Covering the mass incarceration system, Part 2

Overcoming barriers to information

In Part 1 of this series, we covered the challenges of visiting and communicating with incarcerated people. Here, we’ll talk about how to handle issues in accessing information held by jails and prisons.

Understanding the system

Though the number of incarcerated people has roughly quadrupled since 1980 and government spending has ballooned as well, there’s little standardized data about incarceration and its outcomes.

Each of the nation’s more than 3,000 counties collects its own jail data using different methods and agencies. Similarly, each state gathers data according to local legislation. Every jurisdiction considers varying categories and has different disclosure laws.

This lack of data can complicate reporting. Statistics as basic as national crime surveys are hard to find because thousands of law enforcement agencies do not report their data to the FBI. Accurate and granular information about recidivism, pretrial detention practices, and the financial status of defendants may not be tracked by government officials.

Data about conditions within incarceration facilities can also be exceedingly difficult to gather. Oregon, for example, requires staff to document each time they give naloxone to an incarcerated person. But state corrections officials told the Oregon Capital Chronicle in 2023 that the government did not have important information about overdoses that would have assisted reporting. "Corrections officials say they do not have information on the number of complaints filed against corrections staffers, how often a prison goes on lockdown or how often inmates suffer opioid overdoses,” it reported.

What sweeping data does exist often faces extensive delays before being released to the public. The Bureau of Justice Statistics collects a range of information about prisons and jails, as well as probation and parole data. But the data gathered may not be published until years after the information is collected, meaning it's out of sync with the latest legislation and changes in material conditions.

In many cases, advocacy organizations, academics, legal groups, or legislators may have been able to gather data that can help answer a question. But sometimes, the information you are looking for has simply not been tracked.

Sometimes, corrections departments may have the information you are seeking but are unwilling to share it with you. Like other entities, these agencies often fiercely seek to defend their reputations and will selectively release information to shape public perception. In many cases, a spokesperson may offer a canned, opaque response.

Many legal scholars believe it is unconstitutional for government agencies, including departments of correction, to restrict employees other than spokespeople from talking to journalists. An agency in Pennsylvania recently settled a case alleging such a policy was unconstitutional and revised the policy.

Still, agencies have those policies on the books and the cost of challenging them in court is often prohibitive. Agencies may also tell you that they cannot provide the information that you’re seeking, but that you can file a records request.

Getting public information

Lawsuits are great resources for reporters who cover the criminal legal system. They can point you to newsworthy injustices and provide detailed and nuanced information that helps provide context for your story.

Incarcerated people do face significant challenges in pursuing litigation, including under the Prison Litigation Reform Act, which creates legal red tape that is very difficult for any nonlawyer, let alone one who is imprisoned, to navigate.

That means many lawsuits get dismissed for procedural reasons before a judge or jury is able to look at the facts. Claims made early on in lawsuits, whether by incarcerated plaintiffs or the agencies they sue, may or may not be accurate and require further investigation.

On the other hand, just because an incarcerated person’s lawsuit was dismissed doesn’t mean the claims are not valid or worthy of looking into.

So, if you’re reporting on abuse in a particular incarceration facility, past legal filings can help you establish a paper trail of misconduct at that jail or prison. You can see if a particular corrections officer or medical worker has been previously accused of misconduct. Sworn testimony may provide useful insight that can be incorporated into your reporting, and past cases may provide insights about which lawyers might be useful to speak to.

For federal court cases, records can be found in PACER. Costs for these records add up quickly, as each page downloaded costs 10 cents. Document prices are capped at $3, even if the documents are longer than 30 pages.

For many cases, you will be able to find documents through CourtListener, a free legal website operated by the Free Law Project that has nearly 9.8 million legal opinions from federal, state, and specialty courts. The Free Law Project has also developed a browser extension called RECAP. If another RECAP user has previously downloaded an opinion, deposition, trial transcript, or other document in a federal court case, those documents will be available for free on CourtListener.

Each state will have different methods of accessing court records. Some states and counties make court records available online, but others don’t, meaning you may need to visit the courthouse in person to try to obtain them. Try calling the local clerk of court if you’re unsure how to obtain a system’s records.

In many cases, lawyers working on a particular lawsuit will provide relevant legal filings to journalists for free. For federal cases, you will also be able to set up notifications so that you are alerted by email when new documents are uploaded to the case, enabling you to break stories.

Other government entities, like an oversight body, might also have useful reports. More regulatory bodies for prisons and jails are emerging, according to Michele Deitch, who directs the Prison and Jail Innovation Lab at The University of Texas at Austin.

“Those oversight bodies are a tremendous source of information,” she told Freedom of the Press Foundation (FPF).

Deitch and Alycia Welch, the lab’s co-director recently set up a website providing information about the prison oversight bodies in each state. Nineteen states and Washington, D.C., have independent entities that provide prison oversight and can be a source of information that incarceration agencies seek to obscure.

Meanwhile, eight states require you to be a resident of the state to file records requests. To pursue records in one of these states as a nonresident, you can ask transparency and advocacy organizations to file the request on your behalf.

Privately operated prisons, which are widely used to detain immigrants, are exempt from the federal Freedom of Information Act. A proposed law seeking to change this failed in 2023.

“It’s just a giant gaping loophole” in federal records laws, Nikhel Sus, deputy chief counsel at Citizens for Responsibility and Ethics in Washington, told FPF.

Even so, there are still ways to find information about the operations of privately run prisons. In many cases, Immigration and Customs Enforcement personnel will be copied on emails about private prisons, meaning those communications can be FOIA’d, Sus said.

If ICE has a contract with a state or county government to operate an incarceration facility, you can file records requests with more local agencies. On top of these potential workarounds, ICE is required to publish contracts and facility inspections, as well as information related to detention.

Either way, requesting records is often a lengthy, uphill battle that requires specificity, persistent follow-ups, appeals, and knowledge of local laws and legally permitted exemptions.

Transparency organizations like MuckRock may have solutions to these problems or examples of appeals that you can use.

Tapping legal resources

National organizations like the National Freedom of Information Coalition, the Reporters Committee for Freedom of the Press, or state chapters of the ACLU may be able to provide insights on how to challenge a FOIA determination you feel violates state law. If these organizations can’t help, they may be able to connect you with other lawyers or legal activism groups that can.

At the same time, these organizations can also assist in situations other than public records disputes — for example, by filing constitutional challenges to access restrictions that make it more difficult for journalists to communicate with incarcerated people or department of corrections employees.

The Pennsylvania case mentioned above – which challenged a policy routing all media communications through public information officers – is one example. Flimsy pretexts to deny media access, like the denial due to “victim protest,” can also be challenged. In jurisdictions with the death penalty, the media may (depending on the circumstances and local law) be able to object when excluded from attending executions.

That said, journalists should keep in mind that the court system moves far slower than the news cycle and can rack up costs. That means even if you’re able to eliminate monetary costs by finding counsel who will represent you pro bono, a court case may or may not be worth the time and energy investment. These challenges are compounded for freelancers, as government agencies know that these reporters are unlikely to have the legal assistance given to staff journalists at large news outlets. Freelancers should contact organizations like those listed above for assistance.

Resources/Guides

• Prison Policy Initiative’s guide to public records requests in each state
• The Marshall Project’s guide to criminal justice reporting
• National Immigrant Justice Center’s and Detention Watch Network’s state and local records request resources and template
• The National Press Foundation’s “5 Records Requests Every Crime Reporter Should File”
• National Freedom of Information Coalition’s state-by-state sample records requests and guides to freedom of information law
• MuckRock’s FOIA 101