Are private prisons driving mass incarceration?

Private prisons are more like a parasite on the publicly-owned prison system, not the root cause of mass incarceration.

by Peter Wagner, October 7, 2015

In a word: No.

Private prison companies have found ways to profit on America’s experiment with mass imprisonment, but they are, to build on Ruthie Gilmore’s analogy, less the seed or the fertilizer fueling mass incarceration and more like a parasite on the publicly-owned prison system.

The vast majority of people incarcerated in this country are incarcerated in publicly-owned prisons. Only a small minority is in facilities operated by private companies under contract with states or the federal government. (And things get a little complicated because some “outsourcing” of incarcerated people goes not to private companies but to other governments. For example, almost half of the state prison population in Louisiana is actually housed under contract with local parish governments.)

This graph illustrates the late origin and limited impact of private prisons on the national landscape of state and federal prisons:

Note that the federal government didn’t even bother to track the size of private prisons until 1999 and that we calculated the size of the government-run prisons by subtracting the private prisons from the total. The data from 1987 to 2001 was collected and published by an academic in Florida with a uniquely close relationship with the industry. Due to different methodologies, the data aren’t entirely compatible but together they show the birth and initial growth of the industry follows rather than leads the prison boom. The industry’s long plateau in the last decade makes it clear that the private prison industry has largely been locked out of sizable growth.

Now, of course, the influence of private prisons will vary from state to state and they have in fact lobbied to keep mass incarceration going; but far more influential are political benefits that elected officials of both political parties harvested over the decades by being tough on crime as well as the billions of dollars earned by government-run prisons’ employees and private contractors and vendors.

The beneficiaries of public prison largess love it when private prisons get all of the attention. The more the public stays focused on the owners of private prisons, the less the public is questioning what would happen if the government nationalized the private prisons and ran every facility itself: Either way, we’d still have the largest prison system in the world.

But if private prisons aren’t at the root of mass incarceration, that doesn’t mean that private investors haven’t found ways to make our criminal justice system worse. The sins of the prison and jail telephone industry trying to charge families $1 a minute for simple telephone calls are well-documented. And the private bail industry keeps legislatures from passing sensible bail reforms that would allow poor, unconvicted people who pose no public safety threat to wait for their trial at home rather than in jail.

What I find most worrisome is the rush of private money to fuel the development of “alternatives” to incarceration like electronic monitoring or private probation services that ensnare people who previously would never have been under criminal justice system control. And worse, because many of these services are paid for by the person being monitored, they remove any fiscal barriers to large-scale unnecessary use.

FCC commissioners reveal details of their proposal to protect all families of incarcerated people

Their proposal would give families the telephone justice they have been asking for.

by Peter Wagner, October 1, 2015

For more than a decade, families have been calling on the Federal Communications Commission to provide relief from the exploitative prison and jail telephone industry that charges rates as high as $1/minute. We are excited to share that phone justice is now closer than ever.

Yesterday, FCC Chairman Wheeler and Commissioner Clyburn released a summary of their proposal for comprehensive regulation of the broken prison and jail telephone industry. The Federal Communications Commission will be voting on the proposal at their October 22 meeting.

The new proposal:

• Applies to all calls be they local, intra-state, or inter-state. (Previous regulations only applied to inter-state calls.)
• Lowers the maximum rate that can be charged to 11 cents a minute for state prisons, and 14 to 22 cents a minute for jails, depending on the size of the jail. (Most incarcerated people are in prisons and most people in jails are in the larger facilities that will have the lower rates.)
• Caps and bans the abusive hidden fees documented in our report Please Deposit All of Your Money: Kickbacks, Rates, and Hidden Fees in the Jail Phone Industry, that can easily double the price of a call. The proposed new fee caps are:
  • Payment by phone or website: $3 (currently up to $10)
  • Payment via live operator: $5.95 (currently up to $10)
  • Paper bills: $2 (currently up to $3.49)
  • Markups and hidden fees embedded within WesternUnion and MoneyGram payments: $0 (currently up to $6.95)
  • Markups and hidden profits on mandatory taxes and regulatory fees: $0 (We’ve seen these markups and hidden profits on “mandatory” taxes be 25% of the cost of the call)
  • All other ancillary fees: $0. (There are many of these charges. Some of the most egregious ones are $10 fees for refunds, $2.50/month for “network infrastructure” and a 4% charge for “validation”.)

The proposal also:

• Discourages but does not directly ban commissions (kickbacks of vendor profits to the correctional facilities).
• Bans flat-rate calling. (Currently some vendors insist on charging a fixed-price for calls of any length, so that a person who only needs a 1 minute conversation must still pay for a 15 minute call.)
• Takes effect very quickly; the new regulations will likely be effective by early 2016. (90 days after they are published in the Federal Register.)
• Seeks further comment on the video visitation industry and other advanced communications services.

Now that the FCC is finally prioritizing the families of incarcerated people, we need to keep the pressure on and make sure their final order reflects the strong protections provided in this proposal. No family should have to choose between putting food on the table and keeping in touch.

Please reach out to the FCC to urge them to pass this proposal, and ask your elected officials to do the same.

In-person family visits will return to Austin, Texas

Travis County, Texas will bring back in-person visits that were replaced with video visits in 2013

by Bernadette Rabuy, September 30, 2015

We are excited to share another victory in the struggle to protect traditional in-person visits from the exploitative video visitation industry. Yesterday, thanks to the hard work of families of incarcerated people, Grassroots Leadership, and other allies, Travis County, Texas legislators voted to bring back in-person visits that were completely eliminated from Austin jails in 2013.

Our January 2015 report, Screening Out Family Time: The for-profit video visitation industry in prisons and jails, found that not only did visits decrease by 28% after the sheriff banned in-person visits, but also that most families could not afford the high cost of remote video chats:

Through an open records request, we collected the video visitation usage data of Travis County, Texas from September 2013 to September 2014, finding that when Securus and the county charged the typical rate of $1 per minute, families barely used remote video visits. When promotional rates were offered, usage went up. But overall video visitation remained unpopular even when offered at approximately $0.20 per minute.

Our research found that Texas is one of the states with the greatest use of video visitation in the country, but fortunately families and advocates have been quick to stand up for the right of families to keep in touch and support their incarcerated loved ones. Last fall, thanks to community pressure, Dallas County, Texas rejected a Securus video visitation contract that would have required the elimination of in-person visits. And just last month a statewide law went into effect that protects in-person family visits by clarifying that the Texas Commission on Jail Standard’s requirement of at least two visits per week refers to in-person visits, not computer chats.

While the Texas law is a major step forward in rejecting the use of video as a replacement to in-person visits, more than 30 counties have applied to be exempted. We hope that these counties will follow in the footsteps of Travis County and listen to families who have long been saying video chats are simply not the same as in-person visits.

What would prison telephone justice look like?

What would effective state executive or legislative action for prison and jail telephone justice look like?

by Peter Wagner, September 29, 2015

Tomorrow, I’ll be speaking by telephone to the Iowa Governor’s Working Group on Justice Policy Reform about how the state can bring down the the cost of calling home from prisons and jails. The Working Group was announced at the Iowa Summit on Justice & Disparities, organized by the Iowa and Nebraska NAACP where I gave the keynote address.

I thought my notes about what the executive and legislative branches in state governments can do might be useful to advocates in other states, especially while we wait for the Federal Communications Commission to issue their next ruling.

Executive Branch:

1. Renegotiate the state’s contract with the phone vendor. At a minimum, you should be able to waive your commission and have the vendor reduce the prices proportionally. However, advances in technology (namely cheaper bandwidth) and the industry’s growing understanding that states are becoming more adept at recognizing how some vendors shortchange consumers (such as the costly ancillary fees) may give you even greater leverage. (Note: My understanding is that Iowa controls its phone system more than in most states. Iowa could abandon its goal of turning a profit on the phone system and instantly reduce the rates charged to families of people in state prison.)
2. Determine if inappropriate or excessive fees are being charged for telephone calls or related accounts. If so, seek redress from the state’s vendor. These can include excessive credit card fees, or fees for retrieving unspent account balances. For a roadmap to this investigation, see http://www.prisonpolicy.org/phones/pleasedeposit.html.
3. Order the State Treasurer to investigate whether phone companies active in the state are turning over unclaimed customer funds as required by state law. If no, seek redress. For a roadmap to this kind of investigation, see http://www.prisonpolicy.org/phones/letters_with_exhibits.html#unclaimed.

Legislative branch:

Require the state and its counties to negotiate for phone calls and video visitation services for people in their custody on the basis of the lowest cost to the consumer.

The strongest legislation:

• Applies to the state correctional system and any facilities operated by counties. (New York’s statute is extremely strong, but it does not apply to counties. The regulations in both Alabama and New Mexico are notable for applying to both the state prisons and the county jails. New Jersey‘s approach is interesting as the state negotiated to allow counties to opt-in to the state’s low-cost contract.)
• Prohibits commissions and other forms of profit sharing between vendors and the facilities including percentage payments, up-front signing bonuses, inflated “rent payments” or supplying technologies unrelated to the actual telephone service. For more examples of illicit profit sharing, see our August 1, 2013 letter to the FCC.
• Takes effect immediately and applies to existing contracts. (Bill drafters should be aware that vendors may rush to sign long-term contracts before the law’s effective date.)
• Requires the disclosure of all ancillary fees in the contracts and seeks to minimize these fees, which have historically doubled the price of a call but do not produce commissionable revenue.
• Prohibits the vendor from engaging in revenue sharing with third party payment processing and money transfer service providers.
• Ensures that customers’ leftover account balances be turned over to the state unclaimed funds program, as required by state law.
• Prohibits vendors from charging “single call fees” to people who do not have accounts with that vendor. These fees should be banned outright, but can also be replaced with a reasonable maximum credit card charge and a maximum call charge — as done by Alabama, where a non-account single call is now capped at $6; considerably less than the $14.99 that some of these vendors previously charged.
• Addresses video visitation services — the industry may use video visitation to circumvent regulation of phone services. Legislation should prohibit the state or any county from replacing traditional in-person visitation with video visitation. (Many jails nationwide are experimenting with video visitation. There is no charge to use the technology at the jail; but it is inferior to traditional contact or in-person visitation, and it is designed to drive consumers to use expensive video visitation from their homes. The typical rate is $20 for a 20-minute remote visit.)
• Ensures strong enforcement capability by clarifying the enforcing agency’s jurisdiction in the arena of inmate calling services. And explicitly confirms or strengthens the regulatory authority (perhaps the Iowa Utilities Board or other relevant agency) in this area to ensure that the legislation’s goal of reasonable phone costs remains intact as companies evolve their products to exploit any loopholes in the legislation.

New book available: Understanding Mass Incarceration by James Kilgore

James Kilgore's book Understanding Mass Incarceration: An Introduction to the Key Civil Rights Struggle of Our Time is available now.

by Peter Wagner, September 24, 2015

My copy of James Kilgore’s Understanding Mass Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our Time has arrived!

The publisher offers this summary:

“We all know that orange is the new black and mass incarceration is the new Jim Crow, but how much do we actually know about the structure, goals, and impact of our criminal justice system? Understanding Mass Incarceration offers the first comprehensive overview of the incarceration apparatus put in place by the world’s largest jailer: the United States.”

I was fortunate to be asked to review the book back in April and I provided this blurb:

“The movement for justice has been waiting for an accessible yet authoritative and extensively-researched guide to the systems of over-criminalization and mass incarceration. With this ambitious book, James Kilgore has delivered.”

Congratulations, James! Readers should order the book today, and while they are waiting for it to arrive, read James’ newest article on CounterPunch where he explains that at the current slow pace of reform, the polar icecaps will all be gone long before we end mass incarceration. And, as always, James’ article explains what conversations we as activists need to be having to keep the movement against mass incarceration moving.

A year of propelling the criminal justice reform movement forward

Check out our 2014-2015 Annual Report for an overview of our year of leading campaigns and strengthening the movement

by Peter Wagner, September 22, 2015

We just released our 2014-2015 Prison Policy Initiative Annual Report, and I’m thrilled to share some highlights of our work. We had another great year of leading innovative campaigns while also strengthening the movement with long-absent data and resources.

Part of what makes the Prison Policy Initiative unique is that we can identify the data gaps that are stalling the movement against mass incarceration, and we have the creativity to answer the questions that are commonly considered unanswerable. For example, a few months ago, we released, Prisons of Poverty, which made use of a government dataset hiding in plain sight: we updated decades-old pre-incarceration incomes for men in prison and published this data for women for the very first time.

We did all of this while continuing to achieve real change on our focused campaigns:

• The Massachusetts legislature sent a bipartisan resolution to the Census Bureau calling on the federal government to stop counting incarcerated people in the wrong place, and we won a preliminary victory in our federal voting rights lawsuit challenging prison gerrymandering in Cranston, Rhode Island.
• In January, we provided the Federal Communications Commission with six major research briefings, supporting its efforts to bring fairness to all calls home from prisons and jails. We are expecting a ruling next month.
• We launched the national movement to protect family visits from the exploitative video visitation industry and have already won victories protecting in-person family visits in Dallas County, Texas and Portland, Oregon.
• Armed with our research, Connecticut removed the harsh mandatory minimum sentences from the state’s 1,500-feet drug sentencing enhancement zones.

And as our work has diversified, so has our funding. We’ve brought in new foundation partners, and our individual donors have increased in both number and generosity. If you are able to join our donors in making a tax-deductible investment in our work, your support will now go twice as far thanks to a generous match.

Thank you for your partnership! Please celebrate with me.

Help us stay one step ahead of the exploitative prison phone industry

Prison phone companies are sneaky but we've learned how to uncover their tricks. Will you help us stay one step ahead?

by Peter Wagner, September 11, 2015

Three years ago today, the Prison Policy Initiative released our first report exposing the dirty prison and jail telephone industry that seeks to charge children of incarcerated parents $1 per minute for a simple phone call. Almost overnight, we caught the attention of the press and got more people talking.

The Prison Policy Initiative operates on a shoestring budget, but, even for us, this first phones report was special. The author of The Price To Call Home: State-Sanctioned Monopolization In The Prison Phone Industry, Drew Kukorowski, volunteered his time to do the in-depth research that was required to uncover this previously hidden industry, and we managed to pull together the gifts of our individual donors to cover the rest.

The continued support of these donors then allowed us to dig deeper in a second report less than 8 months later, Please Deposit All of Your Money:
Kickbacks, Rates, and Hidden Fees in the Jail Phone Industry. We exposed:

• Industry contracts with local jails, which charge even more for calls than in prisons
• The hidden fees that can double the cost of each call

And because these companies have shown great skill at exploiting loopholes to retain their monopoly profits, our work continues. In January, we exposed that many of these phone companies have expanded their services to video visitation, in which they ban in-person visits to spur demand for expensive video chats.

I’m thrilled to say that our research and advocacy are making a difference, and the Federal Communications Commission is set to protect all families of incarcerated people. These wins are also having huge side effects: the debate over phones is helping this country finally realize how our criminal justice policies often reach outside the prison walls to punish entire families and communities.

I’m expecting the FCC to issue a robust ruling, but this billion dollar industry is going to fight back. These companies are sneaky, and they’ll surely go running to the courts again. But, over the last three years, with the support of our donors, we’ve learned how to follow the money and uncover their dirtiest tricks.

Neither we, nor the 2.7 million children with an incarcerated parent, would ever have gotten this far without a small group of individual donors. Now, we need to continue to stay one step ahead of this exploitative industry. Can you join our supporters and make a gift today?

Comment letter: Bureau of Prisons should not trample families’ financial privacy protections

by Aleks Kajstura, September 10, 2015

A couple of weeks ago, we wrote about the Bureau of Prisons’ newly proposed rule, which attempts to circumvent financial privacy protections for people who send money to their incarcerated loved ones.

The BOP solicited comments on the proposed rule, and the Prison Policy Initiative, along with Dēmos, Human Rights Defense Center, and the National Consumer Law Center, sent them a 7-page letter explaining why the proposal was a bad idea.

If you’d like to skip over the details, however, our conclusion gives a quick summary of the problem:

Congress enacted the RFPA [Right to Financial Privacy Act] to provide customers of financial institutions with protections against government intrusion into their financial privacy. Although the statute does allow customers to voluntarily disclose their financial information to the government, it is carefully drafted to ensure that such consent is narrowly-tailored and not coerced. The Bureau’s proposed rule runs roughshod over these statutory protections and should not be adopted in its present form.

Moreover, in the rapidly-changing world of prison-based financial services, there are numerous consumer protection problems that are in acute need of attention. It is, therefore, disappointing that the Bureau has chosen to focus its efforts on eroding privacy protections instead of proposing regulatory changes that would benefit incarcerated people and their families by curbing financially abusive practices.

The comment period ended two days ago, but there’s no word yet on when a final decision will be made.

Meeting new board members: Khalilah L. Brown-Dean

Meet PPI board member and associate professor of political science, Khalilah L. Brown-Dean

by Bernadette Rabuy, September 9, 2015

We are very excited to introduce a member of the Prison Policy Initiative board: Khalilah L. Brown-Dean. Khalilah L. Brown-Dean is an Associate Professor of Political Science at Quinnipiac University. Check out the interview below to learn why Khalilah was drawn to the PPI board:

Why did you decide to join the PPI board?

Khalilah L. Brown-Dean: Academics tend to work in silos. We focus in on a particular problem or set of problems and are rarely in conversation with those beyond our discipline. Joining the PPI Board provides a meaningful opportunity to learn from and work with others who are committed to dismantling our reliance on punishment. I envision my role as helping to bridge the gap between scholars, activists, philanthropists, and legislators.

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

KBD: My work is driven by a central question: How can we make the democratic experience more meaningful? I address this question through the lens of American Politics with a particular emphasis on mass political behavior, public policy, and law. I recently co-authored a report for the Joint Center for Political and Economic Studies on the contemporary status of voting rights in the United States entitled “Fifty Years of the Voting Rights Act: The State of Race in Politics.” I had the opportunity to present the key findings during the 50th Anniversary of the Bloody Sunday March in Selma, Alabama. Our research addressed how issues such as disenfranchisement, gerrymandering, and hyperincarceration pose monumental challenges to sustaining voting rights and representation. It’s a perfect fit with the work of PPI.

I’m currently completing a project that centers the experiences of African Americans and murder victims’ families within the death penalty repeal movement; two groups disproportionately affected yet grossly underrepresented within this policy space. I advance a concept called “authentic power” to explain how those detrimentally impacted by a policy can get policymakers and other government officials to change the policy in question to their benefit. The work grows out of my experience advocating on behalf of victims’ families whose needs often go overlooked in the realm of criminal justice reform. I also serve on the Board of the Community Foundation for Greater New Haven. This year we launched two major funding initiatives to support community-based re-entry and immigration.

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

KBD: My Graduate School mentor, Dr. William E. Nelson, Jr., once told me that research is only meaningful if it helps address a deceptively simple question, “So what?” PPI’s work directly addresses that question by using data to tell a complex story about the myriad ways punishment policies widen the gap between the principle and the practice of American democracy. I greatly admire PPI’s ability to make its work timely, relevant, and accessible to multiple audiences.

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

KBD: I wish people knew that PPI is a small organization with a big mission and an even bigger commitment to advancing the cause of justice. Before I joined the Board I assumed PPI had a massive staff with unlimited resources given the many cutting-edge and widely-cited reports it produces. I was wrong!

Mass incarceration and the presidential candidates

Blaming the 1990s public for mass incarceration is too simple of an answer.

by Peter Wagner, September 3, 2015

For an essay about the Democratic presidential candidates reversing their previous support for tough on crime measures, German Lopez pulls up some fascinating data, although I’m not quite sure he puts the emphasis in the right spot.

First, Lopez is absolutely right that private prisons aren’t why we have mass incarceration. And he’s correct on his main point that “liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration” simply because, well, they were politicians in the 1990s. At that time, “all politicians — liberal and conservative — t[ook] a tough stance on crime.”

And he’s spot-on about how political power works and why the people powerful enough to run for president in the present typically had to be on the winning side in the past:

Popular demand for tough-on-crime laws in the past doesn’t in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies. But based on voters’ concerns in the 1990s, if a politician didn’t contribute to the problem back then, he or she may not be prominent enough to run for president today. That’s how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

However, the article offers an overly simple answer to “the simple truth about why mass incarceration happened.” By concluding that “the public wanted mass incarceration”, Lopez stops one step too short.

Lopez relies on this chart showing the portion of the country that considered crime “the most important problem”:

What could possibly be responsible for the number of people identifying crime as “the most important problem” jumping from almost nothing in 1991 to more than half the population in 1993? (And a related question that I’ll address later is: Did the public really want Congress to double down on cops, courts, and cages?)

To be sure, crime was higher than it is now and was rising in the 1980s and early 1990s, but the crime rise on its own was far too subtle to cause that spike in public concern. As the opening to the video that Lopez embeds so brilliantly demonstrates, the media (and ideologues manipulating the media) created that crime focus.

Joel Dyer has a whole chapter in his now-dated book about the rise of what he calls the Perpetual Prisoner Machine focusing on how the television news of that era manipulated public fear of crime because it got good ratings and because crime reporting was inexpensive to produce.

As David Mendoza brilliantly showed last year, Americans are consistently bad at knowing whether the national crime rate is going up or down. Most years, most Americans think crime is rising even though it’s been in decline for years. Of course, it’s hard for a single American to know from personal experience whether crime is rising or falling, so the media has a big influence there. Similar public opinion polling that asks whether crime is rising or falling in your neighborhood shows a much smaller disconnect with actual crime rates, offering clear evidence that Americans aren’t stupid but they are (or were) being lied to.

Now despite that, I think there are reasons in a different set of Gallup data to be optimistic: In contrast to the actions of elected officials, Americans have long favored attacking social and economic problems as a crime control strategy over spending more on law enforcement. Even at the low point in 1994, a clear majority of Americans (51%) supported attacking social and economic problems and only 42% favored using more police and prisons to deter crime:

So that gets back to the original question about the presidential candidates who created this problem with their rush to pander to the television cameras: What do the candidates think is the best way to undo the harm their policies caused?