West Virginia $1,000 before 2000*


Wisconsin $2,500 2001
Wyoming $1,000 2004

Updating felony theft statutes is one simple way to reduce the number of people serving time in prison for low-level offenses. Making more minor thefts into misdemeanors will also spare more people from the often lifelong collateral consequences of felony convictions that can limit their access to public housing, welfare benefits, and even voting.

Decreasing the punishment for minor thefts is unlikely to encourage more thefts. As Pew Charitable Trusts found in their invaluable 2018 report, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, South Carolina’s property crime rates actually continued to fall years after the threshold increased. This isn’t unique to South Carolina, either. Pew’s article also included a brief comparison of crime rates in all 50 states, reporting that between 2000 and 2012, the 30 states that increased their thresholds had property crime rates similar to the 20 states that had not yet updated their laws.

 

Footnotes

  1. See New Jersey Statute 2C:20-3 (Chapter 95, Laws of 1978)  ↩

  2. See Alaska Statute 11.46.982.  ↩

Appendix table

This table was built from The Effects of Changing Felony Theft Thresholds (2017) and States Can Safely Raise Their Felony Theft Thresholds, Research Shows (2018) by Pew Charitable Trusts and supplemented with additional research by the Prison Policy Initiative for Florida and Virginia which changed their laws after Pews’ reports, as well as New Jersey and Wisconsin, for which we found the year the threshold was last updated. *The exact year of the last update to the felony theft threshold in each state was not readily available for all states, but Pew Charitable Trusts’ 2018 article reports that that the felony theft threshold in these states predate the year 2000.

State Felony Theft Threshold Year Threshold Last Updated Previous Felony Theft Threshold
Alabama $1,500 2015 $500
Alaska $1,000 2016 $750
Arizona $1,000 2006 $250
Arkansas $1,000 2011 $500
California $950 2010 $400
Colorado $2,000 2013 $1,000
Connecticut $2,000 2009 $1,000
Delaware $1,500 2009 $1,000
District of Columbia $1,000 2010 n/a
Florida $750 2019 $300
Georgia $1,500 2012 $500
Hawaii $750 2016 $300
Idaho $1,000 before 2000* n/a
Illinois $500 2010 $300
Indiana $750 2013 any amount
Iowa $1,000 before 2000* n/a
Kansas $1,500 2016 $1,000
Kentucky $500 2009 $300
Louisiana $1,000 2017 $750
Maine $1,000 before 2000* n/a
Maryland $1,500 2016 $1,000
Massachusetts $1,200 2018 $250
Michigan $1,000 before 2000* n/a
Minnesota $1,000 2007 $500
Mississippi $1,000 2014 $500
Missouri $750 2014 $500
Montana $1,500 2009 $1,000
Nebraska $1,500 2015 $500
Nevada $650 2011 $250
New Hampshire $1,000 2010 $500
New Jersey $200 1978 n/a
New Mexico $500 2006 $250
New York $1,000 before 2000* n/a
North Carolina $1,000 before 2000* n/a
North Dakota $1,000 2013 $500
Ohio $1,000 2011 $500
Oklahoma $1,000 2016 $500
Oregon $1,000 2009 $750
Pennsylvania $2,000 before 2000* n/a
Rhode Island $1,500 2012 $500
South Carolina $2,000 2010 $1,000
South Dakota $1,000 2005 $500
Tennessee $1,000 2016 $500
Texas $2,500 2015 $1,500
Utah $1,500 2010 $1,000
Vermont $900 2006 $500
Virginia $1,000 2020 $500
Washington $750 2009 $250
West Virginia $1,000 before 2000* n/a
Wisconsin $2,500 2001 $1,000
Wyoming $1,000 2004 $500

Police violence is a systemic problem in the U.S., not simply incidental, and it happens on a scale far greater than other wealthy nations.

by Alexi Jones and Wendy Sawyer, June 5, 2020

There is no question that the number of police killings of civilians in the U.S. – who are disproportionately Black and other people of color – are the result of policies and practices that enable and even encourage police violence. Compared to police in other wealthy democracies, American police kill civilians at incredibly high rates:

chart comparing the rates of police killings in the U.S. with 9 other wealthy nations. The U.S. rate of 33.5 per 10 million people is over 3 times higher than the next-highest rate, which is 9.8 per 10 million people in Canada

The chart above compares the annual rates of police killings in each country, accounting for differences in population size. This is the most apples-to-apples comparison we can make with this data.1 But the total number of deaths at the hands of police is also worth seeing in comparison with other countries:

chart comparing the total number of police killings in the U.S. with 9 other wealthy nations. U.S. police killed 1,099 people in 2019, while none of the other 9 countries compared had more than 36 police killings in the most recent year with data

The sources for these charts are listed in the table below:

Country Annual number of law enforcement killings Total population Law enforcement killings per 10 million people Source for number of law enforcement killings Data year Source for total population
United States 1,099 328,239,523 33.5 Mapping Police Violence 2019 U.S. Census Population Clock (population as of July 1, 2019)
Canada 36 36,708,083 9.8 CBC News, Deadly force:
Fatal encounters with police in Canada: 2000-2017
2017 Statistics Canada (population estimate as of July 1, 2017)
Australia 21 24,770,700 8.5 National Deaths in Custody Program, Deaths in custody in Australia 2017-18. This includes deaths that occurred in police custody and custody-related operations (i.e. motor vehicle pursuit deaths). 2017-2018 (1 year of data) Australian Demographic Statistics December 2017 (Year-end 2017 population estimate)
The Netherlands 4 17,282,163 2.3 Public Prosecution Service, (translated from Dutch by Google here) 2019 Statistics Netherlands (CBS) Population key figures (2019 population estimate)
New Zealand 1 4,840,600 2.1 NZ Police Tactical
Options Research Report, 2018
2018 New Zealand Government Statistics (Year-end 2018 estimate)
Germany 11 82,905,782 1.3 DPA news agency, as cited by Deutsche Welle in German police kill sword-wielding man in front of his mother (2019) 2018 The World Bank, population data (2018 population estimate)
England and Wales 3 59,439,840 0.5 INQUEST, Fatal police shootings 2019 UK Office for National Statistics, Estimates of the population for the UK, England and Wales, Scotland and Northern Ireland (see link to Excel file; we used mid-2019 population estimate for England and Wales only)
Japan 2 126,529,100 0.2 Axios, Police kill far more people in the U.S. than in most rich countries (2020) 2018 The World Bank, population data (2018 population estimate)
Iceland 0 352,721 0 NBC News, Iceland is a gun-loving country with no shooting murders since 2007 (2018) Every year except 2013, when the police shot and killed someone for the first and only time. The World Bank, population data (2018 population estimate)
Norway 0 5,311,916 0 Norwegian Bureau for the Investigation of Police Affairs, Annual Report 2018 (reporting no fatal shootings that year) 2018 The World Bank, population data (2018 population estimate)

Footnotes

  1. The data here reflect the number of police killings of civilians reported in each country. They do not account for the manner of death, as that data was not available for every country. The rates account for population only; they do not reflect differences in police-public contact rates nor the rate of gun ownership in each country, nor any other point of comparison that might partially explain these differences. The statistics presented here can only illuminate the vast differences between policing in the U.S. and in other wealthy nations, not explain them.  ↩


Police disproportionately target Black and other marginalized people in stops, arrests, and use of force; and are increasingly called upon to respond to problems, such as homelessness, that are unrelated to public safety.

by Wendy Sawyer, June 5, 2020

Many of the worst features of mass incarceration — such as racial disparities in prisons — can be traced back to policing. Our research on the policies that impact justice-involved and incarcerated people therefore often intersects with policing issues. Now, at a time when police practices, budgets, and roles in society are at the center of the national conversation about criminal justice, we have compiled our key work related to policing (and our discussions of other researchers’ work) in one briefing.

 

1. Nearly 1 million people in the U.S. experience the threat or use of force by police annually, and they are disproportionately Black and Latinx.

chart showing that police are twice as likely to use force against people of color. Over 5% of Black and Hispanic survey respondents reported experiencing the threat or use of force when most recently approached by police, compared to just 2% of white respondents The scale of police use of force is an important fact in and of itself, made more troubling by the racial disparities evident in police stops and use of force. In a national survey, Black respondents were more likely to be stopped by police than white or Latinx respondents, and both Black and Latinx respondents were more likely to be stopped multiple times over the course of a year than white respondents. The survey also showed that when they initiated a stop, police were twice as likely to threaten or use force against Black and Latinx respondents than whites. These disparate experiences have predictable effects on public trust in police: white respondents were more likely to view police use of force as legitimate and more likely to seek help from police than were people of color.

 

2. Over 4.9 million people are arrested each year.

pie chart style illustration showing that of the 4.9 million people arrested and jailed each year, 3.5 million have just one arrest, 928,000 have two arrests, and 428,000 have 3 or more arrests that year In all, there are over 10 million arrests in the U.S. each year, but many people are arrested multiple times per year. From responses to a national survey, we estimate that at least 4.9 million unique individuals are arrested and jailed each year, and at least one in four of those individuals are arrested more than once in the same year. The massive scale of these police responses means that there are millions of opportunities each year for police-civilian encounters to turn violent or fatal, and an estimated 77 million people are now saddled with a criminal record.

 

3. Most policing has little to do with real threats to public safety: the vast majority of arrests are for low-level offenses. Only 5% of all arrests are for serious violent offenses.

The “massive misdemeanor system” in the U.S. is an important but overlooked contributor to overcriminalization and mass incarceration. For behaviors as benign as jaywalking, sitting on a sidewalk, or petty theft, an estimated 13 million misdemeanor charges sweep droves of Americans into the criminal justice system each year (and that’s excluding civil violations and speeding). And while misdemeanor charges may sound like small potatoes, they carry serious financial, personal, and social costs, especially for defendants but also for broader society, which finances the enforcement of these minor violations, the processing of these court cases, and all of the unnecessary incarceration that comes with them.

 

4. Policing criminal law violations costs taxpayers over $63 billion each year.

large circle showing the relative size of police expenditures to other costs of mass incarceration from the following the money of mass incarceration report. Policing costs the public $126.4 billion per year, nationwide. In our report about the fiscal costs of mass incarceration to the government and families of justice-involved people, we used only half of that figure – $63.2 billion – because only about half of police work is devoted to criminal law enforcement. The other half is spent on things unrelated to criminal law violations, such as traffic control, responding to civil disputes, and administration. Even at half the total cost of policing, $63.2 billion represents a huge public investment in criminalization. As many Americans are questioning the role of police in society, they should know just how much money is available to redirect to more humane community-based responses to social problems.

 

5. People who are Black and/or poor are more likely to be arrested, and to be arrested repeatedly.

chart comparing the percentage unemployed, the percentage with no high school diploma, and the percentage with an annual income below $10,000 among people with zero, one, or two or more arrests in one year. Unemployment, lack of diploma, and poverty are all much higher among people with multiple arrests. People who are arrested and jailed are often among the most socially and economically marginalized in society. The overrepresentation of Black men and women among people who are arrested is largely reflective of persistent residential segregation and racial profiling, which subject Black individuals and communities to greater surveillance and increased likelihood of police stops and searches. Poverty, unemployment, and educational exclusion are also factors strongly correlated with likelihood of arrest.

 

6. People with mental illnesses or substance use disorders are also more likely to be arrested, and to be arrested repeatedly.

chart comparing health needs among people arrested and booked zero, one, or two or more times in one year. Over a quarter of people arrested multiple times had a serious or moderate mental illness, serious psychological distress, and/or no health insurance. Over half had a substance use disorder. People who are arrested often have serious health needs that cannot and should not be addressed through policing or incarceration. Even a few days in jail can be devastating for people with serious mental health and medical needs, as they are cut off from their medications, support systems, and regular healthcare providers. Even worse, many people are arrested in the midst of a health crisis, such as mental distress or substance use withdrawal. History has shown that jails are unable to provide effective mental health and medical care to incarcerated people, and too often, jailing people with serious health problems has lethal consequences.

 

7. Women make up a growing share of arrests and report much more use of force than they did 20 years ago, with Black women most likely to be targeted.

chart comparing the increase in police use of force reported by men and women from 1999 to 2015. The number of men experiencing use of force doubled, while the number of women experiencing use of force more than quadrupled. The experiences of women and girls – especially Black women and other women of color – are often lost in the national conversation about policing. But of course women, too, are subject to racial profiling, use of excessive force, and any number of violations of their rights and dignity by police. Our analysis of national data shows that women now make up over a quarter of all arrests, with an estimated 2.8 million arrests in 2018. At the same time, the use of force has become much more common among women: the number of women who experienced police use of force (about 250,000) was 3.5 times greater in 2015 compared to 1999.

A closer examination of the data also reveals racial disparities in police stops, arrests, and use of force involving women. Black women are more likely than white or Latina women to be stopped while driving, and Black women are arrested 3 times as often as white women and twice as often as Latinas during police stops. Black women also report experiencing police use of force at higher rates than white or Latina women. With an estimated 12 million women per year experiencing police-initiated encounters – many of which involve searches, use of force, and other traumatizing experiences – the harms of policing to women demand more attention.

 

8. Disabled people represent a disproportionate number of those stopped, arrested, and killed by police.

As the ACLU of Southern California and the Bazelon Center for Mental Health Law report, many criminalized behaviors targeted by law enforcement are related to disability: substance use (often used as self-medication for pain and other symptoms), homelessness (an estimated 78% of people in shelters have a disability), and atypical reactions to social cues, which may be interpreted as vaguely defined crimes such as “disorderly conduct.” The Ruderman Foundation reports that in police use-of-force incidents, the media and police often blame disabled people for their own victimization, especially by characterizing disabled people of color as “threatening” and “refusing to comply.”

The frequent use of police as first responders to individuals in crisis only compounds these problems. Too often, officers who are called to help individuals get medical treatment end up shooting them instead. Public funds should be redirected to community health providers to handle mental and physical health crises, rather than trying to meet this critical need with militarized police forces, who sometimes receive little training on crisis response or de-escalation.

 

9. Police treat Black Americans with less respect.

A Stanford University analysis of police bodycam footage from nearly 1,000 vehicle stops substantiates what Black Americans already know: police officers treat Black people differently than they do whites. This study, discussed in our briefing, finds that “police officers speak significantly less respectfully to black than to white community members in everyday traffic stops,” and that this happens irrespective of officer race, severity of the infraction, and outcome of the stop. These findings lend important context to the racial disparities observed in police encounters.

 

10. State and federal law enforcement practices target poor Black and Latinx residents.

Separate reports focusing on policing in Chicago highlighted two law enforcement strategies justified as ways to protect communities – drug stings and asset forfeiture – that facilitate widespread targeting of low-income communities of color. Federal agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) arranged drug stings that set up fake drug stash houses and lured people into committing new crimes. But they didn’t single out just anyone: At least 91% of the time, agents targeted Black and Latinx people. Columbia professor Jeffrey Fagan’s analysis found no statistical explanation for this except disparate racial treatment. A District Court judge described these cases as “ensnaring chronically unemployed individuals from poverty-ridden areas.”

Meanwhile, Cook County police conducted 23,000 seizures of assets connected to civil and criminal cases, a practice that is supposed to disrupt major illegal drug trades. But an analysis by Reason and the Lucy Parsons Lab showed that police officers were often taking petty property and the lowest-value seizures (valued under $100) were clustered in predominantly poor and Black communities on Chicago’s South and West Sides. These examples illustrate that at every level, the “war on drugs” functions as a war on communities of color.

 

For more information, the reports and briefings summarized here – and more – can be found on our Policing Issue page.

Acknowledgements: This briefing was compiled by Wendy Sawyer based on previously published writing by current staffers Wanda Bertram, Alexi Jones, Wendy Sawyer, and by Policy Initiative alumns Joshua Aiken, Alex Clark, Lucius Couloute, and Elliot Oberholtzer.


With help from artist Kevin Pyle, we explain why very few people who apply for compassionate release are approved — even during a pandemic.

by Emily Widra and Wanda Bertram, May 29, 2020

With the coronavirus pandemic threatening to turn prison sentences into death sentences, many incarcerated people are seeking compassionate release — the release of people who are facing imminent death and who pose no threat to the public — to save them from dying of COVID-19 in prison. Unfortunately, what they, and the American public, are learning is that compassionate release is not a transparent and linear process, but an unpredictably ordered series of obstacles. As artist Kevin Pyle depicts here, these hurdles and delays kill the vast majority of compassionate release petitions:

Artwork by Kevin Pyle showing the complicated maze of steps required for incarcerated people to apply for compassionate release resulting in only 6% of applications being approved, while the other 94% applicants are left to die in prison. Analysis based on federal Bureau of Prisons data, no state data available.

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.1

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.),2 but the basic framework is the same: An incarcerated person is recommended3 for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.4
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”5
  • Allowing the ultimate decision-makers6 to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one.

There is plenty of room for states to improve their compassionate release processes. In our 2018 report Eight Keys to Mercy, we recommended that states:

  • Make compassionate release available to all incarcerated people, irrespective of the offenses for which they are incarcerated.
  • Streamline all compassionate release processes and set reachable deadlines so that petitioners don’t die due to bureaucratic bottlenecks before they are released.
  • Limit the ability of prison officials to overrule, on medical grounds, a recommendation of release by medical professionals.

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

Footnotes

  1. According to the New York Times, between 2013 and 2017, the federal Bureau of Prisons approved only 6% of the 5,400 compassionate release applications received; meanwhile, 266 other applicants died in prison. Their analysis of federal prison data shows that it takes over six months, on average, for an incarcerated person to receive an answer on their compassionate release application from the BOP. In one tragic example, prison officials denied an application for someone because the BOP put aside prison doctors’ prognosis of less than six months and concluded that he had more than 18 months to live, despite. Two days after receiving the denial, he died.  ↩
  2. FAMM’s national survey found that not all states use the term “compassionate release” and instead refer to these programs as medical and geriatric parole, short- and long-term furloughs, suspension or reduction of sentences, and executive clemency on medical grounds.  ↩
  3. There are major differences between state policies, but for a more comprehensive view of state policies, go to FAMM’s detailed breakdown on state practices in their 2018 report.  ↩
  4. In Hawai’i, being “too ill or cognitively impaired to participate in rehabilitation and/or to be aware of punishment” can qualify someone for consideration for release on medical grounds.  ↩
  5. In a uniquely positive development, new guidelines for federal prisons issued by the U.S. Sentencing Commission do not require a short-term “terminal” prognosis, as an excellent article in Health Affairs points out.  ↩
  6. The “ultimate decision-makers” vary greatly by jurisdiction. For example, in the federal system, the prison warden makes a recommendation, but the final word on compassionate release comes from the Central Office of the Bureau of Prisons. In other jurisdictions, courts have the final say on compassionate release: in D.C., decisions are made in the superior court, and in Ohio the sentencing court rules on compassionate release. The Department of Corrections’ commissioner makes the decision in Massachusetts, Minnesota, and Mississippi (in Mississippi, the decision is made jointly with the Chief Medical Officer). In Arizona, Virginia, and West Virginia, the governor decides who is granted compassionate release after hearing a recommendation from the parole board. Many states rely on the parole board to make compassionate release decisions, including Alabama, California, and North Carolina. For the decision makers in every state, see FAMM’s state-specific memos.  ↩

Parole boards are granting parole contingent on participation in programs that are often not readily available for people behind bars, especially during the pandemic.

by Emily Widra and Wendy Sawyer, May 21, 2020

With public health officials and criminal justice reform advocates urging prisons to reduce their populations, people who have already been approved for release should be the first to return to their communities and families. Instead, thousands of them are waiting behind bars — where social distancing is impossible — as prisons across the country become the epicenters of the COVID-19 pandemic.

These are the people who have already been granted parole by the state parole boards, but have not yet taken a class or program that the parole board requires them to complete before they can go home. They are near enough to the end of their sentences to be parole-eligible, and the parole board has determined that they are “safe” to return to the community, but they cannot be released until they complete a program, often a drug and alcohol treatment program.

timeline showing that after being granted parole, people remain in prison waiting to participated in mandated programming Parole boards are granting parole contingent on participation in programs that are often not readily available for people behind bars. If states changed their policies to allow for these programs to occur in the community upon re-entry, they would see the prison population drop without making any other significant release policy changes. Studies show that, at least for the therapeutic community model used in many prison systems, there is nothing unique to the prison context that makes these programs more effective than when they are done in the community.

Tennessee offers a striking example of this potentially devastating policy failure. Over 1,300 COVID-19 cases in Tennessee are connected to a single state prison — Trousdale Turner Correctional Center — making it the third largest source of COVID-19 cases in the country. As Nashville defense attorney David Raybin explained to NewsChannel5, over 1,000 people in Tennessee prisons have been approved for parole but are waiting to participate in the mandated programming, most often the Department of Correction’s therapeutic community program, which lasts 9-12 months. That means Tennessee could reduce its prison population by almost 4% by releasing just those who have already been approved for parole.1

Evidence shows that these programs are effective whether offered before or after release, but states have been reluctant to offer these programs in communities instead of in prisons. But of course, education and treatment programming across the nation’s prison systems have been interrupted by the virus, as volunteers and educators are no longer entering the prison system on a regular basis; in Tennessee, the Department of Correction released a statement that the virus is causing “some disruption in programming.” Even in the best of times, participation in these programs is limited and people wait behind bars for a space in the program before they can be released.

This is not a new problem for Tennessee. Before the pandemic, a taskforce commissioned by the governor found that 40% of people granted parole from 2015-2019 had not actually been released because they were still waiting to participate in pre-release programs mandated by the parole board. That means that over those four years, more than 6,000 people were parole-eligible, reviewed and approved for release by the parole board, and then remained in prison simply because the mandated program was not offered at their facility or the maximum number of participants had already been reached.

Where did this problem come from?

Every state is different, but in Tennessee and some other states, the parole board appears to decide the criteria for someone’s release, while the prison system runs the classes and decides who is eligible to take them. Governors and state legislators need to be aware that these two parts of the criminal justice system are working against each other and against public health.

Nor is this problem unique to Tennessee. A 2015 survey by the Robina Institute revealed that at least 40 states use “institutional program participation” as a factor in release decision-making for parole. In Texas, families have voiced their concern about loved ones who have been granted parole, but are still waiting to complete a pre-release program. Officials report that people often wait for months after being granted parole to begin these programs that provide education, life skills and employment training, substance abuse treatment, and other important re-entry supports. But waiting for programming that is on-hold or indefinitely postponed is no reason for people to remain in prison, especially when incarceration puts them at a heightened risk for contracting the virus.

If parole boards do not change this practice, for as long as the virus causes a “disruption in programming,” the number of people approved for parole but still in prison will continue to grow. The solution is obvious: Parole boards can waive the requirement or offer the therapeutic community programming after release. Especially given the current public health crisis, it makes sense for these programs — which, again, have been shown to be effective when offered after release — to be moved to the community setting when it is safe to do so. And in the meantime, people who have been approved for parole should be released as quickly as possible as part of the state’s efforts to protect incarcerated people and the larger community.

The Prison Policy Initiative is exploring doing a larger project evaluating prison programming, particularly the programming used to make parole decisions. If you happen to have copies of the curricula for any programs run in your state, please send a copy to virusresponse@prisonpolicy.org.

Footnotes

  1. Tennessee’s total prison population on March 31st, 2020 was 26,124, according to the Vera Institute of Justice’s recent report, People in Prison 2019, so releasing 1,000 people would be a 4% reduction.  ↩

Some correctional authorities - responding to bad guidance from the IRS - are intercepting and returning stimulus checks for incarcerated people. We explain why people in prison and jail are eligible for, and should be receiving, emergency aid.

by Stephen Raher, May 18, 2020

Update: IRS still hasn’t explained why eligible incarcerated people should not receive stimulus checks

June 30, 2020: Since this article came out, other commentators have also raised questions about IRS’s lack of justification for withholding stimulus payments from incarcerated people who otherwise meet the statutory criteria. Some have even pointed out that the last time Congress enacted a program of individual stimulus payments (in 2009), some incarcerated people were excluded from eligibility. This illustrates that Congress knows how to exclude incarcerated people when it wants to, but it took no such action in the CARES Act.

As far as the prevalence of the issue, the Associated Press reports that “hundreds of thousands of dollars” in stimulus payments were sent to incarcerated recipients. The same article states that prison systems in Kansas, Idaho, Montana, Vermont, Mississippi, Pennsylvania, Arizona, California, and Oregon have all intercepted and returned payments that were mailed to people in state prisons. The General Accounting Office’s report on pandemic programs states that the IRS “worked with federal and state prison officials to assist in the return of payments made to incarcerated individuals.” This admission from IRS is particularly puzzling given that the agency is currently warning hospitals and nursing homes not to intercept stimulus payments sent to patients because the payments belong to the individual recipient, not the facility. The IRS has not given any explanation of why prisons are different from hospitals in this regard.

On March 27, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, more commonly known as the “CARES Act.” One of the better-known aspects of the 883-page bill is the Treasury’s disbursement of one-time economic stimulus payments, which were designed with broad eligibility requirements to get financial relief into people’s pockets as quickly as possible.

Now, the IRS is claiming that incarcerated people do not “qualify” for stimulus payments and the agency is attempting to “claw back” badly needed funds from vulnerable people who may need it most. But this policy is contradicted by the unambiguous language of the CARES Act itself.

Does incarceration make people ineligible for stimulus payments?

In short: According to the CARES Act, no. The provision regarding the stimulus payments is fairly straightforward: the government is directed to distribute $1,200 to every “eligible individual.”1 An eligible individual is defined as “any individual” other than a nonresident immigrant, someone who is claimed as a dependent on another person’s tax return, a probate estate, or a trust.2 Other parts of the law reduce the size of payments to high-earning taxpayers3 and require eligible individuals to have tax ID numbers.4 These basic eligibility requirements appear in the law itself, and are repeated on the IRS’s webpage regarding stimulus payments. There is no language in the statute that directly or indirectly suggests that incarceration status affects eligibility.

Why have I heard that payments to incarcerated people should be returned?

On May 6, 2020, the IRS updated the frequently asked questions (“FAQs”) on its webpage to say that incarcerated people do not qualify for stimulus payments and should return any payments that they receive. The IRS cites no authority for this, and the only law mentioned in the FAQ is the statute that prohibits incarcerated people from receiving Social Security payments. But this is irrelevant since the stimulus payments are refundable tax credits5 having nothing to do with Social Security. Despite the fact that this new advice comes from an IRS FAQ page, and not from the CARES Act itself, it has been cited widely in publications like Forbes, leading to a lot of confusion.

How is it possible that the IRS website would give advice that’s not consistent with the law?

There is a well-defined process for the IRS to issue rules and regulations that supplement tax laws passed by Congress. The purported ban on stimulus payments to incarcerated people was not a result of this rulemaking process. Instead, it appears that IRS made up this “rule” out of whole cloth and announced it by posting it on a webpage.

It’s impossible to say why the IRS took this unusual approach, but here’s one theory: someone in the Treasury Department may have decided that giving money to incarcerated people is bad policy. Of course, the IRS is severely under-resourced, as a result of decades of attacks by grandstanding members of Congress, so the agency doesn’t have the time or staff to go after individual incarcerated people to claw back stimulus payments. And the IRS would likely lose in court if such an action were challenged in litigation. But, by placing an FAQ on the agency’s website saying that incarcerated people cannot receive the payments, some prison systems will probably do the IRS’s dirty work by using the FAQ as a justification to intercept payments or bring disciplinary action against people who take the steps to claim the money to which they are legally entitled. In fact, we’ve heard that at least one state prison system is already doing this.

It is entirely reasonable to give emergency financial aid to incarcerated people

Even though this issue is fundamentally about the rule of law (more about that in a minute), as a practical matter some people can’t fathom giving money to incarcerated people or others who are “dependent” on the government. But there are good reasons why people in jail or prison need emergency aid in these unprecedented times. First, many incarcerated people will be released soon (especially people in jail, where stays tend to be for short periods of time). Navigating the financial hurdles of post-incarceration life is difficult even in normal times. But to state the obvious, we are not in normal times: given the record-high unemployment rates, the well-documented challenges of finding work as a formerly incarcerated person are only going to get more formidable. It makes perfect sense for the government to provide monetary aid so that recently released people can obtain housing, clothing, and food. The CARES Act stimulus payments, while modest, can provide literally lifesaving assistance for people being released from incarceration.

It also makes sense to give money to people who won’t necessarily be released from custody soon. Prisons and jails have shifted more and more costs onto incarcerated people — costs for things like hygiene supplies, medical copayments, and communication with loved ones. Since incarcerated people have little ability to earn money, they tend to rely on money transfers from friends and family to pay for basic necessities. But as family members on the outside (who are often low-income to begin with) lose their jobs in the pandemic-induced economic collapse, families will be increasingly less able to send money to loved ones inside. Providing stimulus funds to incarcerated people helps protect the health and well-being of those behind bars and provides relief to their loved ones at home.

The implications of the IRS’s policy for our government and the rule of law

Beyond the immediate implications for incarcerated people and their families, the IRS’s errant attempt to prevent incarcerated people from receiving stimulus payments is troublesome because it upends our system of government, specifically the separation of powers. Executive-branch agencies (like the IRS) are charged with implementing the laws passed by Congress, not changing the law. But that seems to be exactly what’s happening here: Congress said to give everyone money, but then the Treasury Department thought that incarcerated people should have been excluded. As every first-year law student learns, it is settled law that unambiguous statutes are to be applied as written, even if that could lead to arguably unintended consequences.6

Furthermore, interfering with the administration of the federal tax system (which would presumably include interfering with someone’s ability to claim a valid tax refund) is a federal crime.7 But we live in a time when the national government operates under a philosophy that only some people (namely, people without the right connections) are obliged to obey the law. The IRS’s sudden about-face on stimulus payments provides a troubling illustration of this mindset: a government agency has ignored the clear-cut language of the governing law in an effort to impose additional punishment on people who are serving time for violating other laws.

Footnotes

  1. 26 U.S.C. § 6428(a) and (f).  ↩

  2. 26 U.S.C. § 6428(d).  ↩

  3. 26 U.S.C. § 6428(c).  ↩

  4. 26 U.S.C. § 6428(g)  ↩

  5. Even though the stimulus payments are tax credits, the CARES Act is very clear that people may claim the payments even if they have no taxable income. See Revenue Procedure 2020-28.  ↩

  6. See Magwood v. Patterson, 561 U.S. 320, 334 (2010) (“[Courts] cannot replace the actual text [of a statute] with speculation as to Congress’ intent.”); Henson v. Santander Consumer USA, 137 S.Ct. 1718, 1725 (2017) (“[I]t is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.”).  ↩

  7. 26 U.S.C. § 7212(a).  ↩









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