Meeting new board members: Nora Demleitner

Professor of Law Nora Demleitner explains why she joined the Prison Policy Initiative board.

by Alison Walsh, August 23, 2016

We are excited to welcome Nora Demleitner to the Prison Policy Initiative board! Nora is a Professor of Law at Washington and Lee University School of Law. We asked her a few questions about her work on sentencing and comparative criminal law, as well as what motivated her to become involved with the Prison Policy Initiative.

Why did you decide to join the Prison Policy Initiative board?

Nora Demleitner: Peter’s courage and vision impressed me when he started the Prison Policy Initiative. He is the model of a law graduate on a mission, willing to do what it takes to make a goal become reality. He has built the Prison Policy Initiative from a fledgling single-issue one-man operation into a multi-faceted research and advocacy organization with great impact. How could I not want to be working with a smart and insightful group of people on issues of enormous importance to the country?

What does your work focus on? And what’s the connection between that work and the Prison Policy Initiative?

Nora Demleitner: My research focuses on sentencing and collateral sanctions, often with a comparative angle. I have worked on sentencing issues for over two decades, after a law school sentencing seminar and the prison project there inspired me to learn more and to help bring a different attitude to our criminal justice system. I joined the Federal Sentencing Reporter as an editor, and later became the lead author on a casebook on sentencing, Sentencing Law and Policy.

On my collateral sanctions work, I initially focused on felon disenfranchisement and then turned to restrictions on sex offenders. I also looked at the panoply of collateral sanctions that make it virtually impossible for someone with a criminal record to be ever again recognized as a full member of our society. That perpetual exclusion carries a host of negative consequences for the individual, their families and communities, and ultimately for all of us.

Frequently I compare our practices to those of other countries, especially in Western Europe. Our punitiveness and our unwillingness to accept someone who made a mistake back into society stand out. We are our own worst enemy, and I want to support the Prison Policy Initiative in helping bring about necessary change. We need to learn from best practices here and abroad and infuse our criminal justice system again with humanity. Change is necessary as the current approaches too frequently penalize the poor and disadvantaged, minority and other diverse communities. Our criminal justice system cannot and should not be expected to remedy other social ills, ranging from failing schools to an ineffective mental health system.

What do you think is most unique about the Prison Policy Initiative and the projects it takes on?

Nora Demleitner: The Prison Policy Initiative is the mouse that roars. How can such a small organization, located outside the typical locations for successful not-for-profits makes such a difference? I credit Peter’s vision, the team he has built, tenacity and grit, an intuitive sense of how to proceed to make the most difference, and a drive for results. The Prison Policy Initiative has taken on topics of great import – the Census count of inmates or the actions of the prison phone industry, for example – and worked on changing unfair practices. That success breeds recognition and further success. It also focuses attention on exploitative and unfair practices in novel ways. The Prison Policy Initiative’s attention is as often focused on improving the lot of the individual offender and their families as it is on protecting core values of our society, such as equal representation.

It is exciting to see an organization that is constantly keeping an eye out for topics that fit its mission. In addition, the Prison Policy Initiative has been spreading its wings in other ways. The relatively recent addition of the Research Clearinghouse, a database of empirical criminal justice reports, is one such example. I love the e-mails that assure that I won’t miss leading reports and relevant information on a host of criminal justice topics.

What’s something that you wish more people knew about the Prison Policy Initiative?

Nora Demleitner: For the Prison Policy Initiative it is not about garnering accolades and acclaim. It is about results, about being a catalyst for positive change in the criminal justice area, and about distributing knowledge and insight.

Two things stand out for me: First, it has been invigorating to see how a single person with the drive to tackle injustice and abuse can do so successfully. What a role model Peter is! I wished more law students and young lawyers knew about him and his story.

Second, even those who may ideologically disagree or be uncertain about their position on some of the issues for which the Prison Policy Initiative advocates, should know about the Research Clearinghouse. It is an amazing resource, and I encourage everyone to sign up – today.

Supporting the Prison Policy Initiative makes you feel good because they get results on issues that matter.

The criminal justice system is riddled with racial disparities

These 5 graphs break down just how riddled the U.S. criminal justice system is with racial disparities.

by Alison Walsh, August 15, 2016

Race is a defining characteristic of the criminal justice system.

It is common knowledge that Blacks are disproportionately represented in prison. Looking at different types of incarceration sentences shows us how pervasive these disparities really are. This slideshow scrolls through the various incarceration sentences one may receive compared to the U.S. population, broken down by race.

Once a person is sentenced to jail, we see that Blacks are overrepresented and Whites are underrepresented, compared to the U.S. population as a whole. This disparity endures in state and federal prison sentences, life sentences, life without parole sentences, and in the death row population.

Data sources:

• U.S. Census Bureau, QuickFacts (Using July 1, 2014 estimates)
• Bureau of Justice Statistics, Jail Inmates at Midyear 2014
• Bureau of Justice Statistics, Prisoners in 2014
• The Sentencing Project, No Exit: The Expanding Use of Life Sentences in America (2008)
• NAACP Legal Defense and Education Fund, Inc., Death Row U.S.A. (2016)

The data:

Meeting new board members: Dan Kopf

Learn more about Dan Kopf, the newest member of Prison Policy Initiative's board.

by Alison Walsh, July 25, 2016

We are pleased to welcome Dan Kopf to the Prison Policy Initiative board. Dan is a data scientist in California and a writer at Priceonomics who has been a member of our Young Professionals Network since February 2015. He is the co-author of several Prison Policy Initiative reports, including The Racial Geography of Mass Incarceration, Separation by Bars and Miles: Visitation in state prisons, Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned, and Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time.

Why did you decide to join the Prison Policy Initiative board?

Dan Kopf: The Prison Policy Initiative does incredible work advocating for the end of mass incarceration and the humane treatment of those who are incarcerated – and they do it on a shoestring. I joined the board because I wanted to support, in whatever way possible, an organization I admire.

What does your work focus on? And what’s the connection between that work and the Prison Policy Initiative?

Dan Kopf: I am a data journalist focused on reporting statistical trends in society. Just like the Prison Policy Initiative, my work entails communicating complex topics clearly and in a manner that excites the public.

What do you think is most unique about the Prison Policy Initiative and the projects it takes on?

Dan Kopf: I have been most impressed by the dedication and combination of skills of the staff. This is a group of people that have the rare combination of communication skills, facility with technology and data, and passion.

Maryland proposes – and promptly withdraws – plan to ban letters to people incarcerated in the state’s prisons

A now-withdrawn proposal would have made Maryland the first state to ban letters to people in state facilities.

by Alison Walsh, July 20, 2016

You may have missed it, but for a short time in Maryland, an alarming policy was on the table. The Maryland Department of Public Safety and Correctional Services proposed the first total ban on letters to incarcerated people in state facilities. Claiming that the prison system needed to stop the spread of drugs hidden in envelopes, prison officials recommended restricting all correspondence to postcards. Previously, only county jails had ever introduced such a shortsighted and counterproductive policy.

We documented the many reasons why postcards are not an acceptable substitute for letters from home in our 2013 report, Return to Sender: Postcard-only mail policies in jail. Families limited to postcards have no way to shield confidential information or attach drawings and photographs. Plus, regular correspondence by postcard is much less cost-effective. We calculated that each word written on a postcard is about 34 times more expensive to send than a word written on letter-sized paper.

Fortunately, the ACLU of Maryland responded swiftly. The civil liberties organization pointed out that a letter ban would have consequences far beyond the state’s prison walls.

The implications of such a sweeping regulation cannot be overstated. The policy you propose would affect not only the 21,000-plus people in your custody, but also the tens of thousands of Marylanders who are connected with them. The scheme would forbid a pastor from writing to a parishioner who is now incarcerated—indeed, it would forbid letters from organizations that provide all kinds of supportive services to those who are inside. The proposal would rob families of one of the most profoundly significant forms of communication in our society. Under the new scheme, an ailing mother could not send her son a letter for him to hold onto after she is gone. A teen could not write her mom to tell her the things she can’t say in a visit.

The negative publicity worked. Shortly after the ACLU of Maryland issued their response, the Maryland Department of Public Safety and Correctional Services withdrew the request.

The Department of Public Safety and Correctional Services is withdrawing its request for limiting mail to postcards for offenders in our facilities.

Secretary Stephen Moyer will form a focus group to determine the best options for eliminating contraband coming into our facilities through the mail.

The group will also research the most effective procedures to ensure the safety of our staff and those in our custody.

The withdrawal is a positive development, but, as the ACLU of Maryland points out, the proposal never should have been under serious consideration.

We are glad that the Department of Public Safety and Corrections is dropping an extreme proposal to ban incoming personal letters. But this should never have come up in the first place. The proposed ban comes on top of other changes that have harmed families’ ability to be in touch, like visitation rules. We are urging the Department to ensure that it is working in ongoing and meaningful partnership with families who can best advise the Department about how to ensure efforts to address security concerns do the least damage possible to families. The Department’s proposed workgroup is an excellent place to start.

For more on the now-defunct proposal, including the perspectives of formerly incarcerated people and their families, see the ACLU of Maryland’s full press release.

Paging anti-trust lawyers: Prison commissary giants prepare to merge

Two of the biggest players in the prison and jail commissary market are planning to merge: The corporate parent of Trinity Services Group will be acquiring Keefe Group.

by Stephen Raher, July 5, 2016

Two of the biggest players in the prison and jail commissary market are planning to merge. In May, H.I.G. Capital (owner of food-service and commissary operator Trinity Services Group) announced that it would be acquiring Keefe Group, one of the largest for-profit operators of prison and jail commissaries. A combination of the two companies would make a formidable player in an industry that is already concentrated among a small number of firms.

Prison and jail commissaries are big business. As explained at the end of this article, we estimate that commissaries throughout the country rake in about $1.6 billion in sales each year. An increasing number of facilities are outsourcing commissary operations to for-profit companies like Keefe and Trinity. But these companies are privately held, and it’s hard to find hard data on their size and profit margins. This article discusses what we currently know about the commissary industry, and why the Keefe/Trinity merger should be a matter of concern to incarcerated people, their family members, and anti-trust regulators.

How many commissaries are outsourced to for-profit companies?

It’s hard to know how prevalent outsourcing is across all commissaries. In 2013, the Association of State Correctional Administrators (ASCA) conducted a survey of prison commissaries. Of the thirty-four state prison systems that responded to the survey, twelve (about one-third) reported some level of commissary privatization. Based on anecdotal evidence, privatization seems to be more common in county jails, which are smaller and thus lack the economies of scale that state prison systems can leverage.

When facilities do outsource commissaries, the contractor’s profits are driven not just by the sheer numbers of people incarcerated at any given time (about 2.3 million people), but also from the fact that, as facilities cut their budgets for food and subsistence, incarcerated people are forced to pay for basic necessities out of their own pockets. For example, when the Ohio prison system outsourced its food service operations, commissary orders increased dramatically, as people bought food to supplement what they were served in the cafeteria. Texas state prisons provide soap free of charge, but people must purchase their own toothpaste. And people incarcerated at the Denver jail have to buy their own underwear (which created some confusion, causing the Keefe-run commissary to short the county on its commission payments, according to an audit).

Notably, Keefe Group is not just a commissary company–it’s a network of six companies that operate various prison-related businesses. In addition to commissary operations, Keefe’s holdings include Inmate Calling Solutions (dba ICSolutions), a communications company that operates in prisons and jails (ICSolutions and H.I.G. filed a notice of the sale with the Federal Communications Commission on June 9, 2016).

What does the proposed merger mean for incarcerated people and their families?

As explained below, a combined Trinity/Keefe commissary company could, based on historical revenue figures, reap annual revenues of $875 million. This amounts to more than half of the total $1.6 billion commissary market. But the $1.6 billion figure includes government-run commissaries, so Trinity/Keefe’s share of the privatized commissary market would be far in excess of 50%. Calculating a precise number is not possible, both because it’s difficult to know what percentage of commissaries are privatized, and because Trinity’s revenue figures include money from non-commissary food-service contracts (Keefe’s numbers, as explained below, are based only on Keefe’s commissary subsidiary).

A review of recent procurement actions by jails looking to outsource their commissary operations suggests that there are three dominant companies in this market: Keefe, Trinity, and Aramark. Because jails often receive a commission (kickback) from commissary operators, the same economic distortions that plague the prison phone industry are also at play in commissaries: the winning bidder isn’t necessarily the company that offers the lowest prices for incarcerated people and their families. Nonetheless, reduced competition will only make things worse. Those facilities that do want to negotiate for fair pricing will have less leverage, and higher prices are a distinct possibility.

In their joint filing with the FCC, Keefe and H.I.G. argue that the acquisition “will serve the public interest by providing additional capital to [ICSolutions], which in turn will enhance its ability to maintain and improve its network and services.” What this self-serving statement fails to address is whether ICSolutions (or any other Keefe Company) actually lacks adequate capital. The answer is probably no. Given the market shares of Trinity and Keefe, the proposed transaction seems to be motivated by a desire to dominate the market–something that antitrust regulators should closely scrutinize.

Explaining the math

Because there is no authoritative data source for prison and jail commissary sales, we used the 2013 ASCA survey as our starting point. In that survey, twenty-eight states reported total annual sales of $517.5 million (the profits in those states totals upwards of $57 million), which equals annual sales of $674 per incarcerated person.¹

To estimate commissary sales in the states that did not report figures to ASCA, we multiplied the average per capita figure of $674 by the total prison population of the twenty-two non-reporting states, which yields estimated sales of $348 million.

To estimate the size of the jail commissary market, we calculated the per capita sales figures for seven counties where financial information was publicly available.² The average per capita revenue for these seven counties is $782. We multiplied that amount by the total national jail population of 646,000, resulting in a total jail market of $505 million.

Finally, we added the Federal Bureau of Prisons’ commissary sales (as reported to ASCA).

Adding up all of the aforementioned categories results in a total commissary revenues of $1.6 billion per year, as follows:

As far as sales for Keefe and Trinity are concerned, both companies are privately held, and therefore financial information is hard to come by. But in a 2015 bid for an Arizona contract, Trinity claimed annual revenues of over $500 million (this comes both from commissary operations and general food-service contracts), and a captive customer base of approximately 475,000 incarcerated people spread throughout 700 facilities in 44 states.

In 2014, Keefe Commissary Network (one of the Keefe Group companies) bid to operate the commissary system for the West Virginia Division of Corrections. The company’s proposal included 2012 financial statements for the commissary subsidiary, reporting total sales of $375 million, with a net profit of $41 million. This equates to a 10.9% profit margin, which is quite robust (as a point of comparison, Wal-Mart’s profit margin is around 3%).

Based on these historical numbers, combined sales for the two companies could top $875 million. That’s equivalent to controlling every commissary in every state prison.

Father’s Day behind bars

An increasing number of fathers are spending Father's Day behind bars, away from their loved ones.

by Alison Walsh, June 17, 2016

Father’s Day is stereotypically a happy occasion. But an increasing number of fathers will spend the day away from their loved ones, separated by prison walls. The number of incarcerated men who reported being the fathers of minor children rose to nearly 750,000 in 2007 (the most recent year for which we have data available), a 57% increase from 1991. This holiday is a reminder that incarceration affects entire families, not just the people behind bars.

License suspension reform spreads to Ohio

Ohio follows in Massachusetts' footsteps by ending unnecessary driver's license suspensions.

by Alison Walsh, June 15, 2016

In Ohio this week, Governor John Kasich signed a bill into law that allows judges to choose whether to suspend driver’s licenses for non-driving related drug offenses. Prior to this reform, these suspensions were mandatory.

The bill’s sponsor, Senator Bill Seitz, argued that the suspension policy created an unnecessary barrier to employment. The governor of Massachusetts cited similar concerns when he ended automatic license suspensions for drug offenses unrelated to road safety in March.

Several states, including Texas and New York, still enforce this outdated law, but momentum is on the side of reform. In Seitz’s words, “We’re not doing anything radical — we’re kind of catching up to the crowd.” Which state will be next?

Stay tuned for a Prison Policy Initiative report on the remaining states that have yet to repeal this regressive law.

Some private prisons are, um, public.

Private prisons get all the attention, but the hidden truth is that many county jails are profiting off incarceration too.

by Peter Wagner, June 9, 2016

Prisons owned and run by corporations that contract with state governments get far more attention than they deserve. But another huge provider of contractual prison services gets almost no attention whatsoever: local jails.

Yes, local jails. Nationally in 2014, 5.2% of those sentenced to prison were placed in county jails under contracts between state prison officials and local jails (compared to 8.4% with private prisons). In some states, this is big business for jails. In 2014, a whopping 51% of Louisiana’s state prison population was imprisoned in local jails. Or to say it another way, 75% of the jail cells in Louisiana parish (county) jails are used not for people serving jail sentences but are instead rented out to the state. And Louisiana isn’t alone:

In 15 states, over 10% of the local jail population was made up of people serving state or federal prison sentences in 2013. In 9 states, it was at or over a quarter of the jail population, in Mississippi it was over half, and in Louisiana the number was over 75%. Nationwide, 12% of the local jail population is actually there under contract with state or federal authorities. These figures were calculated from two Bureau of Justice Statistics data sources, the Mortality in Local Jails and State Prisons Series and National Prisoners Statistics Series.

The profit motive produces alarming effects. Local sheriffs rely heavily on state money to pad their law enforcement budgets and, as a result, have no incentive to support reforms to reduce the incarcerated population. In fact, the opposite is often true.

In Louisiana, sheriffs and wardens trade incarcerated people from parish to parish in an attempt to keep their jail beds full and the state money rolling in. It’s common for jail wardens to “make daily rounds of calls” to other parishes looking for incarcerated people to fill their beds when their jails are under-capacity. One Louisiana parish warden told The Times-Picayune, “I stay on the phone a lot, calling all over the state, trying to hustle a few.” Hustle a few incarcerated people, that is.

In Oklahoma, local sheriffs receive $27 per day for each person they hold for the state prison system, this makes up about 7% of some counties’ budgets. Sheriffs have gotten so dependent on the money from the state that they complained to the press when the prison system implemented reforms to reduce the state prison population.

And in Mississippi, in addition to the $29.74 per diem, the state “demands that local jails house state convicts who perform labor for free”. In some cases, incarcerated people perform city services, like picking up residents’ garbage. The Mississippi sheriffs see corporate private prisons as their direct competitors for a share of the declining number of people sentenced to state custody. The president of one county’s Board of Supervisors told the Huffington Post, “I think it’s political favors going around, the reason they’re doing that”, referring to his suspicion that state contracts were being given to private corporations rather than local jails.

In the end, the real harm is being done to those incarcerated. Local jails with profit motives are incentivized to house increasing numbers of people, without regard for services or educational programs for those incarcerated. The Times-Picayune reports that in Louisiana, those stuck in local jails on state contracts “subsist in bare-bones conditions with few programs to give them a better shot at becoming productive citizens.”

Incarcerated people find themselves locked in local jails for months, or even up to 10 years in Louisiana, unable to get access to the programs and services that may help them successfully reenter society. For this reason The Times-Picayune says, “Ask anyone who has done time in Louisiana whether he or she would rather be in a state-run prison or a local sheriff-run prison. The answer is invariably state prison.”

It is time to accept the counter-intuitive truth: sometimes the government profits off of mass incarceration.

Since 1999, private prisons and local jails have housed roughly the same number of those serving state and federal prison sentences. But when those interested in justice reform talk about profiting off of mass incarceration, they almost always leave local jails out of the conversation.

EFF warns against using incarcerated people as “endless supply of free data”

A report by the EFF uncovers some alarming facts about a new "Tattoo Recognition Technology" research program that uses images obtained from incarcerated people.

by Alison Walsh, June 7, 2016

An investigation by the Electronic Frontier Foundation has discovered that government scientists with the National Institute of Standards and Technology (NIST) are working with the FBI to develop automated “Tattoo Recognition Technology” for future use by police. Not only does this technology raise important civil liberties concerns, the Electronic Frontier Foundation (EFF) is objecting to how the data for this research was collected: from incarcerated people without their consent.

The digit rights advocacy group points out in a new report that NIST project leaders only submitted their research for ethical review after the experiments had concluded.

NIST’s Tattoo Recognition Technology program also raises serious questions for privacy: 15,000 images of tattoos obtained from arrestees and inmates were handed over to third parties, including private companies, with little restriction on how the images may be used or shared. Many of the images reviewed by EFF contained personally identifying information, including people’s names, faces, and birth dates.

If that wasn’t alarming enough, NIST researchers also failed to follow protocol for ethical research involving humans—they only sought permission from supervisors after the first major set of experiments were completed. These same researchers have also not disclosed to their supervisors that the tattoo datasets they are using to seed the experiments came from prisoners and arrestees. Under federal research guidelines, research involving prisoners triggers enhanced scrutiny and ethical oversight to prevent their exploitation. Instead, NIST and the FBI are treating inmates as an endless supply of free data. The EFF found that the Tattoo Recognition Technology research program violates existing federal ethics rules on experiments involving incarcerated people.

The lack of oversight is alarming, especially because there is a disturbing history of vulnerable populations being used for unsanctioned experiments that cause them harm. Past ethical abuses, like the infamous Tuskegee syphilis experiments on African-American men in the South and the brutal tests performed on men incarcerated at the Holmesburg Prison in Philadelphia, led to new rules to protect vulnerable populations from abuse. Research using incarcerated people now must be pre-approved by an Independent Review Board. That review didn’t happen here.

The EFF is calling on the government to immediately suspend the program, and for scientists to stop using images obtained from incarcerated people without their consent. This demand is particularly timely as the FBI and the NIST are about to launch the next stage of their research, which will involve the distribution of over 100,000 images.

Add your voice to the EFF’s campaign by visiting their Action Center and sending a message to the NIST that scientific ethics and human rights matter.

New report reveals huge variations in correctional control among states

New report provides big picture of mass incarceration with pie charts for each state and D.C.

June 1, 2016

FOR IMMEDIATE RELEASE: June 1, 2016

Contact:
Bernadette Rabuy
brabuy [at] prisonpolicy.org

Easthampton, MA — Prisons are just one piece of the correctional pie. Some of the seemingly less punitive states are actually the most likely to put their residents under some other form of correctional control, finds a new report by the Prison Policy Initiative.

Correctional Control: Incarceration and supervision by state builds off of the Prison Policy Initiative’s popular report, Mass Incarceration: The Whole Pie, to provide the big picture of mass incarceration. “We often get requests for versions of the pie chart report for each state. Our new report responds to this request with over 100 graphs illustrating the breakdown of the criminal justice system in each state plus D.C.,” said co-author of the report, Peter Wagner. The report also includes an interactive chart that ranks each state and D.C. by rate of total correctional control, which includes incarceration, probation, and parole.

The report uncovers tremendous variations in the forms and rates of criminal justice control:

• Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control.
• Rhode Island and Minnesota, two states with some of the lowest incarceration rates in the country, are among the most punitive when other methods of correctional control are taken into account.
• The capital of the “free world,” D.C., has a higher incarceration rate than any U.S. state and higher than any nation on the planet.

Correctional Control provides another metric for understanding where each state falls within the national landscape of mass incarceration and where state-based advocates may want to focus their attention. The authors of Correctional Control conclude that criminal justice reform strategies should aim to reduce the total number of people under correctional control rather than simply transfer people to other pieces of the correctional pie.

“As the movement to end mass incarceration continues to gain steam, it would be wise to include probation, the leading type of correctional control, in discussions of reform,” explained co-author of the report, Bernadette Rabuy. “Probation has the potential to be a powerful alternative to incarceration but, when used unnecessarily, serves only to widen the net and funnel more people into incarceration.”

The report and the 100+ graphs are available at: http://www.prisonpolicy.org/reports/50statepie.html

-30-