Karin D. Martin, Kimberly Spencer-Suarez, Gabriela Kirk

This article proposes the centrality of procedural integrity—or fidelity to local norms of case processing—to the post-sentencing adjudication of monetary sanctions. We draw on insights gained from observations of more than 4,200 criminal cases in sixteen courts in New York and Illinois and find that procedural integrity becomes a focal point in the absence of monetary sanctions paid in full and on time. This examination of the interplay between the sociolegal context and workgroups within courtrooms brings to light how case processing pressure, mandatory monetary sanctions, defendants with pronounced financial insecurity, and judicial discretion inform the role monetary sanctions play in court operations.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 128-147; DOI: https://doi.org/10.7758/RSF.2022.8.1.06

By The American Bar Association, Standing Committee on Legal Aid and Indigent Defense and Arnold Ventures

For some people in New Mexico, a $100 fee could be paid the same day with little thought. For most New Mexicans, however, $100 is a significant percentage of monthly income, and payment might require the person to forego groceries or diapers or miss a car or rent payment.1 Despite these differences, in administering court fines and fees, New Mexico courts fail to adequately distinguish between those with the ability to pay and those for whom payment causes grave hardship. Far too often the result is the incarceration of those unable to pay in violation of Bearden v. Georgia. 2 The American Bar Association (ABA) has developed extensive policies to provide guidance to jurisdictions on how to fairly administer court fines and fees to ensure that individuals are not punished simply for being poor. In 2018, the ABA adopted the Ten Guidelines on Court Fines and Fees, which urge jurisdictions to eliminate or strictly limit user fees (Guideline 1), ensure timely and fair assessment of ability to pay (Guideline 4 & 7), waive or reduce fines and fees based on ability to pay (Guidelines 1 & 2), refrain from using driver’s license suspensions or other disproportionate punishments for nonpayment (Guideline 3), allow individualized alternatives to monetary penalties (Guideline 6), and provide counsel for individuals facing incarceration as a consequence of failure to pay (Guideline 8). To understand the administration of fines and fees in New Mexico’s misdemeanor courts, a team from the ABA Standing Committee on Legal Aid and Indigent Defense (ABA SCLAID) conducted court observation of the state’s Metropolitan, Magistrate, and Municipal Courts over a four-year period from 2018 to 2022. These observations revealed that New Mexico courts routinely fall short of ABA standards. Some of the study’s key observations include: • New Mexico courts assess a wide variety of fees, not just upon conviction, but also pretrial, for supervision, and in connection with bench warrants. Many of these are user fees. • New Mexico rules do not provide for timely assessment of ability to pay, nor do they provide adequate opportunities for reductions or waivers based on substantial hardship. • Current “ability to pay” assessments only allow an individual to adjust payment plans usually to make smaller monthly payments for longer periods, which increases opportunities for failure to pay and extends the individual’s involvement with the criminal justice system. • Bench warrants are routinely issued for failure to appear and, in addition to being subject to arrest, the individual is charged a $100 fee, and his/her driver’s license is suspended. • Unpaid fees often result in further bench warrants, with accompanying fees, exacerbating the cycle of bench warrants, arrests, and debt. • When arrested on a bench warrant for failure to pay, individuals are jailed without a finding that the failure to pay was willful.

• Judges rarely reduce or waive fines or fees unless the individual first serves time in jail. • The “payment” of fines and fees through credit for jail time is common. These fines and fees result in little, if any, financial benefit to New Mexico. A case study of individuals who were arraigned in Bernalillo County (Albuquerque) Metropolitan Court (incustody) during a one-week period in 2017 showed that 93% “paid” their fines and fees exclusively through incarceration, while only 3% actually paid their fines and fees in full. A similar one-week study of 2021 cases showed that incarceration remains the dominant form of “payment” (73% of individuals satisfied at least a portion of their fines and fees with jail time), while a similarly small percentage of individuals (4%) paid their fines and fees in full.3 To comply with ABA policies, New Mexico should consider: • Eliminating or reducing court fees, particularly user fees; • Revising procedures to ensure prompt consideration of ability to pay at the time fees or fines are imposed; • Ensuring that those for whom payment would cause substantial hardship have access to waiver or reduction of fees; • Improving the hearing notice process and increasing second-chance opportunities before bench warrants issue for failure to appear; • Discontinuing driver’s license suspension as a consequence of nonpayment; • Ensuring that individuals cannot be jailed for nonpayment until after an ability to pay hearing and a finding that the failure to pay was willful; • Guaranteeing counsel for any indigent individual facing incarceration for failure to pay; and • Improving alternative payment options and ensuring that those options are personalized and account for each individual’s circumstances. By adopting the recommendations of this report, New Mexico courts can bring their practices into compliance with not only with ABA policy, but also with the requirements of the U.S. Constitution. For this reason, New Mexico should consider reforms to improve its fine and fees procedures and ensure that its criminal justice system does not punish individuals simply for being poor.4

Chicago: ABA, 2023. 67p.

By Judith Resnick, et al.

n the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly.

This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.

Yale Law School, Public Law Research Paper No. 644. New Haven, CT: Yale Law School, 2020. 223p

Wilson Center for Science and Justice and the Fines and Fees Justice Center

Ability to Pay, Collateral Consequences, Courts as Revenue Centers, Racial Disparities, Traffic Fines and Fees . Court-imposed debt impacts working families across all racial groups, political affiliations, and income levels. In the past ten years, a third of Americans have been directly affected by fines or fees related to traffic, criminal, juvenile, or municipal court. This report is the first national survey to examine how court-imposed fines and fees affect individuals and families. Researchers found that fines and fees debt creates hardships in people’s daily lives. Many respondents reported experiencing serious hardship, being impacted in three or more aspects of daily life.

Wilson Center for Science and Justice and the Fines and Fees Justice Center . 2023. 40p.

By Christian Traxler and Libor Dusek

We estimate the effect of the level of fines on payment compliance and revenues collected from speeding tickets. Exploiting discontinuous increases in fines at speed cutoffs and reform induced variation in these discontinuities, we implement two complementary regression discontinuity designs. The results consistently document small payment responses: a 10 percent increase in the fine (i.e. the payment obligation) induces a 1.2 percentage point decline in timely payments. The implied revenue elasticity is about 0.9. Expressed in absolute terms, a one dollar increase in the fine translates into a roughly 60 cent increase in payments

Unpublished Paper: (November 19, 2022).

By Cristina Mendez, Jeffrey Selbin and Gus Tupper

In 2019, the Idaho Legislature’s Office of Performance Evaluations (OPE) published a report acknowledging Idaho’s reliance on fines and fees as a source of court funding. According to the report Idaho residents owed a total of more than $268 million in delinquent court debt. In this article, the authors further examine the state’s reliance on monetary sanctions, focusing on fees in the juvenile delinquency system, and recommending a pathway to ending the harmful impact of monetary sanctions.

57 Idaho L. Rev. (2021).

By Anna VanCleave, Brian Highsmith, Judith Resnik, Jeff Selbin, Lisa Foster

Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color. This volume surveys the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that undergird so much of state and local funding. Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color. In the spring of 2020, the stark inequalities of the pandemic’s impact and of police killings sparked uprisings against the prevalence of state-based violence and of government failures. Those protests have underscored the urgent need for profound, sustainable transformations in government systems that have become all too familiar. This volume maps the structures that generate oppressive practices, the work underway to challenge the inequalities, and the range of proposals to seek lasting alterations of expectations and practices so as to shape a social and political order that is respectful of all individuals’ dignity, generative for communities, and provides a range of services to protect safety and well-being.

The Arthur Liman Center for Public Interest Law at Yale Law School Fines & Fees Justice Center Policy Advocacy Clinic at UC Berkeley School of Law, 2020. 337p.

By Public Safety Canada

Indigenous offenders continue to be disproportionately represented at all levels of the Canadian criminal justice system and the federal government is committed to addressing this over-representation of Indigenous people. The Indigenous Community Corrections Initiative (ICCI) was created to help close the gaps in service for Indigenous Peoples in the criminal justice system and address the government commitment to respond to the Truth and Reconciliation Commission (TRC) Calls to Action, in particular actions 30 and 32 regarding the over-representation of Indigenous offenders in custody. The objectives of the Initiative are to support the development of alternatives to custody and to provide reintegration support for Indigenous offenders. Public Safety Canada (PS) was allocated $10M over five years in Budget 2017 for the ICCI. While the target population for the Initiative was Indigenous federal offenders, the Department accepted proposals that included Indigenous adult offenders who had been convicted of an offence with a sentence of less than two years (generally classified as provincial offenders). The call for proposals closed in November 2017 and PS received 126 submissions. An initial assessment screened out 62 proposals that did not meet the objectives of the ICCI and a secondary assessment of the remaining proposals ended with 15 projects selected for funding. Due to the program being approved late in the 2017-18 fiscal year, the program was not able to fund projects until 2018-19. After a successful re-profiling of funds, the ICCI was able to add an additional project in 2018 which brought the total to 16 funded projects.

Ottawa: Public Safety Canada, 2021. 30p.

By Clarence Okoh & Isabel Coronado

Community supervision, or community corrections, refers to a court-ordered period of correctional supervision served outside of a correctional facility. Some policymakers insist that “community supervision” is a viable path to combat mass incarceration. However, mounting evidence makes clear that “mass supervision” is not a solution; instead, it is a leading driver of mass criminalization, especially in Black communities and other communities of color. Mass supervision’s broad range of economic, legal, and social disadvantages trap millions of individuals in cycles of carceral predation and second-class citizenship. To address this crisis, policymakers must envision an entirely new paradigm to support the needs of individuals returning home from correctional facilities. This paradigm must break cycles of correctional punishment while insisting on systemic redress and repair for communities that have carried the heaviest burdens of mass criminalization.

This report offers insights to help policymakers create that new paradigm. For this report, we interviewed over two dozen community advocates, practitioners, and systems-impacted individuals concentrated in three states–Arizona, Oklahoma, and Wisconsin–to understand better how state community supervision systems impede or support economic opportunity, with a particular focus on parole supervision.

What emerged from those conversations was a consensus about the need for a new legal and policy paradigm that we term “community repair.” Community repair offers an entirely different relationship between the state and systems-impacted individuals. Community repair is an anti-carceral policy approach that advocates for removing corrections and law enforcement from the reentry process altogether—recognizing that public investments in meeting basic needs such as employment, housing, and health care hold the most significant promise in disrupting mass supervision and incarceration. This framework goes further by insisting that the state must address present harms and redress the multigenerational harms of mass supervision on families and communities impacted by the criminal legal system.

Based on our conversations with stakeholders and an extensive scan of policy developments at the state and national levels, we offer recommendations for harm reduction and systems transformation of community supervision.

Washington, DC: Center for Law and Social Policy - CLASP, 2022. 28p.

By Beth M. Huebner, Lee Ann Slocum, Andrea Giuffre, Kimberly Kras, and Bobby Boxerman

This project focuses on the St. Louis County Jail which is managed by the Department of Justice Services and serves as the central detention facility for the region. St. Louis County, Missouri provides an ideal location to study the jail-probation nexus. St. Louis County is a large and diverse community. Sixty-eight percent of the population is white and 25% Black, with a small (less than 3%) Hispanic and Latinx population. The county poverty rate of 9.7% is slightly lower than the national average. The Missouri Department of Corrections (MoDOC) is a centralized system, and the St Louis County offices supervise 2,481 clients on probation. The data used in this report include administrative data from the years 2010-2020 that were provided by Justice Services. The process and outcome analyses are also informed by data collected from qualitative interviews with individuals on probation (n=47) and local criminal justice stakeholders (n=17).

Safety & Justice Challenge, 2023. 13p.

By M. Camello, M., R. Shute, & J.D. Ropero-Miller

Individuals on community supervision are often required to abstain from alcohol and drug use and are typically subjected to substance use monitoring to verify sobriety, as a condition of their supervision. Providing reliable, timely, and cost- effective monitoring of alcohol and drug use for persons on community supervision as a condition of their release is a serious challenge given high-volume caseloads and concerns with public safety. This technology brief highlights technologies and solutions used to monitor alcohol and drug use for persons on community supervision. This is the third document in a four-part series on technologies to support the monitoring and supervision of individuals on pretrial release, probation, and parole (i.e., community supervision).

Research Triangle Park, NC: RTI International. 2023. 22p.

By Donata Favretto, Cindi Visentin, Anna Aprile, Claudio Terranova, Alessandro Cinquetti

The most effective therapy for people with opioid use disorder (OUD) involves the use of Food and Drug Administration-approved medications—methadone, buprenorphine, and naltrexone. Despite evidence that this approach, known as medications for opioid use disorder (MOUD), reduces relapse and saves lives, the vast majority of jails and prisons do not offer this treatment. This brief examines what policymakers should consider when exploring how to best manage OUD in incarcerated populations.

It helps to first answer this question: How common is OUD in incarcerated populations? Data from 2007-2009 (the most recent available) showed that more than half of individuals in state prisons or those with jail sentences met the criteria for a non-alcohol and nicotine-related substance use disorder (SUD), meaning a problematic pattern of using a drug that results in impairment in daily life or noticeable distress, compared with only 5 percent of adults in the general population.

The gold standard of care is MOUD. In community-based settings, such as opioid treatment programs and primary care facilities, methadone and buprenorphine have been proved to reduce overdose deaths and illicit opioid use as well as the transmission of infectious diseases such as HIV and hepatitis C. A growing body of literature also exists on the benefits of naltrexone, the third Food and Drug Administration-approved medication.

Philadelphia: Pew Charitable Trusts, 2020. 22p.

By Pew Trust

The most effective therapy for people with opioid use disorder (OUD) involves the use of Food and Drug Administration-approved medications—methadone, buprenorphine, and naltrexone. Despite evidence that this approach, known as medications for opioid use disorder (MOUD), reduces relapse and saves lives, the vast majority of jails and prisons do not offer this treatment. This brief examines what policymakers should consider when exploring how to best manage OUD in incarcerated populations.

It helps to first answer this question: How common is OUD in incarcerated populations? Data from 2007-2009 (the most recent available) showed that more than half of individuals in state prisons or those with jail sentences met the criteria for a non-alcohol and nicotine-related substance use disorder (SUD), meaning a problematic pattern of using a drug that results in impairment in daily life or noticeable distress, compared with only 5 percent of adults in the general population.

The gold standard of care is MOUD. In community-based settings, such as opioid treatment programs and primary care facilities, methadone and buprenorphine have been proved to reduce overdose deaths and illicit opioid use as well as the transmission of infectious diseases such as HIV and hepatitis C. A growing body of literature also exists on the benefits of naltrexone, the third Food and Drug Administration-approved medication.

By Miranda Davies, Rachel Hutchings and Eilís Keeble

There were 11,494 people under 25 years of age in young offender institutions and prisons in England and Wales as of 31 December 2022, representing 14% of the total population in custody. While the number of children (under 18) in secure settings has fallen sharply over the past 15 years, very serious challenges remain over the use of force in the children’s secure estate, with ongoing concern over children being held in solitary confinement, some for extended periods. From a legal perspective, young people are treated as adults from the age of 18 within the criminal justice system, but there is recognition of the needs of 18- to 25-year-olds as ‘young adults’ (see the work of t2a.org.uk), distinct from the needs of children or other adults. This analysis uses routinely collected hospital data to look at the service-use patterns of children and young adults aged 25 and under in young offender institutions and prisons in England. We engaged with experts and looked at the literature to consider this in the context of the key health care needs of young people. Looking across the children’s secure estate as well as the adult estate provides a novel perspective on the key health care issues for young people, allowing us to compare experiences in the so-called ‘children and young people secure estate’, which caters for those aged 18 and under and is run as a distinct part of the custodial estate, with those in the adult estate, which manages young adults alongside prisoners in older age groups. Understanding how health care access and needs differ is important, because the distinction between the two parts of the system is becoming increasingly blurred. Recently, population pressures in the adult estate have led to an increase in the number of young people aged 18 or over in the children’s secure estate, which will drastically alter the age profile of the children’s secure estate population.

A summary of the key findings and some considerations for policy-makers are provided below. We found that some of the biggest problems affecting the adult prison estate – violence and self-harm – have a disproportionate impact on young adults. We consider how the prison service can meet the needs of young people in custodial settings, and the benefits of providing tailored support for young adults in particular.

London: Nuffield Trust, 2023. 55p.

By Jennifer Peirce, Tara Dhanraj Roden, Sandhya Kajeepeta, Elizabeth Swavola, and Jesmeen Grewal

This report presents an analysis of women’s experiences with the local criminal legal system in Buncombe County, North Carolina: their pathways into and out of the jail, their living conditions and concerns during detention, and their perspectives on how services and systems in the county can improve. The underlying research project was part of the broader jail reduction work of the Safety and Justice Challenge (SJC) network. In 2018, the Vera Institute of Justice (Vera) selected Buncombe County as a Safety and Justice Challenge site with which to partner in identifying drivers of growth within the women’s jail population and opportunities to reduce the number of women in jail. Buncombe County has a population of 269,452 (as of April 2020) and covers 656 square miles, including the City of Asheville.1 The findings in this report are based on administrative data from the jail (January 2017– April 2021); surveys with 40 women, representing nearly all the women who were held in the jail in September 2021; and interviews with 21 women conducted by Vera staff via video calls. Although the findings are responsive and specific to the needs of women in Buncombe County, many of the recommendations, if implemented, can benefit all people who are involved in the local criminal legal system.+ Broadly, this report finds that women’s pathways into jail in Buncombe County—in line with national patterns—are shaped by economic instability and laws and policies that criminalize acts of survival and acts related to substance dependency.2 In general, there is an excessive use of police, jail detention, and community supervision for low-level charges that do not pose a public safety risk. There is a clear opportunity to reduce the use of criminal legal system resources to respond to these situations and invest instead in supportive community-based services, especially for women. The key findings and recommendations from this work are grouped into six themes: 1. the criminalization of poverty, 2. bail, 3. community supervision, 4. substance use, 5. jail conditions and costs, and 6. interagency coordination and communication.

New York: Vera Institute of Justice, 2022. 55p.

By Miranda Davies, Lucina Rolewicz, Laura Schlepper and Femi Fagunwa

There were, on average, 83,000 people in prison in England and Wales at any one time last year, yet relatively little is known about prisoners’ physical health care needs; how and why they access hospital services; and whether their physical health needs are being adequately met. Drawing on over 110,000 patient hospital records for prisoners at 112 prisons in 2017–18, this study provides the most in-depth look to date at how prisoners’ health needs are being met in hospital. Prisoners use hospital services far less and miss more hospital appointments than the general population • Prisoners had 24% fewer inpatient admissions and outpatient attendances than the equivalent age and sex demographic in the wider population, and 45% fewer attendances at accident and emergency departments. • 40% of outpatient appointments for prisoners were not attended (32,987 appointments) – double the proportion of non-attended appointments in the general population. Our research found that the value of non-attended appointments by prisoners in 2017/18 where no advanced warning was given equated to around £2 million for the NHS. Prisoners have particular health needs related to violence, drug use and self-harm • Injury and poisoning were the most common reason for prisoners being admitted to hospital, accounting for 18% of cases (2,169 admissions) compared to 6% of all admissions in the general population (aged 15+). • Psychoactive substance use was recorded in more than 25% of all inpatient admissions by prisoners in 2017/18. Hospital data reveals potential lapses of care within prisons for certain groups of prisoners • Six prisoners gave birth either in prison or on their way to hospital, representing more than one in 10 of all women who gave birth during their prison stay. • There were 51 hospital admissions by 39 prisoners with diabetes as a result of diabetic ketoacidosis (DKA), an avoidable and potentially life-threatening complication of diabetes caused by lack of insulin. This analysis points to two key areas where more focused policy attention could result in improvements to prisoner health: improving prisoners’ access to hospital care and making better use of hospital data. We therefore make the following recommendations for the five public authorities involved in the National Partnership Agreement for Prison Healthcare – the Ministry of Justice, Her Majesty’s Prison and Probation Service, Public Health England, the Department of Health and Social Care, and NHS England – as well as prisons, health care providers, commissioners, and the research community .

London: Nuffield Trust, 2020. 83p.

By Miranda Davies, Rachel Hutchings, Eilís Keeble and Laura Schlepper

The number of older people in prison in England and Wales is increasing, but prisons are not well set up to meet health care needs associated with ageing. Between 2010 and 2022, the number of prisoners aged 50 or older increased by 67% (from 8,263 to 13,835),2 and is predicted to increase to 14,800 by July 2025.3* Prisoners tend to be in poorer health than the general population, and this is particularly the case for older prisoners, who are considered to be ‘older’ from the age of 50 in recognition of their additional health care needs. Tough conditions in prison – regime constraints, poor living conditions and the threat of violence – disproportionately affect older prisoners, but these are not new problems. The extent to which the needs of older people in poor health can be met effectively in a prison setting is questionable, given the multiple competing priorities. For this work we used routinely collected hospital data to look at the health care needs of older people in prison in England. A summary of the key findings and considerations for policy-makers are provided below. We found significant health care needs associated with frailty among our older prisoner population. We consider the implications for the prison service of managing increasing numbers of older prisoners as the population continues to age.

London: Nuffield Trust, 2023. 51p.

By Chad M. Topaz, Shaoyang Ning, Maria-Veronica Ciocanel & Shawn Bushway

Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.

Humanities and Social Sciences Communications volume 10, Article number: 366 (2023)

By The Robina Institute of Criminal Law and Criminal Justice

KEY POINTS • Despite the common practice of drug testing as a condition of supervision, there is no research that focuses on the effectiveness of drug testing on its own in reducing recidivism and drug use. • Increased drug testing as part of an Intensive Supervision Program (ISP) approach does not reduce re-offending but does increase the detection of technical violations and revocations. • Random drug testing alongside swift, certain, and fair sanctions shows evidence for reducing recidivism and drug use in the short-term but shows no benefit once the individual goes back to supervision as usual. • Drug testing works well as a way to monitor compliance with supervision conditions, but there is no evidence that it reduces re-offending or drug use when used apart from other supervision practices.

St.:Paul, MN: Robina Institute of Criminal Law and Criminal Justice , 2020. 4p.

By Nazgol Ghandnoosh

One in five Black men born in 2001 is likely to experience imprisonment within their lifetime, a decline from one in three for those born in 1981. Pushback from policymakers threatens further progress in reducing racial inequity in incarceration

Following a massive, four-decade-long buildup of incarceration disproportionately impacting people of color, a growing reform movement has made important inroads. The 21st century has witnessed progress both in reducing the U.S. prison population and its racial and ethnic disparities. The total prison population has declined by 25% after reaching its peak level in 2009.1 While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most. The number of imprisoned Black Americans decreased 39% since its peak in 2002.2 Despite this progress, imprisonment levels remain too high nationwide, particularly for Black Americans.

Reforms to drug law enforcement and to sentencing for drug and property offenses, particularly those impacting urban areas which are disproportionately home to communities of color, have fueled decarceration and narrowed racial disparities.3 These trends have led scholars to declare a “generational shift” in the lifetime likelihood of imprisonment for Black men.4This risk has fallen from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001.5 Black women have experienced the sharpest decline in their imprisonment rate, falling by 70% between 2000 and 2021.6

But nine years after national protests catapulted the Black Lives Matter movement following the police killing of Michael Brown in Ferguson, Missouri and three years after a national racial reckoning triggered by Minneapolis police officers killing George Floyd, progress in reducing racial disparity in the criminal legal system is incomplete and at risk of stalling or being reversed.

The United States remains fully in the era of mass incarceration. The 25% decline in the total prison population since 2009 follows a nearly 700% buildup in imprisonment since 1972.7 The prison population in 2021 was nearly six times as large as 50 years ago, before the era of mass incarceration, and in 2022 the prison population expanded.8 The prison and jail incarceration rate in the United States remains between five and eight times that of France, Canada, and Germany and imprisonment rates in Arkansas, Louisiana, Mississippi, and Oklahoma are nearly 50% above the national average.9 The reluctance to fully correct sentencing excesses, particularly for violent crimes as supported by criminological evidence, prolongs the harm and futility of mass incarceration.10

Racial equity in incarceration remains elusive. The lifetime likelihood of imprisonment among Black men born in 2001, although decreased, remains four times that of their white counterparts.5 Black women’s rate of imprisonment in 2021 was 1.6 times the rate of white women.12 These disparities are even more pronounced in certain states, and among those serving the longest sentences.13 In 2021, American Indian and Latinx people were imprisoned at 4.2 times and 2.4 times the rate of whites, respectively.14 Fully uprooting these racial and ethnic disparities requires both curbing disparities produced by the criminal legal system and addressing the conditions of socioeconomic inequality that contribute to higher rates of certain violent and property crimes among people of color.

Washington, DC: The Sentencing Project, 2023. 16p.