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

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Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue.


by Emma Peyton Williams,

February 27, 2023

Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.

Incarcerated women have been one of the fastest-growing prison populations in recent decades, and incarcerated mothers are five times as likely to have their children placed in foster care and are more likely to have their parental rights terminated due to incarceration than fathers. These trends suggest that the number of kids separated from their primary caregivers by incarceration may be growing, increasing the urgency of an already serious problem.

Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights, but advocates are fighting for creative and holistic solutions.

Map showing 12 states that have taken action to address family separation by incarceration

As a result of tireless advocacy, often led by formerly incarcerated women, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)

 

Caregiver mitigation and diversion laws: The best existing reform targeting family separation

Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,1 Louisiana, Oregon,2 Tennessee, Washington, and Missouri, 3 4 caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill proposed in Tennessee.)

It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.

Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)

Even when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway,5 and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.

 

Proximity laws: A promising reform facing major implementation challenges

While the best scenario is for children and parents to remain in the home together, continued family contact can mitigate harmful impacts when a parent is incarcerated. Between 2007 and 2020, Florida, Hawaii, New Jersey, New York, and the federal prison system created a maximum distance allowed between parent and child. Ideally, this decreased distance will make in-person visits more accessible, which can lead not only to benefits for the child but improvements in the incarcerated parent’s mental health and a reduced risk of recidivism.6

Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”7 Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.8 Further, many states only have one women’s prison that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.

Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”9 such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.

 

Considerations for successful policy and advocacy efforts

A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.

Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:

Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.

 
 

Emma Peyton Williams is a consultant at the Prison Policy Initiative. (Other articles | Contact)

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Mass Incarceration: The Whole Pie 2023

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By Wendy Sawyer and Peter Wagner  
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March 14, 2023
Press release

Sections
The big picture
The impact of COVID
9 Myths
High costs of low-level offenses
Youth, immigration & involuntary commitment
Beyond the Pie: Community supervision, poverty, race, and gender
Necessary reforms
Sources

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 181 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. 1

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform.

This big-picture view is a lens through which the main drivers of mass incarceration come into focus;4 it allows us to identify important, but often ignored, systems of confinement. The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system. In 2021, about 421,000 people entered prison gates,5 but people went to jail almost 7 million times.67 Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.8 Only a small number (about 87,500 on any given day) have been convicted, and are generally serving misdemeanors sentences of under a year. At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration.

With a sense of the big picture, the next question is: why are so many people locked up? How many are incarcerated for drug offenses? Are the profit motives of private companies driving incarceration? Or is it really about public safety and keeping dangerous people off the streets? There are a plethora of modern myths about incarceration. Most have a kernel of truth, but these myths distract us from focusing on the most important drivers of incarceration.

Nine myths about mass incarceration

The overcriminalization of drug use, the use of private prisons, and low-paid or unpaid prison labor are among the most contentious issues in criminal justice today because they inspire moral outrage. But they do not answer the question of why most people are incarcerated or how we can dramatically — and safely — reduce our use of confinement. Likewise, emotional responses to sexual and violent offenses often derail important conversations about the social, economic, and moral costs of incarceration and lifelong punishment. False notions of what a “violent crime” conviction means about an individual’s dangerousness continue to be used in an attempt to justify long sentences — even though that’s not what victims want. At the same time, misguided beliefs about the “services” provided by jails are used to rationalize the construction of massive new “mental health jails.” Finally, simplistic solutions to reducing incarceration, such as moving people from jails and prisons to community supervision, ignore the fact that “alternatives” to incarceration often lead to incarceration anyway. Focusing on the policy changes that can end mass incarceration, and not just put a dent in it, requires the public to put these issues into perspective.

The first myth: Private prisons are the corrupt heart of mass incarceration

In fact, just 7% of all incarcerated people are held in private prisons; the vast majority are in publicly-owned prisons and jails.11 Some states have more people in private prisons than others, of course, and the industry has lobbied to maintain high levels of incarceration, but private prisons are essentially a parasite on the massive publicly-owned system — not the root of it.

Nevertheless, a range of private industries and even some public agencies continue to profit from mass incarceration. Many city and county jails rent space to other agencies, including state prison systems,12 the U.S. Marshals Service, and Immigration and Customs Enforcement (ICE). Private companies are frequently granted contracts to operate prison food and health services (often so bad they result in major lawsuits), and prison and jail telecom and commissary functions have spawned multi-billion dollar private industries. By privatizing services like phone calls, medical care, and commissary, prisons and jails are offloading the costs of incarceration onto incarcerated people and their families, trimming their budgets at an unconscionable social cost.

Graph showing that only a small portion of incarcerated people, for all facility types are incarcerated in privately owned prisons and jails. In total, less than 7% are in private prisons, with 75,000 held for state prisons, 19,000 for the Bureau of Prisons and the U.S. Marshals Service, 19,000 for Immigration and Customs Enforcement, 9,000 held for youth systems and 12,000 held for local authorities.
Private prisons and jails hold just 7% of all incarcerated people, making them a relatively small part of a mostly publicly-run correctional system.

The second myth: Prisons are “factories behind fences” that exist to provide companies with a huge slave labor force

Simply put, private companies using prison labor are not what stands in the way of ending mass incarceration, nor are they the source of most prison jobs. Only about 5,000 people in prison — less than 1% — are employed by private companies through the federal PIECP program, which requires them to pay at least minimum wage before deductions. (A larger portion work for state-owned “correctional industries,” which pay much less, but this still only represents about 6% of people incarcerated in state prisons.)13

But prisons do rely on the labor of incarcerated people for food service, laundry, and other operations, and they pay incarcerated workers unconscionably low wages: our 2017 study found that on average, incarcerated people earn between 86 cents and $3.45 per day for the most common prison jobs.14 In at least five states, those jobs pay nothing at all. Moreover, work in prison is compulsory, with little regulation or oversight, and incarcerated workers have few rights and protections. If they refuse to work, incarcerated people face disciplinary action. For those who do work, the paltry wages they receive often go right back to the prison, which charges them for basic necessities like medical visits and hygiene items. Forcing people to work for low or no pay and no benefits, while charging them for necessities, allows prisons to shift the costs of incarceration to incarcerated people — hiding the true cost of running prisons from most Americans.

The third myth: Releasing “nonviolent drug offenders” would end mass incarceration

It’s true that police, prosecutors, and judges continue to punish people harshly for nothing more than drug possession. Drug offenses still account for the incarceration of over 350,000 people, and drug convictions remain a defining feature of the federal prison system. And until the pandemic hit (and the official crime data became less reliable), police were still making over 1 million drug possession arrests each year,15 many of which lead to prison sentences. Drug arrests continue to give residents of over-policed communities criminal records, hurting their employment prospects and increasing the likelihood of longer sentences for any future offenses.

Nevertheless, 4 out of 5 people in prison or jail are locked up for something other than a drug offense — either a more serious offense or an even less serious one. To end mass incarceration, we will have to change how our society and our criminal legal system responds to crimes more serious than drug possession. We must also stop incarcerating people for behaviors that are even more benign.

The fourth myth: By definition, “violent crime” involves physical harm

The distinction between “violent” and “nonviolent” crime means less than you might think; in fact, these terms are so widely misused that they are generally unhelpful in a policy context. In the public discourse about crime, people typically use “violent” and “nonviolent” as substitutes for serious versus nonserious criminal acts. That alone is a fallacy, but worse, these terms are also used as coded (often racialized) language to label individuals as inherently dangerous versus non-dangerous.

In reality, state and federal laws apply the term “violent” to a surprisingly wide range of criminal acts — including many that don’t involve any physical harm. In some states, purse-snatching, manufacturing methamphetamines, and stealing drugs are considered violent crimes. Burglary is generally considered a property crime, but an array of state and federal laws classify burglary as a violent crime in certain situations, such as when it occurs at night, in a residence, or with a weapon present. So even if the building was unoccupied, someone convicted of burglary could be punished for a violent crime and end up with a long prison sentence and “violent” record.

The common misunderstanding of what “violent crime” really refers to — a legal distinction that often has little to do with actual or intended harm — is one of the main barriers to meaningful criminal justice reform. Reactionary responses to the idea of violent crime often lead policymakers to categorically exclude from reforms people convicted of legally “violent” crimes. But almost half (47%) of people in prison and jail are there for offenses classified as “violent,” so these carveouts end up gutting the impact of otherwise well-crafted policies. As we and many others have explained before, cutting incarceration rates to anything near international norms will be impossible without changing how we respond to violent crime. To start, we have to be clearer about what that loaded term really means.

The fifth myth: People in prison for violent or sexual crimes are too dangerous to be released

Of course, many people convicted of violent offenses have caused serious harm to others. But how does the criminal legal system determine the risk that they pose to their communities? Again, the answer is too often “we judge them by their offense type,” rather than “we evaluate their individual circumstances.” This reflects the particularly harmful myth that people who commit violent or sexual crimes are incapable of rehabilitation and thus warrant many decades or even a lifetime of punishment.

As lawmakers and the public increasingly agree that past policies have led to unnecessary incarceration, it’s time to consider policy changes that go beyond the low-hanging fruit of “non-non-nons” — people convicted of non-violent, non-serious, non-sexual offenses. Again, if we are serious about ending mass incarceration, we will have to change our responses to more serious and violent crime.

Recidivism data do not support the belief that people who commit violent crimes ought to be locked away for decades for the sake of public safety. People convicted of violent and sexual offenses are actually among the least likely to be rearrested, and those convicted of rape or sexual assault have rearrest rates 20% lower than all other offense categories combined. One reason for the lower rates of recidivism among people convicted of violent offenses: age is one of the main predictors of violence. The risk for violence peaks in adolescence or early adulthood and then declines with age, yet we incarcerate people long after their risk has declined.16

Sadly, most state officials ignored this evidence even as the pandemic made obvious the need to reduce the number of people trapped in prisons and jails, where COVID-19 ran rampant. Instead of considering the release of people based on their age or individual circumstances, most officials categorically refused to consider people convicted of violent or sexual offenses, dramatically reducing the number of people eligible for earlier release.17

The sixth myth: Reforming the criminal legal system leads to more crime

The specter of “rising crime” has re-emerged as a central issue among elected officials, political candidates, and in media commentary, but their explanations and exaggerations of recent crime trends don’t add up. It’s true that while overall crime rates fell, certain types of offenses rose significantly in 2020, and by a much smaller margin in 2021 — especially homicides, shootings, and motor vehicle thefts. As in the past, many in law enforcement and on the right have been quick to blame recent reforms for shifts in crime trends and to resurrect the same “tough on crime” policies that failed in the 80s and 90s. But claims that recent changes in crime were the result of reforms — such as bail reform, changes to police budgets, or electing “progressive” prosecutors — are simply not supported by the evidence. In reality, a number of studies have shown:

While the rise in certain serious types of crime is very concerning, the truth is that overall crime rates remain near historic lows. What has actually changed most is the public’s perception of crime, which is driven less by first-hand experience than by the false claims of reform opponents. These false claims are deliberately stoked to undo the hard-won, evidence supported, common sense reforms that have only begun put a dent in mass incarceration.

The seventh myth: Crime victims support long prison sentences

Policymakers, judges, and prosecutors often invoke the name of victims to justify long sentences for violent offenses. But contrary to the popular narrative, most victims of violence want violence prevention, not incarceration. Harsh sentences don’t deter violent crime, and many victims believe that incarceration can make people more of a public safety risk. National survey data show that most victims support violence prevention, social investment, and alternatives to incarceration that address the root causes of crime, not more investment in carceral systems that cause more harm.19 This suggests that they care more about the health and safety of their communities than they do about retribution.

Chart showing responses from a 2022 survey of violent crime victims. 75% prefer holding people accountable through options beyond imprisonment. 80% prefer investing more in mental health treatment instead of in prisons and jails. 72% prefer offering incentives for pre-release rehabilitation, like time credits toward earlier release, over requiring completion of the full sentence. 71% prefer reducing jail populations through pretrial release, diversion, community service, or treatment programs.
Victims and survivors of crime prefer investments in crime prevention rather than long prison sentences.

Moreover, people convicted of crimes are often victims themselves, complicating the moral argument for harsh punishments as “justice.” While conversations about justice tend to treat perpetrators and victims of crime as two entirely separate groups, people who engage in criminal acts are often victims of violence and trauma, too — a fact behind the adage that “hurt people hurt people.”20 As victims of crime know, breaking this cycle of harm will require greater investments in communities, not the carceral system.

The eighth myth: Some people need to go to jail to get treatment and services

It’s absolutely true that people ensnared in the criminal legal system have a lot of unmet needs. But jails and prisons are no place to recover from a mental health crisis or substance use disorder. Local jails, especially, are filled with people who need medical care and social services, but jails have repeatedly failed to provide these services. For example, while two-thirds of people in local jails have substance use disorders, only a tiny fraction of all jails provide medication-assisted treatment (MAT) for opioid use disorder—the gold standard for care. That means that rather than providing drug treatment, jails more often interrupt drug treatment by cutting patients off from their medications. Between 2000 and 2018, the number of people who died of intoxication while in jail increased by almost 400%; typically, these individuals died within just one day of admission.21

Similarly, jails often put people with mental health problems in solitary confinement, provide limited access to counseling, and leave them unmonitored due to constant staffing shortages. The result: suicide is the leading cause of death in local jails, with death rates far exceeding those found in the general U.S. population. Given this track record, the trend of proposing new “mental health jails” to respond to decades of disinvestment in community-based services is particularly alarming. Jails are not safe detox facilities, nor are they capable of providing the therapeutic environment people require for long-term recovery and healing.

Most importantly, jail and prison environments are in many ways harmful to mental and physical health. Decades of research show that many of the defining features of incarceration are stressors linked to negative mental health outcomes: disconnection from family, loss of autonomy, boredom and lack of purpose, and unpredictable surroundings. Inhumane conditions, such as overcrowding, solitary confinement, and experiences of violence also contribute to the lasting psychological effects of incarceration, including the PTSD-like Post-Incarceration Syndrome. As the late Dr. Seymour Halleck observed, “The prison environment is almost diabolically conceived to force the offender to experience the pangs of what many psychiatrists would describe as mental illness.” Even when other options for providing mental health and substance use treatment are scarce, decisionmakers should not rely on correctional settings to do so.

The ninth myth: Expanding community supervision is the best way to reduce incarceration

Community supervision, which includes probation, parole, and pretrial supervision, is often seen as a “lenient” punishment or as an ideal “alternative” to incarceration. But while remaining in the community is certainly preferable to being locked up, the conditions imposed on those under supervision are often so restrictive that they set people up to fail. The long supervision terms, numerous and burdensome requirements, and constant surveillance (especially with electronic monitoring) result in frequent “failures,” often for minor infractions like breaking curfew or failing to pay unaffordable supervision fees.

In 2021, at least 128,000 people were incarcerated for non-criminal violations of probation or parole, often called “technical violations.”2223 These supervision violations accounted for 27% of all admissions to state and federal prisons. Probation, in particular, leads to unnecessary incarceration; until it is reformed to support and reward success rather than detect mistakes, it is not a reliable “alternative.”

The high costs of low-level offenses

Most justice-involved people in the U.S. are not accused of serious crimes; more often, they are charged with misdemeanors or non-criminal violations. Yet even low-level offenses, like technical violations of probation and parole, can lead to incarceration and other serious consequences. Rather than investing in community-driven safety initiatives, cities and counties are still pouring vast amounts of public resources into the processing and punishment of these minor offenses.

Probation & parole violations and “holds” lead to unnecessary incarceration

Often overlooked in discussions about mass incarceration are the various “holds” that keep people behind bars for administrative reasons. A common example is when people on probation or parole are jailed for violating their supervision, either for a new crime or a non-criminal (or “technical”) violation. If a parole or probation officer suspects that someone has violated supervision conditions, they can file a “detainer” (or “hold”), rendering that person ineligible for release on bail. For people struggling to rebuild their lives after conviction or incarceration, returning to jail for a minor infraction can be profoundly destabilizing. The most recent data show that nationally, almost 1 in 5 (19%) people in jail are there for a violation of probation or parole, though in some places these violations or detainers account for over one-third of the jail population. This problem is not limited to local jails, either; in 2019, the Council of State Governments found that nearly 1 in 4 people in state prisons are incarcerated as a result of supervision violations. During the first year of the pandemic, that number dropped only slightly, to 1 in 5 people in state prisons.

Misdemeanors: Minor offenses with major consequences

The “massive misdemeanor system” in the U.S. is another important but overlooked contributor to overcriminalization and mass incarceration. For behaviors as benign as jaywalking or sitting on a sidewalk, 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). These low-level offenses typically account for about 25% of the daily jail population nationally,24 and much more in some states and counties.

Misdemeanor charges may sound trivial, but they carry serious financial, personal, and social costs, especially for defendants but also for broader society, which finances the processing of these court cases and all of the unnecessary incarceration that comes with them. And then there are the moral costs: People charged with misdemeanors are often not appointed counsel and are pressured to plead guilty and accept a probation sentence to avoid jail time. This means that innocent people routinely plead guilty and are then burdened with the many collateral consequences that come with a criminal record, as well as the heightened risk of future incarceration for probation violations. A misdemeanor system that pressures innocent defendants to plead guilty seriously undermines American principles of justice.

“Low-level fugitives” live in fear of incarceration for missed court dates and unpaid fines

Defendants can end up in jail even if their offense is not punishable with jail time. Why? Because if a defendant fails to appear in court or to pay fines and fees, the judge can issue a “bench warrant” for their arrest, directing law enforcement to jail them in order to bring them to court. While there is currently no national estimate of the number of active bench warrants, their use is widespread and, in some places, incredibly common. In Monroe County, N.Y., for example, over 3,000 people have an active bench warrant at any time, more than 3 times the number of people in the county jails.

But bench warrants are often unnecessary. Most people who miss court are not trying to avoid the law; more often, they forget, are confused by the court process, or have a schedule conflict. Once a bench warrant is issued, however, defendants frequently end up living as “low-level fugitives,” quitting their jobs, becoming transient, and/or avoiding public life (even hospitals) to avoid having to go to jail.

Lessons from the smaller “slices”: Youth, immigration, and involuntary commitment

Looking more closely at incarceration by offense type also exposes some disturbing facts about the 47,000 youth in confinement in the United States: too many are there for a “most serious offense” that is not even a crime. For example, there are over 5,000 youth behind bars for non-criminal violations of their probation rather than for a new offense. An additional 1,400 youth are locked up for “status” offenses, which are “behaviors that are not law violations for adults such as running away, truancy, and incorrigibility.”25 About 1 in 16 youth held for a criminal or delinquent offense is locked in an adult jail or prison, and most of the others are held in juvenile facilities that look and operate a lot like prisons and jails.

Turning to the people who are locked up criminally and civilly for immigration-related reasons, we find that almost 6,000 people are in federal prisons for criminal convictions of immigration offenses, and 12,400 more are held pretrial by the U.S. Marshals. The vast majority of people incarcerated for criminal immigration offenses are accused of illegal entry or illegal reentry — in other words, for no more serious offense than crossing the border without permission.26

Another 23,300 people are civilly detained by U.S. Immigration and Customs Enforcement (ICE) not for any crime, but simply because they are facing deportation.27 ICE detainees are physically confined in federally-run or privately-run immigration detention facilities, or in local jails under contract with ICE. This number is almost half what it was pre-pandemic, but it’s actually climbed back up from a record low of 13,500 people in ICE detention in early 2021. As in the criminal legal system, these pandemic-era trends should not be interpreted as evidence of reforms.28 In fact, ICE is rapidly expanding its overall surveillance and control over the non-criminal migrant population by growing its electronic monitoring-based “alternatives to detention” program.29

small line graph showing the exponential growth of the Alternatives to Detention program between 2019 and 2021

An additional 7,900 unaccompanied children are held in the custody of the Office of Refugee Resettlement (ORR), awaiting placement with parents, family members, or friends. Their number has more than doubled since January of 2020. While these children are not held for any criminal or delinquent offense, most are held in shelters or even juvenile placement facilities under detention-like conditions.30

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pretrial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed or detained after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons. Meanwhile, at least 38 states allow civil commitment for involuntary treatment for substance use, and in many cases, people are sent to actual prisons and jails, which are inappropriate places for treatment.31

Once we have wrapped our minds around the “whole pie” of mass incarceration, we should zoom out and note that people who are incarcerated are only a fraction of those impacted by the criminal justice system. There are another 803,000 people on parole and a staggering 2.9 million people on probation. Many millions more have completed their sentences but are still living with a criminal record, a stigmatizing label that comes with collateral consequences such as barriers to employment and housing.

Chart showing how many people in the U.S. are directly impacted by mass incarceration. In addition to the 1.9 million people incarcerated today, 4.9 million are formerly imprisoned, 19 million have been convicted of a felony, 79 million have a criminal record, and 113 million adults have an immediate family member who has ever been to prison or jail.
Far more people are impacted by mass incarceration than the 1.9 million currently confined. An estimated 19 million people are burdened with the collateral consequences of a felony conviction (this includes those currently and formerly incarcerated), and an estimated 79 million have a criminal record of some kind; even this is likely an underestimate, leaving out many people who have been arrested for misdemeanors. Finally, FWD.us reports that 113 million adults (45%) have had an immediate family member incarcerated for at least one night.

Beyond identifying how many people are impacted by the criminal justice system, we should also focus on who is most impacted and who is left behind by policy change. Poverty, for example, plays a central role in mass incarceration. People in prison and jail are disproportionately poor compared to the overall U.S. population.32 The criminal justice system punishes poverty, beginning with the high price of money bail: The median felony bail bond amount ($10,000) is the equivalent of 8 months’ income for the typical detained defendant. As a result, people with low incomes are more likely to face the harms of pretrial detention. Poverty is not only a predictor of incarceration; it is also frequently the outcome, as a criminal record and time spent in prison destroys wealth, creates debt, and decimates job opportunities.33

It’s no surprise that people of color — who face much greater rates of poverty — are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Black Americans, who make up 38% of the incarcerated population despite representing only 12% of U.S residents. The same is true for women, whose incarceration rates have for decades risen faster than men’s, and who are often behind bars because of financial obstacles such as an inability to pay bail. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.

Equipped with the full picture of how many people are locked up in the United States, where, and why, we all have a better foundation for moving the conversation about criminal legal system reform forward. For example, the data makes it clear that ending the war on drugs will not alone end mass incarceration, though the federal government and some states have taken an important step by reducing the number of people incarcerated for drug offenses. Looking at the “whole pie” of mass incarceration opens up conversations about where it makes sense to focus our energies at the local, state, and national levels. For example:

  • How can we effectively invest in communities to make it less likely that someone comes into contact with the criminal legal system in the first place? And what measures can help aid successful reentry and end the vicious cycle of re-incarceration that so many individuals and families experience?
  • Can we persuade government officials and prosecutors to revisit the reflexive, simplistic policymaking that has served to increase incarceration for “violent” offenses? How can we eliminate policy “carveouts” that exclude broad categories of people from reforms and end up gutting the impact of reforms?
  • What will it take to embolden policymakers and the public to do what it takes to shrink the second largest slice of the pie — the thousands of local jails? And what will it take to redirect public spending to smarter investments like community-based drug treatment and job training?
  • While the federal prison system is a small slice of the total pie, how can improved federal policies and financial incentives be used to advance state and county level reforms? And for their part, how can elected sheriffs, district attorneys, and judges — who all control larger shares of the correctional pie — slow the flow of people into the criminal legal system?
  • Given that the companies with the greatest impact on incarcerated people are not private prison operators, but service providers that contract with public facilities, how can governments end contracts that squeeze money from those behind bars and their families?
  • What reforms can we implement to both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal legal system?
  • What lessons can we learn from the pandemic? Are federal, state, and local governments prepared to respond to future pandemics, epidemics, natural disasters, and other emergencies, including with plans to decarcerate? And how can states and the federal government better utilize compassionate release and clemency powers moving forward?

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral “pie” and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

This section covers a lot of ground, from why we attempt to piece together the data ourselves in the first place to where we source the data and how we adjust it to make the various pieces fit together. Read on to learn:

  • Why we — and not the government — compile the data  ⤵
  • Which data sources we relied on for state and federal prisons and local jail populations  ⤵
  • Which data sources we used for the smaller slices of the “pie”: youth, immigration, involuntary commitments, U.S. territories, Indian Country jails, and the military ⤵
  • How we calculated the broader “pie” of correctional control, including probation and parole systems  ⤵
  • How we determined the number of private facilities  ⤵
  • How we adjusted the data to make sure people were only counted once  ⤵
  • What data we used to make our racial disparities graph — and why  ⤵

People new to criminal justice issues might reasonably expect that a big picture analysis like this would be produced not by advocates, but by the criminal legal system itself. The unfortunate reality is that there isn’t one centralized criminal legal system to do such an analysis. Instead, even thinking just about adult corrections, we have a federal system, 50 state systems, 3,000+ county systems, 25,000+ municipal systems, and so on. Each of these systems collects data for its own purposes that may or may not be compatible with data from other systems and that might duplicate or omit people counted by other systems.

This isn’t to discount the work of the Bureau of Justice Statistics, which, despite limited resources, undertakes the Herculean task of organizing and standardizing the data on correctional facilities. And it’s not to say that the FBI doesn’t work hard to aggregate and standardize police arrest and crime report data. But the fact is that the local, state, and federal agencies that carry out the work of the criminal justice system — and are the sources of BJS and FBI data — weren’t set up to answer many of the simple-sounding questions about the “system.”

Similarly, there are systems involved in the confinement of system-involved people that might not consider themselves part of the criminal legal system, but should be included in a holistic view of incarceration. Juvenile justice, civil detention and commitment, immigration detention, and commitment to psychiatric hospitals for criminal justice involvement are examples of this broader universe of confinement that is often ignored. The “whole pie” incorporates data from these systems to provide the most comprehensive view of incarceration possible.

To produce this report, we took the most recent data available for each part of these systems, and, where necessary, adjusted the data to ensure that each person was only counted once, only once, and in the right place. ⤴

Data sources

This briefing uses the most recent data available on the number of people in various types of facilities and the most significant charge or conviction. Because the various systems of confinement collect and report data on different schedules, this report reflects population data collected between 2019 and 2023 (and some of the data for people in psychiatric facilities dates back to 2014). Furthermore, because not all types of data are updated each year, we sometimes had to calculate estimates; for example, we applied the percentage distribution of offense types from the previous year to the current year’s total count data. For this reason, we chose to round most labels in the graphics to the nearest thousand, except where rounding to the nearest ten, nearest one hundred, or the nearest 500 was more informative given the context. This rounding process may also result in some parts not adding up precisely to the total.

Our data sources were:

  • State prisons: Bureau of Justice Statistics, Prisoners in 2021 — Statistical Tables Table 1 provides the total population as of December 31, 2021, and Table 16 provides data (as of December 31, 2020) that can be used to calculate the ratio of different offense types.
  • Jails: Bureau of Justice Statistics, Jail Inmates in 2021 — Statistical Tables Table 1 and Table 5, reporting average daily population and convicted status for midyear 2021, and our analysis of the Survey of Inmates in Local Jails, 2002.34
  • Federal:
    • Bureau of Prisons: : Federal Bureau of Prisons (BOP) Population Statistics, reporting data as of March 3, 2023 (total population of 157,930), and Prisoners in 2021 — Statistical Tables Table 19, reporting data as of September 30, 2021 (we applied the percentage distribution of offense types from that table to the 2023 BOP population).
    • U.S. Marshals Service provided its most recent estimated population count (60,439) in a February 2023 response to our FOIA request, reporting the projected average daily population for fiscal year 2023.

      The same response also provided a more detailed breakdown of this population by facility and offense type. The numbers of people held in federal detention centers (9,445), in directly-contracted private facilities (6,731), in non-paid facilities (17), and in all state, local, and indirectly-contracted (“pass thru”) facilities with Intergovernmental Service Agreements (IGAs) combined (44,246) came from the FOIA response. To determine how many people held in facilities with IGAs were held in local jails specifically (33,900, which includes an unknown portion of indirectly-contracted “pass thru” jails), we turned to Table 8 Jail Inmates in 2021 — Statistical Tables Table 8, reporting data as of June 30, 2021. The remainder of those in IGAs (10,346) were held in state facilities and other indirectly-contracted (“pass thru”) facilities (most of which are private), but the available data make it impossible to disaggregate those two groups.

      We created our own estimated offense breakdown by applying the ratios of reported offense types (excluding the vague “other new offense” and “writs, holds & transfers” categories”) to the total average daily population in 2023. (For those interested in the raw data including those categories, see page 9 of the 2023 FOIA response.) ⤴

  • Youth: Office of Juvenile Justice and Delinquency Prevention, Easy Access to the Census of Juveniles in Residential Placement (EZACJRP), reporting total population and facility data for October 23, 2019. (A more recent number of youth in residential placement in 2020 — 25,014 — was published in the Juvenile Residential Facility Census Databook, but we opted to use the 2019 data because of potential reporting issues related to the COVID-19 pandemic, noted in the Databook.) Our data on youth incarcerated in adult prisons comes from Prisoners in 2021 — Statistical Tables Table 15, reporting data for December 31, 2021, and youth in adult jails from Jail Inmates in 2021 — Statistical Tables Table 2, reporting data for the last weekday in June 2021. The number of youth reported in Indian Country facilities comes from the Bureau of Justice Statistics report Jails in Indian Country, 2021, and the Impact of COVID-19, July-December 2020 Table 6, also reporting data for the last weekday in June, 2021. For more information on the geography of the juvenile system, see the No Kids in Prison campaign.
  • Immigration detention: The average daily population of 26,47735 in Immigration and Customs Enforcement (ICE) detention comes from ICE’s FY 2023 ICE Statistics spreadsheet as of February 21, 2023. The count of 7,565 youth in Office of Refugee Resettlement (ORR) custody comes from the Unaccompanied Alien Children (UAC) Program Fact Sheet, reporting the population as of January 27, 2023. Our estimates of how many ICE detainees are held in federal, private, and local facilities come from our analysis of the same ICE FY 2023 ICE Statistics Spreadsheet. 9% were in federal ICE/BOP facilities (which we defined as Service Processing Centers, Staging facilities, and BOP detention centers); 72% in private contract facilities (including Contract Detention Facilities for ICE and U.S. Marshals Service and Dedicated Intergovernmental Service Agreements); and 19% in city and county-operated jails (including Intergovernmental Service Agreements for ICE and U.S. Marshals Service).
  • Criminal legal system-related involuntary commitment:
    • State psychiatric hospitals (people committed to state psychiatric hospitals by courts after being found “not guilty by reason of insanity” (NGRI) or, in some states, “guilty but mentally ill” (GBMI) and others held for pretrial evaluation or for treatment as “incompetent to stand trial” (IST)): These counts are from pages 92, 99, and 104 of the August 2017 NRI report, Forensic Patients in State Psychiatric Hospitals: 1999-2016, reporting data from 37 states for 2014. The categories NGRI and GBMI are combined in this data set, and for pretrial, we chose to combine pretrial evaluation and those receiving services to restore competency for trial, because in most cases, these indicate people who have not yet been convicted or sentenced. This is not a complete view of all justice-related involuntary commitments, but we believe these categories and these facilities capture the largest share. We are not aware of any alternative data source with newer data.
    • Civil detention and commitment: (At least 20 states and the federal government operate facilities for the purposes of detaining people convicted of sexual crimes after their sentences are complete. These facilities and the confinement there are technically civil, but in reality are quite like prisons. People under civil commitment are held in custody continuously from the time they start serving their sentence at a correctional facility through their confinement in the civil facility.) The civil commitment counts come from an annual survey conducted by the Sex Offender Civil Commitment Programs Network shared by SOCCPN President Shan Jumper. Counts for most states are from the 2022 survey, but for states that did not participate in 2022, we included the most recent figures available: Nebraska’s count is as of 2018, New Hampshire’s count is from 2020, South Carolina’s is from 2021, and the federal Bureau of Prisons’ count is from 2017.
  • Territorial prisons (correctional facilities in the U.S. Territories of American Samoa, Guam, and the U.S. Virgin Islands, and U.S. Commonwealths of the Northern Mariana Islands and Puerto Rico): Prisoners in 2021 — Statistical Tables Table 25, reporting data for December 31, 2021.
  • Indian country jails (correctional facilities operated by tribal authorities or the U.S. Department of the Interior’s Bureau of Indian Affairs): Jails in Indian Country, 2021, and the Impact of COVID-19, July-December 2020 Table 1, reporting the population as of the last weekday in June, 2021.
  • Military: Prisoners in 2021 — Statistical Tables Tables 23 (for total population) and 24 (for offense types) reporting data as of December 31, 2021. ⤴
  • Probation and parole: Our counts of the number of people on probation and parole are from the Bureau of Justice Statistics report Correctional Populations in the United States, 2021 — Statistical Tables Table 1, reporting data for December 31, 2021. We adjusted these totals to ensure that people with multiple statuses (e.g., people on probation who were also held in jails) were counted only once in their most restrictive category, using published data on people with dual statuses in Table 11 of the same report. For readers interested in knowing the total number of people on parole and probation, ignoring any double-counting with other forms of correctional control, there were 803,200 people on parole and 2,963,000 people on probation as of December 31, 2021. ⤴
  • Private facilities: Except for local jails (which we will explain in the “Adjustments to avoid double counting” section below), our identification of the number of people held in private facilities was as follows:
    • For state prisons, the number of people in private prisons came from Table 14 in Prisoners in 2021 — Statistical Tables.
    • For the Federal Bureau of Prisons, we calculated the percentage of the total BOP population (8.1%) that were held in Residential Reentry Centers (halfway houses) or in home confinement as of March 3, 2023, according to the Bureau of Prisons “Population Statistics.” We then applied that percentage to our total convicted BOP population (removing the 9,445 people held in 12 BOP detention centers being held for the U.S. Marshals Service) to estimate the number of people serving a sentence in a privately-operated setting for the BOP. We chose this method instead of using the number published in Table 14 of Prisoners in 2021 — Statistical Tables because as of 2023, the BOP no longer places sentenced people in private prisons. The inclusion of Residential Reentry Centers and home confinement in our definition of “private” facilities is consistent with the definition used by the Bureau of Justice Statistics in Table 14 of Prisoners in 2021 — Statistical Tables.
    • For the U.S. Marshals Service, we used the 2023 FOIA response reporting the projected average daily population for fiscal year 2023 as of February 12, 2023, including only those held in “private” (directly contracted) facilities. However, we note that an unknown portion of the 14,752 people held in indirectly-contracted (“pass thru”) facilities with Intergovernmental Service Agreements (IGAs) are also held in private facilities; the available data make it impossible to disaggregate these “pass thru” facilities according to status as private or public. (This marks a change in how we counted people held for the Marshals Service in private facilities compared to the 2022 version of this report, which assumed that all “pass thru” facilities were private.)
    • For youth, we used the 2019 Census of Juveniles in Residential Placement, which provides a breakdown of the number of youth held in publicly and privately operated facilities.
    • For immigration detention, we used the Facility Information provided in ICE’s FY 2023 ICE Statistics spreadsheet to calculate the number of people detained in facilities categorized as “CDF” (Contract Detention Facilities), “USMS CDF” (Contract Detention Facilities contracted by the U.S. Marshals Service), and “DIGSA” (privately owned and/or operated facilities contracted through Dedicated Intergovernmental Service Agreements for ICE use). ⤴

Adjustments to avoid double counting

To avoid counting anyone twice, we performed the following adjustments:

  • To avoid anyone in immigration detention being counted twice, we removed the 19% (5,017) of the Immigration and Customs Enforcement (ICE) detained population that is held in local jails under Intergovernmental Service Agreement contracts (IGSAs) from the total jail population. We removed 26.9% of these ICE detainees from the jail convicted population and the balance from the unconvicted population. We based these percentages on the breakdown by criminal status of the ICE “currently detained” population as of February 26, 2023 in the ICE Detention Statistics spreadsheet, counting “convicted criminal” as convicted and “pending criminal charges” and “other immigration violator” as unconvicted.
  • To avoid anyone in local jails on behalf of state or federal prison authorities from being counted twice, we removed the 65,399 people — cited in Table 14 of Prisoners in 2021 — Statistical Tables — confined in local jails on behalf of federal or state prison systems from the total jail population and from the numbers we calculated for those in local jails that are convicted. To avoid those being held by the U.S. Marshals Service from being counted twice, we removed from the jail total 33,900 Marshals detainees reported as held in local jails in Jail Inmates in 2021 — Statistical Tables Table 8. We removed 75.9% of these people held in jails for the Marshals Service from the jail convicted population, and the balance from the unconvicted jail population. We based these percentages on our analysis of the Profile of Jail Inmates, 2002. We are not aware of any more recent source breaking down the U.S. Marshals Service detained population by conviction status.
  • Because we removed ICE detainees and people under the jurisdiction of federal and state authorities from the jail population, we had to recalculate the offense distribution reported in Profile of Jail Inmates, 2002 who were “convicted” or “not convicted,” excluding the people who reported that they were being held on behalf of state authorities, the Federal Bureau of Prisons, the U.S. Marshals Service, or U.S. Immigration and Customs Enforcement (ICE).36 Our definition of “convicted” was those who reported that they were “To serve a sentence in this jail,” “To await sentencing for an offense,” or “To await transfer to serve a sentence somewhere else.” Our definition of “not convicted” was “To stand trial for an offense,” “To await arraignment,” or “To await a hearing for revocation of probation/parole or community release.”
  • For our analysis of people held in private jails for local authorities, we applied the percentage of the total custody population held in private facilities in midyear 2019 (calculated from Table 20 of Census of Jails, 2005-2019) to our count of people held in jails for local authorities (514,284) in 2021, after making the adjustments described in this section. ⤴

Our graph of the racial and ethnic disparities in correctional facilities (as shown in Slideshow 6) uses the only data source that has data for all types of adult correctional facilities: the U.S. Census. Because the relevant tables from the 2020 decennial Census have not been published yet, we used the 2019 American Community Survey tables B02001and DP05 and represented the four named racial and ethnic groups that account for at least 2%, nationally, of the population in correctional facilities. Not included on the graphic are Asian people, who make up 1% of the correctional population, Native Hawaiians and Other Pacific Islanders, who make up 0.3%, people identifying as “Some other race,” who account for 6.3%, and those of “Two or more races,” who make up 4% of the total national correctional population.

Note that because Latinos may be of any race and because of how the Census Bureau published race and ethnicity data in the relevant table, we used the Census data for “White alone, Not Hispanic or Latino” for white people, but the Census Bureau’s data for “Black or African American” and “American Indian and Alaska Native” people may include people who identify as both that race and Latino. ⤴

Read the detailed methodology

To help readers link to specific images in this report, we created these special urls:

How many people are locked up in the United States?
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow1/1
1 in 3 people behind bars is in a jail. Most have yet to be tried in court.
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow1/2
Despite reforms, drug offenses are still a defining characteristic of the federal system
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow1/3
Beyond “federal prison,” multiple agencies and thousands of local facilities confine people for the federal government
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow1/4
Prisons are releasing far fewer people during the pandemic than they did pre-pandemic
https://www.prisonpolicy.org/reports/pie2023.html#covid
Pretrial Detention
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow2/1
Pretrial policies drive jail growth
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow2/2
Why are so many people detained in jails before trial? They’re not wealthy enough to afford money bail.
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow2/3
Only 7% of confined people are held in private prisons
https://www.prisonpolicy.org/reports/pie2023.html#private_facilities
1 in 5 incarcerated people is locked up for a drug offense
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow3/1
Police make over a million drug possession arrests each year
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow3/2
Some states have largely ended the War on Drugs. Other states, not so much.
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow3/3
Most states track and publish just one measure of post-release recidivism
https://www.prisonpolicy.org/reports/pie2023.html#releaserecidivism
Very few states track and publish any recidivism data for people on probation
https://www.prisonpolicy.org/reports/pie2023.html#probationrecidivism
What do victims of violent crimes really want?
https://www.prisonpolicy.org/reports/pie2023.html#victimswant
Non-criminal (or “technical”) violations are the main reason for incarceration of people on probation and parole
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow4/1
Contrary to myth, people incarcerated for violent offenses and released are least likely to be arrested again
/reports/pie2023.html#slideshows/slideshow4/1
Most confined youth are held for non-person offenses, many for acts that are not “crimes” at all
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow5/1
Almost 53,000 people are confined for immigration reasons
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow5/2
Psychiatric facilities confine 22,000 justice-involved people every day
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow5/3
Most people in Indian Country jails are locked up for property, drug, and public order charges
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow5/4
The rapid expansion of ICE’s electronic monitoring program
/reports/pie2023.html#iceexpansion
Mass incarceration directly impacts millions of people: But just how many, and in what ways?
/reports/pie2023.html#impacted
Incarceration is just one piece of the much larger system of correctional control
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/1
Racial and ethnic disparities in correctional facilities
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/2
How many women are locked up in the United States?
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/3
Women’s prison populations have grown faster than men’s (and before the pandemic, women’s populations were declining more slowly)
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/4
Most people in prison are poor, and the poorest are women and people of color
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/5
1 out of 5 incarcerated people in the world is incarcerated in the U.S.
https://www.prisonpolicy.org/reports/pie2023.html#slideshows/slideshow6/6

To help readers link to specific report sections or paragraphs, we created these special urls:

What actually happened to prison and jail populations during the pandemic?
https://www.prisonpolicy.org/reports/pie2023.html#covid
Jails vs. prisons: What’s the difference?
https://www.prisonpolicy.org/reports/pie2023.html#jailsvprisons
Nine myths about mass incarceration
https://www.prisonpolicy.org/reports/pie2023.html#myths
Offense categories might not mean what you think
https://www.prisonpolicy.org/reports/pie2023.html#offensecategories
The first myth: Private prisons are the corrupt heart of mass incarceration
https://www.prisonpolicy.org/reports/pie2023.html#firstmyth
The second myth: Prisons are “factories behind fences” that exist to provide companies with a huge slave labor force
https://www.prisonpolicy.org/reports/pie2023.html#secondmyth
The third myth: Releasing “nonviolent drug offenders” would end mass incarceration
https://www.prisonpolicy.org/reports/pie2023.html#thirdmyth
The fourth myth: By definition, “violent crime” involves physical harm
https://www.prisonpolicy.org/reports/pie2023.html#fourthmyth
The fifth myth: People in prison for violent or sexual crimes are too dangerous to be released
https://www.prisonpolicy.org/reports/pie2023.html#fifthmyth
Recidivism: A slippery statistic
https://www.prisonpolicy.org/reports/pie2023.html#recidivism_measures
The sixth myth: Reforming the criminal legal system leads to more crime
https://www.prisonpolicy.org/reports/pie2023.html#sixthmyth
The seventh myth: Crime victims support long prison sentences
https://www.prisonpolicy.org/reports/pie2023.html#seventhmyth
The eighth myth: Some people need to go to jail to get treatment and services
https://www.prisonpolicy.org/reports/pie2023.html#eighthmyth
The ninth myth: Expanding community supervision is the best way to reduce incarceration
https://www.prisonpolicy.org/reports/pie2023.html#ninethmyth
The high costs of low-level offenses
https://www.prisonpolicy.org/reports/pie2023.html#lowlevel
Probation & parole violations and “holds” lead to unnecessary incarceration
https://www.prisonpolicy.org/reports/pie2023.html#holds
Misdemeanors: Minor offenses with major consequences
/reports/pie2023.html#misdemeanors
“Low-level fugitives” live in fear of incarceration for missed court dates and unpaid fines
https://www.prisonpolicy.org/reports/pie2023.html#benchwarrants
Lessons from the smaller “slices”: Youth, immigration, and involuntary commitment
https://www.prisonpolicy.org/reports/pie2023.html#smallerslices
Beyond the “Whole Pie”: Community supervision, poverty, and race and gender disparities
https://www.prisonpolicy.org/reports/pie2023.html#community
Each paragraph is also numbered, so you can use urls in this format:
https://www.prisonpolicy.org/reports/pie2023.html#paragraph1
https://www.prisonpolicy.org/reports/pie2023.html#paragraph2
https://www.prisonpolicy.org/reports/pie2023.html#paragraph3
etc…

Learn how to link to specific images and sections

Acknowledgments

All Prison Policy Initiative reports are collaborative endeavors, but this report builds on the successful collaborations of the several versions of this report we have produced since 2014. For this year’s report, the authors are particularly indebted to Shan Jumper for sharing updated civil detention and commitment data, Emily Widra and Leah Wang for research support, and Ed Epping for help with one of the visuals. However, any errors or omissions, and final responsibility for all of the many value judgements required to produce a data visualization like this, are the sole responsibility of the authors.

We thank the John D. and Catherine T. MacArthur Foundation Safety and Justice Challenge for their support of our research into the use and misuse of jails in this country. We also thank Public Welfare Foundation for their support of our reports that fill key data and messaging gaps. Finally, we’d like to thank each of our individual donors — your commitment to ending mass incarceration makes our work possible.

About the authors

Wendy Sawyer is the Research Director at the Prison Policy Initiative.
Along with helping direct the organization’s research priorities, Wendy is the author (or co-author) of several major reports, including Women’s Mass Incarceration: The Whole Pie, Beyond the Count: A deep dive into state prison populations, All Profit, No Risk: How the bail industry exploits the justice system and Arrest, Release, Repeat: How police and jails are misused to respond to social problems. Wendy also frequently publishes briefings on recent data releases, academic research, women’s incarceration, pretrial detention, probation, and more.

Peter Wagner is an attorney and the Executive Director of the Prison Policy Initiative. He co-founded the Prison Policy Initiative in 2001 in order to spark a national discussion about mass incarceration.

About the Prison Policy Initiative

The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. Alongside reports like this that help the public more fully engage in criminal justice reform, the organization leads the nation’s fight to keep the prison system from exerting undue influence on the political process (a.k.a. prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video visitation industry. The organization also sounded the alarm in 2020 on the danger of COVID-19 outbreaks in prisons and jails, and has continued to provide data showing that state governments mismanaged the pandemic in prisons and jails and failed to ramp up early releases during COVID-19.



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New report, Women’s Mass Incarceration: The Whole Pie 2023, reveals how many women are locked up in the U.S., where, and why

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The report examines the unique challenges women in the criminal legal system face and provides the clearest look at how the pandemic impacted women’s incarceration in the U.S.



March 1, 2023

A report released today by the Prison Policy Initiative and the ACLU Campaign for Smart Justice presents the most recent and comprehensive data on how many women are locked up in the U.S., in what kinds of facilities, and why; as well as detailed data on incarcerated women’s demographic makeup and health.

Women in the U.S. experience a dramatically different criminal legal system than men do, but data on their experiences is difficult to find and put into context. The new edition of Women’s Mass Incarceration: The Whole Pie, which the Prison Policy Initiative and ACLU have published since 2017, fills this gap with richly-annotated data visualizations about women behind bars.

pie chart showing the number of women locked up on a given day in the United States by facility type and the underlying offense using the newest data available in 2023

The report reveals that the number of women behind bars fell significantly as a result of the COVID-19 pandemic, but is already rapidly returning to pre-pandemic levels. “The drop in women’s incarceration that we saw in 2020 was the kind of change needed to actually start ending the mass incarceration of women,” said report co-author Aleks Kajstura. “Unfortunately, because the changes during the first year of COVID-19 were due more to systemic slowdowns than policy changes, we’re already seeing the downward trend being reversed and more vulnerable women ending up in prison.”

The report highlights the importance of jails — an under-discussed part of the criminal legal system — to the story of women’s incarceration. Approximately the same number of women are locked up in jails as in state prisons. Jails are built for short stays, meaning that the disproportionate number of women locked up in jails (compared to incarcerated men) are stuck in facilities with worse healthcare and less programming.

Women’s Mass Incarceration: The Whole Pie 2023 also includes a section offering insights about the backgrounds and experiences of women in state prisons. Key takeaways include:

  • Significant numbers of women in prison end up there after being disadvantaged as children: 12% report homelessness before they turned 18; 19% were in foster care at some point; and 43% came from families that received welfare or other public assistance.
  • 53% of women were jobless in the month before the arrest that led to their incarceration, suggesting that unemployment is a major factor in leading women to interactions with the criminal legal system.
  • Most women in prison have physical/cognitive disabilities (50%) and/or mental illnesses (76%), showing the punitive approach state and local criminal legal systems have taken to people struggling with these serious health issues.
  • 58% of women in state prisons are parents to minor children, and of those, most are single mothers who were living with their children prior to imprisonment — making it likely that incarceration uprooted their children and led to the termination of their parental rights, permanently breaking up their families.

Finally, the report breaks down the racial demographics of women in prison and jail, details the number of women on probation and parole, and provides key statistics on the incarceration of girls in juvenile facilities.

“Too often, low-income women are punished by laws criminalizing poverty and caught in the wide net of Broken Windows policing that harms families and communities,” said Kajstura. “Both criminal justice reform and broader efforts to expand welfare and healthcare in this country will be necessary to end our nation’s tenure as the world’s leading incarcerator of women.”

The new report is available here: https://www.prisonpolicy.org/reports/pie2023women.html

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Women’s Mass Incarceration: The Whole Pie 2023

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By Aleks Kajstura and Wendy Sawyer
March 1, 2023
Press release  

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there? How are their experiences different from men’s? Further, how has the COVID-19 pandemic changed the number of women behind bars? These are important questions, but finding those answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems,1 but also unearthing the frustratingly limited data that’s broken down by gender.2

This report provides a detailed view of the 172,700 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control. We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system by specific offense. In this updated report, we’ve also gone beyond the numbers, using rare self-reported data from a national survey of people in prison,3 to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up — and so much more:

pie chart showing the number of women locked up on a given day in the United States by facility type and the underlying offense using the newest data available in 2023

Most notably, and in stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons. As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails. The data needed to explain exactly what happened, when, and why do not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated using the same data sources from year to year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years.

Particularly in light of the scarcity of gender-specific data, the disaggregated numbers presented here are an important step to ensuring that women are not left behind in the effort to end mass incarceration.4

A staggering number of women who are incarcerated are not even convicted: more than a quarter of women who are behind bars have not yet had a trial. Moreover, 60% of women in jails under local control have not been convicted of a crime and are awaiting trial.

Aside from women under local authority (or jurisdiction), state and federal agencies also pay local jails to house an additional 8,875 women. For example, ICE and the U.S. Marshals Service, which have fewer dedicated facilities for their detainees, contract with local jails to hold roughly 3,200 women. So, the number of women physically held in jails is even higher:

detailed view of the jail slice of the pie chart showing how many women are physically held in jails, for which authorities, and the underlying offenses, using the newest data available in 2023

Avoiding pretrial detention is particularly challenging for women. The number of unconvicted women stuck in jail is surely not because courts are considering women to be a flight risk, particularly when they are generally the primary caregivers of children. The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording money bail. When the typical bail amounts to a full year’s income for women,5 it’s no wonder that women are stuck in jail awaiting trial.6

Even once convicted, the system funnels women into jails: About a quarter of convicted incarcerated women are held in jails, compared to about 10% of all people incarcerated with a conviction. This reflects the different distribution of offense types and criminal histories between convicted men and women. Women are proportionally more likely to be serving a sentence of incarceration for a property or drug offense and less likely to be incarcerated for a violent offense when compared to men. These differences mean that women are more likely to be sentenced to a term in jail, where people typically serve shorter sentences of up to one year.7

So, what does it mean that large numbers of women are held in jail — for them, and for their families? First, while stays in jail are generally shorter than in stays in prison, jails can be especially deadly for women. Women have a higher mortality rate than men in jails, dying of drug and alcohol intoxication at twice the rate of men. And the number of deaths by suicide among women in jails increased by almost 65% between the periods of 2000-2004 and 2015-2019. Women are more likely than men to enter jail with a medical problem or a serious mental illness and while incarcerated, women are more likely to suffer from mental health problems and experience serious psychological distress.8 Being locked up doesn’t help: Research shows that incarceration can cause lasting damage to mental health.

Compounding the problem is the fact that jails are particularly poorly positioned to provide proper health care. In fact, local jails tend to offer fewer services and programs overall than prisons do, and because most programs are designed for the larger male population, women may not even have access to programming that’s available to men in the same jail. (However, this is certainly not to say that prisons are always better at meeting women’s needs, as we will discuss further.)

Jails also make it harder to stay in touch with family than prisons do. Jail phone calls are often at least three times as expensive as calls from prison, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards. Increasingly, both prisons and jails are doing away with real mail altogether and contracting with private companies that scan and then destroy postal mail, delivering shoddy scanned copies to the recipients. These barriers to authentic communication are especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children. Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women.

The numbers revealed by this report enable a national conversation about policies that impact women incarcerated by different government agencies and in different types of facilities. These figures also serve as the foundation for reforming the policies that lead to incarcerating women in the first place.

Too often, the conversation about criminal justice reform starts and stops with the question of “non-violent” drug and property offenses. While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for over a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This fact underscores the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact.

Furthermore, even among women, incarceration is not indiscriminate and reforms should address the disparities related to LBTQ status, race, and ethnicity as well. A 2017 study revealed that a third of incarcerated women identify as lesbian or bisexual,9 compared to less than 10% of men. The same study found that lesbian and bisexual women are likely to receive longer sentences than their heterosexual peers, and more likely to be put into solitary confinement.

And although the data do not exist to break down the “whole pie” by race or ethnicity, overall Black and American Indian/Alaska Native women are markedly overrepresented in prisons and jails: Incarcerated women are 53% white, 29% Black, 14% Hispanic, 2.5% American Indian or Alaska Native, 0.9% Asian, and 0.4% Native Hawaiian and Pacific Islander.10 While we are a long way from having data on intersectional impacts of sexuality and race or ethnicity on women’s likelihood of incarceration, it is clear that Black and lesbian or bisexual women and girls are disproportionately subject to incarceration.11

Mass incarceration targets girls, too

detail image of the youth confinement slice of the whole pie showing which offenses girls are held in juvenile facilities for

Of the girls confined in youth facilities, nearly 1 in 10 are held for status offenses, such as “running away, truancy, and incorrigibility.” Among boys, status offenses account for just 3% of the confined population. These statistics are particularly troubling because status offenses tend to be simply responses to abuse.12

As is the case with women, girls of color and those who identify as LBTQ are disproportionately confined in juvenile facilities. Black girls account for 35% of the confined girls population, and Hispanic girls account for another 20%, while white girls are only 38% of those locked up. And while LBTQ women overrepresented in the adult correctional systems, a staggering
40% of girls in the juvenile justice system are lesbian, bisexual, or questioning and gender non-conforming. (The comparable statistic for boys is just under 14%.)

While society and the criminal legal systems subject all girls to stricter codes of conduct than is expected of their male peers, Black girls in particular shoulder an added burden of adultification — being perceived as older, more culpable, and more responsible than their peers — which leads to greater contact with and harsher consequences within the juvenile justice system.

About half of confined women and girls are held in state and federal prisons. In general, women in prison are serving longer sentences than those in jails, and they are often located far from their families and friends. Even in geographically large states like Montana and Arizona, sometimes there is just one facility for women, making visits difficult for loved ones located hundreds of miles away.13 But this is just one of the many challenges facing women in prison, as we recently found in our analysis of a rich dataset published by the Bureau of Justice Statistics, the 2016 Survey of Prison Inmates.14

The data from the survey, published in late 2020, offer a rare in-depth look at the backgrounds and experiences of people in prison, relying on responses from incarcerated people themselves, rather than the administrative data that’s easier to collect from prison systems. In our analysis, we focused on people held in state prisons, who make up a much larger piece of the “whole pie” than those in federal prisons. Among our findings, and those of the Bureau of Justice Statistics, we see that in state prisons nationwide:15

  • Women report childhood disadvantages at alarming rates: 12% report homelessness before they turned 18; 19% were in foster care at some point; and 43% came from families that received welfare or other public assistance. Almost half (45%) had been arrested by age 18.
  • Women are more likely than men to enter prison having already received a high school diploma or equivalent credential, but still over half (53%) did not finish high school.
  • Over a quarter of women (26%) experienced homelessness in the year before the arrest that led to their incarceration — a higher rate than among men (16%).
  • Women are more likely to be jobless (53%) than to be employed in the month before their arrest.
  • Women are more likely to be written up for a prison rule violation in the past year (58%), particularly for “minor” rule violations.
  • Women report disabilities (50%) and physical and mental health problems at higher rates than men. Over half (58%) of women met the criteria for a substance use disorder the year before they went to prison, and over three-quarters (76%) had some indication of a past or current mental health problem — both significantly higher rates than among men. Yet just 47% had received treatment for a substance use disorder and just 43% had received professional mental health care since they went to prison.
  • Women are more likely to be parents of minor children (58%), more likely to be single parents, and more likely to have been living with their children prior to their imprisonment — making it more likely that incarceration would uproot their children and lead to termination of parental rights, permanently breaking up their families.
  • About 4% of women (over 3,000) were pregnant when they went to prison, and more than two-thirds (68%) of these women had no health insurance at the time. Yet only half had received any kind of prenatal care in prison apart from an obstetric exam. 16
  • Additionally, another government survey shows that while incarcerated, women are 3 times as likely as men to be sexually victimized by prison or jail staff.17

These statistics confirm much of what we know about incarcerated women from previous research: By almost any measure, women in prison are worse off than men, both leading up to and during their incarceration. Furthermore, the underlying causes of women’s criminal behavior are distinct from men’s and show that they would be better served in treatment programs in their communities than by criminal legal system punishments.18

Even the “whole pie” of incarceration in the chart above represents just one small portion (18%) of the women under any form of correctional control, which includes 808,700 women on probation or parole. Again, this is in stark contrast to the total correctional population (mostly men), where one-third (34%) of all people under correctional control are in prisons and jails.

Three-quarters of women (75%) under the control of any U.S. correctional system are on probation. Probation is often billed as an alternative to incarceration, but instead it is frequently set with unrealistic conditions that undermine its goal of keeping people from being locked up.19 For example, probation often comes with steep fees, which, like bail, women are in the worst position to afford.20 Failing to pay these probation fees is often a non-criminal “technical” violation of probation. Childcare duties further complicate probation requirements that often include meetings with probation officers, especially for women with no extra money to spend on childcare or reliable transportation across town. And probation violations — even for these innocuous and understandable reasons — can land women in jail or prison who were never sentenced to incarceration. In fact, our analysis of the 2016 Survey of Prison Inmates found that one-third (33%) of women in state prisons were on probation at the time of their arrest, which underscores how this “alternative to incarceration” often simply delays incarceration.

In the wake of the 2022 Supreme Court decision to overturn Roe v. Wade, restrictive probation and parole conditions can also create barriers to accessing reproductive health care. Restrictions on travel are “standard conditions” of supervision in many places, requiring approval from a probation or parole officer to make specific trips. With many states now banning (and trying to criminalize) abortion, seeking abortion care may be difficult or impossible for many of the hundreds of thousands of women on probation or parole in those states.

Reentry is another critical point at which women are too often left behind. Almost 2.5 million women and girls are released from prisons and jails every year,21 but few post-release programs are available to them — partly because so many women are confined to jails, which are not meant to be used for long-term incarceration. Additionally, many women with criminal records face barriers to employment in female-dominated occupations, such as nursing and elder care.22 It is little surprise, therefore, that formerly incarcerated women — especially women of color — are also more likely to be unemployed and/or homeless than formerly incarcerated men, making reentry and compliance with probation or parole even more difficult. All of these issues make women particularly vulnerable to being incarcerated not because they commit crimes, but because they run afoul of one of the burdensome obligations of their probation or parole supervision.

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in almost 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement.

As public awareness has grown about the differences between gender identity and sex assigned at birth, there has been a growing interest in the question of how transgender and nonbinary individuals experience incarceration. Unfortunately, government surveys that break down data between “male” and “female” categories often include trans men among “females” and trans women among “males,” relying on housing assignments as a proxy for gender. This further muddies the picture of women’s incarceration.

While more data is needed, the data in this report lends focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.


About the data

This briefing uses the most recent data available on the number of people in various types of facilities and the most significant charge or conviction. Because not all types of data are collected each year, we sometimes had to combine differing data sets; for example, we applied the percentage distribution of offense types from the previous year to the current year’s total count data, since prison offense data lags by one year. To smooth out these differing levels of vintage and precision among the sources, we choose to round all figures in the graphic. This process may, however, result in various parts not adding up precisely to the total.

  • Jails: Calculated based on the Bureau of Justice Statistics report Jail Inmates in 2021, Table 2 (as of June 30, 2021). The Bureau of Justice Statistics has stopped collecting data on the conviction status of women in jails in 2005, so we calculated the breakdown based on the 2009 estimate (the most recent available) published in the Jail Inmates at Midyear 2013 — Statistical Tables. Our analysis of offense types is based on the Survey of Inmates in Local Jails, 2002. See below and Who is in jail? Deep dive for why we used our own analysis rather than the otherwise excellent Bureau of Justice Statistics analysis of the same dataset, Profiles of Jail Inmates, 2002. While this methodology section illustrates the pervasive dearth of women’s criminal justice data, this 2002 data continues to be the most recent data available of its kind even without regard to gender breakdown. (The Bureau of Justice Statistics was scheduled to start administering the next Survey of Inmates in Local Jails in 2018, but is now re-scheduled to 2024.)
  • Immigration detention: The number of women in immigration detention, and what facilities they are held in, comes from from ICE’s Detention Statistics for FY 2023 (reporting average daily populations as of January 28, 2023, which includes the first four months of the fiscal year). We calculated the total average daily population from the reported numbers of “Female Crim” and “Female Non-Crim” in the “Facilities FY23” spreadsheet, and categorized them by facility type as follows: 1 woman held in a non-ICE federal facility (BOP), 339 in local jails (ISGA or USMS IGA), and 3,276 held in facilities that typically hold only ICE detainees (DIGSA, CDF, SPC, and Staging facilities). The 339 women held in local jails were then removed from the total jail population to avoid double-counting them. Because the federal BOP publishes population data by jurisdiction (as opposed to custody), the woman held for ICE in the BOP facility was already excluded from the federal prison population data.
  • Federal: Bureau of Justice Statistics report Prisoners in 2021, Table 19, reports the percentage breakdown of offense types for the sentenced population as of September 30, 2020, and the total population of women reported in Table 2 for December 31, 2021. We applied the offense type percentages to the total population, but data do not exist for a good estimate of offense types for pretrial women under Federal control (i.e., those in the custody of the U.S. Marshals Service). We also attributed women held by the U.S. Marshal Service in state and local facilities to the total Federal slice, see the “data definitions and clarifications” section below for details.
  • State prisons: Prisoners in 2021, Table 2 provides the gender breakdown for the total population as of December 31st, 2021, and Table 16 provides data (as of December 31, 2020) that we used to calculate the ratio of different offense types, which we then applied to the total state prison population as of year-end 2021.
  • Military: The latest gender breakdown we could find was in Correctional Populations in the United States, 1998, Table 8.5, which reported the number of prisoners under military jurisdiction, by officer and enlisted status, gender, race, and Hispanic origin, for December 31, 1998. We calculated the number of women for our military slice by imputing the percentages from 1998 to the numbers reported in Prisoners in 2021, Table 23, which gives the number of people incarcerated in by each branch of the military, but does not provide a gender breakdown.
  • Territorial prisons (correctional facilities in the U.S. Territories of American Samoa, Guam, and the U.S. Virgin Islands, and U.S. Commonwealths of Northern Mariana Islands and Puerto Rico): Estimates for the female populations were calculated based on the percentages of women reported in World Prison Brief data, which we then applied to the total populations reported in Prisoners in 2021, Table 25. The reference dates for the World Prion Brief data range from year-end 2007 (for the Northern Mariana Islands) to June 30, 2021 (for the U.S. Virgin Islands).
  • Youth: Office of Juvenile Justice and Delinquency Prevention, Easy Access to the Census of Juveniles in Residential Placement, reporting data for 2019. We defined “youth confinement” to include all juvenile justice-related placements outside of the home. This methodology better reflects the realities of youth confinement and brings us closer to showing the full scope of confinement for all people in the U.S. The inclusion of these less restrictive forms of confinement for youth is consistent with our approach for the adult system which includes halfway houses and other forms of community confinement as a part of the entire adult system.
  • Civil commitment (At least 20 states and the federal government operate facilities for the purposes of detaining people convicted of sexual crimes after their sentences are complete. These facilities and the confinement there are technically civil, but in reality are quite like prisons. People under civil commitment are held in custody continuously from the time they start serving their sentence at a correctional facility through their confinement in the civil facility.): The Sex Offender Civil Commitment Programs Network conducts an annual survey, and the civil commitment data came from an email with SOCCPN President Shan Jumper, estimating that there were 7 women total, nationally (based on the SOCCPN 2019 Annual Survey, the last year that data was collected). And according to the Common Questions about Civil Commitment as a Sexually Violent Person (Adopted by the ATSA and the Sex Offender Civil Commitment Programs Network Executive Boards of Directors on October 13, 2015), there are “a few women throughout the country who have been committed.”
  • Indian country (correctional facilities operated by tribal authorities or the U.S. Department of the Interior’s Bureau of Indian Affairs): Bureau of Justice Statistics’ Jails in Indian Country, 2021, and the Impact of COVID-19, July-December 2020, Table 6, reporting data for June 30, 2021.
  • Probation and parole: Our counts of women under community supervision are calculated from the Bureau of Justice Statistics report Correctional Populations in the United States, 2021, Table 5 (showing the total number of women on probation and the total on parole) and Table 11 (showing the estimated number of women who were on both probation and parole when the data were collected). To avoid double-counting those women who had dual probation and parole status, we reduced the total number of women on probation by 2,500 — counting them just once, within the total parole population. This is consistent with our past methodologies, in which we categorize those with dual status by their most restrictive status — counting parole as more restrictive, as people on parole are finishing carceral sentences in the community. For readers interested in knowing the total number of women on parole and probation, ignoring any double-counting with other forms of correctional control, there were 92,700 women on parole and 718,400 women on probation at the end of 2021 (the most recent year for which data are available).

Several data definitions and clarifications may be helpful to researchers reusing this data in new ways:

  • To avoid double-counting women held in local jails on behalf of the Bureau of Prisons, ICE, U.S. Marshals Service, state, and other prison authorities from being counted twice, we removed the 8,875 women from the jail custody population reported by the BJS and from the numbers we used to calculate the number of convicted women in local jails. Our calculation for the number of women held in such arrangements was based on data reported for the total number of people held in jails for federal and state authorities in Table 8 of Jail Inmates in 2021, Table 14 of Prisoners in 2021, and the 2002 Survey of Inmates in Local Jails, where our analysis showed that about 8.5% of those held in such arrangements were women. Because the total numbers of people held in jails for each agency are not broken down by gender, we applied that ratio (8.5%) to the totals reported as held in jails for each agency except for ICE, to create estimates by gender. To estimate the most recent number available of women held in jails for ICE, we used ICE’s Detention Statistics for FY 2023 (reporting average daily populations as of January 28, 2023, which includes the first four months of the fiscal year). We calculated the total average daily population held in jails (339) from the reported numbers of “Female Crim” and “Female Non-Crim” in the “Facilities FY23” spreadsheet that were held in facilities designated as ISGA or USMS IGA.
  • Because we removed ICE detainees and people under the jurisdiction of federal and state authorities from the jail population, we had to recalculate the offense distribution reported in Survey of Inmates in Local Jails, 2002 who were “convicted” or “not convicted” without the people who reported that they were being held on behalf of state authorities, the Federal Bureau of Prisons or U.S. Immigration and Naturalization Service/U.S. Immigration and Customs Enforcement (ICE). Our definition of “convicted” was those who reported that they were “To serve a sentence in this jail,” “To await sentencing for an offense,” or “To await transfer to serve a sentence somewhere else”. Our definition of not convicted was “To stand trial for an offense,” “To await arraignment,” or “To await a hearing for revocation of probation/parole or community release.”
  • We also accounted for women held in federal pretrial detention who are confined in jails. We estimate 2,878 women held by, or for, the U.S. Marshals Service, using data from Jail Inmates in 2021, Table 8 (showing that 33,900 people were held in jails for USMS) and our analysis of the 2002 Survey of Inmates in Local Jails (showing that 8.5% of those held for other agencies were female). We included these 2,878 women in the Federal prisons slice of the pie chart.
  • Lastly, the youth slice does not include 252 girls held in adult jails and prisons. As of 2019 (the most recent year for which data are available on this point), there were 230 girls under the age of 18 held in local jails (reported in Table 6 of Bureau of Justice Statistics Census of Jails, 2005-2019), and 22 girls under the age of 18 held in state or federal prisons (as reported by the Bureau of Justice Statistics Quick Table, Reported number of female inmates age 17 or younger held in custody in federal or state prisons [XLS], December 31, 2000-2019).

Read the entire methodology

Acknowledgements

The Prison Policy Initiative would like to thank the ACLU Campaign for Smart Justice for their partnership over the years in producing the Women’s Mass Incarceration: The Whole Pie report series. The organization also thanks the MacArthur Foundation’s Safety and Justice Challenge, and all of the donors, researchers, programmers and designers who helped the Prison Policy Initiative develop the Mass Incarceration: The Whole Pie series of reports.

About the authors

Aleks Kajstura is Legal Director at the Prison Policy Initiative. She directs the organization’s campaign to end prison gerrymandering (the practice of using prison populations to distort democracy via redistricting). Aleks has also published several reports on women’s incarceration, including previous versions of Women’s Mass Incarceration: The Whole Pie, and States of Women’s Incarceration: The Global Context, which compares the rate of women’s incarceration in every U.S. state to 166 independent countries.

Wendy Sawyer is the Research Director at the Prison Policy Initiative. Along with helping direct the organization’s research priorities, Wendy is the author (or co-author) of several major reports, including Mass Incarceration: The Whole Pie, Beyond the Count: A deep dive into state prison populations, All Profit, No Risk: How the bail industry exploits the justice system and Arrest, Release, Repeat: How police and jails are misused to respond to social problems. Wendy also frequently publishes briefings on recent data releases, academic research, women’s incarceration, pretrial detention, probation, and more.

About the Prison Policy Initiative

The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harms of mass criminalization and spark advocacy campaigns to create a more just society. Through big-picture reports like Mass Incarceration: The Whole Pie, as well as in-depth reports on issues such as medical neglect behind bars and bail reform, the organization helps the public more fully engage in criminal justice reform. The organization also launched, and continues to lead, the national fight to keep the prison system from exerting undue influence on the political process (a.k.a. prison gerrymandering).

About the ACLU Campaign for Smart Justice

The ACLU’s Campaign for Smart Justice is an unprecedented, multiyear effort to cut the nation’s jail and prison populations by 50% and challenge racial disparities in the criminal justice system. The Campaign is building movements in all 50 states for reforms to usher in a new era of justice in America.

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This report is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.

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Racial disparities in diversion: A research roundup

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Research shows diversion “works,” reducing harmful outcomes and increasing access to social services. However, studies also suggest diversion is routinely denied to people of color, sending them deeper into the criminal legal system. We review the research and remind practitioners that most diversion programs aren’t designed around racial equity — but should be.


by Leah Wang,

March 7, 2023

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process.1 This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

chart showing that Black and Hispanic men arrested for a drug-related issue are less likely to enroll in pretrial diversion compared to white men, even after Proposition 36 passed in California

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too.2 Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

  

Cost: “Pay-to-play” diversion programs leave low-income Black and Hispanic people unable to participate

More often than not, diversion levies exorbitant fees on its participants. Indeed, many prosecutor-led diversion programs are funded by users (i.e., participants) themselves, creating a two-tiered system where those who can pay will receive the benefits of diversion. Desperate for an option that avoids prison time, others may enroll in diversion only to be kicked out when they can’t afford fees for participation, treatment, drug testing, or something else.

Across the country, prosecutors’ offices have pitched user-funded diversion as a virtuous and fiscally responsible approach to reducing mass incarceration.3 But the indisputable relationship between income, race, and ethnicity means that fee-based diversion remains out of reach for people of color, the same way that bail and other fines and fees disproportionately burden Black and Hispanic people.

A groundbreaking report from the Alabama Appleseed Center for Law and Justice highlights the bleak financial landscape of diversion. Their survey of nearly 1,000 people involved in diversion programs in Alabama revealed that low-income people resort to extreme measures to pay their fees: The majority of respondents (82%) gave up one or more basic necessities like rent, medical bills, or car payments in order to pay various fees. Unsurprisingly, more than half of a subset of survey-takers (55%) made less than $15,000 per year, and 70% had been found indigent. Despite this high level of need, only 10% were ever offered a reduced fee or a fee waiver for a diversion program.

Even though that survey’s respondents were about equally white (45%) and Black (47%) and the survey responses were not broken out by race, the report’s authors assert that the Black-white wealth gap in Alabama “could be a major reason” that Black Alabamians are disproportionately excluded from diversion opportunities.

Fee waivers are clearly the exception, rather than the rule: In 2016, The New York Times reviewed diversion guidelines issued by 13 of South Carolina’s 16 state prosecutors, and found that only two documents mentioned the possibility of a fee waiver for indigent people. When we know so much about how poverty is criminalized and racialized, diversion programs designed this way seem particularly cruel.

  

Eligibility: Diversion programs have narrow eligibility criteria, excluding people with prior “system” contact — who are disproportionately people of color

In a world where not every individual can be diverted, someone must decide who (or what type of charge) is eligible for diversion. The “seemingly neutral constraints” on diversion programs often prioritize people with little to no criminal history, with often arbitrary rules. Criminal history is also built into risk assessment tools, which quantitatively express a person’s public safety or “flight” risk.4 These tools are favored by courts nationwide because they appear accurate and objective, when in fact they’re built on racially-biased data.

Right away, these eligibility criteria disproportionately exclude Black people, who are arrested as youth, stopped by police generally, and jailed and imprisoned at higher rates than any other racial or ethnic group in the United States. For example, a recent study found that a Jacksonville, Fla. diversion program required a third degree, “nonviolent” felony charge and no more than one prior conviction for a “nonviolent” misdemeanor: In other words, a random and nearly impossible standard to meet. Unsurprisingly, only 16% of Black felony defendants were eligible for this program, compared to 23% of white and 28% of Hispanic defendants. Rules that unnecessarily limit diversion to “first-timers” only serve to keep criminalized, marginalized groups trapped in the carceral system.

Another vexing but all-too-common feature of post-filing5 prosecutor-led diversion programs is that they often require a guilty plea in order to participate. In pleading guilty, an individual signs away their right to any further due process, and faces immediate sentencing if they’re terminated from their diversion program. While these “post-plea” diversions (also called deferred adjudications) may be convenient for a prosecutor, who wouldn’t have to take further action on that person’s case, it’s unjust to force someone into this high-stakes situation just to receive social services.

Research also finds that some diversion programs require that participants have a specific family structure at home. According to the Sentencing Project, Black youth are more likely to live in single-parent, multi-generational, or blended households that do not meet these criteria, leading to a baseless finding of ineligibility. A 2018 study found that a youth’s family structure had no effect on whether or not they completed diversion; neither did race. Youth diversion programs also often require an admission of guilt, as explained above; research illustrates that Black and Native youth, likely due to greater mistrust of the criminal legal system, are less likely than white youth to admit guilt. This reality keeps youth of color from accessing diversion, which hurts their future prospects through the mark of a juvenile adjudication.

But eligibility is not always enough: A 2021 multi-site study found that in Tampa, Fla., qualified white defendants were more likely (29%) to be diverted to their drug pretrial diversion program, compared to qualified Black (22%) or Hispanic (18%) defendants. In Chicago and Milwaukee, racial and ethnic disparities in felony diversion rates were large, too, favoring white defendants; updated data from Chicago show that the disparity is shrinking, but still present.6

  

Discretion: Prosecutors decide who they think is capable or worthy of diversion; biases can leave racial minorities behind

Diversion decisions are often highly subjective, leaving candidates vulnerable to the racial biases held by police, prosecutors, judges, or other decisionmakers. Even when an individual qualifies based on their charge, criminal record, or need for treatment, they must ultimately be offered diversion. Unfortunately, research has shown that prosecutors offer diversion to Black defendants much less often than white defendants with similar legal circumstances.

chart showing that Black and Hispanic men arrested for a drug-related issue are less likely to enroll in pretrial diversion compared to similarly situated white men

A 2013 study found that Black, Hispanic, Asian and Native American (the last two grouped as “Other race”) male defendants were always less likely to receive pretrial diversion compared to similarly situated white defendants in 40 large jurisdictions in the U.S. The study’s author found that additional charges, or more than one felony charge, lowered the odds of pretrial diversion by as much as 35 percent. Since prosecutors tend to bring more charges, and more punitive plea offers, against Black and/or Hispanic defendants, factoring in the number of charges can hardly be considered racially neutral.

Similarly, in 2014, a group of researchers looked at people diverted to drug treatment in California, finding that differences in how Black and white people were diverted could not be explained by case-level details or by the state’s law implementing mandatory diversion for eligible drug offenses. In the end, they concluded that “diversion to treatment appears to be driven by the discretion of court officials” rather than any other factor.

Sadly, evidence also points to discretion working against Black youth and their families when it comes to diversion. A 2013 review of racial and juvenile justice mentions dangerous stereotyping of Black parents “unwilling to control” or supervise their child, leading to a subjective decision of ineligibility for diversion.

It’s difficult to pin down whether cost, eligibility, discretion, or some other mechanism is the most insidious when it comes to racial disparities in diversion. They all appear to burden Black families the most, even when accounting for other factors.

  

Diversion programs can address racial disparities by increasing access and eliminating collateral consequences

The research is clear: Diversion alone isn’t enough to address the harms of racialized mass criminalization. Left to their own devices, people who design diversion programs and policies have built in restrictions and subjectivity that disproportionately thwart people of color, forcing them further down the road to incarceration. Existing or proposed programs must take steps to ensure that post-arrest diversion programs are equitable and accessible by all, particularly communities that are overrepresented in the criminal legal system. These steps include (but are not limited to):

  • Vastly expanding eligibility criteria to address the reality that Black and Hispanic people have more frequent contact with police, jails, and courtrooms that can lead to exclusion from diversion programs. With so many more qualified participants, prosecutors or other decisionmakers may rely less on discretion and more on presumptive eligibility to move people off overwhelmed court dockets (or prevent them from formal “system” involvement in the first place).
  • Making diversion financially accessible to all participants, especially low-income people who may resort to extreme measures in order to stay in compliance. The status quo of user-funded diversion is out of touch with its purported goal of keeping people on pathways to health and success in their communities. Fee waivers should be automatic for those who have already shown indigency.
  • Mitigating collateral consequences of a conviction. The requirement to plead guilty in order to participate in diversion is illogical and overly burdens defendants of color who, once they have a conviction record, are likely to struggle finding employment, housing, or a future diversion opportunity. People who successfully complete diversion should have any relevant records expunged, preventing collateral consequences. Practices like leaving charges pending during a program or simply dismissing charges at the end often isn’t enough, as that activity may still appear in a background check.

Finally, research specifically about how race or ethnicity impact access to, or success with, diversion programs remains somewhat sparse.7 Individual program evaluations often show that diversion “works” and is cost-effective, but they typically don’t consider race or ethnicity, cost to participants, or apples-to-apples comparisons to other programs. Data collection on racial and ethnic groups in diversion must extend beyond Black and Hispanic groups, and should also include sex and gender identity. Failure to acknowledge and address inequities can exacerbate existing racial divides — saving the harshest aspects of the system for people of color while providing easier pathways for white people entangled in the criminal legal system.

Ultimately, leaders should keep in mind that even if these pretrial diversion programs are administered perfectly, they still come with a host of collateral consequences that can last for years or the rest of their lives. The best diversion programs are actually investments in social services and non-law enforcement responses to community needs, keeping people out of the criminal legal system entirely. These investments prioritize community well-being and public safety over punishment and can reduce the footprint of mass criminalization in America.

 
 

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Special Legislative Commission on Structural Racism in Correctional Facilities of the Commonwealth

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by Former Special Legislative Commission on Structural Racism in Correctional Facilities of the Commonwealth and African American Coalition Committee Structural Racism Commission, December, 2022.
“Structural racism in Corrections systems produces or perpetuates unfair treatment and impacts by race and other intersecting identities…it can be dismantled with intentional partnership between the Legislative and Executive branches.â€�

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A sledgehammer instead of a scalpel: New rules proposed by the Biden Administration on money earned by or sent to people in federal prison are the wrong way to go

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Federal prison officials are proposing to garnish 75% of any deposits made into incarcerated people’s personal accounts if those people have court-related debts. It’s an extremely harmful policy that will keep incarcerated people from buying basic needs.


by Mike Wessler,

March 13, 2023

The Biden Administration’s Federal Bureau of Prisons (BOP) recently proposed new, draconian rules on how and when the government will seize money earned by or sent to people in federal prisons. We signed on to a 37-page letter written by the National Consumer Law Center and former Prison Policy Initiative staff member and volunteer Stephen Raher opposing this proposal.

These proposed rules are complex, legally dubious, and far-reaching, so we wanted to explain what they would do and their devastating consequences. This proposal is the latest in a trend that we’ve followed closely for years: prisons and jails, which already lock up some of the most financially vulnerable people in the country, making their lives even more difficult. Our research on this topic offers important insights into why these policies harm not just people behind bars but also our communities and the nation as a whole.

What do the proposed rules do?

The proposed rules, which apply to people who owe outstanding court debts and participate in the Inmate Financial Responsibility Program (IFRP), would allow the government to take a huge portion of the small amount of money that people incarcerated in federal prisons earn or have sent to them by loved ones on the outside. On paper, the IFRP is a voluntary program. But while people in federal prison may not be forced to take part in it, there are consequences if a person doesn’t participate. Most notably, if an incarcerated person doesn’t participate, they likely won’t receive their “release gratuity” — the small bit of money the prison gives to an incarcerated person upon their release; essentially saying, “Give us the money you’re trying to save for your release, or else we won’t provide you with a little bit of money when you’re released.” In this situation, people in federal prison are damned if they do participate and damned if they don’t.

The proposal is a response to recent and sensational stories about ultra-wealthy people in federal prisons who have amassed unusually large amounts of money in their prison trust accounts while failing to pay legal fees and restitution. These examples are the exception, not the rule; most incarcerated people are poor before prison and even poorer once they get there. Rather than crafting rules that target these outliers, the BOP has written them in a way that will make it harder for people in prisons to survive today and more difficult to establish a life after they’re released. They’ve effectively taken a sledgehammer to a problem that requires a scalpel.

As prisons across the country increasingly force incarcerated people to purchase many of their daily basic needs, money plays a more important role in helping them obtain essentials like hygiene products, over-the-counter medication, and food, not to mention covering the costs of phone calls with loved ones on the outside. This proposal would take four steps that would make it harder for incarcerated people to access and save the little money they have:

  1. Confiscate at least 75% of money sent to incarcerated people from their loved ones on the outside. One of the main ways incarcerated people get money is through money transfers from their loved ones on the outside. Under this change, if a person wanted their incarcerated loved one to have $25 to make phone calls to their child, they would actually have to send that person $100 — four times more than they actually will get.
  2. Seize roughly 25-50% of wages earned from work. Prison wages — including federal prisons, where wages are regularly as low as 12-23¢ an hour — are notoriously bad. Under these proposed rules, a quarter or half (depending on what type of job they had) of the money earned by an incarcerated person would be seized, making these already abysmal wages even worse.
  3. Eliminates protections that ensure incarcerated people have the money to call loved ones. Currently, the first $75 that a person in federal prison earns or receives every month is exempted from being taken to pay for legal financial obligations, so this money can instead be used on phone calls between the person in prison and their loved ones on the outside. These proposed rules would eliminate this exemption completely, making it much more challenging to maintain these social connections, which are critical for incarcerated people’s mental health and success after prison.
  4. Pressures incarcerated people to make a one-time payment to pay off obligations, with the threat of notifying the U.S. Attorney’s Office if they don’t. Under the proposal, if a person has enough money in their trust account to pay off their financial obligations completely, they will be encouraged to pay off the entire balance in one lump sum payment, even if that leaves them with essentially no money for other essentials. While people would not be required to make the lump sum payments, the U.S. Attorney’s Office would be notified if they don’t, an implied threat that is significant enough to be considered coercive.

These rules are a bad idea

For many people, there is a self-evident, moral reason that these rules don’t make sense: They make the lives of tens of thousands of people in federal prisons — some of the most disadvantaged people in our country — even worse, in order to punish a handful of wealthy people in prison skirting their responsibilities. However, for those not convinced by this moral argument, there are other important reasons President Biden and the BOP should trash these rules.

They exacerbate existing inequalities

On the first day of his presidency, President Biden ordered all executive branch agencies — including the BOP — to work to redress inequities in their own policies and programs, including ensuring fair and just treatment of “Black, Latino, … and persons otherwise adversely affected by persistent poverty or inequality.” Rather than addressing these inequities, these proposed rules would make them worse, particularly for women of color. Rather than targeting the assets of a few ultra-wealthy individuals, they will impact all people in federal prisons — people who are disproportionately Black and Hispanic. However, the pain doesn’t end there. If the proposed rules were adopted, family members of incarcerated people would lose at least 75% of the funds that they send to their incarcerated loved ones. This change would dramatically increase the burden borne predominantly by women — disproportionately women of color — on the outside trying to provide for their families.

They undermine successful reentry

A person’s successful transition from incarceration is something we all have a stake in. However, this punitive proposal would work against this goal in two ways.

  • Research has consistently shown that one of the strongest predictors of whether someone will end up back behind bars after their release is whether they have strong family and social connections on the outside. These rules would make it much more difficult and costly to maintain these connections by making it harder for people to secure the money needed to make phone calls and send letters to loved ones on the outside.
  • Additionally, when a person is released, they need money almost immediately to secure housing, buy food, purchase clothing for job interviews, and secure transportation to those interviews and other appointments. These rules would make it harder for people in federal prisons to earn and save money to help them upon their release. Poverty is one of the greatest indicators of a person’s likelihood of taking part in criminalized behavior and ending up behind bars. This proposal would almost certainly condemn tens of thousands of people in federal prisons to poverty, even after their release.

These misguided rules would harm nearly all people in federal prisons to address a handful of extreme cases. They’re not just cruel, though; they also undermine the Administration’s stated goal of addressing racial and economic disparities while making it harder for a person to reenter society after their release. President Biden and the BOP should abandon this deeply flawed proposal.

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Assessing the Impact of COVID-19 on Arrests in California

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In the early months of the COVID-19 pandemic, Californians’ lives were transformed by measures that were instituted to reduce virus transmission, including a statewide shelter-in-place order (Technical Appendix Table A1). These measures halted regular work, travel, entertainment, and socializing patterns. Within the criminal justice system, local law enforcement agencies issued directives to avoid unnecessary contact with the public. They also mandated “cite-and-release” orders to non-custodial arrest suspects for some offenses (i.e., issue summons to court rather than booking them into jail). Local courts and the Judicial Council issued zero-bail orders. Most courts closed temporarily, and many reopened with remote hearings (Harris, forthcoming). County jails and state prisons released many inmates early. In this section, we examine how some notable pandemic-related changes may have directly and indirectly affected arrests.

COVID-era Policies and Events that May Have Affected Arrest Trends

Sheltering in place

As concerns and confirmed cases of COVID began to grow in late February and early March, Governor Gavin Newsom declared a state of emergency on March 4. During this period, there were a myriad of local orders, warnings, and shifts in workplace policies intended to limit movement and reduce contact. On March 16, the Bay Area counties issued a shelter-in-place order, which was quickly followed by a statewide shelter-in-place order on March 19. These factors resulted in Californians starkly decreasing their public mobility. By April 15, California residents were taking 50 percent fewer trips to work, retail shops, and restaurants, and 20 percent fewer trips to grocery stores than they had in the previous month (Phillip 2021). Californians sheltering in place on a massive scale in the spring of 2020 led to fewer social interactions and possibly reduced some crimes such as larceny, residential burglary, and robbery (Scott and Gross 2021). These factors likely resulted in fewer arrests. As restrictions eased and people increased their public movement starting in late April, it is likely that there were corresponding increases in arrests.

From late October 2020 to January 2021, COVID hospitalizations and deaths then peaked. This surge prompted statewide curfews and closings of non-essential businesses in mid-November, followed by Los Angeles County and five Bay Area counties issuing shelter-in-place orders in late November/early December. As a result, there was another round of reductions in movement, especially walking and driving. With fewer people leaving their homes, there were fewer occasions for interaction between law enforcement and people out in public, and fewer crimes (Abrams 2021; Abrams, Fang, and Goonetilleke 2022). These decreases in crime and police-public interactions contributed to declines in arrests and bookings.

Emergency law enforcement policies

By mid to late March 2020, some California law enforcement agencies had already begun to reduce interactions with community members—to protect both officers and the public from COVID-19. In addition, agencies began directing officers to avoid arrests and bookings wherever possible to reduce the number of people entering crowded jail settings (Figueroa and Kucher 2020; Gumbs and Hayes 2020; LASD 2020). These efforts likely reduced arrest levels.

Many county jails were filled beyond capacity, and law enforcement agencies hoped to prevent COVID-19 from spreading quickly to inmates and staff in densely packed detention settings and into communities (Technical Appendix Table A1). Some large agencies reduced jail populations by releasing inmates early. For instance, by March 24, jails in Los Angeles County had released 1,700 inmates who were within 30 days of the end of their sentences or were being held for relatively low-level offenses (Hamilton 2020). The impact these early releases had on arrest rates is unclear.

Zero-bail policies

The Judicial Council of California passed several emergency measures, including a zero-bail policy intended to reduce the flow of individuals booked into county jails and limit the number of individuals held in jail for pretrial detention (Slough et al. 2020). By reducing bail to zero for a broad range of offenses, the Judicial Council’s zero-bail policy meaningfully altered the existing pretrial detention process in California.

The statewide zero-bail emergency order, in place from April 13, 2020 to June 20, 2020, set bail for most misdemeanors and lower-level felonies—and a handful of more serious felonies—at zero dollars. Most serious, sexual, and violent crimes, including domestic violence, some assault and weapons offenses, and driving under the influence were excluded from the zero-bail policy (California Courts 2020)—but it covered a handful of more serious and violent felonies, including some assaults that cause serious bodily injury. Individuals arrested for zero-bail offenses were released immediately after they were booked into jail, unless law enforcement or the district attorney petitioned a judge to set a different bail amount in the interest of public safety.

After the statewide policy expired on June 20, 2020, the Judicial Council granted county superior courts the authority to continue zero bail (Balassone 2020a). At that time, 31 county superior courts representing 86 percent of the state’s population chose to continue to use zero-bail schedules (Balassone 2020b), as demonstrated by Figure 5. Some of these counties modified the statewide order—for example, counties such as Los Angeles disqualified individuals from being released on zero bail if they were arrested while still on a zero-bail release for a different offense (Los Angeles Superior Court 2020). By December 2021, five of those counties had ceased to use zero-bail schedules, leaving 77 percent of the state’s population in counties with zero bail (California Courts 2021).

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New report Mass Incarceration: The Whole Pie 2023 shows that as the pandemic subsides, criminal legal system returning to “business as usual”

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30 visualizations expose long-standing truths about mass incarceration in the U.S. and highlight the need for change



March 14, 2023

Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2023, its flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.

Whole Pie chart

Highlights from the report include:

  • Prison populations are starting to rebound. Although prison populations are still lower than they’ve been in decades, prison populations are beginning to increase as pandemic-related slowdowns in the criminal legal system are no longer driving down prison admissions. Additionally, officials continue to release fewer people from prison than before the pandemic.
  • Recent claims about increasing crime are not supported by data. Crime rates remain at near historic lows. However, some in law enforcement and on the right have sought to blame changes to the criminal legal system — such as bail reform, changes to police budgets, or electing “progressive” prosecutors — for increases in some crime rates since the start of the pandemic. However, these claims are not supported by the evidence: murder rates were an average of 40% higher in “red” states compared to blue states in 2020, police budgets have recently increased in the vast majority of cities and counties in the country, and places that did not implement any of these reforms also saw increases in crime rates.
  • In total, roughly 1.9 million people are incarcerated in the United States, 803,000 people are on parole, and a staggering 2.9 million people are on probation.

“The pandemic presented government leaders with the chance to turn the page on the era of mass incarceration, but the emerging data show that they largely squandered this opportunity,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “While incarceration rates dropped quickly at the start of the pandemic, this was the result of pandemic-related slowdowns rather than any deliberate or decisive action by elected leaders. It is disappointing, but not surprising that prison populations are already beginning to creep up again.”

The report includes 30 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:

  • The U.S. continues to lock up hundreds of thousands of people pretrial, and therefore legally innocent, every day.
  • Black people are still overrepresented behind bars, making up about 38% of the prison and jail population and only 12% of U.S. residents.
  • Harsh sentences don’t deter violent crime, and most victims don’t support them. Contrary to popular narratives, most victims of violence prefer investments in violence prevention and alternative ways of holding people accountable rather than more incarceration.
  • At least 113 million adults in the U.S. (roughly 45%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.

“As our society transitions to a new ‘post-pandemic’ normal, we are seeing a return to business as usual as officials are beginning to abandon positive practices implemented in response to the pandemic,” said Sawyer. “The size of The Whole Pie should serve as a wakeup call for both the government and the public that if we don’t take meaningful action to disrupt the real drivers of mass incarceration — poverty, criminalization, low levels of investment in services that meet people’s needs, draconian policies that fuel the systems’ expansion — then the U.S. will retain the dubious distinction as the top incarcerator in the world.”

Read the full report, with detailed data visualizations at: https://www.prisonpolicy.org/reports/pie2023.html.

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