Criminal Justice Overview: Mass Incarceration

Last Updated Jun 13, 2022

This guide is intended to help donors gain a deeper understanding of the U.S. criminal justice system and outlines opportunities to address the root causes of inequitable outcomes. See the entire series. By Madeleine Alegria

Did you know?

What is Mass Incarceration?

As of 2019, there were more than 2 million people incarcerated in the U.S. While this is the lowest incarceration rate since 1995, the U.S. still incarcerates more people per capita than any other country on the planet.

Mass Incarceration Overview

Mass Incarceration

America’s legacy of slavery, economic reliance on a captive labor force, and racial biases have resulted in a carceral system that has spiraled out of control. The passage of the 13th Amendment in 1865 guaranteed the end of chattel slavery except for those convicted of crimes. Racial and economic anxieties following the collapse of the plantation model culminated in the passage of Black Codes and later Jim Crow laws which enlisted the criminal justice system in its campaign for racial control. These laws, fueled by racist stereotypes which associated Blackness with criminality ensured that swarths of predominantly Black men would be caught up in the carceral system in perpetuity. Many contemporary police tactics can be traced back to “slave patrols,” militia groups tasked with policing enslaved people’s behavior and re-capturing runaway slaves. After the civil war, police forces co-opted slave patrol tactics, such as hyper surveillance and public beatings, to enforce segregation. Any behavior which asserted the freedom of Black Americans became criminalized including vagrancy laws that disproportionately targeted Black Americans for “crimes” such as “mischief” or “insulting gestures.”

Today, the U.S. incarcerates so many people that if each state were its own separate country, each state would still rank above every other independent democracy in its incarceration rate.

Why Donors Should Care About Mass Incarceration

Instead of addressing the root causes of crime such as mental illness or poverty, the U.S. waits for the crimes to occur and then hides away the perpetrators at an exorbitant cost.

The country spends an annual total of:

  • More than $80.7 billion on public prisons
  • $3.9 billion on private prisons

This doesn’t account for the $2.9 billion burden placed upon the families of incarcerated individuals for additional expenses. When accounting for the total annual cost of mass incarceration, including policing, public defense, bail, healthcare, and prisoner costs the U.S. spends an estimated $182 billion a year.

The U.S. has one of the highest recidivism rates in the world. A 10-year study found that 66% of prisoners released in 2008 were arrested within three years, and 82% of released prisoners were arrested within 10 years. Since the 1960s, the U.S. incarceration rate has more than tripled, this jump can largely be attributed to the decimation of rehabilitation services.

In addition to the sentences served for crimes, inmates also pay collateral consequences.

  • Forty-three states, and D.C., suspend driver’s licenses due to unpaid court debts, as a result, millions of people have lost their driver’s licenses because they are too poor to pay.
  • The unemployment rate for formerly incarcerated people sits at 27%, which is higher than the unemployment rate during the Great Depression. This is largely due to discrimination in the job market against former felons, lingering criminal records, and gaps in employment history.
  • Formerly incarcerated folks are 10 times more likely to experience homelessness after release, perpetuating ongoing homelessness, addiction, and incarceration.

Evidence suggests that intervention programs for at-risk youth, victims of assault, and those suffering from addiction are critical for stopping crime before it happens. Prioritizing rehabilitation and re-entry programs is another effective method at preventing crime and saves money in the long run. Even violent criminals need access to rehabilitation programs. Many criminals are victims themselves, with more than 68% of inmates experiencing childhood abuse.

Inmates who can participate in any educational program while incarcerated are 43% less likely to reoffend than their counterparts.

Taxpayer savings on incarceration

An emerging practice in the criminal justice sector is restorative justice, which reshapes the conversation of justice as retribution and focuses on justice as repair. Early studies have shown that restorative justice programs “are effective at both reducing recidivism and increasing victim satisfaction with the justice process.”

Who Is Impacted by Mass Incarceration?

BIPOC Communities

Black Americans are five times more likely to be stopped without reason than white Americans. Despite making up just under 1% of the population, Native people make up 2.3% of the prison population, and Native women make up 2.5% of women in jails and prisons. Though the U.S. does not keep records on Asian Americans in the prison system, Southeast Asians are five times more likely to be deported for criminal offenses than other immigrants.

Disproportionate Impacts on BIPOC Communities

Likelihood of Incarceration, by Race
Upon release from prison, formerly incarcerated people have an increased difficulty in obtaining a job or housing. This can have a profound effect on someone’s ability to make a living after prison including a 52% average decrease in annual earnings amounting to a loss of nearly $500,000 over a lifetime. Because Black and Latino people are disproportionately represented in prisons, the overwhelming loss of earnings from incarceration has deepened the inequities in Black and Brown communities.

Exoneration and Mass Incarceration

Many formerly incarcerated people have also been stripped of their voting rights. More than 6.2% of African Americans of voting age are disenfranchised compared to 1.7% of the non-African American population. In a practice known as prison gerrymandering,  a district that houses a prison can have the same population as a neighboring district, but with a large proportion of the population unable to vote. This gives non-incarcerated voters within that district a disproportionate amount of political power while diluting the voting power of the home districts that inmates are removed from. This is especially concerning considering that prisons are often built in predominantly rural and overwhelmingly white areas despite the overwhelming number of inmates coming from diverse, urban districts. Because inmates are barred from voting, many of the representatives in districts with prisons cater to the interests of the predominately white prison staff and families that live around the prison and do not serve the interests of the overwhelmingly Black and Brown inmate population.


Each year, more than 250,000 children, some not even teenagers, are prosecuted in adult criminal courts and subjected to adult criminal consequences, more than any other wealthy nation on the planet. Additionally, 36 states allow children under the age of 18 to serve time in adult prisons where they are at nine times higher risk for suicide, as well as a higher risk for sexual and physical assault. Some states require “sight and sound” separation to shield kids from sexual violence, but in practice, this results in children being held in solitary confinement for up to 22 hours a day for weeks resulting in mental health issues. Thirteen states have no minimum age for trying children as adults. Each year judges transfer dozens of children under the age of 14 to adult courts, more than half of these children are Black or Hispanic.

Children with incarcerated parents are more likely to:

  • Drop out of school
  • Be diagnosed with a learning disability
  • Be at an increased risk for mental health disorders including PTSD, depression, and anxiety.

Mass Incarceration Effects on Children

Mass Incarceration Effects on Children

This is especially concerning as children with incarcerated parents are six times more likely to become incarcerated themselves. In cases where incarcerated parents have a strong bond with their children before incarceration, the negative effects on children can be mitigated as long as the child receives support through frequent visits and maintained communication with the parent. Maintaining strong familial relationships is also a key predictor of whether or not an inmate will re-offend in the future.

Women and LGBTQ+ People

Women constitute the fastest-growing population in jails and prisons in the U.S. Women coming to jails and prisons are typically in more vulnerable positions than men due to increased risks for drug addiction, mental illness, and histories of abuse. Nearly one-third of all incarcerated women have been detained for issues related to sex work.

One in six trans people and over half of trans-POC have been incarcerated in their lifetime. Queer people, especially queer BIPOC, immigrants, and trans women are more likely to be sex workers. The passage of laws such as SESTA/FOSTA have made sex work more dangerous by cracking down on online networks where sex workers could screen clients and flag potentially dangerous clients for other sex workers. The bill penalizes “the facilitation of prostitution” which carries a 10-year prison sentence. This has forced many sex workers onto the streets where there is an increased risk for violence, incarceration, and significantly decreased wages. This is especially true for Black trans women who are more likely to be stopped and harassed by police. The criminalization of sex work and drug use avoids the root causes – often discrimination, mental health, and poverty – making sex workers’ jobs more dangerous and leaving them vulnerable to abuse by clients and by law enforcement officers.

What Is Causing These Disparities?


People who enter the carceral system are overwhelmingly poor with two-thirds of detainees in jail reporting annual incomes around $16,000 for men and $11,000 for women prior to arrest. The median bail for a felony sits at $10,000. Roughly 550,000 Americans, who have not yet been convicted of a crime, are sitting in jails largely because they cannot afford bail. Nearly 75% of these individuals are accused of committing low-level drug offenses.

Pre-trial incarceration costs

If not for the explosion of mass incarceration, the number of people living in poverty would drop by more than 20%.

One year after release, 60% of formerly incarcerated people remain unemployed in large part due to bias against job applicants with criminal records.

Furthermore, people with criminal records are often disqualified from living in government subsidized housing, receiving SNAP benefits, and a number of other government programs designed to alleviate poverty.

Bias in the Justice System

Bail and Sentences

It is estimated that only 2% of defendants will ever see a jury trial, and only 1% of defendants who go to trial will win their case. Going to trial often means risking harsher punishments and incurring additional legal expenses, prosecutors and defense attorneys know this and push defendants to plead guilty, even if they are innocent. Because of this, 90% of defendants plead guilty. Sentencing is up to a judge’s discretion and federal sentencing guidelines, therefore punishments for the same crime can differ greatly from person to person or judge to judge. Considering that almost 73% of judges are men, and 80% of judges are white, the judicial branch is hardly representative of America. This has real consequences for defendants who are overwhelmingly poor, uneducated, or people of color. In Florida, white judges sentence Black defendants to 20% more time on average than white defendants for the same crimes with similar records.

In an effort to reduce bias in the pre-trial detainment, some counties have implemented algorithms to determine a defendant's risk in lieu of cash bail. However, evidence shows risk-assessment algorithms are more likely to see race, socioeconomic status, and age as factors for increased risk. Even in cases where the algorithms were working as intended, judges often overrode the recommendations to the detriment of Black defendants.

War on Drugs

“Tough on crime” policies, enacted in the 1970s, were successful in backlogging criminal courts, forcing predominantly low-income people to sit in jail awaiting trial. These policies served to expand the power of police, allowing officers to “Stop-and-Frisk'' anyone for “reasonable suspicion.” Racial bias in policing ensured that police officers could terrorize BIPOC communities and search and arrest anyone that could be perceived to be associated with gang violence or in proximity to drug use.

Amongst the most long-lasting and devastating criminal justice policies is the “War on Drugs.”

The number of people serving prison sentences for non-violent drug law offenses increased from 50,000 in 1980 to over 400,000 by 1997.

In 1987, Congress passed the “Anti-Drug Abuse Act,” which allocated $1.7 billion for the war on drugs and created mandatory minimums for drug possession. Under mandatory minimum sentencing, possession of five grams of crack automatically incurred a five-year sentence vs. 500 grams of cocaine necessary for the same sentence. Considering 80% of crack users were Black, these sentences ensured that more Black people were incarcerated for longer. During the 1990s, anti-drug policy culminated in the Violent Crime Control and Safe Street Act, which expanded the death penalty more than any bill in modern times, gutted protections such as habeas corpus, put 100,000 more police officers on the streets, and sanctioned the trying of 13-year-olds as adults. This bill has been widely criticized for sanctioning racial profiling, criminalizing poverty, and being a major contributing factor to mass incarceration.

Mandatory minimums have ensured that thousands of people will die in prison for non-violent drug offenses. Forty thousand people are currently serving jail time for cannabis which has since become a multi-billion dollar industry.

Prisons and the Private Sector

Private prisons are run by corporations that use inmate labor for profit. Proponents of private prisons tout that the government can save money through privatization, but all evidence suggests that private prisons are even more expensive than state-run prisons.

Private Prisons

A 2016 report from the Justice Department found that “private prisons regularly failed to ensure inmates were receiving medical care. They reported more than twice as many inmate-on-staff assaults as in state-run prisons, and reported a 28% higher rate of inmate-on-inmate assaults.” In 2019, private prisons housed about 8% of American prisoners, a 32% increase since 2000.

Private prisons now house 81% of the immigrant detainee population. Unlawful border crossings used to be treated as a civil offense, but today the Department of Justice prosecutes more immigration-related offenses than any other crime. Despite a decline in undocumented immigrants, the Department of Homeland Security increased Immigration and Customs Enforcement (ICE)’s funding to maintain no less than 33,400 beds in detention facilities. Nine out ten of ICE’s major detention centers are run by for-profit corporations which cost taxpayers $2 billion to maintain annually.

Get Involved

  • Healing To Advocacy Program by the Essie Justice Group provides support to women with incarcerated loved ones.
  • Life Comes From It is a grantmaking circle where funding decisions are made by people heavily steeped in restorative justice, transformative justice, and Indigenous peacemaking with a shared vision of addressing harm through community solutions.
  • Fair and Just Prosecution networks and provides policy analysis for the new wave of reform prosecutors that have taken office in a few dozen jurisdictions over the past few years.
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