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People leaving prison have sky-high mortality rates. Most are likely Medicaid-eligible. Making sure they are covered upon release from prison would save lives and reduce recidivism.

by Emily Widra, November 28, 2022

The gap in healthcare coverage following incarceration leads to high rates of death just after release: During just the first two weeks after release from prison, people leaving custody face a risk of death more than 12 times higher than that of the general U.S. population, with disproportionately high rates of deaths from drug overdose and illness. A huge contributing factor to this astronomically high death rate following release is the healthcare coverage gap: People lose health insurance coverage while in jail or prison and their lack of coverage continues post-release, leaving many without access to adequate, timely, and appropriate health care in those critical first weeks of reentry.

Fortunately, we have a way to address this healthcare coverage gap, and to improve the health and safety of our communities in general: Medicaid. Research shows that expanding access to healthcare through Medicaid saves lives and reduces crime and arrest rates — along with state spending — making this a reform strategy whose time has come.

 

How Medicaid’s “inmate exclusion policy” leaves formerly incarcerated people without healthcare

The “inmate exclusion policy” also impacts people jailed pretrial

Excluding pretrial detainees from Medicaid is unfair and dangerous.

The exclusion of incarcerated people from accessing Medicaid coverage does not only apply to people who have been convicted and sentenced, it also applies to people held pretrial who have not been convicted and denies legally innocent people the federal benefits they would otherwise be entitled to, were they not in jail.

People unable to afford bail lose their healthcare coverage, while those who can afford bail remain eligible for Medicaid. People detained in jail pretrial who are unable to afford bail lose their federal health benefits, while people who are released pretrial (because they can afford their bail) do not lose their coverage. Ultimately, this policy puts some of the country’s most vulnerable people – people in poverty, who would likely benefit the most from Medicaid coverage – in a position where they are facing the dangerous healthcare coverage gap upon release from jail until they are able to re-enroll in Medicaid.

Jails are expected to cover the healthcare costs of people with complex health needs. Local jails have become “the de facto mental health care system in many communities:” jails are filled with people who need medical care and social services, many of whom cycle in and out of jail without ever receiving the help they need. Even a few days in jail can be devastating for people with serious mental health and medical needs, as they are cut off from their medications, support systems, and regular healthcare providers. Even worse, many people are in jail in the midst of a health crisis, such as mental distress or substance use withdrawal. History has shown that jails are unable to provide effective mental health and medical care to incarcerated people, and yet, the Medicaid “inmate exclusion policy” shifts all medical expenses for pretrial populations to the jail (the full cost is often shifted to local taxpayers, rather than the traditional government partnership that covers safety-net services like Medicaid).

For more details on how people in jail are impacted by the Medicaid “inmate exclusion policy,” see the call to Reinstate Federal Health Care Benefits for Non-Convicted Justice-Involved Individuals from the National Association of Counties and the National Sheriffs’ Association.

When Medicaid was authorized in 1965, the “inmate exclusion policy” was established to prevent state and local governments from receiving matching federal funds to cover the healthcare costs of people in state prisons and local jails. This policy leaves state and local governments solely responsible for financing the healthcare of incarcerated people,1 even when those people were covered by Medicaid prior to their incarceration. This means that in most states, Medicaid coverage is terminated when someone is incarcerated.2

The Center for Medicare and Medicaid Services (the federal agency responsible for Medicare and Medicaid) has advocated that people be returned to the Medicaid eligibility rolls “immediately upon release from a correctional facility,” and has even provided resources to correctional systems, probation officers, and parole officers to help make this happen. Nevertheless, as things stand now – despite most people being financially eligible for Medicaid upon release – connecting with appropriate healthcare providers and reapplying for Medicaid is no easy feat for people going through reentry, leaving too many medically vulnerable and disconnected from healthcare services in the community.

 

Most incarcerated and formerly incarcerated people are probably eligible for Medicaid

In all states, Medicaid provides health coverage for low-income people who qualify based on income, household size, disability status, and a handful of other factors. Most people in contact with the criminal legal system are likely eligible for Medicaid: People in prisons and jails are among the poorest in the country and have high rates of disabilities, making them likely eligible for Medicaid in almost every state. People in contact with the criminal legal system have drastically lower pre-incarceration incomes than people who are never incarcerated. In fact, 32% of people in state prisons in 2016 who had insurance at the time of their arrest were covered by Medicaid (compared to about 19% of insured people nationwide). As an additional indicator of need among this population, 50% of people in state prisons were uninsured at the time of arrest.

 

bar graph showing pre-arrest health insurance coverage for people in state prison 2016 See our 2022 report, Chronic Punishment, for methodology details.

Formerly incarcerated people face low incomes and high rates of unemployment, meaning that they too are likely to be eligible for Medicaid, especially in states where Medicaid eligibility is based solely on income. After incarceration, people experience unemployment at high rates and report low incomes. Formerly incarcerated people are unemployed at a rate of over 27%, which is higher than the total U.S. employment rate during any historical period, including the Great Depression. When formerly incarcerated people do land jobs, they are often the most insecure and lowest-paying positions: the majority of employed people recently released from prison receive an income that puts them well below the poverty line.

 

Excluding justice-involved people from Medicaid can be lethal

People in prison have higher rates of certain chronic conditions and infectious diseases, disabilities, and face exceptionally high rates of mental illness compared to the general U.S. population, but medical and mental health care in prisons and jails are grossly inadequate.3 As a result of such inadequate healthcare, many people in prison end up worse off upon release. Subpar healthcare behind bars and the post-release healthcare coverage gap are pivotal factors in the heightened risk of death after release.

The risk of death is particularly high in the first two weeks following release from prison (12 times higher than the general population), but the lethal consequences of incarceration continue beyond these first two weeks. A 2021 study found that high county jail incarceration rates are associated with high mortality rates, but most acutely with deaths by infectious disease, respiratory disease, drug overdose, suicide, and heart disease. In 2019, a study of people released from North Carolina prisons found that people who spent any time in solitary confinement4 were 24% more likely to die in the first year after release (with an extraordinarily high risk of death from opioid overdose in the first two weeks after release). Another study found that people in their sample who were released from prison were twice as likely to die within 30 days and 90 days of release than those who were not incarcerated.

Many of these deaths following release are preventable with appropriate medical, mental health, and substance use interventions, which usually require health insurance. But because people are released from prisons and jails without insurance, they are less likely to receive the necessary interventions upon release. Uninsured people are less likely to seek medical care (because of the financial costs), and when they do seek out care, the care is likely of poor quality or too late, resulting in worse health outcomes and higher rates of death when compared to insured people.

 

How states can reform Medicaid to cover people leaving prison

A number of states have utilized Medicaid to start to bridge the healthcare coverage gap, and there are encouraging results. Given that some of the predominant healthcare-related concerns among recently-released people include lack of insurance and difficulty accessing care and medication, bridging this gap is a crucial step to mitigating the harms caused by barriers to healthcare services.

Reduce barriers to Medicaid eligibility

In a handful of states, Medicaid coverage is expanded to allow people to qualify based solely on finances (with an income below 133% of the federal poverty line). In these states, there are now fewer barriers to Medicaid eligibility, and therefore more people receiving Medicaid. While this reform does not exclusively target people leaving prison, it benefits them: Following Medicaid expansion in New York and Colorado, state officials estimated that 80-90% of people in state prisons would now be eligible for Medicaid coverage upon release (based on their pre-incarceration incomes).

Enroll people in Medicaid before their release from prison

Oklahoma began a program in 2007 to help people in prison with severe mental illness apply for Medicaid benefits during their final months in prison. This program had quick results: after one year, the share of people who were enrolled in Medicaid on their day of release increased by 28 percentage points.

A 2022 study of Louisiana’s Prerelease Medicaid Enrollment Program found that there was a 34.3 percentage point increase in Medicaid enrollment, and of those who were successfully enrolled before release, 98.6% had attended at least one outpatient visit within the first 6 months of release. These findings – along with similar programs in other states – suggest that pre-release Medicaid enrollment programs are a relatively simple way to connect people to necessary healthcare services and bridge the healthcare coverage gap.

In Connecticut and Massachusetts, there are statewide programs that enroll all Medicaid-eligible people who are being released from prison to parole. While incarcerated and waiting for their release date, incarcerated people work with “discharge planners” in correctional facilities to complete and submit Medicaid applications that are then held by the state’s Medicaid agency until they are released on parole. In Massachusetts, the state reports that 90% of people released to parole are covered by Medicaid upon their release.

Suspend – rather than terminating – Medicaid coverage for incarcerated people

In twelve states,5 Medicaid coverage is suspended – rather than terminated – when someone is incarcerated in state prison, which makes the process of reinstating Medicaid coverage upon release much simpler and avoids the need for “discharge planners” to help with applications or make other arrangements. In Maricopa County, Arizona, an agreement with the state Medicaid agency allows Medicaid eligibility to be suspended – not terminated – upon jail incarceration in the county.

Request federal Medicaid waivers

States can petition the U.S. Department of Health and Human Services to waive federal guidelines6 to allow states to trial new approaches and pilot new policies.7 At least nine states – Arizona, California, Kentucky, Massachusetts, Montana, New Jersey, Oregon, Utah, and Vermont – have submitted requests for waivers to modify the “inmate exclusion policy” and allow for coverage of certain health services provided pre-release. The proposals vary in what incarcerated populations they are seeking eligibility for, what services they would like to be Medicaid-eligible prior to release, and when coverage would be offered. Some states are seeking eligibility for a specific group of incarcerated people, such as four behavioral health case management visits for those with behavioral health diagnoses (New Jersey) or specific substance use disorder treatment services for incarcerated people with substance use disorders (Kentucky). Other states are seeking the full set of Medicaid benefits for incarcerated people with chronic conditions (Massachusetts) or for all incarcerated people (Utah). As of March 2022, the Center for Medicare and Medicaid Services (CMS) had not yet issued decisions on any of these proposals.

 

A bill in Congress would allow Medicaid coverage for people leaving prison or jail

In 2021, members of the House of Representatives introduced the Medicaid Reentry Act. This bill would allow Medicaid coverage to begin 30 days before people are released from prisons or jails, allowing medical services during that time period to be covered by Medicaid and for people to be insured the moment they are released from the facility. Legislation like this would vastly expand access to healthcare after incarceration, closing the dangerous healthcare coverage gap and thereby reducing the preventable deaths and health problems that occur in the immediate post-release period.

 

Other benefits of closing the healthcare coverage gap

chart showing decrease in arrest rates in states with medicaid expansion

The effects of bridging the healthcare coverage gap are far more expansive than one might expect. Increasing access to healthcare appears to have significant effects on reducing arrests, crime rates, criminal-legal system involvement, recidivism, and state expenditures.

Reducing arrests and lowering crime rates

In states with Medicaid expansion (i.e., where eligibility is based solely on income), there have been correlated reductions in crime rates and arrests. Compared to counties in states that had not implemented expanded Medicaid coverage, counties in states with Medicaid expansion saw a 25% decrease in drug arrests, a 19% decrease in “violent offense” arrests, and a 24% decrease in “low-level” offense arrests.8 Looking at more specific types of crimes, researchers also found a 3.7% to 7.5% decrease in burglary, motor vehicle theft, robbery, and violent crime rates in counties with statewide Medicaid expansion.9

Preventing contact with the criminal-legal system

In 1990, the federal government expanded Medicaid to provide coverage for more children and families living below the federal poverty line. Research shows that the expanded Medicaid eligibility among youth actually reduced the incarceration rates in Florida: there was a 3.5% reduction in incarceration for each additional year of population-level Medicaid eligibility. These results suggest that by investing resources in healthcare and expanding Medicaid coverage to as many people as possible up front, we can actually begin to reduce our reliance on the carceral system.

Reducing recidivism

Increased access to healthcare through Medicaid coverage also reduces recidivism. Prior to the Affordable Care Act (ACA), there were eligibility requirements that restricted Medicaid eligibility for formerly incarcerated people, but with expanded Medicaid coverage, most previously incarcerated people who meet the necessary income criteria are eligible for Medicaid. A study published in 2022 found that expanded Medicaid coverage resulted in significant reductions in the rate of rearrest, with a 16% reduction in arrests for violent crime for two years following release.

Reducing state expenditures

The direct costs of incarceration are immense: it costs more than $225 to incarcerate someone in New York county jail for a single night and nationally, it costs an average $31,307 a year to incarcerate a single person in state prison. Meanwhile, 2019 estimates suggest that total annual Medicaid spending per person ranged from a low of $4,970 in South Carolina to a high of $12,580 in North Dakota, suggesting that even where Medicaid is spending the most per person, it is far less expensive than incarceration. While these are just rough estimates of the per capita costs of incarceration and Medicaid coverage, more in depth research implies substantial cost reductions by expanding Medicaid coverage to all Medicaid-eligible formerly incarcerated people. The estimated costs of expanded Medicaid coverage – by reducing the economic and social costs of victimization and the expenditures on multiple incarcerations – are significantly less than state and local governments are currently spending on arrest, jail, court, and imprisonment.

 

Conclusion

The healthcare coverage gap that threatens the lives of people recently released from prison is not inevitable. Incarcerated people and those released from incarceration face poverty, unemployment, and disproportionately high rates of disability, disease, and illness, but Medicaid is a tool we can use to expand healthcare coverage and reduce the number of preventable deaths after release. Evidence from states with these kinds of Medicaid programs in place suggests that hundreds of thousands of people being released across the country each year would benefit from such efforts. Expanding access to affordable, quality healthcare results in a myriad of benefits to public health, public safety, and public coffers. Perhaps most encouragingly, the drop in arrests and crime following expanded Medicaid coverage offers evidence that by ensuring people’s most basic needs are met, we can begin to reverse our nation’s reliance on mass incarceration.

 
 

Footnotes

  1. Medicaid does currently provide coverage for incarcerated people (who would otherwise qualify for Medicaid) only if they are hospitalized outside of the correctional facility for 24 hours or longer.  ↩

  2. According to the National Conference of State Legislators, federal law does not require states to terminate Medicaid eligibility status for inmates, but it does prohibit states from obtaining federal matching funds for services provided to people while in jail or prison. But many states do terminate Medicaid eligibility status upon incarceration: according to a 2014 study of 42 state prison systems, individuals on Medicaid are completely removed from their insurance system upon incarceration in two-thirds of these states.  ↩

  3. Among incarcerated people with persistent medical problems, 20% of those in state facilities and 68% of those in local jails went without any sort of medical care during their incarceration. Over half of people in state prison in 2016 reported mental health problems, but only a quarter had actually received professional mental health help since admission.  ↩

  4. The phrase “solitary confinement” is not used consistently. Some prisons deny that they employ it, instead opting for more administrative-sounding terms, like “Segregated Housing Units” (SHUs) and “restrictive housing.” (See this list from MuckRock for more examples.) While conditions can vary between facilities, for our purposes, “solitary confinement” refers to the practice of segregating individuals from the general population for any reason. Under solitary confinement, individuals are typically forced to remain in small, individual cells for 22 to 24 hours per day with minimal human interaction.  ↩

  5. California, Colorado, Florida, Iowa, Maryland, Minnesota, New York, North Carolina, Ohio, Oregon, Texas and Washington.  ↩

  6. These are often referred to as “1115 Medicaid waivers” and are depicted in federal Medicaid law as a “Section 1115 demonstration.”  ↩

  7. A good example of how states have used Medicaid waivers in the past is the Coordinated Care Organization program in Oregon. The state received a waiver to create partnerships between managed care plans and community providers to manage health-related services not previously covered by Medicaid, like short-term housing following hospital discharge, home improvements to allow people to remain in the community, and efforts to reduce preventable hospitalizations.  ↩

  8. In this study, arrests for “violent offenses” include murder, manslaughter, rape, robbery, and aggravated assault, “drug offenses” include sales and possession, and “low-level” offenses include disorderly conduct, prostitution, suspicion, vagrancy, vandalism, drunkenness, driving under the influence of substances, and possession of stolen property or weapons.  ↩

  9. The two studies cited here controlled for other factors, including age, unemployment, poverty, and race.  ↩


Sheriffs and local election officials must do everything in their power to ensure detained individuals can exercise their fundamental right to vote.

by Wanda Bertram and Naila Awan, November 18, 2022

With the upcoming Senate runoff election in Georgia likely coming down to a few thousand votes, an overlooked form of disenfranchisement deserves attention: The huge barriers to voting for people locked up in locally-run jails (which we explained in depth in our 2020 report Eligible, but Excluded).

Roughly 39,000 people are held in Georgia’s county jails on any given day (a number very close, coincidentally, to the 36,000-vote difference in the general election between Sen. Raphael Warnock and Herschel Walker at the moment). While it’s not known exactly how many of these people meet the qualifications to vote, the number is likely in the thousands because:

  • Most people in county jails are there awaiting trial, and Georgia does not restrict voter eligibility for people charged with a crime (though people already on probation or parole are ineligible).
  • Of the minority of people in Georgia jails who are serving a sentence, most are serving a misdemeanor sentence. Georgia does not restrict voter eligibility for people convicted of misdemeanors.

Any of these eligible voters who are already registered qualify to vote in the runoff election.

Incarcerated people’s diverse voices and opinions should be heard in our democracy, yet people in jail will likely be excluded from the close race for this pivotal Senate seat. But there are things sheriffs and local election officials can do to ensure that detainees can cast their votes:

  • Make people in jail aware of their likely eligibility and the absentee ballot deadlines. One of the main reasons people in jail do not vote (despite being eligible) is because they think they’re not allowed to. Jail and election officials can coordinate to identify people who are incarcerated who are eligible to vote in the county and conduct affirmative outreach to them.
  • Enable and assist people in requesting an absentee ballot by the November 28 deadline. Jail officials must make sure people have access to ID information, such as their driver’s license number, needed to complete an absentee ballot application. They should also facilitate people in jail being able to submit ballot applications not just by snail mail, but also via the state’s online portal, email, or fax.
  • Allow incarcerated people to receive absentee ballots in time by ensuring election mail is processed in a timely way, and provided in its original, physical form. (Many jails currently ban postal mail; needless to say, these jails should make an exception for ballots.)
  • Help incarcerated people submit absentee ballots on time by quickly mailing any absentee ballots cast by incarcerated voters and guaranteeing that commissary is available so people can purchase stamps (or better yet, the jail can provide stamps for free).
  • Ensure that people in jail have contact information for their local board of elections, can track the status of their ballot, and are able to fix any deficiencies with their absentee ballot.

Barring people in jails from voting “is a social injustice and a civic indignity,” wrote Rev. Jesse Jackson in a 2020 Chicago Sun-Times op-ed. “Not surprisingly,” Jackson noted, “it disproportionately impacts African Americans, Latinos, and the poor.” People in jail are citizens who stand to be affected by laws around things like housing, healthcare, and of course, criminal justice. In Georgia — and everywhere people in jails are effectively disenfranchised — sheriffs and election officials must do everything in their power to ensure these individuals can exercise their basic right to vote.


In at least 14 states, people in state prisons are falling victim to a scan: Prisons are replacing physical mail with scanned copies, a policy that benefits private companies.

by Leah Wang, November 17, 2022

This article was updated on November 22, 2022 to reflect new information about several states and the federal Bureau of Prisons.

In recent years, many prison systems have either tried or fully implemented a policy that interferes with incarcerated people’s mail in a way we haven’t seen in our many years fighting to protect family communication behind bars: Prisons are increasingly taking incoming letters, greeting cards, and artwork, making photocopies or digital scans of them, and delivering those inferior versions to recipients. This practice of mail scanning, either performed at the prison itself or off-site using a third-party vendor, strips away the privacy and the sentimentality of mail, which is often the least expensive and most-used form of communication between incarcerated people and their loved ones.

Prison administrators claim that delivering scanned copies of mail correspondence will stem the flow of contraband — primarily, drugs — into their facilities, but there’s no solid evidence to date that mail scanning has this intended effect. (In fact, some jurisdictions have found the opposite effect with respect to drugs.) We did a policy and media scan of all 50 state prison systems and the federal prison system, and found that mail scanning is quickly becoming widespread, despite the enormous benefits of genuine mail.

Table 1: States scanning mail at all state prisons

Data was gathered via a survey of correctional departments’ websites. See the appendix table at the end of this briefing for more details.
When did mail scanning begin? Vendor doing mail scanning, if any
Arkansas August 2017 Unknown
West Virginia 2017 Pigeonly
Virginia1 April 2018 None (internal)
Pennsylvania September 2018 Smart Communications
Indiana July 2020 None (internal)
Michigan October 2020 Unknown
North Dakota July 2021 Securus
North Carolina October 2021 TextBehind
Nebraska December 2021 Unknown
Wisconsin December 2021 TextBehind
Ohio February 2022 None (internal)
New Mexico February 2022 Securus
Missouri July 2022 Securus
New York August 2022 None (internal)

We found 14 state prison systems that are scanning all incoming mail, but we’re confident that this number is an undercount, because we couldn’t verify the status of mail scanning in some other states.2 Several more states are trialing mail scanning practices in just a few of their facilities, or have correctional policies that allow mail scanning to begin at any facility, at any time.3 Many more states are likely to be scanning mail before long: Even during the course of our research, one state (Minnesota) implemented a six-month alternative mail delivery pilot — which includes mail scanning — in some of its facilities. (For details about every state’s prison mail scanning practices, see the appendix table at the bottom of this briefing.)

Mail scanning happens in locally-run jails, too; in our state-level research, we stumbled upon 15 jails4 that have banned incoming mail in favor of digitized copies. While most of the local jails we read about implemented mail scanning in 2021 or 2022, we’ve been receiving reports of jails scanning mail since 2017, and we suspect that dozens more jails across the U.S. have done away with delivering real mail.

How does mail scanning work?

As the table above shows, some prisons pay a vendor to scan mail and deliver copies to incarcerated people, while others manage the process internally.

There are two primary methods for delivering scanned mail. Some prison systems deliver printed copies of mail, often including copies of the envelope. (If there’s a limit on the number of pages that can be copied and delivered, the envelope may count toward that limit, as it does in Arkansas.) Other prison systems scan mail and upload it into a digital database, where it’s then viewable on a tablet or a shared kiosk inside a prison. Most states and third-party vendors hold onto original letters and cards for a period of time — several states have a 45-day holding period, for example — but eventually dispose of or destroy them.

The four biggest problems with scanning mail

  1. Prisons and jails often switch to scanning mail not out of any concern for safety, but at the encouragement of the same private companies that dominate the prison technology industry. For years, these companies’ strategy for securing contracts has been to offer facilities multiple services “bundled” together, such as phone calls, tablet computers, and mail scanning. Scanning mail pushes incarcerated people to use other, paid communications services provided by the companies: Compared to mail that’s delayed due to scanning procedures, or scanned incorrectly, incarcerated people and their loved ones often understandably switch to electronic messaging (which requires the purchase of digital stamps), phone calls, or video calls.

    A number of prison vendors currently bundle mail scanning with other exploitative communications “services”:

We found four third-party vendors scanning incoming mail for state prisons. These companies all offer other services as well as mail scanning, often bundled into one contract. Not listed here, prison telecom giant ViaPath Technologies (formerly Global Tel*Link, or GTL), offers a mail scanning service branded as “GettingOut,” but we didn’t find evidence of a prison system using it.
Vendor Services offered to prisons other than mail scanning
Securus5 Electronic messaging and greeting cards, video calling, other financial services
Smart Communications Electronic messaging, video calling, phone calls, “MailGuard Tracker” (for senders to track mail delivery), tablets and/or kiosks with educational materials, simplified commissary ordering
Pigeonly Electronic messaging and greeting cards, phone calls, other financial services
TextBehind Electronic messaging and greeting cards, electronic kids’ drawings
  1. Physical mail carries great sentimental value for incarcerated people, which translates into a more hopeful experience behind bars. In one incarcerated person’s words, “Under the new policy of digitizing mail [in Florida], [we] are losing the visceral experience of touching a letter or smelling perfume on an envelope.” Taking that away has real, measurable consequences for mental health, behavior, and even recidivism after release. Incarcerated people return to their mail over and over to be reminded of their support networks; scanned mail, on the other hand, is often low-quality or incomplete, lacking the same meaning. Even if contraband occasionally enters prisons through the mail, the practice of scanning all mail senselessly punishes all incarcerated people and their families for a few infractions.
cropped image showing part of Missouri DOC's webpage about their mail policies

A screenshot from the Missouri Department of Corrections website explaining that mail is important, but not welcome, in its prisons.

  1. This extreme interference with mail will have a chilling effect on correspondence, reducing the overall volume of mail sent into prisons. People who send mail to prisons don’t want their letters and artwork scanned into a searchable database and/or destroyed, two common features of mail scanning. Scanning is a needlessly complicated and costly practice that violates privacy and stifles communication, as we learned when many jails started postcard-only policies. (This effect may be desirable for prison administrators and correctional staff.)
  2. Finally, mail scanning doesn’t work to make prisons safer. In fact, early analyses in Pennsylvania6 and Missouri7 suggest that mail scanning is having little to no effect on the frequency of overdoses and drug use, the type of issues that prisons claim mail scanning will address. “Security” measures like mail scanning (as well as banning in-person visitation) distract from the reality that correctional staff are a major source of contraband in prisons, as a correctional labor union leader himself acknowledged (and as we found in a 2018 survey). Considering half of people in state prisons meet the criteria for a substance use disorder, prisons would be wise to center their budgets and efforts around drug treatment rather than cutting off a lifeline for everyone.

Mail between incarcerated people and their loved ones has long been surveilled by prison staff, but it remains one of the last bastions of communication that is not intercepted and monetized by private telecom companies. As the organization Just Detention International concluded in their 2021 letter to Attorney General Merrick Garland expressing outrage at the federal prison system’s mail scanning pilot: “Banning physical mail harms the well-being of incarcerated people, while offering no meaningful benefits.” Prisons and jails shouldn’t make families work even harder to maintain bonds; like other policies that quash communication, the recent trend toward mail scanning must end.

 

Appendix: What we know about mail scanning in state and federal prisons

Data in this table is from our November 2022 survey of state department of corrections policies and media coverage related to mail scanning. If available, we recorded information about whether mail scanning is occurring for some or all facilities, as well as how scanned mail is processed and delivered. You can see some prison and jail contracts for mail scanning in our Correctional Contracts Library. Note: Our information about Alaska, Kentucky, and Mississippi comes from people directly impacted by mail scanning policies, and not from our survey of Department of Correction websites or news coverage.

State/Jurisdiction Status of mail scanning Effective date of mail scanning policy or contract Third-party vendor Method of mail delivery Link to policy, press release, or media
Alabama No mail scanning in effect Alaska Scanning incoming personal mail at one or a few facilities Unknown Unknown Unknown
Arizona No mail scanning in effect
Arkansas Scanning incoming personal mail at all facilities Aug-17 Unknown Printed https://doc.arkansas.gov/correction/visitation-updates/mail-and-money/
California No mail scanning in effect
Colorado Scanning incoming personal mail at one or a few facilities Unclear None Printed https://cdoc.colorado.gov/resources/contact-an-inmate
Connecticut No mail scanning in effect
Delaware Scanning incoming personal mail at one or a few facilities Apr-22 Pigeonly Printed https://doc.delaware.gov/assets/documents/jtvcc_mailrollout.pdf
Federal Bureau of Prisons Scanning incoming personal mail at most facilities Various None (internal) Unknown Response to Freedom of Information Act request by Prof. Alison K. Guernsey
Florida Scanning incoming personal mail at one or a few facilities Jan-22 Unclear Electronic (Kiosks and tablets) https://www.flrules.org/gateway/RuleNo.asp?ID=33-210.101
Georgia No mail scanning in effect
Hawaii No mail scanning in effect
Idaho No mail scanning in effect
Illinois No mail scanning in effect
Indiana Scanning incoming personal mail at all facilities Jul-20 None Printed https://www.in.gov/idoc/files/ED-20-30-Offender-Correspondence-6-16-2020.pdf
Iowa Scanning incoming personal mail at one or a few facilities Jul-22 Pigeonly Printed https://www.mississippivalleypublishing.com/daily_democrat/iowa-doc-changes-mail-delivery-to-combat-drug-smuggling/article_724e0a2e-99d5-5c1f-a750-969987911e88.html
Kansas No mail scanning in effect
Kentucky Scanning incoming personal mail at one or a few facilities Unknown Unknown Unknown
Louisiana No mail scanning in effect
Maine No mail scanning in effect
Maryland No mail scanning in effect
Massachusetts Scanning incoming personal mail at one or a few facilities Aug-18 None Printed https://www.mass.gov/doc/103-cmr-481-public-hearing-transcript/download
Michigan Scanning incoming personal mail at all facilities Oct-20 Unknown Printed https://www.cd.nm.gov/wp-content/uploads/2021/12/Inmate-Mail-Change-Memo.pdf
Minnesota Scanning incoming personal mail at one or a few facilities Oct-22 Unknown Unclear https://mn.gov/doc/family-visitor/send/how-send-mail/
Mississippi Scanning incoming personal mail at one or a few facilities Unknown Unknown Unknown
Missouri Scanning incoming personal mail at all facilities Jul-22 Securus Electronic (tablet) https://doc.mo.gov/programs/family-friends/mail
Montana* No mail scanning in effect
Nebraska Scanning incoming personal mail at all facilities Dec-21 Unknown Printed https://www.corrections.nebraska.gov/system/files/rules_reg_files/205.01_2021.pdf
Nevada No mail scanning in effect
New Hampshire No mail scanning in effect
New Jersey No mail scanning in effect
New Mexico Scanning incoming personal mail at all facilities Dec-21 Securus Printed https://www.cd.nm.gov/wp-content/uploads/2021/12/Inmate-Mail-Change-Memo.pdf
New York Scanning incoming personal mail at all facilities Aug-22 None (internal) Printed Internal memo sent to the incarcerated population and shared with Prison Policy Initiative
North Carolina Scanning incoming personal mail at all facilities Oct-21 TextBehind Printed https://www.ncdps.gov/our-organization/adult-correction/prisons/prison-facilities/offender-mail
North Dakota Scanning incoming personal mail at all facilities Jun-21 Securus Electronic (tablet) https://www.docr.nd.gov/correspondence
Ohio Mail scanning may be occurring Feb-22 None Printed https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/75-MAL-01%20(Feb%202022).pdf?ver=1NTWWbvzaLb75q9Fbv-1gw%3d%3d
Oklahoma No mail scanning in effect
Oregon No mail scanning in effect
Pennsylvania Scanning incoming personal mail at all facilities Sep-18 Smart Communications Printed https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%20and%20Incoming%20Publications.pdf
Rhode Island No mail scanning in effect
South Carolina No mail scanning in effect
South Dakota No mail scanning in effect
Tennessee No mail scanning in effect
Texas No mail scanning in effect
Utah No mail scanning in effect
Vermont No mail scanning in effect
Virginia Scanning incoming personal mail at all facilities Apr-17 None Printed https://vadoc.virginia.gov/family-and-friends/sending-mail/
Washington No mail scanning in effect
West Virginia Scanning incoming personal mail at all facilities 2017 Pigeonly Unclear https://reason.com/2019/11/22/west-virginia-inmates-will-be-charged-by-the-minute-to-read-e-books-on-tablets/
Wisconsin Scanning incoming personal mail at all facilities Dec-21 TextBehind Printed https://doc.wi.gov/Documents/AboutDOC/PressReleases/1111Mail%20change%20news%20release%20final.pdf
Wyoming No mail scanning in effect

See the full appendix

 

Footnotes

  1. In Virginia, mail sent to “Security Level 2 facilities and above” is photocopied; the majority of prisons in Virginia include security level 2 and above populations.  ↩

  2. For example, we’re aware that Massachusetts prisons scan incoming mail in at least some of its facilities, but we couldn’t locate a policy, contract, or other reference showing that all prison mail is subject to scanning or copying.  ↩

  3. We found that correctional policies in Illinois, Maine, Massachusetts, Montana, Ohio, South Dakota, and Vermont are written in a way that allows incoming mail to be scanned if the mail meets certain criteria, or if a commissioner or equivalent identifies ongoing security risks from mail.  ↩

  4. Jails we identified doing mail scanning are: Marin County, Calif.; Mesa and Pueblo counties, Colo.; Bartholomew and Elkhart counties, Ind.; Shawnee County, Kansas; Calcasieu Parish, La.; Montgomery County, Maryland; Essex County, Mass.; Genesee, Oakland, and Jackson counties, Mich.; Medina County, Ohio; and Rock and Brown counties, Wisc. Contracts between some of these jails and private companies for mail scanning are viewable in our Correctional Contracts Library.  ↩

  5. It’s worth noting that Securus, which holds more mail scanning contracts with prison systems than any other company, did not pioneer the concept of mail scanning as a service. Securus is known for aggressively gobbling up its corporate competitors and its dominant spot in the prison phone market likely made it easier for the company to add mail scanning to its contracts.  ↩

  6. According to a 2020 article in Prison Legal News, the Pennsylvania DOC claimed that 0.7% of incoming mail was tainted with drugs in August 2018, right before mail scanning was implemented. In July 2019 (nearly a year after implementing mail scanning), 0.6% of mail was tainted with drugs, according to the DOC.  ↩

  7. An October 2022 article in the Riverfront Times reports that data requested by the organization Missouri Prison Reform shows mail scanning has had no effect on the number of drug overdoses in state prisons: In July, August and September 2022, the three months after mail scanning began, the average number of drug overdoses increased from 35 to 39.  ↩


New Winnable Criminal Justice Reforms report provides state lawmakers with resources and information to secure victory on these important reforms.

by Naila Awan and Mike Wessler, November 16, 2022

Despite millions of dollars in TV advertisements and countless hours of hyperbolic news coverage, last week, voters across the country rejected fearmongering about efforts to overhaul the nation’s broken criminal legal system. They made clear they are interested in solutions and that the scare tactics that have been a staple of American politics for generations no longer resonate as they once did.

With that in mind, today, we released our annual guide to winnable state legislative criminal justice reforms ripe for victory in 2023. These 31 reforms will shrink the carceral system, mitigate its harms, and remove deeply entrenched financial incentives from the system.

The reforms focus on nine areas:

Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states. While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have a significant impact without further investments in the carceral system and point to policy reforms that have gained momentum in the past year. We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails. We made a conscious choice not to include critical reforms unique to just a few states or important reforms for which we don’t yet have enough useful resources to be helpful to most states.

We sent this guide to hundreds of lawmakers across the country — from all parties — who have shown interest in fixing the criminal legal system in their state. As they put together their legislative agendas for the upcoming session, legislators can use this guide to develop solutions to make their state’s criminal legal system more just, equitable, and fair.


Evidence from seven jail-based polling locations shows that it is not only feasible but effective.

by Naila Awan, October 25, 2022

Most of the more than 600,000 people locked up in jails are detained pretrial, and therefore, legally innocent. And, in most states people detained in jails on a misdemeanor conviction remain eligible to vote. This means that those who met the voter registration qualifications in their state at the time of their incarceration remain eligible to vote in elections. In fact, the Supreme Court has ruled that not only are they eligible to vote, they have a right to cast an absentee ballot just like any other voter who cannot vote in person. However, as we detailed in our report Eligible but Excluded: A guide to removing the barriers to jail voting, an insurmountable series of obstacles1 and a lack of awareness2 prohibit most of them from doing so.

In recent years, advocates have successfully pressured a small but growing list of governments to address some of these obstacles by establishing polling locations inside local jails where eligible, detained voters can cast their ballots. We have found seven jails that make in-person voting available:

  • Cook County Jail (Chicago, Ill.)
  • D.C. Central Detention Facility (Washington, D.C)
  • Denver County Jail and Van Cise-Simonet Detention Center (both Denver, Colo.)
  • Harris County Jail (Houston, Texas)
  • Century Regional Detention Facility (Los Angeles, Calif.)
  • Will County Detention Center (Joliet, Ill.)

Data about voter turnout at these jails is hard to come by, so it is difficult to know exactly how many eligible, detained voters have used these polling locations. However, the emerging evidence shows, when combined with outreach and education to ensure incarcerated voters know what steps they must take to cast their ballots, jail-based polling locations are not only feasible, they’re effective: when people know they can vote from jail, they will vote.

Cook County, Illinois

The Cook County Jail first established its jail-based polling location in 2020.

During the 2020 general election, when two weekends of early in-person voting were available, more than 2,000 of the 5,400 people in the jail (or about 37% of the jail’s population) cast a ballot.

In the June 2022 primary, roughly 25% of people detained at the jail (1,384 of the 5,560 people) cast their ballots. This location was so successful that people at the jail actually voted at a higher rate than registered voters in the city of Chicago (20%).3 About half of these voters were able to cast ballots because same-day registration was also available.

By contrast, in the 2018 primary election — before the Cook County Jail provided in-person voting and allowed people detained in the jail to register and vote at the same time — only 394 of the over 6,000 people detained in the jail (less than 7%) cast an absentee ballot.4

Washington, D.C.

The District of Columbia has facilitated voting at the D.C. jail for more than a decade. In 2012, 88 men voted in-person at the D.C. jail.

In 2020, the D.C. Council also passed legislation to abolish felony disenfranchisement and allow D.C. residents incarcerated for a felony conviction to vote, further expanding the number of people eligible to cast their ballots from jail. While this was unquestionably the right thing to do, it makes it a bit difficult to trace turnout patterns. Recent data about incarcerated voting does not break down the number of D.C. residents who have voted in person at the jail versus in prison. In November 2020, 562 incarcerated D.C. residents registered to vote and 264 of them cast ballots — but we don’t know how many of these voted while detained in jail.5

Denver, Colorado

In 2020, voters confined in Denver, Colorado, could cast ballots in person for the first time. On November 2 and 3, 136 eligible voters in the Denver County Jail and Van Cise-Simonet Detention Center cast in-person ballots.

Harris County, Texas

In November 2021, Harris County, Texas established a pilot program to allow people in the county jail to vote at a jail-based polling place. To be eligible, voters had to have been arrested on or after the absentee ballot request deadline (October 22, 2021), already be registered to vote, not be on probation or parole, and meet all other voter qualification requirements.6

That year, 96 people voted from the jail during the county’s local elections. While this number may seem small, it came very close to the 100 people who Durrell Douglas, founder and executive director of Project Orange, a group that helps people in Harris County Jail access the ballot, estimated would be eligible to vote under the pilot requirements. Harris County also saw “a major jump in [the number of jailed voters] who voted by mail, indicating an increased awareness of their right to a ballot.”

During the county’s March 1, 2022 primary election, 13 of the estimated 26 people eligible to vote at the jail cast a ballot.

Los Angeles, California

Los Angeles County allows certain people who are detained in their jail to cast ballots in person.

In 2020, the Los Angeles County Registrar-Recorder and Sheriff announced the “We All Count” campaign, which aimed to provide voter education information to people detained in LA County jails and assist eligible voters with registration and the voting process.

While incarcerated voters in most facilities cast their vote by mail-in ballot, in February 2020 a pilot program at the Century Regional Detention Facility (CRDF) allowed certain qualified women voters to cast their ballots in person. In total, 35 ballots were cast at the CRDF jail polling location, and 2,200 people incarcerated in LA jails were registered through the “We All Count” campaign.7

Unfortunately, shortly after it was launched, the CRDF’s jail-based polling location was suspended because of the COVID pandemic. However, it returned in June 2022 for the primary election. Several women voted in person8 and the LA County Clerk plans to continue and expand the program for the November 2022 election.

Will County, Illinois

In June 2022, Will County became the second Illinois county to establish a polling location at its jail. Approximately 600 people are detained in Will County Jail, and according to county election officials, in June 2022, 48 people in the jail (approximately 8%) voted. 28 of these individuals cast ballots in the Democratic primary and 20 cast ballots in the Republican primary.

 
 

What to make of this data?

The early results from these seven facilities show the promise and possibilities of jail-based voting locations. However, they also make clear that simply setting up jail voting sites is not enough. Awareness of voter eligibility requirements, access to voter registration, the rules that determine who qualifies to use the polling location, and when voting is available can significantly impact turnout.

Local governments seeking to establish or improve jail-based voting locations should:

  • Do more to raise awareness of the availability of the polling location and any voting eligibility requirements.
  • Allow all eligible voters detained at the jail — regardless of when they were first detained — to cast a ballot at the polling location.
  • Provide in-person voting at the jail on Election Day, not merely during the early voting period.9
  • Take advantage of same-day registration if it is available.
  • Work to ensure that any ID requirements are able to be satisfied by eligible voters who are attempting to register or cast a ballot in jail.

It is time to act to ensure that eligible voters who find themselves behind bars on Election Day are able to exercise their fundamental right to vote.10 As the examples above show, there is increasing momentum to make democracy more accessible to people behind bars. To maximize the impact and use of jail-based polling sites, jurisdictions should ensure anyone detained on Election Day is eligible to both register and vote at the jail, and that voter ID or other requirements do not act as obstacles to voting.11

Note: After publication of this piece, we learned there is also a jail-based polling location in Flint, Michigan.

Are there places we missed?

If there is a jail-based polling site in your county not referenced here, let us know.

 
 

Footnotes

  1. For example, in some states, people who are incarcerated may have difficulties meeting absentee ballot voter ID or notary requirements. Many additional logistical details, such as whether a person is detained near or after the absentee ballot request deadline, whether they can access commissary in time to obtain stamps and mail the absentee ballot request form, whether they can contact their local board of elections with any questions, whether they are able to meet the mailing and postage requirements for their absentee ballot, and whether they are able to be informed of any problems with their ballot and fix those problems, also impact whether a person who is detained can participate in the political process.  ↩

  2. Across multiple states, advocates and government officials noted that qualified voters detained in jail were often unaware that they were allowed to cast a ballot. For example:

    • A representative of Speak Up and Vote in Illinois noted that people detained in jail frequently “didn’t realize they’re eligible to vote, so they didn’t try.”
    • An individual working with the Denver Sheriff Department stated that many people in jail “told us this was their first time voting and they had no idea they had the right the vote.”
    • The Sheriff in Harris County, Texas noted that the “majority of people involved in the justice system don’t vote due to a lack of information on voting.”  ↩
  3. Because Illinois is one of the states that bars people who are serving time for a misdemeanor conviction from voting, in addition to those in custody who are serving a sentence for a felony or who have been found guilty of a felony but not yet sentenced, some of the jail’s total population may not have been eligible to vote.  ↩

  4. Given that groups in Chicago have actively worked to facilitate voting and registration in Cook County Jail for a number of years, this level of participation is higher than what would be expected in many other jails in the country that do not have a polling place.  ↩

  5. Participation rates seem poised to increase: By mid-2021, the number of incarcerated D.C. residents registered to vote had already increased to 650, 355 of them under Bureau of Prison custody and 295 in D.C. Department of Corrections custody.  ↩

  6. Project Orange helped voters who were detained before the absentee ballot request deadline submit a ballot request form.  ↩

  7. More details about this program are available in the Los Angeles County Registrar-Recorder/County Clerk’s Weekly Status Report — March 3rd Election.  ↩

  8. Correspondence with the LA County Registrar’s Office indicated that “[t]he majority of those that voted also utilized Conditional Voter Registration,” otherwise known as same-day registration, and “were able to register and vote on the spot.”  ↩

  9. Even when there is a jail-based polling location in place, some detained people may still be prevented from voting, depending on their circumstances. For example, in places where in-person voting is only available to people who were arrested after the deadline to request an absentee ballot, individuals who were arrested before that deadline but didn’t request an absentee ballot because they anticipated being released before Election Day would find themselves unable to vote if they remain in custody on Election Day. Similarly, in places where the jail polling site is only operational before Election Day (such as on weekends during an early voting period), people who are taken into custody after the polling site closes and remain detained through Election Day would find themselves unable to vote.  ↩

  10. While establishing jail-based polling locations may at times require a change to state law (as was the case Illinois), other times no legislative change is necessary (as was the case in Harris County, Texas).  ↩

  11. For example, the Harris County Sheriff noted that “[c]asting a ballot while incarcerated also has extra hoops to jump through: Texas requires a photo ID to vote, but the jail confiscates incarcerated people’s possessions, including photo ID.” Further, the Office of the Clerk and Recorder in the City and County of Denver stated that accessibility to IDs was an obstacle preventing people in jails from meeting a prerequisite for voting (registration), so legislation was passed to create a new form of identification for people who are confined in the jail by placing requiring jail administrators to provide necessary identification information to election officials.  ↩


Report shows every community is harmed by mass incarceration

October 17, 2022

Today Western Native Voice and the Prison Policy Initiative released a new report, Where people in prison come from: The geography of mass incarceration in Montana, that provides an in-depth look at where people incarcerated in Montana state prisons come from. The report also provides 18 detailed data tables — including localized data for Yellowstone, Gallatin, and Butte-Silver Bow Counties, as well as Billings, Missoula, and Great Falls — that serve as a foundation for advocates, organizers, policymakers, data journalists, academics and others to analyze how incarceration relates to other factors of community well-being.

The data and report are made possible by the state Redistricting and Apportionment Commission’s decision to count people in prison as residents of their hometown rather than in prison cells when redistricting. Not everyone in state prison should or could be reallocated to their home address. The report and data reflect the individuals that could successfully be reallocated. The decision to change how incarcerated people are counted was made on a unanimous, bipartisan basis.

The report shows:

  • Nearly every county is missing a portion of its population to incarceration in state prison.
  • While Yellowstone County sends the most people to prison, the much smaller Silver Bow and Custer counties send people to prison at the highest rates in the state.
  • There are dramatic differences in incarceration rates within communities. For example, in Billings, residents of the South Side neighborhood are 15 times more likely to be imprisoned than residents of nearby Highlands neighborhood.

Data tables included in the report provide residence information for people in Montana state prisons at the time of the 2020 Census, offering the clearest look ever at which communities are most impacted by mass incarceration. They break down the number of people locked up by county, city, town, zip code, legislative district, census tract and other areas.

The data show the cities with the highest state prison incarceration rates are Hobson (556 per 100,000 residents), East Helena (410 per 100,000 residents) and Walkerville (312 per 100,000 residents). For comparison, the state imprisonment rate is 123 people in state prison per 100,000 residents.

Map of Montana incarceration rates by census tract

“The nation’s 40-year failed experiment with mass incarceration harms each and every one of us. This analysis shows that while some communities are disproportionately impacted by this failed policy, nobody escapes the damage it causes,” said Emily Widra, Senior Research Analyst at the Prison Policy Initiative. “Our report is just the beginning. We’re making this data available so others can further examine how geographic incarceration trends correlate with other problems communities face.”

The report cites studies that show that incarceration rates correlate with a variety of negative outcomes, including higher rates of asthma, depression, lower standardized test scores, reduced life expectancy and more. The data included in this report gives researchers the tools they need to better understand how these correlations play out in Montana.

“This report and data make clear that the pain of mass incarceration is not felt equally across the state. Native communities and low-income neighborhoods bear an undue burden of these failed policies,” said Ta’jin Perez, of Western Native Voice and co-author of the report. “More importantly, though, this should guide state and local policymakers as they make investments in education, housing, health care and economic opportunities that will strengthen families and communities.”

The report is part of a series of reports examining the geography of mass incarceration in America.

Montana is one of more than a dozen states and 200 local governments that have addressed the practice of “prison gerrymandering”, which gives disproportional political clout to state and local districts that contain prisons at the expense of all of the other areas of the state. In total, roughly half the country now lives in a place that has taken action to address prison gerrymandering.


by Wanda Bertram, October 14, 2022

Table of Contents
Are bail companies actually bringing their clients to court?
How much bail owed by companies is not being collected by courts?
How is the bail industry lobbying for favorable conditions in your area?
General tips for investigating the bail industry

Our recent report All Profit, No Risk: How bail companies exploit the legal system was made possible in part by local news investigations into the bail industry. Below, for journalists interested in doing their own investigations, we offer a few story ideas and several tips based on the lessons we learned in our research.

We encourage journalists to use our report and its appendices of local data as a primer on problems in the bail industry. Our 2016 report Detaining the Poor also explains how money bail perpetuates an endless cycle of poverty and jail time for defendants.

Read on for three ideas for urgent, impactful stories, and tips for pursuing them. Or skip to general tips for investigating the bail industry.

  1. Are bail companies actually bringing their clients to court?
    • Why this matters: Many people don’t realize that the primary service bail companies claim to perform — ensuring their clients’ appearance in court — is likely already being taken care of by three other parties: law enforcement, “pretrial services” agencies, and defendants themselves. Police, in the everyday course of their jobs, often encounter people who have a “bench warrant” for missing a previous court date, arrest them, and bring them to jail. In jurisdictions with pretrial services agencies, those agencies notify people of court dates, helping ensure their timely appearance. Finally, defendants who miss court usually do so for non-malicious reasons: the court failed to make their hearing date clear, they forgot, or their hearing conflicted with family or work obligations. These defendants often return themselves to court. When bail companies are doing little or no work to ensure clients’ court appearance, it raises the question of what purpose these companies serve besides acting as (predatory) lenders to low-income people.
    • Tips for investigating it: Your local jail may keep records showing who brought in bonded defendants (i.e., defendants released on money bail) following a “failure to appear” (or FTA). Jails also often have records showing how many arrests by law enforcement have “failure to appear” as the reason for arrest. These records — for which you will likely have to submit a public records request — will help you discern how often police, as compared to bail agents, are bringing in defendants who missed a court date.
  2. How much bail owed by companies is not being collected by courts?
    • Why this matters:As we explain in All Profit, No Risk, thanks to loopholes and cracks in the money bail system (many of which the bail industry has lobbied for), bail companies can usually get around paying bail forfeitures, i.e., bail bonds owed to the courts when a client fails to appear in court. Over time, this problem sometimes deprives public agencies of funding — like in Wake County, North Carolina, where schools sued for $1.2 million in bail bond money that was supposed to be forfeited to the courts and routed to the school system. Knowing the full value of bail bonds that companies pay to courts every year — compared to the value of all the bonds companies owe to courts when bonds are forfeited — can help counties and states understand their money bail systems. If bail companies are paying only a fraction of what they owe, it is likely because of numerous loopholes and cracks in the system, and policymakers will want to consider whether getting rid of money bail is more efficient than trying to collect more forfeitures, or more sensible than continuing to subsidize the bail industry by maintaining the status quo.
    • Tips for investigating it:
      • Call your state Department of Insurance. (See a list of state departments of insurance here.) Typically, the Department of Insurance is responsible for licensing both bail bond agencies and the insurance companies that underwrite their activities. You might ask the Department questions like:
        • How many violations by/complaints about bail bond companies were reported over [some date range]?
        • How many companies (or which companies) have had ability to write bonds suspended/revoked over [some date range]?
        • Can you share any internal investigations/audits/communications about bail bond company practices (particularly related to forfeitures)?
      • Reach out to your state or local auditor’s office. We found that several auditors had done extensive investigations of bail bond related problems.
      • Municipal courts often keep records of what happens to every bail bond that is written, including whether it is forfeited and whether the forfeited bond is paid. (Sometimes this information is kept in something called a “Bond Book” or similar.) A clerk at your local court may be able to answer questions like:
        • How many notices of forfeiture (or similar) were filed for bail bonds in [some time period]? You can ask them to compare the number of forfeitures to the number of surety bonds posted, or to the number “exonerated” (i.e. cleared/not forfeited), etc.
        • How many “motions to vacate” (exonerate) forfeited bail bonds were filed and/or granted?
        • How many summary judgments (i.e. orders to companies to pay forfeited bail bonds) were entered? How many of those were “set aside” (forgiven/cancelled)?
      • You can also ask a local court clerk how many “shutdown notices” (or similar) the court received in a given time period, instructing it to stop accepting bonds from specific bail bond agents/companies that had failed to pay summary judgments. (This may not be the same process everywhere, but something similar should be outlined in your state’s statute about bail forfeiture.)
      • If your local court doesn’t keep the detailed information about bail bonds mentioned above, try asking your local Sheriff’s Office.
      • Your D.A. or County Counsel (or similar) is ultimately responsible for prosecuting bail companies when they refuse to pay forfeitures they owe to courts. The prosecutor’s office should be able to answer questions like:
        • How many bail forfeitures were referred for prosecution in the past year/5 years? How many did the D.A.’s office decide to prosecute/pursue (as opposed to how many cases stopped at this point)?
        • How were those prosecuted forfeitures resolved? What was the number of successful prosecutions/collections? How many were negotiated down to lesser amounts?
      • Assuming forfeited bail money is eventually routed to county and/or state funds, the Treasurer’s office may have records about how much was received.
  3. How is the bail industry lobbying for favorable conditions in your area?
    • Why this matters: The bail industry is more active in politics than many people realize — for example, North Carolina Policy Watch reported that between 2002 and 2016, the North Carolina Bail Agents Association “took credit for helping to pass 60 laws ‘helping N.C. bondsmen make and save more money and protect their livelihood.'” The public has a right to know when companies are pushing for reforms that will make it even harder for courts to hold them accountable. Moreover, if you can gauge the lengths the bail industry will go to in order to protect its bottom line, your readers will think critically about what role — if any — private industry ought to play in the criminal justice system.
    • Tips for investigating it:
      • Make sure you have the full scope of the bail industry where you live: not just bail companies, but their insurance underwriters (the state Department of Insurance should know which companies these are), and any local or state-based associations of bail professionals.
      • Most (if not all) states require private entities to submit quarterly reports of lobbying activity. Lobbying records are sometimes kept by the Secretary of State’s office. For example, in California, lobbying entities report quarterly to the state, and the Secretary of State publishes a lot of information online.
      • Screenshot of a bail company's listing on an online report of lobbying activity.
      • Look for political contributions made by bail industry actors to elected prosecutors and judges.
      • Explore who is behind any recent bail-related ballot initiatives that might benefit the bail industry.

* * *

General tips for investigating the bail industry

  1. If you’re just getting started, use Appendix Table 2 from our report All Profit, No Risk to find the statutes governing the bail process in your state. The statutes should help you understand who is involved in the bail process (i.e., who to contact for story leads).
    • These statutes may also specify where and how records of bail bonds are kept. In most areas, some agency — typically a court, jail, or sheriff’s office — is tracking every bond that is written and what happens to that bond, often in a ledger informally called a “Bond Book.”
    • Pro tip: Before submitting any public records requests from agencies involved in the bail process, make sure those offices and/or the information you’re requesting aren’t exempt from FOIA requirements. State laws exempt certain government actors from public records requests, particularly the judiciary. This varies by state. Some criminal justice records are exempt (i.e., if they have personally identifying information). You may need to specify that redacted records (i.e., those with personal information removed) are acceptable. See our Public records request guide for links to more information.
  2. Certain state agencies and offices may be able to tell you about problems in the local bail industry:
    • The state Department of Insurance is responsible for licensing both bail bond agencies and the insurance companies that underwrite their activities. Sometimes, these departments maintain public registers of bail companies that have had their licenses suspended for violations, like failing to pay bonds owed to courts.
    • The state or county auditor’s office may have audited the bail system in the past.
    • The local District Attorney is ultimately responsible for prosecuting bail companies’ misconduct, and may be able to tell you about cases it has prosecuted or that have been referred for prosecution.
    • And, of course, someone at your local court can tell you about the court’s day-to-day relationship with bail companies and any regular problems that occur.
  3. To maximize your chances of finding useful information, cast a wide net when talking to agencies about the bail industry and bail process:
    • In addition to your official information requests, ask agencies you contact for general help with your investigation, blaming any recordkeeping problems you’ve encountered in other parts of the jurisdiction’s processes.
    • You can ask any office what types of information/data they maintain about the bail system and bail payments, to get ideas for follow up (i.e., when you don’t know what records might be available).
    • If you’re looking into a specific type of misconduct in the bail industry, you can ask any office for guidelines or instructions they have about how to treat such misconduct. (For example, you could ask a D.A.’s office about any internal guidelines on how to treat cases where a bail company is refusing to pay forfeited bonds to the court.)
  4. Keep in mind that the absence of data is itself a story. At the very least, you should be able to find out who is keeping track of bail companies that have not abided by court rules and what happens to every bail bond that is written. If that information is hard to locate, or if government agencies refuse to share it even with personal information redacted, consider writing a story that asks why the government is hoarding data that could be used to hold the bail industry — one that has a troubled record of corruption and abuse — accountable.

New data from the Bureau of Justice Statistics summarizes state policies and prison population changes from March 2020 to February 2021

by Emily Widra, October 13, 2022

The Bureau of Justice Statistics’ August 2022 report Impact of COVID-19 on State and Federal Prisons, March 2020-February 2021 examines an inventory of measures each state prison system took to mitigate COVID-19, ranging from policies to reduce prison populations to efforts to provide vaccines and hand sanitizer to incarcerated people. The data reinforces what we already know about correctional settings during the pandemic: although crowded living spaces like prisons are generally hotspots for infection transmission, only some departments of corrections followed guidance from medical professionals, public health officials, and the CDC, while others ignored even the most basic recommendations. Below, we summarize the Bureau of Justice Statistics’ findings about state responses to various mitigation tactics and compile key findings about slowing prison admissions, increasing prison releases, testing for the virus, altering housing placements to prevent spread, and providing face masks.

Key findings from Impact of COVID-19 on State and Federal Prisons, March 2020-February 2021:

  • Some prison systems significantly reduced the number of people entering prison, but a handful quickly returned to admitting large numbers of people, even more than the number admitted in January 2020, before the pandemic.
  • 21 state prison systems and the federal Bureau of Prisons reported no policies to expedite releases during the pandemic, and among the 28 states that did have such policies, four of them did not actually release anyone under their expedited release policies.
  • Two state prison systems – California and Michigan – were responsible for an outsized portion (38%) of all COVID-19 tests in state prisons (in February 2020, these two states held a combined total of 14% of the country’s state prison populations).
  • The implementation of COVID-19 mitigation efforts – like expanded testing, provision of hand sanitizer, and daily temperature checks – was inconsistent across state prison systems.
  • Many states failed to prioritize vaccination of incarcerated people and correctional staff. At the time of the February 2021 survey date, some states had not yet provided the vaccine to the prison system, and some state prison systems had access to the vaccine for weeks but had distributed none of it.

 

Reducing prison admissions

In response to the recommendation from public health officials to reduce prison populations in the face of COVID-19, many jurisdictions slowed — and even temporarily suspended — prison admissions. Some departments of corrections responded relatively quickly: From January 2020 to April 2020, the number of people admitted to prison in Virginia, Tennessee, New York, Illinois, Michigan, and the federal Bureau of Prisons decreased by more than 90%.

On the other hand, some states responded particularly slowly to calls to reduce prison admissions: By April 2020, 14 states had only reduced their admissions by 45%. By September 2020, three states – Louisiana, South Carolina, Wyoming – were admitting more people to prison than they did before the pandemic.

January 2021 was the deadliest month of the pandemic: 60,000 people died of COVID-19 in the U.S. That same month, Wyoming admitted more people to state prison than they did in January 2020, before the pandemic. Just one month later, three more jurisdictions followed suit: more people were admitted to federal, North Dakota, and New Mexico prisons in February 2021 than in January 2020.

 

Expediting prison releases

Public health agencies advised prisons not just to slow admissions, but to release more people (particularly immunocompromised people) who were already inside. The new report shines a light on the extent to which prisons followed this advice. Unsurprisingly, the report shows that many states failed to actually use these expedited release policies to their intended effect. For example, although Illinois, Kansas, Oklahoma, and Vermont each had an expedited release policy, these departments of correction did not actually release anyone under these policies. In 10 states with expedited release policies, less than 5% of releases from January 2020 to February 2021 were expedited. An additional 21 states did not even have a policy for expediting releases from prisons during the pandemic.

Other states made better use of their expedited release policies to significantly reduce the number of people behind bars. Iowa appeared to make the most of their expedited release policy: 5,272 people were released from January 1, 2020 to February 28, 2021, 89% of which were expedited releases (4,700). There were other states where expedited releases were a significant portion of their total releases as well: New Jersey (36% of releases were expedited), Utah (31%), California (27%), Virginia (20%), and Arkansas (17%). Of course, every state could have gone further to safely release more people, but these states did at least the minimum in facilitating earlier releases amid an unprecedented public health emergency.

The new report also includes data on the measures that each jurisdiction used to determine eligibility for expedited releases. These criteria included offense types, health status, age, risk assessment scores, verified post-release housing, and time left on sentences. Across the 28 states that had a policy for expedited release, the combination of criteria required for eligibility varied greatly:

bar graph showing number of jurisdictions requiring each type of measured criteria for expedited COVID-10 release

The Bureau of Justice Statistics asked departments of corrections about nine different criteria they might have used to determine who was eligible for expedited release. Some of these criteria, such as age, health status, and positive viral COVID-19 test were grounded in health logic: Older people and people with preexisting conditions were at higher risk of serious illness, and of course people who tested positive for COVID-19 were both at risk of serious illness and spreading the virus to others. But at least as many of these criteria, such as maximum time left on sentence, “non-violent” offense, and no prior “violent” convictions, were grounded in carceral logic that assumed the public safety risk posed by many incarcerated people, if released, would outweigh the extreme health risk these individuals were sure to face in prison during this health emergency.

These criteria for early release rely on tired stereotypes about incarcerated people, particularly that there are clear distinctions between “violent” and “non-violent” offenses and that people who have been convicted of “violent” offenses will pose a greater risk to society if released. In reality, we know that distinctions between “violent” and “non-violent” offenses are blurry and misleading. Further, those who are convicted of “violent” offenses are re-arrested at lower rates than those convicted of “non-violent” offenses. These offense-based eligibility criteria therefore reflect a continued commitment to punishment over health and safety, even in the midst of an unprecedented viral pandemic.

Interestingly, the data show that states that used a narrower set of eligibility criteria did not necessarily expedite fewer releases. Massachusetts, Montana, North Dakota, New Jersey, and Iowa all had high thresholds for eligibility. In spite of their inclusion on this list, Iowa and New Jersey expedited the highest percentages of their releases among all 50 state departments of corrections and the federal prison system in the time period studied. Meanwhile, Colorado used all nine of the criteria listed, yet only expedited about 6% of their releases from January 2020 to February 2021. We conclude that the data in this report show no clear correlation between how restrictive a state’s criteria were for expedited releases and the percentage of the state’s releases that were expedited. These inconsistencies across states’ expedited release policies, criteria, and actual implementation reveal a lack of foresight that departments of corrections must adjust in advance of future public health emergencies.

 

Testing for COVID-19

bar chart comparing share of prison population vs. share of prison COVID-19 tests for five states

The Bureau of Justice Statistics reports that COVID-19 testing protocols and frequency varied greatly between states and facilities, which both exacerbated the public health situation and hindered efforts to measure the pandemic’s spread. California and Michigan were responsible for 38% of all COVID-19 tests of people in state prisons, even though these two states held a combined total of just 14% of the country’s state prison population as of February 2020. Meanwhile, Texas held 12% of the country’s state prison population in February 2020, but only accounted for 7% of tests administered to people in state prisons from January 2020 to February 2021.

The broad disparities between testing strategies makes it challenging to compare rates of COVID-19 infection between states. States that tested people more than once (indicated by more tests administered than people in prison) — such as Vermont and New Jersey — tended to have lower positivity rates, while states that performed fewer tests (likely only testing people who were symptomatic or had known exposures) tended to have higher positivity rates. Seven of the 10 states with the highest positivity rates (Mississippi, New Hampshire, Oklahoma, Nebraska, Kentucky, Indiana, and Florida) performed fewer tests than the number of people in prison; clearly, not everyone in prison received a COVID-19 test.

The differences in testing strategies across states also had grave consequences for public health. Research from the Council on Criminal Justice in April 2021 found that states that did not use a mass-testing strategy (testing everyone at least once) in prisons actually had COVID-19 death rates at nearly eight times the death rate for non-incarcerated populations similar in age, gender, and race and ethnicity. But in states with mass testing, this disparity in death rates was halved. The number of tests performed in each state prison system included in this new report suggests that many states failed to heed the evidence that mass testing and retesting allows for better mitigation and ultimately better public health outcomes.

 

Other tactics to reduce transmission

In addition to reducing the incarcerated population and tracking the spread within that population, prison systems used a variety of other tactics to slow the spread of COVID-19 in prisons. The report includes information about these tactics, some of which were implemented in every prison system in the country: staff temperature checks at the start of the shift, quarantine of symptomatic prison population,1 and providing face masks to incarcerated people and prison staff.

But many states missed opportunities to mitigate COVID-19 with obvious and simple interventions; moreover, the report finds inconsistent practices between facilities within the same prison systems. Nebraska, New York, Oklahoma, and Texas did not test new admissions to prisons, and six more states only tested on admission at some facilities. Nine states did not test people before release from prison, and an additional seven states only tested people before release at some facilities. We know that the transmission of COVID-19 between prisons and the surrounding communities is significant, so why, once testing became widely available, would departments of correction not test people leaving the prison and returning to the community?

Beyond testing, some states didn’t even take the minimal step of providing hand sanitizer: Nebraska, Connecticut, Georgia, and Tennessee. In Delaware, Hawaii, and Utah, hand sanitizer was only available at some prison facilities in the state. The successful distribution of hand sanitizer in all 43 other state prison systems and the federal prison system discredits concerns that alcohol-based hand sanitizer would not be safe in a prison environment.

bar chart showing number of jurisdictions implementing each COVID-19 mitigation tactic

Programming, in-person family visitation, and legal visitation were restricted across the country at various points during the pandemic. Twenty-three state prison systems suspended educational programming, drug and alcohol treatment, job programs, family in-person visits, legal visits, and religious programs. The federal Bureau of Prisons suspended all of those programs except for religious programming in some facilities. All 50 states and the Bureau of Prisons suspended some variety of these in-prison visits and programming. Only one state — Minnesota — did not universally suspend family in-person visits, though these visits were suspended at some facilities in the state.

It’s worth noting that 14 of the prison systems that suspended all programming and visitation also did not have any expedited prison releases. While it was important to limit transmission in group settings, it’s bad policy to sacrifice incarcerated people’s well-being by suspending visits while ignoring much more impactful strategies like reducing the population through expedited release. The impact of increased isolation and forgoing job training and educational programming (which can improve post-release outcomes) was a heavy toll to weigh against the physical health benefits of this mitigation tactic. And because it isn’t included in the report, we do not know if prison systems made any effort to provide resources to supplement in-person programming, especially in the critical period before vaccines were made accessible to incarcerated people.

 

Rolling out vaccines

bar chart showing number of jurisdictions using each criterion for vaccine prioritization

The Bureau of Justice Statistics collected information on vaccine distribution policies in all 50 states and the federal Bureau of Prisons. Additional findings include that no jurisdictions mandated (or explicitly barred opting out of) vaccinations for staff or prison populations.

When states drafted their vaccine plans in December 2020, we knew that by any reasonable standard, incarcerated people should have ranked high on every state’s priority list. At the time, congregate living settings (prisons, jails, colleges, nursing homes) were high-risk environments and the case rate in prisons was four times higher than the general population. While most states (40) did address incarcerated people as a priority group at some point during the vaccination rollout plan, it was not always particularly clear how incarcerated people — and correctional staff — were categorized for vaccine prioritization. This meant that incarcerated people in some states and facilities were offered the vaccine weeks or months late.

As an illustration of the broad disparities in vaccine rollouts across states, by February 2021, some jurisdictions (Bureau of Prisons, New Mexico, and Alaska) had made the vaccine available to prison populations and staff for more than 70 days, while other state departments of correction (Alabama, Florida, Kentucky, Mississippi, South Carolina) had not yet even received – let alone started administering – the vaccine by February 28, 2021.

Disorganized and inconsistent vaccine rollout strategies showed that distributing vaccines equitably to incarcerated populations was not a priority, at both the national and state levels. As of February 2021, Alaska, Oklahoma, Michigan, and South Dakota had access to the vaccine for more than three weeks, but had not yet vaccinated a single correctional staff member. Similarly, the vaccine was available for more than three weeks in Arkansas, Maine, Tennessee, West Virginia, Arizona, and Oklahoma without a single incarcerated person receiving a dose. Some of these states are still struggling to increase the number of people vaccinated across the state (not just in prisons), but for departments of corrections to report zero vaccinations after three weeks of availability is a frightening display of indifference to the lives of incarcerated people and correctional staff.

 

Conclusion

Throughout the first year of the pandemic, it’s clear that many state departments of corrections ignored clear advice to mitigate the virus’s spread: reduce prison populations; increase prison releases; provide masks, hand soap, and hand sanitizer at no cost; utilize appropriate medical isolation (not solitary confinement); expand the use of screening tools (like temperature checks); expand testing of people in prison and staff to universal testing; conduct pre-release testing; prioritize incarcerated people and correctional staff in state vaccination plans; and improve vaccination rates among incarcerated people and staff. While the Bureau of Justice Statistics has yet to publish COVID-19 response data from the last 19 months, reporting from other sources indicates that many jurisdictions’ responses to COVID-19 in prison did not become more comprehensive or expansive as COVID-19 restrictions loosened outside of prisons.

While the newest data from the Bureau of Justice Statistics shows us evidence of what we observed — state departments of corrections failing to implement even the most obvious mitigation efforts — the data do not give us a full picture of the consequences of these shortcomings. Because of the inconsistencies between departments’ testing protocols, it is challenging to conclude that states that were better about implementing public health measures saw lower infection and mortality outcomes than states that didn’t. Consequently, the truth about just how bad conditions were in certain state prison systems remains obscured. Along with improving and expanding virus mitigation tactics, standardizing data collection practices is an essential next step. Implementing clear public health emergency response policies and enhancing departments of corrections’ transparency about virus prevention and outcomes is necessary in order to keep incarcerated people safe and healthy.

 
 

Footnotes

  1. The first step in responding to the pandemic should have been to reduce the prison population as much as possible because prisons are no place for viral diseases. However, given the barriers to quick prison releases (like slowed court systems), departments of corrections inevitably needed to implement medical quarantine for sick people to reduce transmission. However, medical quarantine is not solitary confinement (which we know presents its own host of mental and physical health risks) but instead requires certain criteria to be met, including access to medical care. For more information on the difference between medical quarantine and solitary confinement, see this fact sheet from AMEND at the University of California San Francisco.  ↩


Report shows every community is harmed by mass incarceration

October 5, 2022

Today, Full Citizens Coalition, Common Cause in Connecticut, and the Prison Policy Initiative released a new report, Where people in prison come from: The geography of mass incarceration in Connecticut, that provides an in-depth look at where people incarcerated in Connecticut state prisons come from. The report also provides eleven detailed data tables — including neighborhood-specific data for Bridgeport, Hartford, Stamford, and Waterbury — that serve as a foundation for advocates, organizers, policymakers, data journalists, academics and others to analyze how incarceration relates to other factors of community well-being.

The data and report are made possible by the state’s historic 2021 law that requires that people in prison be counted as residents of their hometown rather than in prison cells when state and local governments redistrict every ten years.

The report shows:

  • Almost every single city — and every state legislative district — is missing a portion of its population to incarceration in state prison.
  • New Haven County, the third largest county in the state by population, sends the most people to prison and has the highest incarceration rate of all of the counties in the state.
  • There are dramatic differences in incarceration rates within communities. For example, in Hartford, a city that is one of the starkest examples of redlining in the country, residents of the Upper Albany neighborhood are four times as likely to be imprisoned than residents of the nearby West End neighborhood.

Data tables included in the report provide residence information for people in Connecticut state prisons at the time of the 2020 Census, offering the clearest look ever at which communities are most impacted by mass incarceration. They break down the number of people locked up by county, city, town, zip code, legislative district, census tract and other areas.

The data show the cities with the highest state prison incarceration rates are Hartford (1,065 per 100,000 residents), Waterbury (931 per 100,000 residents) and Bridgeport (903 per 100,000 residents). For comparison, Shelton has the lowest prison incarceration rate of any city, at 102 people in state prison per 100,000 residents. The statewide incarceration rate is 288 per 100,000 residents.

Map of incarceration rates in CT by census tract

“The nation’s 40-year failed experiment with mass incarceration harms each and every one of us. This analysis shows that while some communities are disproportionately impacted by this failed policy, nobody escapes the damage it causes,” said Emily Widra, Senior Research Analyst at the Prison Policy Initiative. “Our report is just the beginning. We’re making this data available so others can further examine how geographic incarceration trends correlate with other problems communities face.”

“This data and report put a spotlight on the deep and enduring wounds caused by mass incarceration in Connecticut,” said James Jeter of The Full Citizens Coalition. “As Connecticut looks to turn the page on the era of mass incarceration, it should make direct investments into the people, housing, education, and economic opportunities in those communities that have experienced the most pain.”

The report cites studies that show that incarceration rates correlate with a variety of negative outcomes, including higher rates of asthma, depression, lower standardized test scores, reduced life expectancy and more. The data included in this report gives researchers the tools they need to better understand how these correlations play out in Connecticut.

“Every person locked behind bars in Connecticut represents a piece of the fabric of a community that is missing,” said Keshia Morris Desir, of Common Cause. “This report and its data help to show the deep damage that is done to communities large and small by mass incarceration, and more importantly, provides guidance on where and how resources and support should be allocated to end this devastation.”

The report is part of a series of reports examining the geography of mass incarceration in America.

Connecticut is one of more than a dozen states and 200 local governments that have addressed the practice of “prison gerrymandering,” which gives disproportional political clout to state and local districts that contain prisons at the expense of all of the other areas of the state. In total, roughly half the country now lives in a place that has taken action to address prison gerrymandering.


On top of a bail system that is set up to favor companies over courts, the bail industry has lobbied for several loopholes that make their business virtually risk-free - and highly lucrative.

October 4, 2022

Easthampton, Mass. This morning, the Prison Policy Initiative published All Profit, No Risk: How the bail industry exploits the legal system, a report exposing how commercial bail companies and their deep-pocketed insurance underwriters almost always avoid accountability when they fail to do their one job: ensure their clients’ appearance in court. The report shows that the espoused purpose of the bail industry — that “it provides a public service at no cost to the taxpayer” — is a lie.

Piecing together evidence from 28 states where bail companies have routinely avoided paying bonds “forfeited” to courts due to their clients’ non-appearance, the report shows that these incidents are not isolated local scandals. Instead, they are part of a systematic problem with commercial money bail, a problem that has been intentionally created by the industry to protect its profits.

The report explains how the bail industry exploits — and works to expand — six loopholes in the system that allow it to avoid paying up when defendants don’t appear in court. For example, bail companies have carved out months-long “grace periods” during which they do not have to pay a forfeiture as long as their client returns to court during that time. These loopholes, combined with aggressive strategies employed by the industry, have helped it reap profits while taking little risk.

These “cracks” exist on top of a bail system that is already set up to favor companies over courts (and defendants) in several ways:

  • Bail companies do not pay any actual cash or property to the court up front, meaning that the onus is on the court to get the money it is owed if a defendant does not appear.
  • The bail system allows companies to select clients based on financial risk (i.e., their ability to cover the entire cost of their bail bond) rather than their risk of flight.
  • Companies can pass along their financial risk to defendants and their loved ones by collecting collateral.
  • Bail companies are backed by deep-pocketed insurance agencies that can (and do) aggressively fight forfeitures in court.

Rather than attempting to “fix” the money bail system, the Prison Policy Initiative calls for the end of the money bail system entirely (a system that has already received due criticism for penalizing people based on their personal financial resources). The organization notes that unwinding the deeply-ingrained loopholes carved out by the industry one by one is not realistic due to the powerful political influence of bail companies.

“The money bail system is dysfunctional and broken by design, and the bail bond industry helped make it that way,” said report author Wendy Sawyer. “Governments should replace money bail with non-commercial systems that ensure court appearance while removing the profit motive.”

The report also highlights three strategies state and local governments can adopt, short of ending money bail entirely, to reign in this industry:

  • Release most defendants pretrial without monetary conditions, and adopt services that support attendance;
  • When monetary conditions are necessary, rely on other forms of money bail that don’t involve profit motives, such as unsecured bonds; and
  • When commercial bonds are used, require bond agents to operate in cash to ensure they have a financial stake in the outcome.

The Prison Policy Initiative’s new report also includes a detailed description of the bail forfeiture process, an appendix of relevant legal statutes for all 50 states, and an appendix of evidence the organization gathered from 28 states.

The full report is available at https://www.prisonpolicy.org/reports/bail.html.









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