People on probation are much more likely to be low-income than those who aren't, and steep monthly probation fees put them at risk of being jailed when they can't pay.

by Mack Finkel, April 9, 2019

Over 3.6 million people are under probation supervision in the U.S., and in most states, they are charged a monthly probation fee. The problem? Many of them are among the nation’s poorest, and they can’t afford these fees. From our previous research in Massachusetts – and from reports from around the country – we know that the burden of probation fees often falls disproportionately on the poor. To determine the extent of the problem nationally, we examined the incomes of people on probation in a recent survey, the National Survey of Drug Use and Health. Our analysis confirms that, nationwide, people on probation are much more likely than people not on probation to have low incomes.

The National Survey of Drug Use and Health (NSDUH) is an annual survey that asks respondents about a broad range of topics, including their annual income and whether they were on probation in the past 12 months. The inclusion of recent probation history in the survey makes it a valuable data source for criminal justice research; it comes closer than any other source to offering a recent, descriptive, nationally representative picture of the population on probation.1 Prof. Michelle Phelps of the University of Minnesota, for example, used this survey in her recent analysis comparing people on probation to those in prison, using educational attainment as a measure of economic status.

Our analysis of the 2016-2017 NSDUH data shows that people on probation typically have much lower incomes than those who aren’t on probation:

Chart comparing the portion of the probation population making less than $20,000 per year, $20,000 to $49,999 per year, and $50,000 or more per year to the portion of the population that was not recently on probation. Most notable is that two-thirds of the probation population has an annual income below $20,000, compared to just 40% of the non-probation population.People on probation are much more likely to be low-income than those who aren’t on probation, and steep monthly probation fees often put them at risk of being jailed when they can’t pay. For a more detailed comparison, see the Appendix table.

Key findings from our analysis include:

  • Nationwide, two-thirds (66%) of people on probation make less than $20,000 per year.
  • Nearly 2 in 5 people on probation (38%) make less than $10,000 per year, well below the poverty line.
  • On the wealthier end of the spectrum, few people (9%) on probation have annual incomes of $50,000 or more, while more than a quarter (28%) of those not on probation make at least $50,000 per year.

Monthly probation fees may be just one of several fees that someone on probation has to pay regularly. As part of the conditions of their probation, an individual might have to pay court costs, one-time fees, monthly supervision fees, electronic monitoring costs, or any combination of these charges. Sometimes the law strictly defines the cost of these fees, and sometimes “reasonableness” is the only statutory guideline. Depending on the state, courts, departments of corrections, sheriffs’ departments, and the probation programs themselves can all collect revenue from these fees.

Even though the Supreme Court has said it is unconstitutional to incarcerate someone because they cannot afford to pay court ordered fines and fees, many courts effectively do just that. Judges often fail to consider the individual’s ability to pay (as opposed to their willingness to pay) and treat nonpayment of fees as a violation of probation. This flies in the face of many state statutes that allow incarceration only when there is evidence that the individual is able to pay but refuses.2 As a result, poor people on probation face a very real risk of being incarcerated because they can’t afford monthly fees. As the National Criminal Justice Debt Initiative shows, many state laws amount to “poverty penalties” and “poverty traps” and failure to pay can mean an extended probation sentence, driver’s license revocation, mandatory work program, or incarceration.

 

Unaffordable fees and low-income probation populations, select states

*In Massachusetts, the fees have two tiers, $50 for administrative and $65 for supervised probation. In Oklahoma, there are two separate monthly supervision fees, one up to $40 and another up to $20.

**Due to the small number of NSDUH respondents in Maine and South Carolina who were on probation at any time in the past 12 months, the survey does not make the necessary data available for those states as part of NSDUH’s efforts to protect respondents’ identities.

This table includes states where probation fees can cost $50 or more each month, and shows that in almost all of these states, over half (and even as many as 83%) of people on probation have annual incomes below $20,000. For them, unaffordable probation fees can lead to a cycle of poverty and incarceration. (Sources: Criminal Justice Debt Reform Builder, for probation fees, and the National Survey on Drug Use and Health: 2-Year RDAS (2016-2017) for income data on the population experiencing probation in the past 12 months.)
State Monthly supervision fee Portion of probation population
making less than $20,000 per year
Colorado Up to $50 48%
Idaho Up to $75 67%
Illinois $50 65%
Louisiana $71 to $121 69%
Maine $10 to $50 NA**
Massachusetts $50 or $65* 52%
Michigan Up to $135 67%
Mississippi $55 67%
Montana At least $50 64%
New Mexico $15 to $150 83%
North Dakota $55 77%
Ohio Up to $50 62%
Oklahoma Up to $60* 75%
South Carolina $20 to $120 NA**
Washington Up to 100 50%

 

Such high fees – and high stakes – defeat the purpose of probation. In theory, probation (often touted as an “alternative” to incarceration) allows people to continue to work and manage family responsibilities while under supervision. But people faced with unaffordable fees are more likely to violate the conditions of supervision, experience housing and food instability, and struggle to support their children. And when failure to pay is treated as a violation of probation, individuals can be incarcerated, have their probation extended, and/or lose public benefits like food stamps and supplemental security income.

Louisiana is an especially punishing state for poor people on probation. The average probation sentence there lasts three years, and probation fees are among the highest in the country, at $71 to $121 per month, even though 69% of people on probation make less than $20,000 per year. Data from a report by the state’s Justice Reinvestment Task Force shows just how unreasonable these fees are. In Louisiana in 2015:

  • While under community supervision, the average person owed $1,740 in supervision fees alone. (Supervision fees were just one type of a number of court-ordered fines and fees.)
  • On average, people under supervision could only pay about half of the imposed fees; at the end of their supervision term, the average person still owed 48% of their supervision fees.

Louisiana’s probation system creates impossible debts that unfairly burden poor probationers. As in many states, failure to pay can lead to license suspensions, extension of supervision terms, and incarceration.

Fortunately, this is slated to change. Under a new law going into effect in August 2019, Louisiana courts will hold hearings on ability to pay, and defendants may have their fees waived or reduced if the court finds that fees will cause substantial financial hardship. While the fees are still far too high, the new law offers hope for low-income people on probation. (It’s worth noting that judges, district attorneys, and court clerks whose offices benefit from the fees have fought to delay the implementation of the law.)

As long as probation sentences include unreasonable fees and harsh punishments for failure to pay them, probation will continue to punish people just for being poor. Some states have begun to implement reforms to reduce the unnecessary incarceration and other unintended consequences of their probation fee systems. But as our analysis shows, this is a widespread problem that every state imposing probation fees should address. States must acknowledge that people on probation are mostly low-income, and driving them further into poverty through monthly fees is cruel and counterproductive.

 

Footnotes

  1. Although the survey does not ask about current probation status, the recency of their probation status makes those who have been on probation in the past 12 months a reasonable proxy for the general probation population. We therefore use the term “probation population” to refer to this group in our analysis.  ↩
  2. For state statutes that allow incarceration as a response to nonpayment of supervision fees, see these results from the Criminal Justice Debt Reform Builder.  ↩

 

Appendix table: Percentage of Probation Population vs. Non-Probation Population in Each Category of Personal Annual Income (Source: NSDUH 2016-2017)

Personal Annual Income Less than $10,000 $10,000 to $19,999 $20,000 to $29,999 $30,000 to $39,000 $40,000 to $49,999 $50,000 to $74,999 $75,000 or more
On probation in the past 12 months 37.9% 27.7% 12.4% 7% 5% 6.1% 2.9%
Not on probation in the past 12 months 21.8% 17.9% 13% 10.7% 9% 12.3% 15.3%

A merger between the two companies would have curtailed the ability of prisons and jails to choose a phone provider, to the detriment of incarcerated people and their families.

April 2, 2019

Easthampton, Mass. – Prison phone industry giant Securus has abandoned its attempt to purchase ICSolutions, the industry’s third largest company, after the Federal Communications Commission and the Department of Justice’s Antitrust Division signaled that they would likely block the deal. The merger would have effectively handed the market for prison and jail phone services over to Securus and its last major competitor, GTL.

“Based on a record of nearly 1 million documents comprised of 7.7 million pages of information submitted by the applicants, as well as arguments and evidence submitted by criminal justice advocates, consumer groups, and other commenters, FCC staff concluded that this deal posed significant competitive concerns and would not be in the public interest,” said FCC chairman Ajit Pai in a press release.

“Securus and ICS [Inmate Calling Solutions] have a history of competing aggressively to win state and local contracts by offering better financial terms, lower calling rates, and more innovative technology and services. This merger would have eliminated that competition, plain and simple,” said Makan Delrahim, Assistant Attorney General of the Department of Justice’s Antitrust Division in a press release. “The companies’ decision to abandon this deal is the right outcome – correctional facilities, inmates and their friends and families will continue to benefit from the robust competition between these firms.”

“All too often, calls home from jails cost an unconscionable $1/minute,” said Peter Wagner, Executive Director of the Prison Policy Initiative. “Had the companies merged, facilities would have had a harder time negotiating contracts with lower rates for families – which, thanks to our movement’s ongoing advocacy, they’re finally beginning to do.”

In our objection to the merger, filed in July 2018 with a coalition of groups working for prison phone justice represented by probono attorneys Davina Sashkin and Cheng-yi Liu, we argued that the FCC should stop the merger.

We argued that Securus’ history of repeatedly flouting commission rules – including deliberately misleading the FCC during a similar review last year, for which it was punished with an unprecedented $1.7 million fine – made it ineligible to purchase one of its competitors. We explained that the company has repeatedly tried to circumvent regulation in order to increase its profits from prison phone calls, and as recently as May 2018 was caught enabling illegal cell phone tracking.

Our filing included a detailed analysis of the concentration of the prison and jail telephone industry. We calculated market share in two different ways; by either measure, Securus and GTL were poised to control between 74% and 83% of the market. Except for ICSolutions – which Securus was seeking to acquire – no other company had above 3% market share.

Below is a historical timeline originally prepared for our report State of Phone Justice: Local jails, state prisons and private phone providers, showing how aggressively Securus and GTL have been gobbling up their competitors:

Graphical timeline showing how Securus and GTL have gobbled up most of their competitors in the prison and jail telephone market from the breakup of AT&T in the early 1980s through early 2019
For more information about this timeline, the companies, their respective sizes, the role of companies like CenturyLink that operate only in partnership with Securus and ICSolutions, or the historical role of AT&T and Verizon, see our report, the footnotes, and appendices to State of Phone Justice: Local jails, state prisons and private phone providers.

Updated April 3, 2019 10am with FCC press release and 1pm with the Department of Justice’s press release.


California's AB 964 would require in-person visits in all California jails

by Bernadette Rabuy, March 30, 2019

comment letter

For the past few years, California policymakers have been at hard work to protect in-person jail visitation from sheriffs and private companies who are eager to replace crucial human contact with impersonal video chats. While legislators were successful in preventing jails who provided in-person visits in January 2017 from later eliminating them, jails that had already banned in-person visits are permitted to continue their video-only policies.

That could change this legislative cycle thanks to Assembly Member Medina’s AB 964. AB 964 would require that all California jails provide in-person visits. Specifically, jails that are currently exempted would need to restore in-person visits by 2025.

The Assembly Public Safety Committee will be voting on AB 964 on April 2. We submitted a comment, encouraging committee members “to recognize and support the positive role families play in rehabilitation” and, more importantly, that “human beings need in person visits.”


The Mass. Senate is considering building a new women's jail. We offer a number of reasons why this is a bad idea.

by Wendy Sawyer, March 29, 2019

The Massachusetts Senate is once again considering construction of a new jail for women in Middlesex County. But I would caution against any expansion of correctional facilities without first reckoning with the inherent harms of jail incarceration and exploring better alternatives.

The proposal – Senate 1851 – would “establish a commission to identify a suitable location for a justice complex” in Middlesex County. I find it interesting that the commission is to identify a location, rather than consider whether a jail is needed at all. According to the text of the bill, this proposal is in line with a law passed in 2008 to expand jail capacity. But that law was passed in the wake of the state’s highest-ever rate of jail incarceration; since then, the state’s jail rate has seen a steady decline. This begs the question: why would the state need more capacity, when jail rates are down?

Chart showing Massachusetts jail rates from 1970 to 2015. In 2015, there were 216 per 100,000 residents ages 15 to 64 in jailThe Vera Institute of Justice’s Incarceration Trends tool shows that jail incarceration rates in Massachusetts have fallen over the past decade.

Despite the overall downward trend in the state’s jail rate, two groups have been jailed at steady or increasing rates: women and people being detained pretrial – and these are the two populations being used to justify the “need” for a new jail.

Chart showing Massachusetts jail rates for women from 1970 to 2015. While the total jail rate has fallen in the past decade, the rate for women has steadily climbed since 1991 from 4 to 35 per 100,000 women ages 15-64 in 2015The Vera Institute of Justice’s Incarceration Trends tool shows that the female jail rate in Massachusetts has risen steadily since the early 1990s.

Chart showing that while the number of people serving sentences in Massachusetts jails has declined since 1993, the number of people held pretrial has increased steadilyThe pretrial population in Massachusetts jails has increased for decades, while the number of people serving sentences there has fallen dramatically since 1993.

But despite the growth in the female and pretrial jail populations, there are some important arguments against building a new jail to hold these groups.

First, jails are uniquely harmful to women, and their needs are better met by community-based programs and services. Women in jails have higher rates of mental health and substance use disorders, and often have a history of abuse or other trauma; incarceration more often exacerbates these problems than alleviates them (for more information, see the “Context” sidebar in our 2018 report). As of December 2018, the Massachusetts Department of Corrections (DOC) reported that “74% [of women held by the DOC] were open mental health cases, 15% had a serious mental illness (SMI), and 56% were on psychotropic medication” – all rates roughly double those of the male population. Women in jails (especially women of color) are also poorer, on average, than their male counterparts, and therefore often are detained pretrial because they can’t afford even low bail amounts. Furthermore, separation from children leads many women to accept plea deals just to get out of jail sooner, which in turn leaves them with criminal records that may not reflect actual guilt or innocence.

Second, pretrial detention leads to worse outcomes, from high risk of suicide to increased likelihood of conviction, longer sentences, and reoffending. Yet pretrial detention has driven all of the jail growth in the U.S. over the last 20 years, which means that jails – like the one being proposed – are being built because more people who have not been convicted and are legally presumed innocent are being locked up. This trend reflects an increasing reliance on money bail – essentially, wealth-based release decisions – rather than an increase in “dangerousness” or flight risk. According to DOC data, the female pretrial population held by the DOC has increased 18% since 2010. If Massachusetts wants to relieve jail overcrowding, it should start by minimizing the number of people held pretrial, especially those who are there because they can’t afford bail.

Another problem that should be addressed before expanding jail capacity is the racial disparity evident in the state’s female pretrial population. As of Jan. 1, 2018, nearly a third (32%) of the women held by the DOC (in Framingham) were being detained pretrial. However, this proportion varied by race and ethnicity. 44% of Hispanic women and 35% of Black women held by the DOC, versus 31% of “Other” and 29% of white women, were held pretrial.

The idea to build a new women’s jail is not a new one. For years, a handful of Massachusetts counties have sent women detained pretrial to the women’s prison, MCI-Framingham, because they didn’t have separate jail space for women in the county jails. And for years, MCI-Framingham was overcrowded for precisely that reason. In 2007, the state opened a new jail for women farther west, and sent women from counties without separate women’s facilities that were west of Worcester to the new jail to await trial or serve their sentences. The result? Women jailed there were farther from crucial contacts, including their families and children, and their lawyers – which in turn made it harder to prepare their defense. Now, lawmakers want to build again, this time near the existing Framingham facility in southern Middlesex County.

The legislators behind the new jail project undoubtedly see a new jail as an “upgrade” for the state’s incarcerated women, since it would alleviate crowding and would be more updated housing than the nearly 150-year-old prison. But the real solution for women in jails would be to return to their communities. They would be better served awaiting trial at home, participating in diversion programs, and getting needed treatment and support for underlying problems through community-based programs. If legislators care about improving conditions for justice-involved women, they should focus on investing in community services and alternatives to incarceration that interrupt women’s distinct pathways to prison – not just building them newer, bigger, jails.


An index of the incarceration rates of the most populous counties in 39 states.

by Emily Widra, March 28, 2019

How has mass incarceration impacted the city you live in? This question frequently drives our readers to ask about the incarceration rates of specific cities. Because of the decentralized nature of criminal justice data, drilling down to the city level is difficult-to-impossible, but now you can calculate the prison incarceration rate of a city’s surrounding county using the Vera Institute’s Incarceration Trends Database. Using that tool, I calculated the incarceration rates of the most populous counties in 39 states (all those where data was available) – and uncovered a few surprises.

Rates are per every 100,000 residents. In its Incarceration Trends tool, the Vera Institute presents rates per every 100,000 residents aged 15-64; we calculated the rates using the total populations in their downloadable dataset to make them comparable with the Bureau of Justice Statistics’ state incarceration rates. (BJS state incarceration rates are for the jurisdictional population sentenced to greater than 1 year.)
State Most Populous County Associated City County Imprisonment Rate per 100,000 residents State Imprisonment Rate per 100,000 residents
Okla. Oklahoma County Oklahoma City 937 703
Pa. Philadelphia County Philadelphia 897 387
Wis. Milwaukee County Milwaukee 812 372
Mich. Wayne County Detroit 737 430


Ariz. Maricopa County Phoenix 666 600
Ala. Jefferson County Birmingham 627 613
Ohio Cuyahoga County Cleveland 627 444
Ind. Marion County Indianapolis 596 413
Texas Harris County Houston 574 572
Tenn. Shelby County Memphis 564 427
Colo. Denver County Denver 551 367
Iowa Polk County Des Moines 526 282
Ga. Fulton County Atlanta 508 506
Miss. Hinds County Jackson 502 609
Ill. Cook County Chicago 464 378
Ky. Jefferson County Louisville 453 490
Nev. Clark County Las Vegas 451 448
S.D. Minnehaha County Sioux Falls 443 423
Calif. Los Angeles County Los Angeles 427 330
S.C. Greenville County Greenville 416 416
Ore. Multnomah County Portland 401 379
Wyo. Laramie County Cheyenne 336 408
Neb. Douglas County Omaha 336 280
W. Va. Kanawha County Charleston 335 372
Hawaii Honolulu County Honolulu 326 263
Mo. St. Louis County St. Louis 304 531
Fla. Miami-Dade County Miami 301 500
N.C. Mecklenburg County Charlotte 273 354
N.Y. New York County New York City 262 261
Minn. Hennepin County Minneapolis 211 197
Utah Salt Lake County Salt Lake City 207 217
N.H. Hillsborough County Manchester and Nashua 186 218
Wash. King County Seattle 167 256
N.D. Cass County Fargo 157 236
Maine Cumberland County Portland 139 132
Va. Fairfax County Washington DC suburbs 118 448
Md. Montgomery County Washington DC suburbs 117 354
N.J. Bergen County Hackensack 92 229
Mass. Middlesex County Boston 81 132

With many large cities currently making criminal justice reform a priority – and with the highest rates of incarceration now in small cities and towns – you might expect large cities to be less punitive than the states they belong to. But 14 counties I evaluated (such as Philadelphia County and Los Angeles County) still have disproportionately high prison incarceration rates compared to the rest of their states. And only 13 of the counties I evaluated had incarceration rates significantly (that is, more than 10%) lower than the states they belong to.

You might also wonder: How does my city compare to other cities on incarceration? For the most part, cities in famously punitive states tend to be punitive compared to other cities. But there are some notable exceptions. For instance, while Missouri and Florida have some of the highest state rates of incarceration, St. Louis County and Miami-Dade County not only have lower rates than their states do; they have lower rates than most other urban areas nationwide.

Likewise, a few states that have relatively low incarceration rates should note that their major cities tell a wildly different story. Colorado, Michigan and Iowa have lower incarceration rates than many states, but the counties containing their major cities – Denver, Detroit and Des Moines, respectively – have some of the highest incarceration rates of all the urban areas I evaluated. These counties send disproportionately high numbers of people to prison.

So why do most of these counties differ significantly from the states they’re located in when it comes to incarceration? Clearly, local incarceration rates are impacted by much more than sentencing laws and other factors determined at the state level.

To state the obvious, cities and towns vary widely in their levels of poverty and in the quality of their social services (such as education, drug treatment and health care), both of which impact crime. But other factors matter too. Police departments and prosecutors differ in how aggressively they target crime, especially low-level crime. Cities and towns that invest in diversion programs for veterans, people with mental illness, and people with a substance use disorder may send fewer people to prison than areas without the same community services. The same is true for states with well-funded public defenders’ offices. And the availability of reentry services (like affordable housing), as well as the punitiveness of the community, affects the likelihood that a city’s formerly incarcerated people will be sent back to prison.

Given the wide variation among cities and towns, it’s clear that incarceration rates are just the beginning of any local analysis. If you’re curious to learn more about your city or state, check out Vera’s database, our extensive Research Library, and our state profiles.


With this year's updated edition of Mass Incarceration: The Whole Pie, we once again answer the essential questions of how many people are locked up, where, and why.

March 19, 2019

Easthampton, Mass. – Are there 1.3 million people incarcerated in the U.S., or is it actually closer to 2.3 million? Why – and where – are these millions of Americans behind bars? The country’s fragmented systems of confinement make answering basic questions about mass incarceration unnecessarily difficult. With this year’s updated edition of Mass Incarceration: The Whole Pie, we answer these essential questions with the most recent data, highlighting causes of incarceration that get too little attention as well as incarceration “myths” that receive too much.

Pie chart showing how many people are locked up on a given day in the U.S. by facility and offense type.

The publication of the new report caps a year-long effort to update the public on the major drivers of incarceration – state prisons and local jails – as well as confined populations too often overlooked, such as people in post-release “civil commitment centers” and undocumented immigrants in detention.

“With such high public support for criminal justice reform, it’s urgent that we have a clear picture of who is locked up and where,” said author Wendy Sawyer. “For instance, many people don’t realize how much of mass incarceration is local. But one in four incarcerated people – and one in four ICE detainees – are held in local jails controlled by county sheriffs.”

The report’s other key findings include:

  • 76% of people in local jails are not convicted of a crime, and many are there simply because they can’t afford money bail.
  • 49,000 people are held by ICE for immigration offenses – a 43% increase since 2016. (This does not include the 11,800 immigrant children currently detained by the Office of Refugee Resettlement.)
  • In a single year, 168,000 people were incarcerated for nothing more than a “technical violation” of probation or parole, such as a failed drug test.
  • Contrary to a popular myth, only 7% of incarcerated people are held in privately-run facilities – but virtually all incarcerated people generate profit for private companies by paying for phone calls, medical care or other necessities.

The United States locks up more people than any other country, at a rate more than five times higher than most other nations. One impediment to reform is the lack of available data to guide that conversation. In Whole Pie, the Prison Policy Initiative provides the comprehensive view of mass incarceration that society needs in order to plot a path forward.

Mass Incarceration: The Whole Pie is one in a series of reports that provide equally comprehensive snapshots of women’s incarceration and youth confinement. Previous national reports from the Prison Policy Initiative include Following the Money of Mass Incarceration, which uses economic data to show who pays for and who benefits from mass incarceration, and Correctional Control, which breaks down the number of people in every state who are incarcerated, on probation, or on parole.

The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization leads the nation’s fight to keep the prison system from exerting undue influence on the political process (via prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video calling industry.

The full report and graphics are available at https://www.prisonpolicy.org/reports/pie2019.html


Tablet computers are delivering a captive audience to profit-seeking companies, while enabling prisons to cut essential services like law libraries. We investigate.

by Mack Finkel and Wanda Bertram, March 7, 2019

Eight states have recently signed contracts with prison telecom companies to provide tablet computers to incarcerated people – a sharp increase since we began analyzing these contracts in 2017. Though many prisons already allow incarcerated people to buy tablets, these contracts provide something different: Tablets for free, ostensibly at no cost to either consumers or taxpayers. (To be clear, these aren’t like the iPads you can buy at a store; they’re cheaply made, with no internet access.)

But as with most state contracts that appear to cost nothing, there is a catch – several, in fact.

First, the “free” tablets charge users at every opportunity, including above-market prices for phone calls, video chats and media. Even sending an email requires a paid “stamp.” Furthermore, our recent analysis of these contracts suggests that they actually put the interests of incarcerated people last, prioritizing cost savings and the provider’s bottom line.

For instance, many of these contracts:

  • Guarantee the Department of Corrections a portion of tablet revenue.
  • Allow tablet providers to alter the prices of services – such as email, music and money transfer – without state approval.
  • Allow providers to terminate tablet services if the tablets aren’t profitable enough.
  • Exempt providers from replacing a broken tablet if they think it was “willfully” damaged – a loophole ripe for exploitation, as prison tablets are cheaply made and break easily.

More details below:

Contract Active since Does the DOC receive a portion of tablet revenue? Can the provider cancel the service for reasons related to profitability? Are the terms of use subject to DOC approval? Will the provider replace broken tablets?
Colorado DOC and GTL August 2015 (suspended in 2018) Yes. DOC earns a flat payment of $800,000 per year. Yes. GTL can cancel the service if there is insufficient tablet revenue, or if more than 10 tablets in any one housing unit need to be repaired. No, DOC does not have to approve the Terms and Conditions. GTL has discretion to determine whether damage was “willful,” and does not have to replace willfully damaged tablets. GTL also does not have to replace more than 5 (or 5%, whatever is greater) tablets in a housing unit every year.
Missouri DOC and JPay March 2017 Yes, DOC earns a 20% commission on songs, albums, movies, ebooks, and games. Yes. JPay can cancel the service if there is insufficient revenue. No. Terms of use not mentioned in contract (and therefore likely not subject to DOC oversight.) Unclear.
New York DOCCS and JPay August 2017 Yes. DOC earns a percent commission on purchases of emails, music, financial services, and other content. No, contract does not specify circumstances in which service can be canceled. No. Terms of use not mentioned in contract (and therefore likely not subject to DOC oversight.) Unclear.
South Dakota DOC and GTL March 2018 Yes. DOC earns a 50% commission on electronic messages and 24.2% on most types of phone calls. Yes. GTL can cancel the service if there is insufficient revenue or if equipment is “subjected to recurring vandalism.” No, DOC does not have to approve the Terms and Conditions. GTL has discretion to determine whether damage was “willful,” and does not have to replace willfully damaged tablets.
Indiana DOC and GTL July 2018 Yes, DOC earns a 10% commission on purchased content (not including phone or video calls made on tablets). Yes. GTL can cancel service in housing units where 10 or 10% of tablets are damaged in a year. Yes, DOC must approve the Terms and Conditions. GTL has discretion to determine whether damage was “willful,” and does not have to replace willfully damaged tablets.
GTL does not have to replace tablets more than once for any given incarcerated person, nor does it have to replace more than 5 or 5% of tablets in a housing unit every year.
Delaware DOC and GTL (pilot program) October 2018 No. Yes. GTL can cancel the service if too many tablets are damaged. Yes, DOC must approve Terms and Conditions. Unclear.
Maine DOC and Edovo December 2018 No. No, contract does not specify circumstances in which service can be canceled. Yes, DOC must approve Terms and Conditions and Privacy Policy. The facility has discretion to determine whether they or Edovo will replace damaged tablets. Edovo does not have to replace more than 5% of tablets for free every year.
South Carolina DOC and GTL January 2019 No. No, contract does not specify circumstances in which service can be canceled. No. Terms of use not mentioned in contract (and therefore likely not subject to DOC oversight). GTL is required to repair or replace damaged tablets or equipment, regardless of the cause of damage or loss.

Table 1. Findings from our analysis of eight “no-cost” contracts between state Departments of Corrections and tablet providers. Contracts are listed from oldest to newest. For more on GTL and Securus (JPay), the predominant tablet providers, see our recent report State of Phone Justice. In this table, “Active since” denotes the date that installation of tablet equipment in the correctional facility began.

Providers and DOC officials often describe free tablets as a gift to incarcerated people, but they more closely resemble a corporate investment than a gift. For the companies, free tablets with expensive services more than pay for themselves down the line. And for prison administrators, tablets pave the way for the elimination of essential services. We’ve already seen prisons eliminate:

  • Law libraries. South Dakota eliminated its paralegals and physical law library after rolling out tablets. A subsequent lawsuit alleged that the tablet software meant to replace the law library is often unusable, and deprives incarcerated people of meaningful access to the courts.
  • Physical books. Last year, Pennsylvania ended book donations to incarcerated people in favor of costly e-books, many of which were lifted directly from the free online library at Project Gutenberg. New York and Maryland also tried to end book donations (before public pressure forced them to backtrack), and one large Florida jail even took away Bibles, replacing them with low-quality e-Bibles on tablets.
  • Postal mail, which prisons can eliminate in favor of digital mail scans (as Pennsylvania did) and paid electronic messaging.

All this being said, there is nothing inherently wrong with tablet technology, in or out of a prison setting. It’s certainly possible to imagine using tablet technology to substantially improve prison life. But before states can write better contracts, they – and the public – must learn to distinguish truly innovative policies from high-tech ploys to cut costs.


The movement for phone justice has won huge victories in state-run prisons, but people in jail pretrial are on the front lines of exploitation.

February 11, 2019

County and city jails frequently charge incarcerated people $1/minute or more for a phone call, far more than even the worst rates in state prisons, a new 50-state report finds. The Prison Policy Initiative report State of Phone Justice uncovers the cost of phone calls in over 1,800 jails nationwide, explaining why sheriffs sign lucrative phone contracts that prey on pretrial detainees.

“Jails have managed to escape the political pressure that forced many prisons to bring their rates down,” said co-author Peter Wagner. “We found that many jails are charging three, five or even 50 times as much as their state’s prisons would charge for the same phone call.” The report explains how:

  • Phone providers compete for jail contracts by offering sheriffs large portions of the revenue – and then charge exorbitant phone rates.
  • Providers exploit sheriffs’ lack of experience with telecommunications contracts to slip in hidden fees that fleece consumers.
  • State legislators, regulators and governors pay little attention to jails, even as they continue to lower the cost of calls home from state prisons.
U.S. map showing the highest jail phone rates in every state

“High phone rates impact everyone in jail, but those worst affected are people detained pretrial because they cannot afford bail,” co-author Alexi Jones said. “When someone has to organize their defense from jail, the cost of phone calls becomes extremely limiting, and that ultimately makes our justice system less fair.”

The report also includes:

  • A sortable table of the cost of phone calls in jails nationwide, as well as the provider each jail contracts with;
  • A table comparing the cost of prison phone calls in each state to the cost of jail phone calls;
  • Explanations of two specific profit-making tricks used by jail phone providers, which target the very poorest consumers at their moments of crisis (with explanatory comics by illustrator Kevin Pyle);
  • A timeline showing how the two largest phone providers, Securus and GTL, are locking facilities into perpetual contracts by buying up their competitors.

“If we’re going to tame the correctional phone market, we need sheriffs, state legislators, public utilities commissions and federal regulators to understand the significance of jail phone calls,” Wagner said.


Phone providers are so creative in their influence-peddling that the most viable reform strategies do not focus only on "commissions."

by Peter Wagner and Alexi Jones, February 11, 2019

The prison and jail phone industry is rife with problems – from sky-high phone rates to inexplicable consumer fees to expensive and unnecessary “premium services” – and all of these problems can be traced to a single moment in the industry’s history: When the companies decided to start offering facilities a percentage of their revenue in order to win contracts.

Before long, jails and prisons were prioritizing commissions over low rates when choosing a phone provider. This didn’t just saddle incarcerated people and their families with higher phone rates – it created two major problems for the companies, both of which have caused the market to spiral into dysfunction.

 

Problem 1: The arms race for higher commissions

Prison phone companies started offering commissions to jails and prisons in order to win contracts from companies that didn’t offer them. What they didn’t expect was that sheriffs would become dependent on this new income. The companies were forced into an “arms race,” competing to give away more and more of their revenue from phone calls; the proffered commissions inched ever closer to 100%.

The companies had painted themselves into a corner: How do you make a profit when you’ve given virtually all of your revenue away? Their solution: Find another source of revenue and hide it from the facility’s management.

That’s why, today, prison and jail phone companies have learned to sustain themselves with revenue entirely separate from phone rates. The first of these hidden sources of revenue is consumer fees – fees to deposit money, open accounts, or get a refund.

The second source of revenue is a suite of unrelated, profitable services that the companies bundle into phone contracts, such as money transfer, commissary sales, video calls, emails, etc. Most recently, the New York Department of Corrections and Community Supervision signed a contract for over 50,000 “free” tablet computers, alongside its phone contract with Securus. (The tablets are, of course, not “free” for incarcerated people and their families, who pay to use the tablets and are generating millions in profit for Securus.)

Advertisement from a phone provider offering 100 percent commissions on phone revenue.Smart Communications promises the impossible. (What could go wrong?) Source: Screenshot from http://www.smartcommunications.us

Advertisement from a phone provider offering 100 percent commissions on phone revenue.Smart Communications promises the impossible. (What could go wrong?) Source: Screenshot from http://www.smartcommunications.us

The most extreme – and telling – example so far of the prison phone market’s reliance on extra services comes from a provider named Smart Communications. This year, the Florida-based company began marketing to facilities on a promise of “100% phone commissions.” The catch should be obvious: The provider makes money by bundling other profitable services into the contract, and sharing none of this additional revenue with the facilities.

Such extravagant promises reveal what providers have been doing all along: promising higher and higher commissions by relying more and more heavily on ancillary services and fees to boost profits.

 

Problem 2: Circumventing new regulations

Gradually, the public has come to understand that there is an inherent conflict of interest when facilities award monopoly contracts and then reap a percentage of the revenue. As a result, the commission system started to fall out of favor. Some – though far from all – state legislatures started to prohibit percentage-based commissions.

But legislatures left open a critical loophole: They didn’t prohibit companies from offering all improper perks to facilities – only commissions.

Instead of paying a fixed percentage of their revenue to the facilities, the companies now use the extra revenue to issue kickbacks in other forms. From the perspective of the poor families paying for the calls, nothing has changed – phone rates remain high – but for the companies, disguising payments in this way makes it harder for journalists and advocates to track the kickbacks. These payments include:

As such, some of the prison and jail systems that have been widely hailed for refusing phone commissions do not, in our opinion, deserve the praise:

  • In 2007, the County Commissioners of Dane County, Wisconsin voted to ban the commissions that brought in nearly $1 million per year. The County Supervisor explained, “We’ve lost our moral compass and direction for a million bucks a year.” But in 2009 the county negotiated a new contract where instead of taking a commission, it would just take an “administrative fee” of $476,000 in monthly increments.
  • By statute, the California prison system does not take a percentage commission, but it’s quite happy to take cash and cell phone blocking equipment, which was expected to cost GTL between $16.5 million and $33 million to install. (It should also come as no surprise that states with lower phone rates have fewer problems with contraband cell phones and therefore have no need for jamming equipment.)
  • Since 2008, the Michigan Department of Corrections has refused percentage commissions. However, in 2011, they raised their rates1 and started requiring that their provider pay money into a “Special Equipment Fund.” As of 2018, this fund takes in $11 million per year, which would amount to a 57% commission. As a result — despite lowering their phone rates in 2018 — Michigan’s phone calls are more expensive calls than 23 states that take traditional commissions.2

Not all hope is lost, of course. Sheriffs and legislatures still have the power to clean up this mess and make the prison and jail phone industry fair for consumers. But to do so, they’ll have to start evaluating phone contracts differently, focusing on more than just percentage commissions. Sheriffs and legislators should also ask whether:

  1. Consumers are getting a good price for phone calls and ancillary fees.
  2. The phone contract prohibits the provider from steering calls to more expensive methods.
  3. The contract does not include other correctional services. (Bundling phone contracts with other things the facility needs makes it impossible for the facility and the families to determine whether the cost for each service is reasonable.)
  4. The contract does not include “free” products like tablets which are paid for through the sale of “premium” content.
  5. The contract specifically lists all rates, fees and charges. (It is unfortunately common for facilities to sign contracts without knowing what the provider is going to charge for ancillary fees, or for products that the providers label as “premium” or “convenience”.

Similarly, it can be really tempting to want to ban percentage commissions. We instead suggest two different ways to change the incentives behind these contracts:

  1. Require contracts to be negotiated on the basis of the lowest price to the consumer. (New York law does this for the state’s prison phone contract.)
  2. Cap commissions not as a percentage but as a fixed number of cents per minute, say 1 cent a minute. This approach maintains the problematic system of families subsidizing the correctional system, but is in improvement in that it gives the facilities an economic incentive to increase call volume and to monitor their provider for unnecessary fees and services that cut in to call revenue.

 

 

Suggested reading for more on the topics here:

  • See Prison phone provider accuses Florida Dept. of Corrections of using inmates’ families as a slush fund by Ben Conarck of the Florida Times-Union about how Florida “explicitly prohibited” contract bids that offered a percent commission, and then during negotiations demanded (and received from the winning bidder) a “wish list of goodies” instead of lower rates.
  • Our August 1, 2013 letter arguing that the Federal Communications Commission should take an expensive view of “commissions.”” This letter was written when we still thought it practical to prohibit all commissions, but the detail in our letter reviews many of the most egregious examples of commissions packaged under other names.
  • Our August 12, 2015 letter to the Federal Communications Commission with our investigation of the industry’s campaign contributions. We make the case that the FCC should focus on lowering the total cost of calls instead of chasing the infinite forms that commissions are taking.
  • Our article about the prison phone industry’s new business model: “fee harvesting.” In this 2015 article, we explain why the providers focus on fees and why the facilities have a a real but short-sighted incentive to look the other way.

Footnotes

  1. Rates changed from 10-12 cents a minute to 18-20 cents with the increase going to the “Special Equipment Fund.”  ↩
  2. These states are: Florida, Hawaii, Colorado, Wisconsin, Idaho, Nevada, Washington, Wyoming, Massachusetts, North Carolina, Maine, South Dakota, North Dakota, Texas, Pennsylvania, Minnesota, Virginia, Delaware, Mississippi, Vermont, West Virginia, New Hampshire, and Illinois. The one bright spot in the Michigan contact is that it prohibits deposit fees, which the state estimates will save families $3 million per year. We don’t have a position on whether fee cuts or rate cuts are superior, but to make the best apples-to-apples comparisons, we compared other states to what we GTL would likely have set Michigan’s phone rates at with $3 deposit fees ($0.14/min).  ↩

The cost of jail phone calls punishes people in the most desperate circumstances, most of whom have not been convicted of a crime.

by Wendy Sawyer, February 5, 2019

It’s easy to see how people in state prison, who spend years or decades behind bars, are hurt by the cost of phone calls. But less obvious is how people in jail, who are usually behind bars for much shorter periods, can be hit even harder by the same cost.

The answer has to do with why people are in local jails in the first place. In many cases, it’s solely because they are poor. On a given day, 3 out of 4 people held in jails under local authority have not even been convicted, much less sentenced. Very often, they simply cannot afford the bail amount set by the court as a condition of release. (Men in jails reported earning a median of $17,676 per year before incarceration (in 2018 dollars). For women, the median pre-incarceration income was just $11,184 per year, well below the poverty line.)

When people can’t get together the funds to get out of jail, exorbitant phone rates only make a difficult time even harder. Pretrial detention is an extremely stressful experience; detainees are often at risk of losing their jobs, housing, and even custody of their children. Being locked up, even for a short time, can interrupt medical care and can exacerbate mental health problems. It’s no coincidence that suicide risk is highest in the first week of jail incarceration. Calls with loved ones are essential for people under these conditions, who may need to coordinate childcare or elder care, make arrangements for missing work, have prescriptions brought to the facility, or simply have someone to talk to while incarcerated. Expensive phone calls further punish people in jails – most of whom, again, have not been convicted of a crime.

Even beyond the potential damage to one’s health and personal affairs, pretrial detention also negatively affects case outcomes, and it’s in this way that high phone rates from jails do the most harm to the justice process itself. People who can’t afford money bail are forced to organize their defense from jail, where it is much harder to contact people who can help – and the cost of calling them from jail is even more limiting. In a 2016 opinion in a case about the proper use of phone calls in pretrial processes, Judge Jenny Rivera acknowledged the difficulty of preparing a defense while detained:

“Pretrial detention hampers a defendant’s preparation of his defense by limiting ‘his ability to gather evidence [and] contact witnesses’ during the most critical period of the proceedings…The detained suspect…lacks a similar ability [to a defendant free on bail or their own recognizance] to contact witnesses and gather evidence.”

People detained pretrial are more likely to plead guilty just to get out of jail, more likely to be convicted, and more likely to get longer sentences. Costly phone calls play a central role in this injustice by limiting how often and how long pretrial detainees can talk to their families and friends in the service of their defense. This makes it harder for defense attorneys to coordinate with family to build mitigation cases or track down witnesses. As a result, pretrial detainees often present a weaker defense than they would have if they had been able to make calls freely (or better, had not been detained in the first place).

Furthermore, on a systemic level, high phone rates from jails hurt indigent defendants by draining already-scarce resources from public defenders’ offices. As the Missouri State Public Defenders explained in a letter to the FCC, these offices pick up the tab for phone calls from clients in jail, which can add up to tens of thousands of dollars every year. In the long term, they say the cost “reduces our ability to communicate with our clients about their cases, diminishes the quality of representation we are able to provide, and thus risks denying clients their Sixth Amendment right to effective counsel.”

So jail phone companies (and jails themselves, which get kickbacks on these calls) are essentially subsidized by public defenders – and by extension, taxpayers – while public defenders are left with even fewer resources to help indigent clients. Ultimately, this, too, makes conviction more likely.

But, wait, you might ask, if you’ve been paying attention to this issue: Didn’t the government solve this problem years ago? Didn’t the FCC limit how expensive phone calls from correctional facilities could be?

Partly, yes: In 2014, the FCC set limits on rates for out-of-state calls from prisons and jails. But here too, unfortunately, people in jails get shortchanged. People in jails almost always make in-state calls, meaning that the FCC’s rate caps don’t apply to 92% of calls from jail. Instead of paying 21 cents or less per minute, as they would for out-of-state calls, people in jail calling loved ones in-state often still pay $1 per minute or more.

The cost of these calls continues to get less attention from regulators, journalists and the public than it deserves. There’s an irony in that: When poor people in jail can’t afford to make phone calls, the fairness of the justice system is distorted – and everyone pays an outsized price.









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