Criminal Justice Overview: Rights

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?
  • Sixty-six percent of prisoners return to prison within three years of release, 82% return after a decade.
  • Nineteen percent of imprisoned people report being victims of assault in prison, 21% report being assaulted by prison staff.
  • In California prisons, Latinos make up 42% of the prison population but 86% of the solitary confinement population.

Overview: Criminal Justice and Rights

Even while incarcerated, imprisoned people in the U.S. have a right to free speech, to practice their religion, a right to adequate healthcare, and the right to be free from cruel and unusual punishments. Yet, those rights are not always honored and human rights violations occur regularly. Mass incarceration has led to overcrowding and understaffing. Prisoners are subjected to inhumane treatment including housing in vermin-infested cells, frequent medical neglect, and jury trials that are designed for those who can afford to maintain their innocence. Meanwhile, outsourcing to private companies, who have a vested interest in cutting corners and maximizing profits, has made American prisons much more violent and less effective at deterring crime.

Violence in prison is at a decades-long high with suicide, homicides, and drug and alcohol-related deaths occurring at a staggering rate. Additionally, a prisoner’s race, socioeconomic standing, history of mental illness or disability, and age, can all play a factor in how they are treated both in prison and once they are released. 

Prison populations are disproportionately Black and Hispanic, with individuals largely coming from densely populated urban centers,

Incarcerated Individuals, by Race

While prison staff is overwhelmingly white, predominantly coming from the rural centers around prisons.

Prison Staff, by Race

Decades of failed policy, racism, and an overzealousness towards retribution – despite all evidence contradicting its effectiveness – have made prisons unconducive to healing or rehabilitation.

Why Donors Should Care

Lengthy prison sentences average $33,274 per prisoner, per year across all 50 states, yet the recidivism rate remains high. Although 95% of prisoners will be released, full reintegration into society is nearly impossible as conviction records make housing and job attainment more difficult, reduce lifetime earnings, and in some states, prevent formerly incarcerated individuals from voting. The stresses of reintegration are often compounded with untreated mental illness and increase the risk that a former prisoner will suffer from addiction, homelessness, and violent reoffending

Incarceration and Families

Children of incarcerated parents are at a higher risk for psychological problems, and are more likely to experience economic hardships than their peers.  

Due to decades of targeted racist policies, BIPOC communities are forced to shoulder the consequences of mass incarceration. When someone is sent to prison, a community loses a parent, sibling, partner, worker, or neighbor. People who have experienced incarceration are at an increased risk of mental illness, addiction, and premature death. Prolonged detention can have permanent consequences including difficulty forming or maintaining relationships, issues with trusting others, and challenges with spatial reasoning. For every year spent incarcerated, two years are taken off a prisoner’s life expectancy

Who Is Affected?

Transgender People in Prison:

As many as one in six transgender Americans, and one in two Black transgender Americans have been in prison.

The historic over-policing of transgender people often intersects with race and class producing a higher than average risk of imprisonment, police harassment, and sexual and physical violence. Once in prison, discriminatory policies and the constant threat of violence make prison especially deadly for imprisoned trans people.

While little research is conducted on trans experiences in prison, the most recent federal data from 2011 found that more than 40% of transgender prisoners reported being the victim of sexual assault within the past year in prison. And transgender prisoners are 13 times more likely to be sexually assaulted.

In 1994, the U.S. Supreme Court ruled on the 8th Amendment that failing to protect trans prisoners in custody is unconstitutional but laws and protections are rarely enforced. Sometimes, if trans individuals are deemed to be “at-risk” for assault, they will be removed and placed in solitary confinement despite extensive research on the psychological damage caused by prolonged isolation.

People Aged 55 and Older

As the result of “tough on crime” and “war on drugs” policies, there are more Americans serving life sentences today than the total prison population in 1970, and the number of people aged 55 and older in prisons has ballooned by nearly 280% between 1999 and 2016.

Aged 55 and Older - Prison

Prisoners age 55 or older accounted for almost twice as many deaths in state prisons in 2019 than in 2001.

According to key findings from the Sentencing Project, there is a 66% increase in the number of people serving life without parole since 2003. More than two-thirds of those serving life sentences are people of color. 

Due to the cumulative effects of surviving decades of poor prison conditions, elderly prisoners are more likely than their non-incarcerated counterparts to experience dementia, impaired mobility, and loss of hearing and vision. A Bureau of Justice Statistics report found that not only are older prisoners more susceptible to chronic medical conditions but also that they experience the effects sooner. As a result, the cost of incarcerating those who are 55 and older is nearly two or three times more expensive than the average prisoner. 

Wrongfully Convicted Individuals

More than 2,500 people have been exonerated since 1989. Black Americans are more likely to be presumed guilty by the legal system, and as a result, Black defendants make up 47% of exonerations, and Black people convicted of murder are 50% more likely to be innocent than non-Black people convicted of murder. (Read about Anthony Ray Hinton.)

The criminally accused have a right under the 6th Amendment to “adequate representation,” unfortunately poor Americans are less likely to be able to access quality legal representation and are often represented by public defenders who are overworked, and underpaid, and pressure their clients to agree to plea bargains regardless if they are innocent. Once incarcerated, prisoners maintain their constitutional right to access the courts but are only appointed a public defender for the first appeal. After the first appeal inmates must pay out of pocket for subsequent appeals even if additional evidence emerges or if the inmate maintains their innocence.

Police, prosecutors, and judges are not held liable for misconduct, such as falsifying evidence, coercion, or even withholding evidence resulting in wrongful convictions, but many are highly incentivized to close cases even if it means sending the wrong person to die. Less than 1.5% of prosecutor’s offices in the United States have conviction integrity units (CIU) dedicated to reviewing cases. While CIUs can be extremely helpful, securing more than 40% of exonerations in 2018 (due to their political connections to police departments and their location within the District Attorney’s office) there is a strong bias towards protecting coworkers and maintaining relationships. 

Immigrants and ICEImmigrants and Incarceration

People at the border have not had their cases reviewed by a judge or jury, and many have never committed a crime. Many detained immigrants are asylum seekers, victims of abuse, fleeing war or natural disaster, children and babies, and people who are legally seeking entry to the country and waiting for the United States Citizenship and Immigration Service to either grant or deny their visa requests. 

Immigrants maintain the right to seek counsel, but due to a lack of financial ability and scarce legal resources in ICE facilities, only 36% of immigrants seeking an attorney can find one. Access to an attorney can greatly increase the chances of obtaining a visa, but many detention facilities are in remote locations, forcing attorneys to drive miles to visit their clients. ICE often transfers detainees to different states without notifying their attorneys and migrants are forced to wait hours for telephone access where they are forced to pay costly fees and calls are automatically shut off after short time periods. Some migrants are brought to expedited immigration proceedings with no way to tell their attorneys and are deported shortly after. 

Limited rights and restricted access to attorneys and the courts mean that immigrants in ICE detention centers are abused frequently and immigrants have no way to report it. In 2020, a  whistleblower report raised concerns over a gynecologist in Georgia performing non-consensual hysterectomies on migrant women in ICE custody. The whistleblower report also detailed unsanitary conditions during the pandemic, understaffing, physical and sexual abuse, and delays in accessing medical care. The Black Alliance for Just Immigration reports that Black immigrants are at a particular risk for egregious conditions by ICE and are six times more likely to experience solitary confinement.

How Rights Are Violated

Access to Healthcare

In many state penitentiaries, including New York, as many as 130 languages are spoken and 13% of the population is Limited English Proficient (LEP). For these prisoners, accessing any services, let alone healthcare is an uphill battle. Prisoners are entitled to access interpreters to advocate for their needs in prisons, but chronic understaffing and prison overpopulation means that LEP inmates’ rights to access care are violated frequently. Additionally, roughly 1.2 million prisoners (roughly half of the prison population) are living with a mental illness. This staggering figure correlates with the degradation of mental health services across the country, signaling that those with severe mental illness are being sent to prisons and jails instead of receiving medical treatment. 

A 2021 federal court ruling determined that transgender prisoners are constitutionally guaranteed the right to gender-affirming care, including sex confirmation surgery when medically necessary. Despite the ruling, transgender prisoners – who have some of the highest suicide rates – are frequently denied life-saving healthcare and continue to be housed with the gender they were assigned to at birth. 

Overcrowding and staffing shortages in prisons and jails have reached a crescendo during the COVID-19 pandemic which affected more than 500,000 prisoners and correctional staff across the country, killing thousands. The impact of COVID in prisons is likely understated due to a lack of testing. 


Research indicates that violent prison conditions increase the likelihood of recidivism

Violence in Prisons

Because prisons are so understaffed and so overcrowded, most violence and abuse often go unreported. If an incident is reported against a corrections officer, the officer is rarely penalized. 

Violence in Prisons for Women

Solitary Confinement

On any given day, an estimated 55,000 to 62,500 people had spent an average of 22 hours a day for the past 15 days in solitary confinement.

Research has demonstrated that people in solitary confinement, especially young people and people with mental illnesses, are nearly seven times more likely to engage in self-harm, including suicide, than prisoners in the general population. Even otherwise healthy prisoners in solitary confinement can experience hallucinations, paranoia, insomnia, lack of emotional regulation, and symptoms of PTSD. Solitary confinement costs roughly $60,000 per year, per prisoner compared to $22,000 per year for a general population prisoner. 

Solitary Confinement, by Race

Loyola Law professor, Andrea Armstrong details how racial biases can impact corrections officers noting, “minority offenders may be more likely to be perceived as a disciplinary threat by correctional officers, regardless of an offender’s actual behavior.” 

Evidence shows that prolonged periods of isolation physically shrink parts of the brain causing long-term memory damage and permanent psychosis. Evidence from a 2001 study shows that 92% of inmates who had spent significant time in confinement were arrested within 3 years compared to 66% of general population inmates. Not only are inmates more likely to recidivate after spending time in solitary confinement but are more likely to commit violent crimes and are at a higher risk for drug and alcohol abuse.

Punishment after Prison

 Mass incarceration has resulted in as many as one in three Americans having a criminal record, many of which are for minor, nonviolent offenses or arrests without convictions. A returning citizen is often penalized for their conviction through collateral consequences such as social stigmatization and a lack of safety net to return to, disqualification from government services, or even losing their right to vote. 

Incarceration and Employment

The economic losses of mass incarceration cost the United States $65 billion per year annually in gross domestic product. The lion's share of losses is concentrated in BIPOC communities since Black men are six times more likely to be incarcerated than white men, and Hispanic men are 2.5 times more likely to be incarcerated. 

During the “War on Drugs,” changes to welfare policy instituted a lifetime ban for those with drug convictions for government programs such as Temporary Assistance to Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP). These lifetime bans are especially devastating for the over 47% of incarcerated individuals who are parents and may need these benefits to care for their children. “One Strike” laws from the same time make qualifying for public housing nearly impossible for those with felony convictions and private housing can be even more stringent as landlords can deny housing to those with criminal records. The criminal record serves as both a symptom and a cause of poverty in America. Without mass incarceration, the United States would have 5 million fewer Americans living in poverty, a 20% decrease, between 1980 and 2014.

Furthermore, in 2020 as a result of their felony conviction, roughly 5.2 million Americans were ineligible to vote – roughly 2.3% of the voting-age population.

Felony disenfranchisement disproportionately affects African-American voters in Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming where more than one in seven African-American voters are disenfranchised, nearly double the national average.

Despite Florida voters voting to reinstate felony voting rights, in 2019 Gov. Ron DeSantis signed a bill that prevents citizens from voting unless they pay off court-ordered financial debts, barring over 770,000 people from voting in the last election. Most modern felony disenfranchisement laws can be traced back to the Reconstruction era following the passage of the 15th Amendment allowing Black Americans to vote. A 2003 study found that in the 1860s and 1870s, the larger the state’s Black population, the more likely the state was to pass the most stringent laws that permanently denied people convicted of crimes the right to vote. These bans, coupled with poll taxes, literacy tests, grandfather clauses, and later Jim Crow laws are part of a concentrated campaign to prevent Black Americans from voting. 

Get Involved

  • Dignity and Power Now is a grassroots organization fighting for the dignity and rights of incarcerated people and their families through re-entry programs and community advocacy against sheriff violence.
  • A New Way of Life is working to end the cycle of poverty by providing housing, legal services, and education and career opportunities to formerly incarcerated women.
  • Trans Pride Initiative is providing community and support to trans prisoners in Texas as well as advocating for trans prisoners’ rights to access gender-affirming care.
  • Join Lambda Legal in advocating on behalf of LGBTQIA+ Americans in the legal system. 
  • Vera Institute of Justice is producing cutting-edge research about the criminal justice system and is piloting and scaling projects designed to end mass incarceration. 
  • Check out how the Innocence Project is working to exonerate wrongful convictions and learn what you can do to support their work.
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