The parallel epidemics of incarceration & HIV in the Deep South

HIV disproportionately impacts communities that are already marginalized by poverty, inadequate resources, discrimination — and mass incarceration.

by Emily Widra, September 8, 2017

In a New York Times Magazine article published in June 2017, journalist Linda Villarosa highlighted the “hidden HIV epidemic” among Black gay and bisexual men in the Deep South. The overall decline of HIV rates in the US may give some people a premature sense of victory; this progress obscures the fact that HIV remains a significant problem for a disproportionate number of Black gay and bisexual men in this country, as Villarosa points out:

“Swaziland, a tiny African nation, has the world’s highest rate of H.I.V., at 28.8 percent of the population. If gay and bisexual African-American men made up a country, its rate would surpass that of this impoverished African nation — and all other nations.”

Villarosa mentions the systemic issues impacting HIV rates among southern Black communities, including the “crippled medical infrastructure,” the limited domestic funding and resources dedicated to HIV/AIDS, and the movement of the HIV epidemic from cities like New York and San Francisco to smaller cities with larger Black populations in the Deep South. Along these lines, Dr. Mark Dybul — an infectious diseases researcher and professor — describes HIV, malaria, and tuberculosis as “discriminatory” diseases because they disproportionately impact communities that are already marginalized by poverty, inadequate resources, and discrimination. Villarosa also briefly touches on the history of incarceration of a few of the men she interviewed, but the intersection of HIV, race, and incarceration deserves further investigation, especially considering the high rates of incarceration in the South.

There is little information available about LGBT people of color behind bars, and even less data on the rates of HIV and incarceration among men who have sex with men. In the public health literature that does exist on HIV, the category of men who have sex with men, or MSM, is applied broadly and inconsistently to self-identified gay and bisexual men, men with a lifetime history of male-to-male sexual contact, and/or men who self-report male-to-male sexual contact in the past 6 months, depending on the particular study. The lack of consistency and clarity when we talk about this population only makes it harder to address these issues. As Villarosa puts it, “too many black gay and bisexual men [are] falling through a series of safety nets.”

The existing studies begin to fill in the gaps in literature, but there is more work to be done to understand how the interactions of high rates of HIV and our criminal justice system disproportionately impact Black gay and bisexual men and Black MSM. Recent research suggests an overlap between HIV and incarceration:

• People at risk for incarceration are more likely than others to be at high risk for HIV infection. These risk factors include a history of drug use, low socioeconomic status, high prevalence of STIs, mental illnesses, and history of assault and/or abuse.
• An estimated 25% of Americans living with an HIV infection were incarcerated during 2008.

This is much worse for Black men, like the men that Villarosa interviewed. The compounding effects of HIV, incarceration, and discrimination intersect in the lives of Black gay and bisexual men and Black MSM.

• First, it is clear that the HIV epidemic among Black MSM that Villarosa points out is real. The CDC reported that “if current HIV diagnoses rates persist about 1 in 2 Black men who have sex with men (MSM) will be diagnosed with HIV during their lifetime.”
• And there are a lot of Black MSM in prison. Using data from the National Inmate Survey, 2011-2012, researchers found that 34.3% of Black men in prison were MSM, while only 8.9% of the total US population of MSM is Black. (The total Black MSM population is unknown, but would be useful for measuring overrepresentation.)
• These men who are at a heightened risk of HIV are especially vulnerable behind bars, where condoms are typically unavailable. (Male-to-male sexual contact contributes to over 70% of HIV diagnoses among Black men.)
• Finally, it looks like Black MSM are at high risk for both HIV diagnosis and incarceration. There is limited data on how much of the US Black MSM population has a history of incarceration, but one study found that 58.7% of a sample of 1,385 Black MSM self-reported a history of incarceration.

The bottom line is Black men are overrepresented in the number of people with HIV and in the number of people behind bars. Although Black men made up only 12% of the US male population at the time of the last Census, they accounted for over 40% of all incarcerated men and 42% of all newly reported HIV infections of men in the US.

The co-occurrence of high rates of HIV diagnoses and high rates of incarceration among Black men does not necessarily imply a causal relationship, but they work together to specifically burden the lives of Black gay and bisexual men — particularly in the South, where those rates are especially high. In a previous post, I wrote about the overrepresentation of Black women among new HIV infections, which some researchers have attributed to the high rates of incarceration of Black men.

These findings point to an alarming convergence of the population most burdened by HIV/AIDS and the population most disproportionately affected by mass incarceration. This intersection clearly warrants more attention, so I’m frustrated by the small number of studies dedicated to unravelling the connection between HIV, incarceration, and race.

The first analysis of incarceration history among Black MSM was conducted in 2014 and found evidence that there is a heightened lifetime risk of incarceration among Black MSM. Now, we need more nationally representative and rigorous studies to corroborate these findings. Villarosa argues that by incorporating the gay and bisexual Black men (and we would add, Black men who have experienced incarceration) into the literature and the larger understanding of HIV, we can improve outreach and preventative measures, increase the voice and standing of people of color in HIV/AIDS advocacy, and empower communities to demand change.

As Dr. Dybul states, “HIV is itself discriminatory, it preys on people who are left behind or marginalized by society.” Villarosa’s article highlights the stigma and marginalization of Black gay and bisexual men in the South, but it is important to note that this oppression is layered and systemic: Black MSM and Black men with HIV are also incarcerated at high rates, which only adds to the challenges they face when they return home to their communities.

Comment letter: Maine’s Department of Corrections should not allow correctional facilities to eliminate in-person visitation.

After the Maine DOC solicited comments on the proposed changes to its visitation policies, we submitted a letter detailing why the elimination of in-person visits would hurt families.

by Lucius Couloute, September 7, 2017

Due, in part, to our work on the video calling industry, most policymakers now recognize that in-person jail visits should not be replaced with glitchy, expensive, and impersonal video calls.

In states like Texas, California, and Illinois legislators have made it a point to ensure that incarcerated people get to see their loved ones face-to-face by prohibiting correctional facilities from eliminating in-person visits.

In Maine, however, the Department of Corrections (who holds the authority to set jail standards) is considering a move that would put them at odds with the national consensus: eliminating the requirement that Maine jails provide in-person contact visits, allowing them to instead provide video-only “visits”.

The DOC solicited comments on the proposed changes, so we submitted a letter detailing why the policy change would hurt families. You can read the full text of the letter, above. It concludes:

The DOC, on its own website, states that its mission is to “reduce the likelihood that juvenile and adult offenders will re-offend by providing practices, programs, and services which are evidence based.” Replacing in-person visits with video calling flies in the face of established evidence and punishes the families of incarcerated people who only wish to support their incarcerated loved ones. On behalf of incarcerated people looking to maintain their support systems, and their families, we urge the DOC to maintain in-person visits.

At a recent hearing, over 20 people testified against the proposed changes. We now await the final decision.

California legislators continue fighting for in-person jail visits

California legislators hold hearing on video calls and sharply criticize the dangers of banning in-person visits

by Bernadette Rabuy, September 6, 2017

As we’ve explained, jails affect state prison outcomes. This might explain why California state legislators have been so concerned about the harmful trend of local jails replacing in-person visits with video calls. In the 2015-2016 legislation cycle, the California legislature approved SB 1157, which would have required jails to provide in-person visits, but Governor Brown vetoed the legislation. In his veto message, the governor asked the state regulatory body that sets jail visitation regulations, the Board of State and Community Corrections, to investigate the issue.

I didn’t realize this at the time, but SB 1157 was just the beginning of the struggle to protect in-person visits in California jails. After the veto, I learned that California legislators were planning an informational hearing at the state Capitol on video calls, and I was invited to testify on the Prison Policy Initiative’s research.

The timing worked out well. Days before the informational hearing, the Board of State and Community Corrections released proposed revisions to the jail visitation regulations. The regulations, which were later approved, prohibit jails from replacing in-person visits with video calls but exempt jails that had already eliminated in-person visits.

At the hearing, the legislators were colorful and adamant in their critiques of video calls. While the support from members of the public, legislators, and the press has been unanimous since we started our national campaign to protect in-person visits, it was still a rare and powerful sight to see legislators standing so strongly on the side of incarcerated people and their families. And the legislators pinpointed the dangers of banning in-person visits in a way that’s helpful for anyone in the country hoping to protect family visits:

• Eliminating in-person visits is contrary to reducing recidivism and supporting rehabilitation.

  In 2011, California adopted Realignment in order to comply with a court order to reduce the state’s prison population. Realignment consists of shifting non-serious, non-violent, and non-sexual state prisoners from state prisons to county jails. As Senator Nancy Skinner pointed out, there was a secondary rationale for Realignment. California legislators and Governor Jerry Brown reasoned that imprisoning people in jails, which are generally closer to home, could lead to greater visitation. Because visits have been shown to reduce recidivism, in theory, imprisoning people in jails rather than prisons could reduce recidivism.

  But as we’ve previously explained, there is no evidence that video calls have the same effect on recidivism as in-person visits. In fact, replacing in-person visits with video calls works against the goal of reducing recidivism because it can reduce visitation. In Travis County, Texas jails, banning in-person visits led the total number of visits to drop by 28% from September 2009 to September 2013. Thus, as state legislators aimed to increase visitation, county sheriffs were impeding visitation by leaving families with nothing more than low-quality video calls.

• As much as possible, states should not exempt counties from having to provide in-person visits.

  As I previously noted, the Board of State and Community Corrections’ regulations prohibit jails from replacing in-person visits with video calls but exempt jails that had already decided to eliminate in-person visits. While Texas similarly exempted some counties from having to provide in-person visits, the key California legislators were more public about their belief that the exemption would let too many counties off the hook. In California, counties received exemptions for jails that were built without physical space for in-person visits and jails that were in the midst of construction or renovation that would culminate in only providing video calls. But some counties received exemptions when they were fully capable of providing in-person visits in a jail but had simply decided not to. In response to the exemption, Senator Skinner said,

  I’ve got six that were built without visitation, so you know, maybe those are the six…that one could, perhaps, make a case for having difficulty…but, the first 10, it seems really hard to imagine why, when they already have that in-person space, the [regulations] would allow them to ban it.

  Similarly, Assemblymember Shirley Weber pointed out,

  I find it…difficult to digest that we would have facilities that have space, but would still refuse to have in-person visitations. What is the theory behind this?…There has to be some rationale…I assume the people who work in those facilities are… the leaders in the area [of] public safety and criminal justice…So what is the rationale for that?

  Skinner and Weber were in disbelief that the exemption was crafted so broadly. The Board of State and Community Corrections defended the expansive exemption, saying that some counties built jails in recent years without physical space for in-person visits. When SB 1157 was introduced, these counties claimed that it would cost too much money to bring back in-person visits now that they had jails built without visitation rooms. But as the legislators pointed out, the Board of State and Community Corrections was exempting more than just those counties and it failed to provide any research or policy-based rationale for exempting counties that had the physical space to provide in-person visits.

  Assemblymember Jones Sawyer rejected the idea that counties constructing or renovating jails in order to eliminate in-person visits should be exempted. Jones Sawyer explained that it wasn’t too late for the Board of State and Community Corrections to require these counties to change their plans,

  I worked several years in the city of Los Angeles. I left as the director of real estate. I’ve actually built a jail in the city of L.A…. All of them can have [in-person] visitation in them…and you can require that…It can be done, and it can be done quickly, even on the end of construction.

  The legislators agreed that the regulations were a half-hearted attempt to protect in-person visits.

• Because of the two-way relationship between state and local criminal justice systems, states should look for ways to influence harmful local criminal justice policies.

  The state legislators were also upset that state money was being used in the construction and renovation of local jails that eliminated in-person visits. As Senator Skinner said, “The state is paying most of the bill for these county facilities…so in theory, the state should be able to make these decisions.” Senator Mitchell, the author of SB 1157, similarly expressed,

  I’m very glad that the budget subcommittee chairs for public safety are here, and I hope that you will take [this] into account as we make future decisions about funding allocations for the constructions of jails…that we’re clear about what state policies, what state expectations they will adhere to because perhaps we should turn off the spigot.

  The legislators expressed some support for local control of criminal justice policies, but they did not want to financially support a harmful trend that was working against the state’s goal of reducing recidivism. The legislators also felt that the Board of State and Community Corrections was fully aware of the legislators’ support for in-person visits since they approved SB 1157 with bipartisan, bicameral support.

The hearing was the most tense and lively visit to the California Capitol I’ve experienced. It was powerful to witness legislators so animated over an issue that primarily affects incarcerated people and their families, a population that is too often ignored. The legislators’ sharp analysis of the harm of banning in-person visits was also a reminder that this campaign should not exist on the fringes of the larger movement to end mass incarceration. Assemblymember Weber might have captured the urgent need to protect in-person jail visits best, “I feel like we’ve made some steps forward in this whole area of criminal justice, every time we seem to go forward, there seems to be some problem to drag us back. And some of these problems appear to be small, but they really have huge consequences.”

Update: In June, Governor Brown signed the 2017-2018 California budget, including AB 103, which statutorily requires jails to provide in-person visits rather than video calls. Like the approved regulations, the budget trailer bill exempts counties that had already decided to eliminate in-person visits. The bill is a step forward because it adds a statutory layer of protection for in-person visits and protects in-person visits in more California counties. The Board of State and Community Corrections has put the approved regulations on hold to ensure that the regulations conform with AB 103.

Prison phone giant GTL gets bigger, again.

GTL has purchased competitor Telmate, meaning higher prices for families and facilities. We examine GTL and Securus domination of the industry.

by Peter Wagner, August 28, 2017

The largest phone provider in prisons and jails, which incarcerated people use to call home, has just gotten bigger. GTL (formerly Global Tel*Link) has purchased its competitor Telmate.

In the broken market that is the prison and jail telephone business, families pay high costs because the companies compete not on the basis of low prices or high quality, but on which company will share the most revenue with the facility that awarded the company the monopoly contract. That’s how, in an era of unlimited long distance and free Skype calls, costs to receive a call from an incarcerated loved one have surpassed $1/minute.

By purchasing Telmate, GTL has eliminated a small but very quickly growing competitor. Telmate had contracts with two state prison systems (Montana and Oregon) and contracts with almost a hundred local jails. The company was one of the more innovative companies in the space, although their biggest contribution to the market might have been various kinds of creative accounting tricks that transferred money from customers’ pockets to Telmate without federal and state tax collectors or correctional facilities catching on.

Now that the number of major national companies competing for contracts has declined to just two (GTL and Securus), it will be that much harder for facilities that want to lower prices to do so. How bad is GTL and Securus’ domination of the industry? Our research associate Alex Clark determined each company’s market share as of July 2017 and prepared this chart:

Fewer companies will mean less choice for facilities

Because the primary differentiation between vendors is cost, having fewer companies compete for contracts will mean less choice for the facility that awards the contracts and less of an incentive for the companies to offer good deals.

Findings from Harris County: Money bail undermines criminal justice goals

A recent study of misdemeanor pretrial detention in Harris County, Texas, offers evidence that money bail actually increases risks to public safety, affects case outcomes in ways that contribute to more incarceration, and infringes on constitutional rights.

by Wendy Sawyer and Emily Widra, August 24, 2017

With growing recognition that money bail has created a “two tiered system of justice” that detains the poor but allows those with money to go free, courts relying on money bail systems face increasing pressure to change. Although the commercial bail industry argues that money bail keeps people safe and ensures appearance in court, we point to a growing body of evidence that money bail actually undermines essential criminal justice goals. Armed with the evidence of harm caused by money bail and pretrial detention, including a recent study published in the Stanford Law Review, policymakers around the country are taking action on bail reform.

This year in Texas, a federal judge ruled that Harris County’s misdemeanor bail system disproportionately impacts indigent residents and violates the Constitution – consistent with the findings of this new study. The judge then ordered all misdemeanor arrestees who are eligible for release but cannot afford bail to be released within 24 hours of their arrest on an unsecured bond (unlike secured bail bonds, defendants will only have to pay if they don’t appear in court). Since the ruling, Harris County began releasing misdemeanor pretrial detainees and implementing a new risk-assessment tool to further reduce the number of people held on misdemeanor charges who are not a risk to the community. (Harris County officials have appealed this ruling, but the Prison Policy Initiative and other organizations have filed an amicus brief in support of the original ruling.)

The judge’s decision comes on the heels of the new study of pretrial detention in Harris County published in the Stanford Law Review, that finds pretrial detention based on money bail “ultimately may serve to compromise public safety” and undermines the legitimacy of the justice process by encouraging guilty pleas, regardless of actual guilt or innocence. Overall, the study finds that the downstream effects of pretrial detention and money bail are inconsistent with the stated goal of crime prevention and that the current money bail system infringes on constitutional rights.

For the study, the researchers looked at the direct and indirect consequences of pretrial detention in over 380,000 misdemeanor cases in Harris County, Texas from 2008-2013. As far as location, the authors couldn’t have chosen a more representative site. Harris County is the third largest county in the U.S.; it includes Houston and is home to a diverse population of 4.5 million residents. In explaining the need for the study, the authors point out that past empirical work has been suggestive, but not conclusive, on the extent to which adverse outcomes for misdemeanor defendants are caused by pretrial detention. So for this study, the researchers included far more extensive control variables than previous studies, including the court’s determination of individual risk, as expressed through bail amounts. The authors conclude that because of these controls, their study shows that pretrial detention itself is causally related to case outcomes and the commission of future crimes.

The Stanford Law Review article is required reading for anyone interested in pretrial detention, money bail, and recidivism. The rigor of the study and depth of the analysis make it a lengthy but worthy read, so we have highlighted the major downstream effects discussed in the study:

1. Pretrial detention has devastating consequences for individuals. The authors highlight empirical evidence from prior studies showing that pretrial detention has immediate impacts on individuals, including “loss of liberty and the potential loss of employment [and] housing,” as well as threatening a parent’s custody of their children. Even before going to trial, people held in jail suffer many of the same consequences of a conviction.
2. Money bail compromises public safety. The authors compared individuals who posted bond within the first seven days following the bail hearing with those who were unable to do so. Just one month after bail hearings, there was a significantly higher incidence of new misdemeanor charges among people who were detained pre-trial than similar defendants who were released on bail. Over time, the criminogenic effect is even more pronounced: when compared with similarly situated defendants who were released after a bail hearing, the detained misdemeanor defendants were charged with 22% more misdemeanors in the year after their bail hearings. Felony defendants who were detained pretrial were charged with 30% more felonies after 18 months. The study’s authors conclude, “pretrial detention has a greater criminogenic than deterrent effect.”
3. Pretrial detention undermines the legitimacy of the court system. This study found that pretrial detention can distort criminal justice outcomes; for misdemeanor defendants, detention increases the likelihood of a jail sentence, length of sentence, and guilty pleas. People detained pretrial because they can’t post bail are 43% more likely than similar defendants who are released to receive a jail sentence. Pretrial detention also doubles the average length of jail sentences compared to those who receive jail sentences but are not detained pretrial. Critically, pretrial detention increases the likelihood of pleading guilty by 25%, with no evidence that this decision is relevant to guilt.

The Stanford Law Review article goes on to explore the constitutional issues presented by money bail, such as equal protection rights, due process protections, and the right to counsel. The authors’ findings provide strong evidence that wealth-based inequality in pretrial detention translates to wealth-based inequality in case outcomes, so bail set without consideration of defendants’ ability to pay violates the Equal Protection and Due Process Clauses. The authors argue that previous Supreme Court decisions on the “limited effect of pretrial custody” were incorrect and that, because pretrial custody has real and harmful implications, bail hearings are “critical” stages of criminal proceedings, necessitating a right to legal representation. The article also points to additional constitutional implications, including excessive cash bail, pretrial punishment, and involuntary plea bargains, which all warrant further attention in both the academic literature and the conversations around bail reform advocacy.

The authors’ findings make a strong case for bail reform that should bring even the staunchest supporters of money bail to their senses. Money bail actually increases risks to public safety and influences case outcomes in ways that contribute to more incarceration, so it ultimately costs more in the long run, with no appreciable payoffs for locking up misdemeanor and other low-risk defendants. The authors rightly call for a shift in the criminal justice system toward “bail systems that reduce wealth disparities, increase public safety, and minimize the lengthy periods of detention that have such high budgetary and human costs.”

Policymakers seem to finally be getting the message — in Harris County and around the country. This January, for example, New Jersey switched from a primarily money bail system to one that makes release decisions based on risk factors instead of a defendant’s ability to pay. (There, reforms are yielding quick results: as of July, the state’s pretrial jail population was down 34% from where it was in 2015.) And last month, Senators Kamala Harris and Rand Paul introduced a bipartisan bill to encourage states to replace or reform money bail systems. Not least because pretrial detention accounts for 99% of all jail growth over the past 20 years, bail reform advocates from both sides of the aisle can agree on the counter-productiveness and harms of pretrial detention.

The study can be found at:
Heaton, P., Mayson, S., & Stevenson, M. (2017). The downstream consequences of misdemeanor pretrial detention. Stanford Law Review, 69(3), 711-794.

Exploring the staying power of elected sheriffs – a preliminary analysis

A closer look at the incumbency advantages and campaign expenditures of America's elected sheriffs.

by Alex Clark, August 24, 2017

With the recent electoral defeat of long-time Sheriff Joe Arpaio of Maricopa County (Phoenix) Arizona, and the retirement of two long-time sheriffs in western Massachusetts where the Prison Policy Initiative is based, it seems more timely than ever to take a closer look at America’s elected sheriffs. I chose to look through the twin lenses of incumbency and campaign expenditures in order to understand more about candidates and the larger election system.

Already being in office — incumbency — is a tremendous political advantage, but how common is serving for 24 years like Joe Arpaio, 32 years like Hampshire County (Mass.) Sheriff Robert Garvey, or 42 years like Hampden County (Mass.) Sheriff Michael Ashe? My research suggests that those terms are not without peers, but that most sheriffs do not have the same extreme incumbency advantages. The average time in office is about 10 years.

For the 200 largest jails in the U.S., I collected the name of the current sheriff, his/her time served, and where available, the same information for the previous sheriffs:

(One unrelated point I stumbled across during this research was how often sheriffs were found guilty of crimes during or after their careers as sheriff, for offenses ranging from corruption and tax evasion to indecent exposure and murder. As an aid to future researchers, I flagged each of those sheriffs with an asterisk.)

Another way that sheriffs exercise political power is through campaign expenditures. I collected the data for the 13 largest counties that have elected sheriffs, plus Alameda County in California because of separate research we did on Sheriff Greg Ahern. This data was much harder to collect because it requires aggregating campaign finance reports for multiple time periods and multiple committees, but is a good starting point for exploring how much sheriffs’ elections cost:

The biggest expenditures came from Sheriff Joe Arpaio who spent $22 million over the course of his career. In the most recent 2016 election, Arpaio spent 8 times as much as challenger Paul Penzone, and lost. Even taking into account more “modest” campaigns, the average expenditures of a sheriff over his/her career is nearly 2 million dollars and just looking at a single four year campaign cycle, average expenditures top $600,000.

Now of course, expenditures will vary for lots of reasons, including the expenses of a given media market, whether there is a well-heeled opponent, and so forth. Hopefully, this chart serves as a starting point for a discussion of whether and how to hold sheriffs more accountable.

Police, courts, jails, and prisons all fail disabled people

Disabled people are overrepresented in all interactions with the criminal justice system, and at all points, the system is failing them.

by Elliot Oberholtzer, August 23, 2017

In a recent post, I noted that disabled people¹ are significantly overrepresented in prisons and jails. This statistic is part of a larger pattern: disabled people are overrepresented in all interactions with the criminal justice system, and at all points, that system is failing them.

The Center for American Progress released a report last year that provides a strong overview of the ways that disabled people are targeted by — and failed by — the criminal justice system, from policing to courts to incarceration. In this article, I will bring in additional information and context to elaborate on the points made in that report.

Police escalate to deadly force

Disabled people represent a disproportionate number of those stopped, arrested, and murdered by police. This is partially because, as the ACLU of Southern California and the Bazelon Center for Mental Health Law report, the “war on drugs” and other mass incarceration policies criminalize behaviors related to disability: substance use (which is often a method of self-medication for pain and other symptoms), homelessness (as of 2015, the Department of Housing and Urban Development estimated that 78% of people in shelters had a disability), and atypical reactions to social cues (which may be interpreted as “disorderly conduct”). Societal attitudes towards disabled people, and the intersections of disability, race, and class, contribute to their criminalization: the Ruderman Foundation reports that in police use-of-force incidents, media and police often blame disabled people for their own victimization, especially by characterizing disabled people of color as “threatening” and “refusing to comply” with instructions.

The police are often the first responders to a person in crisis. In 2015, the Washington Post reported that 124 cases of officer shootings (27% of all officer shootings that year) involved a mental health crisis; in 36% of those cases, the officers were explicitly called to help the person get medical treatment, and shot them instead. Despite their frequent role in mental health crises, police response is deeply inadequate, and experts agree that not only do police need better training, but their role in crisis response needs to be entirely reconsidered.

As long as we continue to rely on militarized police forces to handle crises, instead of social workers, mental health response teams, and other trained professionals, police will continue to escalate situations to deadly force. And disabled people, specifically disabled people of color, will continue to lose their lives.

Courts refuse accommodations

If disabled people survive their encounter with the police, they are also disadvantaged by the court system. Disabled people struggle to access the services necessary to make the court system intelligible to them: in 2014, a Deaf man whose first language was Ethiopian Sign Language was denied an interpreter in his court cases and in jail, leading to six weeks of jail time for a crime he did not commit (Washington Post). This incident is by no means unique: the Center for American Progress reports that “a lack of accessibility and a failure to provide needed accommodations are widespread throughout the nation’s courts.”

Given the data showing that disabled people experience violent victimization at significantly higher rates than non-disabled people, the failure of accessibility in our courts is not only a concern for disabled people charged with crimes, but also for disabled people who want to use the courts to address offenses against them. A 2015 survey of New York City courts found multiple barriers to equal participation for disabled litigants, jurors, attorneys, and court employees, as well as criminal defendants. And as the Supreme Court observed in 2004, “failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion.”

There is also evidence to suggest that the court system may not be the right way to handle the majority of disabled people’s offenses at all. Alternatives such as mental health courts, which include access to mental health care before appearing in court, have been shown in California to improve quality of life, decrease psychological distress, and reduce recidivism among mentally ill offenders when compared to traditional courts. Similarly, Portugal’s “dissuasion commission” model of handling drug possession/consumption offenses, which involves a case team of health, social service, and legal professionals who work together to provide addiction counseling and assess treatment options, has been shown to significantly reduce substance dependency, risky behaviors such as injection (which can lead to transmission of HIV/AIDS), and substance-related deaths.

For those disabled people who do need to interact with the courts, they deserve the treatment that the United States has committed to providing in the Bill of Rights: a speedy trial, legal representation, and to be informed of the nature and causes of the accusations against them. When courts fail to provide these basic rights for disabled people accused of crimes, they demonstrate clearly that our society treats disabled people as second-class citizens.

Jails function as inadequate hospitals

When disabled people are detained in jails awaiting trial or transfer to a medical facility, they are denied access to medical care, which can worsen existing health problems (including mental health crises). This can be life-threatening or even fatal: the top cause of death in local jails is suicide, which occurs in jail at much higher rates than in the general U.S. population. In 2016, Public Citizen and the Treatment Advocacy Center reported that 91% of surveyed jail personnel said that they had seriously mentally ill prisoners who required a suicide watch.

Although jails are being used as substitutes for mental health facilities, they do not have the resources or training to handle medical and mental health emergencies. Less than half (45%) of the surveyed personnel in the Public Citizen and Treatment Advocacy Center study reported that their jail was equipped to offer mental health treatment. When asked what their resources were to handle a psychiatric emergency, respondents said they had none, or that they transported prisoners to the emergency room. Despite 95% of respondents reporting that their jails frequently housed mentally ill people, only 21% reported their jail having any kind of program to support mentally ill people upon their release.

Our justice system currently incarcerates, mostly in local jails, large numbers of people who have not been convicted — or sometimes even charged — with a crime. Pretrial incarceration, which almost universally affects those who cannot afford to pay bail, has been shown to increase the likelihood of conviction regardless of the merits of the particular case; a clear undermining of the concept of a fair trial. And many disabled people housed in local jails (and experiencing the trauma of that incarceration) are not even awaiting trial; they are simply awaiting a transfer to an overcrowded hospital or other health facility. Currently the systems of pretrial incarceration and using jails as holding cells for hospital transfer are inflicting damage on disabled people, who need targeted services instead.

Prisons abuse and isolate their disabled populations

Disabled people are also disproportionately incarcerated in state and federal prisons. According to the Center for American Progress, people in state and federal prisons are three times more likely than the general population to report having at least one disability. In a 2012 Bureau of Justice Statistics report, 40% of state and federal prisoners reported currently having a chronic illness, a significantly higher rate than the general population. (While not everyone with a chronic illness considers themself disabled, many chronic illnesses cause serious inabilities to complete necessary tasks; for example, about 44% of people with arthritis report that it limits their ability to do things like climb a flight of stairs, bend over, or grasp small objects).

Medical care for these conditions is inconsistent: while two-thirds of participants in the BJS study were being treated, 11% reported that their illness was not being treated because the facility would not provide medication. The Amplifying Voices of Inmates with Disabilities (AVID) Prison Project reports cases of prisons ruling accommodations such as exercise equipment, specialized diets, prosthetics, wheelchairs, and other assistive technology no longer “medically necessary” for disabled people in an effort to cut costs. And with medical co-pays costing as much as a month’s worth of labor in some states, including states where prosthetics and other accommodations for disability incur an additional fee on top of an existing co-pay, many disabled people in prisons simply cannot afford to access the care they need.

Denying medical care is not the only abuse of disabled people in prison. Human Rights Watch suggests that use of force abuses against disabled people in prisons is “widespread and may be increasing”. The AVID Prison Project reports that disabled people in prison, particularly those with mental illnesses, are disproportionately disciplined with segregation and solitary confinement, which have been linked to suicide, self-harm, and other serious mental health consequences. Incarcerated people are a particularly vulnerable population to malpractice and abuse of authority: they have little or no ability to leave a bad situation or demand better treatment. Already in a position of deeply unequal power simply by being incarcerated, disabled people in prison are then further disadvantaged by systemic ableism.

Inadequate re-entry support undermines opportunities

The AVID Prison Project also reports that disabled people are often denied access to vocational and release planning programs while incarcerated, or placed in programs without accommodations for their disabilities. “The way it is now, I’m just basically going back out there with no skills,” said one man from Washington with a visual impairment; his facility had placed him in a community college course without giving him the visual aids he needed to keep up with the class. Another person reported that they had asked for information on how to apply for Social Security benefits once released, and been denied because their counselor thought they should seek employment instead.

Incarcerated people already face significant barriers upon re-entering society, including housing restrictions, employment discrimination, and ongoing fines and fees that represent a significant financial burden. When those difficulties are compounded by disability — especially if that disability has been worsened by neglect and abuse while incarcerated — a disabled person attempting to re-enter society after a prison stay faces almost insurmountable obstacles.

At every interaction between disabled people and the criminal justice system, it is evident how ill-suited the system is to respect disabled people’s needs. Along with widespread reform of our courts and institutions, we need to shift from viewing disabled people in crisis through a criminalization and incarceration lens to a community health approach.

New report, What “Stop-and-Frisk” Really Means, argues that a return to stop-and-frisk would be a policing disaster

President Trump supports stop & frisk; but Black and Latino people know from experience that the result is discriminatory use of force.

August 17, 2017

President Trump’s push for tougher policing is dangerous for Black and Latino communities, who bore the brunt of police use of force under stop-and-frisk in New York.

Easthampton, Mass. – Donald Trump’s presidency has heralded a return to ineffective “tough on crime” tactics, including the police practice of stop-and-frisk, but a new report by the Prison Policy Initiative finds that such a move would be disastrous for Black and Latino communities. “Instead of making cities safer, stop-and-frisk causes thousands of forceful and terrifying experiences with police, mostly for people of color who’ve done absolutely nothing wrong,” charges Rose Lenehan, author of the report.

In What “Stop-and-Frisk” Really Means: Discrimination & Use of Force, Lenehan analyzes the racially disparate use of force in police stops in New York City in 2011. That year was the peak of stop-and-frisk in the city, and two years before a federal judge found that the practice was racially discriminatory and violated the rights of hundreds of thousands of New Yorkers. “We all know that stop-and-frisk targeted Black and Latino communities in New York, but that goes beyond who police chose to stop,” explains Lenehan. “Police were also more likely to use physical force when they stopped people of color than when they stopped white people.”

In 2011, the NYPD stopped Black and Latino people nearly 575,000 times and used physical force against them almost 130,000 times. That’s 84% of all stops and 88% of all force used in stops that year. Yet despite President Trump’s mistaken perception that “it was so incredible, the way it worked,” only a small number of weapons were seized in these stops – mostly knives. Police found weapons in only 1% of stops of Black and Latino residents, but found weapons nearly twice as often when they stopped Whites. As the new report argues, stop-and-frisk succeeds only in alienating vast numbers of city residents from the police, and ultimately creates more problems for public safety.

The report features an innovative data visualization that layers each successive level of police encounters – stops, frisks, and use of force – to show racial discrimination impacts decisions more serious than simple stops. The graphic is drawn to scale (a tiny square is equivalent to 100 New Yorkers) to illustrate the massive impact of stop-and-frisk on the street. According to Lenehan, “With roughly almost 2,000 stops per day, concentrated in Black and Latino communities, stop-and-frisk gave hundreds of thousands of people of color reason to distrust the police.”

The non-profit non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization produces big-picture data publications like Mass Incarceration: The Whole Pie to help people fully engage in criminal justice reform. The author, Rose Lenehan, is a PhD candidate at MIT and a member of the Prison Policy Initiative’s Young Professional Network.

The new report is available at https://www.prisonpolicy.org/reports/stopandfrisk.html

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Consumer Financial Protection Bureau housekeeping risks release card protections

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

by Stephen Raher, August 15, 2017

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

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

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

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

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

Seizing Chicago: Drug stings and asset forfeiture target the poor

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

by Alex Clark and Joshua Aiken, August 11, 2017

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

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

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

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

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

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

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

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

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