The law is supposed to protect consumers from exploitation, but it’s not protecting consumers in prisons and jails

When the only way to get necessities in prison is to buy them from a single retailer, exploitation is the result.

by Wanda Bertram, November 14, 2019

As John Oliver explained in a recent episode of Last Week Tonight, people in prison are consumers too: Incarcerated people must pay for basic necessities such as phone calls, soap, and medicine, to say nothing of “luxury” items such as books. But how are consumer rights and protections different for people behind bars, and what can be done to protect these consumers from exploitation?

The Hastings Race and Poverty Law Journal has just published an article by Prison Policy Initiative volunteer Stephen Raher, presenting a comprehensive survey of consumer law issues in prisons and jails. Raher will speak about his article, The Company Store and the Literally Captive Market, at this weekend’s Consumer Rights Litigation Conference, sponsored by the National Consumer Law Center. Raher’s article explains:

• How incarcerated consumers are denied basic aspects of customer care – such as refunds for shoddy products, meaningful warranties, or even the expectation that a product will be well made. (pp. 71-75)
• How prison retail companies attempt to justify the high prices they charge incarcerated customers. For instance, prison retailers often claim that high prices are necessary because of the overhead costs associated with security. But these overhead costs — to the extent that they are real–are likely canceled out by common business functions that prison retailers don’t have to spend money on, such as advertising and operating a network of brick-and-mortar stores. (p. 24)
• How prison retail companies have avoided regulation. For instance, some prison phone companies are attempting to brand themselves as “information services” companies, a class of company subject to fewer regulations and less oversight. (p. 51)
• How prisons and jails themselves exacerbate the problem. Not only have a growing number of correctional facilities shifted the costs of incarceration onto incarcerated people (for example, by making people pay for medical supplies or clothing), they also frequently garnish portions of family members’ deposits into their loved ones’ trust accounts, making it even more expensive for people on the outside to support their loved ones. (pp. 79-80)
• What sources of protection are available. Incarcerated people and their family members may have rights under existing laws like the Communications Act, the Electronic Fund Transfer Act, or state consumer-protection statutes. Some activist groups have scored major victories under these laws, but often legal action is impossible or impractical given ubiquitous arbitration clauses and class-action bans that appear in companies’ terms of service. (p. 32)

There are also detailed discussions of data breaches impacting incarcerated people (pp. 41-43), deceptive advertising practices (pp. 35-39), and the rapidly-expanding practice of utilizing computer tablets inside prisons and jails (pp. 20-22).

Historically, there was little need for consumer protection in correctional facilities because the facilities used to provide basic necessities and incarcerated people had little need to engage in commercial transactions. But as more essential goods and services — toothpaste, phone calls, socks, etc. — are accessible only via purchase, people are faced with commercial exploitation while they are incarcerated.

Unfortunately, incarcerated people are uniquely vulnerable because in many segments of American law (like telecommunications), government regulators have taken a hands-off approach under the belief that consumers will choose companies that don’t treat them unfairly, and therefore the market will self-police. This logic has no place in correctional facilities, where phone and commissary vendors enjoy monopoly powers, and consumers have one choice: submit to an unfair transaction, or go without toothpaste or a phone call with family.

The article concludes with eight concrete policy proposals that describe how state and local governments, and federal lawmakers, can take modest but meaningful steps to protect incarcerated people and their families from unfair and oppressive commercial transactions.

The article is long and detailed, so we prepared a table of contents for it with links to the individual sections:

Table of contents

1. Background p. 4
2. Surveying the Landscape of Prison Retailing p. 8
   1. End Users p. 8
   2. Payers p. 10
   3. Facilities p. 11
   4. Vendors p. 14
      1. Telecommunications p. 15
      2. Commissary p. 17
      3. Money Transmitters, Correctional Banking, and Release Cards p. 17
      4. Tablets: The New Frontier p. 20
3. Unfair Industry Practices p. 22
   1. Masquerading as Cream: Inflated Prices and Inefficient Payment Systems p. 24
   2. What Law Applies? p. 29
   3. Terms of Service: Carrying a Bad Joke Too Far p. 32
   4. Advertising, Privacy, and Consumer Psychology p. 35
   5. Data Insecurity p. 39
4. Potential Sources of Protection p. 45
   1. Telecommunications Law p. 46
      1. Technology Has Outpaced the Regulatory Framework p. 50
      2. The New Cross-Subsidies p. 52
      3. Advocacy and Activism p. 55
   2. Financial Services Law, Money Transmitters, and Prepaid Accounts p. 57
      1. Categorizing Prepayments p. 59
      2. Financial Services Law and Prison-Related Transfers p. 60
      3. Legal Issues Related to Release Cards p. 63
   3. UDAP Statutes p. 65
      1. Prices p. 67
      2. Terms and Conditions p. 69
      3. Sales of Goods p. 71
   4. Antitrust p. 74
5. Policy Recommendations p. 75
   1. State and Local Governments p. 76
      1. Reimagine Procurement Practices p. 76
      2. Foster Competition p. 77
      3. Conduct Rulemaking Proceedings to Protect Consumers p. 79
      4. Provide Protection for Trust Account Balances p. 79
      5. Develop Independent ADR Systems p. 81
   2. Federal p. 82
      1. CFPB Regulation of Correctional Banking p. 82
      2. Congressional Action p. 83
      3. Wright Petition, Post-Remand p. 84
6. Conclusion p. 85

Welcome Jenny Landon!

Welcome Jenny Landon, our new Development & Communications Associate!

by Wendy Sawyer, November 1, 2019

Please welcome our new Development & Communications Associate, Jenny Landon.

Jenny is a 2016 University of Massachusetts graduate, with a degree in Social Thought and Political Economy. She previously worked on anti-corruption campaigns as an organizer with Represent.Us. Most recently, she honed her development and communications skills at Tapestry, a local community health organization. We’re excited to grow our team’s capacity to take on more projects with Jenny’s help.

Welcome, Jenny!

Will the Postal Service ignore its most vulnerable customers?

The Prison Policy Initiative submits a comment letter calling on the USPS to stop rounding up postage costs and to remember that low-income incarcerated people are reliant on the postal service for communication.

by Peter Wagner, October 29, 2019

Today, the Prison Policy Initiative submitted a comment letter to the regulatory agency that oversees the Postal Service’s rates. The Postal Service is proposing to round the price of a first class stamp up to the nearest 5 cents.

Our objection is not to the specific rate charged, but to the policy of rounding up to the nearest nickel. We specifically objected to the Postal Services argument that the rounding is appropriate because the annual impact on the average “household” is small. In our nine-page letter, we explain:

• Why the 2.3 million people incarcerated in the U.S. are disproportionately reliant on the Postal Service for communication.
• How much mail the typical incarcerated person sends (in perhaps the first ever national estimate of how many stamps incarcerated people purchase).
• Why the Postal Service is obligated to serve all people, not just “households.”
• Just how little income incarcerated people have, and how many hours of prison labor it would take to pay for a 3 cent rate increase caused by the Postal Service’s rounding policy.
• Why it is inappropriate to propose a rule that disproportionately impacts incarcerated people — who do not have ready access to the Internet — and only allow a narrow two week comment period.

In our letter, we explain that incarcerated people and their families represent a constituency that is uniquely dependent on letter mail sent via the U.S. Postal Service. We argue that the Postal Service’s five-cent rounding policy imposes substantial negative effects on this constituency. Unless the Postal Service is willing to create a new classification to provide reduced rates for mail sent by or to an incarcerated person, the needs of incarcerated customers should be accounted for in determining how rates are calculated.

The five-cent rounding policy has already come under fire from the federal courts. In September, a federal court rejected the Postal Service’s rationale for its January 2019 rate increase to 55 cents. (The Postal Service’s data showed that a stamp should cost 52 cents in 2019, but their new rounding rule made a stamp cost 55 cents in 2019.) Unfortunately, despite the Postal Service’s loss in court, the proposal for rates in 2020 invents a new flawed rationale to justify the discredited rounding policy. (Without the rounding policy, stamp prices would probably be 52 or 53 cents in 2020.)

How race impacts who is detained pretrial

The government hasn’t collected national data on the race or ethnicity of people awaiting trial in jail since 2002. We review the academic literature published since then to offer a more current assessment of racial disparities in pretrial detention.

by Wendy Sawyer, October 9, 2019

Being jailed before trial is no small matter: It can throw a defendant’s life into disarray and make it more likely that they will plead guilty just to get out of jail.¹ As advocates bring national attention to these harms of pretrial detention, many places – most recently New Jersey, California, New York, and Colorado – have passed reforms intended to dramatically reduce pretrial populations.

But it’s not enough to simply bring pretrial populations down: Another central goal of pretrial reform must be to eliminate racial bias in decisions about who is detained pretrial and who is allowed to go free. Historically, Black and brown² defendants have been more likely to be jailed before trial than white defendants. And recent evidence from New Jersey and Kentucky shows that while some reforms have helped reduce pretrial populations, they’ve had little or no impact on reducing racial disparities.

As of 2002 (the last time the government collected this data nationally), about 29% of people in local jails were unconvicted – that is, locked up while awaiting trial or another hearing. Nearly 7 in 10 (69%) of these detainees were people of color, with Black (43%) and Hispanic (19.6%) defendants especially overrepresented compared to their share of the total U.S. population. Since then, pretrial populations have more than doubled in size, and unconvicted defendants now make up about two-thirds (65%) of jail populations nationally. With far more people exposed to the harms of pretrial detention than before, the question of racial justice in the pretrial process is an urgent one – but the lack of national data has made it hard to answer.

While pretrial jail populations have grown to make up almost two-thirds of jail populations nationally, and Black and Hispanic defendants were overrepresented in the 2002 population, no national data have been collected since then to assess how racial disparities may have changed.

So what, exactly, is the state of racial justice in pretrial detention? And how can advocates assess racial justice in their county or state? What data do they need, and where can they find it? This briefing reviews findings from recent studies of racial disparities in pretrial decisions – including both national and more geographically-limited analyses – and then suggests sources for further research to understand and address the problem.

To assess the state of racial justice in pretrial detention since the last national survey was conducted nearly 20 years ago, I reviewed more recent academic literature – studies that utilize other data sources and offer more nuanced analysis.

Overall, the available research suggests that:

• In large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial.
• Across the country, Black and brown defendants are at least 10-25% more likely than white defendants to be detained pretrial or to have to pay money bail.
• Young Black men are about 50% more likely to be detained pretrial than white defendants.
• Black and brown defendants receive bail amounts that are twice as high as bail set for white defendants – and they are less likely to be able to afford it.
• Even in states that have implemented pretrial reforms, racial disparities persist in pretrial detention.

National data is limited and outdated

Only one publicly-accessible study uses a nationally representative sample to measure pretrial detention status by race: the Survey of Inmates in Local Jails (SILJ), which was last conducted in 2002. Considering that jails and policing practices have changed significantly since 2002, an update to this dataset – now slated for 2021 – is long overdue.

Since 2002, national studies have been limited to felony cases in large urban counties. These studies are based on the Bureau of Justice Statistics’ (BJS) State Court Processing Statistics (SCPS), data which were last collected in 2009. The data include both demographic and case characteristics for each defendant, allowing researchers to control for legally-relevant factors like offense type, number of arrest charges filed, prior criminal record, and whether the defendant had failed to appear in court before. While BJS’ own publications based on this dataset (the Felony Defendants in Large Urban Counties series) do not provide a breakdown of pretrial detention by race or ethnicity, some academic researchers have used it for that purpose. (For a full list of their studies, see the appendix to this article.)

These national studies of felony cases in large counties generally conclude that the direct impact of race on pretrial decisions is weak, but that racial bias acts cumulatively to affect outcomes, and indirectly via factors like ability to pay for bond or a private attorney. McIntyre & Baradaran’s analysis of 1990-2006 SCPS data concludes that Black defendants are over 25% more likely to be held pretrial than white defendants. The most recent SCPS data, from 2009, supports that finding: Even after controlling for age, gender, and a number of conceivably legally-relevant factors (most serious charge, prior arrests, etc.), Dobbie & Yang (2019) find that over half (58%) of the 39 sampled counties had higher rates of pretrial detention for Black defendants than for white defendants. In 5 counties, the unexplained racial gap was over 20%.

More recent, but geographically-limited, studies help fill in the gaps

More recent analyses shed further light on racial justice in pretrial decision-making, even though their samples are not nationally representative. I looked at 16 of these more geographically-limited studies, with subjects ranging from federal drug cases in the Midwest to misdemeanor cases in Harris County (Houston), Texas. In all, they include samples from 11 states spread across the U.S., and major cities including New York City, San Francisco, Philadelphia, and Miami.

Of course, no single estimate of racial disparity in pretrial detention will apply to all counties nationwide. In the studies I reviewed, the racial gap in pretrial detention between Black and white defendants ranges widely, from about 10% to 80% depending on the study and jurisdiction (that is, the county or city).

However, these studies most frequently confirm that unexplained racial disparities continue to plague the pretrial process.³ Throughout the literature, researchers report that rates of pretrial detention and receiving financial conditions of release (i.e. money bail) are consistently higher for Black and Latinx defendants (and often Native American defendants, when they are included in the analysis). Bail bond amounts, too, are consistently higher for Black and brown defendants, even though they are less able to afford money bail. Rates of release on recognizance or other nonfinancial conditions of release, such as pretrial supervision, are likewise lower for Black and brown – versus white – defendants. Furthermore, the studies that included sex and age in their analysis found that young Black males face the greatest disadvantages.

Specifically, these studies report significant racial disparities, such as:

• Most of these studies find that Black and brown defendants are 10-25% more likely to be detained pretrial or to receive financial conditions of release.
• Median bond amounts, when compared, are often about $10,000 higher for Black defendants compared to white defendants. In at least one study, the median bond set for Black defendants was double the median bond set for white defendants.
• The most recent analyses of racial disparities in pretrial detention – assessing the effects of reforms in New Jersey and Kentucky – show that pretrial assessment tools have not reduced these disparities as much as advocates hoped. After New Jersey essentially ended the use of money bail for most defendants in 2017, the total pretrial population dropped significantly, but the racial composition of the pretrial jail population changed very little. And in Kentucky, the racial disparity in pretrial release rates actually worsened after the state enacted a law requiring the use of a pretrial assessment tool.

Advocates may be able to find data about their local jails

Of course, county or city jail administrators may collect and maintain data on the racial/ethnic composition of their pretrial populations. Advocates in some jurisdictions may be able to request data about their own local pretrial jail populations, which they can compare with the overall local population for a simple measure of racial disparity. Such a comparison, however, will exclude other relevant characteristics (such as seriousness of offense or past failures to appear in court) and won’t identify what stage(s) of pretrial decision-making are affected by race (such as the decision to set a money bail amount, or how high bail was set). Nevertheless, even a crude estimate of racial disparity in local pretrial detention can help advocates draw attention to the issue and raise important questions with decisionmakers.

Where to look next for more data

Jailing Black and brown pretrial defendants more often than white defendants isn’t just unfair; it also contributes to racial disparities later in the justice process. But in order to solve this problem, local advocates and policymakers need current data about who is held pretrial in their counties and states. And in order to identify broader patterns in pretrial decision-making, we need more data at the national level as well.

Until the Bureau of Justice Statistics updates its Survey of Inmates in Local Jails – which, unfortunately, is not guaranteed to happen on schedule in 2021 due to chronic underfunding – advocates and policymakers must rely on independently-produced local studies. Academic researchers (including those referenced in this briefing) have already developed models for these local studies.

In places where there appears to be little or no data published about racial disparities in the pretrial process, advocates can partner with local academic institutions or ask state Statistical Analysis Centers for assistance. Several large-scale projects led by non-governmental organizations are also actively working to assist local jurisdictions in using their data to inform policy changes that will reduce unnecessary incarceration. For example, the MacArthur Foundation’s national Safety and Justice Challenge supports initiatives in 52 jurisdictions across the U.S. to reduce the misuse and overuse of jails. And Arnold Ventures recently launched the National Partnership for Pretrial Justice, advancing a variety of pretrial justice projects across 35 states. Measures for Justice is developing a broad, publicly-accessible database of county criminal justice data; currently it offers data from 6 states, with data from 14 more states expected in 2020. And of course, community bail funds across the country have been collecting data as they bail low-income defendants out of jail – no strings attached – and reporting high success rates that underscore just how unnecessary money bail is. These kinds of resources can help local advocates and future researchers find the data they need to measure racial disparities in pretrial justice processes, and work to eliminate them.

See the Appendix for a list of all of the sources reviewed for this briefing, with links and summaries of their findings related to racial disparities in pretrial detention.

Footnotes

Since You Asked: How did the 1994 crime bill affect prison college programs?

Without federal aid, the rate of college course participation in prisons dropped by half.

by Wendy Sawyer, August 22, 2019

Journalists, policymakers, and advocates frequently ask us to answer tricky but important questions about the criminal justice system. Until now, however, many of our answers to these common questions have gone unpublished, gathering dust in our email archives. This post is the first in what we anticipate will be an ongoing “Since You Asked” series that makes our answers to these important questions public. (Want to send us your questions? Use our contact page.)

Q: How many people participated in college-in-prison programs before and after the 1994 crime bill? (And how many participate in prison education programming today?)

A: To understand the drop in college participation in prisons following the 1994 “crime bill,” it’s important to know that most in-prison college programs, unlike colleges and universities in the “free world,” largely depend on funding from the Pell Grants program and other federal aid programs. This is largely because incarcerated people are overwhelmingly poor and can neither afford college tuition nor make generous gifts as alumni.

According to a historical overview by the American Enterprise Institute (AEI), prisons “witnessed a surge in demand for college courses” after the passage of the Higher Education Act of 1965, a law that greatly expanded federal aid for college participation nationwide. By 1982, 350 college-in-prison programs enrolled almost 27,000 prisoners (9 percent of the nation’s prison population), primarily through Pell Grants. … By the early 1990s, it is estimated that 772 programs were operating in 1,287 correctional facilities across the nation.”

A 1992 amendment to the Higher Education Act made people serving life sentences without parole and those sentenced to death ineligible to receive Pell Grants. Then, the 1994 Violent Crime Control and Law Enforcement Act banned everyone incarcerated in prisons from receiving Pell aid, even though these grants made up less than 1 percent of total Pell spending. “By 1997,” the AEI briefing continues, “it is estimated that only eight college-in-prison programs existed in the United States.” The remaining programs were those that received financial and volunteer support from other sources.

According to the American Historical Association, “States followed by further blocking access to funds through regional programs.” In 2005, the New York Times Magazine wrote that there were “about a dozen” prison college-degree programs, “four of them in New York State.”

The Bureau of Justice Statistics (BJS) 2003 publication Education and Correctional Populations includes some data that reflects these changes (see Table 4). In 1991, 13.9% of people in state prisons, and 18.9% of those in federal prisons, had taken a college course since admission. By 1997, these numbers had dropped to 9.9% for people in state prisons, and 12.9% in federal prisons. The 2004 BJS Survey of Inmates in State and Federal Correctional Facilities (variable V2503) shows that the downward trend continued: In 2004, just 7.3% of respondents in state prisons had taken a college-level class since admission.

More recently, results from a 2014 study of people in prison found that 2% of respondents had completed an Associate’s degree while incarcerated, and 1% had completed a Bachelor’s degree or higher. Notably, 58% of respondents reported that they had not completed any further education while incarcerated.

But these statistics do not reflect a lack of interest in higher education among people in prison: To the contrary, 40% of respondents to the survey said that they would like to enroll in an Associate’s or Bachelor’s degree program, and an additional 29% wanted to enroll in a postsecondary certificate program. Nor are most people in prison unqualified for such programs: A recent report from the Vera Institute of Justice and Georgetown Center on Poverty and Inequality analyzed the same survey results and found that “the majority of incarcerated people are academically eligible for postsecondary-level courses.”

As we’ve previously found, educational exclusion is a strong predictor of incarceration in the U.S. But federal and state governments are far from powerless to repair the harm that results. Restoring Pell Grants to incarcerated people would make approximately 463,000 people in prison eligible for free college courses.

It’s time for the government to not only restore this critical aid, but expand it.

Momentum is building to end medical co-pays in prisons and jails

Three states have taken action in 2019 to change one of the most harmful policies in prison healthcare.

by Wanda Bertram, August 8, 2019

Prison healthcare is almost always a depressing topic, but not today, when we can report an important victory: Illinois recently became the third state in 2019 to reform the practice of charging medical co-pays to incarcerated people.

Previously, we published a state-by-state analysis showing that most prisons charge medical copays to people inside – despite the fact that their patients are impoverished and earn little to no money for their work in prisons. Using prison and free-world wage data, we calculated what each state’s co-pay would cost if it was charged to free-world patients making the minimum wage. Our analysis revealed that fourteen states charge co-pay amounts equivalent to charging minimum wage workers over $200.

Policy details and sourcing information can be found in the Appendix of our original analysis.

Charging co-pays to incarcerated people to shore up a state’s correctional budget is simply wrong. In our analysis, we explained that not only does this policy squeeze poor people and their families; it hurts public health by making the choice to seek medical attention a costly one.

We’re glad to see that states are now paying attention and taking action:

• Illinois Governor J.B. Pritzker signed a bill in July eliminating the state’s $5 co-pay. Previously, people working in an Illinois state prison (where the minimum wage is 9 cents per hour) would have had to work for over 55 hours to afford the $5 fee. That’s like charging a non-incarcerated minimum-wage earner in Illinois over $460. In some cases, incarcerated people paid even more before getting adequate care, because paying the fee didn’t guarantee a doctor visit – only that a nurse would review one’s medical request.
• Earlier this year, the California Department of Corrections and Rehabilitation announced that it would stop charging a $5 medical co-pay to incarcerated people. CDCR’s press release acknowledged what advocates have long known: Charging co-pays is bad for public health. “Copayments,” it said, “may hinder patients from seeking care for issues which, without early detection and intervention, may become exacerbated.” The department’s decision came as the California legislature was considering AB 45, a bill to eliminate medical co-pays in both state prisons and county jails. AB 45 (for which we wrote a letter of support) continues to move through the state legislature.
• The Texas legislature stopped short of eliminating medical co-pays in prisons entirely, but made progress by replacing the notorious $100 fee Texas had charged incarcerated people with a $13.55 per-visit fee. While this change marks a substantial improvement, incarcerated people in Texas – who earn nothing for their labor – will continue to be charged the highest medical co-pay in state prisons nationwide.

State reforms like these can’t come soon enough. As we noted in our 2017 analysis, out-of-reach co-pays in prisons and jails have two inevitable and dangerous consequences. First, when sick people avoid the doctor, disease is more likely to spread to others in the facility – and into the community, when people are released before being treated. Second, illnesses are likely to worsen as long as people avoid the doctor, which means more aggressive (and expensive) treatment when they can no longer go without it.

It’s welcome news that states are finally taking action to change this risky and regressive policy. Will your state be next?

Who’s helping the 1.9 million women released from prisons and jails each year?

Women make up a growing share of incarcerated populations, and they have different needs than justice-involved men. Accordingly, some prison systems have begun to implement gender-responsive policies and programs. But what happens after release?

by Wendy Sawyer, July 19, 2019

Given the dramatic growth of women’s incarceration in recent years, it’s concerning how little attention and how few resources have been directed to meeting the reentry needs of justice-involved women. After all, we know that women have different pathways to incarceration than men, and distinct needs, including the treatment of past trauma and substance use disorders, and more broadly, escaping poverty and meeting the needs of their children and families. In recognition of these differences, and in an effort to reduce the harms of incarceration and the likelihood of re-incarceration, many prison systems have begun to implement gender-responsive policies and programs. But what’s being done to help women get the support they need to rebuild their lives after release?

A handful of programs have sprung up in communities around the country to meet the needs of women returning home: some founded by formerly incarcerated women themselves, some running on shoestring budgets for years, and all underscoring the need for greater capacity to meet the demand of over 81,000 releases from prison and 1.8 million releases from jail each year.

Women make up 1 in 8 individuals released from state prisons each year, but the numbers vary widely between states. The additional 1.8 million women released from local jails annually are not shown on this map, because not all states have data available for jail releases, and in most states, a significant portion of reported releases are missing data on sex. See the table below for the available jail data.

Sources and data notes: Bureau of Justice Statistics National Corrections Reporting Program: 1991-2016, Selected Variables, Prison Releases and, for Vermont, CSAT-Prisoners Custom tables, Count of total releases. Data for all states are from 2016 except for New Mexico (2015), North Dakota (2015), and Oregon (2013).

Annual releases of women from state prisons and local jails

In 2016, about 81,000 women were released from state prisons nationwide, and women and girls accounted for at least 1.8 million releases from local jails in 2013 (the last year all jails were surveyed). While many people are released from jail within a day or so and may not need reentry support, jail releases can’t be overlooked, especially for women, who are more likely than men to be incarcerated in jails as opposed to prisons. (Moreover, jails typically provide fewer programs and services than prisons, so individuals released from jails are even less likely to have received necessary treatment or services while incarcerated than those in prison.)

Those figures mean that nationally, about 1 in 8 (13%) of all individuals released from state prisons – and more than 1 in 6 (18%) jail releases – are women. In 20 states, at least 1 in 5 (20%) individuals released from any incarceration (either prison or jail) is female. Fully half of all states release at least 1,000 women from prison annually; in Texas, it’s over 12,000 women per year.

As in other stages of the criminal justice system, most post-release policies and programs were created with the much larger male population in mind. But research makes clear that women returning home have “a significantly higher need for services than men,” and that reentry supports should be responsive to the particular needs of justice-involved women:

• Economic marginalization and poverty: As we’ve previously shown, formerly incarcerated women (especially women of color) have much higher rates of unemployment and homelessness, and are less likely to have a high school education, compared to formerly incarcerated men. These findings help explain why, in a 2012 National Institute of Justice (NIJ) study, 79% of women interviewed 30 days pre-release cited “employment, education, and life skills services” as their greatest area of need (followed closely by transition services). An earlier study (Holtfreder et al., 2004), found that poverty is the strongest predictor of recidivism among women, and “providing state‐sponsored support to address short‐term needs (e.g., housing) reduces the odds of recidivism by 83%” for poor women on probation and parole.
• Housing: A 2017 Prisoner Reentry Institute (PRI) report identified homelessness and the lack of stable housing as the biggest problem facing women in the New York City justice system, noting that 80% of women at Rikers said they needed assistance finding housing upon discharge. A 2006 California study found that 75% of formerly incarcerated women surveyed had experienced homelessness as some point, and 41% were currently homeless. Women who can’t secure safe housing may return to abusive partners or family situations for housing and financial reasons – a point echoed in interviews with paroled women in a study by Brown and Bloom.
• Trauma and gendered pathways to incarceration: The PRI report emphasizes the importance of gender-responsive and trauma-informed interventions for reducing recidivism among women. According to that report, such interventions should: provide a safe, respectful environment; promote healthy relationships; address substance use, trauma, and mental health issues; provide women with opportunities to improve their socioeconomic conditions; establish “comprehensive and collaborative” community services; and prioritize women’s empowerment.
• Family reunification: Most incarcerated women are mothers, and are frequently the primary caretakers of their children. The importance of family reunification – noted throughout the literature, by Carter et al. (2006), Brown and Bloom (2009), Wright, et al. (2012), the NIJ (2012), among others – cannot be overstated, especially given the trauma experienced by children when separated from a parent.

While the complexity of women’s reentry needs can be daunting, there are successful models in operation demonstrating how states, counties, and communities can best serve them. Notably, A New Way of Life Reentry Project operates eight houses in Los Angeles and is working toward expanding its model nationally. The program offers wraparound services including transitional housing, case management, and legal services to support women as they navigate reentry. Staff support women from initial reentry tasks like obtaining ID cards and applying for public assistance all the way through the process of regaining custody of children and finding permanent housing. Similar programs offering wraparound services exist in other cities, such as the Ladies of Hope Ministry’s Hope House in New York City; the Center for Women in Transition in St. Louis; and Angela House in Houston, which also provides programming tailored “to the health and psychosocial needs of women recovering from sexual exploitation.”

Frustratingly, despite their success, these programs lack the funding and capacity to serve all of the women who desperately need them: Angela House notes on its website that it can only serve 12 to 14 women at a time, but receives more than 300 applications every year. Unless state governments and federal agencies take action to grow the capacity of these service providers, hundreds of thousands of women every year will leave prison or jail without the resources they need to succeed. As lawmakers increasingly call for policy changes to help women in prison, they must not ignore the massive gap between the need and availability of women’s reentry programs.

A detailed spreadsheet including release data for both men and women is available on our Data Toolbox page.

Cruel and unusual punishment: When states don’t provide air conditioning in prison

13 states in the hottest parts of the country lack universal A/C in their prisons. We explain the consequences.

by Alexi Jones, June 18, 2019

Air conditioning has become nearly universal across the South over the last 30 years, with one exception: in prisons. Although 95% of households in the South use air conditioning, including 90% of households that make below $20,000 per year,¹ states around the South have refused to install air conditioning in their prisons, creating unbearable and dangerous conditions for incarcerated people.

The lack of air conditioning in Southern prisons creates unsafe—even lethal—conditions. Prolonged exposure to extreme heat can cause dehydration and heat stroke, both of which can be fatal. It can also affect people’s kidneys, liver, heart, brain, and lungs, which can lead to renal failure, heart attack, and stroke.

Many people in prison are especially susceptible to heat-related illness, as they have certain health conditions or medications that make them especially vulnerable to the heat. Conditions such as diabetes and obesity can limit people’s ability to regulate their body heat, as can high blood pressure medications and most psychotropic medications (including Zoloft, Lexapro, Prozac, Cymbalta, and more but excluding the benzodiazepines). Old age also increases risk of heat-related illness, and respiratory and cardiovascular illnesses, such as asthma, are exacerbated by heat.

In Texas, a state that has air conditioning in all inmate housing areas in only 30 of its 109 prisons, a high percentage of incarcerated people are particularly vulnerable to heat:

• 21% are prescribed psychotropic medications
• 19% are taking medication for high blood pressure
• 19% have asthma
• 7% are older than 55
• 5% have diabetes.

The structure of prisons and prison life can also make incarcerated people more vulnerable to heat. Prisons are mostly built from heat-retaining materials which can increase internal prison temperatures. Because of this, the temperatures inside prisons can often exceed outdoor temperatures. Moreover, people in prison do not have the same cooling options that people on the outside do. As Prison Legal News explains in a 2018 article on prison air conditioning litigation, “people outside of prison who experience extreme heat have options that prisoners often lack – they can take a cool shower, drink cold water, move into the shade or go to a place that is air conditioned. For prisoners, those options are generally unavailable.” Even fans can even be inaccessible. For example, despite the fact that incarcerated people in Texas are not paid for their labor, purchasing a fan from the Texas prison commissary costs an unaffordable $20.

The lack of air conditioning in prisons has already had fatal consequences. In 2011, an exceptionally hot summer in Texas, 10 incarcerated people died from heat-related illnesses during a month-long heat wave. (It’s just not incarcerated people who get sick from the heat in the state’s prisons. In August 2018, 19 prison staff and incarcerated people had to be treated for heat-related illnesses.) As David Fathi, director of the American Civil Liberties Union National Prison Project, explained to The Intercept, “Everyone understands that if you leave a child in a car on a hot day, there’s a serious risk this child could be injured or die. And that’s exactly what we’re doing when we leave prisoners locked in cells when the heat and humidity climb beyond a certain level.”

Courts in Wisconsin, Arizona, and Mississippi have ruled that incarceration in extremely hot or cold temperatures violates the Eighth Amendment. But these court cases have not had a national impact on air conditioning in prisons. As Alice Speri of The Intercept explains, “There’s no national standard for temperatures in prisons and jails, and as jurisdiction over prisons is decentralized among states and the federal system, and jurisdiction over jails is even more fragmented among thousands of local authorities across the country, fights over excessive heat in detention can only be waged facility by facility.” As a result, incarcerated people in the South are subjected to unbearable conditions that violate their basic human and constitutional rights. Benny Hernandez, an incarcerated man in Texas, describes how torturous heat gets in prisons: “It routinely feels as if one’s sitting in a convection oven being slowly cooked alive. There is no respite from the agony that the heat in Texas prisons inflicts.”

Refusing to install air conditioning is a matter not just of short-term cost savings, but of appearing tough on crime. State and local governments go to astonishing lengths to avoid installing air conditioning in prisons. In 2016, Louisiana spent over $1 million in legal bills in an attempt to avoid installing air conditioning on death row, an amount four times higher than the actual cost of installing air conditioning, according to an expert witness. Similarly, in 2014, the people of Jefferson Parish, LA only voted to build a new jail after local leaders promised there would be no air conditioning.

With air conditioning nearly universal in the South, air conditioning should not be considered a privilege or amenity, but rather a human right. States and counties that deny air conditioning to incarcerated people should understand that, far from withholding a “luxury,” they are subjecting people to cruel and unusual punishments, and even handing out death sentences.

Footnotes

When jails replace in-person visits with video, what happens when the technology fails?

As more jails ban face-to-face visits in favor of paid video chats, a growing number of people in jail are being cut off from their families when the technology breaks down.

by Sarah Watson, June 18, 2019

Jails are increasingly replacing in person visits with video calls. This high-tech fad goes against the recommendations of the American Correctional Association, the American Bar Association, and even the Department of Justice’s National Institute of Corrections. These jails ignore the many problems we’ve documented, such as high costs for families, poor quality of the systems and the loss of human contact. But there’s another liability that jails now have to consider: What happens when their shiny new technology fails?

Their vendors — who provide the systems for free in exchange for charging high rates to the families — will say that their technology is perfect. As every person who owns a computer knows, however, technology is not flawless, and these systems do fail — sometimes keeping people in jail from contacting their families for weeks at a time:

The good news is that counties are starting to take notice of the downsides to video calling. Most recently, the sheriff of Mecklenburg County, North Carolina (see table above) fulfilled a 2018 campaign promise to reinstate in-person visits, on the grounds that video should be used in addition to in person visits, not as a substitute.

“Allowing our residents to stay connected to family and loved ones through in-person visits improves public safety,” Sheriff McFadden explained. “This simple step alone has been shown to significantly lower the chances that a person will commit another crime after they get out. It also reduces the chance a person will commit an infraction inside the jail which could adversely impact their release. In addition, it improves mental health outcomes and strengthens family units and community ties.”

Mecklenburg County had the right idea. When this technology works, it should be considered a supplement to in-person visits, not a substitute; and when the technology fails, it’s useless. Instead of investing in flawed technology, jails should be looking for more ways to increase traditional methods of family contact.

Why haven’t presidential candidates proposed to end the criminalization of poverty?

The Democratic candidates are missing an opportunity to pitch sweeping criminal justice reform as an economic justice issue.

by Wanda Bertram, June 12, 2019

Multiple Democratic presidential candidates have staked their campaigns on promises to fight for economic justice and protect low-income people from ruin. So it’s mysterious and frustrating that none of these candidates have proposed to end our justice system’s criminalization of poverty – at least beyond the occasional nod to ending money bail.

These candidates are missing an opportunity. The incomes of people in U.S. prisons and local jails are overwhelmingly low, and one in two American adults has had a close relative incarcerated, meaning that a candidate who understands the criminalization of poverty could propose transformative reforms and speak to a huge number of voters. In particular, candidates are missing an opportunity to speak to Black voters, who are hit hardest by policies that punish poor people.

To be sure, many Democratic candidates have alluded to economic inequality in connection with criminal justice reform — and Bernie Sanders even uses the phrase “criminalizing poverty” on his campaign website — but I’ve seen no indication that any of the candidates can speak to either the specifics or the scale of this problem. Candidates must go beyond criticizing money bail, and promise to end the unequal treatment of poor people at every stage of the justice process:

1. End poverty-related arrests and jail bookings. Far too many Americans who can’t afford housing, drug treatment or mental health services are instead arrested on minor charges related to their homelessness or illness. Many others end up in jail because they can’t afford burdensome fines and fees. An unfortunate downstream effect is jail overcrowding, which leads counties – largely in rural areas – to spend public money on harmful jail expansion rather than social welfare.

Presidential candidates should commit to helping state and local governments shift their priorities, making it easier to support low-income people and harder to jail them:

• Equip cities and towns with universal housing, mental health services, and drug treatment, and invest in public schools and after-school programs in cash-strapped school districts.
• Whenever appropriate, redirect federal funding for county jail expansion to instead fund these critical public goods.
• Decriminalize possession and low-level sales of all drugs, and expunge the criminal records of people convicted of these offenses.
• Incentivize states to decriminalize behaviors stemming from homelessness, such as sleeping outside.
• Stop county courts from imposing fees without first considering one’s ability to pay, and incentivize states to abolish court-imposed fees and discharge all fee debt.

2. Guarantee poor people equal justice before trial. Two major injustices — pretrial detention and lack of access to counsel — ensure that low-income people are disproportionately convicted. Pretrial detention doesn’t just make defendants more likely to plead guilty; it also puts them at risk of losing their jobs and homes, and imposes huge costs on their families, before they’re ever convicted.

Candidates should promise to:

• Ensure that local public defender systems are fully funded, that they no longer charge co-pays to defendants, and that counsel is guaranteed at any hearing that could result in detention.
• Incentivize counties to drastically reduce pretrial detention by ending commercial money bail, and replacing it with release on recognizance, unsecured bonds, and other alternatives.
• Use the power of the Federal Communications Commission to regulate the cost of phone calls from jail, which can strain public defenders’ resources, not to mention those of family members.
• Subsidize county-level pretrial services to help low-income people make their court dates, such as text reminders and free childcare at court.

3. Stop forcing low-income families to subsidize the prison system. When someone goes to prison, their loved ones become their source of financial support. The financial pressure on these families grows when prisons fail to provide basic services, often driving families into debt. It shouldn’t be on relatives — disproportionately women — to pay for phone calls, medical care, nutritious food and educational resources for those behind bars, often when they’ve just lost a breadwinner.

Presidential candidates should commit to paying for incarcerated people’s needs to lift this burden on families:

• End the Medicaid exception for people in prison, and abolish all charges for doctor visits and over-the-counter medication. Ensure that all federal and state prisons offer medication-assisted opioid treatment.
• Incentivize states and counties to pay for the cost of phone calls, email, and other technologies that allow incarcerated people to stay connected to their families.
• Use the muscle of federal agencies like the Consumer Financial Protection Bureau and Federal Trade Commission to regulate the market for prison services, such as money transfer services (which currently charge families exorbitant deposit fees).
• Restore Pell Grants to incarcerated people, and fully fund in-prison programs granting high school and college degrees.
• Require state departments of correction to provide nutritious meals that meet daily caloric requirements, instead of forcing incarcerated people to supplement their meals by buying from the prison commissary.

4. Protect people from going back to prison just because they’re poor. Incarcerated people who come from under-resourced neighborhoods tend to return to those same neighborhoods after prison, now saddled with criminal records and far poorer than before.

Presidential candidates should avoid old narratives about how more surveillance, monitoring and job training are needed to “reduce recidivism” among people leaving prison. Instead, they should call the reentry process what it is: a period of extreme vulnerability that mostly affects impoverished people, and that can’t be improved without serious investments in formerly incarcerated people’s welfare. They should commit to:

• Identify the communities to which most formerly incarcerated people return, and subsidize additional low-income housing, drug treatment and mental health services in those communities.
• Help states create Departments of Reentry that connect people nearing release to permanent housing, medical care, and other resources.
• Incentivize states to pass laws expanding criminal record expungement, including automatic expungement for people convicted of minor offenses.
• End the harmful restrictions on association that prohibit formerly incarcerated people from helping each other rebuild their lives.
• Restore welfare benefits, including housing assistance, to people with criminal records.
• Urge states to abolish probation and parole fees, including fees for ankle monitors. End so-called “pay-only” probation schemes, which extract fees without providing any “services” at all.
• Incentivize states to “ban the box” on job applications, and to end restrictions on occupational licenses that lock people with criminal records out of good jobs.
• Expand federal tax benefits for businesses that hire people with criminal records.
• Incentivize states to end laws suspending driver’s licenses for non-driving offenses.

To be sure, there are many other policy changes that could help end the criminalization of poverty; this list is only a starting point. But it should be alarming that most of these policy options have gone unmentioned by any presidential candidate. Until the candidates commit to ending our criminal justice system’s abuse of poor people from arrest to release (and afterwards), their visions for economic justice won’t be complete.