Consumer Financial Protection Bureau housekeeping risks release card protections

We urge the CFPB to keep release cards in mind when revising regulations so they don't unintentionally undermine their own reforms.

by Stephen Raher, August 15, 2017

Yesterday we filed comments with the Consumer Financial Protection Bureau to point out how their recently proposed amendments would inadvertently impact their regulation of financially abusive “release cards.” Release cards are prepaid debit cards that prisons and jails use (instead of checks or cash) to refund money that is owed to someone upon their release from custody (for example, accumulated wages from a prison job, or money that a person had in their possession at the time of arrest). Such cards usually cost the correctional facility nothing, but the issuing financial institution makes money by charging numerous excessive fees to the cardholder.

In 2015, the CFPB conducted a rulemaking to create greater protections for all types of prepaid cards. Prison Policy Initiative submitted comments asking the CFPB to prevent correctional facilities from forcing someone to accept a release payment in the form of a prepaid card. Although the CFPB did not adopt this recommendation, it did issue a comprehensive new rule in 2016, and in the process clarified that release cards are covered by many other consumer-protection provisions of that rule.

In June of this year, the CFPB proposed some housekeeping amendments to the 2016 rule. Although these changes are well-intentioned, we spotted some loopholes that could have unintended adverse impacts on release-card recipients. For example, the 2016 rule requires card companies to provide protections for people whose cards are subject to fraudulent use. The financial industry asked that these protections only apply if cardholders first verify their identity with the issuing bank, and the CFPB agreed to propose such a modification. This may make sense in the case of a prepaid card that someone buys at a convenience store, because the card-issuing bank has no idea who their customer is. On the other hand, when someone is released from prison and given a prepaid card, that person’s identity is already established. Forcing that person to sit on hold or go to a website to register the card makes no sense, and we pointed this out in comments we filed this week with the CFPB. Our concerns were echoed in a comment submitted jointly by the Americans for Financial Reform, the Center for Responsible Lending, the Center for Digital Democracy, Consumers Union, the policy and mobilization arm of Consumer Reports, the National Consumer Law Center, U.S. PIRG, and the Woodstock Institute.

We also used this opportunity to once again urge the CFPB to conduct a broader proceeding to draft rules targeting the wide variety of unfair financial products (like money transfer services) that are forced on incarcerated people and their families.

There is no definite timeline for the current rulemaking, but the rules that were originally issued in 2016 are due to become effective in April 2018. Presumably the CFPB will make a decision on the current round of amendments sometime before the effective date.

Seizing Chicago: Drug stings and asset forfeiture target the poor

Instead of protecting Chicago's communities, state asset forfeiture practices and drug stings set up by federal agents target low-income, Black, and Latino residents, setting them up to fail.

by Alex Clark and Joshua Aiken, August 11, 2017

A Call of Duty video game, a cashier’s check for 34 cents, and 12 cans of peas. Recent analysis by C.J. Ciaramella at Reason and the Lucy Parsons Lab reveals these items as “lucrative” assets seized from poor Chicago neighborhoods.

Since 2012, the Cook County police have conducted 23,000 seizures of assets connected to civil and criminal cases — about 75% of which took place in Chicago. Asset forfeiture is often justified as a way for law enforcement to disrupt illegal drug trades: it allows officials to confiscate the property of people associated with a criminal offense even if the person who owns that property is never convicted of a crime. However, this data reveals police officers are confiscating petty property, mostly from poorer Black neighborhoods. Nearly half of the seizures were for amounts less than $1,000. Asset forfeiture is a tool targeted at major illegal drug trades; property worth a few hundred dollars should rarely account for seizures, let alone half of total assets. Furthermore, when you look at seizures valued under $100, they are geographically clustered in the South and West sides of Chicago with predominantly poor and Black communities.

This is the most recent example proving that at all levels, the War on Drugs functions as a war on communities of color. Nearly half a million people are behind bars for drug offenses and while white people and people of color use drugs as similar rates, people of color are more likely to be arrested, convicted, and locked away. In Chicago, racial disparities still exist even after possession of small amounts of marijuana was decriminalized in 2012.

While President Trump has threatened to “send in the feds” with regards to crime in Chicago, when it comes to drug enforcement, we already have. On top of the state asset forfeiture practices which “exacerbate hardship” for the poor and people of color, sting operations have been targeting similar groups for years, setting them up to fail. A report last year from Columbia Professor Jeffrey Fagan traced drug stings by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Since 2003, these stings set up fake drug stash houses and lured people into committing new crimes.

This is how the stings work: agents would identify individuals suspected of violent crimes and tell them that there was a stash of drugs and money at a local residence. Agents would then provide individuals with guns, cars, and other resources to steal the (nonexistent) drugs and (nonexistent) money and would tell targeted individuals to enlist their friends to assist in the burglary. When people arrived at the stash house, Bureau officials would arrest them and charge them with conspiracy to possess drugs with intent to distribute. Fagan’s study looked at individuals who would be eligible targets for recruitment according to the Bureau, and compared them against the people agents actually singled out. He found that: no statistical explanation except disparate racial treatment makes sense.

• At least 91% of the time agents targeted Black and Latino people.
• Three different tests for disparate racial treatment indicated that “race remains a statistically significant predictor of selection as a Stash House defendant.”
• The probability that only one white person would be selected of the fifty-seven individuals from 2011-2013 is less than 0.1%.
• Black and Latino people are so overrepresented, no statistical explanation except disparate racial treatment makes sense.

What is most alarming about drug stings and asset forfeiture is that they have been justified as ways to protect communities. However, a District Court judge described the ATF’s sting cases as the government “ensnaring chronically unemployed individuals from poverty-ridden areas.” Because agents have targeted Black and Latino people, communities have less reason to trust or assist law enforcement, and remain trapped in a cycle of poverty and incarceration. With 2016 being Chicago’s “deadliest year” and as the city’s racial and economic disparity remains stagnant, or in some cases increases, the need for reform is dire.

With the passage of House Bill 303, currently sitting on Governor Rauner’s desk, Illinois could make huge strides in civil asset forfeiture as the bill requires greater transparency and an increased burden of proof. Attorney General Sessions has made recent efforts to undermine state reforms in this area, but HB 303 passed with only one “no” vote in the Illinois State Senate. Hopefully, this signals Illinois will continue making unjust civil asset forfeiture a thing of the past.

And just as advocates are calling for greater oversight in Illinois, the ATF is being criticized for inadequate oversight and lacking direction. In a recent St. Louis sting, agents reported they were given no written direction on how to run their storefront operation, and the Chicago sting report stated that in some cases, informants said they chose targets after simply meeting them on the street. These approaches tear people away from their community by putting them behind bars and show little public safety gains. Instead of the government going out of its way to set people up for failure, policymakers could take alternative job and education approaches to give them a chance to succeed. Likewise, Chicago can still emphasize the resilience of the city, its communities, and probable good intentions of individual police officers in tandem with reform. There are other ways to keep people safe, investigate cases, and achieve justice. None of those ways involve taking 12 cans of peas.

New report: Disabled people targeted by violence at high rates

A new report from the Bureau of Justice Statistics sheds light on the treatment of disabled people. Based on nationally representative data from 2011-2015 it finds that disabled people experience violent victimization at over twice the rate of people without disabilities.

by Elliot Oberholtzer, July 18, 2017

A new report from the Bureau of Justice Statistics (BJS) sheds light on the treatment of disabled people in our society. This report, which compiles nationally representative data from 2011-2015 based on the National Crime Victimization Survey, shows that disabled people experience violent victimization at over twice the rate of people without disabilities. (On average 32 per 1,000 disabled people experience violent victimization annually, compared to 13 per 1,000 non-disabled people.)

Key findings include:

• Disabled people experience significantly higher rates of rape/sexual assault, robbery, aggravated assault and simple assault than non-disabled people.
• Disabled youth ages 12-15 are victims of violent crime at over four times the rate of their non-disabled peers: 144 out of every 1,000 disabled youth experiences violent victimization each year.
• 40% of the violence against disabled people was committed by someone they knew, and 10% of that was by a relative (not including romantic partners). Both of these numbers are significantly higher than for non-disabled people, who are more often victimized by a stranger.
• 16% of violent crime victims with disabilities believed they were targeted due to their disability. (For more details see the BJS Hate Crime Victimization Report.)

Disabled people, particularly disabled youth, are often in the position of needing to rely on the people around them for support and to accomplish necessary tasks. As this data suggests, the position of power that non-disabled people have over the disabled people around them can lead to victimization and abuse.

The difference between disabled and non-disabled rates of violent victimization may be even more stark than this data suggests, because this data does not include institutionalized disabled people (including those in jails, prisons, residential care facilities, and assisted living facilities). Roughly 95% of people 65 and older in elder care institutions report at least one disability, and people in state and federal prisons are nearly three times as likely to report having a disability, both major populations that this study does not include.

The Human Rights Watch suggests that use of force abuses against disabled people in prisons is “widespread and may be increasing”. Ongoing studies of police violence also suggest that disabled people are a disproportionate percentage of those killed by police. Though this new study is an important addition, the picture of societal violence against disabled people is far from complete.

New data: The rise of the “prosecutor politician”

Jed Shugerman argues that the prosecutor's office has become a "stepping stone to higher office... with dramatic consequences in American criminal law and mass incarceration." His extensive database explores connections between prosecutors and politics in each state since the 1880s.

by Wendy Sawyer and Alex Clark, July 13, 2017

Jeff Sessions has famously parlayed his reputation as a zealous and harshly punitive prosecutor into a powerful political career; but among the elite, is his background really so unusual? And to what extent do political ambitions influence prosecutors’ decisions?

It’s now possible to examine the scale of prosecutors’ influence on American politics and justice, thanks to Fordham University historian Jed Shugerman. On Friday, Shugerman announced a new project exploring the emergence and impact of “prosecutor politicians” in recent U.S. history. He also made his extensive database publicly available, which will be invaluable for those of us looking at the role of prosecutors in shaping our criminal justice system.

As part of his research into politicians who began their careers as prosecutors, Shugerman and a team of research assistants looked into the prosecutorial backgrounds of Supreme Court justices, circuit judges, state attorneys general, governors, and senators from each state since the 1880s. The result is a groundbreaking database of American public officials and their legal and political background, impressive in its historical and geographical scope and detail. (Shugerman is quick to point out that the database is a work in progress, one that he hopes will benefit from crowdsourcing additional documentation and analysis.)

This research offers a new perspective – and critical new data – on the connections between prosecution and politics. In our initial look at the data, we focused on just public officials who have held office in the past ten years, and found examples of Shugerman’s “prosecutor politican” in 38 states. Of those in office at any point between 2007 and 2017, 38% of state attorneys general, 19% of governors, and 10% of U.S. senators had prosecutorial backgrounds.

In at least 38 states, a senator, governor, and/or attorney general holding office in the past 10 years was once a prosecutor. This chart may understate the prevalence of these “prosecutor politicians,” since the source is a work in progress and has no data for some positions in five states as of July 7, 2017, and does not include changes in all offices after January 2017.

According to Shugerman, the “prosecutor politician” has emerged as a political force in recent history, having a detrimental impact on our criminal justice system. Shugerman argues that the prosecutor’s office has become a “stepping stone for higher office… with dramatic consequences in American criminal law and mass incarceration.” This hypothesis dovetails with the work of John Pfaff, who argues that prosecutorial decisions explain much of mass incarceration.

Shugerman’s inspiration for the project was his observation that in recent history, prosecutors with political aspirations appear to have prioritized public opinion and personal gain over justice. Their decisions have, in turn, made justice outcomes more punitive for millions of civilians, and noticeably more lax for police. Shugerman hypothesizes that ambitious politicians are drawn to the prosecutor’s office, where they prosecute more arrests and develop a reputation for being “tough on crime.” Yet while they prosecute many defendants too aggressively, such prosecutors also fail to adequately prosecute police officers who have killed Black men: “Suburban/rural prosecutors generally underperform, and perhaps even sabotage, their prosecutions of police in these cases because of their own political ambitions.”

John Pfaff’s work turned the attention of criminal justice reformers to prosecutors earlier this year; and now Shugerman has offered us a tool to further gauge the scope of the problem. If Shugerman’s theory is correct, and prosecutors are subverting justice out of political ambition and fear of public reproach, changing justice outcomes will require greater scrutiny of prosecutors and their decisions.

Senior Policy Analyst Bernadette Rabuy presents on the harms of overcriminalization

On April 6th our Senior Policy Analyst Bernadette Rabuy took part in a panel discussion on overcriminalization and indigent legal care at Georgia State University.

by Lucius Couloute, July 11, 2017

On April 6th our Senior Policy Analyst Bernadette Rabuy took part in a panel discussion on overcriminalization and indigent legal care at Georgia State University. Along with other leaders in the field, Bernadette addressed how overcriminalization not only affects incarcerated people and those under community supervision, but their families and communities as well. Check out the video above!

The Wireless Prison: How Colorado’s tablet computer program misses opportunities and monetizes the poor

Colorado's tablet program foreshadows a potential new paradigm in corrections, shifting numerous communications, educational, and recreational functions to a for-profit contractor; and making incarcerated people and their families pay for services that are commonly funded by the state.

by Stephen Raher, July 6, 2017

In 2010, Apple made waves when it introduced the iPad. Over the last seven years, consumers have been busy trying out ever-more-powerful mobile devices; meanwhile, correctional facilities have been quietly experimenting with letting incarcerated people use limited-function electronic tablets inside prisons and jails. Correctional administrators are often resistant to change, but after a few tentative forays, some prison systems are beginning to adopt tablet programs on a larger scale.

A recent Denver Post article reports that the Colorado state prison system has awarded a contract to prison communications giant GTL (formerly Global Tel*Link) for a tablet program that will eventually be deployed in all the state’s prisons.

The Colorado Department of Corrections (DOC) is somewhat of an early adopter of emerging communications technology. For several years it has offered electronic messaging, an email-like service that allows people in prison to send and receive messages using a proprietary, fee-based platform operated by a contractor. Colorado DOC’s electronic messaging program isn’t perfect, but its rollout was notable for giving people a new communication option. The tablet program, on the other hand, foreshadows a potential new paradigm in corrections, shifting numerous communications, educational, and recreational functions to a for-profit contractor; and, at the same time, making incarcerated people and their families pay for services, some of which are now commonly funded by the state.

What makes the Colorado/GTL contract especially frustrating is that it could have been an innovative step toward providing incarcerated people with useful technology. Experts who have studied government technology contracting warn that projects often fail because details are not sufficiently thought through. The Colorado DOC seems to have walked down this familiar path by focusing largely on its own financial interest without giving much thought to the user experience or the financial impact on incarcerated people and their families.

Vice News Tonight examines the exploitative video visitation industry

Vice News Tonight examines the growth of the exploitive video visitation industry; highlighting the human toll of switching from the real thing to an artificial – and costly – substitute.

by Lucius Couloute, June 28, 2017

Across the country jails are replacing in-person visits with video chats that can cost over $1 per minute; and as our national research on the 600+ facilities that have implemented video visitation illustrates, the collusion between local jails and telecom companies ignores the needs of incarcerated people and their loved ones in favor of profits.

In a new segment that aired on HBO last night, Vice News Tonight examined the growth of the exploitive video visitation industry in California; speaking with jail administrators, FCC Commissioner Mignon Clyburn, and the families themselves in order to highlight the human toll of switching from the real thing to an artificial – and costly – substitute. Check out the piece above!

BJS report: Drug abuse and addiction at the root of 21% of crimes

by Wendy Sawyer, June 28, 2017

A new Bureau of Justice report released yesterday reveals that 21% of sentenced people in state prisons and local jails are incarcerated for crimes committed to obtain drugs or money for drugs. Almost 40% of people locked up for property crimes and 14% of those incarcerated for violent crimes reported that they had committed their most serious offense for drug-related reasons. If these figures hold for the entire prison and jail population, that means over 473,000 people are behind bars for seeking drugs.

“Drug Use, Dependence, and Abuse Among State Prisoners and Jail Inmates, 2007-2009” details past drug use of incarcerated people surveyed in the National Inmate Surveys. Some of its other major findings include:

• More than half of the state prison population and two-thirds of the sentenced jail population report drug dependence or abuse, compared to just 5% of the adult general population.
• About 40% of the state prison population and sentenced jail population report using drugs at the time of the offense for which they were incarcerated.
• Drug use varied by gender and race, as reported in past studies: Women were more likely than men, and whites more likely than Blacks, Hispanics, and “other” racial or ethnic groups to report drug dependence or abuse, to report drug use at the time of their offense, and to have ever regularly used cocaine or crack, methamphetamine, or heroin or other opiates.
• Only about a quarter of those reporting drug dependence or abuse had received treatment since admission.

We already know that overcriminalization of drug use and possession contributes to mass incarceration, resulting in 1 million arrests each year. Responding to substance use as as an individual failure to be punished, rather than as a public health problem, is just as harmful. The widespread drug use and dependence among incarcerated people underscores the urgent need to redirect people and resources away from prisons and jails and toward more effective treatment. Treating underlying issues in a therapeutic setting is more cost effective and has better results when it comes to health and public safety. And as the new BJS report suggests, it’s also essential for reducing the incarcerated population.

Incarceration shortens life expectancy

Each year in prison takes 2 years off an individual's life expectancy. With over 2.3 million people locked up, mass incarceration has shortened the overall U.S. life expectancy.

by Emily Widra, June 26, 2017

New research expands the notions of collateral consequences beyond post-release barriers and discrimination. Two studies show that incarceration shortens life expectancy, at both the national and individual levels.

Nationally, there are so many people living behind bars that the average life expectancy for the total U.S. population has taken a hit. In 2014, the life expectancy at birth in the U.S. was 78.8 years, while most comparable nations (Spain, Sweden, Switzerland, Netherlands, New Zealand, Norway, Italy, Japan, France, Germany, Canada, Australia, Austria) had life expectancies above 81 years.

A 2016 study by Professor Christopher Wildeman offers us an explanation for the U.S. falling behind on measures of population health, like life expectancy: mass incarceration. In comparison to other developed democracies, Wildeman finds that from 1981 to 2007, the U.S. life expectancy would have increased by more than five years – from 74.1 to 79.4 years – if not for mass incarceration. But given the reality of mass incarceration, the U.S. life expectancy only increased 3.5 years over that time. Without so many people behind bars, he argues, the life expectancy at birth would have increased 51% more than it actually did from 1981 to 2007. The sheer magnitude of how many people are locked up shortens our entire nation’s life expectancy.

This isn’t just problematic from a population health standpoint; the reduced life expectancy resulting from incarceration impacts individuals, families, and communities on a personal level. In her 2013 analysis of New York state parole data, Professor Evelyn Patterson identified a linear relationship between incarceration and life expectancy: for each year lived behind bars, a person can expect to lose two years off their life expectancy. In the parole cohort she studied, five years in prison increased the odds of death by 78% and reduced the expected life span at age 30 by 10 years. Time served has a direct correlation to years of life lost.

Although both studies suggest that incarceration affects life expectancy, neither study identifies the pathways by which this happens. Incarceration itself may be harmful enough to explain these effects, or it may be one of many adverse experiences putting vulnerable populations at risk. Either way, it’s important to address the appalling conditions of incarceration and the lack of opportunities and services for at-risk communities. Most importantly, we need to put less people behind bars. As Professor Patterson points out, unlike many collateral consequences of incarceration, “death cannot be reversed”.

This article was updated in March 2021 to reflect that mass incarceration has shortened the overall U.S. life expectancy by almost 2 years.

New government report points to continuing mental health crisis in prisons and jails

U.S. prisons and jails are filled with people who have a current or past mental health problem, and facilities are still not meeting the demand for treatment.

by Wendy Sawyer, June 22, 2017

Today, a new Bureau of Justice Statistics report offers another grim view of mental health problems in America’s prisons and jails. Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates 2011-12 is the first government update on the mental health of incarcerated populations since 2006. BJS has made some changes to its data collection, making comparisons to earlier reports difficult,¹ but the takeaway is the same, ten years later: U.S. prisons and jails are filled with people who have a current or past mental health problem, and facilities are still not meeting the demand for treatment.

Half of people incarcerated in prisons and two-thirds of people in jails had either current “serious psychological distress”² or a history of mental health problems. Yet only about a third of those reporting serious psychological distress were currently receiving treatment, and only a slightly greater share of people with a history of mental health problems was currently being treated. So while correctional facilities are warehousing people with mental health problems, they lack the capacity to adequately meet the needs of those in their care.

1 in 4 people incarcerated in jails reported experiences that met the threshold for serious psychological distress. This makes people in jail six times more likely to experience serious psychological distress than people with no criminal justice involvement in the past year.

People in prisons and jails experience serious psychological distress at much greater rates than the general public. This difference is especially pronounced among jail inmates – and especially in the first 30 days of incarceration – which is consistent with other reports of mental illness prevalence and the danger of even short stays in local jails. It’s unclear whether the high rates of psychological distress in jails is due to the stressful experience of incarceration or is a result of jailing people in crisis. But these statistics underscore the need to divert people at risk away from jail and connect them to more appropriate services in the community. Policymakers in some places seem to be catching on, but as this report reminds us, the need for more widespread reforms is urgent.

Women in jails, in particular, report high rates of mental health problems compared to men. The findings from this report are consistent with the 2006 report and others that find incarcerated women are more likely than men to have a history of mental health problems. But the new measure of serious psychological distress shows that women are also more likely to report current mental health problems – especially in jails, where as many as 1 in 3 women experiences serious psychological distress.

Consistent with previous reports, female respondents in prisons and jails reported a history of mental health problems more frequently than male respondents.

1 in 3 female respondents in jails reported experiencing symptoms of serious psychological distress – more than twice the rate of men in prisons.

A final noteworthy finding from the new BJS report is the danger to others posed by people struggling with mental health problems. In prisons, people experiencing serious psychological distress are three times more likely to be written up for physical or verbal assault of correctional officers, staff, or other incarcerated people, compared to those without any mental health problems. In jails, people experiencing serious psychological distress are about 2.5 times more likely to assault others.

Again, we are reminded that appropriate treatment of health problems is essential for the health, safety, and well-being of not only affected individuals, but everyone around them, both while incarcerated and upon their return to the community.