On kickbacks and commissions in the prison and jail phone market

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.)

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:

• Paying the facility a “signing bonus” for the contract.
• Paying annual or monthly “administrative fees.”
• Providing phone-related technology, like cell-phone jamming equipment or call recording equipment.
• Providing computer equipment for corrections staff, law libraries and religious services.
• Paying exorbitant “rent” for the vendor’s equipment at a correctional facility.
• Making payments to influential sheriff-led associations (for another example, see page 10 of this document).
• Campaign contributions (read more).

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.

Why expensive phone calls can be life-altering for people in jail – and can derail the justice process

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.

LGBTQ youth are at greater risk of homelessness and incarceration

Homelessness is the greatest predictor of involvement with the juvenile justice system. And since LGBTQ youth compose 40% of the homeless youth population, they are at an increased risk of incarceration.

by Daiana Griffith, January 22, 2019

In a recent report, we found a strong link between incarceration and homelessness among formerly incarcerated people. But while we examined racial and age disparities among that population, we weren’t able to address how homelessness affects justice-involved youth — especially LGBTQ youth who are overrepresented in the juvenile justice system. In this piece, we highlight research that elucidates the relationship between homelessness and LGBTQ youth incarceration, while also emphasizing how homelessness and incarceration disproportionately affect LGBTQ youth of color.

LGBTQ youth face higher rates of detention and incarceration. A 2015 study shows that 20% of all youth in the juvenile justice system identify as lesbian, gay, bisexual, questioning, gender nonconforming, or transgender, even though they compose only 5 to 7% of the total U.S. youth population. (Troublingly, the portion that identify as LGBTQ and/or gender nonconforming is even higher for girls in the juvenile justice system, at 40%.) This high percentage of justice-involved LGBTQ youth may be driven by their even higher rates of homelessness.

While white youth are underrepresented among the homeless LGBTQ youth and confined youth populations, Black youth are overrepresented among both groups. Black youth made up just 14 percent of the total youth population in 2014, but 31% of the homeless LGBTQ youth population that year, and 42% of the confined youth population in 2015.

According to a Center for American Progress report, homelessness is the greatest predictor of involvement with the juvenile justice system, and 40% of homeless youth identify as LGBT. LGBTQ youth usually face homelessness after fleeing abuse and lack of acceptance at home because of their sexual orientation or gender identity. Once homeless and with few resources at hand, LGBTQ youth are pushed towards criminalized behaviors such as drug sales, theft, or survival sex, which increase their risk of arrest and detainment.

LGBTQ youth of color — particularly Black youth — are at an increased risk of criminalization. This, in part, reflects the fact that LGBTQ youth of color have disproportionately high rates of homelessness. A 2014 survey of human service providers serving homeless youth, for instance, reported that 31% of the LGBTQ youth they served identified as African-American or Black, despite Black youth making up only 14% of the general youth population in 2014. The racial disparities in youth homelessness contribute to the overrepresentation of youth of color in juvenile facilities in general; in 2015, 2 out of 3 youth in juvenile facilities were either Black, Hispanic, or American Indian.

The disparities in youth incarceration mean that LGBTQ youth, and especially youth of color, also face the harms related to incarceration at greater rates. Incarceration, for example, can be detrimental to young people’s physical and mental health, their relationships, and their social and economic prospects. Among these different consequences, access to stable housing can be especially negatively affected.

Youth in the juvenile justice system are likely to end up with juvenile delinquency records that can prevent them from accessing housing and finding employment once released. Similar to formerly incarcerated adults, justice-involved youth are subjected to discrimination by public housing authorities and private property owners, which, combined with affordable housing shortages, exposes them to housing insecurity.

In the case of justice-involved LGBTQ youth, housing discrimination based on criminal records can be compounded by housing discrimination against LGBTQ people. A 2017 study based in the D.C. metropolitan area found that housing providers were less likely to book an appointment with gay men, as well as less likely to tell homeseekers who disclosed their transgender identity about available units.

These alarming statistics remind us that LGBTQ youth are at a higher risk of both homelessness and incarceration, and the many harms accompanying these situations. This means that if we are to put less youth behind bars, we must address the specific needs of LGBTQ youth who often end up homeless because of family conflict. In addition, we have to make finding stable housing post-release and eradicating discrimination based on criminal records a priority to avoid cycles of reincarceration.

Daiana Griffith is a student at Mount Holyoke College, graduating in May 2019. She contributed this post as a student volunteer over the winter term.

Red states, blue states: What do these mean for people on parole?

While preparing a report grading every state's parole release system, Jorge Renaud takes a deep dive into what makes a parole system fair and just.

by Jorge Renaud, January 2, 2019

When someone from the Northeast hears I’m on parole for a robbery in Texas, they invariably say something like, “Boy, I bet you’re glad you live in Massachusetts now,” assuming that the parole system in Massachusetts is as progressive as the state’s political reputation. As we prepare a report grading the parole release systems of all 50 states, the time is right to address this question — and dispel some myths.

From 30,000 feet the criminal justice landscapes of Texas and Massachusetts look very much as we expect from such typically red and blue states. Texas actively puts people to death; Massachusetts abolished the death penalty in 1982. You can’t vote in Texas if you have a felony conviction and are either incarcerated or on any type of supervision. In the Commonwealth, the only people denied the right to vote are in prison with felony convictions, but once they are out they can vote whether or not they are on parole or probation. And when it comes to sheer numbers, Massachusetts has the lowest incarceration rate in the country, with 324 individuals behind bars for every 100,000 residents, compared to the Texas rate of 891, the 7th highest among all states.

However, when it comes to parole, I’ve found that states that look progressive may in fact be oppressive, and those we dismiss as backwards might in fact face forward.

Prisons are the most visible, obvious manifestation of criminal justice. And for those incarcerated in prisons, the experience is shaped by hope: that they will someday leave prison, join civil society and never return. The likelihood that this hope will be realized in a given state — that an incarcerated person will be released and not return to prison — can largely be quantified. Measurable outcomes of state policies affect their chances: the frequency with which people are given life sentences, the average time incarcerated individuals actually serve, how often parole is granted, and how often paroled individuals are sent back to prison for minor, non-criminal violations rather than supported as they move back into society. Together, these factors make up what I’ll call a state’s “hope index” for people serving long sentences.

Let’s look at the factors that comprise the “hope index” of Texas and Massachusetts. Two of those measures are fairly even — how long individuals stay in prison and how readily they are released on parole. In 2015, Bureau of Justice Statistics data showed that 15 percent of individuals in Texas prisons had been there over 10 years. For Massachusetts, that number was 19 percent. The Robina Institute reported that in 2014, 36 percent of all parole hearings in Texas resulted in release being granted. Robina’s latest data for Massachusetts is for 2013, when the Commonwealth paroled 34 percent of all individuals eligible for release who actually attended hearings. (That same year, the Massachusetts Parole Board reported that the “paroling rate” was 58 percent. However, that number doesn’t take into account the 2,944 waivers by incarcerated individuals who “may not be interested in adhering to expected parole conditions….” More on that in a moment.)

Figure 1. In Texas, the parole grant rate more than doubled between 1997 and 2014 (no data were available for 2000). In Massachusetts, the grant rate fell between 2006 and 2013, while the portion of hearings that were waived or postponed increased, to make up nearly half of all scheduled release hearing outcomes in 2013. (For an explanation of this data, and why our calculated grant rates for Massachusetts are lower than those reported by the state, see the data note at the bottom of this post.)

The gap in the “hope index” becomes wider when we look at those who have an expectation of release. The Sentencing Project argues that sentences of over 50 years are “virtual life” sentences and adds those to the count of individuals sentenced to either life or life without parole (LWOP). By that count, one of every four people in a Massachusetts prison in 2016 was serving a life or virtual life sentence — the 6th highest rate in the country. Texas ranked 28th in that dismal category, with 12 percent of all individuals in Texas prisons serving life or virtual life sentences. (Lest the Commonwealth believe that including “virtual” life sentences is unfair, using just LWOP sentences leaves Massachusetts with the 2nd highest rate; 12 percent of everyone in Massachusetts prisons have LWOP sentences, trailing only Louisiana’s 13 percent. In Texas, that number is 0.5 percent.)

When it comes to staying out after release on parole, the two states again look very different from what we might expect. In 2016, Massachusetts returned 490 individuals on parole to prison; 83 percent of those were returned for a technical violation (that is, without committing a new offense). Texas returned 7,142 to its prisons, of which 18 percent were for technical violations without a new offense. Put a different way, in 2016 Massachusetts returned almost a quarter (22 percent) of its entire parole population to prison without any of them committing a new offense, while Texas returned just one percent for technical violations. In Texas, parole offers a real hope of success for those released. In Massachusetts; well, as state officials themselves write, “By virtue of being under supervision in the community, an inmate may have a higher likelihood of re-incarceration.”

Figure 2. While Texas has a much larger parole population overall, and therefore returned more people to incarceration in 2016, three-quarters of returns to incarceration in Texas were for new offenses. Meanwhile, technical violations accounted for more than 4 out of 5 returns to incarceration from parole in Massachusetts.

Why does Massachusetts have such a low “hope index,” especially compared to Texas? Maybe the Commonwealth is diverting individuals with low-level offenses and only sending individuals to prison who commit serious and violent crimes. However, in both states, violent offenses account for approximately two-thirds of the prison population (60 percent in Texas compared to 70 percent in Massachusetts).

It may be that the Massachusetts “hope index” is skewed because over half of all scheduled parole release hearings are postponed or waived. By far the largest percentage of individuals leaving prison in the Commonwealth discharge their sentence, or “max out.” This means that a large number of individuals in Massachusetts prefer to finish their sentence rather than be on parole. (Which begs the question: Why?)

The truth, however, is simpler. First, despite the “throw away the key” rhetoric of the state’s politicians, the Texas Board of Pardons and Paroles has doubled its parole grant rate from 18 percent in 1999 to 36 percent in 2014, which was a big part of why the overall incarceration rate in Texas dropped from 1,050 in 2003 to 837 in 2014.

Second, the Texas Board of Pardons and Paroles doesn’t revoke many individuals on parole, especially not for technical violations without a new offense. The agency has not returned more than 3 percent of its parole population to prison for a technical violation since at least 2006, when the Bureau of Justice Statistics began compiling that data.

But most critically, the Texas Board of Pardons and Paroles only votes on releases and revocations — its staff do not supervise individuals on parole. That is done by the Parole Division of the Texas Department of Criminal Justice. This means parole officers in Texas are free from the political pressure that Massachusetts parole officers and supervisors surely feel, because in the Commonwealth, the officers out in the field are directly accountable to the political appointees who grant parole.

If you think that isn’t important, consider that then-Governor Deval Patrick cleaned out the entire Massachusetts Parole Board in 2011 for voting to release — and improperly supervising — Domenic Cinelli, who killed a Woburn police officer while on parole. Contrast that to the reaction of Texas parole officials when recently paroled Jose Gilberto Rodriguez killed three people and shot two others in July of 2017, sending Houston into a panic. Texas politicians didn’t hurl charges at the Board of Pardons and Paroles or its members, and an agency official told me they didn’t take those events lightly, but that those things “happen” and they did not plan any changes, in either supervision or release policies.

A final crucial difference between Texas and Massachusetts parole policies has a less quantifiable outcome, but surely affects individual success at rejoining civil society: In Texas, unlike Massachusetts, people under parole supervision are able to connect with other formerly incarcerated people, even if all are on parole, and draw on each other as a source of support. There are groups of individuals on parole and probation in Texas who are active politically, and whose voices and experiences are respected at meetings of city councils, commissioners’ courts, and at the Capitol. Massachusetts, in contrast, has a general parole condition that specifically prohibits anyone on parole from engaging “in a continuous pattern of association with persons known to have a criminal record…” and, in no uncertain terms, warns those on parole that they must, at the risk of revocation, tell their parole officer any time they are going to be in the presence of someone who has a criminal record. For those on parole, this policy not only isolates them from those who might best support and advise them as they move back into their communities — it gives any individual on parole the subtle message that they, too, are viewed with suspicion, and that others are warned against associating with them.

It’s impossible to explain the fact that Massachusetts — progressive, blue-state Massachusetts — returned to incarceration in 2016 almost a fourth of all individuals being supervised by the state parole board without those individuals being convicted of a new crime. So I won’t try.

What I can say is that “red” and “blue” don’t tell the entire story. Texas should take a hint from Massachusetts when it comes to slowing down incarceration rates, and Massachusetts could learn a thing or two from Texas about how to keep politics out of parole and give people serving long sentences a real reason to hope.

Our favorite data visualizations of 2018

2018 was another big year for powerful data visualizations from the Prison Policy Initiative. These are our 11 favorites.

by Wendy Sawyer, December 28, 2018

2018 was another big year for powerful data visualizations from the Prison Policy Initiative. These are 11 of our favorites, in the order they appeared this year:

1. The Gender Divide

In January, we tracked women’s state prison growth as far back as 1922 to show that women’s incarceration today is historically unprecedented. Our report also shows that the national trend obscures even more dramatic state variation. For example, in 2016, Oklahoma’s female prison incarceration rate was more than double the national average, and six times the rate in Maine. We illustrated the scale of these variations by charting four disparate state trends alongside the national trend:

2. Youth Confinement: The Whole Pie

For the first time, we compiled data on youth confinement in both adult and youth facilities — using our “whole pie” approach — to show what happens when justice-involved youth are held by the state: where they are held, under what conditions, and for what offenses. We found that nearly one in ten of these youth are held in an adult prison or jail, and that most in juvenile “residential placement” are held in similarly restrictive, correctional-style facilities.

Other graphics in this report highlighted some of the problems of the adult criminal justice system that are mirrored in the juvenile justice system, including punitive conditions, pretrial detention, and overcriminalization.

3. Mass Incarceration: The Whole Pie 2018

Our fifth edition of our “Whole Pie” report — and our most widely-referenced data visualization — offers the most comprehensive view of U.S. criminal justice confinement to date.

This year, we were able to include the 51,000 individuals held by the U.S. Marshals Service in the federal “slice,” as well as over 15,000 people held in state psychiatric hospitals due to justice system involvement. In addition to refining our methodology, we created four slideshows with detailed views of parts of the “pie” that are often misunderstood or overlooked, including federal detention and incarceration, jails and pretrial detention, drug offenses, and more.

4. Artist collaboration: Visualizing 10.6 million annual jail admissions

Following closely on the heels of the “Whole Pie” report, we collaborated with data journalist and illustrator Mona Chalabi to visualize how much greater the impact of jails is than the daily population suggests. While 731,000 people are held in jails on a given day, people actually go to jail 10.6 million times each year in the U.S.

What do 10.6 million jail admissions look like? To show us, Mona drew one person in handcuffs to represent one jail admission. She then repeated the image, much smaller, 10.6 million times:

To get the full effect, click through to the original post and start scrolling.

5. Showing that incarcerated people are buying necessities, not luxuries, in prison commissaries

Prison commissaries are an essential part of prison life, but until this year, we didn’t have good data about how much items generally cost or what incarcerated people are buying. For the report The Company Store, Prison Policy Initiative volunteer Stephen Raher pored over commissary sales records from Illinois, Massachusetts, and Washington to find that incarcerated people in these states spent an average of $947 per person, per year, and that most of that money goes to food and hygiene products. We illustrated the breakdown of per capita commissary sales with a tree map for each state, and one showing the averages of all three states:

6. Putting state incarceration rates in the global context

In our 2018 updates to States of Incarceration: The Global Context and its companion report focused on women’s incarceration, we compared each state’s rate of incarceration to those of 166 other countries, revealing that about half of all U.S. states have higher incarceration rates than any independent country on earth. Even states that have embraced “progressive” criminal justice reforms (like Massachusetts, below) incarcerate people at far higher rates than other Western democracies. To illustrate this point, we also created individual state graphs comparing states to founding NATO countries:

7. Showing the hidden costs in “free” tablet contracts

Illustrator Elydah Joyce artfully explained almost every scam we’ve documented in previous reports and how they were hidden within a “no cost” tablet contract between the New York State Department of Corrections and private company JPay:

8. Comparing unemployment among formerly incarcerated people to the Great Depression

In Out of Prison & Out of Work, we calculated the first-ever national unemployment rate for formerly incarcerated people: a staggering 27 percent. To put that in perspective, we charted the U.S. unemployment rate since 1929 to show that, for the 5 million formerly incarcerated people in the U.S., the odds of finding employment are worse than they were even at the peak of the Great Depression:

9. Explaining the links between education, the labor market, and unemployment among formerly incarcerated people

We connected the dots to show that changes in the labor market, combined with lagging educational attainment, have made it harder for formerly incarcerated people to compete for a dwindling number of low-skill jobs. This graphic from Getting Back on Course helps explain why unemployment rates are so high & and the need for educational opportunities is so great & for formerly incarcerated people:

10. The “Whole Pie” for women’s incarceration

This year, we went deeper with our analysis of women’s incarceration in our update to Women’s Mass Incarceration: The Whole Pie, produced in collaboration with the ACLU’s Campaign for Smart Justice. Women remain an overlooked segment of the incarcerated population, despite the rapid growth of women’s prison and jail populations. This report offers a snapshot of how many women are locked up on a given day, where, and why. A new detailed view of the 102,000 women held in local jails reveals that over half are unconvicted and awaiting trial:

While we continue to be frustrated by the lack of gender-specific data reported by government agencies, this report compiles the best sources available to help ensure that women are not left behind in the effort to end mass incarceration.

11. The big picture: correctional control by state

In our final report and infographic of the year, we compiled all of the state-level data available on various forms of state control — including incarceration in prisons and jails, probation, parole, youth confinement, involuntary commitment, and Indian Country jails — to give a more complete picture of correctional control. This broader view reveals that some states with comparatively low incarceration rates (like Rhode Island and Minnesota) have some of the highest rates of community supervision. Again, we are reminded that to end mass incarceration, every state will need to rethink its use of correctional control.

Voices that are pushing the envelope – best commentary of 2018

Our picks for writing that propels reform by offering a more complete understanding of mass incarceration.

by Bernadette Rabuy, December 27, 2018

This year, attorneys, researchers, and advocates proposed a more complete understanding of mass incarceration as a way to hasten its undoing. Here are our picks:

• My Resolution for 2018: Less Piety, More Complexity
  Joseph Margulies
  Justia Verdict
  January 8, 2018

  According to attorney and law professor Joseph Margulies, supporters of criminal justice reform resort to a few go-to critiques of the criminal justice system that can be summed up with, “What led to the punitive turn in criminal justice? Conservative whites wanted a new way to control blacks. How did we get mass incarceration? The war on drugs. And what is the war on drugs? Yet another way for whites to destroy the lives of young black men.” In this column, Margulies explains how these narratives oversimplify the issue of mass incarceration and announces that he is discarding easy but incomplete explanations.

• How a Bad Law and a Big Mistake Drove My Mentally Ill Son Away
  Norman J. Ornstein
  The New York Times
  March 6, 2018

  Sharing his personal story of using Florida’s Baker Act to involuntarily commit his son, Norman J. Ornstein is rightfully skeptical that three-day mental health holds can prevent tragedies like suicide and murder. Instead, Ornstein calls for comprehensive mental health treatment, respect for people with mental illness’ civil liberties, and empowering their family members.

• The Recidivism Trap
  Jeffrey A. Butts and Vincent Schiraldi
  The Marshall Project
  March 14, 2018

  In this op-ed, researchers Jeffrey A. Butts and Vincent Schiraldi propose a new approach to evaluating criminal justice systems that no longer focuses on recidivism but rather asks whether interventions are helping formerly convicted people become more law-abiding. Under this new approach, for example, a person who was arrested five times for burglary in one year but only once the following year would be viewed as someone who has taken a step away from crime. Butts and Schiraldi are hopeful that changing the measure of success would result in solutions that more effectively fulfill the goals of corrections and rehabilitation.

• Black crime victims too frequently slighted by justice system
  Tanya Coke
  USA Today
  April 18, 2018

  Tanya Coke, a former criminal defense attorney and crime survivor, describes the barriers that prevent black crime survivors from getting the healing they need. Too often, black males are assumed to be perpetrators of violence rather than victims. As a result, racial bias infects prosecutions, crime reporting, and service delivery. For example, access to crime victims compensation funds requires a police report, which victims of color may feel too distrustful of police to acquire. The op-ed is hopeful, highlighting the work of organizations such as Crime Survivors for Safety and Justice, which are providing a platform for crime survivors of color to influence criminal justice reform.

• What Nelson Mandela Lost
  Tayari Jones
  The New York Times
  July 6, 2018

  English professor Tayari Jones uses the publication of Nelson Mandela’s letters from prison to highlight the impact of imprisonment. Incarcerated people are “subjected to great violence, as though their sentence invalidates their own legal protections. While these severe deprivations are harrowing, Mr. Mandela’s prison letters underscore isolation’s other violence: Every incarcerated human is stripped of family.” Jones proposes that to properly honor Nelson Mandela, we should remember him as not only an international leader, but also one of the many incarcerated men and women separated from their families and denied basic rights.

• 3 Years Later, The Federal Government Still Hasn’t Counted Sandra Bland’s Death
  Ryan J. Reilly
  Huffington Post
  July 13, 2018

  The Justice Department’s Bureau of Justice Statistics has been counting jail deaths since 2000, releasing the data annually. But the office hasn’t done so since December 2016, when it reported data from 2014. Bureau of Justice Statistics officials told the Huffington Post that the 2015 data would be out this month, but researchers and advocates are still waiting. The data is crucial where suicides are consistently the leading cause of death in jail and the rate of jail suicides far surpasses that of state prisons or the American population in general. The incidence of jail deaths can alert authorities and policymakers to systemic issues such as lax oversight. The data is a necessary first step to ensuring that detention is not a matter of life and death.

• When the Police Become Prosecutors
  Alexandra Natapoff
  The New York Times
  December 26, 2018

  In an op-ed for The New York Times, law professor Alexandra Natapoff both shines light on the need to include misdemeanors in calls for criminal justice reform and reveals that, in some states, police officers act as prosecutors. Natapoff reminds readers that even minor criminal charges can have disastrous consequences. People may be detained pretrial and as a result lose their jobs, disrupt their child care, or risk their immigration status. They may struggle with paying fines, completing probation, or obtaining future employment, education, and housing. Further, in hundreds of misdemeanor courts in at least 14 states, defendants face a peculiar setup. Police officers can file criminal charges and handle court cases, meaning people must defend themselves against and negotiate with the very people who arrested them.

Our favorite investigative criminal justice reporting of 2018

Reporters are deepening our understanding of complex facets of the criminal justice system and illuminating paths to reform. We share some of our favorites.

by Bernadette Rabuy, December 27, 2018

This year, reporters gave a voice to the vulnerable, filled in critical data gaps, and deepened our understanding of complex issues in the criminal justice system. Here are some of our favorites:

• One War. Two Races.
  Herald-Tribune
  December 2017*
  
  Analyzing millions of records across five databases, this four-part series published late last year finds that drug laws continue to disproportionately hurt Black defendants in Florida, even as the drug epidemic extends its reach beyond communities of color and treatment becomes more common. The series includes an interactive map that allows readers to grasp how each region is confronting the drug epidemic. A review of one state prosecutor’s drug cases revealed that he was far more likely to drop charges against white defendants than Black defendants. In Highlands County, judges sentence Blacks to more than double the time than whites for felony drug crimes. Even when it comes to drug court or government-funded treatment programs, Blacks are less likely to have the opportunity to participate. The Herald-Tribune’s series highlights that despite shifts in the response to substance abuse, racial bias stubbornly remains.
• How to Buy a Gun in 15 Countries
  Audrey Carlsen and Sahil Chinoy
  The New York Times
  March 2, 2018

  The ease with which many Americans purchase guns is unique internationally. This piece lays out the process for buying guns in fifteen countries, demonstrating that the U.S. is out of step with many other countries in not requiring firearm safety training, police inspections of storage, or interviews of potential buyers’ family, friends, and neighbors. The article suggests that gun ownership in the U.S. surpasses that of any other country because of the country’s lax requirements for ownership.

• Women describe degrading strip searches at Baker prison visitation
  Ben Conarck
  The Florida Times-Union
  March 21, 2018

  Earlier this year, the Florida Department of Corrections enacted a policy requiring that visitors undergo strip searches if they set off metal detectors. Ben Conarck investigates whether there is support for the department’s purported justification that visitors are bringing in contraband. Conarck finds that corrections officers, prison researchers, and even the department’s own data agree that contraband rarely enters prisons through visitors. Be sure to also check out The Florida Times-Union’s editorial arguing that there is no justifiable reason for Florida to discourage visitation and our own national survey of contraband in jails, which calls into question visitation policies that criminalize incarcerated people’s loved ones.

• Prosecutors aren’t just enforcing the law—they’re making it
  Josie Duffy Rice
  The Appeal
  April 20, 2018

  These days, it seems like everybody is talking about the powerful role that prosecutors hold in the criminal justice system. In this article, Josie Duffy Rice shines light on their less talked-about but influential reach as lobbyists. Trading on paranoia and fear, district attorneys nationwide not only enforce the law but also make it. Prosecutors adamantly oppose legislative reforms that promote mercy toward defendants or implement oversight over law enforcement.

• Sex Crimes and Criminal Justice
  Barbara Koepple
  The Washington Spectator
  May 4, 2018

  Barbara Koepple allows readers to peek behind the curtain of civil commitment, the practice of states civilly detaining people convicted of sexual offenses after completion of their prison sentences. While states claim that civil commitment is necessary to prevent sexual crimes, Koepple explains that its roots actually trace back to ill-founded beliefs about how likely people convicted of sexual offenses are to recidivate and disproportionate media reporting of sexual crimes. The investigation uncovers a broken system, in which it is nearly impossible for people to be released from civil commitment, whether due to the subjectivity of the criteria for release or irrational rules that can easily be broken. In pointing out the high costs of civil commitment and other approaches in states like Vermont and internationally, the article is also an urgent call for reform.

• Mothers Are Incarcerated at Record Rates, Yet Prison-Nursery Beds Go Empty
  Victoria Law
  Jezebel
  May 13, 2018

  Despite the thousands of pregnant women behind bars each year and the upward trend in women incarcerated, Victoria Law finds that most correctional nursery programs have empty beds. Correctional nursery programs have real benefits such as making it less likely that an incarcerated mother will lose her parental rights, but the stringent eligibility criteria make it difficult to participate even when a program is available. Prison nurseries highlight broader challenges in the movement for criminal justice reform— prioritizing community alternatives to incarceration and making reforms available to people convicted of violent offenses.

• Trump’s catch-and-detain policy snares many who have long called U.S. home
  Mica Rosenberg and Reade Levinson
  Reuters Investigates
  June 20, 2018

  When the media and the public were focused on Trump’s family separation policy, Mica Rosenberg and Reade Levinson highlighted an unofficial family separation policy. Under Trump, ICE denies bond much more frequently, requiring even immigrants with little to no criminal history and deep roots in their communities to wait for their hearings behind bars. The investigation explains how local police collaborate with ICE by turning over immigrants suspected of committing minor traffic violations and provides an additional example of the tenuous link between pretrial detention and public safety.

• If He Didn’t Kill Anyone, Why Is It Murder?
  Abbie VanSickle
  The New York Times
  June 27, 2018

  Abbie VanSickle shines light on the California legislature’s efforts to scale back felony murder, a legal doctrine which allows individuals involved in certain kinds of serious felonies that lead in death to be held as liable as the killer. One motivation for reform was felony murder’s disproportionate impact on women and young Black and Latino men. The legislation, which the governor successfully signed into law, changes state law so that only someone who actually killed, intended to kill, or acted as a major player can be charged with murder. The article highlights that the distinction between violent and nonviolent offenses can be murky.

• Police Violence Map
  Mapping Police Violence
  2018

  Mapping Police Violence compiles data from three databases, FatalEncounters.org, the U.S. Police Shootings Database, and KilledbyPolice.net, and their own sifting through social media and obituaries to find that police have killed 1,122 people in 2018. The interactive map memorializes the victims and provides a description of the incident, information about whether the officer was charged, and links to related news stories. The Police Violence Map provides critical data that the government has thus far failed to systematically report.

*Technically 2017, but we thought it was worth including this in-depth undertaking that we initially missed

Timeline: The 18-year battle for prison phone justice

The fight to make prison and jail phone calls affordable began in 2000. For those wondering "why is this taking so long?", here are the key dates.

by Peter Wagner and Alexi Jones, December 17, 2018

Journalists and others often ask about how the movement for phone justice began and why this is taking so long. Here are the key dates:

2000:

Martha Wright, a grandmother who was struggling to afford calls to her incarcerated grandson, sues a private prison company over the contracts it has with various phone companies.

2001:

Federal Court grants motions by private prison company and telephone companies to refer the case to the Federal Communications Commission (FCC).

2002-2011:

For nearly 10 years, the Federal Communications Commission takes no visible action.

2012:

The Federal Communications Commission files a Notice of Proposed Rulemaking (NPRM) regarding the Wright Petition.

2013:

The Federal Communications Commission votes 2-1 to approve new regulations that set interstate rate caps of 21 cents a minute for debit and pre-paid calls and 25 cents a minute for collect calls. The one dissenting vote is from FCC Commissioner Ajit Pai, who previously represented prison phone giant Securus in private practice.

2014:

Despite legal challenges from prison phone companies, the FCC’s new rate caps go into effect in February.

2015:

In October, the FCC issues additional regulations, lowering the cost for all calls from prisons (out-of-state and in-state) to 11 cents a minute, and lowering the cost of calls from jails at 14 to 22 cents a minute depending on the size of the institution. The FCC also approves comprehensive reform and caps on the cost of “ancillary fees” that can double the cost of a call. Again, Commissioner Pai voted against these regulations. Many of the phone companies, several state prison systems, county jail systems, and sheriff associations file suit challenging the FCC’s order.

2016:

The federal court issues a partial stay of the Federal Communications Commission’s October 2015 regulations, preventing the new rate caps from taking effect. The new regulations on fees, however, go into effect. The lawsuit moves very slowly.

2017:

In January, Donald Trump appoints FCC Commissioner Ajit Pai the Chairman of the FCC. In February, Pai, who had twice voted against regulating the industry, announces that the FCC will stop defending its in-state rate caps in court. However, the FCC does consent to 6 advocacy organizations, including the Prison Policy Initiative, defending that part of the lawsuit as intervenor-defendants. In June, despite this effort, the federal court strikes down the FCC’s 2015 rate caps. The 2013 rate caps, and the 2015 fee caps, remain in place.

For more on the struggle for phone justice, see our campaign page.

Our list of criminal justice campaigns that can win in 2019

by Aleks Kajstura, December 12, 2018

This report has been updated with a new version for 2022.

The 2019 legislative session is almost upon us, and we’ve compiled – as we do every year – a list of under-discussed but winnable criminal justice reforms. While federal prison reform continues to receive more than its fair share of attention, state legislatures and governors remain empowered to determine the future of mass incarceration.

We publish this list as a briefing with links to more information and model bills, and recently sent it to reform-minded state legislators across the country. (To read about recent legislative victories on these fronts – such as three states ending unnecessary driver’s license suspensions in 2018! – see our new Annual Report.)

Our list of reforms ripe for legislative victory are:

• Ending prison gerrymandering
• Lowering the cost of calls home from prison or jail
• Protecting in-person family visits from the video calling industry
• Stopping automatic driver’s license suspensions for drug offenses unrelated to driving
• Repealing or reforming ineffective and harmful sentencing enhancement zones
• Protecting letters from home in local jails
• Requiring racial impact statements for criminal justice bills
• Creating a “safety valve” for mandatory minimum sentences
• Eliminating “pay only” probation and regulating privatized probation services
• Reducing pretrial detention
• Decreasing state incarceration rates by reducing jail populations
• Curbing the exploitation of people released from custody
• Ending electronic monitoring for individuals on parole
• Shortening excessive prison sentences

Could your state be working on any of these reforms? We’re looking forward to the progress we can make together in 2019!

We know how to prevent opioid overdose deaths for people leaving prison. So why are prisons doing nothing?

Treatment programs offer promising results for recently incarcerated people, but prisons aren’t using them.

by Maddy Troilo, December 7, 2018

The national opioid epidemic is killing formerly incarcerated people at shocking rates. Recent research from North Carolina, Massachusetts, and Rhode Island reveals the extent of this crisis and points towards possible solutions. Despite a growing body of evidence that specific treatments work effectively, most prisons are refusing to offer those treatments to incarcerated people, vastly worsening the overdose rate among people in and recently released from prison. Last month, the President signed into law the SUPPORT for Patients and Communities Act, which aims to combat the national epidemic but will likely have mixed results. States, departments of corrections, and the federal government can and must do more to help.