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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:

 

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:

 

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.


A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data.

by Wendy Sawyer, June 6, 2019

By now, most people who pay any attention to criminal justice reform know better than to label people convicted of drug offenses “drug offenders,” a dehumanizing label that presumes that these individuals will be criminals for life. But we continue to label people “sex offenders” – implying that people convicted of sex offenses are somehow different.

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or to go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals. The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release. The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

Chart comparing 9-year rearrest rates by most serious commitment offense type. The chart shows that people released after serving sentences for rape or sexual assault are much less likely than those who served sentences for property, drug, public order, or violent crimes generally to be rearrested.

The new BJS report, unfortunately, is a good example of how our perception of sex offenses is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Every piece on recidivism should come with a warning label

Whenever we talk about recidivism, it’s important to understand that the data itself is categorically flawed.

Any time we talk about recidivism, it’s important to understand that recidivism data – which is so essential to the idea of a permanent “sex offender” – is categorically flawed. “Recidivism” suggests a relapse in behavior that leads to a return to criminal offending. As in the BJS study, this is often measured by post-release arrests (rearrest), but arrest does not suggest conviction or even actual guilt; of all recidivism measures, rearrest casts the widest net.2 Usually, these measures also don’t account for what the post-release offense is, even though common sense tells us that a post-release arrest for a liquor law violation is very different than an arrest for another sex offense. Better measures to indicate a return to criminal behavior might be reconviction or receiving a new prison sentence, but most jurisdictions don’t track all of these indicators, and certainly not with much detail.3 Finally, timeframes matter, since rearrest is much more likely soon after release, and the longer people go without reoffending, the lower their risk of ever doing so. This BJS report offers a remarkably long look-back period, but such a long period also risks correlating criminal behaviors that stem from unrelated motivations or circumstances.

For more on the myriad problems with recidivism data, see:

Framing aside, the recidivism data presented in the BJS report can offer helpful perspective on the risks posed by people after release. Whether measured as rearrest, reconviction, or return to prison, BJS found that people whose most serious commitment offense was rape or sexual assault were much less likely to reoffend after release than those who served time for other offense types. The BJS report shows that within 9 years after release:

  • Less than 67% of those who served time for rape or sexual assault were rearrested for any offense, making rearrest 20% less likely for this group than all other offense categories combined (84%). Only those who served time for homicide had a lower rate of rearrest (60%).
  • People who served sentences for sex offenses were much less likely to be rearrested for another sex offense (7.7%) than for a property (24%), drug (18.5%), or public order (59%) offense (a category which includes probation and parole violations).
  • Only half of those who served sentences for rape or sexual assault had a new arrest that led to a conviction (for any offense), compared to 69% of everyone released in 2005 (in the 29 states with data).

While the data was more limited on returns to prison,1 the study found that within 5 years after release, people who had served sentences for rape or sexual assault also had a lower return-to-prison rate (40%) compared to the overall rate for all offense types combined (55%). BJS notes that some of these returns to prison were likely for parole or probation violations, but because of data limitations, it is impossible to say how many were for new offenses, much less how many were for rape or sexual assault.

In sum, the BJS data show that people who served time for sex offenses had markedly lower recidivism rates than almost any other group. Yet the data continue to be framed in misleading ways that make it harder to rethink the various harmful and ineffective punishments imposed on people convicted of sex offenses.

The recidivism data suggest that current legal responses to people convicted of sex offenses are less about managing risk than maximizing punishment. The desire for retribution is understandable; unquestionably, rape and sexual assault inflict serious and lasting trauma. But our criminal justice system does a poor job of providing survivors of rape, sexual assault, and other violent crimes what they really want. In a 2016 survey of crime survivors, the Alliance for Safety and Justice found that, “Survivors of violent crime — including victims of the most serious crimes such as rape or murder of a family member — widely support reducing incarceration to invest in prevention and rehabilitation and strongly believe that prison does more harm than good.” But more prison time is the default response: those released after serving sentences for rape and sexual assault served longer sentences, with a median sentence of 5 years (compared to 3 years for all others combined) and over a quarter serving 10 years or more before release.

And for many people convicted of sex offenses, confinement doesn’t end when their prison sentence does. Twenty states continue to impose indefinite periods of involuntary confinement under civil commitment lawsafter individuals have completed a sentence (or, in some cases, before they are even convicted). Proponents justify the practice as “treatment,” but conditions of civil commitment are punitive and prison-like, and this confinement is hard to justify with the recidivism data we have. The likelihood of post-release arrest for another rape or sexual assault for this group is less than 2% in the first year out of prison, and after 9 years, less than 8% have been rearrested for a similar offense. Those who are released at age 40 or older are even less likely to be rearrested for another sex offense, with re-arrest rates about half those of people who are released at age 24 or younger.

After prison, a number of other special restrictions make reentry especially challenging for those who have served sentences for sex offenses, including registration, public notification, and restrictions to residence and employment. A current proposal suggests banning them from using New York City mass transit. (Even before release, some restrictions make it difficult for some people to leave prison when they would otherwise be paroled.) But these restrictions tend to cause more problems than they solve. Residence restrictions in particular have contributed to homelessness and other problems in cities where they leave little room for returning citizens. According to a 2015 U.S. Department of Justice brief, “residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support.”

In another recent academic article, Hanson et al. agree that these additional restrictions are “justified on the grounds of public protection,” even though the underlying assumptions may be wrong: “Individuals are targeted because policy-makers believe they are likely to do it again. This is a testable assumption, and, as it turns out, not entirely true.” Their analysis shows that individual recidivism risk varies widely, can be low enough to be indistinguishable from that of people convicted of non-sex offenses, and drops predictably over time. The data published by BJS track with those findings.

Collectively, the research seems fairly clear: our responses to people convicted of sex offenses do not reflect the actual – generally low – risks they present. Instead of panicking about the small portion who reoffend after release, it’s time we talk more rationally about responses that effectively support desistence from crime – and serve the actual needs of victims of violence.

Footnotes

  1. Only 23 states could provide the necessary data for the 5-year follow-up period, and only 17 could do so for the entire time frame. The BJS report only includes return-to-prison rates for the first 5 years after release in the 23 states with the necessary data.  ↩

  2. Conversely, it also only captures those behaviors that are caught by police. People who break laws after release but are never arrested would not be captured in recidivism data at all. Police presence and enforcement are therefore factors that affect recidivism statistics, as are prosecutorial decisions (for reconviction rates) and sentencing policies and practices (for reincarceration rates).  ↩

  3. While the BJS study compares overall rates of reconviction and returns to prison by most serious commitment offense, only the rearrest data allows us to compare post-release offenses by most serious commitment offense.  ↩


We analyze gender and racial disparities in traffic and street stops, including arrests, searches, and use of force that occurs during stops.

by Prison Policy Initiative, May 14, 2019

Jails have been described as the criminal justice system’s “front door,” but jail incarceration typically begins with the police, with an arrest. Before any bail hearing, pretrial detention, prosecution, or sentencing, there is contact with the police. But despite their crucial role in the process, we know less about these police encounters than other stages of the criminal justice system.

In particular, the experiences of women and girls1 – especially Black women and other women of color – are lost in the national conversation about police practices. They are also largely invisible in the the data. But as Andrea Ritchie details in Invisible No More: Police Violence Against Black Women and Women of Color, women, too, are subject to racial profiling, use of excessive force, and any number of violations of their rights and dignity by police. In fact, women make up an increasing share of arrests and report much more use of force than they did twenty years ago. Yet while increasing recognition of women as a growing share of prison and jail populations has prompted facilities to adopt gender-responsive policies and practices, women’s rising share of arrests and other police contact has received less attention and policy response.

The current study

To shed more light on how women’s experiences at the front end of the criminal justice system differ from men’s experiences, we look at both arrest data and data about women’s other contacts with police. We first look at trends in arrest data from the FBI’s Uniform Crime Reporting (UCR) Program. To complement this data, we also examine differences in other police encounters reported in the Bureau of Justice Statistics (BJS) Contacts Between Police and the Public (CPP) reports, which are based on responses to the Police-Public Contact Survey (PPCS).

Critically, the UCR Program does not require police to report arrests by both sex and race/ethnicity, so that dataset offers no way to compare arrest trends of white, Black, and Latina women to each other or to their male counterparts. The PPCS partially fills that gap by including both sex and race/ethnicity of survey respondents; however, the BJS reports based on that survey do not engage this valuable intersectional data.2 The second section of this briefing includes our analysis of the most recent PPCS survey (conducted in 2015), to finally offer a view – from nationally representative data – of how women of different races and ethnicities experience police-initiated encounters differently than each other and men.

 

Part 1: Gender differences in interactions with police

Arrests: Women make up an increasingly large share of arrests

In the past two decades, the total number of arrests in the U.S. has dropped by more than 30 percent, from 15.3 million in 1997 to 10.6 million in 2017. However, this drop was mostly due to fewer arrests of men: the number of men arrested declined by 30.4 percent in that time, while the number of women arrested declined only 6.4 percent. As men’s arrest rates have fallen women’s arrest rates have remained fairly flat. As a result, women make up an increasingly large share of all arrests; as of 2017, women accounted for 27 percent of all arrests, up from 21 percent in 1997, and just 16 percent in 1980.3

An increase in arrests of women for drug offenses helps explain why women’s arrest rates have remained steady, even as crime rates have hit historic lows and men’s arrest rates have plummeted. Of the more than 2 million arrests of women in 2017, 13.9 percent were for drug abuse violations – second only to property crimes (15.8 percent), and far more frequent than arrests for violent crimes (3.8 percent). Over the past five years – while the country has been in the throes of the opioid epidemic – drug arrests have increased 6 percent among men, but almost 25 percent among women.4

Changes in arrest patterns over 5 years, by sex

Percent change over 5 years (2013-2017)
Male Female
All arrests -8.7% -6.4%
Index violent crimes +1.8% +4.4%
Index property crimes -18.8% -24.9%
Drug abuse violations +6.1% +24.7%
Table 1. Total UCR arrests declined more dramatically among men than among women between 2013 and 2017, due in part to a much greater increase in arrests of women for drug violations. Source: Crime in the United States 2017 Table 35

 

Other police-initiated contact: Women interact with police more than arrest statistics suggest

A key finding from the Contacts Between Police and the Public series is the true scale of women’s interactions with police, which is far greater than arrest numbers alone suggest. While arrests are sometimes used as a measure of the “first stage” of involvement with the criminal justice system, many encounters between the public and police do not result in arrest. This is especially true for women, who account for a much greater share of public-police interactions than they do actual arrests.

In 2015, there were about 2.1 million arrests – but about 12 million police-initiated contacts5 – with women ages 16 and over.6 That means that for every woman arrested, five more women were approached by police, either in a traffic stop, street stop, or in the execution of an arrest warrant. All police-initiated contacts are non-voluntary encounters, which are more likely than resident-initiated contacts (e.g. calling the police for help) to lead to arrest, further justice involvement, and other negative outcomes. The 2015 survey shows that women made up almost half (44 percent) of all police-initiated contacts, 41 percent of traffic stops (in which they were the drivers), and 36 percent of street stops, compared with 27 percent of all arrests. This is a critical point when assessing the need for gender-responsive policing policies and practices: basing an analysis solely on arrests would grossly underestimate the non-voluntary interactions women have with police.7

 

Use of force: Nearly doubled for men since 1999, but more than quadrupled among women

As with women’s share of arrests, women’s share of police encounters that involve the use or threat of force has increased significantly since 1999.8 That year, women made up just 13 percent of the approximately 422,000 people who experienced use of force during a police encounter. This percentage almost doubled by 2015, when women accounted for 25 percent of all people who experienced police use of force. Moreover, the total number of people experiencing police use of force more than doubled in that time, to 985,300 in 2015. But the increase in use of force was especially dramatic among women: the number of women experiencing police use of force in 2015 was 4.5 times (353%) the number experiencing force in 1999, up from 55,181 to 250,200. Meanwhile, the number of men experiencing police use of force doubled from 366,533 in 1999 to 735,100 in 2015.

 

Traffic stops: Stops declined more for men, and women make up a larger share of those searched during stops

The 2015 survey shows another noteworthy shift in the numbers of men and women stopped by police while driving. While the percentages of both men and women experiencing traffic stops declined since 1999, women saw a smaller decline in stops than men did. In 2015, 10 percent of male drivers were stopped (down from 12.5 percent in 1999) compared with 7 percent of female drivers (down from 8.2 percent). These changes may sound small as percentages, but the decline in the rate among women actually masks a 378,000 increase in total number of traffic stops of women since 1999, while men were stopped 451,000 fewer times than in 1999.9

Women also make up a larger percentage of all people searched during traffic stops. In 1999, men who were stopped while driving were about four times as likely to be searched during the stop than women; by 2015, men were just twice as likely to be searched. The narrowing of this gap reflects a decline in searches of men; for women, the share of stops that resulted in search remained the same, at 2.3 percent. In 1999, police searched the driver or vehicle in 9.4 percent of stops of men, which amounts to over one million stops involving a search. In 2015, however, the percentage of stops involving male drivers that resulted in search or arrest dropped by half, to 4.7 percent – or over 500,000 stops. Female drivers, however, saw no change in their likelihood of search or arrest during a traffic stop.

 

Part 2: Race, Ethnicity, and Gender in Police Stops

Data from the Police-Public Contact Survey (PPCS) allow us to take a more intersectional view of women’s contact with police, going beyond gender differences to include racial and ethnic differences among men and women, too. Again, this is the only national data we are aware of that enables any intersectional analysis of civilian experiences with police, and the Bureau of Justice Statistics (BJS) does not attempt this analysis in its report on the survey’s results. That arrest data indicate racial disparities is well documented, but little is known – outside of individual stories – about how Black, Latinx, and white women experience police contact differently from each other and from their male counterparts.

Our analysis examines how race and gender, together, affect police-initiated stops, including arrests and use of force that occur during stops. It’s worth noting that police stops and arrests during these stops are relatively infrequent events, and that our findings are based on survey data from over 90,000 respondents, not the total U.S. population. That said, we find that the race, ethnicity, and gender affect policing outcomes differently depending on the context:

  • Both race and gender affect the likelihood of a traffic stop.
  • Race seems to matter more for men when it comes to street stops and more for women when it comes to arrests during a stop.
  • Racial disparities are most apparent in use of force during a police-initiated stop, with Black and Latino men experiencing use of force more often than other groups, and Black women reporting similar use of force rates to white men.

 

Traffic stops: Black women are more likely than white or Latina women to be stopped

Both race and gender affect a person’s chances of being stopped by police while driving (excluding accidents or when they were passengers). Most broadly, the PPCS data shows that women were less likely than men to be stopped, and Black drivers were more likely to be stopped than white and Latinx drivers.10 More specifically, Black women were about 17 percent more likely to be in a police-initiated traffic stop than white women, and 34 percent more likely to be stopped than Latina women. Among men, Black drivers were about 12 percent more likely than white drivers – and 17 percent more likely than Latino drivers – to be stopped.

Percentage of drivers who experienced a vehicle stop in 2015

Women White 7.1%
Black 8.3%
Latina 5.5%
Men White 9.9%
Black 11.1%
Latino 9.2%
Table 2. See the Appendix for tables that show the statistical significance of differences between Black and Latina women compared to white women and all groups compared to white men.

These estimates are not adjusted for driving behavior, however, and given reported differences in driving patterns between demographic groups, it is likely that traffic stops of Black and Latina women per mile driven could be even higher compared to other groups than the survey data suggest.11

 

Street stops: Significant racial disparities among men, but not women

In contrast to traffic stops, the survey data on police-initiated street stops only showed significant racial disparities among men – not among women. Less than one percent of white, Black, and Latina women surveyed experienced a police-initiated street stop in 2015. However, the percentage of Black men who experienced a street stop (2.2 percent) was double that of white men (1 percent). A slightly greater portion of Latino men (1.2 percent) reported experiencing a street stop than white men, but this difference was not statistically significant.

Percentage who experienced a street stop in 2015

Women White 0.7%
Black 0.7%
Latina 0.5%
Men White 1.0%
Black 2.2%
Latino 1.2%
Table 3. See the Appendix for tables that show the statistical significance of differences between Black and Latina women compared to white women and all groups compared to white men.

 

Arrests during stops: Significant racial disparities among women, but not men

Police-initiated traffic and street stops sometimes result in arrest, and the survey data show that Black women were at least as likely as white men to be arrested during a stop. White women, meanwhile, were about half as likely as white men to be arrested during a stop. Black women were arrested in 4.4 percent of police-initiated stops, which was roughly three times as often as white women (1.5 percent), and twice as often as Latinas (2.2 percent).

Among men, racial disparities in arrest-during-stop rates appear to be more related to the frequency of being stopped than the likelihood of being arrested if stopped. For women, on the other hand, racial disparities seem to be more related to what happens during the stop than whether they are stopped at all.

Percentage who were arrested during a traffic or street stop in 2015

Women White 1.5%
Black 4.4%
Latina 2.2%
Men White 2.7%
Black 3.5%
Latino 4.2%
Table 4. See the Appendix for tables that show the statistical significance of differences between Black and Latina women compared to white women and all groups compared to white men.

 

Use of force during stops: Rates of Black women similar to white men; Black and Latino men most likely to experience force

About one percent of people surveyed indicated that they had experienced force or threat of force12 during a police-initiated stop, but use of force rates were higher for Black women than white or Latina women,13 and were highest among Black and Latino men. Black women actually experienced use of force during a stop about the same rate as white men, while white women were significantly less likely to experience use of force than white men. The marked gender disparity in reported use of force that is included in the BJS report Contacts Between Police and the Public, 2015 (2.7 percent for men versus 0.9 percent for women) masks the reality that these percentages are averages of racial and ethnic groups that are experiencing force at markedly different rates.

Percentage who experienced force during a police-initiated stop

Women White 0.3%
Black 0.9%
Latina 0.32%
Men White 0.8%
Black 3.6%
Latino 2.5%
Table 5. See the Appendix for tables that show the statistical significance of differences between Black and Latina women compared to white women and all groups compared to white men.

 

Conclusion

As women become a more visible presence in our criminal justice system, it becomes increasingly urgent that we understand their experiences within it, both to better meet their needs and to enhance our analysis of how justice works (and doesn’t work) in the U.S. The policing of women, especially women of color, has received less attention than the policing of men; it’s even received less attention than the incarceration of women. Similarly, while correctional facilities are increasingly adopting gender-responsive policies and programs, there have been virtually no concerted efforts to create or implement trauma-informed or gender-responsive policing practices.

This oversight has serious consequences. Rates of sexual and physical abuse are high among justice-involved women – estimates range from half to over 90 percent – and are much higher than reported for men. Almost a third (31 percent) of women in jail have a current serious mental illness, which is over twice the rate among men in jail (14.5 percent) and over six times the rate among women in the general population (4.9 percent). With 12 million women per year experiencing police-initiated contacts – many of which involve searches, use of force, and other traumatizing experiences – it is critical that law enforcement take seriously the need for more female police officers,14 protocols, and trainings that can improve police-public interactions and reduce the harms to women.

Finally, the invisibility of Black women and other women of color in the national discourse about policing – even in the wake of high-profile tragedies like the arrest and jail death of Sandra Bland – means that the full scope of racial discrimination in policing is unknown, and certainly understated. Making policing more transparent, accountable, effective, and just will mean bringing the experiences of these women to light.

 

Data sources and methodology

Arrest data come from the FBI Uniform Crime Reporting Program (reported annually in the Crime in the United States series). Other police contact data are from the Bureau of Justice Statistics’ Police-Public Contact Survey (PPCS), most recently conducted in 2015 and published in 2018. The police contact data in Part 1 comes from the BJS reports based on the results of that survey, in the Contacts Between Police and the Public series. The analysis in Part 2 used the raw PPCS data, available from the National Archive of Criminal Justice Data (NACJD) here.

Using the PPCS data for the analysis in Part 2, respondents were coded into one of eight mutually exclusive sex-race categories: Black female, Black male, Latina (female), Latino (male), white female, white male, non-Hispanic other race female, and non-Hispanic other race male (the last two categories include multi-racial respondents, and results were not included in this report because of the small sample sizes and the disparate racial and ethnic categories they included.)

Our analysis focuses on non-voluntary, police-initiated stops. Therefore, the two types of police contacts included in the analysis were “stopped by police in public place (non-vehicle)” and “stopped by police while driving.” Types of police contacts excluded from the analysis were: “respondent in vehicle stopped by police” (i.e. not driving), “in traffic accident,” “other police stops or approaches,” “crime/non-crime emergencies,” and “seeking other help from police.”

“Arrests” in our analysis of the PPCS (in Part 2) refer to only those arrests that occurred during non-vehicle (street) stops, vehicle (traffic) stops, or either type of stop. Use of force refers to whether, during the encounter, the police officer did any of the following to the respondent: push, grab, kick, hit, spray with chemical or pepper spray, use an electroshock weapon (Taser), or point a gun at them.

We used Wald tests to determine whether there were statistically significant differences in average (mean) incidence of stops, arrests, and use of force between each sex-race category in comparison to two references categories: white women and white men. We used the weighting provided by the Bureau of Justice Statistics to approximate a nationally representative sample.

Acknowledgements: This briefing was a collaborative effort, but Wendy Sawyer served as the editor and created the graphics. We thank Public Welfare Foundation for their support of our research into the experiences of women who come into contact with the criminal justice system.

Footnotes

  1. The terms “women” and “girls” in the introductory and concluding sections of this briefing are inclusive of transgender women and girls. However, the government data we reference (both the FBI’s arrest data and the Bureau of Justice Statistics police contact data) do not address how transgender people are classified. The FBI data are reported by police agencies around the country, and therefore likely vary in terms of how transgender people are classified by different agencies. The BJS Police-Public Contact Survey (as a supplement to the National Crime Victimization Survey) asks respondents to identify as either male or female.  ↩

  2. While the public report series Contacts Between Police and the Public does not provide breakdowns by sex and race/ethnicity, this information is available in the raw data from the 2015 Police-Public Contact Series.  ↩

  3. These percentages were calculated using estimates from the Bureau of Justice Statistics Arrest Data Analysis Tool, which provides estimates by sex from 1980 to 2014 (as of May 2019).  ↩

  4. The increase in the number of drug arrests from 2013 to 2017 was also higher for women than for men: There were 54,738 more arrests of women for drug violations in 2017 than in 2013, versus an increase of 48,887 arrests of men for drug violations over the same time period. See Crime in the United States 2017 table 35 for these five-year arrest trends.  ↩

  5. Police-initiated contacts include those where police approached or stopped respondents, such as being pulled over while driving (an example of a traffic stop) or being stopped by police while in a public place (an example of a street stop). Other types of contact excluded from this analysis include resident-initiated contact (such as calling the police for help or to report a crime) and contact resulting from traffic accidents.  ↩

  6. BJS indicated in the methodology that people involved in police-initiated contacts might have been somewhat less likely to respond to the survey than those without police-initiated contacts, which may underestimate this contact.  ↩

  7. Since women’s share of police-initiated stops has remained fairly flat since 1999 but their share of arrests has increased, we looked into whether those stops are more likely to result in arrest than they were twenty years ago. We calculated the ratio of arrests to people experiencing police-initiated contact for both women and men age 16 or older in 1999 and 2015, and found that while that ratio has fallen for both sexes, it’s decreased more dramatically for men. In 1999, among men, there were 0.69 arrests for each man whose only police contact that year was police-initiated; among women, there was 0.24 arrests for each woman who only experienced police-initiated contact. By 2015, the ratio among men had fallen by 60 percent to 0.28 arrests for each man with any police-initiated contact, but the ratio for women fell by only 29 percent to 0.17 arrest per woman with police-initiated contact. (Methodology notes: The measures are slightly different in these two surveys, with the 1999 measure being “police initiated contact was only contact” and the 2015 measure including any police-initiated contact during the year. We calculated the ratios using data from the 1999 Contacts Between Police and the Public spreadsheet cpp99f2.csv, estimates of women and men experiencing any contact with police in table 1 of the 1999 Contacts report, Table 1 in the 2015 Contacts report, the BJS Arrest Tool for 1999 arrest estimates, and Crime in the United States 2015 tables 39 and 40.)  ↩

  8. 1999 is the first year BJS published a Contacts Between Police and the Public report that is comparable to later reports. A pilot test of the PPCS was conducted in 1996 but it used a smaller sample size and a less detailed set of questions. We did not attempt to compare those results to later years.  ↩

  9. BJS estimates that there were more women drivers in 2015, which would explain the increase in the total number of stops of women drivers.  ↩

  10. It should also be noted that the survey uses U.S. Census definitions of race and ethnicity: Black, Latinx, and white are mutually exclusive categories.  ↩

  11. The U.S. Department of Labor data indicate that car ownership varies by race and ethnicity, with 90 percent of white, 74 percent of African-American and 83 percent of Latinx households owning at least one car in 2015. In addition, a National Highway Traffic Safety report indicates that, on average, men drive a third more miles per year than women (13,393 miles versus 8,854 in 2017), and that higher incomes are associated with more driving. Therefore, analyzing vehicle stops on a per-mile basis could show very different patterns. For example, if Black and Latina women drive the fewest miles due to factors of race, gender and income, their vehicle stops per mile driven could be significantly higher compared to other groups than the PPCS data suggest.  ↩

  12. Use of force was defined as a push/grab/hit/kick, use of pepper spray or electroshock weapon (Taser) or having a gun pointed at them. The BJS Contacts report included handcuffing, but because that can be standard protocol during arrests, it was not included here.  ↩

  13. 0.8 percent of Black women surveyed reported use or threat of force during a police-initiated stop, compared to 0.3 percent of white women and 0.32 percent of Latina women. However, this difference was not statistically significant.  ↩

  14. Female police officers are less likely to use excessive force and their share of law enforcement officers has barely moved from 10.7 percent in 1999 to 12.5 percent in 2017.  ↩

 

Appendix

Appendix Table 1 provides the data behind the graph titled “Women experiencing police use of force rose dramatically between 1999 and 2015.”

Use of force has increased overall, but most dramatically among women
1999 1999 2015 2015 1999 to 2015
Percentage of all people who experienced use of force during a police encounter Estimated number of people that experienced use of force during a police encounter Percentage of all people who experienced force during a police encounter Estimated number of people experienced use of force during a police encounter Percent increase in number of people experiencing police use of force
Men 87% 366,533 75% 735,100 100%
Women 13% 55,181 25% 250,200 353%
Total 100% 421,714 100% 985,300 137%
Appendix Table 1.

Expanded tables from Part 2

Reading these tables: There are two reference groups for looking at whether differences are statistically significant. First, we look at whether the differences in contact for Black and Latina women compared to white women are statistically significant. We then look at all sex-race groups compared to white men. The level of statistical significance is indicated for each difference, for example, “p<0.1%" indicates that a difference is statistically significant at the 90% confidence level. Where there isn’t a comparison made (for example, white women are not compared to themselves), the cell is marked with “--” and when there is no statistically significant difference between groups, this is indicated simply with “No.”

Percentage of drivers who experienced a vehicle stop in 2015
Percentage who experienced a vehicle stop Is difference from white women statistically significant? Is difference from white men statistically significant?
Women White 7.1% Yes (p<.01)
Black 8.3% Yes (p<.05) Yes (p<.01)
Latina 5.5% Yes (p<.01) Yes (p<.01)
Men White 9.9%
Black 11.1% Yes (p<.1)
Latino 9.2% No
Appendix Table 2.
Percentage who experienced a street stop in 2015
Percentage who experienced a street stop Is difference from white women statistically significant? Is difference from white men statistically significant?
Women White 0.7% N/A Yes (p<.01)
Black 0.7% No Yes (p<.1)
Latina 0.5% No Yes (p<.01)
Men White 1.0%
Black 2.2% Yes (p<.01)
Latino 1.2% No
Appendix Table 3.
Percentage who were arrested during a stop in 2015
Percentage who were arrested during a stop Is difference from white women statistically significant? Is difference from white men statistically significant?
Women White 1.5% Yes (p<.01)
Black 4.4% Yes (p<.05) No
Latina 2.2% No No
Men White 2.7%
Black 3.5% No
Latino 4.2% No
Appendix Table 4.
Percentage who experienced force during a police-initiated stop in 2015
Percentage who experienced force during a stop Is difference from white women statistically significant? Is difference from white men statistically significant?
Women White 0.3% Yes (p<.05)
Black 0.9% No No
Latina 0.32% No No
Men White 0.8%
Black 3.6% Yes (p<.01)
Latino 2.5% Yes (p<.05)
Appendix Table 5.

All too often, proposals to expand local jails receive no pushback or critical attention. A new report helps counties think twice.

May 6, 2019

Easthampton, Mass. – A new Prison Policy Initiative report gives cities and counties a long-needed tool for fighting mass incarceration: a guide to preventing unnecessary jail expansion. The report, Does our county really need a bigger jail?, lays out 33 questions that local decision-makers should ask in evaluating proposals for new or bigger jails.

“It’s very common today for jails to be overcrowded, because the number of people in jails nationwide has tripled in the last 30 years,” said report author Alexi Jones. “But in too many counties, jail growth is rooted in known policy failures like an overreliance on money bail. Local policymakers owe it to their constituents to find out if there is a better fix to overcrowding than just building a new or bigger jail.”

The report’s 33 questions for policymakers include:

  • On a typical day, how many people are confined in the existing jail who have not been convicted?
  • How many people in the county are incarcerated because they cannot afford to pay fines and fees?
  • What specialized “diversion” courts and treatment programs is the county using to divert people struggling with substance use and mental illness into more effective treatments than jail?
  • Do official cost estimates for building new jail space include not only the cost of construction, but the cost of debt service on the loan, annual operation costs, and collateral costs such as adverse impacts on public health?
Graph showing growth in the number of people who have served 10 or more years in prison

“Building new jail space typically costs tens of millions of dollars or more, even as other options that are both more cost-effective and more compassionate are ignored,” said Jones. “If policymakers can’t answer these questions about why more jail space is necessary, they should not be undertaking jail expansion.”

For all 33 questions, the report also offers a set of alternatives and best practices, including:

  • Releasing more pretrial defendants on their own recognizance, and investing in pretrial services to help them make their court dates;
  • Requiring judges to set fines and fees based on a defendant’s ability to pay;
  • Investing in specialized “problem-solving” courts for people with mental health or substance use disorders that serve as true alternatives to jail time.

The report’s recommendations are accompanied by helpful graphics, as well as examples of local and state governments successfully implementing alternatives to jail expansion. “We know that the answer to mass incarceration begins at the local level,” said Jones. “That’s why it’s critical to help cities and counties think beyond jail expansion when it comes to improving public safety.”


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% 13.4% 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%

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.”


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

This article was updated on December 3, 2019 with details about West Virginia’s prison tablet contract.

Nine 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? Example of service charges on 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. A digital music subscription costs $19.99 per month.
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. A subscription to NewsStand, an app that allows one to read the news, costs $5.95 per month.
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. Sending an email requires paid “stamps” starting at $0.35 (emails can require several stamps, depending on length).
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. A 14-day digital music subscription costs $14.99, including a $9 “infrastructure charge.”
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.
A 30-day subscription to “unlimited podcasts” costs $9.99.
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. Reading e-books, sending messages, or accessing music, movies, or games costs $0.05 per minute.
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. Sending more than 10 electronic messages per month costs between $10 and $50, depending on the number of messages one wishes to send.
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. Sending electronic messages costs $0.25 per message.
West Virginia DCR and GTL October 2019 Yes, the WVDCR receives a 5% commission on all gross revenue. Yes. GTL 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, but contract states that GTL “will in no way be responsible, or liable for…the safety, efficacy, or use of the tablets…Tablets are provided ‘as is’ without warranty of any kind.” Reading e-books, sending messages, or accessing music, movies, or games costs $0.05 per minute.

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 2,000 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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