Bureau of Prisons seeks to erode financial privacy of friends and family

by Stephen Raher, August 20, 2015

Providing financial services to people in prison has become big business. Prisons, phone companies, and other contractors are reaping huge profits at the expense of incarcerated people and their friends and relatives.

As the operator of one of the largest prison systems in the country, the federal Bureau of Prisons (“BOP”) should be at the forefront of ensuring fair treatment of people who use prison financial systems. But are they? No, in fact they’re actively working to tear down existing protections.

Instead of proactively addressing problems like high fees for money transfer or release cards, the BOP has recently issued a proposed rule that would make it easier for the government to obtain private financial information from those who send money to people in prison. The rule would unilaterally declare that anyone who sends funds to a commissary account “agrees” to release ill-defined “transactional information” to the BOP.

The BOP’s proposed rule is not only bad policy, it goes against privacy rights established decades ago by the federal Right to Financial Privacy Act (the “RFPA”). RFPA protects consumers by prohibiting banks from sharing customer financial records with the government unless the customer is first given a notice and the opportunity to object. And the law still provides numerous ways to legally obtain the financial records if the BOP suspects illegal activity. But rather than using these available methods, the BOP proposes to force people to consent to disclosing their banking records—exactly the kind of coercion RFPA prohibits.

RFPA is clear: even though financial privacy is protected, the government can still access records to investigate crime. So we’re left to conclude that the BOP’s proposed rule is based on the presumption that anyone who sends money to someone in prison is engaged in an unlawful activity. This is untrue and offensive. Family and friends send money to loved ones in prison to help pay for phone calls or basic food and hygiene items (all generally priced at more than the incarcerated folks can afford on their own). No one should be forced to surrender their federally-recognized right to privacy just because the family member or friend they’re supporting is incarcerated.

And the repercussions wouldn’t be limited to the world of prisons. If the BOP can evade privacy laws, what other government agencies will follow? Can someone be forced to let the government go through their bank records simply because they receive unemployment benefits? What about people who pay parking tickets or other fines? Or recipients of tax refunds? Not only does the BOP’s proposal trample financial privacy rights of family and friends of incarcerated people, but it threatens to undermine those rights for all.

The BOP is accepting comments until September 8, 2015 and the Prison Policy Initiative is working on a letter with our allies.

Criminal justice reformer Jerome G. Miller passes away

Jerry Miller, known for closing Massachusetts's prisons for kids in 1972 and for book "Search and Destroy: African-American Males in the Criminal Justice System" dies at age 83.

by Peter Wagner, August 17, 2015

On August 7, Dr. Jerome G. Miller, a visionary in juvenile justice reform, passed away at the age of 83. Jerry Miller is most famous for having closed Massachusetts’ prisons for children in 1972. Hired by Republican Governor Sargent to reform the brutal, inhumane and ineffective “reform schools”, Miller soon discovered that the only option was to close the facilities and to transfer the children to far less restrictive custody, including sending them home. The “Massachusetts Experiment”, as it came to be known, later became a model for reform in other states and is documented in his memoir Last One Over the Wall: The Massachusetts Experiment in Closing Reform Schools.

Jerry Miller’s work first came to my attention when I discovered his second book, Search and Destroy: African-American Males in the Criminal Justice System. The book directly confronted the critical question: Does the evidence prove that the criminal justice system is deliberately racist? Published in 1996, the book is quite dated now, but Search and Destroy played a key role in arguing that the criminal justice system needed to be viewed with a racial justice lens, back when racial disparities were not widely accepted as a defining characteristic of our justice system.

Read other obituaries of Jerome G. Miller:

• New York Times: Jerome G. Miller, Who Reshaped Juvenile Justice, Dies at 83
• Washington Post: Jerome Miller, revolutionized juvenile justice, dies

Jails matter. But who is listening?

Most of the people who go to prison or jail in a year go to jail, so why don't policymakers pay more attention to jails?

by Peter Wagner, August 14, 2015

One out of every three people who are locked up tonight are sitting in a local jail, not a state or federal prison. There are 3,283 jails in America, yet jails receive scant attention. The legislative, judicial and executive decisions that have fueled the explosion of our state prison populations are becoming well-known; but the myriad of subtle policy decisions that have sent our jail populations upwards are off the public’s radar.

Jails need to be a policy focus, as the Vera Institute of Justice recently argued in its aptly-titled report Incarceration’s Front Door: The Misuse of Jails in America.

Jails matter because a staggering 11 million people cycle through them each year. As we explained last year:

Jail churn is particularly high because at any given moment most of the 722,000 people in local jails have not been convicted and are in jail because they are either too poor to make bail and are being held before trial, or because they’ve just been arrested and will make bail in the next few hours or days. The remainder of the people in jail — almost 300,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.

So when we talk about jails we have to keep our eye on two numbers: the number of people in jail on a given day and the sheer volume of people who cycle through them as shown in this analysis of Bureau of Justice Statistics data:

Addressing the problem of jails means grappling with the tremendous churn through jails. How can we lessen the numbers who enter jails and reduce the time that 11 million people spend there each year?

This “pre-trial” or “unconvicted” population is driving the growth in jail populations. In fact, 99% of the growth in jails over the last 15 years has been a result of increases in the pre-trial population:

Virtually all of the growth in the jail population has been in the number of legally innocent people who are detained in jails.

These people are legally considered innocent until proven otherwise in court. But if they don’t have the money to post bail, the principle that they are legally innocent is not enough to keep them from being locked up until trial. A recent New York Times feature found that poverty is a frequent cause of pre-trial detention: in New York City even when bail is set at $500 or less, 85% of defendants were unable to afford bail.

Besides the injustice of our jails resembling modern day debtor’s prisons, excessive bail can have other harmful effects. Family life is disrupted, jobs and housing can be lost, and the combined effects can literally be fatal. Pre-trial detention also coerces people to plead guilty to minor offenses, including people who are factually innocent like the man featured in the New York Times article. Studies have also shown that people who are detained pretrial are more likely to be convicted than those who are able to afford bail.

Fortunately, the movement for bail reform is growing in places like New York City and the state of Massachusetts. But at the same time as we work to fix bail, we really should admit that the problem starts even before a bail hearing.

As Peter Goldberg, executive director of the Brooklyn Community Bail Fund put it in the New York Times article:

And the truth is, even meaningful bail reform is just the beginning. The real work is asking why we’re arresting so many people on low-level offenses in the first place, and why so many of them come from poor black and brown communities. Bail is easy.

Or to be more precise: fixing bail should be easy. Why it’s taking so long is a good question and getting to the bottom of this country’s jail problem is going to depend on both reducing the number of people we send to jail each year and making it far easier for those who have been arrested to resume their lives while the judicial process proceeds.

Are campaign contributions the new “commission”? Analysis of Securus’s contributions in Sacramento

Why is Securus one of the largest campaign contributors to the Sacramento County Sheriff?

by Peter Wagner, August 12, 2015

Sacramento County, California’s jail confines 4,100 people on a typical day, so the selection of the sheriff should be a big deal for Sacramento residents, yet the leading campaign contributor is a company from Texas.

Dallas-based Securus apparently has a strong interest in who gets to be the Sacramento County Sheriff, so much so that the prison and jail telecommunications giant has been giving $10,000 a year to the Sheriff’s reelection fund for at least the last 3 years, as we describe in a letter sent this morning to the Federal Communications Commission.

Now what’s especially interesting about this is that Securus doesn’t currently have a relationship with Sacramento County; in fact, the county’s current phone contract is with competitor ICSolutions. We wouldn’t be surprised to see the contractor change soon, though, as new bids for the contract were due in July.

As the Federal Communications Commission prepares for a new ruling on regulating the industry, our letter addresses one of the more controversial issues: What should the FCC do about the commissions currently demanded by the facilities in exchange for awarding monopoly contracts to the prison and jail telephone companies? The demand for commissions is at the root of the dysfunction in the prison and jail telecommunications market, but we believe banning the commissions is not necessarily the solution.

We argue that the FCC can simply ensure that the rates and fees charged are reasonable and leave the companies and the facilities to fight over whether and how to share the reasonable profits that remain. (Relatedly, one also has to wonder if things like campaign contributions could possibly explain part of the discrepancy between the tiny profits that Securus tells the FCC it makes and the huge profits that Securus claims before its investors. )

In fact, ensuring that the rates are reasonable is the approach the FCC already took when they regulated inter-state calls, capping the charges for the calls and declaring that commissions were not a legitimate cost that could be used to justify higher rates.

Put simply, the FCC should ensure fair rates for families; that’s best achieved through direct regulation of rates and fees, not by trying to iron out every misaligned incentive in the market.

Urban Institute publishes Prison Population Forecaster

New tool empowers the public to engage the policy choices needed to end mass incarceration. Statistics degree not required.

by Peter Wagner, August 12, 2015

The Urban Institute just published the excellent Prison Population Forecaster:

This interactive tool and article uses data from 15 states to model the impact of various types of reforms to state criminal justice policies. The Forecaster brilliantly makes a very important point: There is plenty of low hanging fruit left that most states can use to lower their prison populations, but making a real dent in mass incarceration is going to also require some tough policy choices.

And now, with the Forecaster, you don’t need to have a degree in statistics to see what the results of particular policy changes might be. Anybody can do it. By empowering more people to access the data, the Urban Institute has made these critical policy choices all the more accessible.

Probation: The nicest sounding way to grease the skids of mass incarceration

Probation shouldn't be ignored: It's used too often and sets up too many people to fail.

by Peter Wagner, August 11, 2015

Last week, Shaila Dewan had a brilliant story in the New York Times about how probation sentences set people up to fail: Probation May Sound Light, but Punishments Can Land Hard. The article follows a woman who was arrested for drunk driving, her first offense of any kind, and whose life entered a very expensive spiral, including the loss of two jobs and having to pay almost $4,000 in fees, fines, and court costs and $2,000 to post bail. In addition, she was forced to spend 34 days in the dirty, dank, dangerous and disgraceful Baltimore jail simply because she was unable to find attendance slips from her required A.A. meetings, and she could not afford another $2,500 bail bond to get out of jail time.

Because many people on probation fail to meet the conditions of their community supervision, probation often isn’t the alternative to incarceration it’s made out to be. The harm of probation would be important even if probation were rare; but more than half the people under correctional control are on probation.

Since the beginning of the statistics almost 40 years ago, the probation population has grown much more quickly than either the number of people on parole or the number of people in federal, state and local prisons and jails. While about 2.3 million U.S. residents were behind bars in 2012, almost 4 million residents were under probation.

Like imprisonment, there is tremendous variation between the states on the use of probation, but these differences aren’t parallel. For example, Rhode Island has the 48th highest incarceration rate, but the third highest rate of probation.

As the Council of State Governments’ Justice Center has shown, Rhode Island’s probation sentences are 53% longer than the U.S. average, and it’s one of 14 states that doesn’t cap how long probation sentences can be. (Thirty-two states have limited probation sentences to no more than 5 years.) Further, the Justice Center says that they have anecdotal evidence that probation isn’t being used as an alternative because “a large portion of felonies receive split sentences” that include both prison and probation.

Last month, Rhode Island’s governor created the Justice Reinvestment Working Group in order to get to the bottom of the state’s use of probation. One answer I hope the group will uncover as they develop a path to more reasonable uses of correctional control is exactly why Rhode Island decided to leave its neighbors behind in the use of probation:

The rate of probation in Rhode Island is more than twice as high as the rate of probation in most other New England states. (Massachusetts was not included in the graph above because the state changed its reporting methods multiple times during the previous decade. However, in the most current available data, Massachusetts reported a rate of 1,033 adults on probation per 100,000 residents, less than half Rhode Island’s rate of 2,268 per 100,000 residents.)

Using the federal budget to fuel decarceration

The 2016 presidential candidates shouldn't underestimate the federal budget's power to guide state justice policy.

by Peter Wagner, August 10, 2015

With a growing number of presidential candidates calling for an
end to mass incarceration, there has been a flurry of discussions in the press about the role that the Executive Office can play in reversing our nation’s over-use of the criminal justice system. Since most incarcerated people are locked up in state prisons, people have been asking, what can the leader of the federal government do about mass incarceration?

While it turns out that the answer is “quite a bit,” these discussions have largely overlooked the powerful role that the federal budget plays in shaping state policy. Criminal justice policy is no exception. As Inimai Chettiar observed in the Brennan Center for Justice’s Solutions: American Leaders Speak Out on Criminal Justice:

The federal government has been one of the largest instigators of perverse incentives. For example, the 1994 Crime Bill included $9 billion to encourage states to drastically limit parole eligibility. Unsurprisingly, 20 states promptly enacted such laws, yielding a dramatic rise in incarceration. Today, the federal government continues to subsidize state and local criminal justice costs to the tune of $3.8 billion annually.

Given the federal government’s historical role in fueling mass incarceration, Chettiar points out, federal budgetmakers could switch gears to instead incentivize smarter and more measured criminal justice policymaking:

One basic, yet effective, step: The federal government should provide funds to states that cut both crime and imprisonment. California,
Texas, and other states succeeded by changing financial incentives. They
awarded additional funds to local probation departments that reduced
the number of people revoked to prison. In its first year alone, California
reduced revocations to prison by 23 percent, saving the state nearly $90
million. In one year, Texas reduced the number of people revoked to
prison by 12 percent. In both states, crime continued to drop.

To be sure, slowing and reversing the our nation’s unprecedented use of correctional control requires a multifaceted and long-term approach. But as the other 2016 candidates shape their criminal justice policy platforms, they shouldn’t underestimate the federal budget’s power to steer state justice policy in a positive direction.

Explaining Texas’ overnight prison boom

By drastically slowing releases from prisons, Texas policymakers ensured that the state’s prison population would more than double in only five years in the 1990s. Decades later, Texans are still dealing with the consequences.

by Rachel Gandy, August 7, 2015

In May 2014, the Prison Policy Initiative created incarceration profiles for each state, and the Texas statistics were shocking. They revealed a doubling of the Texas prison population in just a few years. As a native Texan, high imprisonment rates were no surprise, but the rapid rise in imprisonment seemed almost impossible, especially compared to the nation as a whole:

Throughout the 1980s, the Texas imprisonment rate closely matched the national imprisonment rate. But between 1993 and 1998, the Texas imprisonment rate almost doubled, causing Texas’ total custody population to quickly escalate.

The imprisonment rate in Texas has been generally equal to or higher than the national imprisonment rate. This fact was no surprise because Texas has been known for its tough-on-crime mentality. But what was so special about 1993 that caused the imprisonment rate in Texas to skyrocket?

The answer lies in the underlying mechanisms that drive prison admissions and releases. As Michele Deitch, a Soros Senior Justice Fellow and Texas criminal justice expert, describes, correctional facilities are like bathtubs: people are admitted to prisons like water from the faucet and released like water from the drain. If admissions and releases are not in balance, prisons, like bathtubs, will overflow.

To test that analogy and uncover the policy change that sent Texas’ imprisonment rate soaring, I collected annual data on admissions to and releases from Texas prisons and graphed them both against the total custody population:

Beginning in 1993, the number of releases from Texas prisons fell behind the number of admissions, allowing the state’s total custody population to rise sharply for the next five years. Once release counts rose again to match admission counts, Texas’ total custody population leveled off and remained stagnant. These patterns show that admissions to and releases from prisons serve as at least one driving force behind rapidly changing prison populations.

When Texas made the choice to reduce the rate of prison releases, the state prison population more than doubled in five years, just like a running bathtub would if a stopper were placed over the drain. More recently, other policy changes have allowed the number of releases to match the number of admissions, causing the total custody population to flatten out after its massive increase.

Before 1993, admission and release counts in Texas were roughly equal, so the total prison population grew only slightly. Driven by the War on Drugs, prison admission rates increased steadily in the 1980s, but they were closely matched by prison release rates. For example, incarcerated Texans in the early 1990s only served an average of 13% of their assessed sentences behind bars as a way to decrease rising prison overcrowding concerns.(*)

But the graph above shows that this pattern changed in 1993. Suddenly, the gap between the number of admissions to and releases from Texas prisons expanded.

Texas legislators created this imbalance by implementing two separate policy choices that joined together to catapult a seemingly overnight boom in the prison population. First, faced with lawsuits from county officials over jail overcrowding, Texas legislators approved the building of over 100,000 new prison beds within less than five years. Second, in response to public outrage over short prison stays, lawmakers passed legislation to ensure that incarcerated people served a greater proportion of their sentences behind bars. For example, some violent offenders were suddenly required to serve at least 50% of their sentences before they were parole eligible, which effectively doubled the length of prison time for many Texans.(**)

Legislators disregarded the need for balance between admissions to and releases from prison, and the bathtub overflowed. Over two decades later, Texans are still trying to clean up that mess. Sentencing and parole reforms have attempted to decrease the costs of the prison boom, but to truly make an impact on the size of the incarcerated population, policymakers need to understand one thing: prisons are like bathtubs. If you simultaneously open the faucet and cover the drain, you will create a flood.

Suggested reading:

• Michele Deitch, “Giving Guidelines the Boot: The Texas Experience with Sentencing Reform,” Federal Sentencing Reporter 6, no. 3 (1993): 138-143.
• To see reform efforts underway in Texas, see the Texas Criminal Justice Coalition’s website at http://www.texascjc.org.

Notes:

(*) Michele Deitch, “Giving Guidelines the Boot: The Texas Experience with Sentencing Reform,” Federal Sentencing Reporter 6, no. 3 (1993): 138-143.

(**) Michele Deitch, “Giving Guidelines the Boot,” see footnote (*).

New BJS report shows suicide in jails is a national crisis

New BJS report shows that suicide in jails has been leading cause of death from 2000-2013.

by Bernadette Rabuy, August 4, 2015

At this unique moment when the public is actually paying attention to local jails, the Bureau of Justice Statistics (BJS) has released a new report based on its Death in Custody Reporting Program showing that the number of people who died while under custody of state prisons and local jails increased for a third consecutive year and, especially troubling, that suicide in jails is a national crisis:

Every year since 2000, suicide has consistently been the leading cause of death in local jails. Overall in the last year, deaths by natural causes declined while unnatural — and presumably preventable — deaths increased. In 2013, over a third of all deaths in jails were suicides:

At the same time as the nation is paying attention to the story of Sandra Bland whose death in a Texas jail may or may not have been a suicide, the BJS data shows that sadly, suicide after the first few days of incarceration is common. Forty percent of people who commit suicide in jail do so within 7 days of admission.

The report underscores that while typically off the public’s radar, local jails should never be ignored. Beyond the fact that almost 12 million people cycle through jails each year, jails house many people who are legally innocent but are too poor to afford bail and those in great need of mental health services. In fact, Cook County, Illinois recently made headlines for doing the unusual: appointing a psychologist to run the county jail, which is actually one of the nation’s largest de facto mental health institutions.

The data also raises the question of whether jails are doing enough to provide adequate medical and mental health care at those high-risk moments when it is needed most. Some states know this is a problem. As Brandon Wood, director of the Texas Commission on Jail Standards, a state agency that has begun to track suicides in Texas jails, told the Houston Chronicle in its in-depth analysis of Texas jail suicides, “After reviewing deaths in custody over the last few years, we keep identifying lapses in observation and proper screening.”

The same BJS report also discusses the very different causes of death in state prisons. In 2013, more than half of deaths in prison were of incarcerated people age 55 or older. Suicide is much rarer, and illnesses are the major cause of death for the aging prison population:

While jails obviously need to address the alarming rate of suicides, the best solution to mortality in state prisons is sensible sentencing and parole reform.

The report can be found at http://www.bjs.gov/content/pub/pdf/mljsp0013st.pdf

John Oliver attacks harmful mandatory minimum laws

by Rachel Gandy, July 28, 2015

On Sunday, Last Week Tonight’s John Oliver tackled another pressing criminal justice issue: the troubling practice of mandatory minimums. Oliver’s 15-minute segment reveals that incarcerated people and their families aren’t alone in their fight against mandatory minimums. Even the policymakers who first created these sentences and the judges who have to hand them down think that such harsh penalties are ineffective.

Occasional pardons may bring relief to some, but without a system-wide, retroactive change to sentencing laws, mandatory minimums will continue to do “way more harm than good.”

For related Last Week Tonight clips, see Oliver’s segments on U.S. prisons, police militarization, judicial elections, municipal violations, and bail and private police.