In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs. As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.
While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system. We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.
Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own. This guide is designed to facilitate the sharing of ideas and information across states. That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive. This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.
Criminal justice reforms frequently exclude people who have been convicted of violent or sex offenses. We’ve got ideas on how to change this.
Criminal justice reforms frequently exclude people who have been convicted of violent offenses, sex-related offenses, or offenses related to certain types of drugs, like fentanyl. The types of reforms with these exclusions are far-reaching, ranging from parole reforms, eligibility for time credits, and voting rights or jury service restoration. The long sentences people receive for such offenses and their exclusion from reforms that could reduce excessively long sentences have resulted in the growing number of aging and elderly people in prison.
Cutting incarceration rates to anything near pre-1970s levels or international norms will be impossible without changing how we respond to violence because of the sheer number of people — over 40% of prison and jail populations combined — locked up for violent offenses. States that are serious about reforming their criminal justice systems can no longer afford to ignore people serving time for violent offenses.
When discussions about exclusions come up in your reform fights, here are some helpful points to keep in mind:
More information: See our advocacy toolkit on combatting carveouts, Contending With Carveouts: How and why to resist charge-based exclusions in reforms. Also, be sure to watch our webinar on this topic with guests from the Drug Policy Alliance and Chicago 400 Alliance. See our report Reforms without Results: Why states should stop excluding violent offenses from criminal justice reforms, for more information on the points above. For additional information on the aging population in prison, see our briefing The aging prison population; Causes, costs, and consequences, and the Vera Institute of Justice report Aging Out.
Problem: Many overpoliced communities in the U.S. are deprived of resources they could use to prevent crime without punishing or surveilling community members, such as youth programs and affordable housing.
Solutions: Shift funding from local or state public safety budgets into a local grant program to support community-led safety strategies in communities most impacted by mass incarceration, over-policing, and crime. States can use Colorado’s “Community Reinvestment” model. In fiscal year 2021-22 alone, four Community Reinvestment Initiatives provided $12.8 million to community-based services for reentry, harm reduction, crime prevention, and crime survivors. At the local level, Harris County, Texas (Houston) launched the Harris County Youth Justice Community Reinvestment Fund in 2022, which provided an initial $4 million to seven organizations focused on youth diversion and intervention.
Problem: People with disabilities and mental illnesses are disproportionately arrested and jailed every year, but police and jail staff do not have the specific, in-depth training — nor the mandate — to treat mental illness or to accommodate those with other disabilities. As a result, approximately 25% of people killed by police have a serious mental illness, and suicide is one of the leading causes of death in local jails.
Solutions: Cities, counties, and states should establish non-police crisis response systems. A promising model is Eugene, Oregon’s CAHOOTS program, which dispatches medical specialists rather than police to 911 calls related to addiction, mental health crises, and homelessness. Other promising programs include Atlanta, Georgia’s PAD program, Chicago, Illinois’s CARE program, Denver, Colorado’s STAR program, and Durham, North Carolina’s HEART program.
More information: For details about the CAHOOTS program. For a review of other strategies ranging from police-based responses to community-based responses, see the Vera Institute of Justice’s Behavioral Health Crisis Alternatives; the Brookings Institute’s Innovative solutions to address the mental health crisis; and The Council of State Governments’ Expanding First Response: A Toolkit for Community Responder Programs.
Problem: Spending time in a local jail leads to a number of collateral consequences and financial roadblocks to successful reentry, and higher recidivism rates that quickly lead to higher state prison populations. Yet one out of every three people behind bars is being held in a local jail, most for low-level or non-person offenses.
Solutions: Although jails are ostensibly locally controlled, the people held in jails are generally accused of violating state law, so both state and local policymakers have the power to reduce jail populations. State leaders can:
More information: See our reports, Era of Mass Expansion, and Arrest, Release, Repeat, and The Bail Project’s After Cash Bail. For a discussion of how states handle responses to failures to appear in court, see our briefing High Stakes Mistakes: How Courts Respond to “Failure to Appear.” For a roundup of state legislative efforts to implement front-end diversion and deflection programs, see the National Council of State Legislatures’ The Legislative Primer Series on Front-End Justice: Deflection and Diversion.
Problem: While the Supreme Court has affirmed that until someone is an adult, they cannot be held fully culpable for crimes they have committed, in every state, youth under 18 can be tried and sentenced in adult criminal courts and, as of 2023, there was no minimum age for prosecution in at least 23 states and Washington D.C. The juvenile justice system can also be shockingly punitive: In most states, even young children can be punished by the state, including for “status offenses” that aren’t law violations for adults, such as running away.
Solutions: States should “raise the age” of juvenile court jurisdiction to reflect our current understanding that youth should not be held culpable as adults, “raise the floor” to stop criminalizing young children, end the transfer of youth to adult courts and systems of punishment, and move “status offenses” out of juvenile court jurisdiction.
More information: For information on the youth justice reforms discussed, see The National Conference of State Legislatures; the recently-closed Campaign for Youth Justice provides helpful resources summarizing legislative reforms to Raise the Age, limit youth transfers, and remove youth from adult jails (available here and here); Youth First Initiative’s No Kids in Prison campaign; and the Vera Institute of Justice’s Status Offense Toolkit.
Problem: Numerous studies have linked parental incarceration to negative outcomes for parents and children. Parental incarceration can result in the termination of parental rights, and contribute to the cycle of incarceration, as children whose parents were incarcerated are more likely to become incarcerated themselves.
Solutions: States should seek to avoid parental incarceration. States should pass legislation requiring that a parent’s status as a caregiver be considered at the time of sentencing and when considering alternatives to incarceration. If a parent is incarcerated, they should be placed as close to their family as possible, and meaningful transportation options (such as state-funded ride programs) should be available to guarantee that children are able to regularly visit incarcerated parents.
Legislation: Tennessee SB 0985/ HB 1449 (2019) and Massachusetts S 2371 (2018) permit or require primary caregiver status and available alternatives to incarceration to be considered for certain defendants prior to sentencing. New Jersey A 3979 (2018) requires incarcerated parents be placed as close to their minor child’s place of residence as possible, allows contact visits, prohibits restrictions on the number of minor children allowed to visit an incarcerated parent, and also requires visitation be available at least six days a week.
More information: See Human Impact Partners’ Keeping Kids and Parents Together: A Healthier Approach to Sentencing in MA, TN, LA, and the Illinois Task Force on Children of Incarcerated Parents’ Final Report and Recommendations.
Problem: Many people who face criminal charges are unnecessarily detained before trial. Often, the sole criteria for release is access to money for bail. This puts pressure on defendants to accept plea bargains even when they are innocent, since even a few days in jail can destabilize their lives: they can lose their housing, jobs, and even custody of children. Pretrial detention also leads to jail overcrowding, which means more dangerous conditions for people in jail, and it drives sheriffs’ demands for more and bigger jails — wasting taxpayer dollars on more unnecessary incarceration.
Solutions: States should implement pretrial reforms that end the use of money bail, limit the types of offenses for which pretrial detention is allowed, establish the presumption of pretrial release for all cases with conditions only when necessary, and offer supportive pretrial services such as reminders to appear in court, transportation and childcare assistance for court appearances, and referrals to needed social services.
More information: See The Bail Project’s After Cash Bail; Pretrial Justice Institute’s website; the Criminal Justice Policy Program at Harvard Law School’s Moving Beyond Money; and Critical Resistance & Community Justice Exchange’s On the Road to Freedom. For information on how the bail industry — which often actively opposes efforts to reform the money bail system — profits off the current system, see our report All profit, no risk: How the bail industry exploits the legal system.
Problem: Proposals and pushes to build new carceral buildings and enlarge existing ones, particularly jails, are constantly being advanced across the U.S. These proposals typically seek to increase the capacity of a county or state to incarcerate more people, and have frequently been made even when criminal justice reforms have passed — but not yet been fully implemented — which are intended to reduce incarceration rates, or when there are numerous measures that can and should be adopted to reduce the number of people held behind bars.
Solutions: States should pass legislation establishing moratoriums on jail and prison construction. Moratoriums on building new, or expanding existing, facilities allow reforms to reduce incarceration to be prioritized over proposals that would worsen our nation’s mass incarceration epidemic. Moratoriums also allow for the impact of reforms enacted to be fully realized and push states to identify effective alternatives to incarceration.
Legislation: Massachusetts S 2030/H 1905 (2021) proposed a 5-year moratorium on jail and prison expansion by prohibiting the state or any public agency from building a new facility, studying or identifying sites for a new facility, or expanding or converting portions of an existing facility to expand detention capacity. Hawaii HB 1082/SB1245 (2021) proposed a 1-year moratorium on the construction of new correctional facilities.
More information: For a discussion on historical statements made on moratoriums, arguments in favor of moratoriums, and how to push for a moratorium, see Instead of Prisons Chapter 4 (“Moratorium on Prison/Jail Construction”). For examples of reforms you can argue should be adopted to reduce jail populations, and which a moratorium could give time to take effect, see our report Does our county really need a bigger jail?.
Problem: With approximately 80 percent of criminal defendants unable to afford an attorney, public defenders play an essential role in the fight against mass incarceration. Public defenders fight to keep low-income individuals from entering the revolving door of criminal legal system involvement, reduce excessive sentences, and prevent wrongful convictions. When people are provided with a public defender earlier, such as prior to their first appearance, they typically spend less time in custody. However, public defense systems are not adequately resourced; rather, prosecutors and courts hold a disproportionate amount of resources. The U.S. Constitution guarantees legal counsel to individuals who are charged with a crime, but many states delegate this constitutional obligation to local governments, and then completely fail to hold local governments accountable when defendants are not provided competent defense counsel.
Solutions: States must either directly fund and administer indigent defense services, ensuring that it is funded as an equal component of the legal system, or create a state entity with the authority to set, evaluate, and enforce indigent defense standards for services funded and administered by local governments.
More information: See our briefing Nine ways that states can provide better public defense; the Sixth Amendment Center’s Know Your State page, which provides an invaluable guide to the structure of each state’s indigent defense system, including whether each state has an independent commission with oversight of all public defense services (most do not); the American Bar Association’s Ten Principles of a Public Defense Delivery System; and the American Legislative Exchange Council’s Resolution in Support of Public Defense.
Problem: Nationally, one of every six people in state prisons has been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.
Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding “good time” credit policies. All of these changes should be made retroactive, and should not categorically exclude any groups based on offense type, sentence length, age, or any other factor.
Legislation: Federally, S 2146 (2019), the Second Look Act of 2019, proposed to allow people to petition a federal court for a sentence reduction after serving at least ten years. California AB 2942 (2018) removed the Parole Board’s exclusive authority to revisit excessive sentences and established a process for people serving a sentence of 15 years to life to ask the district attorney to make a recommendation to the court for a new sentence after completing half of their sentence or 15 years, whichever comes first. California AB 1245 (2021) proposed to amend this process by allowing a person who has served at least 15 years of their sentence to directly petition the court for resentencing. The National Association of Criminal Defense Lawyers has created model legislation that would allow a lengthy sentence to be revisited after ten years.
More information: For a discussion of reasons and strategies for reducing excessive sentences, see our reports Eight Keys to Mercy: How to shorten excessive prison sentences, and Reforms Without Results. For materials on second-look sentencing, including a catalog of legislation that has been introduced in states, see Families Against Mandatory Minimums’ Second Look Sentencing page.
Problem: Automatic sentencing structures have fueled the country’s skyrocketing incarceration rates. For example, mandatory minimum sentences, which by the 1980s had been enacted in all 50 states, reallocate power from judges to prosecutors and force defendants into plea bargains, exacerbate racial disparities in the criminal legal system, and prevent judges from taking into account the circumstances surrounding a criminal charge. In addition, “sentencing enhancements,” like those enhanced penalties that are automatically applied in many states when drug crimes are committed within a certain distance of schools, have been shown to exacerbate racial disparities in the criminal legal system. Both mandatory minimums and sentencing enhancements harm individuals and undermine our communities and national well-being, all without significant increases to public safety.
Solutions: The best course is to repeal automatic sentencing structures so that judges can craft sentences to fit the unique circumstances of each crime and individual. Where that option is not possible, states should: adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances; make enhancement penalties subject to judicial discretion, rather than mandatory; and reduce the size of sentencing enhancement zones.
Legislation: Several examples of state and federal statutes are included in Families Against Mandatory Minimums’ (FAMM) Turning Off the Spigot. The American Legislative Exchange Council has produced model legislation, the Justice Safety Valve Act. Tennessee HB 2517/SB 2734 (2020) reduced the size of its drug-free zones and granted judges more discretion to avoid mandatory minimum sentencing for drug charges.
Problem: The release of individuals who have been granted parole is often delayed for months or years because the parole board requires them to complete a class or program (often a drug or alcohol treatment program) that is not readily available before they can go home. As of 2015, at least 40 states used institutional program participation as a factor in parole determinations. In some states — notably Tennessee and Texas — thousands of people whom the parole board deemed “safe” to return to the community remain incarcerated simply because the state has imposed this bureaucratic hurdle.
Solutions: Parole boards can waive these requirements or offer community-based programming after release. Research shows that these programs are effective when offered after release as part of the reentry process.
Legislation: New Jersey’s “Earn Your Way Out Act,” NJ S761 (2020) contains a provision preventing people from being excluded from presumptive parole if required programming was unavailable to them.
Problem: Generally, the dollar amount of a theft controls whether the crime is treated as a felony or a misdemeanor. In many states, these limits have not been increased in years, even though inflation has risen almost every year, making stagnant thresholds increasingly punitive over time.
Solutions: States should increase the dollar amount of a theft to qualify for felony punishment, and require that the threshold be adjusted regularly to account for inflation. This change should also be made retroactive for all people currently in prison, on parole, or on probation for felony theft.
Legislation: For model legislation, see the Public Leadership Institute’s Felony Threshold Reform Act.
More information: For the felony threshold in your state and the date it was last updated, see our explainer How inflation makes your state’s criminal justice system harsher today than it was yesterday. The Pew Charitable Trusts report States Can Safely Raise Their Felony Theft Thresholds, Research Shows, demonstrates that in the states that have recently increased the limits, this did not increase the risk of offending nor did it lead to more expensive items being stolen.
Problem: Probation and parole are supposed to provide alternatives to incarceration. However, the conditions of probation and parole are often unrelated to the individual’s crime of conviction or their specific needs, and instead set them up to fail. For example, restrictions on associating with others and requirements to notify probation or parole officers before a change in address or employment have little to do with either public safety or “rehabilitation.” Additionally, some states allow community supervision to be revoked when a person is “alleged” to have violated — or believed to be “about to” violate — these or other terms of their supervision. Adding to the problem are excessively long supervision sentences, which spread resources thin and put defendants at risk of lengthy incarceration for subsequent minor offenses or violations of supervision rules. Because probation is billed as an alternative to incarceration and is often imposed through plea bargains, the lengths of probation sentences do not receive as much scrutiny as they should.
Solutions: There are a number of solutions available to address these problems. For example, states should:
Legislation: California AB 1950 (2020), Louisiana SB 139 (2017), New York S 4664A (2014), and Virginia HB 5148 (2020) have shortened probation sentences by eliminating minimum sentences, setting caps on probation sentences, or awarding compliance credits. Michigan S 1051 (2020) requires conditions of parole be tailored to the “assessed risks and needs of the parolee.” That law also states a person may not be ineligible for early discharge from probation because of the inability to pay for the conditions of probation or court-ordered financial obligations. Massachusetts H 1534/S 1540 (2023) seeks to eliminate punitive parole conditions, requires parole conditions to be related to the crime of conviction, and prohibits revocation of parole for parole violations that do not result in conviction.
More information: See our report Punishment Beyond Prisons: Incarceration and supervision by state, for details on how probation sets people up to fail and the Executive Session on Community Corrections report Less Is More: How Reducing Probation Populations Can Improve Outcomes, for more on downsizing probation. To learn more about your state’s parole system and whether restrictions are placed on association, see Appendix A of our report Grading the parole release systems of all 50 states.
Problem: Technical violations are behaviors that break parole rules that would not count as “crimes” for someone not under community supervision, such as missing curfew or a check-in meeting, failing to maintain employment, associating with people who have conviction histories, or failing a drug test. In 8 states, more people are admitted to prison for technical violations than for new crimes. Incarcerating people for “technical violations” of probation and parole conditions — whether in jail for a so-called “quick dip” or “flash incarceration” or in prison — is a common but harmful and disproportionate response to minor rule violations. These unnecessary incarcerations make it harder for people under supervision to succeed and lead to higher correction costs. In 2021 alone, 41 states collectively spent over $8 billion to incarcerate more than 193,000 people for supervision violations and revocations.
Solutions: States should limit incarceration as a response to supervision violations to when the violation has resulted in a new criminal conviction and poses a direct threat to public safety. If incarceration is used to respond to technical violations, the length of time served should be limited and proportionate to the harm caused by the non-criminal rule violation.
Legislation: New York S 1144A (2021), the “Less is More” Act, restricts incarceration for technical violations of parole. For information on the implementation of New York’s reforms, see this report from the #LessIsMoreNY campaign. Michigan S 1050 (2020) restricts the amount of time a person can be incarcerated for technical violations of probation; and Massachusetts H 1798/S 1600 (2021) proposed to reduce reincarceration for technical violations or parole.
More information: The Council of State Governments’ report Confined and Costly, shows how many people are admitted and incarcerated for technical violations in your state’s prisons. See also the Pew Charitable Trusts’ report To Safely Cut Incarceration, States Rethink Responses to Supervision Violations.
Problem: Between 2005 and 2015, the number of people on electronic monitoring in the United States increased by nearly 140 percent. Individuals on pretrial supervision, probation, and parole face an array of requirements that may result in them being returned to jail or prison even without committing another crime. Electronic monitoring imposes unnecessary, often contradictory, conditions on recently released individuals, hindering their movement and creating serious barriers to successful reentry.
Solutions: States can introduce and enforce legislation that would outlaw the imposition of electronic monitoring devices for individuals on pretrial supervision, probation, or parole. Until then, individuals forced to wear electronic monitors should not be required to pay for those devices nor be fined or re-incarcerated for their inability to pay monitoring fees. When ordered as a condition of pretrial supervision, defendants should be credited for time served on electronic monitoring, and people placed on electronic monitoring should not be confined to their homes, but rather allowed to work, attend medical appointments, and spend time with their families and communities.
Legislation: Illinois HB 3653 (2019) requires that prosecutors bear the burden of proving a person should be monitored pretrial, requires judges to reconsider the necessity of pretrial monitoring every 60 days, guarantees a person on pretrial electronic monitoring freedom of movement to complete certain essential functions, and requires that people receive credit for time spent on pretrial electronic monitoring that will count as time served at sentencing.
More information: For information on the failures of pretrial Electronic Monitoring, see our briefing Not an alternative: The myths, harms, and expansion of pretrial electronic monitoring. Challenging E-Carceration provides details about the encroachment of electronic monitoring into community supervision, and Cages Without Bars provides details about electronic monitoring practices across a number of U.S. jurisdictions and recommendations for reform. More recommendations can be found in the ACLU’s Rethinking Electronic Monitoring. Fact sheets, case studies, and guidelines for respecting the rights of people on electronic monitors are available from the Center for Media Justice.
Problem: 31 states (Ala., Alaska, Ariz., Ark., Conn., Fla., Ga., Ind., Iowa, Kan., La., Maine, Md., Mass., Mich., Mo., Neb., N.H., N.J., N.C., N.D., Ohio, Okla., Pa., R.I., S.C., S.D., Tenn., Texas, Wash., and Wisc.) suspend, revoke, or refuse to renew driver’s licenses for unpaid traffic, toll, misdemeanor and felony fines and fees, resulting in millions of debt-related suspensions nationwide. License suspension prevents people from earning the money they need to pay their fines and fees, undercuts their ability to support themselves, and forces law enforcement to waste time stopping, citing, and arresting people for driving on a suspended license. Four states have failed to repeal automatic driver’s license suspensions for all drug offenses, including those unrelated to driving. Our analysis shows that there are over 49,000 licenses suspended every year for non-driving drug convictions. These suspensions disproportionately impact low-income communities and waste government resources and time.
Solutions: Stop suspending, revoking, and prohibiting the renewal of driver’s licenses for nonpayment of fines and fees. Since 2017, nineteen states (Calif., Colo., Del., Hawaii, Idaho, Ill., Ky., Minn., Miss., Mont., Nev., N.H., N.Y., Ore., Utah, Vt., Va., W.Va., and Wyo.) and the District of Columbia have eliminated all of these practices. In addition, Alabama, Arkansas, Florida, and Texas should formally opt out of the federal automatic suspension law.
Legislation: Montana HB 217 (2019) provides that a person’s driver’s license may not be suspended for failure to pay a fine, fee, or restitution and allows those whose licenses have already been suspended for failure to pay to file a petition to have their license reinstated. Other recent reforms include Delaware’s HB 244 (2021), New Mexico’s SB 47 (2023), New York’s AO7463B (2021) and Vermont’s HB 53 (2023).
Problem: Most states charge people on probation a monthly fee, even though many are among the nation’s poorest. While the Supreme Court has ruled it unconstitutional to incarcerate someone because they cannot afford to pay court-ordered fines and fees, many courts effectively do just that, by treating nonpayment as a probation violation. Where counties rely on these fees for revenue, courts are incentivized to impose excessive probation sentences. Moreover, the growth of privatized probation has led to unnecessary “pay only” probation supervision for minor offenses.
Solutions: Pass legislation that would eliminate probation fees, require hearings on the ability to pay before assessing fees, and/or regulate the use of privatized probation.
Legislation: California AB 1869 (2020) eliminated the ability to enforce and collect probation fees. Prior to the passage of this legislation, multiple counties had passed ordinances to address probation fees. For example, San Francisco County Ordinance No. 131-18 (2018) eliminated all discretionary criminal justice fees, including probation fees; the ordinance includes a detailed discussion of the County’s reasons for ending these fees. Louisiana HB 249 (2017) requires inquiries be made into a person’s ability to pay before imposing fines and fees or enforcing any penalties for failure to pay.
More information: See our briefing with national data and state-specific data for 15 states (Colo., Idaho, Ill., La., Maine, Mass., Mich., Miss., Mont., N.M., N.D., Ohio, Okla., S.C., and Wash.) that charge monthly fees even though half (or more) of their probation populations earn less than $20,000 per year. States with privatized misdemeanor probation systems will find helpful the six recommendations on pages 7-10 of the Human Rights Watch report Set up to Fail: The Impact of Offender-Funded Private Probation on the Poor.
Problem: Calls home from prisons and jails cost too much because the prison and jail telephone industry offers correctional facilities hefty kickbacks in exchange for exclusive contracts. While most state prison phone systems have lowered their rates, and the Federal Communications Commission has capped the interstate calling rate for small jails at 21c per minute, many jails are charging higher prices for in-state calls to landlines.
Solutions: The Federal Communications Commission is making progress on capping the cost of phone calls, and the recent Martha Wright-Reed Act means that its authority now extends to all phone calls and all video calls as well. However, the current phone call rate caps of 21c/minute for jails (and less for prisons) are still too high. States can address this problem by passing legislation requiring state prison systems and counties to negotiate for phone calls and video calling services for people in their custody on the basis of the lowest cost to the consumer. State legislatures and local governments can also shift the cost of calls from those who are incarcerated to corrections agencies. Public utilities commissions in many states can also regulate the industry, and critically, any lower rate caps enacted at the state level will, by FCC rule, supersede the FCC’s own rate caps.
Legislation and regulations: Legislation like Massachusetts’ H 4052 ensured that the state — not incarcerated people —pay for the cost of calls. Short of that, the best model is New York Corrections Law S 623, which requires that contracts be negotiated on the basis of the lowest possible cost to consumers and bars the state from receiving any portion of the revenue. (An obvious improvement to the New York approach would also include local jail contracts.) States can also increase the authority of public utilities commissions to regulate the industry (as Colorado recently did) and California Public Utilities Commission has produced the strongest and most up-to-date state regulations of the industry.
More information: For more reform ideas, including data on the highest rate charged in each state, see our forthcoming report State of Phone Justice. For additional information, see our Regulating the prison phone industry page, and the work of our ally Worth Rises.
Problem: Correctional facilities often use fee-riddled cards to repay people they release for money in their possession when initially arrested, money earned working in the facility, or money sent by friends and relatives. Before the rise of these release cards, people were given cash or a check. Now, they are given a mandatory prepaid card instead, which comes with high fees that eat into their balance. For example, the cards charge for things like having an account, making a purchase, checking the balance, or closing the account.
Solutions: States have the power to decisively end this pernicious practice by prohibiting facilities from using release cards that charge fees, and requiring fee-free alternative payment methods.
Problem: Despite a growing body of evidence that medication-assisted treatment (MAT) is effective at treating opioid use disorders, most prisons and jails are refusing to offer those treatments to incarcerated people, exacerbating the overdose and recidivism rate among people released from custody. In fact, studies have stated that drug overdose is the leading cause of death after release from prison, and the risk of death is significantly higher for women.
Solutions: States can pass legislation requiring their Department of Corrections to implement MAT to eligible patients in their custody. MAT pairs counseling with low doses of opioids that, depending on the medication used, either reduce cravings or make it impossible to get high off of opiates.
Legislation and model program: New York SB 1795 (2021) establishes MAT for people incarcerated in state correctional facilities and local jails. In addition, Rhode Island launched a successful program to provide MAT to some of the people incarcerated in their facilities. The early results are very encouraging: In the first year, Rhode Island reported a 60.5% reduction in opioid-related mortality among recently incarcerated people.
More information: See our explainer on preventing opioid overdose deaths in prison, and our report Chronic Punishment, which details the high number of people in state prisons with substance use disorders. The Substance Abuse and Mental Health Services Administration published a useful guide to using MAT for opioid use disorder in jails and prisons.
Problem: While many states suspended medical fees (or “copays”) at least temporarily in response to the COVID-19 pandemic, most state departments of corrections, and many local jails, charge incarcerated people a co-pay to see a doctor. Though these fees appear inexpensive, $2-$13.55 for a person in prison can amount to a day’s wages (or more). As a result, medical fees often deter sick people from seeking medical attention — they create health problems in prisons and high healthcare costs for people leaving prison.
Solutions: Pass legislation ending medical fees in prisons and jails.
Legislation: California AB 45 (2018) and Illinois SB 416 (2023), which eliminated most medical fees, but included some harmful exceptions, such as fees for self-inflicted injuries.
Problem: Video calling is quietly sweeping the nation’s prisons and local jails. Unfortunately, rather than providing the video technology as an additional way for families to stay connected, private companies and sheriffs are working together to replace traditional in-person family visits with expensive, grainy computer chats.
Solutions: Follow the lead of Texas, California, and Massachusetts, which have passed legislation that requires jails to preserve in-person visits.
Legislation: Section 36C of Massachusetts’ S 2371 (2018) requires people in jails be provided with at least two in-person visits per week and prohibits jails from replacing in-person visits with video calls.
More information: See our report Screening Out Family Time and other resources on our prison and jail visitation page.
Problem: Letters and cards give incarcerated people a vital link to their loved ones, but mail to and from correctional facilities is under threat. A sharply growing number of prisons and jails are scanning and destroying incoming mail — providing those incarcerated only with the scanned copies — while others have banned incoming mail that is any larger than a postcard. Corrections officials often claim that these policies are for reducing dangerous drug contraband, but their effectiveness in this regard is disputed.
Solutions: States can send a clear message about the importance of protecting family communication by passing a bill or administrative rule requiring correctional facilities to allow individuals who are incarcerated to receive mail in its original form and bar restrictions on the dimensions or number of pages for personal correspondence.
Example rule: Incarcerated people are permitted to send as many letters of as many pages as they desire, to whomever they desire. Incarcerated people may receive postal correspondence in any quantity, amount, and number of pages. This mail will be promptly distributed to recipients in its original form. (Based on Texas Admin. Code S 291.2.)
Problem: Most states bar some or all people with felony convictions from voting. However, the laws across states vary: Only two states (Maine and Vermont) and two territories (D.C. and Puerto Rico) never deprive people of their right to vote based on a criminal conviction, while over 20% of states have laws providing for permanent disenfranchisement for at least some people with criminal convictions. Additionally, while approximately 40% of states limit the right to vote only when a person is incarcerated, others require a person to complete probation or parole before their voting rights are restored, or institute waiting periods for people who have completed or are on probation or parole. In at least six states, people who have been convicted of a misdemeanor lose their right to vote while they are incarcerated. Given the racial disparities in the criminal justice system, these policies disproportionately exclude Black and Latinx Americans from the ballot box. As of 2022, 1 in 19 Black adults nationwide was disenfranchised because of a felony conviction (and in 8 states, it’s more than 1 in 8).
Solutions: Change state laws and/or state constitutions to remove disenfranchising provisions. Additionally, governors should immediately restore voting rights to disenfranchised people via executive action when they have the power to do so.
Legislation: Since 2020, the following states have restored voting rights for people on parole: California (2020), Connecticut (2021), Minnesota (2023), New Jersey (2020), New Mexico (2023), New York (2021), and Washington (2021). In 2020, Washington, D.C., joined Maine and Vermont in allowing people convicted of felonies to vote while still incarcerated.
Problem: Many people who are detained pretrial or jailed on misdemeanor convictions maintain their right to vote, but many eligible, incarcerated people are unaware that they can vote from jail. In addition, state laws and practices can make it impossible for eligible voters who are incarcerated to exercise their right to vote, by limiting access to absentee ballots, when requests for ballots can be submitted, how requests for ballots and ballots themselves must be submitted, and how errors on an absentee ballot envelope can be fixed.
Solutions: Because the voting systems vary from one state to the next, the reforms needed in states may also vary. However, states should guarantee that voting protections are in place. These protections may include providing polling places within facilities, ensuring access to registration services and ballots, allowing community-based organizations access to facilities to provide voter registration and voting assistance, and making election-related communications from and to incarcerated people expedited and free of charge.
Legislation and regulations: Illinois SB 2090 (2019) established a polling location at Cook County Jail and required election authorities and county jails to work together to facilitate absentee voting. The Colorado Secretary of State adopted a rule requiring the state’s 64 sheriffs to coordinate with county election clerks to facilitate voting in jails (see 8 CCR 1505-1, Rules 7.4, 7.4.1). Similarly, Nevada AB 286 (2023) requires jail administrators to work with county clerks to ensure all detained eligible voters can register same-day and vote privately; along with Massachusetts S 2554 (2022), the Nevada law also requires jails to provide necessary forms and post information about voting rights and procedures in each jail. Maryland passed two bills in 2021 requiring the state correctional authority to provide voter registration applications to everyone eligible (HB 222) and to create a secure ballot drop box in the Baltimore City booking facility and notify eligible voters in writing about how to vote using the drop box (SB 525).
More information: See our report Eligible, but excluded, for ways to remove barriers for eligible voters held in jails, and our briefing Jail-based polling locations, showing that people will vote from jail if ballots are accessible.
Problem: The Census Bureau’s practice of tabulating incarcerated people at correctional facility locations (rather than at their home addresses) leads state and local governments to draw skewed electoral districts that grant undue political clout to people who live near large prisons and dilute the representation of people everywhere else.
Solutions: States can pass legislation to count incarcerated people at home for redistricting purposes, as Calif., Colo., Conn., Del., Ill., Maine, Md., Mont., Nev., N.J., N.Y, Va., and Wash. have done. Ideally, the Census Bureau would implement a national solution by tabulating incarcerated people at home in the 2030 Census, but states must be prepared to fix their own redistricting data should the Census fail to act. Taking action now ensures that your state will have the data it needs to end prison gerrymandering in the 2030 redistricting cycle.
Problem: In courthouses throughout the country, defendants are routinely denied the promise of a “jury of their peers,” thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices often ban people from jury service forever.
Solutions: End restrictions that exclude people with conviction histories, as well as people who are charged with a felony or misdemeanor, from jury service. States and U.S. territories have changed restrictions on jury service through legislative reform, amendments to court rules, and changes to executive clemency rules.
Legislation and rulemaking: New York S 1014/A 2377 (2021) proposed to end the lifetime ban on jury service for people with felony convictions and restore the right to serve on a jury after completion of sentence. Louisiana HB 84 (2021) ends the state’s lifetime jury service ban on people with felony convictions and restores the right to serve on a jury for people who have been free from incarceration and off of probation and parole for five years. In addition, the Jury Plan for the Superior Court of the District of Columbia was amended in 2020 to reduce the time a person must wait after completing their sentence to serve on a petit jury from 10 years to 1 year, and in March 2021, Florida changed its executive clemency rules to allow people to regain their right to serve on a jury after completion of sentence.
Problem: The impacts of incarceration extend far beyond the time that a person is released from prison or jail. A conviction history can act as a barrier to employment, education, housing, public benefits, and much more. Additionally, the increasing use of background checks in recent years, as well as the ability to find information about a person’s conviction history from a simple internet search, allows for unchecked discrimination against people who were formerly incarcerated. The stigma of having a conviction history prevents individuals from being able to successfully support themselves, impacts families whose loved ones were incarcerated, and can result in higher recidivism rates.
Solutions: Pass laws or ordinances that make people with conviction histories a protected class under civil rights statutes.
Legislation: More information: See Ending Legal Bias Against Formerly Incarcerated People: Establishing Protected Legal Status, by the Haas Institute for a Fair and Inclusive Society (now the Othering & Belonging Institute), and Barred Business’s The Protected Campaign for information about the campaign to pass Ordinance 22-O-1748 in Atlanta. For information about unemployment among formerly incarcerated people, see our publications Out of Prison & Out of Work, and New data on formerly incarcerated people’s employment reveal labor market injustices.
Problem: Individuals who experience incarceration are more likely than the average person to have had lower incomes, lacked health care coverage, and experienced housing insecurity prior to their incarceration. However, when exiting a prison or jail, individuals are often not connected with necessary supports. While mortality rates and recidivism risk are highest shortly after release, those exiting prison may be released with little more than a one-time stipend (ranging from about $10 - $200), a train or bus ticket, some clothes, and items that they had at the time of admission. Frequently, individuals are not connected to public benefits that can help set them up to succeed.
Solutions: States and the federal government should link people up with benefits that increase stability. For example, the federal government should end bans on access to SNAP (Supplemental Nutrition Assistance Program) and TANF (Temporary Assistance for Needy Families) benefits. States should also provide reentry cash assistance for incarcerated people upon release.
Legislation: The RESTORE Act of 2023 (HR 3479) proposed to lift the ban that prevents people with drug offenses (and their families) from receiving benefits under SNAP.
Problem: Medicaid’s “inmate exclusion policy” leaves state and local governments solely responsible for financing the healthcare of incarcerated people, even when they were covered by Medicaid prior to their incarceration. In most states, Medicaid coverage is terminated when someone is incarcerated, and formerly incarcerated people often struggle to get coverage restored upon their release from prison, leaving them without health care coverage. In addition, people who were incarcerated when they initially became eligible for Medicare Part B were required to enroll and pay premiums while incarcerated - even though they could not receive benefits - or else face hefty penalty fees upon release for “late enrollment.” The Centers for Medicare and Medicaid fixed the enrollment problem with Medicare Part B effective January 2023, but did not make this change retroactive, meaning there are still many people released prior to 2023 who are paying these unfair “late enrollment penalties.”
Solutions: States should ensure that people have access to health care benefits prior to release. They should screen and help people enroll in Medicaid benefits during incarceration and prior to their release, and ensure that people leave prison or jail with proof of insurance coverage. States can also act to avoid unenrolling incarcerated people in the first place by collaborating with their state Medicaid agency. Congress should act to waive Medicare Part B “late enrollment penalties” being paid by people who were released prior to 2023.
Legislation: The Medicaid Reentry Act of 2023 (HR 2400/S 1165) would remove the Medicaid payment exclusion for all incarcerated Medicaid enrollees in the 30 days prior to their release from prison, allowing states to receive federal matching funds for any Medicaid-covered services during those 30 days.
Problem: Police are empowered to seize and keep any personal assets, such as cash or cars, that they suspect are involved in a crime, even when there is never a related arrest or conviction. The use and scope of civil asset forfeiture was greatly expanded because of the war on drugs. But while it was intended to disrupt major criminal organizations, it is disproportionately used against poor people who cannot afford to challenge the seizures (unlike a criminal proceeding, there is generally no right to free counsel in a forfeiture case). Civil asset forfeiture makes poor communities poorer and incentivizes aggressive policing.
Solutions: Legislatures can pass laws requiring a criminal conviction for permanent forfeiture, creating a presumption that low-value seizures are not connected to a crime and therefore not eligible for forfeiture, ending participation in the federal “equitable sharing” program, creating a right to court-appointed counsel in forfeiture cases, and requiring proceeds from forfeitures to instead go to the state’s general fund or a fund dedicated to community development, education, or crime victim compensation.
Legislation: Maine LD 1521 (2021) brings Maine among the ranks of Nebraska, North Carolina, and New Mexico in ending civil asset forfeiture.
More information: See the Institute for Justice’s End Civil Asset Forfeiture page, and the Center for American Progress report Forfeiting the American Dream.
Problem: The drug war has responded to a health problem - unhealthy substance use - with arrests and incarceration. But instead of alleviating the impacts of drug use, the war on drugs denies people who use substances the resources and help they need to recover. The war on drugs has its roots in racially-targeted policies, and has led to heavy and disproportionate policing of Black and Brown communities, while having no substantial effect on rates of drug use or drug sales. Keeping drugs illegal means that they are not regulated by the government, making the drug supply for people who do use drugs more dangerous and increasing the risk of overdose and death.
Solutions: Legislatures can pass laws legalizing marijuana, a change 88% of US adults support. They can also make progress towards legalizing and regulating other drugs by taking the first step of decriminalizing them - making arrest and incarceration not an option or a less common option for drug charges. States can invest in health over incarceration by providing increased access to voluntary treatment, housing, and employment, and adopting harm reduction measures like providing overdose prevention centers - locations where people can safely use drugs they have purchased in close proximity to trained staff who can provide sterile supplies and overdose reversal medication.
Legislation: In 2023, Delaware, Maryland, Minnesota, Missouri, and Ohio joined the list of 24 states that have legalized and regulated recreational marijuana use. Marijuana is legal for medical use in an additional 13 states. In 2020, Oregon Measure 110 made possession of small amounts of a controlled substance punishable by a fine, which can be waived if a person completes a health assessment with an addiction recovery center. A companion piece of legislation, SB 755 (2021), has also already allocated more than $302 million in addiction services and social supports and provided addiction services to over 60,000 Oregonians. In 2021, New York City became the first jurisdiction in the U.S. to authorize overdose prevention sites through the organization OnPoint NYC; after two years in operation, they have served almost 4,000 people and intervened in over 1,000 overdoses.
More information: For information on the policy rationales for drug decriminalization, see Drug Policy Alliance’s Decriminalizing Drugs, Invest in Health Services “Deep Dive.” For information about public support for marijuana legalization, see the Pew Research Center’s Americans overwhelmingly say marijuana should be legal for medical or recreational use.
To contact our advocacy department to discuss support and collaboration that we can offer to local groups seeking to reform the criminal legal system, email us at advocacy@prisonpolicy.org.