Since you asked: Can correctional facilities negotiate phone contracts that prohibit deposit fees? (Yes! Many do.)

We review the evidence and find 15 states that said no to unnecessary fees. Who will be next?

by Peter Wagner, November 20, 2020

The high cost of calling home from prisons and jails rightly gets a lot of attention in the press, but the industry’s practice of tacking on hidden fees is getting an increasing amount of attention from regulators and the savviest correctional facilities. These fees can be called by a variety of different names and can add up to significant costs to the families of people in prison. The problem got so bad that the companies were potentially making more from fees than from selling their product — phone calls.

The good news is that in 2015, the Federal Communications Commission prohibited or capped many of the fees that companies can charge consumers to open, have, fund or close an account. Most notably, the FCC capped the amount that can be charged for an “automated payment” i.e., to make a credit card deposit via the internet or a telephone keypad, at $3. At the time that the FCC capped those fees, some prison phone providers were charging fees as high as $9.50 to make a deposit, despite the fact that most companies in most other industries would be so thrilled to have customers pre-pay for services that they wouldn’t charge a fee at all.

The even better news is that some correctional systems are standing up for the low-income families that pay for these calls by pushing back against some of these unnecessary fees. We found that 15 state prison systems and at least one county jail¹ have eliminated automated payment/deposit fees entirely.

State prison systems where there is no credit card fee to make deposits to prepaid accounts, October 2020

Our survey looked only at the results of these contracts, but it seems clear from the available information that this outcome was the result of savvy negotiating by the facilities and not the generosity of the providers. How these contracts came to be is not always readily or publicly available, but we discovered enough evidence from the small number of readily available records to conclude that most or all of these 15 states sought out this result. For example, the original Requests for Proposals in Indiana and New Jersey said that the states would not accept bids that included deposit fees. And while we did not have access to Oregon’s original advertisement, the contract includes a prohibition on charging fees.

In sum, if states want to prohibit their phone companies from sticking their hands into consumer’s pockets with unnecessary fees, they can do so. Fifteen of them already have.

Releasing people pretrial doesn’t harm public safety

When these states, cities, and counties began releasing more people pretrial, there were no corresponding waves in crime.

by Tiana Herring, November 17, 2020

This report has been updated with a new version for 2023.

As COVID-19 makes jails more dangerous than ever, people are looking closer at policies and programs that keep people out of jail and in their homes pretrial. Criminal justice reformers have long supported such measures, but opponents — including district attorneys, police departments, and the commercial bail industry — often claim pretrial reform puts community safety at risk. We put these claims to the test.

We found four states, as well as nine cities and counties, where there is existing data on public safety from before and after the adoption of pretrial reforms. All but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms. The one exception is New York State, where the reform law existed for just a few months before it was largely rolled back.

Below, we describe the reforms implemented in each of these 13 jurisdictions, the effect these reforms had on the pretrial population (if available), and the effect on public safety. We find that whether the jurisdictions eliminated money bail for some or all charges, began using a validated risk assessment tool, introduced services to remind people of upcoming court dates, or implemented some combination of these policies, the results were the same: Releasing people pretrial did not negatively impact public safety.

About 75% of people held by jails are legally innocent and awaiting trial, often because they are too poor to make bail. The overall jail population hasn’t always been so heavily dominated by pretrial detainees. As we’ve previously reported, increased arrests and a growing reliance on money bail over the last three decades have contributed to a significant rise in pretrial detention. And just three days of pretrial detention can have detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing.

In this analysis, public safety is measured through the narrow lens of crime rates. But pretrial reforms promote other types of safety that are more difficult to measure, such as the safety of individuals who can remain at home instead of in a jail cell, children who are able to stay in their parents’ care, and community members who are spared the health risks (including, currently, the increased risk of COVID-19 exposure) that come from jail churn. (Furthermore, research has found that pretrial detention can actually increase the odds of future offending, which is clearly counterproductive from a crime rate-defined public safety standpoint.)

States and counties can and should build on these pretrial reforms. More progress can be made to continue reducing the number of people held pretrial, and address concerns such as racial bias inherent in pretrial risk assessment tools.¹ But the data is clear: When it comes to public safety, these reforms are a step in the right direction.

State level reforms

• New Jersey
  • Reform: In 2017, the New Jersey legislature passed a law implementing a risk-informed approach to pretrial release and virtually eliminated the use of cash bail.
  • Impact: The pretrial population decreased 50% from 2015 to 2018. By 2019, the overall jail population declined 45%.
  • Public safety: Violent crimes decreased by 16% from 2016 to 2018. There was a negligible difference in the number of people arrested while on pretrial release.

• New Mexico
  • Reform: A 2016 voter-approved constitutional amendment prohibits judges from imposing bail amounts that people cannot afford, enables the release of many low-risk defendants without bond, and allows defendants to request relief from the requirement to post bond. (The Eighth Amendment already forbids excessive bail, but in practice, bail is regularly set at unaffordable levels in courts around the country.)
  • The impact of this reform on the jail population isn’t known.
  • Public safety: State-wide crime rates have declined since the reforms took effect in mid-2017. Furthermore, the safety rate, or the number of people released pretrial who are not charged with committing a new crime, increased from 74% to 83.2% after the reforms took effect.

• Kentucky
  • Reform: Kentucky began using a validated pretrial risk assessment tool in 2013. In 2017, the state began allowing release of low-risk defendants without seeing a judge. In addition, a statewide pretrial services agency is required to make a release recommendation within 24 hours of arrest, and reminds people of upcoming court dates via automated texts and calls.
  • Impact: Judges have released more people on their own recognizance since 2013.
  • Public safety: The new criminal activity rate, which measures the rate at which people commit new crimes while awaiting trial, has not changed.

• New York
  • Reform: A law that went into effect on January 1, 2020 eliminated the use of money bail and pretrial detention for most misdemeanors and many nonviolent felony cases. It also prohibited judges from considering public safety in their release decisions. But on April 3, the bail reform was amended, scaling back some of the changes. The new law, which took effect on July 1, expanded the list of charges for which bail can be set and gave judges more discretion in setting conditions of release.
  • Impact: The pretrial population declined 45% from April 2019 to March 2020. It is estimated that the April reform will result in an increase in the jail population, though it will likely still be lower than if no reforms were instituted at all.
  • Public safety: The NYPD asserted in March 2020 that the original bail reform measures were a “significant reason” for increased arrests in six crime categories from February 2019 to February 2020. However, researchers from Human Rights Watch argued that the reforms had not been in place long enough to pinpoint them as the driving force behind a rise in crime, and accused prosecutors, police, and bail bond agents of spreading “sensational stories and misleading statistics” to kill the reforms. Ultimately, New York’s short implementation period (just three months) and the absence of more complete data make the original reform’s impact on public safety unclear.

County and city level reforms

• San Francisco, Calif.
  • Reform: Following collaboration between various judicial and public safety departments, the city has used a validated risk assessment tool since 2016. The San Francisco Pretrial Diversion Project also helps by offering alternatives to fines, dismissals of charges for “first time misdemeanor offenders” who complete treatment plans, and other forms of support for people navigating the system. In 2020, the District Attorney announced his office would no longer ask for cash bail.
  • Impact: The jail population has decreased by an average of 47%.
  • Public safety: The city’s new criminal activity rate, which measures the rate at which people commit new crimes while awaiting trial, is 10%. This puts it on par with Washington, D.C. which is often used as a model of pretrial reform success.

• Washington, D.C.
  • Reform: The District’s Pretrial Services Agency has used a risk assessment tool since the agency was created by Congress in 1967, but their reforms go much further: Judges cannot set money bail that results in someone’s pretrial detention, there are limits to the amount of time people can spend in jail after their arrest, and the Pretrial Services Agency can connect people to employment, housing, and general social services resources.
  • Impact: Over 90% of arrestees are released without a financial bond.
  • Public safety: In FY 2019, 87% of people were not rearrested when released pretrial, and 99% weren’t rearrested for a violent crime.

• Philadelphia, Pa.
  • Reform: In 2018, the District Attorney’s office stopped seeking money bail for some misdemeanors and nonviolent felonies, which made up the majority of all cases.
  • Impact: 90% of people facing misdemeanor charges were released without bail.
  • Public safety: Researchers found no difference in recidivism after the reforms.

• Santa Clara County, Calif.
  • Reform: Santa Clara courts began using a validated risk assessment in 2012, and their pretrial services agency sends court date reminders to those released pretrial. In addition, community organizations such as a churches partner with individuals to remind them of court dates, provide transportation, and offer other assistance.
  • Impact: The number of people released without cash bail increased 45% after the reforms.
  • Public safety: 99% of people released were not rearrested.

• Cook County, Ill.
  • Reform: As of 2017, judges must consider what people can afford when setting bail amounts.
  • Impact: The pretrial population has declined by about 16%. The percentage of people released without cash bail has doubled, and the increase was most dramatic for Black people.
  • Public safety: The number of overall crimes and violent crimes have continued to decline. The vast majority (99.4%) of people who were released pretrial between October 2017 and December 2018 were not charged with any new violent offenses, and 83% remained charge-free while their cases were pending.

• Yakima County, Wash.
  • Reform: Yakima County began using a validated risk assessment tool in 2015, at the recommendation of local judicial and public safety stakeholders. The county also implemented a pretrial services program that offers services like helping people obtain mental health or drug treatment and sending automatic court date reminders.
  • Impact: After one year, pretrial detention rates decreased from 47% to 27%, and racial disparities decreased.
  • Public safety: After pretrial services were instituted, the reoffense rate declined by 20%.

• New Orleans, La.
  • Reform: A 2017 ordinance passed by the city council virtually eliminated money bail for people arrested on municipal offenses. Since then, the city has implemented a risk assessment tool and releases some low-risk arrestees without bail.
  • Impact: There was a 337% increase in the number of arrestees released without bail from 2009 to 2019 (1.9% to 8.3%).
  • Public safety: A subsequent crime analysis found that defendants released without paying bail were no more likely to be rearrested than those who paid bail.

• Harris County, Texas
  • Reform: Since 2019, the majority of misdemeanor defendants automatically qualify for jail release on no-cash bonds.
  • Impact: While it’s unclear how much the pretrial population has decreased, the gap between the number of white and Black defendants who are detained pretrial has narrowed.
  • Public safety: Rearrest rates did not increase after the reforms were implemented.

• Jefferson County, Colo.
  • Reform: Following a pretrial reform pilot study, Jefferson County eliminated its money bail schedule and began using a risk assessment tool in 2010.
  • The impact of this reform on the jail population isn’t known.
  • Public safety: People released without money bail were slightly less likely to have a new arrest or filing than those released on money bail.

For more information on pretrial detention, see our reports on jail growth and the ways money bail perpetuates cycles of poverty.

The promise — and peril — of Biden’s criminal justice reform platform

We discuss Biden's plans for clemency, reentry support, drug courts, and juvenile justice reform.

by Wanda Bertram, November 13, 2020

During his campaign, President-elect Joe Biden released a long criminal justice reform platform with many laudable goals, and he is now in a position to begin translating those goals into policy. Of course, Biden won’t be president until late January, but his hard work of preparing to govern begins now.

As he prepares to take office, it’s important to be aware that the success of some of Biden’s criminal justice goals will hinge on how he implements them. It is all too easy for lawmakers to apply their energy for criminal justice reform in ways that will fail to make a dent or that actually reinforce mass incarceration. For example, Biden has proposed to:

1. Use the president’s clemency power to release people convicted of nonviolent drug crimes. A president willing to use clemency in a broad, sweeping manner could significantly reduce the federal prison population — without needing to consult Congress. But if President-elect Biden spends too much time reviewing clemency applications to avoid all possible risk, it’s unlikely that he will make a big impact. To understand why, recall President Obama’s record on clemency: Obama created a bold clemency initiative, but also created unnecessary layers of administrative oversight that led to most applications being denied or “set aside.” In 2016, we wrote about the more efficient ways that a president can use the power of clemency.
2. End all incarceration for drug use alone, and instead divert individuals to drug courts and treatment. Almost half of all people in federal prisons are there for drug offenses. But sending more people to drug courts — alternative courts that mix supervision with treatment — actually runs contrary to Biden’s goal of ending incarceration for drug use. Why? Because drug courts are still overseen by judges, who frequently throw people back in jail for failing to keep up with stringent requirements. Moreover, prison sentences for people convicted of drug possession are typically not long to begin with. As a result, the Drug Policy Alliance found, drug courts don’t significantly reduce incarceration. To end incarceration for drug use, focus on reducing drug possession enforcement overall – not just modifying the way drug users are punished.
3. “End the school to prison pipeline” by doubling the number of mental health professionals in schools. The school to prison pipeline is a national disgrace, but its roots go far beyond a shortage of counselors in schools. High arrest rates in schools have also been linked with high-stakes testing regimes, overworked teachers, and the presence of police officers in schools (often called “School Resource Officers”). In fact, schools that retain police officers on campus have arrest rates 5 times higher than schools without those officers. If a Biden administration funds new mental health programs to reduce arrests in schools, it should pair this funding with general support for cash-strapped classrooms — and a reduction in the number of School Resource Officers — to see real results.
4. Ensure that people leaving prison have housing, by expanding funding for halfway houses. Biden is correct to prioritize housing for formerly incarcerated people to increase health and safety. But halfway houses (as we explained in our guide to understanding them) are nothing like normal housing. They are a step down from prison, and most residents are required to be there as a condition of their parole. Halfway houses have staff who control when residents can come and go, and they are often run by the same private prison companies that Biden wants to purge from the criminal justice system. A halfway house is not a housing plan for someone leaving prison. To guarantee that formerly incarcerated people have stable homes, the government should invest in voluntary transitional housing, affordable housing in gentrifying areas, and permanent housing for the homeless.
5. Use grants to encourage states to place “non-violent” youth in community-based alternatives to prison. This proposal is one of a number of programs in Biden’s plan that applies to “non-violent offenders” only. But the labels “violent” and “non-violent” are nebulous ones, imposed by the criminal justice system, and conceal important parts of every individual’s personal history. Especially for youth, there is no need to means-test criminal justice reform by automatically excluding anyone with the “violent” label in their paperwork. As we explained in Youth Confinement: The Whole Pie, community-based consequences are more effective than incarceration for youth charged with all kinds of offenses, including violent ones.

As we keep our eyes on the Biden administration’s action on criminal justice reform, it’s important to remember that state prisons and local jails incarcerate vastly more people than federal facilities do. Local and state lawmakers don’t need to wait for the White House to make much-needed law and policy changes.

But the president still has a great deal of power — through executive orders, cabinet appointments, policy guidance, and the bully pulpit — to reshape the criminal justice system. In fact, the legacies of past presidents (such as the Clinton administration) are clearer than ever right now as crowded prisons enable COVID-19 to spread like wildfire. The Biden administration needs to get to work immediately to prevent more COVID-19 deaths behind bars, reduce the prison population, and help people leaving prison reenter society safely, and it’s important that the administration allocate its energy in the right places. There is no time to waste.

Prison Policy Initiative asked California Public Utilities Commission to cap the cost of calling home from California jails

by Peter Wagner, November 10, 2020

Yesterday, the Prison Policy Initiative filed comments before the California Public Utility Commission, calling for it to reduce the cost of calling home from California prisons and jails. Our comments included a comprehensive survey of the phone rates in each county.

In 2015, the Federal Communications Commission capped the cost of interstate calls at 21¢ per minute and is currently accepting comments on a proposal to lower that cap further still. However, FCC rate caps only apply to calls that cross states lines. But most calls do not cross state lines and those calls can cost far more — up to 90¢ per minute. For now, it is up to individual states to set rate caps for calls that stay within a state, so the California Public Utility Commission announced on October 19 that it was requesting comments on whether and how it should begin to regulate the industry.

Our comments review the cost of in-state calls from California facilities, as well as the too-high cost of video calls from California facilities. Our comments also addressed two other harmful practices: the prevalence of vendors bundling the phone and video services together into one complicated exploitative contract; and evidence showing that some vendors are charging more than the maximum $3 deposit fees authorized by the Federal Communications Commission.

The Utilities Commission will be accepting reply comments on November 19 and holding a pre-hearing conference on December 10. The Utilities Commission expects to have a proposed decision in the spring or summer of 2021. All of the documents filed in this rulemaking are available in Docket 20-10-002.

Since you asked: What role does drug enforcement play in the rising incarceration of women?

Women are being jailed at higher rates than ever. We explore whether drug arrests and substance abuse could be having an impact.

by Tiana Herring, November 10, 2020

After skyrocketing for decades, overall incarceration rates have finally been on a slow decline since 2008. But a closer look at the data reveals a major exception: women. From 2009 to 2018, the number of women in city and county jails increased by 23% — a rise that effectively cancelled out more than 40% of the simultaneous 7.5% decrease in the men’s jail population. Meanwhile, reductions in state and federal prison populations have mostly affected men.

Women make up about 10% of people in jails and prisons. This means that patterns unique to women’s incarceration are easily obscured when we focus exclusively on the larger, overall incarcerated population. And when we overlook incarcerated women as a unique group, we also fail to address the additional challenges they face — including different health care needs and a greater likelihood of being a primary caretaker of young children — that make their growing numbers all the more alarming.

Since public health research shows that women are also affected in unique ways by the opioid crisis, we decided to see whether drug enforcement trends and substance abuse could be contributing to the rising number of women behind bars.

Increased drug arrests for women

Over the past 35 years, total arrests have risen 25% for women, while decreasing 33% for men. The increase among women is largely driven by drugs: During that period, drug related arrests increased nearly 216% for women, compared to 48% for men.¹

Changes in policing in the 1990s contributed to this rise. The shift toward “broken windows” policing — or arresting people for minor offenses to supposedly prevent major crime — resulted in increased arrests for both men and women. But these policies particularly affected women, who are more likely to be involved in relatively minor drug crimes like simple possession than higher-level drug offenses.

More than a quarter of women in jail are held for drug crimes, which holds true for both convicted and unconvicted women. (Another 32 percent are held for property offenses, which are often linked to drug dependence and abuse.) In state prisons as well, the share of women incarcerated for drug and property crimes is greater than for their male counterparts.²

Where are the increases in women’s incarceration happening?

We looked to see if the increase in women’s incarceration was driven by rising arrests in rural areas, where the opioid crisis has hit particularly hard. But we found that women’s drug arrests were actually up in all county types over the last decade (by 25% in rural, 23% in urban, and 26% in suburban counties).

We also checked to see if there was a significant change in white women’s incarceration, since the current³ opioid epidemic is widely viewed as a white issue. Here we did find a relevant trend: Although prison and jail incarceration rates remain higher for Black and Hispanic women than for white women, incarceration is particularly on the rise among white women. From 2010 to 2019, overall prison incarceration rates for white women increased by 2% — while simultaneously decreasing for white men, Black men, Hispanic men, Black women, and Hispanic women. When we look back a decade further, which captures the beginning of the prescription drug crisis, the gender disparity in growth was even greater: Incarceration rates increased 38% for white women and 28% for Hispanic women from 2000 to 2010, compared to 2% and 3% for white and Hispanic men, respectively.

We also found that growth in women’s incarceration is primarily happening at the jail level. Unlike incarcerated men, incarcerated women are more likely to be in county or city jails than in state or federal prison. Most of these jailed women (60%) have not been convicted of a crime and are being held pretrial, often because they cannot afford bail. This isn’t surprising when you consider that most women held on bond have incomes that fall below the poverty line.

Trends in addiction among women

Knowing that drug arrests are on the rise, we looked to see if addiction is increasing among women, particularly opioid abuse. We found that although women and men are equally likely to develop a substance use disorder, 57% of those misusing opioids are women. The health toll is enormous: Women entered emergency rooms due to painkiller misuse an average of once every three minutes in 2010. Women’s rising opioid use is also reflected in an almost 600% increase in opioid overdose deaths from 1999 to 2016, compared to a 312% increase for men over the same time frame.

Researchers find that women may be more likely to receive opioid prescriptions due to a variety of factors: Women are more likely to seek out health care, go to the doctor regularly, and report experiencing pain, including chronic pain. Health care providers are also more likely to miss signs of addiction in women. (Disparate access to health care may also contribute to the rise in the incarceration of white women specifically. White people, who have higher rates of access to health insurance and physicians, were more likely to become addicted to prescription drugs like OxyContin than Black and Hispanic people.)

Drug dependence is also more pronounced among incarcerated women than incarcerated men. The most recent data available show that in 2009, around 70% of women serving sentences in prisons and jails struggled with drug abuse and dependence.⁴ And from 2004 to 2009, drug abuse and dependence among women in state prisons grew at twice the rate of men.

Additional challenges for incarcerated women

The growing number of incarcerated women face unique challenges that prisons and jails aren’t equipped to address. Incarcerated women are more likely to have a history of abuse, trauma, and mental health problems than incarcerated men.⁵ One-third of women in jails, for example, report experiencing serious psychological distress in the past 30 days. Women may also have additional health considerations, including pregnancy and reproductive health concerns.

Incarceration also has devastating effects on the families of incarcerated women. The majority of women in prisons and jails are mothers to minor children, and most incarcerated mothers were their children’s primary caretaker before their incarceration. The trauma of having a parent incarcerated leaves lasting negative impacts on children, and parental incarceration can cause financial instability for families.

For the sake of incarcerated women and their families, more needs to be done to understand the continued rise in women’s incarceration — and to make sure reforms impact women as well as men.