Prison Industrial System

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13th (Movie)

The 13th Amendment states that “neither slavery nor involuntary servitude, except as a punishment for a crime”

History is not just stuff that happens by accident. We are the products of history that our ancestors choose, if we’re white. If we are black, we are the products of the history that our ancestors mostly likely did not choose. Yet here we are all together, the products of that set of choices. And we have to understand that in order to escape from it…


Racial History of Prisons
Current US Prison Statistics
Private Slave Labor Prison Systems
Immigration Detention
History of Immigration Detention
Prison Strikes
History of Bail Bonds
Felon Disenfranchisement
School-to-Prison Pipeline
Alternatives to Calling the Police
Long list of Police Brutality Towards People of Color Caught on Tape
Police Reform
Restorative Justice
Criminal Justice Reform Campaigns


Racial History of Prisons

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Source: Josh Tucker – Medium: Black History: A History of Permanent White Oppression, from 1619 to 2016

EJI: Slavery to Mass Incarceration

Aftermath of Reconstruction

  • Reconstruction (1865 to 1877)
    • Attempt by Radical Republicans to create equally in the South after the Civil War
      • Freedman’s Bureau, civil rights legislation, black political representation and military protection
  • Reconstruction Accomplishments
    • Civil Rights Amendments (13th, 14th, 15th) and Acts
      • Outlawing slavery (except in prison), citizenship and Bill of rights, right to vote
    • Rise of public education for all children in South
    • At height over 2000 African Americans held a political office
      • Congress, local offices and first black governor (Second black governor was in 1989)
        • 1867, no black people held office in South
        • 1870, black people held over 15% of Southern offices
        • 1980, black people hold less than 8% of Southern offices
  • Failures
    • 40 acres and a mule (Worth $6.4 Trillion today),
    • Share Cropping (debt peonage), youth apprenticeships, Black land theft
    • Rise of white terrorism, voter suppression and lynching
    • Return of political, economic and social white supremacy in South
  • Rise of criminal justice system based on black criminality
    • Black codes, Vagrancy laws, Jim Crow
    • Convict Leasing
    • Widespread promotion of the myth of Black Criminality
    • Slavery by another name
  • Reconstruction officially died in 1877
    • From an economic depression, lack of funds, removal of federal troops, Northern apathy, return of white supremacy, decline of radical Republicans, the Compromise of 1877

“The slave went free; stood a brief moment in the sun, then moved back again towards slavery.” Web Du Bois

PBS: Slavery by Another Name

Full Movie
PBS: Slavery by Another Name

EJI: Lynching in America

“When eleven Southern states seceded from the Union to form the Confederate States of America, sparking the Civil War in 1861, they made no secret of their ultimate aim: to preserve the institution of slavery. As Confederate Vice President Alexander H. Stephens explained, the ideological “cornerstone” of the new nation they sought to form was that “the negro is not equal to the white man” and “slavery subordination to the superior race is his natural and moral condition.”

Slavery had been an increasingly divisive political issue for generations, and though United States President Abraham Lincoln personally opposed slavery, he had rejected abolitionists’ calls for immediate emancipation. Instead, Lincoln favored a gradual process of compensated emancipation and voluntary colonization, which would encourage freed black people to emigrate to Africa. Once the nation was in the throes of civil war, Lincoln feared any federal move toward emancipation would alienate border states that permitted slavery but had not seceded. Lincoln’s cabinet and other federal officials largely agreed, and shortly after the war’s start, the House of Representatives passed a resolution emphasizing that the purpose of the war was to preserve the Union, not to eliminate slavery.

As the Civil War dragged on, however, increasing numbers of enslaved African Americans fled slavery to relocate behind Union lines, and the cause of emancipation became more militarily and politically expedient. On January 1, 1863, President Lincoln issued the Emancipation Proclamation, which declared enslaved people residing in the rebelling Confederate states to be “then, thenceforward, and forever free.” The Emancipation Proclamation did not apply to the roughly 425,000 enslaved people living in Tennessee, Delaware, Kentucky, Missouri, and Maryland—states that had not seceded or were occupied by Union forces.

In most Confederate states where the proclamation did apply, resistance to emancipation was inevitable and there was almost no federal effort to enforce the grant of freedom. Southern planters attempted to hide news about Lincoln’s proclamation from enslaved people, and in many areas where federal troops were not present, slavery remained the status quo well after 1863. Even as the Confederacy faced increasingly certain defeat in the war, Southern whites insisted that Lincoln’s wartime executive order was illegal and that slavery could be formally banned only by a legislature or court. Many used deception and violence to keep enslaved people from leaving plantations.

Formal nationwide codification of emancipation came in December 1865 with ratification of the Thirteenth Amendment, which prohibited slavery throughout the United States, except as punsihment for a crime. Several states continued to symbolically resist into the twentieth century: Delaware did not ratify the Thirteenth Amendment until 1901; Kentucky ratified in 1976; and Mississippi ratified in 1995.

The legal instruments that led to the formal end of racialized chattel slavery in America did nothing to address the myth of racial hierarchy that sustained slavery, nor did they establish a national commitment to the alternative ideology of racial equality. Black people might be free from involuntary labor under the law, but that did not mean Southern whites recognized them as fully human. White Southern identity was grounded in a belief that whites are inherently superior to African Americans; following the war, whites reacted violently to the notion that they would now have to treat their former human property as equals and pay for their labor. In numerous recorded incidents, plantation owners attacked black people simply for claiming their freedom.

At the Civil War’s end, black autonomy expanded but white supremacy remained deeply rooted. The failure to unearth those roots would leave black Americans exposed to terrorism and racial subordination for more than a century.

The federal government’s lackluster commitment to black civil rights and security following the Civil War was a disappointing failure that undermined the promise of freedom. Congress established the Freedmen’s Bureau in March 1865 with a mandate to provide formerly enslaved people with basic necessities and to oversee their condition and treatment in the former Confederate states. But Congress appropriated no budget for the bureau, leaving it to be staffed and funded by President Andrew Johnson’s War Department.

President Johnson, a Unionist former slaveholder from Tennessee, served as vice president during the Civil War and assumed the presidency after Lincoln’s assassination in April 1865. Though he initially promised to punish Southern “traitors,” Johnson issued 7000 pardons to secessionists by 1866. He also rescinded orders granting black farmers tracts of land confiscated from Confederates. This greatly impeded formerly enslaved people’s ability to build their own farms because whites routinely refused to provide them credit, effectively barring black people from purchasing land without government assistance.

Instead of facilitating black land ownership, Johnson advocated a new practice that soon replaced slavery as a primary source of Southern agricultural labor: sharecropping. Under this system, black laborers worked white-owned land in exchange for a share of the crop at harvest minus costs for food and lodging, often in the same slave quarters they had previously inhabited. Because Johnson’s administration required that landowners pay off their debts to banks first, sharecroppers frequently received no pay and had no recourse.

President Johnson also opposed black voting rights. During Reconstruction, whites of diverse political affiliations declared voting a “privilege” rather than a universal right, and even some whites who had opposed slavery were wary of measures that would lead to black voting in the North. Johnson believed black people were inherently servile and unintelligent; he feared they would vote as instructed by their former masters, reestablishing the power of the planter class and relegating poor white farmers to virtual slavery. Johnson made little effort to disguise his racist views. In his 1867 annual message to Congress, President Johnson declared that black Americans had “less capacity for government than any other race of people,” that they would “relapse into barbarism” if left to their own devices, and that giving them the vote would result in “a tyranny such as this continent has never yet witnessed.” Not surprisingly, under President Johnson, federal Reconstruction efforts to support and enforce black Americans’ citizenship rights and social and economic freedom went largely unsupported and unrealized.

Meanwhile, the Johnson administration allowed Southern whites to reestablish white supremacy and dominate black people with impunity. Two incidents in 1866 foretold terrifying days to come for African Americans. On May 1, 1866, in Memphis, Tennessee, white police officers began firing into a crowd of African American men, women, and children that had gathered on South Street, and afterward white mobs rampaged through black neighborhoods with the intent to “kill every Negro and drive the last one from the city.” Over three days of violence, forty-six African Americans were killed (two whites were killed by friendly fire); ninety-one houses, four churches, and twelve schools were burned to the ground; at least five women were raped; and many black people fled the city permanently.

Less than three months later, in New Orleans, a group of African Americans—many of whom had been free before the Civil War—attempted to convene a state constitutional convention to extend voting rights to black men and repeal racially discriminatory laws known as Black Codes. When the delegates convened at the Mechanics’ Institute on July 30, 1866, groups of black supporters and white opponents clashed in the streets. The white mob began firing on black marchers, indiscriminately killing convention supporters and unaffiliated black bystanders. Rather than maintain order, white police officers attacked black residents with guns, axes, and clubs, arresting many and killing several. By the time federal troops arrived to suppress the white insurgency, as many as forty-eight black people were dead and two hundred had been wounded.

PROGRESSIVE RECONSTRUCTION

The Memphis and New Orleans attacks, which occurred just before the midterm elections of 1866, sparked national outrage outside the South and mobilized voters to support the Republican Party’s progressive platform advocating expansive rights and protections for African Americans. Republicans won a landslide victory in the 1866 congressional races, gaining a veto-proof majority and control of the legislative agenda. Senator Charles Sumner of Massachusetts and Representative Thaddeus Stevens of Pennsylvania then led the progressive caucus in devising an ambitious civil rights program broader than anything Congress would attempt for another century.

First, Congress passed the Civil Rights Act of 1866, which declared black Americans full citizens entitled to equal civil rights. President Johnson vetoed the bill, but Congress—for the first time in United States history—overrode the veto. Next, the progressive Republican supermajority quickly passed the Fourteenth Amendment. Intended to eliminate any doubt about the constitutionality of civil rights, the proposed amendment established that all persons born in the country, regardless of race, were full citizens of the United States and the states in which they resided, entitled to the “privileges and immunities” of citizenship, due process, and the equal protection of the law. If ratified, the amendment would supersede the United States Supreme Court’s 1857 decision in Dred Scott v Sanford, which held that African Americans were not citizens and had no standing to sue in federal court.

Twenty-eight of the thirty-seven states had to ratify the Fourteenth Amendment in order for it to be added to the Constitution, but when Southern legislatures first considered the amendment, ten of the eleven former Confederate states rejected it overwhelmingly—Louisiana unanimously. In response, again over President Johnson’s veto, Congress passed the Reconstruction Acts of 1867, which imposed military rule on the South and required that any states seeking readmission to the Union had to first ratify the Fourteenth Amendment. In July 1868, the Fourteenth Amendment was officially adopted.

The Reconstruction Acts of 1867 also granted voting rights to African American men while disenfranchising former Confederates, dramatically altering the political landscape of the South and ushering in a period of progress. In elections for new state governments, black voter turnout neared 90 percent in many jurisdictions, and black voters—who comprised a majority in many districts and a statewide majority in Louisiana—elected both white and black leaders to represent them. More than six hundred African Americans, most of them formerly enslaved, were elected as state legislators during this period. Another eighteen African Americans rose to serve in state executive positions, including lieutenant governor, secretary of state, superintendent of education, and treasurer. In Louisiana in 1872, P.B.S. Pinchback became the first black governor in America (and would be the last until 1990). The Reconstruction states sent sixteen black representatives to the United States Congress, and Mississippi voters elected the nation’s first black senators: Hiram Revels and Blanche Bruce.

The newly elected and racially integrated Reconstruction governments took bold action at the state level, repealing discriminatory laws, rewriting apprenticeship and vagrancy statutes, outlawing corporal punishment, and sharply reducing the number of capital offenses. African Americans also won election to law enforcement positions like sheriff and chief of police, and were empowered to serve on juries.

Despite their advances, the racially diverse Reconstruction governments faced significant challenges. For one, the issue of social equality continued to divide the Republican Party. Black members and progressive whites advocated the full eradication of white supremacy, while more conservative whites still supported some forms of racial hierarchy and separation. Because nearly all black voters supported the Republican ticket in every election, the party began to take freedmen’s votes for granted and shifted its attention toward courting more “moderate” white swing voters. In addition, the Reconstruction governments faced a “crisis of legitimacy” as their efforts to attract capital to war-torn Southern state economies raised accusations of corruption and graft.

In the midst of this growing instability, officials struggled to control increasingly violent and lawless groups of white supremacists in their states. Beginning as disparate “social clubs” of former Confederate soldiers, these groups morphed into large paramilitary organizations that drew thousands of members from all sectors of white society.31 Collectively, and with the tacit endorsement of the broader white community, their members launched a bloody reign of terror that would overthrow Reconstruction and sustain generations of white rule.”

Crash Course: Reconstruction and 1876

Bryon Stevenson: Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system.

Several years ago, my law office was fighting for the release of a black man who had been condemned, at the age of 16, to die in prison. Matthew was one of 62 Louisiana children sentenced to life imprisonment without parole for nonhomicide offenses. But a case I’d argued at the Supreme Court was part of a 2010 ruling that banned such sentences for juveniles, making our clients eligible for release.

Some had been in prison for nearly 50 years. Almost all had been sent to Angola, a penitentiary considered one of America’s most violent and abusive. Angola is immense, larger than Manhattan, covering land once occupied by slave plantations. Our clients there worked in fields under the supervision of horse-riding, shotgun-toting guards who forced them to pick crops, including cotton. Their disciplinary records show that if they refused to pick cotton — or failed to pick it fast enough — they could be punished with time in “the hole,” where food was restricted and inmates were sometimes tear-gassed. Still, some black prisoners, including Matthew, considered the despair of the hole preferable to the unbearable degradation of being forced to pick cotton on a plantation at the end of the 20th century. I was fearful that such clients would be denied parole based on their disciplinary records. Some were.

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned. In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole. Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana. And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery.

It took only a few decades after the arrival of enslaved Africans in Virginia before white settlers demanded a new world defined by racial caste. The 1664 General Assembly of Maryland decreed that all Negroes within the province “shall serve durante vita,” hard labor for life. This enslavement would be sustained by the threat of brutal punishment. By 1729, Maryland law authorized punishments of enslaved people including “to have the right hand cut off … the head severed from the body, the body divided into four quarters, and head and quarters set up in the most public places of the county.”

Soon American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions. As the Supreme Court of Alabama explained in 1861, enslaved black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in most every other sense they were “incapable of performing civil acts” and considered “things, not persons.

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes. After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.” The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.” Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control.

These strategies intensified whenever black people asserted their independence or achieved any measure of success. During Reconstruction, the emergence of black elected officials and entrepreneurs was countered by convict leasing, a scheme in which white policymakers invented offenses used to target black people: vagrancy, loitering, being a group of black people out after dark, seeking employment without a note from a former enslaver. The imprisoned were then “leased” to businesses and farms, where they labored under brutal conditions. An 1887 report in Mississippi found that six months after 204 prisoners were leased to a white man named McDonald, dozens were dead or dying, the prison hospital filled with men whose bodies bore “marks of the most inhuman and brutal treatment … so poor and emaciated that their bones almost come through the skin.”

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota. In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton. In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal. It also cultivated a tolerance for employing any level of brutality in response. In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him. A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade. The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge. Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same. It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere. New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black. All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white. In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.

Inside courtrooms, the problem gets worse. Racial disparities in sentencing are found in almost every crime category. Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses. Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

The smog created by our history of racial injustice is suffocating and toxic. We are too practiced in ignoring the victimization of any black people tagged as criminal; like Woods Eastland’s crowd, too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.

This cannot be the end of the story. In 2018, the Equal Justice Initiative, a nonprofit I direct, opened a museum in Montgomery, Ala., dedicated to the legacy of slavery and a memorial honoring thousands of black lynching victims. We must acknowledge the 400 years of injustice that haunt us. I’m encouraged: Half a million people have visited. But I’m also worried, because we are at one of those critical moments in American history when we will either double down on romanticizing our past or accept that there is something better waiting for us.

I recently went to New Orleans to celebrate the release of several of our Angola clients, including Matthew — men who survived the fields and the hole. I realized how important it is to stay hopeful: Hopelessness is the enemy of justice. There were moments of joy that night. But there was also heaviness; we all seemed keenly aware that we were not truly free from the burden of living in a nation that continues to deny and doubt this legacy, and how much work remains to be done.

Further Readings

Wikipedia: Reconstruction

PBS: Reconstruction: America After the Civil War

James W. Loewen: Five Myths About Reconstruction

Convict Leasing

“The Convict Lease System and Lynch Law are twin infamies which flourish hand in hand in many of the United States.  They are the two great outgrowths and results of the class legislation under which our people suffer today”
Frederick Douglas

13th Amendment

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

  • Leasing prisoners to private interests for public/private profit
    • Created a criminal justice system that:
      • Criminalize, exploit, enslave and disenfranchise black people
    • Slavery by another name
      • 13th amendment prohibits slavery except as punishment for crime
  • Disproportionately targeted black people
    • Between 1870 and 1910, 88 percent of convicts leased in Georgia were black
  • Increased in the South after Civil War to early 20th century
    • Many impoverished state govs could not afford penitentiaries
      • So they leased out prisoners to work at private firms
  • Because of large profits received by local govs/private corporations
    • Created incentives to arrest blacks using Vagrancy Laws and Black Codes
    • 10,000s of black people were arbitrarily arrested and leased to coal mines, lumber camps, brickyards, railroads, quarries, farm plantations
  • The state govs maximized profits
    • By putting responsibility on lessee to provide food, clothing, shelter, and medical care for the prisoners, with little oversight
    • Resulted in extremely poor conditions, numerous deaths, inhumane system
  • Reformers abolished convict leasing in 20th-century Progressive Era
    • The last state to abolish was Alabama in 1927

“Convict leasing demonstrated the way in which the criminal justice system would become the central institution for sustaining racial domination and hierarchy in America. It legitimized excessive punishment and abuse of African Americans and terrorized people of color.” Equal Justice Initiative

Inhumanity of Convict Leasing

  • State govs maximized profits by giving Lessees
    • Responsibility to provide food, clothing, shelter, medical
      • with little oversight
    • Resulted in extremely poor conditions, numerous deaths, inhumane systems
    • “This system was actually more deadly than slavery. Every year, between 16 and 25 percent of prisoners would die. It was on par with the death rate of the Soviet Gulags.” Shane Bauer, American Prison
  • Conditions
    • AL state inspectors reported horrendous mortality rates in mines
      • 1/3 of the 684 forced laborers imprisoned at one mine in 1888-89 died
      • In a 2-week period 137 floggings were administered to 165 forced laborers
    • Wide spread torture, whippings, amputation, etc.
      • High rates of self mutilations to lower prisoners’ value to not be leased

“In Slavery’s antebellum form, humans as property were at least minimally protected because of their long-term financial value. But under convict leasing, a man’s value did not exceed what his employer paid the state monthly. If the labor died in custody, the employer suffered only trivial financial inconvenience, as another convict could be readily procured at the same tariff. One dies, get another one…became the working motto of the system’s architects” Ian Haney Lopez, Dog Whistle Politics

EQI: Convict Leasing

Convict leasing, the practice of selling the labor of state and local prisoners to private interests for state profit, utilized the criminal justice system to effectuate the economic exploitation and political disempowerment of black people. State legislatures passed discriminatory criminal laws or “black codes,” which created new criminal offenses such as “vagrancy” and “loitering.” This led to the mass arrest and incarceration of black people. Relying on language in the Thirteenth Amendment that prohibits slavery and involuntary servitude “except as punishment for crime,” lawmakers empowered white-controlled governments to extract black labor in private lease contracts or on state-owned farms.95 “While a Black prisoner was a rarity during the slavery era (when slave masters were individually empowered to administer ‘discipline’ to their human property) the solution to the free black population had become criminalization. In turn, the most common fate facing black convicts was to be sold into forced labor for the profit of the state.”96

Beginning as early as 1866 in states like Texas, Mississippi, and Georgia, convict leasing spread throughout the Southern states and continued through the late nineteenth and early twentieth centuries.97 In contrast to white prisoners who were routinely sentenced to the penitentiary, leased black convicts faced deplorable, unsafe working conditions and brutal violence when they attempted to resist or escape bondage.98

An 1887 report by the Hinds County, Mississippi grand jury recorded that, six months after 204 convicts were leased to a man named McDonald, twenty were dead, nineteen had escaped, and twenty-three had been returned to the penitentiary disabled, ill, and near death.99 The penitentiary hospital was filled with sick and dying black men whose bodies bore “marks of the most inhuman and brutal treatment . . . so poor and emaciated that their bones almost come through the skin.”100 Under this grotesquely cruel system that lasted decades, countless black men, women, and children lost their freedom—and often their lives. “Before convict leasing officially ended,” writes historian David Oshinsky, “a generation of black prisoners would suffer and die under conditions far worse than anything they had ever experienced as slaves.”101 Convict leasing demonstrated the way in which the criminal justice system would become the central institution for sustaining racial domination and hierarchy in America. It legitimized excessive punishment and abuse of African Americans and terrorized people of color.”

Josh Tucker: Black History: A History of Permanent White Oppression, from 1619 to 2016

In 1850, non-whites comprised just 2% of Alabama’s prison population. By 1870, a mere five years after the end of the Civil War, that same Alabama prison population was 74% non-white. The cause of this was the advent of convict leasing. The Southern economy was so thoroughly based on slavery that the Civil War and the end of slavery threatened to destroy it.

EJI: Convict Leasing System Re-Enslaves Black Man in Alabama

On March 30, 1908, a black man named Green Cottenham was arrested and charged with “vagrancy” in Shelby County, Alabama. An offense created at the end of the Reconstruction Period and disproportionately enforced against black citizens, vagrancy was defined as an inability to prove employment when demanded by a white person.

Just twenty-two years old, Green Cottenham was quickly found guilty in a brief appearance before the county judge without a lawyer, and received a sentence of thirty days of hard labor. He was also assessed a variety of fees payable to nearly everyone involved in the process, from the sheriff to the deputy to the court clerk to the witnesses. Due to his inability to pay these fees, Mr. Cottenham’s sentence would actually last nearly a year.

Because the Thirteenth Amendment’s ban on slavery and involuntary servitude explicitly excepted people convicted of crime from its protections, the predominately black populations ensnared by discriminatory criminal laws passed after the Civil War had no way to avoid being thrust back into the conditions of forced labor they had only recently escaped. Soon after the Civil War’s end, Alabama was one of many states to take advantage of this loophole.

The day after his court appearance, Mr. Cottenham was turned over to the Tennessee Coal, Iron & Railroad Company. The company leased him from Shelby County for $12 per month, which was to go toward paying off the owed fees and fines. Mr. Cottenham was sent to work in the Pratt Mines outside Birmingham, in Slope No. 12 mine where conditions were brutal. By the time Green Cottenham was released nearly a year later, more than sixty of his fellow prisoners had died of disease, accidents, or homicide. Most of their corpses were burned in the mine’s incinerators or buried in shallow graves surrounding the mine.

The story of Green Cottenham and the convict leasing system that re-enslaved countless black people for generations after Emancipation is told in Douglas Blackmon’s 2008 book, Slavery by Another Name.

Ian Haney López: Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class

The constitutional amendment that banned slavery provided that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” Right there in the middle of the Thirteenth Amendment was a gaping hole — one big enough to allow the reestablishment of slavery by another name. Through innumerable stratagems, the South rapidly built a criminal justice system around imprisoning blacks. Fines for minor infractions suddenly morphed into jail time. Selective prosecution of blacks surged. New crimes made their way onto the books. But of course the point was not to fill jail cells; rather, it was to fuel a new form of involuntary servitude.

The heart of the system lay in leasing out convicts as laborers. As an economic matter, governments and private capital profited handsomely.

[In Alabama in the early 1900s] “First-class” prisoners were leased out for $18.50 a month, with the understanding that they would cut and load four tons of coal a day, or be subject to whipping. The weakest inmates, rated as “dead hands,” were leased out for just $9 a month, and lashed if their subterranean struggle failed to produce a ton of coal — 2,000 pounds — each day. The term “dead hands” was tragically apt, as the prisoners’ new masters faced a different economic calculus than under formal slavery. In slavery’s antebellum form, humans as property were at least minimally protected because of their long-term financial value. But under convict leasing, a man’s value did not exceed what his employer paid the state monthly. If the laborer died in custody, the employer suffered only trivial financial inconvenience, as another convict could be readily procured at the same tariff. One former slave owner, lamenting slavery’s demise as a more humane relationship, bemoaned convict leasing’s brutal math: “Before the war, we owned the negroes … If a man had a good negro, he could afford to keep him…. But these convicts, we don’t own ’em. One dies, get another.” “One dies, get another,” reports historian Eric Foner, became the working motto of the system’s architects.

In addition to the whip, various apparatuses and techniques of torture helped to manufacture hell on earth. Included among these were “come-a-longs,” steel bracelets attached to a prisoner’s wrists and fastened to a cross bar such that a twisting of the bar drove the victim to his knees in excruciating pain; and the “pick shackle,” a heavy, sharpened pick-head riveted upside down to an inmate’s ankle, making it impossible to run or even walk normally, and often affixed for the duration of a prisoner’s sentence. [Douglas] Blackmon reports that convict camp records are littered with notations regarding “amputations of feet and lower legs as a result of blood poisoning from the injuries caused by iron shackles abrading bare skin into raw, infected lesions.” In addition, Blackmon documents the prevalence of sundry forms of water torture, from pinning a man down and pouring water on his face so as to stop his breathing, to repeatedly plunging laborers head first into water barrels and holding them there until their spasms subsided, then reviving them and repeating, forcing them to endure the terror of drowning over and over again. Destroyed by the hopelessness and pain of their Sisyphean situation, many men begged their wardens to kill them, while others, to reduce their economic value and so possibly gain their freedom, mutilated themselves by “slicing their heel strings, hacking off their hands, or gouging out their eyes.”

Convict leasing recreated a facsimile of slavery directly, with convict laborers held and exploited under the terror of the lash in fields, factories, and mines. But it also reconstituted pre-Civil War racial stratification by undergirding the rise of debt peonage and sharecropping across the rural South. … The system’s ubiquity and caprice assured that virtually no African American man was safe unless under the protection and control of a white landowner or employer. If you wanted to be sure you would make it home from town — rather than being swept up, imprisoned under spurious charges, and sold into the convict lease system — you needed the surety provided by a powerful white man. Blacks went into sharecropping, a relationship itself akin to slavery, partly because they needed white bosses to protect them from the lethal convict labor system. The mortal threat of convict leasing and the chain gang subjugated African Americans to an agricultural peonage system at least until the mid-1940s.

Wikipedia: “Penal labor in the United States

The current state of prison labor in the United States has distinct roots in slavery traditions. With the passage of the 13th amendment in 1865, slavery was deemed unconstitutional with the exception as for a punishment for a crime whereof the party shall have been duly convicted. This caveat allowed those incarcerated to be forced to work without constitutional rights granted to them. The forced prison labor was then used to reinforce a system of racial control for years past. Southern states would criminalize minor crimes through “black codes” which drove up the arrest rate of freedmen and forced them to participate in penal labor when they could not afford the fines. During the Reconstruction era in order to boost the Southern economy, the institutionalization of convict leasing began to take effect.

The “convict lease” system became popular throughout the American South following the American Civil War and into the 20th century. Since the impoverished state governments could not afford penitentiaries, they leased out prisoners to work at private firms. According to Douglas A. Blackmon, because of the revenue received by local governments, they had incentives to arrest blacks; tens of thousands of African Americans were arbitrarily arrested and leased to coal mines, lumber camps, brickyards, railroads, quarries, and farm plantations. In Florida, convicts were often sent to work in lumber camps and turpentine factories.  The state governments maximized profits by putting the responsibility on the lessee to provide food, clothing, shelter, and medical care for the prisoners, with little oversight. This resulted in extremely poor conditions, numerous deaths, and perhaps the most inhumane system of labor in the United States.  Reformers abolished convict leasing in the 20th-century Progressive Era, stopping the system in Florida in 1919. The last state to abolish the practice was Alabama in 1927.

Convict leasing was one of the major contributors to the disenfranchisement of blacks across the South through the 20th century and worked to exclude African-Americans from the political system alongside a rising wave of lynching of blacks by white mobs. American criminologist Thorsten Sellin asserts that the sole aim of convict leasing “was financial profit to the lessees who exploited the labor of the prisoners to the fullest, and to the government which sold the convicts to the lessees.”  Although the leasing system came to a close, convict labor never ceased and continues today in various forms.

Wikipedia: Convict leasing

“Convict leasing was a system of penal labor practiced in the Southern United States. Convict leasing provided prisoner labor to private parties, such as plantation owners and corporations (e.g. Tennessee Coal and Iron Company). The lessee was responsible for feeding, clothing, and housing the prisoners. The state of Louisiana leased out convicts as early as 1844, but the system expanded all through the South with the emancipation of slaves at the end of the American Civil War in 1865. It could be lucrative for the states: in 1898 some 73% of Alabama’s entire annual state revenue came from convict leasing…

…Convict leasing in the United States was widespread in the South during the Reconstruction Period. (1865–1877) after the end of the Civil War, when many southern legislatures were ruled by majority coalitions of blacks and Radical Republicans, and Union generals acted as military governors. Farmers and businessmen needed to find replacements for the labor force once their slaves had been freed. Some southern legislatures passed Black Codes to restrict free movement of blacks and force them into employment with whites. If convicted of vagrancy, blacks could be imprisoned, and they also received sentences for a variety of petty offenses. States began to lease convict labor to the plantations and other facilities seeking labor, as the freedmen were trying to withdraw and work for themselves. This provided the states with a new source of revenue during years when they were financially strapped, and lessees profited by the use of forced labor at below market rates…

…While northern states sometimes contracted for prison labor, the historian Alex Lichtenstein notes that,

“only in the South did the state entirely give up its control to the contractor; and only in the South did the physical “penitentiary” become virtually synonymous with the various private enterprises in which convicts labored.”

Corruption, lack of accountability, and racial violence resulted in “one of the harshest and most exploitative labor systems known in American history.” African Americans, mostly adult males, due to “vigorous and selective enforcement of laws and discriminatory sentencing,” made up the vast majority—but not all—of the convicts leased.

The writer Douglas A. Blackmon described the system:

“It was a form of bondage distinctly different from that of the antebellum South in that for most men, and the relatively few women drawn in, this slavery did not last a lifetime and did not automatically extend from one generation to the next. But it was nonetheless slavery – a system in which armies of free men, guilty of no crimes and entitled by law to freedom, were compelled to labor without compensation, were repeatedly bought and sold, and were forced to do the bidding of white masters through the regular application of extraordinary physical coercion.”

U.S. Steel is among American companies who have acknowledged using African-American leased convict labor.  The practice peaked around 1880, was formally outlawed by the last state (Alabama) in 1928, and persisted in various forms until it was abolished by President Franklin D. Roosevelt via Francis Biddle’s “Circular 3591 of December 12, 1941.”

Late 20th Century Prison Slave Labor

  • Prison “slave” labor continued in different forms
    • Up to the 1970s
      • Texas: segregated prison gangs picking cotton for free
      • Mississippi, Louisiana, other Southern States had forced agriculture programs
  • PIECIP, ALEC and Prison-Industries Acts (1979)
    • Prison Industry Enhancement Certification Program (PIECP or PIE)
      • Legalized the transportation of prison-made goods across state lines
      • Allows prison inmates to earn market wages in private sector jobs that can go towards tax deductions, victim compensation, family support, and room and board
        • Significantly increased prison labor participation in private sector
      • American Legislative Exchange Council (ALEC)
        • Lobbied firm to focus on opening up private prison labor for profit
          • “ALEC helped pioneer some of the toughest sentencing laws on the books today, like mandatory minimums for non-violent drug offenders, “three strikes” laws, and “truth in sentencing” laws.” The Nation The Hidden History of ALEC and Prison Labor
      • Prison Industries Acts
        • State legislations promoted by ALEC to open up prison labor furthe
  • For profit prison lobbyists began to lobby other policies over next decades
    • War on Drugs, longer sentencing legislation (mandatory minimums, 3 strikes, Truth in Sentencing), numerous crime bills, Broken Windows Policing, Stop and Frisk, Immigration policies, criminalization of black people and immigrants, etc.

ALEC clip from Netflix documentary “13th”

State Legislatures and ALEC: Last Week Tonight with John Oliver (HBO)

Further Readings

Nation: The Hidden History of ALEC and Prison LaborThe Hidden History of ALEC and Prison LaborThe Hidden History of ALEC and Prison Labor

Wikipedia: Prison–industrial complex

Convict Leasing Today

  • The Bureau of Prisons requires all able-bodied inmates to work
    • As do many state corrections agencies (which house the majority of the prison population).
  • 3 million Americans locked up in state and federal prisons
    • 61% have jobs according to 2014 survey
    • Cleaning and cooking, California inmate firefighters, Georgia inmate sanitation workers, multiple state prison farms, private industries, etc.
    • Louisiana Prison Inmate Bull Rodeo
  • Wages can range from $0 to $2 an hour
    • Average federal prisoner making $.92 per hour
    • “Inmates, however, keep only a fraction of their wages, as approximately 80% is withheld for restitution, to offset incarceration costs, and to support their families, among other things. Thus, the average “take home” wage of a federal prisoner is around $.18 per hour. State prisoners’ wages range from $.23 per hour to $7.00 per hour, depending upon the state and the company for which they work; they also only take home only 20% of their wages.” EPI Bringing the jobs back home to prisons
  • 5 States don’t pay for their labor
    • Alabama, Arkansas, Florida, Georgia, and Texas
    • Texas slave/inmate labor system was valued at $88.9 million in 2014
  • Due to recent immigrant farm worker crackdowns
    • States are leasing prisoners to farms
      • Arizona, Idaho, and Washington

Prison Labor: Last Week Tonight with John Oliver (HBO)

Further Readings about Prison wages

EPI Bringing the jobs back home to prisons

HuffPost: The ‘Modern Day Slavery’ Of Prison Labor Really Does Have A Link To Slavery

Prison Policy Institute: How much do incarcerated people earn in each state?

Pacific Standard: How Anti-Immigration Policies Are Leading Prisons to Lease Convicts as Field Laborers

Prison inmates are picking fruits and vegetables at a rate not seen since Jim Crow.

Convict leasing for agriculture—a system that allows states to sell prison labor to private farms—became infamous in the late 1800s for the brutal conditions it imposed on captive, mostly black workers.

Federal and state laws prohibited convict leasing for most of the 20th century, but the once-notorious practice is making a comeback.

Under lucrative arrangements, states are increasingly leasing prisoners to private corporations to harvest food for American consumers.

Why Now?

The American food system relies on cheap labor. Today, median income for farm workers is $10.66 an hour, with 33 percent of farm-worker households living below the poverty line.

Historically, agriculture has suppressed wages—and eschewed worker protections—by hiring from vulnerable groups, notably, undocumented migrants. By some estimates, 70 percent of agriculture’s 1.2 million workers are undocumented.

As current anti-immigrant policies diminish the supply of migrant workers (both documented and undocumented), farmers are not able to find the labor they need. So, in states such as Arizona, Idaho, and Washington that grow labor-intensive crops like onions, apples, and tomatoes, prison systems have responded by leasing convicts to growers desperate for workers.

The Racist Roots of Convict Leasing

Since Reconstruction, states have used prisoners to solve labor supply problems in industries such as road and rail construction, mining, and agriculture. But convict leasing has also been a powerful weapon of white supremacy, and, now, anti-immigrant sentiment.

After Emancipation, southern economies faced a crisis: how to maintain a racial caste system and a supply of surplus labor now that blacks were free.

Southern states passed vagrancy laws, Black Codes, and other legislation to selectively incarcerate freed slaves. For example, under Mississippi’s vagrancy law, all black men had to provide written proof of a job or face a $50 fine. Those who could not pay were forced to work for any white man willing to pay the fine—an amount that was deducted from the black man’s wage.

During the late 1800s, mass incarceration created an army of cheap labor that could be leased to private businesses for substantial profit. In 1886, state revenues from leasing exceeded the cost of running prisons by nearly 400 percent. Between 1870 and 1910, 88 percent of convicts leased in Georgia were black.

Populist Response

But cheap convict labor also suppressed wages for free whites, and, by 1900, poor whites began pushing back.

In 1904, James Vardaman was elected governor of Mississippi on a platform of returning whites to work and blacks to confinement. These populist white supremacist sentiments dovetailed with national economic concerns during the Great Depression, when agricultural failures led to widespread unemployment.

In the 1930s, the Ashurst-Sumners Act and accompanying state laws prohibited convict leasing and the sale of prisoner-made goods on the open market. Inmates still worked in agriculture, but the food they produced had to be consumed by other prisoners or state workers.

By the late 1970s, with growing competition from foreign manufacturing, American companies sought out domestic sources of cheap labor.

Under pressure from corporate lobbies like the American Legislative Exchange Council, Congress relaxed restrictions on convict leasing with the Justice System Improvement Act. As the manufacturing and service sectors began hiring prisoners, agriculture expanded its use of migrant workers.

Profit and Exploitation

Today, convict leasing offers significant revenues for prisons.

Most wages paid to inmates are garnished by prisons to cover incarceration costs and pay victim restitution programs. In some cases, prisoners see no monetary compensation whatsoever. In 2015 and 2016, the California Prison Industry Authority made over $2 million from its food and agriculture sector.

Growers can reap significant revenues too. Inmates are excluded from federal minimum wage protections, allowing prison systems to lease convicts at a rate below the going labor rate. In Arizona, inmates leased through Arizona Correctional Industries receive a wage of $3 to $4 per hour before deductions. Meanwhile, the state’s minimum wage for most non-incarcerated farm workers is $11.00/hour.

Beyond the unfairness of low wages, inadequate state and federal regulations ensure that agricultural work continues to be onerous. Laborers endure long hours, repetitive motion injuries, temperature and humidity extremes, and exposure to caustic and carcinogenic chemicals.

For inmates, these circumstances are unlikely to change. United States courts have ruled that prisoners are prohibited from organizing for higher wages and working conditions—though strikes have occurred in recent years.

Furthermore, inmates are not legally considered employees, which means they are excluded from protection under parts of the 1964 Civil Rights Act, the Equal Pay Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Federal Tort Claims Act.

Whose Labor Is Being Sold?

The total number—and racial make-up—of leased inmates is difficult to calculate. Not all prison systems report on farming operations or leased labor arrangements. According to one advocacy group, at least 30,000 inmates work within the food system. But to the extent that convict leasing reflects overall inmate demographics, prison agriculture is distinctly racial.

Blacks make up 39 percent of inmates, but only 12 percent of the general population, making blacks six times more likely than whites to be incarcerated. Over the last 50 years—the same period that saw the return of convict leasing—the black incarceration rate quadrupled.

Proponents of “prison industries” argue that leasing provides rehabilitative benefits like on-the-job training for re-entry. But research shows that, within the prison system, whites receive better jobs than blacks, with better pay and more beneficial skills.

Whereas migrant workers often benefit home communities by returning a portion of their wages as remittances, the garnishing or non-payment of convict wages prevents inmates from contributing to their families and home economies.

Since Emancipation, agriculture has moved its focus from one labor source to another in response to shifting currents of populism, nativism, and racism. All three benefit from the exploitation of minority populations, and all three justify policies of exploitation in economic terms.

Convict leasing is the first—and now the latest—strategy.

Wikipedia: Penal labor in the United States

Hired Convict Labor

The earliest known law permitting convicts to be paid for their labor traces back to an act passed by New York governor John Jay in 1796. More explicit legislation suggesting that “it may be useful to allow [prisoners] a reasonable portion of the fruits of their labor” was later enacted in 1817 under Daniel D. Tompkins, only to be repealed the following year.

In 1924, the U.S. Secretary of Commerce, Herbert Hoover, held a conference on the “ruinous and unfair competition between prison-made products and free industry and labor” (70 Cong. Rec. S656 (1928)).  The eventual legislative response to the committee’s report led to federal laws regulating the manufacture, sale and distribution of prison-made products. Congress enacted the Hawes-Cooper Act in 1929, the Ashurst-Sumners Act in 1935 (now known as 18 U.S.C. § 1761(a)), and the Walsh-Healey Act in 1936. Walsh controlled the production of prison-made goods while Ashurst prohibited the distribution of such products in interstate transportation or commerce.  Both statutes authorized federal criminal prosecutions for violations of state laws enacted pursuant to the Hawes-Cooper Act. Private companies got involved again in 1979, when Congress passed a law establishing the Prison Industry Enhancement Certification Program which allows employment opportunities for prisoners in some circumstances.  PIECP relaxed the restrictions imposed under the Ashurst-Sumners and Walsh-Healey Acts, and allowed for the manufacture, sale and distribution of prisoner-made products across state lines.  However, PIECP limited participation in the program to 38 jurisdictions (later increased to 50), and required each to apply to the U.S. Department of Justice for certification.

According to the International Labor Organization, in 2000-2011 wages in American prisons ranged between $0.23 and $1.15 an hour. In California, prisoners earn between $0.30 and $0.95 an hour before deductions.

Over the years, the courts have held that inmates may be required to work and are not protected by the constitutional prohibition against involuntary servitude. They have also consistently held that inmates have no constitutional right to compensation and that inmates are paid by the “grace of the state.” Under the Federal Bureau of Prisons, all able-bodied sentenced prisoners were required to work, except those who participated full-time in education or other treatment programs or who were considered security risks. Correctional standards promulgated by the American Correctional Association provide that sentenced inmates, who are generally housed in maximum, medium, or minimum security prisons, be required to work and be paid for that work. Some states require, as with Arizona, all able-bodied inmates to work.

Inmates have reported that some private companies, such as Martori Farms, do not check for medical background or age when pulling women for jobs.

Modern prison labor systems

Mississippi for-profit prison labor
Forced labor exists in many prisons. In Mississippi, Parchman Farm operated as a for-profit plantation, which yielded revenues for the state from its earliest years. Many prisoners were used to clear the dense growth in the Mississippi bottomland, and then to cultivate the land for agriculture. By the mid-20th century, it had 21,000 acres (8,498 ha) under cultivation. In the late 20th century, prison conditions were investigated under civil rights laws, when abuses of prisoners and harsh working conditions were exposed. These revelations during the 1970s led the state to abandon the for-profit aspect of its forced labor from convicts and planned to hire a professional penologist to head the prison. A state commission recommended reducing the size of acreage, to grow only what is needed for the prison.

California Department of Corrections and Rehabilitation
The 2017 Northern California wildfires consumed over 201,000 acres of land and took 42 lives. The state fire agency, California Department of Forestry and Fire Protection (CAL FIRE), mobilized over 11,000 firefighters in response, of which 1,500 were prisoners of minimum security conservation camps overseen by the California Department of Corrections and Rehabilitation. 43 conservation camps for adult offenders exist in California and 30 to 40% of CAL FIRE firefighters are inmates from these camps. Inmates within the firefighting programs receive 2 days off for every day they spend in the conservation camps and receive around US$2 per hour. Most California inmate programs inside of institutions receive a little over $0.25 to $1.25 per hour for labor. The inmate firefighter camps have their origins in the prisoner work camps that built many of the roads across rural and remote areas of California during the early 1900s.

Texas Department of Criminal Justice
Responsible for the largest prison population in the United States (over 140,000 inmates) the Texas Department of Criminal Justice is known for being one of the most profitable prison systems in the country on part to their prison labor system. Prisoners do a variety of labor and tasks from raising, processing, and harvesting meat and vegetables to manufacturing soap and clothing items.  The inmates receive no monetary salary or compensation for their labor and receive other rewards in time credits, which could work towards cutting down a prison sentence and allow for early release under mandatory supervision. Prisoners are allotted to work up to 12 hours per day. The penal labor system, managed by Texas Correctional Industries, were valued at US$88.9 million in 2014.  The Texas Department of Criminal Justice states that the prisoner’s free labor pays for room and board while the work they perform in prison equips inmates with the skills and experience necessary to gain and maintain employment after they are released. Texas is one of the 4 states in the United States that does not pay inmates for their labor in monetary funds, with the other states being Georgia, Arkansas, and Alabama.

Georgia Department of Corrections
Pat Biegler, director of the Georgia Public Works department stated that the prison labor system implemented in Georgia facilities saves the department around US$140,000 per week. The largest county prison work camp in Columbus, Georgia, Muscogee County Prison, saves the city around $17 to US$20 million annually according to officials, with local entities also benefiting from the monetary funds the program receives from the state of Georgia.  According to Prison Warden of Muscogee County Prison, Dwight Hamrick, the top priority is to provide prison labor to Columbus Consolidated Government and to rehabilitate inmates, with all inmates being required to work. Inmates performing tasks related to sanitation, golf course, recycling, and landfill receive a monetary compensation of around US$3 per day, while those in jobs such as facility maintenance, transportation, and street beautification do not receive any compensation.

Prison Labor Legislation

Federal Prison Industries (UNICOR or FPI) is a wholly owned United States government corporation created in 1934 that uses penal labor from the Federal Bureau of Prisons (BOP) to produce goods and services. FPI is restricted to selling its products and services to federal government agencies, with some recent exceptions.

The Prison Industry Enhancement Certification Program (PIECP) is a federal program that was initiated along with the American Legislative Exchange Council (ALEC) and the Prison-Industries Act in 1979.  This program legalized the transportation of prison-made goods across state lines and allows prison inmates to earn market wages in private sector jobs that can go towards tax deductions, victim compensation, family support, and room and board. The PIECP, ALEC, and Prison-Industries Act were created with the goal of motivating state and local governments to create employment opportunities that mimic private sector work, generate services that allow offenders to contribute to society, offset the cost of their incarceration, reduce inmate idleness, cultivate job skills, and improve the success rates of transition back into the community after release. Before these programs, prison labor for the private sector had been outlawed for decades to avoid competition. The introduction of prison labor in the private sector, the implementation of PIECP, ALEC, and Prison-Industries Act in state prisons all contributed a substantial role in cultivating the prison-industrial complex. Between the years 1980 through 1994, prison industry profits jumped substantially from $392 million to $1.31 billion. copied content from Prison-industrial complex; see that page’s history for attribution

The Prison-Industries Act allowed third-party companies to buy prison manufactured goods from prison factories and sell the products locally or ship them across state lines.  Through the program PIECP, there were “thirty jurisdictions with active [PIE] operations.” in states such as Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Minnesota, and twelve others.

California Prison Industry Authority is an entity within the California Department of Corrections and Rehabilitation (CDCR) that develops and operates industrial, agricultural, and service enterprises using penal labor.

Response

Free Alabama Movement
Three prisoners — Melvin Ray, James Pleasant and Robert Earl Council — who led work stoppages in Alabama prisons in January 2014 as part of the Free Alabama Movement have been in solitary confinement since the start of the labor strike. Protests took place in three Alabama prisons, and the movement has smuggled out videos and pictures of abusive conditions, and authorities say the men will remain in solitary confinement indefinitely. The prisoners’ work stoppages and refusal to cooperate with authorities in Alabama are modeled on actions that took place in the Georgia prison system in December 2010. The strike leaders argue that refusing to work is a tactic that would force prison authorities to hire compensated labor or to induce the prisoners to return to their jobs by paying a fair wage. Prisoners appear to be currently organizing in Arizona, California, Florida, Illinois, Ohio, Pennsylvania, Mississippi, Texas, Virginia and Washington.

Council, one of the founders of the Free Alabama Movement, said “We will not work for free anymore. All the work in prisons, from cleaning to cutting grass to working in the kitchen, is done by inmate labor. [Almost no prisoner] in Alabama is paid. Without us the prisons, which are slave empires, cannot function. Prisons, at the same time, charge us a variety of fees, such as for our identification cards or wrist bracelets, and [impose] numerous fines, especially for possession of contraband. They charge us high phone and commissary prices. Prisons each year are taking larger and larger sums of money from the inmates and their families. The state gets from us millions of dollars in free labor and then imposes fees and fines. You have [prisoners] that work in kitchens 12 to 15 hours a day and have done this for years and have never been paid.”

Ray said “We do not believe in the political process … We are not looking to politicians to submit reform bills. We aren’t giving more money to lawyers. We don’t believe in the courts. We will rely only on protests inside and outside of prisons and on targeting the corporations that exploit prison labor and finance the school-to-prison pipeline. We have focused our first boycott on McDonald’s. McDonald’s uses prisoners to process beef for patties and package bread, milk, chicken products. We have called for a national Stop Campaign against McDonald’s. We have identified this corporation to expose all the others. There are too many corporations exploiting prison labor to try and take them all on at once.””

Further Readings

Global Research Article, “The Prison Industry in the United States: Big Business or a New Form of Slavery?

PBS: “Inside Mississippi’s notorious Parchman prison

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Current US Prison Statistics

  • 2 million people incarcerate in US
    • No society ever come close to these #s
    • S. holds 5% of world’s pop.
      • but 25% of the world’s inmates
    • 16% suffer from mental illness
  • Government Levels
    • 97% of 125,000 federal inmates convicted for non-violent crimes
    • 2/3 of 1 million state inmates convicted for non-violent crimes
    • Over 50% of 623,000 inmates in municipal/county jails
      • Are waiting for trials, unable to make bail

Sources: Global Research Article, “The Prison Industry in the United States: Big Business or a New Form of Slavery?

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Racial Inequalities in Mass Incarceration

  • Minorities are less than 28% of the US pop.
    • But nearly 60% of the prison population
  • Black people less than 13% of the US pop.
    • 38% of the American prison pop.
    • 5x the rate of whites
      • Black men incarcerated 6x rate of white males
      • Black women incarcerated 2x rate of white women
    • Incarceration rates:
      • 1 in every 15 black men
      • 1 in every 36 Latino men
      • 1 in every 106 white men

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School-to-Prison Pipeline

  • Compared to white boys:
    • Black boys 5x as likely to go to jail
    • Latino boys 3x as likely to go to jail
  • Black girls represent 17% of female students
    • 31% of girls referred to law enforcement
    • 43% of girls arrested on school grounds

Source: The New Progressive: The Ultimate White Privilege Statistics & Data Post, NAACP Criminal Justice Fact Sheet

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Fact Tank: America’s incarceration rate is at a two-decade low

The U.S. incarceration rate fell in 2016 to its lowest level in 20 years, according to new data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite the decline, the United States incarcerates a larger share of its population than any other country.

At the end of 2016, there were about 2.2 million people behind bars in the U.S., including 1.5 million under the jurisdiction of federal and state prisons and roughly 741,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 860 prison or jail inmates for every 100,000 adults ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined every year since then and is now at its lowest point since 1996, when there were 830 inmates per 100,000 adults.

The number of inmates in the U.S. has also gone down in recent years, though not as sharply as the incarceration rate (which takes population change into account). The estimated 2,162,400 inmates who were in prison or jail at the end of 2016 were the fewest since 2004, when there were 2,136,600 inmates. The prison and jail population peaked in 2008 at 2,310,300.

A variety of factors help explain why U.S. incarceration trends have been on a downward trajectory. Crime rates have declined sharply in recent decades despite an uptick in the violent crime rate between 2014 and 2016, according to FBI data. As crime has declined, so have arrests: The nationwide arrest rate has fallen steadily in recent years and is well below where it was in the 1990s, according to BJS.

Changes in prosecution and judicial sentencing patterns, as well as criminal laws, also may play a role in the declining number and share of people behind bars. Recent reductions in prison sentences for thousands of inmates who were serving time for drug-related crimes, for example, have driven a substantial decline in the federal prison population. That, in turn, has contributed to the broader decline in the overall incarcerated population.

Despite these downward trends, the U.S. has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Criminal Policy Research at Birkbeck, University of London. The database compares incarceration rates across more than 200 countries and territories using publicly available data for each jurisdiction. (It’s important to note that the World Prison Brief’s U.S. data differ in some ways from the BJS data above. While BJS emphasizes the number of inmates per 100,000 adults ages 18 and older, for example, the World Prison Brief measures each country’s incarceration rate as the number of inmates per 100,000 people of any age. It also counts jail inmates in a slightly different way.)

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The World Prison Brief’s data put the U.S. incarceration rate at 655 inmates per 100,000 people, which is nearly 7% higher than the rate of the next-closest country, El Salvador (614 inmates per 100,000 people), and far higher than the rates of other heavily populated nations, including Russia (415 inmates per 100,000 people) and Brazil (324 per 100,000). Incarceration rates in Western Europe are less than a quarter of the U.S. rate: In England and Wales, there are 142 inmates for every 100,000 people, while France and Germany incarcerate 102 and 77 people, respectively, for every 100,000 residents.

In addition to its high rate of incarceration, the U.S. also has the largest overall number of people behind bars. The more than 2 million jail and prison inmates in the U.S. are far more than are reported in China (approximately 1.6 million inmates) and Brazil (about 673,000 inmates). In China and some other countries, however, data limitations make direct comparisons with the U.S. tricky. The World Prison Brief notes, for instance, that China’s total excludes inmates being held in “administrative detention” – a type of confinement that may house more than 650,000 additional people. Adding an additional 650,000 inmates to China’s total would place it ahead of the U.S. in terms of total incarcerated population.

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Private Slave Labor Prison Systems

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Source: professorramos.net/2018/09/21/is-prison-labor-modern-day-slavery

Private Prison Stats

  • 2016, Private prisons incarcerated 128,063 people
    • Representing 8.5% total state/ federal prison pop.
    • Since 2000
      • 9% increase in overall prison population
      • 47% increase in the number of people housed in private prisons
      • 120% increase in federal prisons use of private prisons
        • 34,159 people in private facilities in 2016.
  • States show variations in use of private prisons
    • New Mexico incarcerates over 40% of inmates in private
    • Texas incarcerated largest number: 13,692
      • Also first state to adopt private prisons in 1985
    • 23 states do not employ any for-profit prisons
    • 27 states and the fed gov incarcerated people in private
      • including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation (MTC)
  • Private prison usage decreased from 2012-2016
    • 2016 Obama Admin private prisons ban
    • AG Holder leniency policies on nonviolent criminals
    • Private prison usage is increasing since then
      • Trump reversal of Obama ban
      • AG Sessions reversal of AG Holder’s leniency policies
      • ICE immigrant attacks

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Modern Private For Profit Prisons

  • Begin in the 1980s under Reagan and Bush Sr.
    • War on Drugs drastically increased the need for more prisons
    • Reached its height in the 1990s under Clinton
    • Obama outlawed private prisons but was overturned by Trump
  • One of the fastest growing industries today despite crime rates decreasing
    • 6% of state prisons, 16% of federal prisons and many local prisons are owned by for-profit companies
    • Between 1980-1994 alone, profits went up from $392 million to $1.31 billion
  • Influences legislation and judicial systems to increase profit by advocating for:
    • Passage in 13 states of the “three strikes” law made it necessary to build 20 new federal prisons
    • The passage of laws that require minimum sentencing, without regard for circumstances
    • Jailing persons convicted of non-violent crimes
    • Long prison sentences for possession of microscopic quantities of illegal drugs

3 Corrupt Ways Private Prisons Write Our Laws – Follow the Money #3

NPR: Pa. Judge Sentenced To 28 Years In Massive Juvenile Justice Bribery Scandal

“A Pennsylvania judge was sentenced to 28 years in prison in connection to a bribery scandal that roiled the state’s juvenile justice system. Former Luzerne County Judge Mark Ciavarella Jr. was convicted of taking $1 million in bribes from developers of juvenile detention centers. The judge then presided over cases that would send juveniles to those same centers. The case came to be known as “kids-for-cash.””

  • 37 states legalized contracting prison labor by private corporations inside state prisons
    • companies include IBM, Boeing, Motorola, Microsoft, AT&T, Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores, and many more
      • Many companies are reducing or closing down factories and moving operations to prisons
  • Privately-run prisons pay much less for their labor
    • As little as 17 cents per hour for a maximum of six hours a day, the equivalent of $20 per month.
    • The highest-paying private prison is CCA in Tennessee, where prisoners receive 50 cents per hour
  • Conditions in private run prisons are often much worst
    • High sexual assault rates, high abuse and violence, less guards and training, lack of medical care, lack of sanitation, etc.
    • High incentive to cut safety and health to save money

“private contracting of prisoners for work fosters incentives to lock people up” Vicky Peláez – Global Research

Point: Private prisons: How US corporations make money out of locking you up

Urban Justice Center: Corrections Accountability Project

“As a nation, we spend more than $80 billion annually to incarcerate 2.2 million people in facilities whose deplorable conditions, subpar treatment services, and ineffective programs engender recidivism. Still, communities spend yet another $3 billion to support them. But the social costs of our failing criminal legal system, such as the harm done to people, families, and communities, are far higher. And these costs are not distributed evenly—their burden is carried largely by those we already detrimentally marginalize: low-income and minority communities.

However, this injustice has produced windfalls for some. Over the past few decades, private, public, and illicit actors have found various ways to financially exploit our criminal legal system and those it touches, victims and prisoners alike. From bail to reentry, these actors have commercialized each segment of our punishment continuum and built an economy that depends on stripping people of their freedom. In doing so, they have converted the justice-involved and their communities into cash machines, capitalizing on crime to create a legal form of human trafficking that targets those our social structures have failed.

Our system is now laden with public, private, and illicit actors whose financial incentives conflict with the criminal justice goals of reducing crime and incarceration. Whether it’s private prison executives cutting service quality to pad their profit margins or labor unions fighting prison closures to protect rural jobs, in the end lives are being destroyed, families torn apart, and communities decimated for financial gain. Motivated to help expand the criminal legal system and increase government spending rather than contract the system and cut their share of the payouts, these actors purchase power through legislative lobbying and campaign financing and wield it to protect the legal structures that support their growth.”

Color of Change: Private Prisons. Public Menace

The Truth Out: The True History of America’s Private Prison Industry

Before founding the Corrections Corporation of America, a $1.8 billion private prison corporation now known as CoreCivic, Terrell Don Hutto ran a cotton plantation the size of Manhattan. There, mostly black convicts were forced to pick cotton from dawn to dusk for no pay. It was 1967 and the Beatles’ “All you need is love” was a hit, but the men in the fields sang songs with lyrics like “Old Master don’t you whip me, I’ll give you half a dollar.” Hutto’s family lived on the plantation and even had a “house boy,” an unpaid convict who served them.

At the time, most prisons in the South were plantations. In some states, certain inmates were given guns and even whips, and empowered to torture those who didn’t meet labor quotas. Hutto did such a good job in Texas that Arkansas would hire him to run their entire prison system–made entirely of plantations–which he would run at a profit to the state. His ability to run a prison that put money into state coffers would later attract the attention of two businessmen with a new idea: to found a corporation that would run prisons and sell shares on the stock market.

Prisons had been privatized before. Louisiana first privatized its penitentiary in 1844, just nine years after it opened. The company, McHatton, Pratt, and Ward ran it as a factory, using inmates to produce cheap clothes for enslaved people. One prisoner wrote in his memoir that, as soon as the prison was privatized, his jailers “laid aside all objects of reformation and re-instated the most cruel tyranny, to eke out the dollar and cents of human misery.” Much like CoreCivic’s shareholder reports today, Louisiana’s annual penitentiary reports from the time give no information about prison violence, rehabilitation efforts, or anything about security. Instead, they deal almost exclusively with the profitability of the prison.

Like private prisons today, profit rather than rehabilitation was the guiding principle of early penitentiaries throughout the South. “If a profit of several thousand dollars can be made on the labor of twenty slaves,” posited the Telegraph and Texas Register in the mid-19th century, “why may not a similar profit be made on the labor of twenty convicts?” The head of a Texas jail suggested the state open a penitentiary as an instrument of Southern industrialization, allowing the state to push against the “over-grown monopolies” of the North. Five years after Texas opened its first penitentiary, it was the state’s largest factory. It quickly became the main Southern supplier of textiles west of the Mississippi.

Prison privatization accelerated after the Civil War. The reason for turning penitentiaries over to companies was similar to states’ justifications for using private prisons today: prison populations were soaring, and they couldn’t afford to run their penitentiaries themselves. The 13th amendment had abolished slavery “except as punishment for a crime” so, until the early 20th century, Southern prisoners were kept on private plantations and on company-run labor camps where they laid railroad tracks, built levees, and mined coal. Former slaveholders built empires that were bigger than those of most slave owners before the war. Nathan Bedford Forrest, first Grand Wizard of the Ku Klux Klan, controlled all convicts in Mississippi for a period. US Steel, the world’s first billion-dollar company, forced thousands of prisoners to slave in its coal mines. Lessees went to extreme lengths to extract profits. In 1871, Tennessee lessee Thomas O’Conner forced convicts to work in mines and went as far as collecting their urine to sell to local tanneries. When they died from exhaustion or disease, he sold their bodies to the Medical School at Nashville for students to practice on.

Companies liked using convicts in part because, unlike free workers, they could be driven by torture. One common form of punishment was “watering” in which a prisoner was strapped down, a funnel forced into his mouth, and water poured in so as to distend the stomach to such a degree that it put pressure on the heart, making the prisoner feel that he was going to die. Another punishment was “stringing up” in which a cord was wrapped around the men’s thumbs, flung over a tree limb, and tightened until the men hung suspended, sometimes for hours. Whipping was common. An Alabama government inspection showed that in a two-week period in 1889, 165 prisoners were flogged. Arkansas didn’t ban the lash until 1967.

Lessees gave a cut of the profits to the states, ensuring that the system would endure. Between 1880 and 1904, Alabama’s profits from leasing state convicts made up 10 percent of the state’s budget. By 1886 the US commissioner of labor reported that, where leasing was practiced, the average revenues were nearly four times the cost of running prisons. Writer George Washington Cable, in an 1885 analysis of convict leasing, wrote the system “springs primarily from the idea that the possession of a convict’s person is an opportunity for the State to make money; that the amount to be made is whatever can be wrung from him…and that, without regard to moral or mortal consequences, the penitentiary whose annual report shows the largest case balance paid into the State’s treasury is the best penitentiary.”

This maniacal drive for profits managed to create a system that was more deadly than slavery. Between 1870 and 1901, some three thousand Louisiana convicts, most of whom were black, died under the lease of a man named Samuel Lawrence James. Before the Civil War, only a handful of planters owned more than a thousand convicts, and there is no record of anyone allowing three thousand valuable human chattel to die. Throughout the South, annual convict death rates ranged from 16 percent to 25 percent, a mortality rate that would rival the Soviet gulags to come. There was simply no incentive for lessees to avoid working people to death. In 1883, one Southern man told the National Conference of Charities and Correction: “Before the war, we owned the negroes. If a man had a good negro, he could afford to take care of him: if he was sick get a doctor…But these convicts: we don’t own ‘em. One dies, get another.”

States became jealous of the profits private companies were making, so in the early 20th century, they bought plantations of their own and eventually stopped leasing to private companies. Ten years after abolishing convict leasing, Mississippi was making $600,000 ($14.7 million in 2018 dollars) from prison labor. It was in this world that a man named Terrell Don Hutto would learn how to run a prison as a business.

The Tallahatchie County Correctional Facility in Tutwiler, Miss., on Aug. 16, 2018.

The Tallahatchie County Correctional Facility in Tutwiler, Miss., on Aug. 16, 2018.
Rogelio V Solis—AP/Shutterstock

CoreCivic prisons aren’t nearly as brutal labor camps under convict leasing or the early 20th century state-run plantations, but they still go to grotesque lengths to make a dollar. I saw this first hand when, in 2014, I went undercover as a prison guard in a CoreCivic prison in Louisiana. There, I met a man who lost his legs to gangrene after begging for months for medical care. CoreCivic was often resistant to sending prisoners to the hospital: their contract required that outside medical visits be funded by the company. Educational programs were axed to save money. To keep costs low, guards were paid $9 an hour and oftentimes there were no more than 24 on duty, armed with nothing but radios, to run a prison of more than 1,500 inmates. The prison was incredibly violent as a result. In a four-month period in 2015, the company reported finding some 200 weapons, 23 times more than the state’s maximum security prison. I knew one inmate who committed suicide after repeatedly going on hunger strike to demand mental health services in a prison with only one part-time psychologist. When he died, he weighed 71 pounds.

Private prisons, according to a 2016 Department of Justice Study, are consistently more violent that their already-dismal public counterparts. Yet while we went through training to become guards, we were taught that, if we saw inmates stab each other, we were not to intervene. “We are not going to pay you that much,” our instructor told us. Our job was simply to shout the words “stop fighting,” thus protecting the company’s liability and avoiding any potentially costly harm to ourselves. Our job, after all, was to “deliver value to our shareholders.” “If them fools want to cut each other,” the instructor said, “well, happy cutting.”

In May 2017, I bought a single share in the company in order to attend their annual shareholder meeting. As I sat and watched Terrell Don Hutto and other corporate executives discuss how their company’s objective was to “serve the public good,” I wondered how many times such meetings had been held throughout American history. How many times had men, be they private prison executives or convict lessees, gotten together to perform this ritual? They sit in company headquarters or legislative offices, far from their prisons or labor camps, and craft stories that soothe their consciences. They convince themselves, with remarkable ease, that they are in the business of punishment because it makes the world better, not because it makes them rich.

AJ+ The Big Business Of Private Prisons

The Sentencing Project: Private Prisons in the United States

In the United States, approximately 6% of state prisons, 16% of federal prisons and some local prisons in various states are owned by for-profit companies. This means that a third-party entity is contracted by the government to incarcerate individuals. These private prison companies are paid per-diem per prisoner or prisoner space, even if it is not occupied. The real estate to incarcerate people is some of the most profitable in the U.S. Among other devastating effects such as separating families and increasing mental illness, this has propogated institutionalized slavery cemented in policy-lead systemic racism, with 1 in 3 black men having a better chance of going to prison than to college. The U.S. holds 5% of the world’s population, but 25% of the world’s inmates.

Prison privatization began in the 1980’s, with the war and drugs and harsher sentencing for petty crimes (i.e. mandatory sentencing and the three-strikes law). This increased the costs to governments, giving them more incentive to find funding sources, which began their contractual agreements with private companies. Private companies hold 130,000 prisoners and 16,000 civil immigration detainees, allowing the top two companies to become billionaires Corrections Corporation of America (CCA) and the GEO Grouptood at nearly $3 billion). These institutions house civil rights violations and corruption from physical abuse, medical neglect and sexual harassment within these detention facilities. In 1984, a number of investors in Tennessee created the Corrections Corporation of America (CCA) used venture capital to lease out and profit off of prisoners in cells/per-bed. It is now the largest private corrections company in the U.S., with its worth at $1.7 billion in 2012. These companies are also contracted to house undocumented immigrants and resident aliens, many of which reside in inhumane conditions

Global Research Article, “The Prison Industry in the United States: Big Business or a New Form of Slavery?

Human rights organizations, as well as political and social ones, are condemning what they are calling a new form of inhumane exploitation in the United States, where they say a prison population of up to 2 million – mostly Black and Hispanic – are working for various industries for a pittance. For the tycoons who have invested in the prison industry, it has been like finding a pot of gold. They don’t have to worry about strikes or paying unemployment insurance, vacations or comp time. All of their workers are full-time, and never arrive late or are absent because of family problems; moreover, if they don’t like the pay of 25 cents an hour and refuse to work, they are locked up in isolation cells.

There are approximately 2 million inmates in state, federal and private prisons throughout the country. According to California Prison Focus, “no other society in human history has imprisoned so many of its own citizens.”

The figures show that the United States has locked up more people than any other country: a half million more than China, which has a population five times greater than the U.S. Statistics reveal that the United States holds 25% of the world’s prison population, but only 5% of the world’s people. From less than 300,000 inmates in 1972, the jail population grew to 2 million by the year 2000. In 1990 it was one million. Ten years ago there were only five private prisons in the country, with a population of 2,000 inmates; now, there are 100, with 62,000 inmates. It is expected that by the coming decade, the number will hit 360,000, according to reports.

What has happened over the last 10 years? Why are there so many prisoners?

“The private contracting of prisoners for work fosters incentives to lock people up. Prisons depend on this income. Corporate stockholders who make money off prisoners’ work lobby for longer sentences, in order to expand their workforce. The system feeds itself,” says a study by the Progressive Labor Party, which accuses the prison industry of being “an imitation of Nazi Germany with respect to forced slave labor and concentration camps.”

The prison industry complex is one of the fastest-growing industries in the United States and its investors are on Wall Street. “This multimillion-dollar industry has its own trade exhibitions, conventions, websites, and mail-order/Internet catalogs. It also has direct advertising campaigns, architecture companies, construction companies, investment houses on Wall Street, plumbing supply companies, food supply companies, armed security, and padded cells in a large variety of colors.”

CRIME GOES DOWN, JAIL POPULATION GOES UP

According to reports by human rights organizations, these are the factors that increase the profit potential for those who invest in the prison industry complex:

  • Jailing persons convicted of non-violent crimes, and long prison sentences for possession of microscopic quantities of illegal drugs. Federal law stipulates five years’ imprisonment without possibility of parole for possession of 5 grams of crack or 3.5 ounces of heroin, and 10 years for possession of less than 2 ounces of rock-cocaine or crack. A sentence of 5 years for cocaine powder requires possession of 500 grams – 100 times more than the quantity of rock cocaine for the same sentence. Most of those who use cocaine powder are white, middle-class or rich people, while mostly Blacks and Latinos use rock cocaine. In Texas, a person may be sentenced for up to two years’ imprisonment for possessing 4 ounces of marijuana. Here in New York, the 1973 Nelson Rockefeller anti-drug law provides for a mandatory prison sentence of 15 years to life for possession of 4 ounces of any illegal drug.
  • The passage in 13 states of the “three strikes” laws (life in prison after being convicted of three felonies), made it necessary to build 20 new federal prisons. One of the most disturbing cases resulting from this measure was that of a prisoner who for stealing a car and two bicycles received three 25-year sentences.
  • Longer sentences.
  • The passage of laws that require minimum sentencing, without regard for circumstances.
  • A large expansion of work by prisoners creating profits that motivate the incarceration of more people for longer periods of time.
  • More punishment of prisoners, so as to lengthen their sentences.

HISTORY OF PRISON LABOR IN THE UNITED STATES

Prison labor has its roots in slavery. After the 1861-1865 Civil War, a system of “hiring out prisoners” was introduced in order to continue the slavery tradition. Freed slaves were charged with not carrying out their sharecropping commitments (cultivating someone else’s land in exchange for part of the harvest) or petty thievery – which were almost never proven – and were then “hired out” for cotton picking, working in mines and building railroads. From 1870 until 1910 in the state of Georgia, 88% of hired-out convicts were Black. In Alabama, 93% of “hired-out” miners were Black. In Mississippi, a huge prison farm similar to the old slave plantations replaced the system of hiring out convicts. The notorious Parchman plantation existed until 1972.

During the post-Civil War period, Jim Crow racial segregation laws were imposed on every state, with legal segregation in schools, housing, marriages and many other aspects of daily life. “Today, a new set of markedly racist laws is imposing slave labor and sweatshops on the criminal justice system, now known as the prison industry complex,” comments the Left Business Observer.

Who is investing?

At least 37 states have legalized the contracting of prison labor by private corporations that mount their operations inside state prisons. The list of such companies contains the cream of U.S. corporate society: IBM, Boeing, Motorola, Microsoft, AT&T, Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores, and many more. All of these businesses are excited about the economic boom generation by prison labor. Just between 1980 and 1994, profits went up from $392 million to $1.31 billion. Inmates in state penitentiaries generally receive the minimum wage for their work, but not all; in Colorado, they get about $2 per hour, well under the minimum.

And in privately-run prisons, they receive as little as 17 cents per hour for a maximum of six hours a day, the equivalent of $20 per month. The highest-paying private prison is CCA in Tennessee, where prisoners receive 50 cents per hour for what they call “highly skilled positions.” At those rates, it is no surprise that inmates find the pay in federal prisons to be very generous. There, they can earn $1.25 an hour and work eight hours a day, and sometimes overtime. They can send home $200-$300 per month.

Thanks to prison labor, the United States is once again an attractive location for investment in work that was designed for Third World labor markets. A company that operated a maquiladora (assembly plant in Mexico near the border) closed down its operations there and relocated to San Quentin State Prison in California. In Texas, a factory fired its 150 workers and contracted the services of prisoner-workers from the private Lockhart Texas prison, where circuit boards are assembled for companies like IBM and Compaq.

[Former] Oregon State Representative Kevin Mannix recently urged Nike to cut its production in Indonesia and bring it to his state, telling the shoe manufacturer that “there won’t be any transportation costs; we’re offering you competitive prison labor (here).”

PRIVATE PRISONS

The prison privatization boom began in the 1980s, under the governments of Ronald Reagan and Bush Sr., but reached its height in the 1990s under William Clinton, when Wall Street stocks were selling like hotcakes. Clinton’s program for cutting the federal workforce resulted in the Justice Departments contracting of private prison corporations for the incarceration of undocumented workers and high-security inmates.

Private prisons are the biggest business in the prison industry complex. About 18 corporations guard 10,000 prisoners in 27 states. The two largest are Correctional Corporation of America (CCA) and Wackenhut, which together control 75%. Private prisons receive a guaranteed amount of money for each prisoner, independent of what it costs to maintain each one. According to Russell Boraas, a private prison administrator in Virginia, “the secret to low operating costs is having a minimal number of guards for the maximum number of prisoners.” The CCA has an ultra-modern prison in Lawrenceville, Virginia, where five guards on dayshift and two at night watch over 750 prisoners. In these prisons, inmates may get their sentences reduced for “good behavior,” but for any infraction, they get 30 days added – which means more profits for CCA. According to a study of New Mexico prisons, it was found that CCA inmates lost “good behavior time” at a rate eight times higher than those in state prisons.

IMPORTING AND EXPORTING INMATES

Profits are so good that now there is a new business: importing inmates with long sentences, meaning the worst criminals. When a federal judge ruled that overcrowding in Texas prisons was cruel and unusual punishment, the CCA signed contracts with sheriffs in poor counties to build and run new jails and share the profits. According to a December 1998 Atlantic Monthly magazine article, this program was backed by investors from Merrill-Lynch, Shearson-Lehman, American Express and Allstate, and the operation was scattered all over rural Texas. That state’s governor, Ann Richards, followed the example of Mario Cuomo in New York and built so many state prisons that the market became flooded, cutting into private prison profits.

After a law signed by Clinton in 1996 – ending court supervision and decisions – caused overcrowding and violent, unsafe conditions in federal prisons, private prison corporations in Texas began to contact other states whose prisons were overcrowded, offering “rent-a-cell” services in the CCA prisons located in small towns in Texas. The commission for a rent-a-cell salesman is $2.50 to $5.50 per day per bed. The county gets $1.50 for each prisoner.

STATISTICS

Ninety-seven percent of 125,000 federal inmates have been convicted of non-violent crimes. It is believed that more than half of the 623,000 inmates in municipal or county jails are innocent of the crimes they are accused of. Of these, the majority are awaiting trial. Two-thirds of the one million state prisoners have committed non-violent offenses. Sixteen percent of the country’s 2 million prisoners suffer from mental illness.

Adam Ruins Everything – The Shocking Way Private Prisons Make Money

“People detained by U.S. immigration officials are particularly vulnerable to human rights violations, and they comprise the fastest-growing part of the American prison population. Private detention facilities have been profiting from rising rates of immigrant detention since 9/11, and presidential administrations of both parties have overseen an increasing reliance on these profit-based models of immigration detention. Like American mass incarceration as a whole, the roots of this situation are deep and bipartisan, and the burdens are borne by the poor and people of color.

Private detention companies are paid a set fee per detainee per night, and they negotiate contracts that guarantee a minimum daily headcount. Many run notoriously dangerous facilities with horrific conditions that operate far outside federal oversight. Department of Justice officials in 2017 reversed an August 2016 pledge to phase out federal use of private prisons, but even that reform would not have done anything to slow, much less stop, the federal government’s use of private facilities to detain immigrants. In fact, the percentage of detainees held by U.S. Immigration and Customs Enforcement (“ICE”) — about 400,000 people in 2016 — rose from 25 percent in 2001 to 65 percent in 2016, and the trend shows no signs of slowing.

In January 2017, the White House issued a series of executive orders calling for an overhaul of immigration law enforcement and ordering ICE to work with private facilities to expand its nationwide network of detention centers. In June 2017, Mother Jones reported that the federal government contracted to build a new $110 million facility with a company whose detention facility in California was cited for “egregious medical errors” after three detainees died there within three months.”

15 Things You Didn’t Know About The Private Prison Industry

MSNBC: Private Prisons Cashing In On Migrant Crisis – But Who’s Paying?

Prisons for Profit: 18 Months in the Life of the Nation’s First Prison Sold for Profit

Further Readings

The Prison Industry in the United States: Big Business or a New Form of Slavery?

How Prison Labor is the New American Slavery and Most of Us Unknowingly Support it

Atlantic: American Slavery, Reinvented

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Immigration Detention

  • Immigration detention
    • Practice of incarcerating immigrants while they await for their immigration hearings
  • In 2016 nearly 360,000 people were detained in over 200 immigration jails
    • 2/3 were housed in private prisons
    • Average daily population is 39,000
    • In detention, immigrants are often subjected to harsh conditions of confinement and denied access to adequate medical care, legal counsel and family contact.
      • Since 2003, a reported 180 people have died in immigration custody
  • GEO & Corrections Corporation of America (CCA) are largest private prisons Corps
    • Big supporters of Trump whose ICE policies have made them a fortune
      • Private prison company stocks skyrocketed after the election
      • Especially important because US prison population is declining
    • ICE senior staff often get recruited by private prisons to help lobby/get contracts
  • “Immigrant detention quota” or “bed mandate.”
    • Following language inserted into ICE’s 2009 detention budget in 2010 DHS Appropriations Act
      • “…funding made available under this heading shall maintain a level of not less than 33,400 detention beds.”
    • Private prison lobbying efforts help keep in place the the immigrant detention bed quota
      • Which requires ICE to maintain and pay for at least 31,000 beds at all times
    • Quota described by Center for Constitutional Rights as primary driver of immigrant detention
      • Assures private prison companies that there will always be a need for their facilities
      • Prevents many individuals posing no risk from being released while awaiting immigration hearings

AJ+: ICE Immigration Detention: What You Should Know (2015)

 

Lets Set Straight Immigration Laws

“Once more for the people with their fingers in their ears:

Seeking asylum is not illegal.

Crossing a border illegally is a misdemeanor.

Being in this country illegally is a civil (not criminal) violation.

We don’t take your children away when you jaywalk.

We don’t put your kids in cages when you park in a handicap zone.

We don’t lock up your baby when you do commit a crime.

We don’t lose track of what we did with your kid when you ask for help fleeing someone who’s trying to harm you.

If you refuse to understand what the problem is here, you need to look deep inside yourself and find the gaping hole in your soul and fix it.”

via Tess Whelan H/T Laura Martancik

Trump’s Zero Tolerance Policy

  • Section 1325
    • Makes it a misdemeanor for immigrants to enter the United States without papers
    • If repealed it would still be a civil offense
      • But it would stop policies like Trump’s Zero Tolerance Law

“In one respect, this system has been on the books since 1929, when illegal entry was first made a misdemeanor. But for most of the 20th century, it was kind of irrelevant. Most people who came into the US without papers weren’t tracked down and deported. Presidents generally decided that it wasn’t worth it to spend US attorneys’ time prosecuting endless misdemeanor illegal entry cases. Those who were caught crossing the border were generally informally returned.” Vox, Why Julián Castro started a Democratic debate fight over repealing “Section 1325”

  • Trump’s Zero Tolerance Policy
    • Orders federal prosecution of all individuals who illegally enters US
      • Sending them to federal prisons to await trials
  • Prosecution of all individuals who illegally enters US
    • There is no law mandating the separation of families
    • Normally families caught crossing illegally would be sent to detention together
      • And deported or paroled together
    • Now that parents are being sent to fed prison as criminals
      • Children are separated because they can’t go to federal prisons
      • Children are placed in the custody of a sponsor such as a relative, foster home, ICE detention center
    • More than 3000 children were separated from their parents (possibly 1000s more)
      • Sept 2018 (2 months after federal judge ordered children reunited) 500 children still separated
  • Horrific results of these policies
    • Over 3000 children, as young as 4 months, were separated, 500 still separated
      • Possibly many more
    • Migrant children as young as 3 represented themselves in asylum/deportation cases
    • 1000s of children were exposed to sexual, physical abuse and neglect in detention
      • Many were traumatized in facilities that offered no support (no hugging rule)
    • Several migrant children and adults died
    • Many parents were deported without their children
    • Private prison made billions in profits
    • HHS is diverting funding from CDC, NIH, Aids programs, refugee support programs, Head Start, HIV/AIDS program and National Cancer Institute to fund children detention

 

Detention Watch Network: “Immigration Detention 101″

The United States government maintains the world’s largest immigration detention system

Immigration detention is the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation. In 2016, the United States government detained nearly 360,000 people in a sprawling system of over 200 immigration jails across the country.

Immigration and Customs Enforcement (ICE), the agency that runs the detention system, subcontracts the majority of detention space to county jails and private prison companies.

Immigrants in detention include undocumented and documented immigrants, many who have been in the U.S. for years and are now facing exile, as well as survivors of torture, asylum seekers and other vulnerable groups including children, pregnant women, and individuals who are seriously ill.

In detention, immigrants are often subjected to harsh conditions of confinement and denied access to adequate medical care, legal counsel and family contact. Since 2003, a reported 180 people have died in immigration custody.

Detention in Numbers

  • Number of beds: 39,000
  • Number of people detained each year: 359,520 (FY 2016 – latest numbers)
  • Cost per day: $134 for adult detention
    $319 for family detention
  • Detention budget: $2.6 billion (FY 2017)
  • Number of facilities: 205
  • Percent of people held in facilities operated by private companiesmore than 73 percent
  • Number of deaths since 2003: 180

History of Immigration Detention in the United States

The United States is the world’s leading incarcerator with over two million people in prisons and jails across the country. As the U.S. expanded prisons in the 1980s and 1990s, the detention of immigrants, once a little known practice, began to take shape.

In the early 1980s several thousand Cuban and Haitian refugees arriving on Florida’s shores each year were swept into newly opened detention facilities. Immigration policy began to emulate the criminal justice system in the late ‘80s when, during the height of the War on Drugs, Congress amended the Immigration and Naturalization Act to require the mandatory detention of immigrants with certain criminal convictions. This meant that their detention was automatic and compulsory, without a hearing or any consideration of their circumstances.

The 1990s brought on a paradigm shift in immigration policy, leading to detention being a primary means of immigration enforcement. In 1996, the U.S. enacted legislation that dramatically expanded the use of detention. The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) expanded mandatory detention. The 1996 laws also rendered any non-U.S. citizen, including legal permanent residents, vulnerable to detention and deportation.

After the September 11, 2001 attacks, the Immigration and Naturalization Service or INS was divided into U.S. Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). It also moved from the Department of Justice to the newly created Department of Homeland Security (DHS). Immigration was now a national security issue and nowhere was this clearer than in ICE’s strategic plan for 2003-2012, Operation Endgame, which stated its purpose to, “promote the public safety and national security by ensuring the departure from the United States of all removable aliens through the fair and effective enforcement of the nation’s immigration laws.”

Under the Obama administration, the implementation of the detention bed quota and the expansion of deportation programs such as 287(g), Secure Communities and the Criminal Alien Program, funneled thousands of immigrants into detention centers. In 2014, we saw even more detention expansion when the White House responded to an influx of Central American refugee families with the resurgence of family detention.

The Trump administration has further expanded these parts of the deportation dragnet — increasing the number of 287(g) agreements and other forms of entanglement with local law enforcement and the criminal legal system — while also ramping up community raids and eliminating the policies that deprioritized detention and deportation for some immigrants under the previous administration.

The drastic expansion of mandatory detention combined with a skyrocketing detention budget has created a sprawling and unaccountable system of mass detention. As a result, the number of individuals detained has grown dramatically. The average daily population of detained immigrants increased from approximately 5,000 in 1994, to 19,000 in 2001, and to over 39,000 in 2017.

After three decades of expansion, the detention system now captures and holds as many as 400,000 immigrants each year.”

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Profits and Immigration

“People detained by U.S. immigration officials are particularly vulnerable to human rights violations, and they comprise the fastest-growing part of the American prison population. Private detention facilities have been profiting from rising rates of immigrant detention since 9/11, and presidential administrations of both parties have overseen an increasing reliance on these profit-based models of immigration detention. Like American mass incarceration as a whole, the roots of this situation are deep and bipartisan, and the burdens are borne by the poor and people of color.

Private detention companies are paid a set fee per detainee per night, and they negotiate contracts that guarantee a minimum daily headcount. Many run notoriously dangerous facilities with horrific conditions that operate far outside federal oversight. Department of Justice officials in 2017 reversed an August 2016 pledge to phase out federal use of private prisons, but even that reform would not have done anything to slow, much less stop, the federal government’s use of private facilities to detain immigrants. In fact, the percentage of detainees held by U.S. Immigration and Customs Enforcement (“ICE”) — about 400,000 people in 2016 — rose from 25 percent in 2001 to 65 percent in 2016, and the trend shows no signs of slowing.

In January 2017, the White House issued a series of executive orders calling for an overhaul of immigration law enforcement and ordering ICE to work with private facilities to expand its nationwide network of detention centers. In June 2017, Mother Jones reported that the federal government contracted to build a new $110 million facility with a company whose detention facility in California was cited for “egregious medical errors” after three detainees died there within three months.” Equal Justice Initiative

Private Prisons sell people like products • Immigrants for Sale • Part 1 • BRAVE NEW FILMS

Family Detention

  • Right to Refuge
    • Families fleeing violence in Central America are migrating to the US in search of refuge
  • Family detention centers
    • US detains families seeking asylum in family detention centers for months while reviewing their asylum cases
      • Family detention centers often have inhumane conditions
      • Families often have little access to legal/social services
        • Experiencing widespread human and civil rights violations
  • 2014 Expansion
    • US expanded the use of family detention in to deter asylum seeking women and children from coming to the U.S. from Central America.
    • Despite that US helped create the violent and unstable conditions people are fleeing from
      • Honduras, Guatemala, El Salvador, etc
  • Trump Family Separation
    • Trump admin began a family separation policy
      • intended to punish the parents and coerce them into abandoning their claims for international protection

“The current family detention program is the largest since the internment of Japanese Americans in the 1940s” Detention Watch Network

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Detention Watch Network: Family Detention

“Families fleeing extreme violence in Central America are migrating to the United States in search of refuge. Rather than providing protection, the United States detains women and children seeking asylum in family detention centers.

Family detention is the inhumane and unjust policy of jailing immigrant mothers with their children – including babies. Upon arrival in the U.S., families are locked up in remote and punitive detention centers, with little access to legal and social services, often experiencing widespread human and civil rights violations.

The government expanded the use of family detention in 2014 in an attempt to deter asylum seeking women and children from coming to the U.S. from Central America. This policy was implemented despite the U.S. having a direct hand in creating the violent and unstable conditions prevailing in Honduras, Guatemala, and El Salvador that are causing many to flee.

Families fleeing extreme violence in Central America are migrating to the United States in search of refuge. Rather than providing protection, the United States detains women and children seeking asylum in family detention centers.

Family detention is the inhumane and unjust policy of jailing immigrant mothers with their children – including babies. Upon arrival in the U.S., families are locked up in remote and punitive detention centers, with little access to legal and social services, often experiencing widespread human and civil rights violations.

The government expanded the use of family detention in 2014 in an attempt to deter asylum seeking women and children from coming to the U.S. from Central America. This policy was implemented despite the U.S. having a direct hand in creating the violent and unstable conditions prevailing in Honduras, Guatemala, and El Salvador that are causing many to flee.”

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Grassroots Leadership: Payoff: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota

Executive Summary

“In 2009, in the midst of a multi-year decline in the undocumented immigrant population,[1] Senator Robert Byrd (D-WV), then Chairman of the Appropriations Subcommittee on Homeland Security, inserted the following language regarding Immigration and Customs Enforcement’s (ICE) detention budget into the Department of Homeland Security Appropriations Act of 2010: “…funding made available under this heading shall maintain a level of not less than 33,400 detention beds.”[2] This directive established what would become a controversial policy interpreted by ICE as a mandate to contract for and fill 33,400 (increased in 2013 to 34,000)[3] detention beds on a daily basis. The directive would come to be known as the “immigrant detention quota” or “bed mandate.” The immigration detention quota is unprecedented; no other law enforcement agency operates under a detention quota mandated by Congress.

Since its implementation, the quota has become a driver of an increasingly aggressive immigration enforcement strategy. The immigrant detention system has expanded significantly since the implementation of the quota, and the percent of the detained population held in private facilities has increased even more dramatically. Two major private prison corporations have emerged as the main corporate beneficiaries of immigrant detention policies: Corrections Corporation of America (CCA) and GEO Group.

This report provides an in-depth assessment of the inception and implementation of the quota, with a specific focus on the role played by for-profit, private prison corporations. These companies have profited handsomely from the artificial stability provided by the quota while contributing millions of dollars in federal lobbying expenditures and in campaign contributions to ensure their interests are met. This report also features testimony from people directly impacted by detention and deportation, revealing the momentous human cost of the quota.

Key Findings:

  1. Private prison corporations have increased their share of the immigrant detention industry. Since just before the onset of the quota, the private prison industry has increased its share of immigrant detention beds by 13 percent. Sixty-two percent[4] of all ICE immigration detention beds in the United States are now operated by for-profit prison corporations, up from 49 percent in 2009[5]. Nine of the ten largest ICE detention centers are private[6]. This is particularly noteworthy in light of the expansion of the entire ICE detention system by nearly 47 percent in the last decade[7].
  2. Private prison corporations lobby on immigration and immigrant detention issues that affect their bottom line. Contrary to private prison corporation claims that they do not lobby on issues related to immigration policy, between 2008 and 2014, CCA spent $10,560,000 in quarters where they lobbied on issues related to immigrant detention and immigration reform.[8],[9] Of that amount, CCA spent $9,760,000, — 61 percent of total private prison lobbying expenditures — in quarters where they directly lobbied the DHS Appropriations Subcommittee,[10],[11] which maintains the immigrant detention quota language and shapes the way in which it is interpreted. Lobbying disclosure forms reveal spending on: “Issues related to comprehensive immigration reform” (GEO Group, 2013), and “FY 2014 and FY 2015 Department of Homeland Security appropriations – provisions related to privately-operated ICE detention facilities” (CCA, 2014).[12] Since 2010, CCA has spent at least 75 percent of its lobbying expenditures in quarters where it has lobbied directly on the DHS Appropriations Subcommittee.[13] Though GEO Group has not directly lobbied the DHS Appropriations Subcommittee, the company recently began lobbying on immigration and immigrant detention issues, spending $460,000 between 2011 and 2014 in quarters when they lobbied on these issues.[14]
  3. Two private prison corporations — CCA and GEO Group — dominate the immigration detention industry. Together, they operate eight of the ten largest immigrant detention centers. GEO and CCA combined operate 72 percent of the privately contracted ICE immigrant detention beds.[15] In the years following the implementation of the immigrant detention quota, CCA and GEO expanded their share of the total ICE immigrant detention system from 37 percent in 2010 to 45 percent in 2014.[16] GEO Group in particular has increased its share of the total ICE immigrant detention system to 25 percent in FY14 from 15 percent in FY10.[17] Both companies have significantly augmented their profits since the implementation of the quota, CCA from $133,373,000[18] in 2007 to $195,022,000 in 2014.[19] GEO experienced an even more dramatic profit increase from $41,845,000[20] in 2007 to $143,840,000 in 2014, a 244 percent increase.[21]
  4. CCA and GEO have recently expanded their immigrant detention capacity, including new contracts for detaining asylum-seeking families. Since FY2014, the most recent numbers released by ICE, both CCA and GEO have both expanded their capacity for detaining women and children in new family detention centers[22] in South Texas.[23] The CCA-operated South Texas Family Residential Center in Dilley opened in December 2014 and currently holds about 480 women and children. It is under expansion to grow to an expected capacity of 2,400 by May 2015. If this expansion proceeds, Dilley will be the largest immigrant detention center in the U.S.[24] The GEO-run Karnes County Residential Center opened in June 2014 and now holds around 600 women and children, but will expand to a capacity of 1,200.[25] Additionally, in January 2015, GEO acquired LCS Corrections, which owns several large immigrant detention facilities in Texas and Louisiana, further increasing its share of the immigrant detention business.[26]

Recommendations:

  1. Congress should eliminate the immigrant detention quota from its 2016 appropriations request.
  2. ICE should reduce reliance on for-profit prison contractors. Congress should increase oversight within the contracting system and launch a system-wide review of the contracted prisons and their related intergovernmental service agreements.
  3. ICE should end contracts at facilities with a record of abuse and penalize contractors found to have multiple incidents of abuse or mismanagement in their facilities.
  4. Congress and the Administration should prioritize policies that expand the use of non-punitive, community-supported alternative to detention (ATD) programs. However, these measures must be used in place of current detention capacity, not in addition to it. The intent of any ATD program should be to reduce the population in immigration detention, with the ultimate goal of eliminating the immigration detention system entirely.”

Vice: The Immigrant Crackdown Is a Cash Cow for Private Prisons

Detaining immigrants has turned into a very lucrative growth industry

“Earlier this month, Daniel Ragsdale, the second-in-command at the Immigration and Customs Enforcement Agency (ICE), confirmed he will be leaving his position to work at GEO Group, the nation’s second-largest private prison company. “While you may be losing me as a colleague, please know that I will continue to be a strong advocate for you and your mission,” said Ragsdale in a farewell email to his ICE colleagues.

He’s certainly not going far—GEO operates immigrant detention centers and will likely compete for a contract to run a new facility that will house up to 9,500 undocumented immigrants. (It was just given renewals on two existing contracts, to the tune of $664 million.) Ragsdale isn’t the first to go from ICE to GEO, but his move underscored the close relationship between the federal agency tasked with detaining and deporting undocumented immigrants and the private prison industry that helps house those detained immigrants. As of last year, more than two-thirds of immigrant detainees were housed in private facilities.

“Daniel Ragsdale’s move to GEO is another shameful example of the revolving door that exists between the federal agencies issuing lucrative immigration detention and prison contracts and the private prison companies receiving them,” said a statement from Mary Small, policy director of Detention Watch Network, a national coalition of organizations fighting for immigration detention reform.

“This is a standard tactic for both CoreCivic (formerly Corrections Corporation of America) and GEO,” said Carl Takei, a lawyer working for the ACLU’s Prison Project, referring to two largest private prisons companies in the US. “They both hire from federal and state agencies that they are also seeking contacts with.”

Contracts from ICE could be especially important because the US prison population has declined recently as harsh sentences, especially for nonviolent drug offenders, have become unfashionable.

“GEO group and other major companies have understood that criminal justice is not a growth area,” said Nazgol Ghandnoosh, a research analyst at the Sentencing Project, a criminal justice reform nonprofit. “Immigration detention is something these companies are focusing on.”

GEO began contracting with ICE in the mid 80s, when the immigration detention system was a fraction of the size it is today. Then came the toughening of immigration laws in the mid 1990s, which greatly expanded mandatory detention of noncitizens pending their immigration proceedings. After 9//11, border security and visa screening became a priority for the federal government, resulting in the creation of ICE in 2003. Today the US immigrant detention system holds more than 400,000 people every year, with ICE overseeing an expansive network of more than 250 facilities, according to a report by the Center for American Progress. For the 2017 budget, ICE requested $2.2 billion to maintain these facilities; the number of people taken into custody by the agency has risen to more than 40,000 people per day.

ICE has also increasingly outsourced detention to private companies. In 2005, 25 percent of immigrants in ICE custody were in facilities operated by private prison companies. By 2009, that number was 49 percent, and today it is 73 percent, according to a report by the Detention Watch Network. And GEO Group holds more immigrant detainees than any other private prison company.

A 2016 Justice Department report found that private prisons were more likely to have rule violations than government-run facilities, confirming what advocates have long said about private prisons being cruel and inhumane. “Private prisons are a recipe for abuse and neglect,” said Carl Takei. “We have seen over and over again in terms of incidences of violence, understaffing, and medical neglect.”

Adrian Hernandez Garay, who spent 35 months at the Big Spring Correctional Institution, a GEO facility in Texas, told me that he was fed beans and rice seven days a week, a symptom of routine mistreatment. “The conditions inside were very bad. The facilities were old. The guards were poorly trained. If you got sick all they would just give you Tylenol and tell you to get back to your cell,” said Garay, who spoke with me through a translator from his home in Juarez, Mexico.

Garay previously served time at multiple detention centers for illegal re-entry into the US and described the conditions at the GEO facility as “far worse” than the other detentions centers he had been inside. (I reached out to Big Spring for comment and was referred to the GEO press office, who did not respond to my questions about the facility.)

The kinds of abuses described by Garay are not isolated. A recent report by the Southern Poverty Law Center found widespread abuse and neglect in immigrant detention centers in six southern states. But the Trump administration so far has shown no desire to reform this system, and instead will likely expand it.

GEO’s hiring of Daniel Ragsdale is, according to Takei, a simple attempt to attain more lucrative contracts. “ICE is a cash cow for these businesses,” said Takei. “They take the expertise they have working for the ICE and use that to lobby for even greater increases in their share of this system of mass detention,” said Bethany Carson, an immigration policy researcher at Grassroots Leadership, an organization working to abolish for-profit private prisons, jails, and detention centers.

GEO routinely seeks to influence the federal government via lobbyists like Brian Ballard, who fundraised for Trump, and a pair of former aides to Jeff Sessions, now the attorney general. (Sessions recently rescinded the Obama administration directive to phase out private contacts in the federal prisons system.) GEO also allegedly gave $225,000 to a pro-Trump group, which would have been illegal since federal contractors aren’t permitted to make political contributions.

GEO maintains that it does not lobby directly to effect policy. “As a matter of longstanding policy our company does not advocate for or against specific criminal justice, sentencing or immigration policies” said Pablo Paez, a company spokesperson, in an emailed statement. However the company has clearly allied itself with Trump, whose draconian policies on crime and illegal immigration seem designed to increase the prison population. (Private prison company stocks skyrocketed after the election.) GEO and CoreCivic also support individual policies that would keep more bodies behind bars; a GEO lobbyist recently wrote a bill in Texas that would make it easier to keep detained immigrant children in the same facilities as their parents.

Crucially, these lobbying efforts help keep in place the the controversial immigrant detention bed quota, which requires ICE to maintain and pay for at least 31,000 beds at all times The arbitrary quota has been described by the the Center for Constitutional Rights as a primary driver of an immigrant detention—it also improves assures private prison companies that there will always be a need for their facilities.

This is the result of such a close relationship between private prison companies and the government that hires them—are policies like the bed quota just cynically designed to make these businesses money?

“When you have a situation where there is a mandate whose only benefit is the bottom line of specific companies you have to ask the question,” said Florida Democratic Congressman Ted Deutch, who has fought to end the detention bed mandate.

“We have a policy that requires that tens of thousand of people being rounded up every day,” he added. “It does not make the country any safer. It does exactly the opposite, in the most inhumane way, and it only benefits one group.”

Further Reading

Eyes on the Ties: Who is Profiting from Incarcerating Immigrant Families

Common Dreams: Demand Grows for Tech Giants Like Microsoft and Salesforce to Cancel Contracts With ICE and Border Patrol

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History of Immigration Detention

Rise of Immigration Detention: Clinton and Bush Junior

  • Early 1990s had higher tolerance for immigrants
    • Reagan’s 1986 amnesty law legalizing most illegal immigrants who came before 1982
    • 1990 immigration bill to increase number of accepted immigrants
      • Bush Senior states, “it recognizes the fundamental importance and historic contributions of immigrants to our country.”
  • Tolerance starts to reverse by mid 90s
    • By 1993, Clinton proclaims, “that America would not surrender our borders to those who wish to exploit our history of compassion and justice.”
  • 1994 California’s Proposition 187
    • Falsely blamed immigrants for the recession and economy
    • Wanted to deny all public services to immigrants
    • Began wave of anti-immigrant rhetoric & policies across country
  • Clinton’s 1996 laws
    • Set of laws that expanded the U.S. immigration detention system by expanding the list of “crimes of moral turpitude,” including non-violent drug and other charges, for which both legal immigrants and undocumented non-citizens can be subjected to mandatory detention and deportation.
      • Significantly increased the people detained and deported
  • Increased immigration enforcement budget
    • Between 1990 and 2002, the budget of the Immigration and Naturalization Service increased fivefold.
  • ICE operation Endgame
      • Set 100% “removal” of all “removable aliens.”
        • Grandparents and children, business owners and colleagues, students and caregivers: All became the targets of ICE.
      • Claimed this was for security but never defended how this was to improved security
      • Budget for immigration enforcement double from $6.2 billion in 2002 to $12.5 billion in 2006.
  • Sept 11 new agencies and policies
    • Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE)
    • Bush Jr moved immigration management from DOJ to DHS, reframing immigration as a security issue.

Rise of Immigration Detention: Obama and Trump

  • Obama continued immigration enforcement as a security issue trend
    • By 2013,
      • US was spending more on immigration enforcement than on FBI, Secret Service, the Drug Enforcement Administration and all other federal criminal law enforcement agencies combined
        • Holding more people in immigration detention than those serving sentences in the federal prison system
      • In 2014 started Family case management program
        • Instead of detaining asylum seekers, assigned them case managers to guide them through the complex process
          • Costs 1/10 cost of detaining and had a 99% rate for showing up to hearings
        • Trump canceled this program in 2017

“The Obama administration later tried to re-prioritize ICE’s operations by focusing the deportation force on “felons, not families.” Yet this guidance not only rested on a false dichotomy (felons have families, after all) but also reinforced the fusion of immigration and “threat” in the public conversation. Although advocacy efforts, court challenges and public criticism pushed the administration to narrow its enforcement priorities in 2014 and resulted in a decline in ICE arrests, the deportation machinery remained robust” Carly Goodma, Angry that ICE is ripping families apart? Don’t just blame Trump. Blame Clinton, Bush and Obama, too.

  • Trump’s Zero Tolerance
    • Presidential campaign full of anti-immigrant rhetoric
    • Immediately signed executive order to
      • Double number of ICE officers
      • Deputized more local police departments to track down immigrants
      • Broadened ICE priorities
      • Limited due process and discretion
    • As DHS secretary, John Kelly authorized ICE to take action against all “removable noncitizens”
    • Trump admin introduces zero tolerance
      • Criminally prosecute all unauthorized immigrant
      • Family separation policies were created as parents were held in federal detentions

GQ: How the Trump Administration’s Border Camps Fit into the History of Concentration Camps

People today tend to think of Nazi death camps as defining the term “concentration camp.” But before World War II, this phrase was used to describe the detention of civilians without trial based on group identity. During a rebellion in Cuba in 1896, the Spanish Empire swept rural peasants—mostly women and children—off the land. Declaring them a threat, Spanish forces held them behind barbed wire in fortified cities. Around 150,000 people died. Three years later, America opened its own concentration camps for women and children as part of an effort to suppress a revolt in the Philippines during the Philippine-American War.

Around the globe in southern Africa, the British government opened its own concentration camps in the new century, embracing civilian detention as a civilizing force for an “uncultured” people. Unsanitary camp conditions and inadequate food triggered medical crises. By the time the British moved to address the disaster they had created, it was too late for many detainees. Tens of thousands of children died.

These camps opened and closed in different settings but never vanished from the face of the earth. In southern France during the Spanish Civil War, hundreds of thousands of refugees fled across the border, ending up in camps without sanitation or food. In Myanmar in 2012, more than a hundred thousand Rohingya Muslims were segregated into camps that left the community vulnerable to ethnic cleansing years later.

Today’s U.S.-Mexico border camps are the heirs of these concentration camps. Putting people in similar conditions will unleash illness and death. The more people who are detained, the larger these crises will become.

By the time a country gets to the point that those in power and a majority of their supporters embrace policies that back up virulent rhetoric and accept detention as the central response to a political or humanitarian problem, it is very difficult to undo.

From its first days, the Trump administration has mouthed dehumanizing rhetoric about migrants. On the day Trump announced his candidacy, he fired his opening salvo against Mexicans, and, as president, he has only continued in the same vein about all migrants crossing the southern border. Setting up measures like a weekly immigrant crime report during the first weeks of the administration, the White House underlined the president’s antagonistic approach.

In a tweet on Monday night, Trump wrote about plans for the U.S. Immigration and Customs Enforcement agency to initiate mass immigration arrests and removal: “Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in.” While the scope of deportation that Trump is threatening appears to be unlikely given current resources, attempts at mass deportation typically cause additional detention crises, in transit camps and at transportation sites charged with moving detainees. This operation will only further degrade the system.

This year, we have seen the border camps grow and the declaration of a phony national emergency that is turning into a real one. If the administration were focused on humanitarian issues, these facilities might have more in common with refugee camps. But the administration has repeatedly lied about family separation, claiming at first that it wasn’t happening, while taking children from parents as a form of deterrence. President Trump’s antipathy to Mexicans and Central Americans is being transformed into policy at the highest levels of the most powerful government in the world. In combination with miserable conditions on the ground and brutal acts by agents charged with enforcement, U.S. detention camps—which were already abysmal under several prior presidents—have evolved into a more dangerous entity.

Decades of stoking resentment have polarized views on immigration. Embracing harsh rhetoric in 1993, President Clinton helped reverse tolerance for migrants by proclaiming that America would not “surrender our borders to those who wish to exploit our history of compassion and justice.” During his administration, the Republican Congress went further, expanding detention broadly for migrants, reducing their ability to get legal representation, and making it easier to deport them. Clinton embraced this legislation, and future administrations followed suit.

Even if additional resources are provided for those in detention, if those resources are accompanied by further militarization of the border, the administration’s policies will be working at cross purposes with each other. If the detention-centered approach is kept, no amount of aid will keep these camps from becoming part of the American landscape for years to come. Arresting immigrants for even minor infractions and ramping up detentions at the border, the administration has also rescinded Obama-era easing of some rules for migrants with U.S.-born children or no criminal record, thereby expanding a backlog of cases that already stretched for years. Intentionally jamming a faltering system can overload it beyond repair.

A camp in a country in which the leader openly expresses animosity toward those interned, in which a government detains people and harms them by separating children from their parents or deliberately putting them in danger, is much closer to a concentration camp than a refugee camp. Nothing we are doing is likely to repeat Auschwitz, or to come anywhere close to it. But the history of concentration camps shows us that when it comes to this kind of detention, even when a government isn’t plotting a genocide, shocking numbers of people can still end up hurt—or dead.

Freedom for Immigrants: A short history of immigration detention

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18th CENTURY 

1790 Naturalization Act – U.S. citizenship may be granted to free white persons of “good moral character”; Native Americans, slaves, indentured servants, free blacks, and Asians were effectively excluded.

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1798 Alien and Sedition Acts – Allowed for deportation of persons deemed “dangerous to the safety and security of the United States”

19th CENTURY

1823 Johnson v. M’Intosh – Ruling that established the U.S. government’s sovereignty over Indian law and land based on the “doctrine of discovery,” or European colonization of the New World

1830 Indian Removal Act – Set in motion decades of forced removals of Cherokee, Muscogee, Seminole, Chickasaw, Chocktaw, and Ponca Native American nations from the southeastern United States, known as the “Trail of Tears”

1850 Fugitive Slave Act – Provided for a federal, bureaucratized system of returning slaves who had absconded from one state to another state or territory

1850 First Privately-Run Prison – California state prison leased out to private management; it was plagued by mismanagement, corruption, and escapes before being returned to state management in 1860.

1865 Passage of the 13th Amendment – This Amendment abolishes slavery, but with a loophole, “except as punishment for crime,” paving the way for the convict lease system that allowed for prison labor to be contracted out to private interests for profit throughout the American South.

1875 Page Act – Banned forced laborers and women suspected of prostitution from Asia

1882 The Chinese Exclusion Act – Prohibited Chinese laborers from entering the United States for 10 years, marking the first class of people excluded based on race. The Act provided for the nation’s first immigration inspectors and a process of deportation.

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1889 Chae Chan Ping v. United States – Case challenging the Chinese Exclusion Act, but ruling held that excluding immigrants from entering the country was an extension of sovereignty belonging to the U.S. government. This would come to be known as the “plenary power” doctrine, in which the power to control immigration is conceded to the executive and legislative branches.

1891 Immigration Act – Created the first immigration department, created classes of excludable immigrants, and created new border enforcement procedures

1892 Geary Act – Required all Chinese laborers to register with the government or be subject to arrest, one-year imprisonment, and then deportation

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1892
– The first dedicated immigration detention facility in the world, Ellis Island Immigration Station in New Jersey, opened

1893 Fong Yue Ting v. United States – Ruling held that expelling immigrants was an extension of sovereignty belonging to the U.S. government (known as the “plenary power” doctrine); and deportation was not punishment for a crime, and therefore, the Constitutional protections did not apply in these procedures. This case has been cited subsequently by the Supreme Court over eighty times.

1893 – Congress passed the first law requiring the detention of any person not entitled to admission. In their discretion, immigration officers would release some, mostly white,  immigrants on bond.

1896 Wong Wing v. United States – Ruling held that unlawful residency was not a crime, and therefore immigrants unlawfully in the country were to be arrested and forcibly removed from the country without formal imprisonment. This case essentially created the civil immigration detention system by holding, “We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.”

20th CENTURY

1904 – Guards for the U.S. Department of Commerce and Labor began patrolling the U.S.-Mexico border

1907 – The Gentleman’s Agreement, an informal agreement between the United States and Japan, effectively restricting immigration from Japan

1910 – The second dedicated immigration detention facility in the United States, Angel Island Immigration Station in California, opened

1921 Emergency Quota Act – Restricted the number of immigrants admitted from any country annually to 3 percent of the number of residents from that same country living in the United States as of the 1910 census. The formula was designed to favor Western European countries, as they had a higher quota, and drastically limit admission of immigrants from Asia, Africa, the Middle East, and Southern and Eastern Europe.

1924 Johnson-Reed Immigration Act (also known as the National Origins Act and Asian Exclusion Act) – Restricted immigration further to the number of immigrants admitted from any country annually to 2 percent of the number who were already living in the United States before the 1890 census. Intended to “preserve American homogeneity,” the Johnson-Reed Act provided a pathway to citizenship for European immigrants while restricting Asians, Arabs, and most Africans completely.

1924 American Indian Citizenship Act – Most native peoples did not have citizenship until the passage of this act. Yet even after its passage, some native peoples weren’t allowed to vote until as late as 1957 because the right to vote was governed by state law.

1924 – The U.S. Border Patrol was officially formed through the Labor Appropriation Act.

1928  -The convict leasing system ends, with Alabama being the last state to outlaw it.

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1929 Immigration Act – Also known as Senator Coleman Livingston Blease’s bill, this Act targeted Mexicans and undermined rulings in Wong and Ting that decriminalized unlawfully residing in the U.S. Instead, this Act targeted people unlawfully entering the U.S. Unlawful entry would be a misdemeanor punishable by $1,000 fine and/or up to 1 year in prison, and unlawfully re-entry would be a felony punishable by $1,000 fine and/or up to two years in prison.

1929 to 1936 – Mexican Repatriation occurs throughout the Great Depression, including mass round-ups and deportations of Mexicans and Filipinos. Estimates of total deportations range from 500,000 to 2M, of whom a likely 60% were U.S.-born citizens.

1939 – Over 44,000 cases prosecuted in previous 10 years under the Immigration Act of 1929.  Convictions on immigration charges surpassed all other federal crimes (except for alcohol charges under prohibition laws).

1940 – Angel Island Immigration Station in California closed.

1942 – As a World War II measure, President Franklin D. Roosevelt signed Executive Order 9066, establishing U.S. sites as military zones and providing for the internment of 120,000 Japanese-Americans over the course of the war, as well as German-Americans and Italian-Americans suspected of serving as enemy spies.

1943 – The Chinese Exclusion Act is repealed and replaced with a quota.

1942 Creation of the Bracero Program -It provided temporary agricultural visas for people from Mexico in an effort to fill the World War II farm-labor shortages in the United States

1946 The School of the Americas (SOA) is formed at Fort Benning, Georgia, a U.S. military program (still in effect) to exert imperialistic influence over Latin America and train Latin American soldiers in counterinsurgency, counterterrorism, anti-communism, torture, and surveillance techniques. Former Panamanian president Jorge Illueca has called SOA, which has trained over 60,000 foreign soldiers, the “biggest base for destabilization in Latin America.” It is estimated that hundreds of thousands of Latin Americans have been forcibly displaced by the effects of this program.

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1952 Immigration & Nationality Act – Established the grounds for which a noncitizen can be blocked from entering the United States or deported, including criminal history or radical political views. It also allowed for authorities to use discretion to grant noncitizens release from detention on bond, based on community ties and pending a final determination of removability. This, combined with the end of the era of Chinese Exclusion, led to a decline in the systematic use of immigration detention (except during periods of targeted deportations of Mexicans in the 1950s and Haitians in the 1970s).

1954 – Ellis Island Immigration Station in New Jersey closed.

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1954 to 1956 “Operation Wetback” – A targeted immigration enforcement campaign launched by the Eisenhower administration during which over 1M Mexicans, many who arrived under the Bracero Program, were targeted for deportation

1964 Bracero Program ends

1965 Hart-Celler Immigration Act – Repealed 1921 national origins quotas, which had insured that immigration was primarily reserved for European immigrants, and replaced it with a preference system based on immigrants’ family relationships with U.S. citizens or legal permanent residents. However, by placing limits on immigration from Latin America for the first time, this Act led to a rise in “unauthorized immigration” from this region in subsequent decades.

1966 – Australia opened its first immigration detention facility in the country, the Maribyrnong Immigration Detention Centre.

1970 – First dedicated immigration detention facility in Europe opened in England, the Harmondsworth Detention Centre, although France’s immigration detention regime dates back to 1970, as well.

1980 to 1981 – The United States begins a new round of mass immigration detentions in response to the migration of Cubans in the “Mariel Boatlift,” in addition to Haitians and Central Americans fleeing totalitarian governments and civil war.

1981 – President Ronald Reagan announces a new detention policy aiming to punish and deter Latin American migration, including the detention of asylum seekers. Reagan also launched a renewed “War on Drugs” that would pave the way for the increased militarization of border enforcement and conflation of drug and immigration enforcement through interdiction programs.

1981 – The Reagan administration opens the Fort Allen Detention Center on a former U.S. Navy Base in Puerto Rico to detain Haitians.  This facility was already being constructed by the Carter administration to detain Cuban and Haitian refugees.

1982 – Hong Kong passes an Immigration Bill, leading to the creation of the first immigration detention camps in the country. These are believed to be some of the first facilities in East Asia.

1982 – South Africa opened the first immigration detention center, the Lindela Holding Facility. Previously, immigrants were detained in prisons. This is believed to be one of the first dedicated facilities in Africa, although former European colonies most likely detained immigrants for decades prior.


1983
– The Reagan administration forms its Mass Immigration Emergency Plan, requiring that 10,000 immigration detention beds be located and ready for use at any given time.

1983 – The world’s first private prison company Corrections Corporation of America (CCA), which changed its name in 2016 to CoreCivic, was formed. CCA enters into its first federal government contract for an immigration detention facility in Texas. Immigrants were first detained at a hotel owned by CCA, while the Houston Contract Detention Facility was being built.

1984 – GEO Group, formerly The Wackenhut Corporation, was formed.

1985 – CCA’s second facility opens in Laredo, Texas, and is the first immigration detention facility to detain infants and children.

1986 The Immigration Reform and Control Act – granted a blanket amnesty for undocumented arrivals and placed sanctions on employers of unauthorized workers; the latter went largely unenforced.

1987 GEO Group wins its first federal government contract for the Aurora Detention Facility in Colorado, an immigration detention facility.

1988 The Anti-Drug Abuse Act – Required the mandatory detention of all non-citizens who had committed an “aggravated felony,” beginning a new era of mandatory immigration detention.

1988 President George H.W. Bush issued a national apology to Japanese-Americans interned during World War II, awarding reparations of $20,000 to each family subjected to internment.

1990 – Australia opened its first private prison, run by Corrections Corporation of Australia (CCA), owned by Corrections Corporation of America (CCA)/CoreCivic

1991 – The United States opens an immigration detention facility, the Migrant Operations Center, at the U.S. Naval Base in Guantánamo Bay, Cuba. Before this naval base was used to hold prisoners of war indefinitely as part of the “War on Terror,” this facility was used to hold asylum seekers and refugees.

1993 – Following the lead of the United States in Cuba and Puerto Rico, the Commonwealth of The Bahamas opens its first dedicated immigration detention facility in the Caribbean, the Carmichael Road Detention Center.

1994 – The United States, Canada, and Mexico enter into the North American Free Trade Agreement (NAFTA); in effect, resulted in long-term job loss and economic stagnancy in Mexico and the displacement of Mexican small farm operators and workers.

1994 “Operation Gatekeeper” – Border enforcement program under the Clinton administration that provided for the doubling of Border Patrol officers, construction of 5 miles of a border wall along the U.S.-Mexico border in San Diego, California, and additional fencing in Arizona. These measures forced migrant routes into more treacherous desert regions, resulting in increased deaths in the U.S.-Mexico borderlands–over 7,000 as of 2017.

1995 – Series of uprisings in for-profit immigration detention facilities

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1996 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) 

Together known as “The 1996 Laws,” this set of laws has had the greatest impact on expanding the U.S. immigration detention system by expanding the list of “crimes of moral turpitude,” including non-violent drug and other charges, for which both legal immigrants and undocumented non-citizens can be subjected to mandatory detention and deportation. These laws can be applied retroactively, and also impose 3-year, 10-year, and lifetime bars on returning to the U.S. after deportation.

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2001 Zadvydas v. Davis – Case limiting the “plenary power doctrine,” or the authority of the U.S. government to detain immigrants indefinitely, if they do not have a country that will receive them after their are ordered deported.

2001 – A terrorist attack launched by the group Al-Qaeda on September 11 hijacked four commercial airplanes and killed 2,753 people in New York City, Washington, D.C., and Pennsylvania, effectively beginning the U.S. “War on Terror.” The U.S. government passes the USA PATRIOT Act to expand surveillance capacities and heightens its targeting of Arab and Muslim immigrants for detention.

2002 – Guantanamo Bay U.S. military prison established in Cuba; the base had previously been used as an immigration detention site from the 1970s-90s to detain Cubans and Haitians.

2003 Demore v. Kim – Supreme Court ruling upholding the federal government’s right to detain legal immigrants during deportation proceedings.

2003 Creation of the Department of Homeland Security (DHS) – The former Immigration and Naturalization Service (INS) is dissolved and reformed into three branches: U.S. Citizenship and Immigration Services (USCIS), Customs and Border Enforcement (CBP), and Immigration and Customs Enforcement (ICE). The immigration detention system now falls under the purview of ICE.

2005 – “Operation Streamline” begins, allowing for the criminal prosecution of people apprehended at the border and to be held in privately-operated Criminal Alien Requirement (CAR) prisons and administered by the Bureau of Prisons.

2008 – The Bush administration pilots the “Secure Communities” program, strengthening federal immigration and local law enforcement partnerships.

2009 Immigration Detention Bed Quota – Passed by Congress, DHS must now maintain a minimum of 34,000 detention beds across the country on any given day.

2009 – Obama administration temporarily ends practice of family detention, although the Berks Family Detention Center remains in operation

2011 – The Obama administration expands the “Secure Communities” program, which relies on federal and local law enforcement partnerships to carry out ICE’s detention priorities.

2011 – Ecuador opens Hotel Hernon, followed by Hotel Carrión (opened in 2013). These are the first dedicated detention facilities in South and Central America, although Ecuador passed legislation in 1971 to allow for the detention of unauthorized migrants.

2012 – The Obama administration established the DACA (Deferred Action for Childhood Arrivals) program, providing temporary work status and relief from deportation for those who arrived in the United States as minors and meet certain requirements.

2012 – Israel opens the Holot Detention Center, the largest in the world to date, with capacity to hold up to 10,000 migrants.

2014 – The Obama administration resumes practice of family detention in response to increase of unaccompanied minors, women and child migrants from Central America.

August 2016 – The U.S. Justice Department and DHS announce they will phase out the use of private prisons; private prison industry stocks plummet.

November 2016 – Donald J. Trump is elected president; private prison industry stocks rise.

January 2017 – At the end of President’ Obama’s term, detention numbers are at a record high of over 40,000 per day and the Obama administration has deported over 3 million people, more than all presidents since 1890 combined.

January 2017 President Trump signs Executive Order on immigration, promising to fortify and expand U.S. immigration enforcement capacities and the detention system.

October 2017The Dignity Not Detention Act passes in California, the first law of its kind to restrict the growth of for-profit immigration detention contracting on a statewide level. This law was drafted and co-sponsored by Freedom for Immigrants.

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Prison Strikes

Modern Prison Strikes

  • 2016 National Prison Strike
    • Prisoners went on strike in at least 50 prisons in at least 12 states
      • involving at least 24,000 people in these facilities
  • 2018 National Prison Strike
    • Prisoners strike in an estimated 17 sates across the US
  • Both strikes:
    • Largest prison strikes in US history
      • Had work and hunger strikes
    • Prison officials make it very hard to get information about the strike
    • Started around the anniversary of the 1972 bloody uprising at the Attica
  • Demanding to improve horrific prison conditions
    • Including violence, unhygienic situations, inadequate health care, lack of air conditioning in dangerously hot weather, and scarce, unhealthy food, solitary confinement as punishment, and that guards and police stop brutalizing inmates and turning a blind eye to violence among inmates.
    • Violence is generally a big problem in US prisons
      • 21%of male prison inmates during a six-month period are physically assaulted, and between 2 and 5% are sexually assaulted
        • 2009 study published in the Journal of Correctional Health Care
  • Demanding to end slave prison labor practices
    • In both public and private prisons
    • Up to 800,000 prisoners a day are put out for work without their choice, usually for extremely paltry compensation
      • The average pay in state prisons is 20 cents an hour
        • In Louisiana is as low as 4 cents per hour

“This strike is part of centuries’ worth of labor actions to protest the compelled labor out of black bodies by a white-dominated society. We should not see the prison strike as an isolated event. It is instead the latest iteration of demands for freedom from forced labor that go back to slavery.” Erik Loomis NY Times

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NY Times: Serving Time Should Not Mean ‘Prison Slavery’

A national strike by prisoners is the latest iteration of demands for freedom from forced labor.

“Since Aug. 21, prisoners across the United States have been on one of the largest prison strikes the nation has seen in years. They have several demands, but at the top is the end of the forced labor the state coerces out of them. Up to 800,000 prisoners a day are put out for work without their choice, usually for extremely paltry compensation that in Louisiana is as low as 4 cents per hour.

With often privatized prisons operating with maximum security and limited communication among prisoners, even discovering what is happening remains difficult, yet prisoners have organized themselves nonetheless in one of the most important labor actions in this country.

The prison strike is a multiracial action, but that African-Americans make up a disproportionate number of the nation’s prison population and its leadership of this movement is no accident. This strike is part of centuries’ worth of labor actions to protest the compelled labor out of black bodies by a white-dominated society. We should not see the prison strike as an isolated event. It is instead the latest iteration of demands for freedom from forced labor that go back to slavery.

From the beginning of black chattel slavery in what became the United States, African-American workers have sought to take control over their lives and work. Sometimes this was through slave revolts such as Nat Turner’s rebellion in 1831 Virginia. But more common was individual acts of resistance — running away, slowing down in the fields, stealing food from the master.

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During the Civil War, slaves freed themselves by walking to Union lines. What was a trickle in 1861 became a flood by 1864, as thousands of self-emancipated slaves followed Union soldiers. What the pioneering civil rights activist W.E.B. Du Bois called the “general strike” of slaves changed the outcome of the war, forcing a reluctant Lincoln administration to move toward the Emancipation Proclamation and then the 13th Amendment, all while slowing the Confederate war effort by undermining the labor force and thus the economy. Slaves could not have won the war by themselves, but their actions were crucial in deciding the war and creating its moral impact.

The Civil War may have ended chattel slavery, but the 13th Amendment had a fatal flaw, allowing for an exception from free labor for the incarcerated. Almost immediately, states, especially in the South, used this to control black labor. They began rounding up ex-slaves after the war, passing vagrancy laws that allowed the state to sell their labor. Congressional interference during Reconstruction briefly limited this practice, but by the late 19th century, white rule created a huge economic sector based upon unfree black labor, especially in the prison chain gangs at institutions such as Mississippi’s notorious Parchman Farm, symbol of the Jim Crow era’s murderous regime against black people, as well as in contract labor, where private employers worked black prisoners into the grave. Increasingly, prison authorities compelled labor out of nonblack prisoners as well.

The civil rights movement challenged this prison regime, but by no means ended it. In Texas during the 1970s, segregated prison gangs worked under overseers picking cotton for no money. This was modern slavery. In 1978, 1,500 inmates at the Canfield Prison in Ellis, Tex., refused to work in support of a lawsuit (in part against unpaid prison labor) started by a civil rights activist imprisoned in 1972 for inciting a riot during a protest against a white-owned store. They started a prison strike, which spread through the state’s prison system, gained nationwide attention and lasted for two weeks.

As during the current prison strike, the Texas prisoners had few illusions of immediate victories. But in 1980, the Texas prison labor system was ruled unconstitutional, and no longer would they pick cotton under overseers for no money. This was one victory in a centuries-long struggle; yet Texas has continued to exploit its prisoners for poorly paid work.

Just as the public attention of the 1978 strike contributed to that 1980 decision, so might the current prison strike create changes to the current system of prison labor exploitation. That can happen if we make changes to prison labor systems a central demand of our politicians. The strike will continue until Sept. 9, and it is up to us on the outside to make our voices heard in support of these workers.

Too often, we treat prisoners at outcasts instead of fellow workers. Not only are they stripped of their constitutional rights, but even labor activists do not take their needs seriously as workers. Ending prison labor exploitation — what strike organizers call “prison slavery” — should be at the top of the agenda for the American labor movement, as it is the defining feature of work for the lives of huge swaths of the American working class.

Slavery still has never ended in the United States. It continues every day in our prisons. We must wash ourselves of this moral stain on our society and treat prisoners with the human rights that every person deserves.”

Vox: We’re in the midst of the biggest prison strike in US history

“For the past couple of months (2016), prison inmates across the country have been striking and protesting, in what organizers have called the largest prison strike in US history.

The little-known protests were organized around September 9 in commemoration of the 45th anniversary of the bloody uprising at the Attica Correctional Facility in New York. But the demonstrations have continued in potentially dozens of states since then, and there’s talk of more concerted protests beginning anew later in October.

The demonstrations have broadly targeted dismal prison conditions. But they have generally focused on a few specific issues — particularly prison labor practices in both public and private prisons that can force inmates to take jobs for little to no pay, which inmates have characterized as modern slavery.

“What you see is a lot of people who are being incarcerated sort of recognizing the broader social, political, and historical context in which they are positioned,” said Clint Smith, a doctoral candidate in Harvard focused on incarceration issues. “And [they are] fundamentally rejecting the idea that they are devoid of any agency, that they are not able to push back and protest against the conditions in which they live.”

He added, “So often in this broader conversation about mass incarceration that’s been happening more so in the last four, five, or six years, you rarely see people who are incarcerated or formerly incarcerated at the forefront of that conversation. And many people in prison are recognizing that their voices are being silenced — not only in the general population but also in the conversation around them.”

The protests, however, have been varied in their approach. So far, they have taken place in as many as 50 prisons in at least 12 states, involving at least 24,000 people in these facilities. As John Washington explained for the Nation, the hard numbers are hard to come by, in large part because prisons are so secretive. But we do have some details of what’s going on.

Protests have broken out in at least 12 states

A National Park Service ranger walks down the main cell block of Alcatraz Island. Robyn Beck/AFP via Getty Images

So far, the protests have taken a few forms. There have been work stoppages in which inmates refuse to take part in prison labor. There have also been hunger strikes, which mostly came about among inmates who don’t have jobs in prison. In some cases, there have also been bouts of violence — in which inmates take over parts of the prison and destroy property.

Here are some of the bigger protests, based on the Incarcerated Workers Organizing Committee’s tracker, the Nation’s breakdown, and other news reports:

  • Alabama: Starting on September 9, inmates went on strike as part of the Free Alabama Movement, an advocacy group for prisoners. Some reports suggested that prison guards also joined the strikes to speak out against unsafe conditions, but higher-ups deny it. Perhaps in response, the US Department of Justice on October 6 announced that it will investigate Alabama’s prisons for men.
  • California: At least 100 inmates in Merced County Jail went on a hunger strike starting on September 9, with inmates in Santa Clara County Jail planning to join on October 1.
  • Florida: Hundreds of inmates rose up in at least five state prisons in early September, refusing orders while taking over dorms and cellblocks. The Miami Herald has found deplorable conditions in Florida prisons for years: understaffing, violence, and lack of air conditioning in scorching hot weather.
  • Michigan: Inmates began striking in Kinross Correctional Facility on September 9. But after discussing their demands with the warden, a tactical team used guns, rifles, tear gas, and shields to subdue and handcuff around 150 inmates, leaving them in the rain for five to six hours. Prison officials told the Detroit Free Press that inmates started a fire and damaged several buildings during the demonstrations.
  • South Carolina: There were several weeks of work stoppages in state facilities. After one inmate died in the McCormick Correctional Institution, some inmates also rose up in what one prisoner described to the Nation as an “active rebellion.”
  • Texas: Although prison officials have denied strike activity, multiple prisons in Texas have reportedly gone on lockdown in the past few months due to inmates refusing to work.
  • Wisconsin: Before September 9, prisoners were already on hunger strike in protest of solitary confinement. Some inmates were force-fed through a nasal tube throughout the protests, but the strikes were reportedly still going on as of September 23.

There have been protests in other facilities within these seven states and prisons in up to 17 other states. But the details are scarce, because prison officials refuse to provide them — after all, it’s in their interest to make it seem like their prisons are run with few or no problems.

And more protests are likely coming: Some inmates plan to organize another round of renewed protests October 15 to 22.

According to Emma Grey Ellis at Wired, inmates have organized, with help from family, friends, and outside groups like the Incarcerated Workers Organizing Committee, using contraband cellphones and social media. Inmates aren’t technically supposed to have access to these, but they have long managed to smuggle the necessary devices into prisons. And now they’ve used them to put together protests.

The protests are about broad criminal justice issues

So what’s connected this scattered network of prisoners? Organizers and inmates have given purposely broad answers when asked about their goals, so prisoners at different facilities can set their own demands as part of the demonstrations.

“Part of the reason we don’t have an [international] list of demands is because it’s not possible for the prisoners to all get together and say what their demands are going to be,” said Azzurra Crispino, media co-chair at the Incarcerated Workers Organizing Committee. “So the demands do vary from unit to unit and state to state.”

Some have protested the US keeping the world’s largest prison population, which has led to overcrowding and other abuses against the incarcerated population.

Others have taken issue with terrible living conditions — including violence, unhygienic situations, inadequate health care, lack of air conditioning in dangerously hot weather, and scarce, unhealthy food. Some have targeted solitary confinement, when inmates are isolated in tiny cells as punishment or, supposedly, for their own safety — which can lead to such bad mental and physical health consequences that a United Nations report concluded it’s torture after 15 days.

And some have demanded that guards and police stop brutalizing inmates and turning a blind eye to violence among inmates.

Prison labor exploitation is a major rallying point

A prison fence. Peter Macdiarmid/Getty Images

If there’s one issue the inmates seem somewhat united on, it’s prison labor. In many states, prisoners are forced to work for literally cents an hour. In Arkansas, Texas, and Georgia, inmates can be forced to work for free. This is explicitly allowed after the abolishment of slavery through the 13th Amendment of the US Constitution, which banned slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”

Approximately 700,000 inmates have daily jobs, such as kitchen work, cleaning, and GED tutoring. Sometimes the jobs will take inmates outside of prison, although more frequently they merely mimic real-world jobs or involve menial chores that need to be done around the prison. The average pay in state prisons is 20 cents an hour, according to the Marshall Project.

Inmates compare the practice to modern slavery. With black people disproportionately likely to be incarcerated, there are racial disparities in this often forced, low-paid labor. (It of course didn’t help that the Virginia Supreme Court said that prisoners are “slaves of the state” in 1871, six years after slavery and involuntary servitude were abolished by the 13th Amendment except as punishment for a crime.)

“Ultimately, the demand is abolishing prisons,” Crispino said. From inmates’ view, “the reason prisons exist is not to keep anyone safe — but because money gets made from prisons. So they’re saying, look, if the reason you have us locked up is because we make you a ton of money, then if we strike and you give us minimum wage, we won’t make you a ton of money anymore. And that will ultimately lead to reform for decarceration and prison abolition.”

Prison officials and other advocates argue, however, that prison labor can help inmates gain much-needed real-world working experience. Some research has backed this up: A study of federal prisoners found inmates who took part in UNICOR, the federal prison program, were 24 percent less likely to reoffend and 14 percent more likely to be employed a year after their release. And a study of a Florida program found significant increases in employment, but no changes in inmates’ likelihood to reoffend.

These studies aren’t definitive proof, since they have serious selection bias issues. It’s difficult to know whether the inmates participating in prison labor programs are those who are already less likely to reoffend and more likely to get and keep a job after prison — since they’re able and, in some cases, volunteering to work while they’re incarcerated. Some studies try to control for this, but it can never be fully ruled out.

There’s another benefit to the work: It gives people something to do. “A lot of inmates have told me, ‘Look, jobs make the time go faster, and we want to be productive,’” Crispino said. “One of the things that’s frustrating about being in prison and especially solitary confinement is the forced idleness.” (To that end, Crispino pointed out, strikes can actually make time in prison more dreadful, but inmates still say the protests are needed to voice discontent about what they see as abuses.)

But even if prison labor gives inmates something to do and improves their chances of reoffending and sustaining employment, there are still moral and ethical questions behind the practice. So the benefits may not justify paying prisoners pennies or nothing at all, but rather make a case for increasing the spending on these programs so everyone can participate and get at least minimum wage for their work.

Prison officials say they couldn’t afford to pay inmates more. They also argue there are other costs that have to be considered that make this labor particularly expensive, such as the chance of lockdowns and costs of security — meaning, they say, that prison labor will never be able to be treated like a regular job in the free world.

Still, for the prisoner, this setup certainly doesn’t feel like a fair deal. So many of them have taken to striking across the US.

Vox: America’s prisoners are going on strike in at least 17 states

Incarcerated Americans are often forced to work for cents an hour. So they’re launching what could be their biggest protest ever.

“America’s prisoners are going on strike.

The demonstrations are planned to take place from August 21 to September 9, which marks the anniversary of the bloody uprising at the Attica Correctional Facility in New York. During this time, inmates across the US plan to refuse to work and, in some cases, refuse to eat to draw attention to poor prison conditions and what many view as exploitative labor practices in American correctional facilities.

“Prisoners want to be valued as contributors to our society,” Amani Sawari, a spokesperson for the protests, told me. “Every single field and industry is affected on some level by prisons, from our license plates to the fast food that we eat to the stores that we shop at. So we really need to recognize how we are supporting the prison industrial complex through the dollars that we spend.”

Prison labor issues recently received attention in California, where inmates have been voluntarily recruited to fight the state’s record wildfires — for the paltry pay of just $1 an hour plus $2 per day. But the practice of using prison inmates for cheap or free labor is fairly widespread in the US, due to an exemption in the 13th Amendment, which abolished chattel slavery but allows involuntary servitude as part of a punishment for a crime.

For Sawari and the inmates participating in the protests, the sometimes forced labor and poor pay is effectively “modern slavery.” That, along with poor prison conditions that inmates blame for a deadly South Carolina prison riot earlier this year, have led to protests.

For prisons, though, fixing the problems raised by the demonstrations will require money — something that cash-strapped state governments may not be willing to put up. That raises real questions about whether the inmates’ demands can or will be heard.

The demonstrations come two years after what was then the largest prison strike in US history, with protests breaking out in at least 12 states in 2016. The new demonstrations could end up even larger than those previous protests.

Protests are planned in at least 17 states

There’s no hard estimate for how many inmates and prisons are taking part in the protests, as organizers continue to recruit more and more inmates and word of mouth spreads. But demonstrations are expected across at least 17 states.

The inmates will take part in work strikes, hunger strikes, and sit-ins. They are also calling for boycotts against agencies and companies that benefit from prisons and prison labor.

“The main leverage that an inmate has is their own body,” Sawari said. “If they choose not to go to work and just sit in in the main area or the eating area, and all the prisoners choose to sit there and not go to the kitchen for lunchtime or dinnertime, if they choose not to clean or do the yardwork, this is the leverage that they have. Prisons cannot run without prisoners’ work.”

While 2016’s protests were largely planned for just September 9 (then the 45th anniversary of the Attica uprising), they ended up taking part over weeks or months as prison officials tried to tamp down the demonstrations and mitigate the effects of the protests. This year, the protests are spread out over three weeks to make it more difficult for prison officials to crack down.

The inmates have outlined 10 national demands. They include “immediate improvements to the conditions of prisons” and “an immediate end to prison slavery.” They also target federal laws that boosted mass incarceration and have made it harder for inmates to sue officials for potential rights violations. And they call for an end to racial disparities in the criminal justice system and an increase to rehabilitation programs in prisons.

The demands are on top of specific local and regional asks that prisoners are making. For example, Sawari said, in South Carolina they’re also focused on getting prisoners the right to vote — and, of course, improving conditions in the state that helped inspire this year’s protests.

The strikes are in part a response to South Carolina’s recent prison riots

One reason for this year’s demonstrations is the prison riot at Lee Correctional Institution in April, which was described as a “mass casualty” event by state officials.

“After that violent incident happened, South Carolina prisoners and the jailhouse lawyers group out of Lee County came out with the strike demands and really wanted to do something to draw attention to the dehumanizing environment of prisons in general,” Sawari said.

In total, seven inmates were killed and at least 17 were seriously injured, according to the Associated Press. An inmate told the AP that bodies were “literally stacked on top of each other,” claiming that prison guards did little to stop the violence between inmates. Most of the fatal injuries appeared to be a result of stabbing or slashing, although some inmates may have been beaten to death. No prison guards were hurt.

The riot was the worst in a US prison in a quarter-century, according to the AP.

Based on reports following the riot, it seems some of the major causes, besides personal and potentially gang-related disputes, were poor prison conditions and understaffing — which meant there weren’t enough guards to stop the fighting.

This appears to be part of a growing problem. An investigation by John Monk for the State, a South Carolina newspaper, found that the number of inmates killed in the state’s prisons “more than doubled in 2017 from the year before and quadrupled from two years ago.”

John Bacon and Tim Smith at USA Today in April reported on other incidents at Lee Correctional:

The prison, which opened 25 years ago and holds about 1,700 of some of South Carolina’s most violent offenders, is no stranger to violence. Three weeks ago, inmates overpowered a guard, holding him hostage and taking control of part of a dorm for about 90 minutes. The guard was released uninjured.

In February, one inmate fatally stabbed another. …

The prison is about 50 miles east of Columbia. The state capital is home to the Kirkland Correctional Institution, where four inmates were fatally strangled a year ago. One of the two inmates accused of the crime said he killed them so he would be moved to death row.

Violence is generally a big problem in US prisons. According to a 2009 study published in the Journal of Correctional Health Care, about 21 percent of male prison inmates during a six-month period are physically assaulted, and between 2 and 5 percent are sexually assaulted.

But the problem appears to be particularly acute in South Carolina facilities in recent years. One potential reason: understaffing. Lee County Coroner Larry Logan told the AP that most South Carolina prisons have struggled to find enough workers, indicating that understaffing is making it difficult to keep these places under control. South Carolina Department of Corrections Director Bryan Stirling previously acknowledged the understaffing problem — and the dangers it causes — as well.

Sawari cited poor conditions in the prison as another cause of the riots. “Prisoners were placed in some really aggravated conditions,” she said. “They were placed on lockdown all day. They weren’t allowed to eat or use the bathroom. They were placed in units with rival gang members. And then their lockers were taken away, so they didn’t have any safe place to put their personal belongings, which really aggravated and caused tensions among prisoners — to the point where fights broke out, inevitably.”

For the state, a big problem is costs. Hiring more guards — and paying guards more to make the job more attractive to more people — costs money. So does improving prison conditions in general. All of that is cash that could be spent elsewhere.

For inmates, the situation poses a question: If South Carolina can’t properly staff its prisons and keep prisoners in safe, humane conditions, should so many people be locked up in the first place?

A big issue: prison labor exploitation

If there’s one issue inmate protesters are united on, it’s prison labor. In many states, prisoners are forced to work for cents an hour or even for free. This is allowed after the abolishment of slavery through the 13th Amendment of the US Constitution, which banned slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”

Hundreds of thousands of inmates across the US have jobs — not just firefighting, but also more typical jobs like kitchen work, cleaning, and GED tutoring. Sometimes the jobs will take inmates outside of prison, although more frequently they merely mimic real-world jobs or involve menial chores that need to be done around the prison. The average pay in state prisons is 20 cents an hour, according to the Marshall Project.

During the 2016 prison strikes, protesters characterized the practice as modern slavery. And with black people disproportionately likely to be incarcerated, there are racial disparities in this often forced, low-paid labor.

The 2018 protesters are taking a similar approach.

“Prison slavery exists,” Sawari argued. “The 13th Amendment didn’t abolish slavery. It wrote slavery into the Constitution. There’s a general knowledge that the 13th Amendment abolished slavery, but if you read it, there’s an exception clause in the abolishing of it. That’s really contradictory — that something would be abolished and there would be an exception to that.”

She pointed to companies that have taken advantage of prison labor in the past, including Victoria’s Secret and Starbucks — arguing they need to be called out for what amounts to, in some inmates’ view, exploitation.

Prison officials and other advocates argue, however, that prison labor can help inmates gain much-needed real-world working experience. Some research has backed this up: A study of federal prisoners found inmates who took part in UNICOR, the federal prison work program, were 24 percent less likely to reoffend and 14 percent more likely to be employed a year after their release. And a study of a Florida program found significant increases in employment after release, but no changes in inmates’ likelihood to reoffend.

These studies aren’t definitive proof, because they have serious selection bias issues. It’s difficult to know whether the inmates participating in prison labor programs are those who are already less likely to reoffend and more likely to get and keep a job after prison — since they’re able and, in some cases, volunteering to work while they’re incarcerated. Some studies try to control for this, but it can never be fully ruled out.

There’s also a moral argument against prison labor as it’s done today: Even if prison work helps some inmates, that doesn’t justify paying prisoners pennies or nothing at all. Under this view, if the prison work programs are beneficial, spending on them should be increased so everyone can participate and get more pay for their work.

Of course, these are also people in prison — a place they are in as punishment for their crimes. So why do they deserve to be paid a higher wage? Sawari countered that these inmates are still often the primary breadwinners for their families and expected to meet some financial obligations even before their release.

“Prisoners do like having the opportunity to earn, because they do have to support themselves financially in a lot of ways,” Sawari said. “Prisoners have to provide for their health care, their dental care. They have to buy food if they want to eat outside the three times a day most prisons serve. … They have to buy clothes like jackets and boots, hygiene products, cosmetics, books, study materials, paper, tape, scissors. Any little thing they need, they have to buy that. So they want to be able to.”

Prison officials say they couldn’t afford to pay inmates more. They point out that there are many extra costs tied to prison labor — such as the chance of lockdowns, security needs, and the costs of inmates’ housing, food, and health care. As California Department of Corrections and Rehabilitation spokesperson Jeffrey Callison told me, “The per capita cost of one inmate in our prison system now exceeds $80,000.” Those are expenses employers in the free world don’t typically have to carry.

But for many inmates, the poor pay still feels unfair. So they’re protesting for three weeks.

Historic Prison Strikes

New Yorker: Learning from the Slaughter in Attica

“Prisons are the bad conscience of the liberal imagination, a truth that tends to be most obvious to their most interested observers. Once, I got a letter from a death-row inmate in Texas, complaining that, in writing about incarceration, I had been insufficiently attentive to the French historian and theorist Michel Foucault. My correspondent seemed intimately familiar with Foucault’s argument that prisons are where the liberal state’s claim to superior humanity is at its most vulnerable. The eighteenth century’s pretensions to Enlightenment ended at the Tyburn scaffold, where wretches were publicly hanged for stealing a purse. The twentieth century’s pretensions to humanity end in mass incarceration and solitary confinement, where men are kept alive for years and subjected to procedural niceties while the state waits for the morning when it can paralyze and poison them. No “social contract” or “natural rights”: nothing but power relations, brutally enforced. We’re told that it is the sleep of reason that begets monsters, but what if reason, wide awake, is monstrous already?

Perhaps at some uneasy, half-conscious level, this sense that our moral self-definition is at stake when we talk about prisons explains why the riot at the Attica Correctional Facility, in upstate New York, in September, 1971, remains imprinted in public memory. Having previously inspired a Morgan Freeman movie, it has now inspired a long, memorable chronicle, “Blood in the Water” (Pantheon), by Heather Ann Thompson, a historian at the University of Michigan. Her book is dense with new information: much from survivors of the assault; much from assembled firsthand testimony, some of the most startling from recently released Nixon White House tapes. Though her sympathies are entirely with the prisoners, she extends humanity and individual witness to the guards, who were also, in their way, victims of the uprising and its suppression. And she extends the story past the killings: more than half the book is taken up with the exhausting but ultimately successful struggle, on the part of guards and inmates both, for compensation from the judicial system for their suffering.

As with so many academic historians, Thompson’s capacity for close observation and her honesty, which are impressive, are occasionally undermined by a desiccated political vocabulary that bears little relation to the reality of American life, then or now. Fifty years on, the glamour of sixties revolutionaries remains, while the messes they made seem forgotten. The Weather Underground, one of whose members, Sam Melville, was a leader in the Attica uprising and then died there, were not simply part of a “revolutionary organization committed to fighting racism and imperialism,” as she writes; they were violent, self-infatuated fools, who, as Hendrik Hertzberg wrote when they were at their height, in 1970, offered only “a huge, unearned windfall for the forces of repression.” Nor were the Black Panthers, whose co-founder, Bobby Seale, made a brief, insipid intervention at Attica, quite the virtuous militants her account suggests. Malevolently and homicidally persecuted though they were by the F.B.I., the Panthers had become, under Huey Newton, mindlessly cruel and misogynistic gangsters, capable of acts of torture and murder that still haunt the memory of those who witnessed them.

What happened at Attica in September, 1971? A series of accidents in a creakingly worn-out prison turned a modest petition for decency into a full-fledged takeover—one as surprising to the inmates as to anyone else—that, after four days, ended in a reprisal riot by guards and state police that left thirty-nine people dead. Attica was a hellhole. The largest industry in a forsaken and impoverished upstate town, it was a place where urban blacks were locked up in bathroom-size cells to be guarded by rural whites. Although Attica was a high-security prison, predating the great incarceration crisis of the next decades, the population was the usual mixture of small-time thieves and mid-level drug dealers, mixed in with a handful of violent offenders and some imports from earlier prison riots.

It wasn’t that conditions in the Depression-era prison were, by prison standards, uniquely horrible. It was that they were systematically horrible; procedures designed to instill a minimal humanity had been allowed to degrade in ways that made every day a trial. The medical care, for instance, was so bad that the civilian staff of one of the cell blocks tried to take action against the indifference of the long-term doctors, one of whom was responsible for a prisoner’s death. These employees “debated a couple of options, including picketing the doctor’s private practice,” Thompson writes. As in any prison, the conditions often depended on the individual character of the keepers. Many of the younger correctional officers were broadly sympathetic to the prisoners’ plight. The twenty-two-year-old Mike Smith, for instance, was shocked by the practice of strip-searching the convicts. “He was fairly certain that he would have considered suicide had he been forced to undergo this ritual,” Thompson tells us. In July of the fatal year, a prisoner named Don Noble led a group that, with Smith’s active approval, drew up a petition of protest, whose “demands” were, for the most part, piteously simple and human—changes like providing showers in hot weather.

Then, on the morning of September 9th, a company of prisoners, being led back to their cells, sleepless and uneasy over a rumor that a prisoner had been killed by guards the night before, found themselves locked in one of the tunnels that connected their cell block to “Times Square,” the bleak central yard. Attica’s security depended on an aging, easily overwhelmed set of mechanical locks and levers, of a kind that one sees in Alcatraz movies. Thinking they had been deliberately trapped in the crowded tunnel so that the guards—the “goon squad”—would be free to retaliate against some of their number, the prisoners quickly found that the gate keeping them out of the yard could be broken with a homemade battering ram. It was an act propelled more by panic than by premeditation. Within minutes, a chain reaction of improvised insurrections and parallel mishaps—the antiquated phones made it impossible for the overwhelmed guards to make more than one call at a time; other inmates came into possession of a set of master keys to the other cell blocks—allowed about twelve hundred inmates to take possession of Times Square and the D cell block and yard. The prisoners armed themselves with knives and clubs and, within an hour, were in control of the prison in which they had been confined in fear the night before.

What’s striking about the uprising is not the collisions of intractable ideological positions but, rather, the sheer confusion, missed opportunities, personal squabbles, and absurd procedural wrangles that governed it. The saddest irony is that the New York State Commissioner of Corrections, Russell Oswald, though later treated as one of the villains of the episode, was largely responsible for extending the occupation and allowing the prisoners the media megaphone that makes their voices still heard today. Oswald is a kind of caricature of the sixties liberal who infuriated conservatives (and often other liberals), someone so determined to do good that he can’t see past his own folly. He was a committed prison reformer—shortly after accepting the job, he had written a memo to Governor Rockefeller saying that having men locked “twelve or more hours a day in their cells is unacceptable to them and me.” And yet he managed, in four days, to enrage the inmates, exasperate his colleagues, and, probably, prevent the forces of order from taking back the prison when it still could have been done in a more or less orderly way. Since any imaginable modern state in any imaginable circumstance was always going to feel duty-bound to retake a prison after a mutiny, a forcible reconquest needed to be done either quickly or not at all: had it happened the next morning, when state troopers stood ready and the prisoners hadn’t yet dug in, it might have been much less violent. Trying to placate everyone, he only exacerbated everything.

Still, Oswald emerges as a genuinely tragic figure, a man of good will and integrity overcome by events. He had, Thompson says, rejected proposals to launch an assault, committing himself instead to talks with prisoners. He arranged for members of the press to come to D Yard and record the negotiations. It is odd to think that, with all the increase in media attention, we are actually far more media resistant now than we were then: no one would let a camera crew inside a yard during a prison hostage-taking today

The prisoners, meanwhile, tried to impose order using whatever small means they had, and, to an impressive degree, they succeeded. There were some genuine Hectors, reluctant heroes, who knew that taking part in a mutiny would be bad for their own long-term interests—i.e., getting out of jail—but who felt compelled to head off what threatened to become mere anarchic violence in the yard. One was Roger Champen, a former drug addict serving twenty years for armed robbery, who had managed to teach himself (and then other inmates) criminal law. At first, he wanted no part of the rebellion, but then, Thompson says, he “realized that order had to be established soon or else this situation was going to escalate into something scary.” Among the many ironies of Attica is that the spokesmen for the prisoners were often not the leaders of the uprising but those trying to minimize its costs to their fellows.

Nobody knew at the time that the worst and most paranoid elements in the national government were hysterically focussed on what was, after all, a small rebellion in a remote rural prison, one where the inmates had no guns and every conceivable long-term advantage lay with the authorities. The F.B.I., under the ever-crazier J. Edgar Hoover, worried that Oswald’s reluctance to order an assault meant that the State of New York had, in the words of an internal memo, “capitulated to the unreasonable demands of the prisoners,” the majority of whom, it took pains to note, “are black.” The Nixon White House, addicts of toughness as only timid men can be, became inflamed with the desire for a “tough” solution.

Thompson’s book demonstrates one thing for certain: no matter how badly you think of Richard Nixon, you have not thought badly enough. Here is the President of the United States, on the released tapes, muttering alcohol-fuelled racial imprecations to his yes-men. “You see, it’s the black business,” he says of Attica. And then, after the bloody end, confides, “I think this is going to have a hell of a salutary effect on future prison riots. . . . Just like Kent State”—where four protesting students were gunned down by the National Guard a year earlier—“had a hell of a salutary effect.” What got passed from White House to statehouse to the Big House was the Nixon Administration’s conviction that an insurgency was afoot, and that the Attica takeover was part of a large, well-organized movement toward armed rebellion. Why, given that the great majority of Americans were not merely hostile but vengeful toward the militants, Nixon and his followers came to believe that the country was on the brink of chaos is one of the mysteries of the period. (The most potent reflection of this belief lay in the Watergate affair, where the paranoia of the Nixon White House was so extreme that it launched a campaign of criminal sabotage and espionage against an opposition party already unpopular and divided.)

Inevitably, the paranoia of the powerful met the manic fantasies of the militants. Despite having neither a base nor a popular program, the militants indulged a revolutionary rhetoric of violence—Bernardine Dohrn actually endorsed the murders committed by the Manson family—and they should not have been surprised when the authorities took the rhetoric for reality. Most of the radicals took it for granted that their threat of armed revolution was no more serious than Mick Jagger’s dream of being a street-fighting man. For the prisoners, though, the rhetoric of sixties revolution rang with a special pathos, given the extremity of their situation, as when the inmate orator Herbert Blyden promised the other prisoners that “the world is hearing us! The world is seeing our struggle. . . . And we are the vanguard! . . . Standing here for all the oppressed peoples of the world.” It was still bravado, but in this case brave.

After the early violence—there were incidents of rape and even three murders among the prisoners—the inmates organized themselves into surprisingly efficient security and administrative units, with inmate members of the Nation of Islam essential to this enterprise. (They took specific responsibility for the welfare of the forty-two hostages.) The prisoners also asked, and Oswald quickly agreed, that a committee of “observers” be assembled to witness any negotiations and, presumably, endorse an agreement. This turned out to be the worst possible solution, since the observers, predictably, became the negotiating team, but one that lacked authority to negotiate, experience in negotiation, internal unity, or any procedure to follow. Though made up mainly of prominent radical names of the time, it included Tom Wicker, the Times columnist, apparently because he had written sympathetically about the activist George Jackson, shot dead in a California prison a month earlier.

To get a sense of what was at stake at Attica in fully realized detail, Wicker’s extraordinary account of his four days among the observers, “A Time to Die,” is indispensable. With its intermingling of personal confession and public significance, it is a real masterpiece of the first wave of the nonfiction novel, as good, in its more sober way, as Mailer’s “Armies of the Night.” Wicker turns himself into a character in the drama, seen from the outside as “Tom Wicker”: an archetypal Southern liberal, whose career, superficially in support of civil rights, has involved a steady resistance to racial fact. He becomes every decent liberal who is forced to confront the foundations of his own society—violence directed by whites against a black underclass. The drama of Attica becomes the culminating point in the protagonist’s experience of racial division, expressed with an unsparing detachment that the conventional first person might not have allowed.

In a searching and prescient passage, he suggests that at the heart of the rebellion and the violence it provoked was a whole history of diabolized “blackness.” White fear was the key: “White fear fixed itself upon the literal presence of black human beings. Black people, to whites, were the symbolic representation of the evil in man and thus were also the handy instruments by which white people could hold themselves symbolically innocent of that evil.” Wicker concludes, “The heart of the matter was the fear of blackness.” [cartoon id=”a20175″]

Negotiations tend to be remarkably consistent in form, whether the subject is Iranian nukes or prisoners’ rights. Both sides arrive with obviously ridiculous demands; the act of meeting marks the rejection of those demands but also shows that there is enough good will for a deal to be made; the shape of the agreement swiftly appears; and then, often, the two sides get trapped in tiny details pointing to the tribal instincts that brought the conflict on in the first place. Certainly the negotiations at Attica took this shape. After the clear nonstarters were off the table—in their first manifesto, the prisoners had asked for mass transportation to a “non-imperialistic” country—the potential deal at Attica was arrived at quite quickly: amnesty for the mutineers and a promise to look into their previous petition in exchange for an end to the uprising. But the meta issues of perception remained unsolved: both sides had to give; neither could be seen to fold. The authorities could not be seen to offer an amnesty, even if they were, in effect, offering an amnesty. They offered not to “initiate any criminal complaint . . . of any kind or nature relating to property.” In theory, this left the prisoners liable for crimes that didn’t relate to property, but, as all present believed, this could be taken as a merely linguistic distinction—“something close to amnesty without men like Oswald having to admit that it was amnesty,” as Wicker writes.

At that point, on the third day of the takeover, two bad things happened. One of the guards who had been injured in the original takeover died of his wounds; and the radical lawyer William Kunstler, one of the observers, let the prisoners know that this had happened, which persuaded them, probably wrongly, that any amnesty offer wouldn’t be honored. (A conviction for the killing, given the mob scene at the start, would have been perilously difficult to achieve—trying later, the state failed—and the authorities must have known this perfectly well.) At the same time, the outside pressure to storm the prison was growing, not only from the Rockefeller statehouse but from the families of the correction officers being held hostage. Wicker recalls how, trying to convey information about the hostages to their families and the press, he was, understandably, met by rage. “What about my son?” Steven Smith, the father of Mike Smith, who had been taken hostage in D Yard, said. “We have to go in and bring those people out. Wet-nursing those convicts won’t do it!”

During the night of September 12th, the authorities decided to act. Oswald, still convinced that he could have negotiated a settlement had it not been for the presence of “Maoists” imported from elsewhere in the prison system, drafted a final offer to be read to the prisoners in D Yard, deliberately “not phrased as an ultimatum,” Thompson notes, though that is what it was. The prisoners were not fully aware that the state had come to the end of the line, and, having no chance to act on that understanding, voted down Oswald’s offer (“If they had said, ‘Either release the hostages or we’re coming in shooting,’ ” one inmate observed afterward, the vote might have gone the other way.)

Then the prisoners, sensing a crisis, blindfolded several of the guards and forced them up onto the catwalks, knives visible at their throats. Wicker and Thompson both insist that the blindfolded guards were in little real danger, that the prisoners were bluffing, and that there was no way that they would, in fact, have murdered their hostages. Yet it wasn’t clear that the authorities could have known this, or, really, that the prisoners themselves could have known. To insist that it was mere theatre is to be more certain than anyone can be about how men with knives pressed to the throats of men they have long had reason to hate would act in extremis. Thompson does establish that, on the fateful catwalk, Mike Smith and Don Noble, the guard and the prisoner who had tacitly collaborated on the July petition, “made a solemn pact that if anything happened to either of them they would find the other’s family members and make sure they knew how much they were loved.”

There are sins of omission but there are also virtues of patience. Many of the wisest things we do, in life and in politics, are the things we don’t. Affairs not started, advice not given, distant lands left uninvaded—the null class of non-events is often more blessed than the enumerated class of actions, though less dramatic. One of the things that the Obama Administration gets too little credit for not doing is not intervening when militia types occupied a federal building in Oregon—even though it was a clear case of the government ceding to violent seditionists. It looked weak. But the powerful waited out the powerless, and the affair ended with minimal violence. Time, in such cases, is almost always on the side of the state. Avoiding Atticas and Wacos is not that hard when you are more worried about losing lives than about losing face.

The evidence suggests that neither Rockefeller nor Oswald anticipated that the retaking of the prison would be as brutal as it was—more brutal than anyone could have imagined. Just before ten in the morning, on September 13th, a National Guard helicopter dropped tear gas into the prison yard. Then some five hundred and fifty New York State Police troopers, augmented by more than two hundred sheriff’s deputies—and with the Attica correction officers unconscionably mixed in—entered the prison and mounted the catwalks. Armed with shotguns deliberately loaded with wide-arc buckshot and .270 rifles loaded with unjacketed bullets, of a kind banned by the Geneva Conventions, they started shooting, firing at everything they saw. “The bullets were coming like rain,” one hostage recalled.

The firing was at first mostly indiscriminate, striking hostages and inmates alike. Sometime afterward, it turned into a manhunt: the enraged correction officers and troopers sought out those whom they thought of as ringleaders and executed them. Several of the dead among the leaders were seen alive well after the prison had been retaken. Some were shot as many as twelve times, at close range. One prisoner, William Maynard, told Thompson about trying to carry his friend Jomo, who had been shot several times, to safety. A correction officer ordered him to stop and raise his hands. As Maynard struggled to do so, the officer shot him in his forearms. Then, Maynard recounts, he “loaded up his gun and shot Jomo six times right on top of me and kicked me in the face and says both the niggers are dead and went on.” Even the thirty-nine dead did not end the violence, as the guards forced the inmates to strip naked and then tortured them for most of the rest of the day and night. “Any prisoner who troopers or CO’s considered to be a leader was chalked across the back with a large white X,” Thompson writes. As each one was made to run a gantlet of clubs, the officers would call out, “You want your amnesty? Well, come and get it.” The vengeful officers played Russian roulette with the inmates, and then forced them to drink the guards’ urine. One inmate, Frank (Big Black) Smith, who had been visible in the uprising, lay wounded on a table for many hours, made to clutch a football beneath his chin, and warned that if it dropped he would be killed. When he was released, he collapsed and the guards battered him repeatedly in the groin and anal region as he pleaded for mercy. Mike Smith and Don Noble, hostage and mutineer, were both shot and severely wounded in the takeover, though both survived.

In a curious way, the psychology of the (almost exclusively white) troopers and guards, more than the ideology of the inmates, seems most haunting now, as part of the permanent picture of American fixations. The inmates were doing what anyone would do in their situation: having seen a protest turn unexpectedly into a revolt that was sure to be short-lived, they desperately improvised a way to keep their dignity and be heard, to avoid the worst punishment and get some small reforms. Their occasionally overblown rhetoric was the act of men who, stripped of dignity, try to reclaim it. But the troopers and guards retaking the prison were indulging an orgy of racist violence neither ordered nor wholly explicable. There was no need for them to conduct a massacre to reassert their authority. They had all the firepower; the prisoners were armed only with homemade knives; the guards had control of the yard within minutes. Nor were they, so far as anyone can detect, under direct commands to kill. In an American tale already known fully to Mark Twain, a white ethnic proletariat could distinguish itself as superior only by its ability to be brutal to a still more subordinate class of color. When its members were denied their exercise of this “right,” they turned crazy and violent.

In social terms, what separated the guards from the prisoners was simply skin color and a gun. But pure racial assertion seems to have burned alongside something still more visceral. The horror story repeated most urgently among troopers and guards to justify the violence was that the prisoners had castrated one of the hostages. (They hadn’t.) This phantasm of emasculation was at the heart of the violence. A vast insult had been made to their masculinity, and the only way to avenge it was to kill, shame, and torment the helpless.

Thompson devotes the second half of her book to the efforts of the surviving inmates—and, indeed, some of the surviving hostages—to use the courts to get some recompense for what had been allowed to happen. The system “worked” only late, and lamely, but it eventually recognized that a wrong had been done and damages were owed. Attempts by the state to blame the inmates for the massacre failed in the courts; Big Black Smith eventually got a settlement. It should be said that it took thirty years. It should also be said that, in the history of mankind, only liberal democracies have ever done such things—held conscientious post-hoc court proceedings in which the state arraigns itself for its own injustices. The Tiananmen Square protesters are still waiting for their day in court, much less their recompense.

The uprising at Attica was, in the not very long run, one of the things that stopped prison reform dead in its tracks. The fear that Attica generated among prison administrators and the American public pointed the way to the supermax and permanent solitary, emboldening the most reactionary forces in the government to begin the program of mass incarceration that remains the moral scandal of our country. Prison reform doesn’t happen in response to violence in prisons. It happens in response to awakened consciences about the violence of imprisonment.

In broadly democratic countries, violence frightens the “masses” as they really are—i.e., the majority of citizens—much faster than reformers can persuade them to change. Nonviolent episodes of protest are extraordinarily efficient in creating social change in democratic states; violent episodes undo the good work of change with astonishing rapidity. As the Princeton political scientist Omar Wasow has shown, in an important new empirical study, the spectacle of urban violence probably did get Richard Nixon elected. (“In public opinion polls between 1950 and 1980, a majority of subjects identified ‘civil rights’ as the most important problem facing America at the same time that nonviolent black protest activity peaked,” he observes, “and, likewise, responded with ‘law and order’ when black-led violent protests were most active.”)

Impassioned liberals are not “centrists.” They are the radicals of reality, who believe in reason and reform not because they are too timid for revolution but because they are too ambitious for change. The notion that you need both a violent wing and a moderate one to bring about social change is the truly timid, “centrist” argument, designed to appease all the forces on “your” side rather than confront the facts about what works and what does not. We have seen in recent weeks how isolated anti-police incidents can, among the easily panicked, obliterate the memory of decades of dwindling violent crime. The panicked people will almost always be the majority—they are, in effect, the guards and their families, waiting outside the prison—and we cannot rhetoric them away. The Rockefellers, the “one per cent,” may indeed be served by fear and panic, but they are served because there are fifty-one per cent ready to let panic persuade them.

Evil exists. Prisons, punishment, segregation, exile: even the most enlightened state needs some way of sorting the truly dangerous from the sadly criminal and the sadly criminal from the merely unlucky. I eventually discovered that the erudite inmate who arraigned me for not attending to my Foucault had committed the most horrible crime of which I ever hope to hear. (In the midst of a custody battle with his estranged wife, he called her on the phone, had her hold the line, and then murdered their two daughters while she listened and they pleaded.) No sane society can survive if the state, however fair, however free, cannot enforce order and hold a monopoly on legitimate violence.

Prisons are the bad conscience of the liberal imagination not because they show the true, oppressive face of the liberal state but because they expose how fragile liberal proceduralism can be. The liberal democratic state sublimates revenge, just as it does heroism and altruism, into the integrity of institutions. No one is expected to be Jesus; no one is asked to be. If you do your job—at the D.M.V. or as a C.O. or a pfc.—equity and fairness are, achingly, protected. These institutional safeguards seem robust when they are in place, so much so that we mock them as “bureaucracy.” When the institutional integrity breaks down, catastrophes happen. Almost unknown to themselves, the inmates at Attica had heartbreaking, unstated confidence in the integrity of the institution: they knew that they would lose, and that they would have to go back to their cells, but they never thought that the officers of the state would come in with shotguns and explosive bullets to kill as many of them as they could. The line from the politician Herman Badillo that Wicker took for his title, “A time to die,” became unsought prophesy.

At moments of crisis, the integrity of our institutions turns out to depend, to an alarming degree, on the fragile integrity of individuals. Prisons are our vulnerable point because they reveal, under pressure, that procedures designed to insure justice have to be constantly reanimated by human will. The strangest and most gruesome scene in Thompson’s book is among the most heroic. On the day after the killings, the local medical examiners, John Edland and Richard Abbott, overworked at the best of times, had the nightmarish task of autopsying the bodies of dead inmates and hostages alike. They had directions, more or less explicit, to stick with the official story and tell the set tale—that the inmates, in a maximally brutal fashion, had killed the hostages. And yet they did their job. At 3 p.m., Edland stepped forward and told the world the truth: that all the dead had been killed by the gunfire of the advancing troopers and guards. It is an act of historical imagination to have recovered their unostentatious courage. It also requires, for us to see such acts as heroic, getting past the language of masculinity and assertion that had entrapped both the prisoners who took hostages and then the guards who would kill them. To call men of smaller official obligations, carried out in the face of intimidation, heroes is, perhaps, to change the meaning of what we mean by heroism. It may be time for that, too. ”

Further Readings

The Guardian: New Attica documents reveal inmate accounts of torture after 1971 prison riot

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History of Bail Bonds

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The Poor Go To Jail And The Rich Make Bail In America | AJ+

Moms Behind Bars: How Cash Bail Is Keeping Women In Jail | AJ+

Current Bail Bonds System

  • What is bail?
    • Releasing suspects from custody before hearing, on payment of money or pledge of property to the court
      • which may be refunded if suspects return to court for their trial
    • Originally designed as a right to pretrial freedom
      • Become a means of control and extracting money from people who are arrested, and jailing those who cannot pay
    • $14 billion in bonds that are issued each year, with around $2 billion in profit
  • Types of bail
    • Surety Bond, Recognizance, Unsecured bail, Percentage bail, Citation Release, Property Bond, Immigration Bond, Cash Bong, pretrial Services, combinations, conditions of release, protective order, etc
    • The surety bond is the most common in the US
      • Commercial bail bondsman, covers the bail for 10% non-refundable fee
      • Majority of bail bondsman are run by large global insurance companies
        • 5 year period in Maryland, families of defendants proven innocent paid $75 million in bail
  • Can’t afford Bail?
    • 70% of people in jail have yet to be convicted of a crime
      • They just couldn’t pay the bail
      • Around a half million people at any given time
    • 1990-2009, people arrested & required to post money bail grew from 37% to 61%
    • Many poor and low-income people stay in jail until their cases are resolved
      • Most arrests and detention do not lead to a conviction with a sentence of incarceration
        • The only incarceration most people end up serving is the pretrial detention
        • Average 4 months while facing a felony charge and 1 month for a misdemeanor charge
      • Not affording bail can have drastic effects on employment, rent, family, health, etc.
  • Rest of the world?
    • 2 countries allow companies to operate for-profit bail operations are the US and Philippines
    • “posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world.” Adam Liptak – New York Times

Discrimination in the Bail System

  • Affordability
    • Average black men/women ages 23-39 made $568 to $900 a month
    • The median bail for a felony arrest is $10,000
  • Racial Disparities
    • Black/Hispanic defendants generally received disproportionately high bail charges
      • and were less likely to be released with no bail payment
  • Impact of Not affording Bail
    • Attorney’s ability to defend a client is greatly hampered when their client is detained during pretrial
      • With limited access/visiting hours
    • Studies have shown there is an implicit bias with jurors and judges for defendants who are in jail during their trials
      • Often result in more convictions and longer sentences

Source: Prison Policy Initiative

New Orleans Bail System

  • Money bail system takes $6.4 million from New Orleans families yearly
    • Over $1 million going to the court
    • $227,000 to each of three other agencies
      • (the sheriff, district attorney, and public defender offices)
    • $4.7 million to commercial bail bond companies
    • “Beyond limiting defendants’ freedom and costing them money, these revenue streams present an obstacle to reforming the system.” Vera Institute of Justice
  • 84% of the $6.4 million paid in money bail is paid by black people
    • People arrested in New Orleans are often poor and disproportionately black
      • Black people are arrested at 2.5x the rate of white people
      • Black people are less likely to be able to pay the price set for their freedom
        • average income for black households is $25,324
        • while for white households it is $67,884
      • 87% of people in jail are black
  • In 2015 over 500 people in jail every day because they couldn’t afford bail
    • Taxpayers pay more than $6 million yearly for jailing these 500 people a day

The Case of Kalief Browder

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  • Kalief Browder sent to Rikers Island at 16
    • Accused of stealing a backpack, little evidence
    • Bail set at $3,000 but family couldn’t afford it
      • so he was imprisoned at Rikers Island
  • 3 years in New York City jail complex
    • Never stood trial or found guilty of any crime
    • Nearly two of them in solitary confinement
  • Released from case lacking evidence
    • 2 years after he was release, committed suicide
      • Possible result of mental and physical abuse sustained in prison

History of Bail Bonds

“The system of wealth-based pretrial detention is rooted in the history of racial and economic exploitation, and extracts scarce dollars from families who can least afford it… In short, slavery eroded the presumption of innocence for whole swaths of people, created a bad set of financial incentives around the use of jail, delegated police powers to slave patrols and bounty hunters, and normalized paying money in exchange for human freedom.” Vera Institute of Justice

  • Colonial Bail
    • Ensure pretrial freedom for propertied white men through “pledges to pay” if they didn’t return to court
    • Slave states created first fees for slaves caught by slave catchers who expected fee when dropping at jails
      • Jails in return created fees for owners to pick up the slaves
      • Failure to pay fees allowed jails to use slaves on public works projects until the owner pays the fees
  • Black Codes and Jim Crow

    • Black codes/vagrancy laws increased unjust arrest of blacks forced to work in convict leasing systems
    • Many states increased price of bails on black people to increase black slaves in the convict leasing system
  • Taylor vs. Taintor (1872)
    • Supreme Court legalized Bail Bondmans using bounty hunters to mirror the power of slave catchers
    • By the late 19th century, shift from personal guarantees to money bail established the US in commercial bail bonding
  • 20th Century Bail System
    • Predatory arrests/abuses of pretrial detention became flashpoint in struggles for racial equality/justice
    • As Mass incarceration began in the 1970’s, bail bondsmen and gov agencies reaped huge profits from bail

“The over-use of policing, like the justifications for keeping people locked up before their trial, continued to be fueled by racist myths about black people as inherently dangerous and criminal.” Vera Institute of Justice

Global Citizen: Here’s the Problem With the Cash Bail System

Bail Bond Reform

“The system of wealth-based pretrial detention is rooted in the history of racial and economic exploitation, and extracts scarce dollars from families who can least afford it… In short, slavery eroded the presumption of innocence for whole swaths of people, created a bad set of financial incentives around the use of jail, delegated police powers to slave patrols and bounty hunters, and normalized paying money in exchange for human freedom.” Vera Institute of Justice

  • Colonial Bail
    • Ensure pretrial freedom for propertied white men through “pledges to pay” if they didn’t return to court
    • Slave states created first fees for slaves caught by slave catchers who expected fee when dropping at jails
      • Jails in return created fees for owners to pick up the slaves
      • Failure to pay fees allowed jails to use slaves on public works projects until the owner pays the fees
  • Black Codes
    • Black codes/vagrancy laws increased unjust arrest of blacks forced to work in convict leasing systems
    • Many states increased price of bails on black people to increase black slaves in the convict leasing system
  • Taylor vs. Taintor (1872)
    • Supreme Court legalized Bail Bondmans using bounty hunters to mirror the power of slave catchers
    • By the late 19th century, shift from personal guarantees to money bail established the US in commercial bail bonding
  • 20th Century Bail System
    • Predatory arrests/abuses of pretrial detention became flashpoint in struggles for racial equality/justice
    • As Mass incarceration began in the 1970’s, bail bondsmen and gov agencies reaped huge profits from bail

“The over-use of policing, like the justifications for keeping people locked up before their trial, continued to be fueled by racist myths about black people as inherently dangerous and criminal.” Vera Institute of Justice

Now This: Reforming The Cash Bail System In This Country

Vox:  Why fixing the US bail system is tricky

DC Pretrial System

  • 1992 D.C. removed bail
    • Excluding dangerous and “high risk of flight” defendants
      • Most defendants released pre-trail
      • no one is locked up on a criminal charge because of an inability to pay
    • Progress but not perfect system
      • 14,000 people a year in D.C. Superior and U.S. District courts (2015 data)
      • In the past 5 years
        • 90% of defendants released weren’t arrested again before cases resolved
        • Of the 10% who did get in trouble again, the vast majority are not rearrested for violent crimes

image21.png

Wikipedia: Bail in the United States

History of bail in the United States

Colonial and early America

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those that had not already done so enacted their own versions of bail law.[3]

Section 9 of Virginia‘s 1776 Constitution states “excessive bail ought not to be required…” In 1785, the following was added, “Those shall be let to bail who are apprehended for any crime not punishable in life or limb…But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail.” Section 29 of the Pennsylvania Constitution of 1776 states that “Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate.”[4]

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution, on which Samuel Livermore commented, “The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail…?”[5] As of 2009, the Supreme Court has not decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.[6]

The Sixth Amendment to the Constitution, like the English Habeas Corpus Act of 1679, requires that a suspect must “be informed of the nature and cause of the accusation” and thus enabling a suspect to demand bail if accused of a bailable offense.

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge‘s discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.[7]

The Judiciary Act states, “Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”[7]

Bail Reform Act of 1966

Although the Eighth Amendment prohibits excessive bail, there is no inherent Constitutional right for a defendant to be offered bail in the first place.[8] In 1966, Congress enacted the Bail Reform Act of 1966, which changes that by giving non-capital defendants a statutory right where a Constitutional right is lacking, to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect’s danger to the community, only in capital cases or after conviction is the judge authorized to do so.[9]

The Bail Reform Act of 1966 marked a major overhaul of the bail system in the United States, forcing courts to not needlessly detain defendants. It requires that decisions consider family and community ties, employment history, and past record of court appearances. However, for those defendants who are unable to raise the required money despite demonstrating they are a minimal flight risk, the Act provides little protection. It also mandates that judges not consider the perceived threat a defendant would be to his or her community if granted pretrial release. The 1966 Act also placed greater value on lawyers, because it required lawyers to produce more information about an arrestee in the same short amount of time before a bail hearing.[10]

The 1966 Act was particularly criticized within the District of Columbia,[11] where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.[12]

The Judicial Council committee recommended that, even in non-capital cases, a person’s dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.[13]

In 2008, the New York Times wrote “posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world”.[11]

Bail bond programs

The 1960s saw the rise of volunteer bail reform projects that introduced new pretrial services programs. One of the most notable bail reform projects was the Manhattan Bail Project.

Formed in 1961, the project was led by the Vera Institute of Justice with the theory that defendants with prominent ties to the community, such as a stable occupation or long marriage, could be confidently released on the strength of their promise to return.[14] This concept was later termed release on recognizance (ROR). The New York city government eventually assumed oversight of the program, although the Vera Institute of Justice design new ROR systems after defendants failed to appear. Legal professional Jerome McElroy notes that today, the Criminal Justice Agency (CJA) continues to provide ROR recommendations and oversee the status of released defendants.[14]

Another successful program was the 1968 VISTA, or Volunteers in Service to America, bail bond program in Baltimore. One of the VISTA directors, Padraic Kennedy, commented that the program was successful because it used a mathematical system of personal recognizance so that defendants would reappear.[15] The system was organized around a point-based marker, where defendants earned points for positive merit and were deducted points for poor behavior. Kennedy noted that the program was capable of becoming permanent legislation, but the status of VISTA is unknown as of today.

One project with mixed results was a research program that tested the effects of a pretrial release agency and deposit bail in New York City. Researchers Roy Flemming and Thomas Uhlman analyzed the program and commented that reform is defined by a supportive constituency and the oversight of court judges.[16] The two noted that in the case of the New York City project, the judges poorly executed deposit bail and the constituency misinterpreted bail reform as a type of preventative detention. Flemming and Uhlman concluded in a joint article that the initiative highlighted an important dilemma in that reformers need to solve the fundamental structures behind bail as opposed to specific parameters of bail law.

Current federal law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.[17]

18 U.S.C. § 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

The Bail Reform Act of 1984 is the most recent landmark piece of legislation passed on bail reform, an issue often unnoticed. This act served as direct refutation and override to the previous Bail Reform Act of 1966, which decreed that judges must not consider the perceived threat a defendant may be to his or her community in the determination of bail. This faced much criticism because defendants would sometimes commit crimes while waiting for trial, and many fought for the reversal of this piece of legislation. The 1984 Bail Reform Act did exactly that, stating that a judge must order pretrial detention if a defendant was deemed a risk to his or her community.[18]

The impacts of the Bail Reform Act of 1984 have been largely debated and often difficult to precisely measure. One study on the Eastern Federal District of California found that average detention length and the overall detention rate has remained relatively unchanged before and after 1984, the group most affected by the law are repeated drug offenders, and the rates of pretrial crime and failure to appear on the trial date have stayed relatively low since the law’s passing.[19]

In 1987, the Supreme Court upheld the 1984 Act’s provision providing for pretrial detention based on community-danger in United States v. Salerno.[20] United States v. Salerno serves as precedent that pretrial detention without bail on the grounds of an arrestee’s “dangerousness” is constitutional.[21]

In 2006, the Adam Walsh Amendments (AWA) to the Bail Reform Act of 1984 was passed, in response to a highly publicized case of sexual abuse and murder of a minor. The amendments state that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency. The AWA are regarded as an attempt by the federal government to curb sexual abuse, though its efficacy is debated. The AWA created mandatory pretrial release conditions, which many district courts have found to be unconstitutional. Critics argue that Congress should change the amendments so that the defendant has at least a chance for rebuttal against release conditions that include tracking and monitoring.[22] The critics’ arguments are based on the idea that the amendments violate defendants’ constitutional rights and go against the Bail Reform Act of 1984’s original intentions and principles by stripping defendants of their rights without significantly benefitting the public. Critics instead propose that the mandatory pretrial release requirements of the AWA amendments are revised to become rebuttable, rather than obligatory, in a court of law so that a defendant may argue and attempt to prove that the strict pretrial release conditions are unnecessary for his/her case.[23]

Bail may also be denied if the funds used to post the bail likely came from an illegal source. If the source of the funds is illegal, it is deemed less likely that the posting of such funds as bail will ensure the defendant’s appearance in court, and hence bail may be denied. The court may order a hearing called a Nebbia hearing to determine the source of the prospective bail funds before making a decision on bail.[24]

State laws

Bail laws vary from state to state.[2] Generally, a person charged with a non-capital crime can be expected to be granted bail. Some states have enacted statutes modeled on federal law that permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.[25] Since 2014, New Jersey and Alaska have enacted reforms that have abolished cash bail for the majority of cases. These states now give defendants a supervised release or mandatory detention, with the conditions determined with a risk assessment.[26][27] California plans to eliminate cash bail entirely as of October 1st, 2019, replacing it with a court-determined risk assessment of the individual defendant.[28]

As of 2008, only four states, Illinois, Kentucky, Oregon and Wisconsin, had abolished commercial/for-profit bail bonds by bail bondsmen and required deposits to courts instead.[11] As of 2012 Nebraska and Maine in addition to the aforementioned Illinois, Kentucky, Oregon and Wisconsin prohibited surety bail bonds.[29][not in citation given]

Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule.[30] These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. For example, California uses a bail schedule system, and judges in state court are directed to refer to the bail schedule while also taking into account the defendant’s criminal record and whether the defendant poses a danger to the community.[31] Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.[32]

In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less.[33] In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.[34]

Some scholars have questioned why certain states do not implement certain bail reforms, but chose to enforce others. Kyle Rohrer of the University of Oregon School of Law answers this question in his paper published in the Oregon Law Review. He finds that bail reform is difficult to put into place because many judicial officers do not want to take the risk of releasing an arrestee pretrial because the defendant may never show up for his trial or, even worse, commit an additional crime while on pretrial leave. If this were to happen, the public would blame the judiciary officer, thus making judiciary officers reluctant to spearhead bail reform. Rohrer furthers; however, that the need to create vacancy in overcrowded prisons outweigh the flight risks of arrestees out on bail, he believes that states should work to employ bail reform to create a more efficient prison system.[35]

Types of bail

In the United States there are several forms of bail used, which vary from jurisdiction. “The dominant forms of release are by surety bond, i.e. release on bail that is lent to the accused by a bond dealer, and non-financial release.”[36]:2

  1. Surety Bond: By a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially states that as of 2012 prohibited surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine[29] – may demand a certain amount of the total bail (typically 10%) be given to the court, which is known as surety on the bond and unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond.[37] In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee’s return to court.[29]
  2. Recognizance (ROR): When an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an “unsecured appearance bond” or release on one’s own recognizance.[29]
  3. Unsecured bail. This is a release without a deposit but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail.[38]
  4. Percentage bail. The defendant deposits only a percentage of the bail’s amount (usually 10%) with the court clerk.[38]
  5. Citation Release also known as Cite Out. This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.[29]
  6. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.[29]
  7. Immigration Bond – used when the defendant that been arrested is an illegal immigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE).[39]
  8. Cash – typically “cash-only,” where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.[40]
  9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer, similar to a probation officer. In most cases defendants have no financial obligation to be supervised. The Pretrial Services Programs can include phone or in-person check-ins, drug testing, court date reminders, and any other condition the judges deems necessary.
  10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
  11. Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, regular check-ins with a Pretrial Services Program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.[41]
  12. Protective order, also called an ‘order of protection’ or restraining order – one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.[24][42]

Criticisms of bail

Bail Reform is the concept arguing that current bail policies and legislature need to be revised and reevaluated due to its discriminatory and ambiguous nature.[43] Current bail policies tend to be discriminatory towards defendants who come from a low socioeconomic background. Current bail policies tend to be ambiguous because laws are open to interpretation thus allowing for many unjust exceptions where economic privilege overrides policy even when a defendant has a high perceived flight risk.[44] Today, the bail system relies on the security of money instead of people. Although the bail system is supposed to be based on a defendant’s possibility of flight, its discriminatory and ambiguous nature proves that it is not the most effective nor just system. The recognition of these inconsistencies in the system invoke consideration for alternative solutions.[45]

Some argue that while the original purpose of bail was to ensure an arrestee’s appearance in court, it currently does not fulfill that purpose, and that the main result of the flawed implementation of bail in modern society is increased incarceration rates of inexperienced and first-time offenders. In order to solve these issues, reformists argue that the bail system must be revised so that those who are known to be able to appear voluntarily at their trial are released regardless of their financial situation, and that additional steps should be taken to decrease the flight risk of arrestees out on bail.[46]

Moreover, a court’s decision to grant or deny bail has a direct impact on the outcome of a criminal case. Incarcerated defendants are significantly less able to help in his/her defense for freedom in comparison to someone on bail who is unrestricted or perhaps conditionally restricted to home confinement. They are also unable to arrange meetings with suspected witnesses, and/or provide their attorney with important information about the case, thus creating logistical barriers. Furthermore, the paper finds that because more defendants are now less likely to be allowed a pretrial release, the prosecution’s bargaining position is enhanced in plea negotiations, where incarcerated defendants are promised time off in exchange for their cooperation or plea of guilty.[47] People that are denied bail are more likely to plead guilty in thoughts that they will lose at trial. Those denied bail are often sentenced to longer amounts of time than those who are granted pretrial release.[47] Additionally, incarceration already has adverse effects resulting in many defendants’ inability to maintain employment, access mental and physical healthcare, and engage in constant communication with their family and friends.[43]

Bail Reform is also grounded on the current state of commercial bail establishments in which there exists both benefits and limitations. Some benefits include protecting the presumption of innocence, relieve jail overcrowding, helps the courts manage case overloads, and providing some (very little) cost-saving benefits for taxpayers. Some limitations include discrimination against the economically disadvantaged, abuse of power, and a rising risk of wrongful imprisonment. Despite various reform effort, the commercial bail industry continues to thrive, making profits of $20 million in surplus profit.[48] But, the bail bonds industry has not survived because it is socially efficient, rather because the people who are making public policy decisions are heavily influenced by those profiting from the bail bonds industry. The bail bonds industry prioritizes capitalism and privatization over justice and support for defendants.

Many critics propose that the prison-industrial complex should switch to a more strict and fair system that is based upon the risk of pre-trial release, instead of being based upon resources. Current bail policies fall short of maintaining individualized and equal judicial determination of bail, are very costly to the defendant, and, in general, are of little benefit to the greater public.[49] Some critics believe that the entire monetary bail system should be replaced with release of recognizance, which allows the accused to be released after a signed promise to return and be present at trial.[50]

Samuel Wiseman, a J.D from Yale Law School and a critic of the Bail Reform Act of 1984, argues in a paper published by the Fordham Urban Law Journal that the Excessive Bail Clause of the Eighth Amendment protects criminal defendants from governmental discrimination and coercion and that the Bail Reform Act of 1984 removes these protections. Wiseman continues by stating that the Bail Reform Act of 1984 is unconstitutional because it allows judicial officer to consider certain individual characteristics of a defendant which the Eighth Amendment asks not to consider. Wiseman concludes his article with a statistical analysis of arrestees out on bail before and during the passing of the Bail Reform Act of 1984. He finds that since the passing of the Bail Reform Act, the number of pretrial detentions has risen nearly 40%.[51]

On the other hand, other critics call for a stricter enforcement of the Bail Reform Act of 1984. These critics are generally advocating for more mandatory detentions for arrestees awaiting trial. According to the Bail Reform Act of 1984, for serious crime offenders, detention is mandatory unless arrestees meet the exception of not being labeled a flight risk by a judiciary officer. In an analysis of the thirteen appellate courts that sit below the Supreme Court by Mani Walia published by St. John’s Law Review, Walia concluded that in eight of these courts decisions, judiciary officers take advantage of the exception clause and give more lenient pretrial releases than they should in an effort to promote their view of fair results over the law.[52]

Bail determination

Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to his or her community. California Penal Code section 1269b provides an example of the factors courts are directed to consider.[53]

In reality, bail determination may also take into account extraneous factors. Some studies have found judicial bias, where a defendant’s race, class, or gender affect bail.[54] A 1984 study found that when judges were given specific policy guidelines, people with similar convictions were given similar bail amounts.[55] There is concern that great variability across judges yields variability in decisions for identical candidates. The reason for such disparity is that different judges may assign different weights to factors such as flight risk or community ties.[56] This is an oft cited reason as to why bail reform is necessary, as ambiguity in the bail decision making process may lead to unfair and disparate outcomes.

Even for bail determination based on the danger posed by the defendant to his or her community, critics note that the government’s definition of “dangerous” defendants who may not be allowed to go on bail have a tendency not to be dangerous or avoid their hearings at all, suggesting that the definition is too wide and needs to be reformed.[55]

Discrimination in bail decisions

There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained (hired) counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and prison overcrowding.[57] Many prison systems face overcrowding in the modern area of mass incarceration, and setting unusually low bails appear to be the judge’s way of relieving pressure for local prisons.

The current American bail system has also been accused of causing the mounting disparity between the treatment of white collar and blue collar criminals, most popularly seen in the widely publicized cases of Paul Manafort, Bernie Madoff and Marc Dreier. Madoff and Dreier, despite being huge flight risks, were granted bail simply because they had the money to pay the court exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. The result is that poorer citizens deemed even less of a flight risk are held in often terrible conditions, while high flight-risk white collar criminals are allowed to be confined in the comfort of their own homes. Bail reformists claim that this is a direct violation of the Fourteenth Amendment’s Equal Protection Clause, which states that laws must be applied against all citizens equally.[58]

Moreover, bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males.[59] This can be attributed to internalized racial prejudices among judges and bail officers, and also to how current bail policies fail to protect them from such discrimination. When combined with the bail system’s favor towards the wealthy, it is found that people of color of low socioeconomic backgrounds suffer most in the justice system, a further violation of the Equal Protection Clause.

Test data from the bail bond market in New Haven, Connecticut, also shows the existence of discrimination based on race when bail is set for minority defendants. Specifically, black and Hispanic defendants generally received disproportionately high bail charges. In order to fight against racial discrimination, some suggest a “color-blind” bail solution that sets bail based on the average offender, regardless of race or gender.[60]

Furthermore, many advocates for placing harsher restrictions on bail enforcement and decreasing the amount of detainees out on pretrial release point to the argument that allowing bail greatly increases the risk of allowing arrestees out on bail to skip their trial. This tendency for skipping trail is known as a flight risk. However, a study conducted by Gerald R. Wheeler and Carol L. Wheeler published by the Review of Policy Research finds that this is hardly the case. The article focuses on bail reform in the United States and specifically targets the relationship between being released on bail and the flight risk of arrestees not showing up to their trial. Since many opponents of bail reform during the time believed that allowing bail would result in a decrease of arrestees showing up for their trial dates, this article tests that belief by analyzing randomly selected felony cases in Houston, Texas. The paper concluded that the flight risk of arrestees out on bail was extremely minimal, as only 2% of all defendants on pretrial leave avoided their trial date. The study also concluded that the effect of pretrial status, whether a criminal was detained or not before their trial, did not have an effect on the ultimate conviction.[61]

Bail and conviction

Attorney access

An attorney’s ability to defend their client is greatly hampered when their client is placed in pretrial detainment. Jailed defendants are difficult to work with due to restricted access and visiting hours, and have minimal time with their attorneys when compared to those who are granted pretrial release. This lack of coordination between the attorney and defendant makes it impossible to craft a strong defense, given that the defendant will often lack witness coaching.[57] Defense attorneys that specialize in criminal trial have gone as far as to say that pretrial detention limits a defendant’s ability to exercise his or her constitutional rights.[62]

Juror bias

In 2014, a study done over 975 New Jersey cases tracked a defendant’s ability to set bail and the final outcome of their trial, and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to.[54] There have also been other studies that indicate that pretrial detainment sets the odds against the defendant, reducing their chance of acquittal. Attorneys attest that jurors are almost always aware of defendants’ bail status, which creates an implicit bias against their client.[62]

Domino effect

Bail’s purpose is to ensure that a defendant does not abscond, and it was never intended to influence the outcome of the trial or be an indicator of the defendant’s guilt. It has been argued that bail decision outcomes’ clear influence on the trial outcome is a perversion of the justice system, creating a domino effect that negatively impacts those that are poor and powerless. Lacking resources leads to pretrial detainment, which in turn can lead to a guilty conviction.[63]

Long-term impact

Youth

Pretrial release conditions placed on youth are largely ineffective, often increasing criminal behavior by means of violating those conditions. This means that bail conditions ultimately create a cycle of criminality, trapping juveniles into the prison system rather than helping them escape it.[64] This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the school-to-prison-pipeline.

However, in the VISTA bail bond program in Baltimore, success was achieved particularly within the demographic of adolescents and young adults ages sixteen to twenty.[15] This suggests that while youth are more susceptible to negative consequences of pretrial release conditions, they are also more receptive to positive bail reform programs.

Monetizing justice

The problem of the widest scope and currently the most pressing is the monetizing of the justice system, where the growing integration of the justice and free market systems will have far ranging effects. Academics have predicted that the current commercial bail system will eventually expand to probation and parole. Under this framework, inmates would be granted early release/parole in the same manner as bail, by putting up collateral as insurance for their good behavior. For example, the conservative, powerful, yet secretive organization American Legislative Exchange Council (ALEC) has already managed to push these changes into existence in several states across the America. The tight industry based network between bondsmen, courts, and law enforcement has already bred much corruption in the bail system, and the inclusion of parole would render the justice system entirely commercialized, leaving it rife with inequality.[65]

Commercializing justice also opens the door toward exploitation of those dealing with the court system, and bail bondsmen have become the prime example of this. Having created an extremely lucrative business based on the indigent’s desperation and inability to pay bail, they are a consequence of the free market merging with the judiciary branch.[59]

Economic perspectives

Another way to approach the issue of bail reform is to look at not from a humanitarian but economic perspective. Using data from the 1981 Philadelphia Bail Experiment, a mathematically rigorous cost-benefit analysis of bail-setting was conducted, to approximate the probabilities of defendants committing crimes or absconding while on pretrial release. This study used the economic definition of socially optimal, defined to be the outcome which results in the minimum incurred cost by society. The result of the analysis revealed that the socially optimum value at which to set bail is much higher than the current average.[66] In fact, the value is closer to what average bail was before the Bail Reform Acts of 1966 and 1984, which means that the best course of bail reform would actually be regressive in nature, reverting to older bail policies. Additionally, the Adam Walsh Amendments to the Bail Reform Act of 1984 have been considered excessive in terms of both the way they treat defendants and the cost they burden the government with.[22]

Reform

The alternatives to cash bail include:

  • Release without bail: Sometimes known as “release on recognizance” (ROR). The defendant is released with a pledge to appear in court. However, the defendant is required by law to appear in court and to not interfere with the judicial process.
  • Pretrial supervision: The defendant is released but subject to restrictions (such as electronic monitoring or house arrest).
  • Compulsory detention: The abolition of cash bail has led to more (but not most) defendants being detained without an offer of release through posting bail (if they could afford it). This is reserved for serious crimes, which would normally result in bail being too high for the defendant to pay unless they were wealthy.

Abolition of cash bail

As of August 2018, two states have abolished cash bail for the majority of court cases. In 2014, New Jersey enacted reforms that took effect on January 1, 2017. All criminal defendants are now assessed with a point-based system to determine whether they should be released from custody, held in jail until trial, or subjected to alternative procedures (including house arrest, electronic monitoring, and, in limited cases, cash bail) to ensure public safety and the defendant’s appearance in court.[26] Alaska adopted a similar reform in 2016, which took effect in 2018.[27]

Other proposals

Some reform proposals focus on not abolishing cash bail but reforming it. These include giving guidelines to judges or mandatory instructions to make sure cash bail is set in a more consistent way.[56] Mandeep Dhami The second solution, however, presents a problem in that it reduces the justice system’s flexibility, and loses humanity. Many reformists prefer a more individualized bail procedure, citing the importance of considering circumstances and how no set of guidelines can adequately and fairly address every possible scenario.[22] Fixing outcome disparity while retaining judicial flexibility remains a paradox that bail reformists have yet to solve, and is a point where many activists diverge. Another solution is to pass federal laws. This would mean amending the Bail Reform Act of 1984 to explicitly require courts to take into account a defendant’s economic status.[58]

In states where no reform has yet been acted, some organizations provide not-for-profit bail bonds to allow poor defendants to be released pre-trial.

A more radical proposal is to abolish pretrial detention and restrictions entirely. This proposal is closely tied to the prison abolition movement.”

NY Times: Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide

“Kalief Browder was sent to Rikers Island when he was 16 years old, accused of stealing a backpack. Though he never stood trial or was found guilty of any crime, he spent three years at the New York City jail complex, nearly two of them in solitary confinement.

In October 2014, after he was written about in The New Yorker, his case became a symbol of what many saw as a broken criminal justice system. Mayor Bill de Blasio cited the article this spring when he announced an effort to clear the backlogs in state courts and reduce the inmate population at Rikers.

For a while, it appeared Mr. Browder was putting his life back together: He earned a high school equivalency diploma and started community college. But he continued to struggle with life after Rikers.

On Saturday, he committed suicide at his parents’ home in the Bronx.

Jennifer Gonnerman, the author of the article in The New Yorker, said in an interview on Monday that it appeared he was never able to recover from the years he spent locked alone in a cell for 23 hours a day

Once out of jail, Ms. Gonnerman said, “he almost recreated the conditions of solitary,” shutting himself in his bedroom for long periods. “He was very uncomfortable being around people, especially in large groups,” she said.

Mr. de Blasio’s administration in December did away with solitary confinement for 16- and 17-year-olds, citing the damaging effects that prolonged isolation can have on their mental stability.

In a statement released on Monday, the mayor said that “Kalief’s story helped inspire our efforts” at Rikers.

“There is no reason he should have gone through this ordeal,” he added, “and his tragic death is a reminder that we must continue to work each day to provide the mental health services so many New Yorkers need.”

Kalief Browder, 22, hanged himself at his parents’ home in the Bronx over the weekend.CreditZach Gross

Ms. Gonnerman said she was drawn to Mr. Browder because he was able to speak about what he had been through with unusual insight. She said before he agreed to go public with his story, he insisted on finishing his high school equivalency diploma. “He wanted to show that he had accomplished something before he entered the spotlight,” she said.

In jail he had tried to commit suicide several times. He told Ms. Gonnerman that he was repeatedly beaten by correction officers and fellow inmates, but she said she did not realize the extent of the abuse until she watched security videos showing him being knocked to the ground by an officer and attacked by inmates.

Throughout, he insisted on his innocence, refusing several offers from prosecutors to take a plea deal, including one that would have allowed him to be released immediately.

Ultimately, prosecutors dropped the charges. In the course of the three years Mr. Browder was being held, they lost contact with their only witness.

At the end of the article, Mr. Browder, who was the youngest of seven children and nicknamed Peanut by his family, described being unable to rid himself of the fears that had consumed him in jail. He said he was afraid of being attacked on the subway. And before going to sleep at night, he checked to make sure every window in the house was locked.

There were some good moments in the two years after he was released. An anonymous donor offered to pay his community college tuition. His story attracted the attention of celebrities like Jay Z and Rosie O’Donnell, who invited him onto “The View” and gave him a MacBook Air laptop computer. Senator Rand Paul, Republican of Kentucky, talked about him in campaign speeches. (Mr. Paul, who is running for president, expressed condolences to Mr. Browder’s family on Twitter on Monday.)

But Mr. Browder’s mental health deteriorated, Ms. Gonnerman said. He became paranoid and last Christmas was hospitalized on a psychiatric ward at Harlem Hospital Center. She wrote in an article on The New Yorker’s website on Sunday that he had thrown out his television because he said he feared it was watching him.”

Vera: From Bondage to Bail Bonds: Putting a Price on Freedom in New Orleans

Putting a Price on People’s Freedom

Bail in Louisiana was once a system that enforced a constitutional right to be free after arrest and before a determination of guilt or innocence. Over time, it has been transformed into a money bail system in which that freedom is conditioned on the ability to pay money up front. What was originally designed as a right to pretrial freedom has become a means of control and extracting money from people who are arrested, and jailing those who cannot pay.

The money bail system takes $6.4 million from New Orleans families each year, with over $1 million going to the court, $227,000 to each of three other agencies (the sheriff, district attorney, and public defender offices), and $4.7 million to commercial bail bond companies.¹ For those whose families cannot afford to pay the price of pretrial freedom, the non-financial costs are even greater. Many poor and low-income people stay in jail until their cases are resolved, regardless of the seriousness of the charges or the likely outcome of the case. In fact, most arrests and detention do not lead to a conviction with a sentence of incarceration; most plead guilty and are sentenced to probation or to the time they’ve already served before conviction. As a result, the only incarceration most people end up serving is the pretrial detention they suffer because of the requirement that they pay to gain their freedom, despite being legally innocent. Once their cases are resolved, most are released.²

The length of this money-based detention can be devastating. Those who cannot afford to pay bail stay in jail nearly four months while facing a felony charge and nearly one month for a municipal or state misdemeanor charge until their case is resolved. Even those who were able to pay bail were jailed an average of 11 days for a felony and three days for a misdemeanor before being freed.³ More than 500 people were in jail on any given day in 2015 for no other reason than that they could not afford to pay cash or purchase a bail bond.⁴ There are also enormous costs to the city’s taxpayers, who pay more than $6 million each year to subsidize the cost of unnecessarily jailing these 500 people.⁵

People who are arrested in New Orleans are often poor — 85 percent are too poor to hire a lawyer.⁶ They are also disproportionately black; black people are arrested at two and a half times the rate of white people.⁷

Fully 84 percent of the $6.3 million paid in money bail is paid by black people.⁸

Worse yet, black people are less likely to be able to pay the price set for their freedom; average income for black households is $25,324 while for white households it is $67,884.⁹ Consequently, most of the people in the jail — 87 percent — are black. The money bail system intrinsically harms those least able to afford it, whether by extracting scarce dollars or jailing those with insufficient dollars to pay. Black people, whether subject to implicit biases or by virtue of being economically disadvantaged, suffer the greatest harm.¹⁰

New Orleans has led all U.S. cities in jailing its people.¹¹ Why does a majority-black city pursue policies and practices that lead to the jailing of black people at starkly higher rates than people of other races? Why does this city — 300 years old, half of that post-emancipation — continue to exact the heavy human toll of conditioning freedom on the ability to pay the price set? One place to look for answers is in the historical practices of exploitation of people of color, driven or sanctioned by the state, that trade on the fiction of black dangerousness and criminality to extract revenue and exert control.

This essay examines the extent to which money bail in New Orleans is a descendant of slavery and subsequent practices of racial exploitation. It describes bail and related practices across the city’s 300-year history, identifying echoes in the present-day regime of money bail. It then explains the processes and costs of modern money bail. Finally, it presents some ways in which the city has been moving to a less harmful criminal legal system and offers models from jurisdictions that have rejected money-based detention as inconsistent with the core principle of innocent until proven guilty.

The Antecedents of Money Bail in New Orleans

Tracing the history of money bail requires that one examine the connections between money and notions of risk, alongside institutions that ensured freedom for some and degrees of unfreedom and bondage for others. The modern day system of money bail in New Orleans has roots in the city’s history as a center of the slave economy. Although the legal right to bail was not originally intended to apply to enslaved people, the institution of slavery shaped the financial relationship between the city’s property owners and the use of jail, eroded the presumption of innocence, and created a market for man-hunting. Slaveholders developed a set of ideas about black people as inherently dangerous and criminal that, while changing over time, remained disturbingly durable.¹²

In colonial and antebellum Louisiana, bail worked as a mechanism to ensure pretrial freedom for propertied white men. The city of New Orleans was shaped by the distinctive overlapping of French and Spanish civil law and British common law traditions.¹³ By the time of the Louisiana Purchase in 1803, the formal right to be “admitted to bail” was a core principle of English common law, and had been recently codified in the Eighth Amendment to the U.S. Constitution.¹⁴ Indeed, when President Thomas Jefferson instructed Governor William C. Claiborne to establish the Court of Pleas in New Orleans in 1804, a right to pretrial freedom was enshrined in state constitutions and in laws governing the territories.¹⁵ The rules of those first courts provided that defendants be “set at large” by giving “good and sufficient security.”¹⁶ But that security did not necessarily have to come in the form of an upfront payment.

The earliest Louisiana Constitution (1812) provided a right to bail, understood as release on a promise to pay if one did not return to face charges.¹⁷ The required security generally was the signature of a property owner who acted as personal surety. As Edward Livingston, Louisiana’s foremost nineteenth century legal thinker, put it: “As it would be oppressive in most cases to deprive the accused of his liberty before trial, if he can give sufficient pledge for his appearance at the trial, the law restores him his liberty on his giving such a pledge. This pledge is called bail.”¹⁸ Such a pledge was formalized when the person being detained and the person acting as surety signed a “recognizance” promising to appear in court. “When bail is given,” Livingston reasoned, “the prisoner must be discharged without extracting from him the payment of any fees.” The amount of bail, however, “must not render the privilege useless to the poor,” he concluded. Poor white people were generally required to be released on bail without paying money so long as the person acting as surety was a holder of property in an amount double the sum he was posting as security.¹⁹

The antebellum system of bail was distinctively shaped by slavery. In eighteenth and nineteenth century Louisiana, enslaved people not only performed the labor that built massive fortunes, but were used as financial instruments: bought, sold, and mortgaged. In New Orleans, the value of enslaved people was capital, the collateral and security upon which much of the local, national, and global economy depended.²⁰ The slave economy bred fear of rebellion among those who depended on it, which gave rise to financial markets based in white fear. Private citizens made money, for instance, from capturing, accusing, and eventually returning enslaved people to slaveholders. Indeed,

slave patrols and bounty hunters were deputized to perform police functions, such as stopping, searching, seizing, and detaining anyone they suspected might be a fugitive.

These private agents worked together with local police and federal marshals who enforced the Fugitive Slave Act when alleged runaways crossed state lines.²¹

Over time, the relationship between slaveholders and the use of the jail in New Orleans became entrenched. Because slave owners could have slaves detained for “safe keeping,” money changed hands when certain people, for whatever reason, were deemed suspect or potentially dangerous. The police brought enslaved people to jailors who collected money as a condition of returning them to slaveholders. The officer collecting these “discharge fees” deposited the money with the city Treasurer.²² Those who were not claimed within three days were forced to do manual labor on public works until their owner paid to get them back. By using discharge fees and forcing enslaved people held in the jail to work, the city extracted value as a form of punishment and as payment for police involvement in slave-catching.

List of Slaves remaining in the Police Jail, 1846. Xavier University of Louisiana, Archives and Special Collections, Charles Heartman Manuscripts of Slavery Digital Collection.

In a world that already put a price on human beings, it was a short step to normalize monetary payment as a condition of release. The development of money bail was linked to the legal and financial instruments of slavery. The institution of slavery shaped the concept of bail beyond its original meaning as a source of pretrial freedom for propertied white men. It built a financial market based on white fear, empowered private actors to capture people alleged to be criminal, and eroded the presumption of innocence.

MONETIZING BAIL THROUGH CONVICT LEASING AND JIM CROW

After the Civil War, the meaning of bail became contested in new ways as formerly enslaved men gained political rights. During Reconstruction, black politicians pushed for racial equity in defining the right to bail.²³ The 1868 state constitution resolved that all persons of every race and color, without regard to previous condition, shall have the same rights and be subject to like punishment, pains, and penalties. While maintaining the original right to bail with sufficient sureties of the 1812 Constitution, it laid out, as in the U.S. Constitution’s Eighth Amendment, that excessive bail shall not be required. Every person is entitled to the “remedy of the law,” wrote members of the convention, “he ought to obtain justice freely and without being obliged to purchase it.”²⁴

Despite legislators’ intention to use the new state constitution’s bill of rights to ensure racial equity in the use of bail, it was soon ap­plied according to a racial double standard as white supremacists fought to control how justice would be administered in parish courts. When black Union Army veteran Jacob Burgest was arrested for opposing a white Vigilance Committee in Alexandria, Louisiana, in 1866, the local judge set his bail at $150. When a friend came to bail out Burgest, however, the Sheriff would not accept him as a per­sonal surety, tripled the amount, and required upfront payment instead. In an open letter to the newspaper, Burgest decried the judge’s actions, lamenting the way the law was being “administered wholly in the interest of the white man and the colored people have no justice whatsoever.”²⁵ At the same time, federal authorities, such as the Freedmen’s Bureau, were outraged at the way bail was used to ensure detention for black people while being used to release certain white men. In the records documenting white killings of black people in towns across Louisiana, for example, Freedmen’s Bureau officials were shocked that white men who admitted to the murders were released on low bail.²⁶

Following the end of Reconstruction, white politicians across the South enacted a host of racially-targeted laws aimed at re-enslaving black people through the convict leasing system.²⁷ Black-owned newspapers were especially attuned to how money bail was used unfairly to detain people of color. Some papers ran daily columns that publicly listed bail amounts set by the courts, in order to provide some measure of public accountability. Eyeing changes in the criminal justice system across the South, the Weekly Louisianan ran a story denouncing an inmate leasing bill in Texas that would make anyone who was arrested work before their trial.

“On the surface it makes no discrimination between blacks and whites,” the article explained, yet “is clearly intended to operate against blacks.”

The right to bail was supposed to protect black people from being arrested for some “trifling offense,” detained, and immediately hired out to their former owners until trial. In contrast, the Texas bill, like others pushed by white racist “Redeemer” politicians in Southern states, would “bring the negro into bondage … by keeping him in debt,” the article concluded. As with this attempt to generate revenue from pretrial detention — the period a person is jailed between arrest and trial — many aspects of the criminal legal system were being used to extract value from the formerly enslaved: “It is a shrewd device of the ex-slaveholders to get compensation for the loss of their slaves.”²⁸

During the convict leasing era, the power of bail sureties grew to mirror the power of slave catchers. In the 1872 case of Taylor vs. Taintor, the U.S. Supreme Court noted that sureties may seize and deliver up a bailed person and, “if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose.”²⁹ Sureties could exercise these powers through agents, known as bounty hunters, continuing the commerce begun with slave hunting. By this time in the nineteenth century, the shift from personal guarantees to money bail set the United States on course to be the only common law country in the world to employ a system of commercial bail bonding.³⁰

OPPORTUNITIES LOST IN THE TIME OF CIVIL RIGHTS-BLACK POWER

During the long Civil Rights era, predatory arrests and abuses of pretrial detention again became a flashpoint in struggles for racial equality and justice. As black activists had before them, members of New Orleans’ civil rights groups called out the use of jail deten­tion as the continuation of past oppression and violence. According to leaders like Ronnie Moore, Louisiana’s field secretary for the Congress of Racial Equality, the arrests, beatings, and court trials that characterized southern “justice” amounted to little more than legal lynching.³¹

For many activists and organizers in the 1960s and 1970s, bail reform was seen as important to the push for justice. Policy makers and government actors also recognized the need for reform. The Release on Recognizance program launched in 1968, for example, sought to counteract inequities in people’s ability to purchase their constitutional right to pretrial freedom. Endorsed by all of the Criminal District Court judges, the program was given an office in the jail and tasked with reviewing all charges and making recommendations to the magistrates as to which people arrested should be released without being made to pay money.³²

However, in New Orleans and around the country, the fight for criminal justice reform faced more durable opposition than the push for equal political rights.³³ After the passage of the Voting Rights Act, a political consensus emerged during the Johnson administration’s “War on Poverty” to encourage local police forces, by providing block grants and military style equipment, to root out anything they feared might turn into urban rebellion.³⁴

The over-use of policing, like the justifications for keeping people locked up before their trial, continued to be fueled by racist myths about black people as inherently dangerous and criminal.

With the surge in hyper incarceration beginning in the 1970’s, bail bondsmen and government agencies reaped ever-increasing profit from a market not unlike its historic predecessors, one that routinely set a price for freedom and traded on imaginary fears of black criminality. State bail laws and practices, described below, further widened the floodgates to local mass jailing. As civil rights lawyer Bryan Stevenson put it: “Though it was the most insidious engine of the subordination of black people throughout the era of racial terror and its aftermath, the criminal justice system remains the institution in American life least affected by the civil rights movement.”³⁵

Hank Willis Thomas’s bronze statue “Raise Up” at the National Memorial for Peace and Justice. Photo: Equal Justice Initiative / Human Pictures.
Plaque below Hank Willis Thomas’s bronze statue “Raise Up” at the National Memorial for Peace and Justice. Photo: Benjamin Weber. See also, Reckoning with America’s History of Lynching and Racial Terrorism.

The Modern Money Bail System in New Orleans

The intent to re-define bail as a tool to extract money for government entities and the commercial bail bond industry, with jail as the leverage, is evident in current law.

HOW MONEY BAIL WORKS

Louisiana statutes mandate that judges set a monetary bail amount for every charge the police officer cites when arresting a person.³⁶ Judges are explicitly barred from releasing people without their paying up front to purchase their freedom for a range of offenses that cover more than half of people arrested for a felony in New Orleans.³⁷ Even when not barred, judges generally require payment. Re­gardless of the reason, when made to pay up front, the statutes require that a person either pay 100 percent of the total bail amount in cash or purchase a commercial bail bond for the state-mandated “premium” of 12 percent of the bail amount.³⁸ The 100 percent cash bail is refundable. The commercial bail bond premium is not. Most people can only afford to pay the non-refundable 12 percent, if they can pay bail at all. Ninety-seven percent of people arrested for a felony charge and 69 percent for a misdemeanor who are able to pay bail do so by purchasing a commercial bail bond.³⁹ The current legislative scheme drives a revenue stream from defendants and their friends and families to commercial bail bondsmen and government agencies.

Unlike when paying cash bail, 3 percent of the 12 percent the bail bondsman charges is passed on to the court, the sheriff, the district attorney, and the public defender (the bondsman retains the other 9 percent).⁴⁰ State law also singles out the court in Orleans Parish as a special beneficiary of the money bail system. Fully 1.8 percent of the aggregate bail amount goes to the court in New Orleans, more than three times greater than to the courts in other parishes in the state.⁴¹ The neutrality required of the court to make appropriate decisions about defendants’ pretrial freedom is regularly challenged by this financial conflict of interest.⁴²

Beyond limiting defendants’ freedom and costing them money, these revenue streams present an obstacle to reforming the system.

Because the legislature has built a system that benefits powerful government and commercial institutions, the money bail system is entrenched. This perpetuates the harm to those subject to the system and, indeed, to all taxpayers, who must pay for the unnecessary incarceration that results.

WHAT MONEY BAIL COSTS NEW ORLEANIANS

This money bail system uses jail to coerce payment to government and for-profit bail bondsmen. Black New Orleanians bear the great bulk of the burdens of over-incarceration and wealth extraction. Black people make up more than 80 percent of those who are incarcerated for their inability to pay bail and pay 84 percent of all the money paid in bail and bail fees to bondsmen and government agencies.⁴³ Given the city’s history of slavery and race-based economic exploitation (including through policing and jailing), it is easy to see connections between past and present.

Money bail ensnares people in a system in which one’s freedom hangs on the ability to pay and removes people who are important to their families and communities. The money paid to secure a person’s freedom is not available for other essentials, thus over-burdening family and community support structures. Those who can’t pay, or stay in jail even a few days before they can gather the money, are put at increased risk of losing their employment and housing and of being re-arrested than if they had not been detained.44 They are subject to the degradation, violence, and trauma (including serious physical injury and death), of New Orleans’ jail — a jail in which conditions fall below bare constitutional standards.⁴⁵ Indeed, even when people purchase their freedom through a commercial bail bond they live in fear because the bondsman has the power to seize and surrender them at will.⁴⁶

The centuries-old right to release on bail was turned on its head and replaced with a system that conditions release on the upfront payment of money bail, funding the system on the backs of poor New Orleanians, most of whom are black. But, it’s not only the people who are arrested and their friends and families who pay the cost; every taxpayer pays to subsidize this money bail system.

The excess incarceration caused by jailing those who cannot pay money bail costs the city more than $6 million each year.

That taxpayer money is spent unnecessarily — in fact, harmfully — and is not available to be used on efforts to promote community safety and prosperity.

Notably, money bail is part of an even broader systemic problem that links freedom with the ability to pay and disproportionately harms black and low-income people. Government agencies extract money from defendants and their families at multiple points, for example by charging to apply for a public defender, to make a phone call from the jail, for drug testing as a condition of pretrial release, for services supporting diversion from prosecution, for numerous fees tied to a criminal conviction, for working in a prison work-release program, and for being on probation or parole. These fees force an enormous transfer of wealth from struggling communities to criminal justice agencies and commercial bondsmen and, as with money bail, lead to unnecessary incarceration.

The Maintenance and Jail Fees of Parish Prisoners, 1820” Xavier University of Louisiana, Archives and Special Collections, Charles F. Heartman Manuscripts of Slavery Digital Collection.

Toward a Society where Freedom is Free

It is possible for New Orleans to have a system of pretrial release and detention that promotes both community safety and the commitment to freedom for people who are presumed innocent and does so in a way that does not target poor black people. It cannot be done, however, under a system of money bail.

PROGRESS ACHIEVED

Before turning to the future, it is important to recognize that progress has been made to move away from money bail as the determinant of pretrial release or detention in New Orleans. First, the city has adopted a system that provides research-based, objective information to guide judges’ decision-making at the initial detention/release hearing within 24 hours of arrest. The pretrial services program, begun in 2011, provides an assessment of the likelihood of pretrial success (appearing in court and not being re-arrested while on release) of everyone arrested for a felony charge. And it offers supervisory services as an alternative to money-based release or detention for those whom judges determine need support to successfully return to court or not be re-arrested. This is an important step toward the ultimate goal of ensuring that everyone enjoys the same right to pretrial freedom regardless of their ability to pay.

Second, beginning in 2016, the Landrieu administration, in partnership with the city’s criminal justice agencies, embraced the Safety and Justice Challenge to reduce the use of jail incarceration and to reduce racial disparities in its system of detention.⁴⁷ One of the Challenge’s initiatives is the adoption of a new pretrial decision-making framework that is intended to avoid using money as the determinant of pretrial release or detention. That framework will guide the application of a new risk-assessment tool that distinguishes projected risk of re-arrest from that of not appearing in court, and that is designed to minimize the inherent racial disparities of pretrial risk assessments that rely on factors such as prior convictions.⁴⁸ Through another initiative, the judges have committed to maximize their use of release on recognizance for all arrested people who are assessed in the lowest two of four risk levels, an application of risk assessment that is explicitly directed at reducing money-based detention and its accompanying racial disparities. Similar to the original concept of bail,

release on recognizance in Louisiana is essentially an unsecured personal bond, a promise to pay if the person fails to meet the conditions of release.

It requires no payment up front, and none at all if one meets the conditions of release.

Finally, in early 2017, the City Council responded to calls by community and policy leaders for a new approach to bail that bars the use of money-based pretrial detention in the Municipal Court, a significant step in moving away from money bail altogether.⁴⁹ The Council enacted an ordinance directing the Municipal Court to establish a bail schedule that does not use money as a factor, instead requiring the Sheriff’s office to release most people immediately upon being booked into the jail with a directive to appear in court on their own volition. Only people who have been arrested for the five offenses deemed most serious are to be detained until they are brought be­fore a judge within 24 hours. At that point, the ordinance directs that no pretrial defendants “after the initial appearance hearing, shall be detained only because they do not have enough money to post bond.”⁵⁰

These achievements lay a good path to a better future. But, money bail and its stark racially disparate impacts continue to dominate. What would that better future look like if New Orleans summoned the will to reach for it?

BEYOND ECONOMIC AND RACIAL EXPLOITATION

It starts with a return to the principle of innocent until proven guilty, made real through a presumption of pretrial freedom. As the U.S. Supreme Court has stated, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited excep­tion.”⁵¹ No one should be caught in that carefully limited exception simply because they do not have the means to pay for the liberty to which they are entitled. This echoes Livingston’s point that, “When bail is given, the prisoner must be discharged without extracting from him the payment of any fees.”⁵² New Orleans could commit to a pretrial detention and release system that focuses on keeping communities safe, not jailing people because they are poor. Detaining those who are poor and releasing those who can pay does not make New Orleans communities safe. Rather, it is inherently unfair and divides communities along lines of class and race.

As the city commemorates its 300th year of existence, it has the opportunity to take stock of this unfair practice and stop putting a price on the freedom of its people.

This will require that government actors stop using the justice system to extract money from the families and friends of people who are arrested, detained, and convicted of crimes. To do so requires that all aspects of the user-funded justice system be replaced with a sta­ble revenue stream toward which all New Orleanians contribute. New Orleanians then could hold their elected officials accountable for supporting a system that provides rather than impedes justice, from how police and prosecutors are deployed to how the courts and jail function.

New Orleans would not be the first to do away with money-based detention; it has models to follow. Money-based detention has been unlawful in the entire federal criminal justice system for decades and Washington, D.C. has long followed that approach. In both, money bail may be set but may not result in detention. More recently, New Mexico adopted a state constitutional amendment barring money-based detention following a ruling of its supreme court. New Jersey enacted statutes and court rules that prioritize all other alternatives to upfront payment of money bail as a means of ensuring return to court and avoiding re-arrest. California, Connecticut, and New York are moving in similar directions. And, four states outlaw commercial bail bonds as a form of money bail.⁵³ Nor should New Orleans be bound by other models. It could grow its own participatory process for imagining alternatives to the costly money bail system. New Orleans could go from being a national leader in jail incarceration to being a leader in a growing movement away from money-based detention and the race-based harms that result.

JUST COMMUNITIES ARE SAFE COMMUNITIES

The city’s tricentennial offers an opportunity to examine history, reflect on where we stand, and commit to a better future. It is an opportunity to confront systems that produce harmful racially disparate outcomes, systems grounded in the city’s history of racial exploitation and poor investment of public dollars, and to lift up rather than hold down those among us who are struggling. We can make a complete break from practices rooted in past abuses — especially practices carried out by government in the people’s name — that put a price on the freedom of human beings.

Vera: Beyond Money Bail

“As momentum to end the use of money bail continues to mount across the country our co-authored report, From Bondage to Bail Bonds: Putting a Price on Freedom in New Orleans, asks what we can learn from the past to inform alternatives to money bail now and in the future.

The foundational right to pretrial liberty hasn’t changed. We know that people deserve to be presumed innocent until they are proven guilty. Yet, because of the money bail system, it has become a right reserved only for those who can afford to purchase their freedom. As our report shows, however, bail did not always mean a set amount of money. In most circumstances, it was simply a pledge to return to court.

In New Orleans–and across the country–the institution of slavery cast a long shadow over the development of money bail. Slavery created entire financial markets based on fear arising from racist fictions about black people as inherently dangerous and criminal. The private industry of man-hunting, for instance, grew because there was money to be made from capturing and jailing black people who were alleged to be fugitives, called dangerous, or appeared out of place. The city’s archival records show that profits flowed to government and private actors when enslaved people were booked and released, hired out, or caged for “safe-keeping.”

In short, slavery eroded the presumption of innocence for whole swaths of people, created a bad set of financial incentives around the use of jail, delegated police powers to slave patrols and bounty hunters, and normalized paying money in exchange for human freedom.

Just as the impact of slavery on money bail extended across state lines far beyond the South, myths about black criminality carried forward in time. During the Convict Leasing and Jim Crow eras, the “condemnation of blackness” not only appeared in racial stereotypes, overt anti-black laws, and racial terror lynchings, but was embedded in the very fabric of social scientific discourse, in things like crime statistics. As former slaveholders sought to use the prison system to extract compensation for the loss of wealth in the form of enslaved humanity, city and town officials used jail detention to drain financial resources, curb black political power, and structure racial hierarchy across urban America. The modern day money bail system continues to reap millions of dollars in New Orleans, and billions of dollars nationally, from a market based largely in racial fictions of danger.

The system of wealth-based pretrial detention is rooted in the history of racial and economic exploitation, and extracts scarce dollars from families who can least afford it.

As our report shows, 85 percent of those arrested in New Orleans are unable to afford a lawyer. Still, fully 84 percent of the $6.3 million paid in money bail in New Orleans in 2015 was paid by low income people of color. The human and financial costs of the current system destabilize communities, trap people in crippling cycles of debt, and make everyone less safe.

For the more than 500 people who are locked in the New Orleans jail on any given day merely due to their inability to pay bail, it is a matter of life and death. As the recent death of Dennis Edwards in New Orleans and the renewed outcry over the deaths of Kalief Browder in New York and Sandra Bland in Texas reminds us, they should never have had to endure those horrible conditions in the first place.

In “From Bondage to Bail Bonds,” co-published by the Data Center, we urge New Orleans to become a leader in the movement to end money bail. The city’s 300th anniversary offers the opportunity to reckon with its legacy of racial oppression and inequality, and commit to a better future. With the opening of the Equal Justice Initiative’s National Memorial for Peace and Justice in Montgomery and the upcoming chance for voters to strike down Louisiana’s non-unanimous jury law, it is clear that momentum is also mounting around historical truth-telling as a path toward collective healing.

So what would reckoning with the history of money bail do? It would urge us not only to avoid making mistakes of the past, but to summon the courage to undo them.”

New York Times: Illegal Globally, Bail for Profit Remains in U.S.

“FORT LAUDERDALE, Fla. — Wayne Spath is a bail bondsman, which means he is an insurance salesman, a social worker, a lightly regulated law enforcement agent, a real estate appraiser — and a for-profit wing of the American justice system.

What he does, which is posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world. In England, Canada and other countries, agreeing to pay a defendant’s bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice.

Mr. Spath, who is burly, gregarious and intense, owns Brandy Bail Bonds, and he sees his clients in a pleasant and sterile office building just down the street from the courthouse here. But for the handcuffs on the sign out front, it could be a dentist’s office.

“I’ve got to run, but I’ll never leave you in jail,” Mr. Spath said, greeting a frequent customer in his reception area one morning a couple of weeks ago. He turned to a second man and said, “Now, don’t you miss court on me.”

Other countries almost universally reject and condemn Mr. Spath’s trade, in which defendants who are presumed innocent but cannot make bail on their own pay an outsider a nonrefundable fee for their freedom.

“It’s a very American invention,” John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. “It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.”

Although the system is remarkably effective at what it does, four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished commercial bail bonds, relying instead on systems that require deposits to courts instead of payments to private businesses, or that simply trust defendants to return for trial.

Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system.

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.

America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

Commercial bail bond companies dominate the pretrial release systems of only two nations, the United States and the Philippines.

The flaw in the system most often cited by critics is that defendants who have not been convicted of a crime and who turn up for every court appearance are nonetheless required to pay a nonrefundable fee to a private business, assuming they do not want to remain in jail.

“Life is not fair, and I probably would feel the same way if I were a defendant,” said Bill Kreins, a spokesman for the Professional Bail Agents of the United States, a trade group. “But the system is the best in world.”

The system costs taxpayers nothing, Mr. Kreins said, and it is exceptionally effective at ensuring that defendants appear for court.

Mr. Spath’s experience confirms that.

If Mr. Spath considers a potential client a good risk, he will post bail in exchange for a nonrefundable 10 percent fee. In a 35-month period ending in November, his records show, Mr. Spath posted about $37 million in bonds — 7,934 of them. That would suggest revenues of about $1.3 million a year, given his fee.

Mr. Spath, who is 62, has seven bail agents working for him, including his daughters Tia and Mia. “It probably costs me 50 grand a month to run this business,” he said.

Mr. Spath hounds his clients relentlessly to make sure they appear for court. If they do not, he must pay the court the full amount unless he can find them and bring them back in short order.

Only 434 of his clients failed to appear for a court date over that period, and Mr. Spath straightened out 338 of those cases within the 60 days allowed by Florida law. In the end, he had to pay up only 76 times.

That is a failure rate of less than 1 percent.

But he had just taken a $100,000 hit. “Everything I worked for this year, I lost because of that one guy,” he said. “If I write a bad bond, it takes me 17 to make it right.”

Mr. Spath had thought the defendant, accused of drug trafficking, was a good bet because he had been cooperating with the government. The defendant is in Brazil now, but Mr. Spath is very good at finding people, and he is not giving up. He is working travel records, phone companies and a former girlfriend, and he is getting closer.

He sometimes requires collateral in addition to his fee, and has accepted rugs, an airplane and a winning Rhode Island lottery ticket. But mostly he is interested in houses.

“In this business, you have to understand real estate,” Mr. Spath said. When the real estate market goes south, he said, bail bondsmen get hurt.

According to the Justice Department and academic studies, the clients of commercial bail bond agencies are more likely to appear for court in the first place and more likely to be captured if they flee than those released under other forms of supervision.

That may be because bail bond companies have financial incentives and choose their clients carefully. They also have more power. In many states, bond enforcement agents, sometimes called bounty hunters, may break into homes of defendants without a warrant, temporarily imprison them and move them across state lines without entering into the extradition process.

Still, critics say, efficiency and business considerations should not trump the evenhanded application of justice.

The experiences in states that have abolished commercial bail bonds, prosecutors say, have been mixed.

“The bail bond system is rife with corruption,” said Joshua Marquis, the district attorney in Clatsop County, Ore. Since bond companies do not compete on price, they have every incentive to collude with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.

Mr. Kreins, the industry spokesman, acknowledged scandals in Illinois, where “basically all the agents were in collusion with the judges,” and in Louisiana, where sheriffs were also in the mix.

“We have acted responsibly every time an incident has occurred to seek stronger legislation,” Mr. Kreins said. Mr. Marquis, the Oregon prosecutor, said doing away with commercial bonds had affected the justice system in a negative way as well. “The fact of the matter is,” he said, “that in states like Oregon the failure-to-appear rate has skyrocketed.” Oregon uses a combination of court deposits, promises to appear and restrictions on where defendants can live and work.

The rest of the world considers the American system a warning of how not to set up a pretrial release system, F. E. Devine wrote in “Commercial Bail Bonding,” a 1991 book that remains the only comprehensive international survey of the subject.

He said that courts in Australia, India and South Africa had disciplined lawyers for professional misconduct for setting up commercial bail arrangements.

Other countries use a mix of methods to ensure that defendants appear for trial.

Some simply keep defendants in jail until trial. Others ask defendants to promise to turn up for trial. Some make failure to appear a separate crime. Some impose strict conditions on release, like reporting to the police frequently. Some make defendants liable for a given sum should they fail to appear but do not collect it up front. Others require a deposit in cash from the defendant, family members or friends, which is returned when the defendant appears.

But injecting money into the equation, even without the bond company’s fee, is the exception. “Even purged of commercialism, most countries avoid a bail system based chiefly on financial security deposits,” Mr. Devine wrote.

In the United States, the use of commercial bail bonds is rising, and they became the most popular form of pretrial release in 1998. More than 40 percent of felony defendants released before trial paid a bail bond company in 2004, up from 24 percent a decade earlier, according to the Justice Department.

Forty percent of people released on bail are eventually acquitted or have the charges against them dropped. Quite a few of them paid a substantial and nonrefundable fee to remain free in the meantime.

Kate Santana, a 20-year-old waitress, had spent eight days in jail when she found her way to Mr. Spath.

“Me and my husband got into a fight,” Ms. Santana explained, “and the cops were called and I was arrested because there was a bite mark on his shoulder.”

Mr. Spath took her $200 and posted her $2,000 bail. “I checked her criminal history out,” he said. “I found out she was a mother and really she shouldn’t be in jail.”

But when a friend of a man accused of identity theft and perjury turned up seeking a $16,000 bond, Mr. Spath took a different attitude. “You bet your fanny I’m going to take collateral,” he said. “I’ll take his firstborn.”

Mr. Spath is not much concerned with how the rest of the world views commercial bail bonds, but he was worked up about recent talk of a greater government role in pretrial release here in Broward County.

“Here’s what everybody forgets,” he said. “The taxpayers have to pay for these programs. Why should they pay for them? Why should they? When we can provide the same service for free. I’d rather see the money spent in parks, mental health issues, the homeless. Let the private sector do it. We do it better.””

The Atlantic: Who Really Makes Money Off of Bail Bonds?

Forcing people awaiting trial to pay bail in order to get out jail is, to say the least, a flawed way of pursuing justice. The accused or their family can be required to put down money in order to return home as they await a trial (which can take months, years, or never even happen)—which in practice has disproportionately hurt communities that are low-income (because they struggle to come up with the necessary funds) and black (who see higher rates of jail time, like other communities of color). The deaths of Sandra Bland, Jeffrey Pendleton, and Kalief Browder—all of whom were black and remained unable to post bail after being arrested—have publicized how so many Americans are unable to get out of jail because of bail requirements. And yet, despite the well-documented inequalities and flaws in the system, and the increasing pressure to change it, “money bail,” as the practice is called, remains the norm in the American legal system, propping up a thriving for-profit bail-bonds industry.

It’s no wonder that so many low-income people awaiting trial have to turn to a bail-bonds operation. According to the Prison Policy Initiative, a nonprofit, black men and women ages 23 to 39 who were being held in local jails had median earnings of between $568 and $900 the month prior to their arrest. The median bail for a felony arrest, meanwhile, is $10,000, a sum most arrested individuals and their families would simply be unable to pay. On top of that, black defendants between the ages of 18 and 29 years old were asked to pay, on average, higher sums for bail and were less likely to be released on their own recognizance, meaning no bail payment was required.

A new report from the nonprofit Color of Change and the American Civil Liberties Union (ACLU) sheds further light on the country’s bail system. The report finds that around 70 percent of those currently in jail have yet to be convicted of a crime. Not unrelated: Between 1990 and 2009, the share of people arrested who were required to post money bail grew from 37 percent to 61 percent, according to the report.

This means that families who can’t afford bail face a difficult choice: either leave a loved one behind bars—something that’s been shown to threaten their physical and mental health, and increase the likelihood of conviction—or enter into financial agreements with bail-bonds corporations. Given that these are the usual choices, it’s no surprise that the share of releases that depended on for-profit bail bonds outfits has climbed along with the share of arrests requiring money bail for release, growing to 49 percent in 2009 from only 24 percent in 1990.

In a standard bail agreement, families that have enough money to post bail give it directly to the court and get their money returned once a case is over. But it’s different for families that rely on private bail bonds: Instead of paying a refundable amount to the court, they pay a non-refundable portion of the total bail (usually 10 percent) to a bail-bonds company, which then writes a bond for the full bail amount promising that it will be paid if the person doesn’t appear for court. That 10-percent payment is money that customers will never get back, even if there’s no conviction. In addition to losing the money they’ve put down, bail bonds also often leave families paying loan installments and fees even after a case is resolved, the study finds. And bail-bond agreements often include additional terms, which can bring on additional fees, surveillance, and/or property loss, if a house or other asset was put up as collateral.

The sums that families lose in the for-profit bail system is striking. Over a five year period just in the state of Maryland, families of people who were accused of crimes and went on to be cleared of any wrongdoing parted with around $75 million in non-refundable bail-bond payments, according to the report. Looking at discrepancies by race makes the findings even bleaker. In 2015, fewer than 5,000 families in New Orleans together paid $4.7 million in non-refundable premiums, and black families paid 84 percent of bail premiums and fees city-wide that year.

The study also illuminates the structure of the bail-bond industry, and where it gets its capital. For-profit bail businesses are, it should be noted, not part of the country’s legal apparatus. (In fact, the only two countries that allow companies to operate for-profit bail operations are the United States and the Philippines.) And it’s not just bondsmen who are making money off of bail bonds. While bail-bond services are often associated with the myriad small storefronts that can be found in poor communities across the country, many of them, the report finds, are actually run by large global insurance companies.

The bail system, in theory, is supposed to minimize the risk that an arrested party will inhibit the legal process, usually by failing to show up for court or fleeing the area. The threat of losing the money posted for bail is supposed to deter such evasive tactics.When people rely on bail bonds, they become involved in a complex transfer of money and risk, such that families generally wind up on the hook, the study finds. That’s because bail involves what are known as “surety” bonds, which are increasingly backed by large global insurers. When a family pays a bail-bonds agent, the bail-bonds company then pays an insurance company a portion of that money to back the bond they’ve issued. The company also pays into what is called a “build-up fund,” which ensures that money is available if needed. But unlike insurance one might take out on a car or home, surety bonds place the risk and requirement for full payment on the person who takes out the bond. If the bonded individual doesn’t show up for their court appearance, which would trigger a need for the full bail amount to be paid, the insurer only has to pay up as a last resort.According to Color of Change and the ACLU, it rarely comes to that. In essence, families wind up taking on debt and risk while bond companies and insurers mostly just get the profit of the bail premiums, fees, and fines that families pay. In a fairer world, people wouldn’t be penalized by the legal system for not having, say, $10,000 in liquid cash: Either there wouldn’t be money bail, or money bail would at least be more affordable, or the bond companies and insurers would actually shoulder significant risk after taking a non-refundable payment of $1,000, which is a fee that people with enough funds ultimately don’t have to pay.Overall, the industry is a profitable and fairly concentrated one. Though there are more than 25,000 bail-bonds companies across the U.S., only about 10 insurers are responsible for underwriting the bulk of the $14 billion in bonds that are issued each year. The industry as a whole brings in around $2 billion in profit a year. Surprisingly, it’s not even clear which companies are actually involved. The report finds that private-equity firms play a role, but their holdings are often murky because global insurers build in several layers of opaque corporate structures between their corporate brand, bond-insurance operations, and bail-bonds storefronts.Because insurance is largely regulated on a state-by-state basis, oversight of insurers participating in for-profit bail operations can vary widely and get lost in the scope of an insurer’s larger business operations. And these insurers make serious lobbying efforts to keep things this way, making reform even harder. The result is a system in which the poor often wind up even further in debt after getting arrested, whether they’re guilty or not.”

Washington Post: When it comes to pretrial release, few other jurisdictions do it D.C.’s way

“On the ground floor of Washington’s busiest courthouse, it is hard to hear the judge over chains and shackles clanking to the floor. But the message resounds: On a typical afternoon the court will release about 90 percent of the people who have been arrested and held overnight in the nation’s capital.

They are released without leaving behind any money — on a promise to return to court and meet conditions such as checking in with a pretrial officer or reporting for drug testing.

This is not how the system works for those charged in almost every other local and state court in the country. But it is how the District has run its rough-and-tumble courthouse for more than two decades.

Nationally, about 47 percent of felony defendants with bonds remain jailed before their cases are heard because they cannot make bail. At the D.C. jail on 19th Street SE, no one is locked up on a criminal charge because of an inability to pay.

“We’ve proven it can work without money, but the whole country continues as if in a trance to do what we know does not work,” said D.C. Superior Court Judge Truman Morrison. The new way of thinking he promotes tracks the federal system, which bars judges from setting financial barriers to keep someone locked up.

Thousands of people across the nation sit in jail — not convicted, but awaiting their day in court — because they cannot afford to post money for release. Others, charged with the same crime but able to pay, go free.

Efforts to eliminate or reduce use of money bonds and fixed bail payments — through legislatures in New Jersey and Colorado, and class-action lawsuits in eight states — have become part of a national movement to overhaul the criminal-justice system because of the impact on poor defendants. Officials in Jackson, Miss., agreed last month to stop using money bail in misdemeanor cases as part of a legal settlement. Several other cities in Mississippi have done the same.

“There is no evidence you need money to get people back to court,” said Morrison, a judge since 1979. “It’s irrational, ineffective, unsafe and profoundly unfair.”

The system in the District has experienced some high-profile lapses.

In late May, police arrested a man in a fatal shooting and said he had bypassed a court-ordered monitoring device that had been attached to his prosthetic leg — which the suspect left at home. The tracker was in place for a previous gun arrest, police said in court files.

Last year, a man released from court on a misdemeanor charge of assaulting a police officer was charged in a fatal stabbing two days later on a Metro train. If convicted, Jasper Spires, 19, faces life in prison.

“It just seems like judicial malfeasance,” said Joseph Sutherland, an uncle of the stabbing victim, 24-year-old Kevin Sutherland. “It led to a direct line to my nephew’s death. . . . This shouldn’t happen.”

Cliff Keenan, head of the city’s pretrial system, said, “we will accept blame and responsibility” when there are failures. But when it comes to human beings, he said, “you can’t stop people from making bad decisions.” In the case involving the prosthetic leg, Keenan said his office is reviewing “human error” by the company that fits GPS devices on defendants.

Keenan’s agency supervises about 14,000 people a year in D.C. Superior and U.S. District courts — a figure that does not include juveniles.

In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.

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Keenan frequently faces questions from residents who ask why people taken away in handcuffs one day are back in neighborhoods the next.

“The truly dangerous people are being held,” he said. “Most of the time we get it right.”

Rights arguments

A push for pretrial justice has gained momentum and attention in part because of recent prominent cases, including the $500,000 bail set for a Baltimore protester after the death of Freddie Gray and the detention of a teenage boy, held at Rikers Island for three years on robbery charges that eventually were dismissed. He killed himself last year, two years after being released.

Separately, civil rights lawsuits, brought by the D.C.-based nonprofit Equal Justice Under the Law, have challenged bail practices as unconstitutional. The Justice Department has signed on in an Alabama case, saying preset bail, without an inquiry into a person’s ability to pay, violates the 14th Amendment’s equal protection and due process clauses.

“It’s movement like we’ve never seen,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute.

But it is a movement that still meets powerful pockets of resistance.

In Maryland, Montgomery County courts use a form of risk assessment, although judges still set bail. Legislation to overhaul the system statewide has never made it out of the House Judiciary Committee in the face of opposition from the bail industry, which says pledging cash or bonds is necessary to pull people back to court.

Advocates who successfully pushed last year to roll back mandatory minimum prison sentences for drug offenders in Maryland have vowed to make pretrial reform their next target.

Changing the system

In 1964, then-Attorney General Robert F. Kennedy decried as unjust a bail system in which wealth — not guilt, innocence or type of crime — was the main factor that determined whether a person was locked up before trial.

Two decades later, a 1987 Supreme Court decision expressly allowed prosecutors in the federal system to detain people without bail before trial when the government could prove the person arrested posed a significant threat.

Building on that ruling, D.C. Council members passed a law in 1991, at the height of the city’s crack wars, that expanded the crimes for which a person could be held before trial.

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But the then-head of pretrial services, John A. “Jay” Carver, added a pivotal sentence that prohibited imposing a “financial condition” that a person could not pay — in effect, doing away with the bail-bond business in the District.

“I thought there would be mayhem on the streets, but it wasn’t simply opening up the doors and letting all of these dangerous people go free,” said former D.C. attorney general Bob Spagnoletti, now a criminal-defense lawyer. “The world doesn’t come to an end when all of these people charged with low-level offenses are released.”

Reform advocates say converting to a risk-based system can be less expensive because jails house fewer people. Nationally, the average cost to hold someone in jail before trial is $75 a day, compared with about $7 a day to supervise a person in the community, according to the Pretrial Justice Institute.

When District judges talk about the system, they almost always encounter skepticism about how other jurisdictions could replicate it. Federal prosecutors handle most local criminal cases in the District. The federal government entirely funds the independent pre-trial agency whose $62 million budget pays for about 350 employees and includes a drug-testing lab, treatment services and mental-health and drug courts.

Calculating the risk

On a typical day, more than a dozen pretrial officers pull together background on what can be more than 100 people prosecutors have decided to “paper,” or charge. The operation runs 24 hours a day, with officers checking criminal records, outstanding warrants and probation violations. Already, most arrested for crimes such as drinking in public or disorderly conduct have paid a small fee to avoid going to court or received a citation to appear later.

Those who remain are locked up nearby.

Pretrial officers jockey for space with defense attorneys to learn more about the people arrested before they see a judge. Defendants in street clothes lean against white cinderblock walls.

Sitting in small booths, officers strain over noise to interview people they call clients: How long have you lived in Washington? Are you married? Children? Are you employed? Are you being treated for mental health or substance abuse?

Seventy factors go into a database that calculates the risk that the person would commit another crime or not return to court.

In all but the most serious cases, the presumption is release.

The court clerk talks quickly, the judge acts fast and in less than five minutes, the decision is made.

About two-thirds of defendants are released with terms that include drug testing, stay-away orders or weekly phone or in-person reporting. About 10 percent get tighter monitoring, such as GPS ankle bracelets and home confinement.

In the highest-risk cases, the recommendation to the court is blunt: There are “no conditions or combination of conditions that can reasonably assure the defendant’s appearance or safety to the community.”

Elsewhere, advocates for reform say, state and county judges often hide behind steep bail to hold someone they merely suspect may be dangerous.

“Here we are transparent,” said D.C. Superior Court Judge Robert E. Morin, who will take over as chief judge in October. “We say that the evidence at this time demonstrates you are dangerous, and therefore you are to be detained. Judges from other jurisdictions who visit are surprised when there is no mention of a money bond.”

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Free to go

On a Friday last year, 85 people were on the lockup list. Courtroom seats filled with friends and relatives waiting for the judge’s decision — in or out.

The clerk called for defendant No. 3. A 24-year-old from Northeast shuffled to face the bench. He was charged with second-degree theft and unlawful entry. Prosecutors did not ask to have him detained.

Judge William W. Nooter admonished the man for failing to regularly check in with pretrial officers as he was required to in a separate pending misdemeanor case.

“You have to report to pretrial if you want to stay on the streets,” Nooter told him. “If you fail to do this, you could end up locked up before your trial.”

The judge ordered the marshals to unlock the man’s chains. The clerk set a new court date. He was free to go.”

Why We Badly Need Bail Reform in America – The Jim Jefferies Show

Further Reading

NPR: What Changed After D.C. Ended Cash Bail (2018)

Konbini: This App Lets You Bail Out Black Prison Inmates with Your Spare Change

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Felon Disenfranchisement

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Vox: How America’s justice system is rigged against the poor

Generational Disenfranchisment

“Jarvious Cotton cannot vote, Like his father, grandfather, great-grandfather, great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States, but who were denied the most basic freedom that democracy promise, the freedom to vote for those how will make the rules and laws that govern one’s life. Cotton’s great-great-father could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by the Klan intimidation. His father was barred from voting by poll taxes and literacy test. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole” Michelle Alexander – The New Jim Crow

Felon Voter Disenfranchisement

  • In many states felons lose your right to vote.
    • 13% of black men are not allowed to vote in the US
    • Because of racial disparities in incarceration
      • These laws disproportionately disenfranchise people of color

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Source: Sentencing Project via Wall of Us

  • Over 6 million US citizens can’t vote from past felons
    • These laws have a disproportionate impact on minorities
    • 1 in 13 black person have lost their right to vote
      • 4x the rate for all other Americans
  • State approaches to felon disenfranchisement vary
    • Maine, Vermont, California, felons never lose their right to vote, even while they are incarcerated
    • 38 states and the DC, most ex-felons automatically gain the right to vote upon the completion of their sentence
    • Florida, Iowa and Virginia, felons and ex-felons permanently lose their right to vote
    • In Florida roughly 1.5 million Florida residents (almost 2.5% of the state’s population) are disenfranchised because law
      • Clinton lost Florida by just 119,770 votes
      • White lawmakers designed this after the Civil War in deliberate attempt to dilute the voting power of freed slaves
      • In 2016, 1 in 4 Florida’s black residents could not cast a ballot
    • 2018 Florida voted to give felons back right to vote
  • With some exceptions felon disenfranchisement often has racial implications:
    • People of color lopsidedly favor Democrats
    • Many states who limit felons’ voting rights are in deep-red Appalachia and the Deep South

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History of Felon Voter Disenfranchisement

  • Colonial Period
    • Laws disenfranchising felons existed in the US since its founding
  • Reconstruction
    • Southern states expand felony convictions to circumvent the requirements of the 15th Amendment, which guaranteed the right to vote to black people
      • Lawmakers implemented racist criminal laws to target black citizens
      • States enact disenfranchisement laws that revoke voting rights from felons
  • Proponents of Felony Disenfranchisement
    • Argue laws may deter crime but no evidence has suggested this
    • Disenfranchisement is more likely to have the opposite effect by:
      • Further marginalizing formerly incarcerated people from civil society
      • Reality, reduces political power to reform social-economic systems increasing crime

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Additional Disenfranchisements

  • Roughly 65 million people have criminal records today (1/3 of population)
    • Includes millions never convicted but arrests records still come up on pre-screenings
    • Roughly same number of people who have a college education
    • Disproportionately people of color
      • 8% of population have felony convictions
        • 33% of black male population
  • Most experience some form of discrimination from the below services
    • Employment discrimination
      • Much harder to find work with felony or arrest record, especially while black
        • UC study found white felons more likely to be hired than blacks non-felons
      • Causes many to seek illegal incomes
    • Housing discrimination
      • Much harder to find housing, especially affordable housing
      • 1 strike you’re out for public housing
      • Has caused an epidemic of homelessness
    • Denial of educational opportunity
      • Harder to get accepted or to receive student loans
      • Clinton banned prison education, slowly coming back during Obama presidency
      • Felons can’t get VA education funding
    • Denial of food stamps (SNAP) benefits
      • 7 states still have bans from the 1990s on food stamps for drug felons
    • Denial of welfare (TANF) benefits
      • 12 states have full ban of welfare benefits fro drug felons
      • Many more states have partial ban
    • Exclusion from jury service
      • Most states ban felons from jury selection
    • Prison debts
      • Many states require returning citizens to pay court, prison, and/or probation fees
      • Probation officers can require up to 35% of income directed towards these fees
  • “Ban the box” laws
    • Prohibit employers from asking applicants about criminal history on job application
    • 33 states and over 150 cities and counties have adopted
    • Gives returning citizens a fair change to be assess on their qualifications

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Prisoner Re-entry: Last Week Tonight with John Oliver (HBO)

 

NY Times: Prison and the Poverty Trap

WASHINGTON — Why are so many American families trapped in poverty? Of all the explanations offered by Washington’s politicians and economists, one seems particularly obvious in the low-income neighborhoods near the Capitol: because there are so many parents like Carl Harris and Charlene Hamilton.

For most of their daughters’ childhood, Mr. Harris didn’t come close to making the minimum wage. His most lucrative job, as a crack dealer, ended at the age of 24, when he left Washington to serve two decades in prison, leaving his wife to raise their two young girls while trying to hold their long-distance marriage together.

His $1.15-per-hour prison wages didn’t even cover the bills for the phone calls and marathon bus trips to visit him. Struggling to pay rent and buy food, Ms. Hamilton ended up homeless a couple of times.

“Basically, I was locked up with him,” she said. “My mind was locked up. My life was locked up. Our daughters grew up without their father.”

The shift to tougher penal policies three decades ago was originally credited with helping people in poor neighborhoods by reducing crime. But now that America’s incarceration rate has risen to be the world’s highest, many social scientists find the social benefits to be far outweighed by the costs to those communities.

“Prison has become the new poverty trap,” said Bruce Western, a Harvard sociologist. “It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”

Among African-Americans who have grown up during the era of mass incarceration, one in four has had a parent locked up at some point during childhood. For black men in their 20s and early 30s without a high school diploma, the incarceration rate is so high — nearly 40 percent nationwide — that they’re more likely to be behind bars than to have a job.

No one denies that some people belong in prison. Mr. Harris, now 47, and his wife, 45, agree that in his early 20s he deserved to be there. But they don’t see what good was accomplished by keeping him there for two decades, and neither do most of the researchers who have been analyzing the prison boom.

The number of Americans in state and federal prisons has quintupled since 1980, and a major reason is that prisoners serve longer terms than before. They remain inmates into middle age and old age, well beyond the peak age for crime, which is in the late teenage years — just when Mr. Harris first got into trouble.

‘I Just Lost My Cool’

After dropping out of high school, Mr. Harris ended up working at a carwash and envying the imports driven by drug dealers. One day in 1983, at the age of 18, while walking with his girlfriend on a sidewalk in Washington where drugs were being sold, he watched a high-level dealer pull up in a Mercedes-Benz and demand money from an underling.

“This dealer was draped down in jewelry and a nice outfit,” Mr. Harris recalled in an interview in the Woodridge neighborhood of northeast Washington, where he and his wife now live. “The female with him was draped down, too, gold and everything, dressed real good.

“I’m watching the way he carries himself, and I’m standing there looking like Raggedy Ann. My girl’s looking like Raggedy Ann. I said to myself, ‘That’s what I want to do.’ ”

Within two years, he was convicted of illegal gun possession, an occupational hazard of his street business selling PCP and cocaine. He went to Lorton, the local prison, in 1985, shortly after he and Ms. Hamilton had their first daughter. He kept up his drug dealing while in prison — “It was just as easy to sell inside as outside” — and returned to the streets for the heyday of the crack market in the late 1980s.

The Washington police never managed to catch him with the cocaine he was importing by the kilo from New York, but they arrested him for assaulting people at a crack den. He says he went into the apartment, in the Shaw neighborhood, to retrieve $4,000 worth of crack stolen by one of his customers, and discovered it was already being smoked by a dozen people in the room.

“I just lost my cool,” he said. “I grabbed a lamp and chair lying around there and started smacking people. Nobody was hospitalized, but I broke someone’s arm and cut another one in the leg.”

An assault like that would have landed Mr. Harris behind bars in many countries, but not for nearly so long. Prisoners serve significantly more time in the United States than in most industrialized countries. Sentences for drug-related offenses and other crimes have gotten stiffer in recent decades, and prosecutors have become more aggressive in seeking longer terms — as Mr. Harris discovered when he saw the multiple charges against him.

For injuring two people, Mr. Harris was convicted on two counts of assault, each carrying a minimum three-year sentence. But he received a much stiffer sentence, of 15 to 45 years, on a charge of armed burglary at the crack den.

“The cops knew I was selling but couldn’t prove it, so they made up the burglary charge instead,” Mr. Harris contended. He still considers the burglary charge unfair, insisting that he neither broke into the crack den nor took anything, but he also acknowledges that long prison terms were a risk for any American selling drugs: “I knew other dealers who got life without parole.”

As it was, at the age of 24 he was facing prison until his mid-40s. He urged his wife to move on with her life and divorce him. Despondent, he began snorting heroin in prison — the first time, he says, that he had ever used hard drugs himself.

“I thought I was going to lose my mind,” he said. “I felt so bad leaving my wife alone with our daughters. When they were young, they’d ask on the phone where I was, and I’d tell them I was away at camp.”

His wife went on welfare and turned to relatives to care for their daughters while she visited him at prisons in Tennessee, Texas, Arizona and New Mexico.

“I wanted to work, but I couldn’t have a job and go visit him,” Ms. Hamilton said. “When he was in New Mexico, it would take me three days to get there on the bus. I’d go out there and stay for a month in a trailer near the prison.”

In Washington, she and her daughters moved from relative to relative, not always together. During one homeless spell, Ms. Hamilton slept by herself for a month in her car. She eventually found a federally subsidized apartment of her own, and once the children were in school she took part-time jobs. But the scrimping never stopped. “We had a lot of Oodles of Noodles,” she recalled.

Eleven years after her husband went to prison, Ms. Hamilton followed his advice to divorce, but she didn’t remarry. Like other women in communities with high rates of incarceration, she faced a shortage of potential mates. Because more than 90 percent of prisoners are men, their absence skews the gender ratio. In some neighborhoods in Washington, there are 6 men for every 10 women.

“With so many men locked up, the ones left think they can do whatever they want,” Ms. Hamilton said. “A man will have three mistresses, and they’ll each put up with it because there are no other men around.”

Epidemiologists have found that when the incarceration rate rises in a county, there tends to be a subsequent increase in the rates of sexually transmitted diseases and teenage pregnancy, possibly because women have less power to require their partners to practice protected sex or remain monogamous.

When researchers try to explain why AIDS is much more prevalent among blacks than whites, they point to the consequences of incarceration, which disrupts steady relationships and can lead to high-risk sexual behavior. When sociologists look for causes of child poverty and juvenile delinquency, they link these problems to the incarceration of parents and the resulting economic and emotional strains on families.

Some families, of course, benefit after an abusive parent or spouse is locked up. But Christopher Wildeman, a Yale sociologist, has found that children are generally more likely to suffer academically and socially after the incarceration of a parent. Boys left fatherless become more physically aggressive. Spouses of prisoners become more prone to depression and other mental and physical problems.

“Education, income, housing, health — incarceration affects everyone and everything in the nation’s low-income neighborhoods,” said Megan Comfort, a sociologist at the nonprofit research organization RTI International who has analyzed what she calls the “secondary prisonization” of women with partners serving time in San Quentin State Prison.

Before the era of mass incarceration, there was already evidence linking problems in poor neighborhoods to the high number of single-parent households and also to the high rate of mobility: the continual turnover on many blocks as transients moved in and out.

Now those trends have been amplified by the prison boom’s “coercive mobility,” as it is termed by Todd R. Clear, the dean of the School of Criminal Justice at Rutgers University. In some low-income neighborhoods, he notes, virtually everyone has at least one relative currently or recently behind bars, so families and communities are continually disrupted by people going in and out of prison.

A Perverse Effect

This social disorder may ultimately have the perverse effect of raising the crime rate in some communities, Dr. Clear and some other scholars say. Robert DeFina and Lance Hannon, both at Villanova University, have found that while crime may initially decline in places that lock up more people, within a few years the rate rebounds and is even higher than before.

New York City’s continuing drop in crime in the past two decades may have occurred partly because it reduced its prison population in the 1990s and thereby avoided a subsequent rebound effect.

Raymond V. Liedka, of Oakland University in Michigan, and colleagues have found that the crime-fighting effects of prison disappear once the incarceration rate gets too high. “If the buildup goes beyond a tipping point, then additional incarceration is not going to gain our society any reduction in crime, and may lead to increased crime,” Dr. Liedka said.

The benefits of incarceration are especially questionable for men serving long sentences into middle age. The likelihood of committing a crime drops steeply once a man enters his 30s. This was the case with Mr. Harris, who turned his life around shortly after hitting 30.

“I said, ‘I wasn’t born in no jail, and I’m not going to die here,’ ” he recalled, describing how he gave up heroin and other drugs, converted to Islam and went to work on his high school equivalency degree.

But he still had 14 more years to spend in prison. During that time, he stayed in touch with his family, talking to his children daily. When he was released in 2009, he reunited with them and Ms. Hamilton.

“I was like a man coming out of a cave after 20 years,” Mr. Harris said. “The streets were the same, but everything else had changed. My kids were grown. They had to teach me how to use a cellphone and pay for the bus.”

The only job he could find was at a laundry, where he sorted soiled linens for $8.25 an hour, less than half the typical wage for a man his age but not unusual for someone just out of prison. Even though the District of Columbia has made special efforts to find jobs for ex-prisoners and to destigmatize their records — they are officially known as “returning citizens” — many have a hard time finding any kind of work.

This is partly because of employers’ well-documented reluctance to hire anyone with a record, partly because of former prisoners’ lack of work experience and contacts, and partly because of their difficulties adapting to life after prison.

“You spend long enough in prison being constantly treated like a dog or a parrot, you can get so institutionalized you can’t function outside,” Mr. Harris said. “That was my biggest challenge, telling myself that I’m not going to forget how to take care of myself or think for myself. I saw that happen to too many guys.”

‘Crippled by Incarceration’

The Rev. Kelly Wilkins sees men like that every day during her work at the Covenant Baptist Church in Washington, which serves the low-income neighborhoods east of the Anacostia River.

“A lot of the men have been away so long that they’re been crippled by incarceration,” she said. “They don’t how to survive in the community anymore, and they figure it’s too late for someone in their 40s to start life over.”

A stint behind bars tends to worsen job prospects that weren’t good to begin with. “People who go to prison would have very low wages even without incarceration,” said Dr. Western, the Harvard sociologist and author of “Punishment and Inequality in America.” “They have very little education, on average, and they live in communities with poor job opportunities, and so on. For all this, the balance of the social science evidence shows that prison makes things worse.”

Dr. Western and Becky Pettit, a sociologist at the University of Washington, estimate, after controlling for various socioeconomic factors, that incarceration typically reduces annual earnings by 40 percent for the typical male former prisoner.

The precise financial loss is debatable. Other social scientists have come up with lower estimates for lost wages after incarceration, but everyone agrees it’s only part of the cost. For starters, it doesn’t include wages lost while a man is behind bars.

Nor does it include all the burdens borne by the prisoner’s family and community during incarceration — the greatest cost of all, says Donald Braman, an anthropologist at George Washington University Law School who wrote “Doing Time on the Outside” after studying families of prisoners in Washington.

“The social deprivation and draining of capital from these communities may well be the greatest contribution our state makes to income inequality,” Dr. Braman said. “There is no social institution I can think of that comes close to matching it.”

Drs. DeFina and Hannon, the Villanova sociologists, calculate that if the mass incarceration trend had not occurred in recent decades, the poverty rate would be 20 percent lower today, and that five million fewer people would have fallen below the poverty line.

Ms. Hamilton and Mr. Harris have now risen above that poverty line, and they consider their family luckier than many others. Their two daughters finished high school; one went to college; both are employed. Ms. Hamilton is working as an aide at a hospital. Mr. Harris has a job as a security guard and a different outlook on life.

“I don’t worry about buying clothes anymore,” he said. He and his wife are scrimping to save enough so they can finally, in their late 40s, buy a home together.

“It’s like our life is finally beginning,” Ms. Hamilton said. “If he hadn’t been away so long, we could own a house by now. We would probably have more kids. I try not to think about all the things we lost.”

Accentuating the Positive

She and her husband prefer to accentuate the positive, even when it comes to the police and prison. They appreciate that some neighborhoods in Washington are much safer now that drug dealers aren’t fighting on street corners and in crack dens anymore. They figure the crackdown on open-air drug markets helped both the city and Mr. Harris.

“If I hadn’t been locked up, I probably would have ended up getting killed on the streets,” Mr. Harris said. His wife agreed.

“Prison was good for him in some ways,” Ms. Hamilton said. “He finally grew up there. He’s a man now.”

But 20 years?

“They overdid it,” she said. “It didn’t have to take that long at all.”

Barred from the Ballot Box: Felon Disenfranchisement in America

Source: The Sentencing Project

Six million American adults are legally ineligible to vote, members of a group whose ranks have roughly quintupled over the past 40 years. In Kentucky and Tennessee, this group now comprises more than a fifth of the African American population; in Florida, this group composes more than 10 percent of the adult population. But these states merely dramatize a larger phenomenon: nationwide, 48 states prevent certain citizens from voting. Why? They have felony convictions.

Lately, rulings and ballot measures — including Florida’s upcoming Amendment 4, which would constitutionally restore the franchise for life to hundreds of thousands of felons — reflect the growing consensus the states’ felon disenfranchisement laws have gone too far: according to the Prison Policy Initiative, “the U.S. justice system controls more than 7 million people,” most of whom are on probation. In states where the franchise can be restored by the governor’s personal pardon, the New York Times reports that “in the last few years, Terry McAuliffe, as Virginia’s governor, restored voting rights to more than 168,000 people, and the governors in Kentucky and Iowa granted roughly 9 in 10 of the restoration requests they received in the first half of the decade.” These executive actions reflect a growing movement to correct the overreach of our criminal justice system.

Felon disenfranchisement is old news in America — laws barring some felons from the polls have existed for 150 years. Historically, challenges to state felon disenfranchisement laws have foundered at the Supreme Court, but the legal basis for the fight is unusually ambiguous because the constitutional basis for felon disenfranchisement, Section II of 14th Amendment, performs an odd legal trick: for the purposes of Congressional representation, Section II says that anyone denied the right to vote based on “participation in rebellion, or other crime” shall be nonetheless counted. So the Constitution implicitly condones felon disenfranchisement without explicitly legislating anything. The “constitutional” defense of felon disenfranchisement laws is certainly clear given the technical, precedent-oriented nature of jurisprudence.

But even if such technicalities suffice in a legal sense, the real question is not about what the Constitution establishes, for the Constitution can be amended (indeed, felon disenfranchisement appears to be an afterthought in one such amendment). The real question is whether America should exclude any of its citizens from the democratic process; the quandary is moral, not technical.

And felon disenfranchisement laws have only gotten worse in recent years, with increasingly profound consequences for certain populations; indeed, some felons can vote, but those who cannot are disproportionately people of color and the poor. And that’s no accident. According to the Brennan Center for Justice, after the Civil War, “two interconnected trends combined to make disenfranchisement a major obstacle for newly enfranchised black voters. First, lawmakers — especially in the South — implemented a slew of criminal laws designed to target black citizens. And nearly simultaneously, many states enacted broad disenfranchisement laws that revoked voting rights from anyone convicted of any felony.” As the documentary, The 13th and efforts like The Sentencing Project observe, targeting felony convictions as a proxy for a race gives political cover to politicians seeking to disenfranchise Latinos or African Americans.

Source: The Sentencing Project

The racial implications of felon disenfranchisement have obvious political overtones: People of color lopsidedly favor Democrats, and many states who limit felons’ voting rights are in deep-red Appalachia and the Deep South. But the issue isn’t neatly partisan. Massachusetts voters (not famed for conservatism) amended the state constitution in 2000 to disenfranchise incarcerated felons, and in 1997, then-Texas Governor George W. Bush signed a law “eliminating the two-year waiting period after completion of sentence before individuals can regain their right to vote.”

But partisan or not, the issue is absolutely political — politicians across the country and on both sides of the aisle have for decades campaigned to appear “tough on crime,” although the issue has certainly waned as crime has plummeted from its peak in the mid-1990s. We are, however, witnessing a resurgence of anti-crime posturing, albeit with vintage language: the president campaigned during the 2016 cycle about restoring “law and order” — a perhaps unwitting use of rhetoric favored by Richard Nixon in the late 1960s — rather than regurgitating the Reagan/Clinton era lexicon. Much of the impetus for felon disenfranchisement policies has involved political calculations that being “tough on crime” had good optics, and disenfranchising felons offered politicians a way to appear grave and resolute about punishing criminals without escalating the already draconian mandatory minimums and exceptionally long sentences increasingly being enacted.

Irrespective of politics, however, states’ handling of felon voting rights is, from a legal perspective, exceptionally arbitrary and somewhat constitutionally dubious. Alabama, for instance, includes sodomy and possession of marijuana under its definition of “moral turpitude” for which felons are disenfranchised. But it also includes murder, manslaughter, and rape. Implicitly, Alabama law conflates the severity of minor drug convictions with first-degree murder, an absurd equivalency which highlights pervasive arbitrariness in such laws.

In contemporary debate, defenders of felon disenfranchisement laws will note that in some states (albeit mostly those with the smallest black populations), the felon population largely comprises older white men — a largely conservative demographic. They argue that if some states are disenfranchising likely Republican voters — and moreover, predominantly white voters – that the system cannot possibly be racist or biased against Democrats. By contrast, liberals respond that voters of color are nonetheless disproportionately incarcerated, even if they represent a minority of disenfranchised voters. And progressives also contend that in addition to being anti-Democratic, felon disenfranchisement is also deeply anti-democratic.

Perhaps some convicted of felonies — those guilty of extremely violent crimes, for instance — have truly gone beyond the pale. But most of those people will walk free again. They will hope to lead normal lives. They will hope to atone and be forgiven. And they will want to be part of a society that now appears to want no part of them. In short, they will be at the mercy of a merciless nation – one which favors punishment over restraint, where the “justice” system has reinvented injustice.

If America is to remain the land of the free — the birthplace of modern democracy — it behooves us to choose rehabilitation rather than retribution. If they have served their time, people deserve to participate. If they have not harmed others, former felons should regain the franchise. Certain crimes — murder, terrorism, treason — may trespass too severely on our morals. But most Americans who are locked up should not be locked out of democracy — especially not its most profound and precious civic duty.”

 —

Sentencing Project: Democracy Imprisoned: The Prevalence and Impact of Felony Disenfranchisement Laws in the United States

This report has been authored by a coalition of non-profit organizations working on civil rights and criminal justice issues in the United States.

The following organizations contributed to this report: the American Civil Liberties Union (ACLU), the ACLU of Florida, the Hip Hop Caucus, the Lawyers’ Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People (NAACP), the NAACP Legal Defense and Educational Fund, Inc. and The Sentencing Project (collectively, the “Reporting Organizations”). Descriptions of each organization are attached as Appendix A.

Introduction and Issue Summary

Some of the Reporting Organizations made List of Issues Submissions to the Human Rights Committee (the “Committee”) in December 2012. This report updates items from those submissions and provides additional information to aid in the Committee’s review of the United States’ (“U.S.” or “Government”) felony disenfranchisement practices.1) As a supplement to those Submissions, this report includes an overview of the history of and rationale for felony disenfranchisement laws in the United States, considers the U.S.’ disenfranchisement practices in the context of other nations, and discusses recent state law developments.

After its review of the United States’ second and third periodic report, the Committee expressed concern that the country’s felony disenfranchisement practices have “significant racial implications.” It also  noted  that “general  deprivation  of  the right to vote  for persons  who  have received  a  felony conviction, and in particular for those who are no longer deprived of liberty, do not meet the requirements of articles 25 and 26 of the Covenant, nor serves the rehabilitation goals of article 10(3).”2) The Reporting Organizations are encouraged by the Committee’s interest in felony disenfranchisement practices in the United States and share the Committee’s concerns about the extent to which these laws and their impact are consistent with the critical human rights protections enshrined in the Convention.

The United States continues to lead the world in the rate of incarcerating its own citizens. The reach of the American correctional system has expanded over the course of the past half-century. In 1980, fewer than two million individuals were either incarcerated or on probation or parole; in 2011, that number was over seven million.3)  Despite a decrease in the prison population over the past three years and substantial reform efforts in some states, the overall disenfranchisement rate has increased dramatically in conjunction with the growing U.S. corrections population, rising from 1.17 million in 1976 to 5.85 million by 2010.4) The growing incarceration rate has been mirrored by the disenfranchisement rate, which has increased by about 500% since 1980.5) The fact that felony disenfranchisement is so wide reaching is deeply  disturbing,  and  indicates  that these  laws undermine  the open, participatory  nature  of  our democratic process.

Disproportionate Impact of Felony Disenfranchisement Laws on Minorities

There  is clear evidence  that state felony  disenfranchisement  laws have a disparate impact  on African  Americans   and  other  minority  groups.  At  present, 7.7%  of  the adult  African-American population, or one out of every thirteen, is disenfranchised. This rate is four times greater than the non- African-  American population  rate  of  1.8%.6) In  three  states,  at  least  one  out  of  every five African- American adults is disenfranchised:  Florida (23%), Kentucky (22%), and Virginia (20%).7) Nationwide, 2.2 million African-Americans are disenfranchised on the basis of involvement with the criminal justice system, more than 40% of whom have completed the terms of their sentences.8)

Information on the disenfranchisement  rates of other groups is extremely limited, but the available data suggests felony disenfranchisement laws may also disproportionately impact individuals of Hispanic origin  and  others.  Hispanics  are incarcerated  in  state  and  federal  prisons  at  higher rates  than non- Hispanics: about  2.4  times  greater  for Hispanic  men  and  1.5  times  for Hispanic  women 9) If  current incarceration trends hold, 17% of Hispanic men will be incarcerated during their lifetimes, in contrast to less  than 6%  of  non-Hispanic white  men.10)  Given these disparities, it  is  reasonable  to assume  that individuals of Hispanic origin are likely to be barred from voting under felony disenfranchisement laws at disproportionate rates.

History and Rationale of Felony Disenfranchisement Laws

In one form or another, laws that disenfranchise individuals with felony convictions have existed in the United States since its founding. In fact, twenty-nine states had such laws on the books at the time of the ratification of the Constitution 11)  These laws were borne out of the concept of a punitive criminal justice system  –  those convicted  of  a  crime  had  violated  social  norms,  and, therefore, had proven themselves unfit to participate in the political process. Beginning around the end of Reconstruction  – about 1870 – many southern states significantly broadened felony disenfranchisement and began focusing on crimes believed to be disproportionately committed by African Americans.12)  It was used along with a bevy of other measures as a means to circumvent the requirements of the Fifteenth Amendment,13) which prohibited  states  from  preventing  individuals from voting on  the basis  of  “race,  color,  or  previous condition of servitude.”14)  The justifications for disenfranchising individuals with felony convictions were ostensibly based on fears over the “purity of the ballot box” and concern that allowing certain current or even former inmates to vote would “pervert” the political process.15) These laws were often upheld by reference to an exemption for felony disenfranchisement in Section 2 of the Fourteenth Amendment  – “participation  in rebellion,  or other crime.”16) Rather than punitive focusing  on the individual–  these laws were deemed by the Supreme Court to be regulatory – focusing on the ballot and election itself.17)

Over the course of the twentieth century, attitudes towards criminality have gradually come to include  recognition  of  the possibility  of  the rehabilitation  and reintegration  of  former  prisoners into society  upon  their  release.18)  However, there  has  not  been  a  corresponding  realignment of felony disenfranchisement laws to make them consistent with more contemporary goals of the criminal justice system – increasing public safety and reducing reoffending.

Proponents  of  felony  disenfranchisement   argue  that such  laws  may  deter crime,19)  though disenfranchisement has not been shown to actually accomplish the goal of deterrence. One commentator, for example,  has observed  that, “[r]ecent research  suggests  a negative  correlation between  voting and subsequent criminal activity among those with and without prior criminal history.”20) Disenfranchisement, on the other hand, is likely to have the opposite effect by further marginalizing and alienating formerly incarcerated individuals from civil society. Other arguments in support of felony disenfranchisement are unpersuasive,  as  well.  For example,  some  suggest that, if  allowed  to vote,  individuals  with  felony convictions would constitute a cohesive voting bloc, which would distort criminal law.21) However, the fear  that individuals  with  felony  convictions  may “distort” the law through  voting  is unfounded and certainly not an acceptable ground to prevent them from exercising that right.22) The Supreme Court, for example, has previously held – although not in a felony disenfranchisement case – that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”23).))  In addition, little  evidence exists to suggest  that former  inmates  of any  sort would cohere into a constituency, or that, if they did, any viable candidate would specifically court their votes.24)

The arguments against felony disenfranchisement are strong. Felony disenfranchisement operates contrary to the goals of ensuring public safety and reducing reoffending by alienating from society those individuals that the criminal justice system is simultaneously attempting to reintegrate. Further, as the Committee has noted, state disenfranchisement laws are problematic not only due to the vast numbers of potential  voters  they affect,  but  also  their  disproportionate  impact on racial minorities,  particularly African Americans and Hispanics. Further, many of these laws extend punishment beyond the walls of the prison by continuing to disenfranchise  individuals who are on probation, parole or have completed their full sentences. For this reason, it is particularly important that the Committee urge the United States to provide its rationale for continuing to deprive individuals with felony convictions of the right to vote after they are no longer incarcerated.

The United States in International Context

Not only does the sheer number of individuals the United States imprisons set it apart from most nations, the United States has further distinguished  itself from other countries through the widespread practice of depriving individuals  with felony convictions  of the right to vote. Disenfranchisement  is a rarity in the democratic world, both for the incarcerated and for those released.25) Under article 25, governments  may  impose reasonable  restrictions  on  the right  to vote,  such  as  prohibiting  voting  by inmates. However, permanent disenfranchisement for a felony conviction—the policy in Florida, for example—fails to meet the requirements of article 25 of the ICCPR. Lifetime disenfranchisement  does not  satisfy  the requirement  that the grounds for the deprivation  of  voting  rights be  “objective and reasonable”  or  that the suspension  of  rights be  “proportionate”  to the offense  and  sentence.26)  This conclusion is consistent with the Committee’s 2006 Concluding Observations after the U.S.’ review.

The United States’ status as an outlier is further affirmed  by the growing  reluctance of other nations to accept felony disenfranchisement.  Even when such laws have been promulgated,  they have often been struck down in the courts.27) For example, in 1999, the South African high court struck down legislation  disenfranchising  all prisoners,  noting  that a  republic  is “founded on…universal  adult suffrage” which is “one of the fundamental values of the constitutional order.”28) Likewise, the European Court  of  Human  Rights has  struck down  similar  laws  in  both  the United Kingdom  and  Austria  as incompatible with the European Convention on Human Rights.29) This approach has been echoed by the Canadian  Supreme  Court, as  well.  Striking down  a law providing  for blanket  disenfranchisement  of prisoners, the Court held that the “universal franchise has become . . . an essential part of democracy.”30)  It continued, “if we accept that governmental power in a democracy flows from the citizens, it is difficult to see  how that power  can legitimately be  used  to disenfranchise  the very  citizens  from  whom  the government’s power flows.”31) Yet despite growing international consensus around the elimination or even limitation of felony disenfranchisement laws, these antiquated practices continue in the United States.

State Felony Disenfranchisement Laws

Currently, individuals with felony convictions in the United States are subject to a patchwork of state laws governing their right to vote. The scope and severity of these laws varies widely, ranging from the uninterrupted right to vote to lifetime disenfranchisement,  despite completion of one’s full sentence. The Table in Appendix B provides an overview of the various state laws.

While  some  states  provide  only  for the disenfranchisement  of  those  currently serving  their sentence,  the vast  majority  of disenfranchised  individuals  have completed  their  prison  term.32) Of  the estimated 5.85 million American adults barred from voting, only 25% are in prison. By contrast, 75% of disenfranchised individuals reside in their communities while on probation or parole or after having completed their sentences.33) Approximately 2.6 million individuals who have completed their sentences remain disenfranchised  due to restrictive  state laws.34) Although voting rights restoration  is possible in many states, it is frequently a difficult process that varies widely across states.  Individuals with felony convictions are typically unaware of their restoration rights or how to exercise them. Further, confusion among  elections  officials  about  state  law contributes  to the disenfranchisement  of  eligible  voters.35)

Reliable information on the rate and number of individuals whose rights have been restored is difficult to obtain, but preliminary data suggests that in states that continue to disenfranchise after the completion of an individual’s  sentence,  the percentage  of restoration  ranges  from  less  than 1%  to 16%.   This  data indicates that the vast majority of individuals in these states remain disenfranchised.36)

Recent Developments in State Felony Disenfranchisement Laws

In the past fifteen years there has been a general trend toward liberalization of felony disenfranchisement laws. Since 1997, twenty-three states have changed their felony disenfranchisement policies with the goal of expanding voter eligibility and reducing the restrictiveness  of these laws.37) In some states, this momentum has continued in recent years, while in others, lawmakers have moved in a more restrictive direction.

One of the most recent developments  was in Virginia, which, historically,  has had one of the most restrictive felony disenfranchisement  laws in the country: persons convicted of felonies are barred from voting for life. Voting rights can be restored to individuals  on a case-by-case  basis, but this has required application to and affirmative intervention by the governor.38)  Virginia also has an extraordinarily high rate of disenfranchisement  among adult African-Americans—at  least 20%.39) Given this historically restrictive policy and its disparate impact on communities of color, it is notable that Virginia’s Governor Bob McDonnell  announced  positive changes to the voting rights restoration procedure. As of July 15, 2013,  Virginia  started automatically  (albeit  individually) restoring  the voting  rights of  any  person convicted of a non-violent felony who is no longer under state supervision, does not have pending felony charges, and has paid off any financial obligations imposed by the court.40)  As many as 100,000 people could be eligible to have their voting rights restored under Governor McDonnell’s new policy.41) While Virginia’s new procedure will restore voting rights to a substantial number of people, the fact that the change was achieved through a gubernatorial policy means it may be revoked or revised by future administrations.

In April 2013, Delaware amended the state constitution to repeal a voter disenfranchisement provision. As a result, individuals convicted of most felonies will no longer have to wait five years after completion of their full sentences (including probation and parole) to regain their voting rights. Instead, they will be automatically eligible  to vote.  However,  some  other  felony  convictions  will result  in permanent disqualification from voting, unless a pardon is secured from the governor.42)

Other states have also relaxed felony disenfranchisement restrictions, but have seen the policy reversed by subsequent administrations. For example, in 2005 Iowa Governor Tom Vilsack issued an executive order that changed Iowa’s felony disenfranchisement  policy from lifetime disenfranchisement with  the possibility  of individualized  gubernatorial  pardon  to a  more moderate  policy  of automatic restoration of voting rights upon completion of a criminal sentence.43)  Governor Vilsack’s action led to an 81% reduction in the number of people disenfranchised in Iowa and an estimated 100,000 individuals regained the right to vote.44) In 2011, however, a new governor, Terry Branstad, reversed this policy and reinstated the former process of individualized  executive review. Two years later, the Associated Press reported  that although 8,000 individuals  had completed  their sentences  since Governor Branstad  took office, less than a dozen had successfully regained their voting rights.45)

The state of Florida has also experienced both advances and setbacks in its felony disenfranchisement  policy  during  the course  of the last  two  decades.  However,  the net  result  is that Florida’s disenfranchisement  rate remains the highest and most racially disparate in the United States. Florida  permanently  disenfranchises   all  individuals  with  a  felony  conviction,  unless they receive discretionary executive clemency.  As described in the ACLU of Florida’s List of Issues Submission, the United States singled out Florida’s record on felony disenfranchisement as one of the most restrictive in the nation.   As of 2010, Florida has disenfranchised 1,541,602 citizens due to a felony conviction. This amounts to the disenfranchisement of 10.42% of the state’s voting age population and 23.3% of Florida’s African-American  voting  age population.  Compare  that to the U.S. rates  of 2.4%  of the 238 million voting  age  Americans  disenfranchised,   and  7.7%  of  the nation’s  29  million  voting  age  African Americans, disenfranchised.   As this data demonstrates, Florida’s status as an outlier among the states is particularly pronounced in terms of the absolute number of disenfranchised citizens and racial disparities in rates of disenfranchisement.

Following a felony conviction, the clemency process provides the only route to rights restoration in Florida.  Citizens’ eligibility to apply for voting rights restoration ebbs and flows with changes in the state administration,  leaving Floridians  susceptible  to political manipulation.   For example,  soon after Charlie  Crist  became  governor  in 2007,  he  amended  the Clemency  Board  rules  such  that citizens convicted of non-violent offenses became eligible for voting rights restoration following release from incarceration.   From the 2007 amendments through the end of Crist’s term in 2010, 155,312 people had their rights restored. When Florida’s next Governor, Rick Scott, took office in 2011, he amended the Clemency  Board  rules  to severely restrict  eligibility  for rights restoration. The impact  of  Governor Scott’s rollbacks has been striking.  In 2011, Florida’s Board of Executive Clemency restored the voting rights of only seventy-eight people, while in 2012 the voting rights of just 342 people were restored.46)

Legal Challenges to Felony Disenfranchisement Laws

Legal challenges to felony disenfranchisement laws in the United States have been mostly unsuccessful because courts have refused to apply the same legal principles regarding the fundamental right to vote to individuals with criminal convictions.  As a result, there has not been an adequate judicial response to the disproportionate racial impact of felony disenfranchisement laws on minorities or the unreasonableness  of  state  requirements  regarding  the restoration  of  voting rights – claims  which  fall squarely within the province of Section 1 of the Fourteenth Amendment which ensures equal protection under the law for all people.

The U.S. Supreme Court’s decision in Richardson v. Ramirez, in which individuals with felony convictions who had completed their sentences argued that California’s felony disenfranchisement law violated their equal protection rights, cemented this dichotomy.47)  The Court held that “the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment,” which was not present in other cases involving  restrictions  on the franchise.48)  This ruling is especially  difficult  to reconcile because the Fourteenth Amendment’s Equal Protection Clause has been successfully used to challenge  laws  that appear  racially  neutral  on  their  face,  but  are racially  discriminatory  in  practice. Despite this grim legal landscape, civil rights attorneys have tried to fight these laws by focusing on the misapplication  of  felony  disenfranchisement  laws49), the ambiguity  which  exists  in  some  state  laws regarding which crimes are disenfranchising in the first place50) and the racial disparities inherent in the criminal justice system that result in minorities being disproportionately prosecuted, convicted and, consequently, disenfranchised.51)

Individuals with criminal convictions also have argued in court that state laws that condition the restoration of voting rights on the payment of legal financial obligations, namely court fines, fees and restitution, are  a  form   of  wealth-based discrimination in  violation   of  not   only   the Fourteenth Amendment’s Equal Protection Clause, but also the Twenty-Fourth Amendment to the U.S. Constitution. The Twenty-Fourth Amendment prohibits Congress and states from denying voting rights based on one’s “failure  to pay  any  poll tax or other  tax.”52)  Unfortunately,  cases  with  this  specific  claim  have been unsuccessful as well.

Overall, courts should examine the actual practice and operation of felony disenfranchisement laws and the unequal treatment they exact.  However, until they do, federal legislation is still necessary to address the issue.

Conclusion

The last  few  decades  have been  a  time  of  movement  toward  relaxation  of  the restrictions surrounding felony disenfranchisement in many states. This is in keeping with American public opinion, as surveys show that eight of every ten Americans support the restoration  of voting rights to persons convicted  of  felonies  who  are no longer  under  state  supervision.53)  In  addition,  six  of  ten  Americans support the restoration of voting rights to individuals on probation or parole.54) There have been setbacks alongside  the victories,  however,  both  in  the courts and  at  the state level. Furthermore,  despite  the relaxation of restrictions in some states, disenfranchisement policies in the United States are extreme by international standards, and an estimated 5.85 million Americans are still disenfranchised.55) Additionally, the reforms to date have not eliminated the disparate impact that felony disenfranchisement policies have on minority communities.

Relevant Question in List of Issues

This report focuses on Question 26(a) in the Committee’s List of Issues, concerning felony disenfranchisement  laws and article 25 of the Convention  and the right to take part in the conduct of public affairs.

U.S. Government Response56)

In  its  July  2013  response  to the Committee’s  List  of  Issues,  the U.S. Government  failed  to directly respond to the Committee’s inquiries on felony disenfranchisement in Question 26(a). The Government failed to directly address the Committee’s questions regarding the rationale for post- incarceration disenfranchisement, did not discuss steps it has taken to ensure states restore voting rights to individuals  who have completed  their sentences  or have been released on parole, and did not provide information on the discriminatory impact of felony disenfranchisement laws on minority populations.57)

The Government noted that under the U.S. Constitution, states generally determine eligibility to vote,  and,  while  it  recognized  Congress’  power  to regulate  elections for federal  office  and enact legislation under the anti-discrimination provisions of the Fourteenth and Fifteenth Amendments, the Government  did not express support for Congressional  legislation, such as the Democracy  Restoration Act of 2011, previously introduced in both houses.

The U.S. Government did note that the majority of the forty-eight states that restrict voting by individuals with felony convictions also have restoration processes for those that have completed their sentences  or  have been  released  on  parole.  However, it  failed  to acknowledge  how burdensome, confusing  and costly  the restoration process  can be in some  states.  Further,  the Government  did not mention what steps it plans to take to ensure that states are implementing  fair, uniform  processes for restoring voting rights.

Recommended Questions

The Reporting Organizations recommend that the Committee ask the U.S. Government the same questions posed in Question 26(a) on its List of Issues. These questions capture our major concerns, as well  as those  raised  in the U.S.  review in connection  with  its second  and third  periodic report. The Reporting Organizations do not believe that the U.S. Government has provided a satisfactory response to these questions.

Suggested Recommendations

We ask the Committee to recommend the following:

  1. That the U.S.  Government  publicly  support  the automatic  restoration  of voting  rights to citizens  upon  their  release  from  incarceration  for felony conviction  This  should  include urging Congress to reintroduce and pass the Democracy Restoration Act, which would restore voting rights in federal elections to disenfranchised individuals upon their release from incarceration.
  2. That the U.S.  Government   investigate   the disproportionate   impact  of felony disenfranchisement laws on minority populations and issue a report of its findings.
  3. That the U.S. Government encourage states to inform criminal defendants of the voting rights implications of their arrest or sentencing and to provide information on the voting rights restoration process upon release from prison and/or completion of criminal sent

CBS: Texas woman sentenced five years in prison for voting while on probation


School-to-Prison Pipeline

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AJ+ School-to-Prison Pipeline

“school-to-prison pipeline,” (is) a disturbing national trend wherein children are funneled out of public schools and into the juvenile and criminal justice systems. Many of these children have learning disabilities or histories of poverty, abuse, or neglect, and would benefit from additional educational and counseling services. Instead, they are isolated, punished, and pushed out.

“Zero-tolerance” policies criminalize minor infractions of school rules, while cops in schools lead to students being criminalized for behavior that should be handled inside the school. Students of color are especially vulnerable to push-out trends and the discriminatory application of discipline.” ACLU: School to Prison Pipeline

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School-To-Prison Pipeline Stats

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  • Black students represent 16% of student enrollment
    • Make up 50% of suspensions
      • 3x more likely to be suspended than white students even when their infractions are similar
      • black students are half as likely as white students to be assigned to gifted programs
        • even when they have comparably high test scores
  • Once black children are in the criminal justice system
    • 18x more likely than white children to be sentenced as adults
    • Children of color are more likely to be perceived of as guilty, problem children, young criminals, and funneled into the justice system early

“According to the U.S. Department of Justice, the number of school resource officers rose 38% between 1997-2007… this surge in police on campus helped to criminalize many students and fill the pipeline.” Jerri Katzerman, SPLC deputy legal director

Sources: Everyday Feminism: Here’s Your Proof That White Americans Don’t Face Systemic Racism, The New Progressive: The Ultimate White Privilege Statistics & Data Post , 7 Ways We Know Systemic Racism Is Real

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Root: Breaking Down the School-to-Prison Pipeline

Teaching Tolerance: The School-to-Prison Pipeline

Policies and practices that favor incarceration over education do us all a grave injustice.

In Meridian, Miss., police routinely arrest and transport youths to a juvenile detention center for minor classroom misbehaviors. In Jefferson Parish, La., according to a U.S. Department of Justice complaint, school officials have given armed police “unfettered authority to stop, frisk, detain, question, search and arrest schoolchildren on and off school grounds.” In Birmingham, Ala., police officers are permanently stationed in nearly every high school.

In fact, hundreds of school districts across the country employ discipline policies that push students out of the classroom and into the criminal justice system at alarming rates—a phenomenon known as the school-to-prison pipeline.

Last month, Sen. Richard Durbin, D-Ill., held the first federal hearing on the school-to-prison pipeline—an important step toward ending policies that favor incarceration over education and disproportionately push minority students and students with disabilities out of schools and into jails.

In opening the hearing, Durbin told the subcommittee of the Senate Judiciary Committee, “For many young people, our schools are increasingly a gateway to the criminal justice system. This phenomenon is a consequence of a culture of zero tolerance that is widespread in our schools and is depriving many children of their fundamental right to an education.”

A wide array of organizations—including the Southern Poverty Law Center, the NAACP and Dignity in Schools—offered testimony during the hearing. They joined representatives from the Departments of Education and Justice to shine a national spotlight on a situation viewed far too often as a local responsibility.

“We have a national problem that deserves federal action,” Matthew Cregor, an attorney with the NAACP Legal Defense Fund, explained. “With suspension a top predictor of dropout, we must confront this practice if we are ever to end the ‘dropout crisis’ or the so-called achievement gap.” In the words of Vermont’s Sen. Patrick Leahy, “As a nation, we can do better.”

What is the School-to-Prison Pipeline?

Policies that encourage police presence at schools, harsh tactics including physical restraint, and automatic punishments that result in suspensions and out-of-class time are huge contributors to the pipeline, but the problem is more complex than that.

The school-to-prison pipeline starts (or is best avoided) in the classroom. When combined with zero-tolerance policies, a teacher’s decision to refer students for punishment can mean they are pushed out of the classroom—and much more likely to be introduced into the criminal justice system.

Who’s in the Pipeline?

Students from two groups—racial minorities and children with disabilities—are disproportionately represented in the school-to-prison pipeline. African-American students, for instance, are 3.5 times more likely than their white classmates to be suspended or expelled, according to a nationwide study by the U.S. Department of Education Office for Civil Rights.

Black children constitute 18 percent of students, but they account for 46 percent of those suspended more than once.

For students with disabilities, the numbers are equally troubling. One report found that while 8.6 percent of public school children have been identified as having disabilities that affect their ability to learn, these students make up 32 percent of youth in juvenile detention centers.

The racial disparities are even starker for students with disabilities. About 1 in 4 black children with disabilities were suspended at least once, versus 1 in 11 white students, according to an analysis of the government report by Daniel J. Losen, director of the Center for Civil Rights Remedies of the Civil Rights Project at UCLA.

About 1 in 4 black children with disabilities were suspended at least once, versus 1 in 11 white students with disabilities.

A landmark study published last year tracked nearly 1 million Texas students for at least six years. The study controlled for more than 80 variables, such as socioeconomic class, to see how they affected the likelihood of school discipline. The study found that African Americans were disproportionately punished compared with otherwise similar white and Latino students. Children with emotional disabilities also were disproportionately suspended and expelled.

In other studies, Losen found racial differences in suspension rates have widened since the early 1970s and that suspension is being used more frequently as a disciplinary tool. But he said his recent study and other research show that removing children from school does not improve their behavior. Instead, it greatly increases the likelihood that they’ll drop out and wind up behind bars.

Punishing Policies

The SPLC advocates for changes to end the school-to-prison pipeline and has filed lawsuits or civil rights complaints against districts with punitive discipline practices that are discriminatory in impact.

According to the U.S. Department of Justice, the number of school resource officers rose 38 percent between 1997 and 2007. Jerri Katzerman, SPLC deputy legal director, said this surge in police on campus has helped to criminalize many students and fill the pipeline.

One 2005 study found that children are far more likely to be arrested at school than they were a generation ago. The vast majority of these arrests are for nonviolent offenses. In most cases, the students are simply being disruptive. And a recent U.S. Department of Education study found that more than 70 percent of students arrested in school-related incidents or referred to law enforcement are black or Hispanic. Zero-tolerance policies, which set one-size-fits-all punishments for a variety of behaviors, have fed these trends.

Best Practices

Instead of pushing children out, Katzerman said, “Teachers need a lot more support and training for effective discipline, and schools need to use best practices for behavior modification to keep these kids in school where they belong.”

Keeping at-risk kids in class can be a tough order for educators under pressure to meet accountability measures, but classroom teachers are in a unique position to divert students from the school-to-prison pipeline.

Teachers know their students better than any resource officer or administrator—which puts them in a singularly empowered position to keep students in the classroom. It’s not easy, but when teachers take a more responsive and less punitive approach in the classroom, students are more likely to complete their education.

The information in “A Teacher’s Guide to Rerouting the Pipeline” highlights common scenarios that push young people into the school-to-prison pipeline and offers practical advice for how teachers can dismantle the school-to-prison pipeline.

Avoiding the Pipeline

How can school districts divert the school-to-prison pipeline?

  1. Increase the use of positive behavior interventions and supports.
  2. Compile annual reports on the total number of disciplinary actions that push students out of the classroom based on gender, race and ability.
  3. Create agreements with police departments and court systems to limit arrests at school and the use of restraints, such as mace and handcuffs.
  4. Provide simple explanations of infractions and prescribed responses in the student code of conduct to ensure fairness.
  5. Create appropriate limits on the use of law enforcement in public schools.
  6. Train teachers on the use of positive behavior supports for at-risk students.

Vox: The school-to-prison pipeline, explained

PBS: How Bad Is the School-to-Prison Pipeline?

“The school-to-prison pipeline: an epidemic that is plaguing schools across the nation. Far too often, students are suspended, expelled or even arrested for minor offenses that leave visits to the principal’s office a thing of the past. Statistics reflect that these policies disproportionately target students of color and those with a history of abuse, neglect, poverty or learning disabilities.

Students who are forced out of school for disruptive behavior are usually sent back to the origin of their angst and unhappiness—their home environments or their neighborhoods, which are filled with negative influence. Those who are forced out for smaller offenses become hardened, confused, embittered. Those who are unnecessarily forced out of school become stigmatized and fall behind in their studies; many eventually decide to drop out of school altogether, and many others commit crimes in their communities.

It is difficult to pinpoint the exact reason for the school-to-prison pipeline. Many attribute it to the zero tolerance policies that took form after the 1999 Columbine High School massacre. Others blame educators, accusing them of pushing out students who score lower on standardized tests in order to improve the school’s overall test scores. And some blame overzealous policing efforts. The reasons are many, but the solutions are not as plentiful.”

Teen Vogue: How the School-to-Prison Pipeline Works

“Over the past 15 years, black girls have been increasingly subjected to harsh disciplinary policies, including excessive suspensions, expulsions, and arrests that push them out of school. In September, the Black Women’s Justice Institute released a report, based on U.S. Department of Education data from 2013–14, that found black girls were more than six times more likely than white girls to receive an out-of-school suspension. Though black girls made up only 16% of female students in U.S. public schools, they made up 43% of girls who were referred to law enforcement and 38% of those arrested.

The 2015 report “Black Girls Matter: Pushed Out, Overpoliced and Underprotected” presented Department of Education data that showed while black boys were suspended three times more often than white boys for the 2011–12 school year, black girls were suspended six times more than white girls. In other words, black girls were more disproportionately targeted by harsh disciplinary policies than were black boys.

Cops in schools (sometimes called “school resource officers”) play a critical role in this pipeline. Since the 1950s, some U.S. schools have had on-site police, and as late as 1975, only one percent of U.S. schools reported having police officers. But by the late 1990s, most urban schools had cops. In fact, New York City public schools currently boast a force of 5,200 school resource officers (including 200 uniformed police officers) — meaning schools in NYC employ more cops than counselors. Many schools also have metal detectors and surveillance cameras under the pretext of keeping students safe.

The presence of police officers in schools often leads to harsher, sometimes brutal treatment of the students within. According to a 2011 report from the Justice Policy Institute, “when schools have law enforcement on site, students are more likely to be arrested by police instead of discipline being handled by school officials. This leads to more kids being funneled into the juvenile justice system, which is both expensive and associated with a host of negative impacts on youth.”

This has been proved again and again. In 2015, video of officer Ben Fields brutally assaulting a black student named Shakara at Spring Valley High School in Columbia, South Carolina, became national news. Fields dragged the 16-year old girl from her chair and threw her across the room, an act filmed by another student, Niya Kenny. Kenny was charged with “disturbing the school,” a misdemeanor with a possible penalty of 90 days behind bars or a $1,000 fine; (charges were later dropped). She was also suspended from school for several days. This was a highly publicized incident, but similar interactions between school police and students frequently disrupt young people’s educational experiences.

Criminalizing school behavior is not new, especially not for black students. What’s different today is how many more students are being criminalized, and the current intolerance and punitive attitude in schools can be traced back to a spate of school shootings in the 1990s. For example, in 1999, Eric Harris, 18, and Dylan Klebold, 17, both students at Columbine High School in Colorado, killed 13 people and injured 24 others. The post-Columbine era saw the introduction of federal and state laws instituting zero-tolerance policies, which assign “explicit, predetermined punishments to specific violations of school rules, regardless of the situation or context of the behavior.” At the same time, in the streets, the war on drugs led to more punitive criminal legal responses, such as three strikes and mandatory minimum sentencing.”

Pushing Black Girls Out

Black Girls are suspended 6x more than white girls for similar offenses

Let Her Learn: Join the Fight to Stop School Pushout

PUSHOUT: The Criminalization of Black Girls in Schools – Mini Documentary

Let Her Learn: A Toolkit to Stop School Push Out For Girls of Color

download the full toolkit at nwlc.org/resources/let-her-learn/

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Dress Code Discrimination

  • A 2018 study by the National Women’s Law Center found that
    • Black girls often singled out by unfair dress codes
      • Which can cause them to fall behind in school
  • Targeting styles associated with a particular minority group is discriminatory
    • Styles such as ‘sagging pants’ are putting a burden predominantly on black males
    • White male default is the common trend for school dress codes
      • Dressing as most white young men do seems to be what is encouraged

NeaToday: When School Dress Codes Discriminate

“While a dress code is supposed to make the school environment more conducive to learning, it frequently does the opposite…

‘White Male Default’

Kutzer says that she will only “dress code” students if their clothing is clearly so tight it is uncomfortable. Her school follows “standard school attire,” (SSA) so students wear uniforms. On laundry day, however, some students show up without. Other student’s families can’t afford to keep up with their growing children, so their uniforms are ill-fitting.

“We are told by our administrators to send non-compliance issues to the office, but I only refer kids who are clearly wearing too tight or uncomfortable clothing, and I send them to the nurse, who keeps a stash of extra clothing for this type of situation,” explains Kutzer.

The high school attended by her daughter, however, uses a dress code policy rather than the SSA. Kutzer noticed that it essentially targets female and minority students—the focus being on on parts of the female anatomy, like backs, shoulders, and legs.

school dress codes

“Targeting styles of clothing that are mostly associated with a particular minority group is discriminatory. When styles such as ‘sagging pants’ are the issue, we are putting a burden predominantly on black males,” says Kutzer.

She calls this the “white male default,” a common trend for school dress codes. “Dressing as most white young men do seems to be what is encouraged.’

In 17-year-old Maddie Reeser’s Baltimore City public school, it’s the black girls at her school who are the most frequently dress coded—a double discrimination. “My white friends rarely get sent to the office, but my black friends do quite often,” says Reeser.

Another student said she brought up this issue to a male administrator, who told her it was “because white girls don’t have as much to show.” The student says this comment made her feel uncomfortable, let along failing to address the inequality.

Despite the fact that Reeser’s school has a uniform, she and her peers still faced the same issues that Belsham described at her Duval County school. “The rule should be based on the clothes, not how they fit, because it’s different for each person,” says Belsham.

Despite the rules being the same for every girl, teachers end up enforcing the rules more strictly with black females, and in a way that is humiliating.

Many dress codes can cause black students to fall behind academically, according to a 2018 National Women’s Law Center study. Looking at public schools in the District of Columbia, the report found that three in four D.C. public high school dress codes say students can be pulled out of class or school for dress code violations.

“It’s outrageous that girls are losing critical class time simply for what they are wearing,” said NWLC Education Fellow and report co-author, Kayla Patrick. “This sends a disturbing message to all students: What a girl looks like is more important than what she learns and thinks. No girl should ever have to forfeit her education because her shirt is the wrong color or she has a hole in her jeans.”

The Glowup: The Dress Code Is Discrimination? First Grader Denied His First Day of School for Dreadlocks

 

“Imagine this: You escort your son to his first day of first grade, all buttoned up in his brand new uniform and eager to begin the school year, only to be turned away because your child has dreadlocks.

That’s what happened to Clinton Stanley and his son, Clinton Jr., when they arrived for their first day at A Book’s Christian Academy in Apopka, Fla. Upon seeing Clinton Jr.’s head full of dreadlocks, administration officials did the Christian thing and told the Stanleys that the six-year-old would not be able to attend, due to an unseen rule in the school’s handbook that states that all boys’ hair must be cut above the ear.

An emotional video of the incident taken by Stanley Sr. shows that even his request to braid his son’s hair down was met with denial. In fact, the only solution the school would offer in the moment was to allow him to unenroll his child, causing him to miss his first day of school.

As A Book’s is a private academy, they are legally within their rights to enforce a dress code. However, to include a grooming choice as personal and culturally relevant as wearing dreadlocks rightfully raises concerns.

“If a kid has dreadlocks, that’s your personal standard,” Stanley told local news station WESH 2 News. “Meaning, that’s a personal problem you haven’t overcome, because 95 percent of the kids who have dreadlocks are African American.”

But evangelist and school director John Book told WESH that he is “obviously not a racist,” countering that his school is “probably 95 percent black.” He then quoted the famous hymn, “Jesus Loves the Little Children,” emphasizing the phrase “All the children of the world; red and yellow, black and white, they are precious in His sight.”

But what A Book’s restrictive dress code indicates is that the cultural expressions of red, yellow, black and white children are not considered equally precious. After all, the school only offered to re-enroll Clinton Jr. under the condition that he cut his hair, an offer the Stanleys wisely declined.

Of course, this is far from the first time we’ve seen a traditionally black hairstyle become an issue in school. Much like the military, American schools both public and private have regularly policed hairstyles like locs, braids and naturals, proclaiming them unsanitary, unruly and even disruptive to the academic environment. In the process, black students have been denied days of learning, proms and even graduation, while repeatedly being given the message that their natural hairstyles are unacceptable or somehow abnormal.

It’s an issue no parent or child should have to address as they attempt to get an education, let alone on the very first day of school. But thankfully, this story has a happy ending: The very next day, Stanley found a school for his son accepting of his hairstyle of choice—which Clinton Jr. celebrated by wearing his locs in a mohawk for his second first day of school.

The Other Side Of School Safety

  • 2015-16 school year
    • Over 80,000 police officers in schools
    • 42% of public schools have officers
      • In 1997, only 10% of public schools did
    • Increase of federal/state funds for school police officers due to recent school shootings
      • New legislation in places like Florida has devoted millions of dollars to install more armed police
  • No Official Tracking system for Police Brutality
    • HuffPost created one and found
      • Since 2011, students were tasered/stun gunned at least 120 times
      • Since 2016
        • students were pepper sprayed at least 32 times
        • students were body slammed, tackled or choked at least 15 times
        • Not all incidents were recorded
      • Some incidents were in response to physical violence
        • Many were not
  • Officers at schools often have no training to work specifically with children
    • Often no policy governing when it is appropriate to use Tasers, pepper spray, etc.
      • They may apply to young children the same tactics they use on the street
    • “It would be my opinion that tasing an 11- or 12-year-old in the chest is more dangerous for potentially causing cardiac arrest than tasing a 17- or 18-year-old who has a more developed chest to protect the heart” Douglas Zipes, a cardiologist at Indiana University School of Medicine
  • Racial bias in School Officers
    • Students of color are disproportionately punished harshly than white students for the same violations
      • Police officers often overestimate the ages of kids of color/ less likely to see them as innocent children
    • Students in schools with officers more likely to get a criminal record, even for non-violent misbehaviors
      • Setting students of color up for the School-to-prison pipeline

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Pacific Standard: When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately

Research indicates that new security measures implemented after Parkland are not making students safer.

In the year since the shooting at Marjory Stoneman Douglas High School in Florida that killed 17 people and wounded five, the reaction by both state and federal legislators has largely followed the pattern of past mass shootings: increased spending on policing and security equipment in schools that research shows does not make students safer—and that disproportionately harms non-white, disabled, and queer students.

“Since Parkland, there’s been a lot of discussion from government entities around increasing law enforcement presence in schools, and that’s unfortunate. It doesn’t help students, and there are better ways to create safe environments,” says Marc Schindler, director of the Justice Policy Institute, a non0profit that advocates for criminal justice reform.

As of October, 20 states had guaranteed $450 million in school-security spending in the wake of Parkland, according to the Associated Press.

Less than a month after the shooting, Florida rapidly passed the Marjory Stoneman Douglas Act, which requires that a police officer—or “armed school employee”—be stationed in every school in the state. The bill also included some relatively minor additions to gun-control restrictions, including the banning of bump stocks. Only 17 percent of the bill’s $400 million funding was allocated to mental-health programming; the majority went to increased security and surveillance.

Neighboring Georgia took similar action soon after, adding $16 million more to annual spending on school security. And, last month, Governor Brian Kemp announced a program allocating $69 million for “school security grants.” The plan places a mental-health counselor in each school, but Georgia’s spending also focuses on security: Every school will receive $30,000 to spend on police officers, metal detectors, and security cameras, according to the Atlanta Journal Constitution. The plan also commits $500,000 to an anti-gang law enforcement initiative.

In Kentucky, where two students were killed and 18 wounded in a school shooting a month before Parkland, the state legislature is currently considering a school safety bill that creates the statewide position of “school security marshal,” criminalizes threats and hoaxes called in to schools, and focuses on training of police officers therein, according to the Louisville Courier Journal. The bill also promises schools more mental-health counselors and police officers for schools “as soon as practicable as funds and qualified personnel are available.” No funds have been made available to date.

“What we’ve seen with Parkland is what we’ve seen as a response to most, if not all, school shootings: politicians as a reaction call for more security measures, especially more police,” says Judith Browne Dianis, the head of the Advancement Project, a racial justice non-profit that released a massive report last fall on the effects of police in schools.

Currently, about half the students in the United States attend a school with one or more full-time police officers stationed in the school, according to Cleveland State University social work professor Christopher Mallett, whose research focuses on juvenile justice and schools. States and school districts vary widely in the terminology—and specifics of bureaucratic oversight—for their police in schools. Many are called by euphemistic names like “school resource officer” (SRO). Some are employed directly by the school, while others are provided by the local police precinct, or the county sheriff.

Mallett says that, although police officers are slightly more likely to be present in schools in areas that experience more crime, police in schools are now found just about everywhere. “In the last 10 years or so, there’s been a shift to our suburban schools that now have school resource officers in their communities,” Mallett says, emphasizing that there is no evidence that police in schools prevent mass shootings or other crimes. “There’s no connection between the number of officers in a school and the risk of a tragedy happening, because they’re so infrequent.” (The likelihood of a student in the U.S. being killed by a school shooter is one in 614 million, according to the Washington Post.)

The first permanent assignment of police in schools was in 1953 in Flint, Michigan, and similar programs expanded throughout the 1960s and ’70s. Still, by 1975, only 1 percent of schools in the U.S. reported a permanent police presence, according to an Advancement Project report.

However, in the ’90s, legislation began to increase funding for police in schools, beginning with the 1994 Gun-Free Schools Act. That law created the Office of Community Oriented Policing Services, which provided over $750 million in funding for 6,500 new police officers in schools between 1999 and 2005 alone, with much of the increase following the 1999 shooting at Colorado’s Columbine High School. “Columbine was a big moment,” Schindler says, of police in schools. “There have been increases since then—though it’s leveled off a little bit—but after each high-profile school shooting, the amounts go up.”

Dianis notes those increases almost always occur in schools unaffected by school shootings. “Columbine’s school district did not opt for more police. Newtown [the site of the 2012 shooting at Sandy Hook Elementary School] did not act to add more police,” she says. “So you have school districts that weren’t affected by mass shootings, but broadly believe in the criminality of students of color.”

School suspensions and expulsions have increased fivefold since 1980, an increase that has come with the decades-long increase in school policing; disciplinary proceedings initiated by SROs, as with the justice system outside of schools, are implemented more harshly and more frequently with students of color. Not only are black, Latino, and low-income students punished at much higher rates than their whiter and wealthier peers, but they’re also more likely to be arrested. Disabled students, a 2016 American Civil Liberties Union report on California schools found, are three times more likely to be arrested than their peers. School policing is “still very disproportionately harming students of color, students with learning disabilities, and the students who identify as LGBTQ,” Mallet says.

Although school policing and other security measures harm many students without increasing safety, they do provide one powerful benefit: making the loudest voices feel safer, according to Mallett. “In suburban, white schools that have had positive relationships with police, parents and teachers feel safer,” Mallett says, “and it doesn’t affect crime or school shootings in a positive way, but it doesn’t make it worse.”

However, that feeling of safety doesn’t translate to students, even white ones. Schindler notes that research shows that a heavy police presence in schools actually has the effect of making kids feel less safe. “The most important thing is to identify where they feel comfortable behaving with adults, where they can share concerns, and where they can be identified if they need help,” he says.

Despite some of the security increases post-Parkland, Mallett thinks school districts—if not state legislators—are finally beginning to better understand how to make schools more hospitable and safe for students. “They’re finally starting to see the light, that you don’t have to just stick police officers in school,” Mallet says. “The schools are realizing, ‘holy shmoly: we’re kicking everybody out, and it’s not working.'”

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Time: Black Children Will Be the Victims of Armed Teachers

In her one-woman show Notes from the Field, Anna Deavere Smith exposes the consequences of America’s abandonment of our most vulnerable and troubled children. She reveals that what is now known as the “school-to-prison pipeline” is, in fact, the sum of our failures to meet the needs of our children — in particular, children of color.

I found it brutally ironic that this show premiered on HBO just as the nation turned its attention to Parkland, Fla., where a 19-year-old living with mental illness went to his former high school and shot and killed 17 students and educators. More ironic still was that in response, the President of the United States called for teachers to be armed with high-powered weapons and floated to offer them “a little bit of a bonus” if they were willing to take up arms in the classroom. This would help schools become a “hardened target,” he said, using language peddled by the National Rifle Association.

What should have been dismissed within hours as madcap rambling by our president has instead become the subject of serious policy discussions. Within days, Donald Trump’s words began to shape public policy in Florida and in Washington. Perhaps it is the logical next step in our cruel abandonment of our children to the criminal justice system that we would contemplate meting out in the schoolhouse the ultimate punishment — death — at the hands of teachers. But it is also madness.

And make no mistake: Although the perpetrators of mass school shootings have been almost exclusively white, there’s little doubt that arming teachers will lead disproportionately to the killing — by teachers — of children of color.

The school-to-prison pipeline has been, without question, built on the foundation of racially discriminatory school discipline practices. Every study that has examined harsh school disciplinary policies has revealed that such policies are visited with greater frequency on children of color. In 2013, the NAACP Legal Defense Fund filed a complaint challenging the practice of the Bryan Independent School District in Brazos County, Texas, of issuing Class C misdemeanor tickets to high school students for disrupting class or swearing; although black students constituted only 21% of the school population, 46% of the misdemeanor tickets were issued to African-American students. Similarly, the Department of Justice challenged the school discipline practices in Meridian, Mississippi, where the majority African-American high school sent its own kids to a juvenile detention facility over minor disciplinary incidents.

More broadly, African-American girls are 5.5 times more likely to be suspended from school than their white peers, according to the National Women’s Law Center, and 18% of African American boys received out-of-school suspensions versus only 5% of white boys, according to data from the U.S. Department of Education. Children as young as 5 or 6 years old have been handcuffed in schools and even arrested, which happened to a Miami boy who was led away from school in handcuffs after an altercation with a teacher earlier this year. The children subjected to this kind of harsh treatment are almost always children of color.

It does not take a great deal of imagination to contemplate instances in which armed teachers dealing with recalcitrant children will react out of fear and racial stereotype and discharge their weapons as they do the disciplinary code. Police officers — ostensibly trained in the use of firearms and the observation of criminal behavior — have shot and killed black children at an alarming rate, often citing their fear of the child or mistaken belief that the child was armed. They rarely, if ever, pay the consequences. We have every reason to believe that armed teachers will react similarly and keep their jobs with impunity. Just this past weekend, the Florida Senate is charging ahead with a proposal to arm teachers anyway — over the objections of Parkland victims’ families and students. More than two dozen black lawmakers, in particular, are keenly aware that letting educators pack heat is a “recipe for disaster.” They get it.

As I indicated to Anna Deveare Smith when we spoke for her film, the creation of the school-to-prison pipeline represents a societal choice to invest in the criminalization of children of color. The investments made — towards housing children in juvenile jails, trying them as adults for crimes and expanding our criminal justice system to process and cage those who have dropped out of school — come at the expense of other investments we could have made: in increased and robust mental health and social service interventions in our schools, in parental support and in early intervention for our most vulnerable children. The school-to-prison pipeline is not an inevitable pathway for children. It has been constructed from conscious policy choices made and carried out with the tacit understanding that the effects will be experienced almost exclusively by children of color.

This is why we cannot ignore the deranged suggestion that teachers carry weapons. It would have been beyond our imagination only a few decades ago to contemplate issuing criminal tickets to students for using foul language. Thirty years ago, students committing this kind of violation would have been sent to the vice principal’s office. But that was then. Today, we must forcefully and relentlessly resist calls for arming schoolteachers. Implicit and explicit bias against students of color resulting in the school-to-prison pipeline render the stakes of this moment too high to ignore.

In one of the most moving segments in Notes from the Field, a Native American tribal judge, Abby Abinanti, offers wise counsel for how we should deal with our most troubled children. She says that when children are damaged and break the rules, the path isn’t to push them away, but to draw them “closer.”

It appears that many fine teachers at Stoneman Douglas and in middle school attempted to do this for Nikolas Cruz over many years. We should explore why those interventions failed and invest in services that can effectively spot and treat a child demonstrating the dysfunctions that Cruz displayed from a very young age. To bring the child closer rather than push him or her to a cycle of more violence and self-destruction.

For the sake of other children on the verge of being pushed away, this moment should be a reckoning to think long and hard about what really works to help them, to keep all children safe. But to invest instead, as our president has insisted, in turning those teachers into armed guards patrolling our classrooms would be the final act of hostility and abandonment of our nation’s children. And we will know — from the outset — that the children who will be the foremost victims of this effort will be children of color.

Miama Herald: Black boys will be the primary victims if teachers bring guns into the classroom

While some have viewed schools as inherently safe, that hasn’t always been the case for black students.

The truth is that black students are far more likely to face harsher punishment in school than their white counterparts. From suspensions to arrests, schools have provided us with a first-hand look at the racial disparities that affect the way students are disciplined.

Now that Florida Republicans have passed HB 7093, a bill that allows armed teachers in Florida’s classrooms, the threat of harsh punishment, or worse, will be further intensified for black students.

I proposed implicit bias training to be added to HB 7093 because research has found, for example, it’s why people tend to view black boys as less innocent by the time they reach the age of 10. It’s why black students are three times more likely to face out-of-school suspension or expulsion than their white counterparts for the same types of behaviors. It’s why law enforcement undergoes implicit bias training in addition to firearms training.

By passing HB 7093, Florida has all but guaranteed the death of a black student at the hands of an armed teacher. Blood will be on the hands of those who voted for this bill and the governor that signs it into law.

I became a public school teacher to inspire children and educate the next generation of Florida leaders. I know the challenges that come with being a teacher that is underpaid and overworked. As much as I want to keep our students safe, an armed teacher is not the answer to the gun violence epidemic that plagues our schools.

Gov. Ron DeSantis can still veto this dangerous and misguided legislation. Earlier this year, I called on Gov. DeSantis to form a commission to examine ways to prevent gun violence in minority communities throughout Florida. It’s not too late to stop this bill and reevaluate our options for school safety.

Let’s be honest, the push to arm teachers as a solution to school shootings is a blind spot among lawmakers who do not have to navigate the world as a black man.

Just as politicians have come to acknowledge the failed “tough on crime” policies of the 1970s, we must stop HB 7093 before black students become a casualty of the Florida Legislature’s ignorance.

WP: What many black parents think about when teachers are armed in schools

A new analysis by a gun control advocacy group says there have been more than 65 publicly reported incidents of mishandled guns at schools in the last five years. They include:

The analysis, by Giffords Law Center to Prevent Gun Violence, has not deterred legislators in a number of states from moving to expand opportunities for teachers to carry guns in schools.

In Florida, teachers can now carry guns at schools under a new law signed by Gov. Ron DeSantis (R). In Texas, the legislature has sent a bill to the Republican governor, Greg Abbott, that would allow more teachers and school personnel to carry guns on campus. And in other states — including Missouri, Montana, Oklahoma and North Carolina — legislators are pushing to create programs that would allow for adults to carry guns in schools.

This post looks at the issue from the lens of black parents, whose children are shot by authorities and disciplined at school in far greater percentages than white children. This was written by Rann Miller, an African American educator who directs the 21st Century Community Learning Center, a federally funded after-school program located in southern New Jersey.

Miller spent six years teaching in charter schools in Camden, New Jersey, and is the creator, writer and editor of the Official Urban Education Mixtape Blog. His writing on race and urban education has appeared in Salon, AlterNet, and the Progressive, where I’m an education fellow. Follow him on Twitter:@UrbanEdDJ

By Rann Miller

I am an educator. I am a former social studies teacher and a current director of an afterschool program for a school district. I am also African American and the parent of a school-aged child, with two other children in pre-school.

I am horrified at the notion of armed teachers. I echo the concerns and fears of African American students and the families in Texas, where teachers have been armed since 2013. I cringe when I consider that teachers in Florida — where the murder of black youth have been justified under a stand-your-ground state law — are allowed to carry firearms.

If the state of New Jersey were to pass legislation that allowed for the arming of its teachers, I would be concerned for the safety of my children and for the black students of the state. If after that, my child’s school district elected to arm its teachers, I would strongly consider taking him out of his school and out of the district. Some may consider that a drastic move and my concern to be misplaced, however the over disciplining of black children is justification for my position.

Black children are suspended, expelled and referred to law enforcement at the highest rates. Even in pre-school, black children are suspended at higher rates. There is legitimate cause for concern for any black parent who is sending their child to a public school where their child’s teacher is armed. That the majority of teachers are white and most schools have more cops than guidance counselors are realities that black parents cannot ignore.

White educators, white teachers specifically, struggle to understand the role that race plays in their interactions with black students; for example, their unfamiliarity with the interactional patterns that characterize many African American males may cause these teachers to interpret impassioned or emotive interactions as combative or argumentative. Where academics are concerned, many white teachers expect less of black students in comparison to black teachers.

While the National Association of School Resource Officers (NASRO) argue that police in schools make schools safer, research shows that they do not. Also, research shows that schools with larger minority and poor populations are more likely to implement criminalized disciplinary policies — suspensions, expulsions, police referrals, and arrests — and less likely to connect students to psychological or behavioral care. And when schools increase their police presence, black children are harmed disproportionately.

A 2014 study published by the American Psychological Association found that black boys as young as 10 may not be viewed in the same light of childhood innocence as their white peers, but are instead more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime. There is even published research indicating that white people are more likely to attribute supernatural or magical powers to black people, even to the extent that they believe black people feel less pain.

Let us not fail to remember the numerous instances of anti-black acts experienced by black students in schools nationwide. These include such things as a young man’s shaved hair being colored in with a marker, a young woman being tackled by a teacher and having her braids ripped from her head, and a young man being told by a teacher that he’d have a bullet put through his head by that teacher.

Policymakers and school leaders alike refuse to address the elephant in the room: the profile of a school shooter is a white male youth. According to Mother Jones, roughly 65 percent of mass school shootings were at that hands of white males; none at the hands of black people.

Still, Education Secretary Betsy DeVos tried to end the Obama administration discipline guidelines, citing racial pseudoscience as justification for doing so, rather than deal with the misplaced aggression of young white males who believe they are targets of racism and discrimination.

The result is that the lives of children undeserving of death, white and black children alike, are being sacrificed and the privilege and entitlement given white males in our society remain intact.

This is what many black parents think about when the decision of arming teachers comes to mind. It is why black parents believe guns in the hands of white teachers and school resource officer will endanger, not protect, their children. Our voices are often ignored or overlooked. The fears expressed by our children are often disregarded.

Is it any wonder why the number of black parents who home-school their children doubled within the last 15 years?

I hope it doesn’t take a black child being shot by a teacher for my words to be heard. Listen to me now, believe me later on.

History of the Juvenile Justice System

Further Readings

Giffords: Every Incident of Mishandled Guns in Schools

Back to Top


Alternatives to Calling the Police

Often calling the police on people of color can trigger forms of racial oppression from harming the victim, deportation, loss of job, to escalating the situation causing harm or death. Many of these consequences can be triggered by minor violations such as noise complaints, selling marijuana, public intoxication, etc. It’s important to understand the consequences of calling the police and to always search for alternatives when possible.

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Black Criminal Myth = Calling Cops

“Because so much of America remains divided along racial lines, black people who enter white spaces are often viewed with suspicion unless they are in a service position, like working as a store clerk or a waiter. And as gentrification increases the number of these spaces, this can create huge difficulties.” P.R. Lockhart – VOX

  • People of color are often racially profiled, confronted by police, and arrested
    • After white business owners, employees, or bystanders viewed them with suspicion
    • Many of the incidents have spread on social media, calling national attention to the issue.
      • Spring 0f 2018
        • Two black men were arrested for trespassing as they waited inside a Philadelphia Starbucks for a business partner
        • A black Yale student was taking a nap in a common room in her dorm earlier this week when a white student saw her sleeping and decided to call the police.
        • the owner of a golf club in Pennsylvania called police on a group of black women who he said were playing too slowly
        • a black woman was violently arrested inside a Saraland, Alabama, Waffle House after a manager called 911 because of a dispute over an extra charge on the woman’s bill
        • Nordstrom Rack in Missouri called the police on three black men who were shopping for prom, accusing them of shoplifting.
        • Woman Calls Police On Black Family For BBQing At A Lake In Oakland
        • Woman called police on a trio of black filmmakers staying in an Airbnb in Rialto, California, because she was suspicious because they didn’t wave to her
  • When white people call law enforcement on people of color for unnecessary reasons
    • They are adding to an existing problem
      • Minority groups are more likely to face police violence or harsh punishment from the justice system.

“Part of this suspicion arises from commonly held stereotypes of black people as being criminal and black behavior as being deviant. As a result, black people in these “white spaces” are forced to justify their presence, and face consequences when that justification isn’t accepted by others.” Elijah Anderson – Yale sociologist

Asserting White Authority over Public Spaces

  • Smart phones captures more racism in public spaces
    • Such as racist harassment to unwarranted police calling
      • “They shouldn’t be there”, “Speak English”, “I have every right to”
  • Public space racism base on belief that:
    • White people are the custodians of public space
      • Allowed to confront people of color with racism and police
  • Belief public space belongs to whites only not new
    • Has been inflicting trauma on people of color for long time
      • Jim Crow, Red Lining, Lynching, Systemic Racism, etc

“The visibility of people of color in public is tolerated only so long as it doesn’t disturb the comfort of the dominant group” Laila Lalami – Nation

Possible Consequences of Calling Cops of Black People

  • Often calling the police on people of color for minor violations
    • Can trigger forms of racial oppression resulting in harm or death
    • Noise complaints, selling marijuana, public intoxication, etc
  • It’s important to understand the consequences of calling police
    • And to always search for alternatives when possible
  • Possible negative consequences for calling the police
    • Police often arrest and harm the victims
      • especially back women and black transgender people, causing further trauma
    • If the person is undocumented you could trigger an ICE deportation
    • Police can escalate situations causing harm, harassment, trauma, death
    • Victims could go to jail causing them to lose their job, experience financial hardships, harming family relations, exposure to abuse, affecting future school and job opportunities and/or entering people into a prison cycle that perpetuates further and more serve crimes
    • Could create harmful divides in your community

Police Interaction Stats w/ People of Color

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  • Blacks are less than 13% of the U.S. population and
    • 31% of all fatal police shooting victims
    • 39% of those killed by police were nonviolent
    • Black males ages 15-19 are 21x more likely to be to be shot/killed by the police than whites
  • Blacks and Latinos are
    • 3x as likely to be stopped as whites
    • 2x as likely to be arrested
    • 4x as likely “to experience the threat or use of force during interactions with the police.”
  • Blacks People compared to white people are:
    • 21% more likely to receive mandatory minimum sentences.
    • 20% more likely to be sentenced to prison
    • Once convicted, black offenders receive sentences that are 10% longer than white offenders for the same crimes.

Source: The New Progressive: The Ultimate White Privilege Statistics & Data Post

Tim Wise, MSMBC Everyday Racism in America Town Hall
(start at 6:50-8:10)

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Long list of Police Brutality Towards People of Color Caught on Tape

According to the group Petworth Immigrant Rights & Police Accountability

  1. Is this merely an inconvenience to me? > Can I put up with this and be okay?
  2. No, I need to respond > Can I handle this on my own, is this something I could try to talk-out with the person?
  3. No, I need back-up > Is there a friend, neighbor, or someone whom I could call to help me?
  4. No, I need a professional > Can we use mediation to talk through what’s happening or is there an emergency response hotline I could call?
  5. No >  If I call the police do I understand how involving the police could impact me and the other person?

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DC Alternatives to Calling the Police – Resource Guide & Flow Chart

Alternatives to Calling the Police

  • Know your Neighbors!
    • Spend time meeting and building relationships with your neighbors
      • Exchange contact info
    • Many neighborhood conflicts can be resolved easily by contacting the right neighbor
  • Volunteer with local community mediation groups
    • If there isn’t one organize your community to create one
    • Locate your local community mediation group or find tips starting one
      • National Association for Community Mediation
  • Develop a list of hotlines and resources to contact first before calling the police.
    • Share with your community
      • Ideally make it a live doc that everyone can update
    • Find resources and hotline numbers for the following
      • Mediation, Mental Health, Victim Support, Sexual Assault, Severe weather, Undoc Immigrant Help, Bilingual Hotline, Trafficing hotline
  • Take anti-racist, de-escalation, mediation and anti-harassment trainings when possible
    • Make a list of all the local organizations that host these trainings and share with your community
  • Volunteer with local orgs promoting anti-racism, police accountability and community policing initiatives
    • Again, make a list and share with your community
  • Advocate local leg. For police accountability, community-led peacekeeping/mediation
    • DC Local – 2016 Neighborhood Engagement Achieves Results (NEAR) Act

NEW ZINE: 12 THINGS TO DO INSTEAD OF CALLING THE COPS

12 Things to do Instead of Calling the Cops” is a new zine produced jointly by the May Day Collective and Solidarity & Defense. The entire text is reprinted below and the zine is available in both printable and screen reading versions. There are also poster versions (1, 2).

Calling the police often escalates situations, puts people at risk, and leads to violence. Anytime you seek help from the police, you’re inviting them into your community and putting people who may already be vulnerable into dangerous situations. Sometimes people feel that calling the police is the only way to deal with problems. But we can build trusted networks of mutual aid that allow us to better handle conflicts ourselves and move toward forms of transformative justice, while keeping police away from our neighborhoods.

1 Don’t feel obligated to defend property—especially corporate “private” property. Before confronting someone or contacting the police, ask yourself if anyone is being hurt or endangered by property “theft” or damage. If the answer is “no,” then let it be.

2 If something of yours is stolen and you need to file a report for insurance or other purposes, consider going to the police station instead of bringing cops into your community. You may inadvertently be putting someone in your neighborhood at risk.

3 If you observe someone exhibiting behavior that seems “odd” to you, don’t assume that they are publicly intoxicated. A traumatic brain injury or a similar medical episode may be occurring. Ask if they are OK, if they have a medical condition, and if they need assistance.

4 If you see someone pulled over with car trouble, stop and ask if they need help or if you can call a tow truck for them. If the police are introduced to such a situation, they may give punitive and unnecessary tickets to people with car issues, target those without papers, or worse.

5 Keep a contact list of community resources like suicide hotlines. When police are contacted to “manage” such situations, people with mental illness are sixteen times more likely to be killed by cops than those without mental health challenges.

6 Check your impulse to call the police on someone you believe looks or is acting “suspicious.” Is their race, gender, ethnicity, class, or housing situation influencing your choice? Such calls can be death sentences for many people.

7 Encourage teachers, coworkers, and organizers to avoid inviting police into classrooms, workplaces, and public spaces. Instead, create for a culture of taking care of each other and not unwittingly putting people in harm’s way. If you’re part of a group that’s holding a rally or demonstration, don’t get a permit or otherwise cooperate with the police.

8 If your neighbor is having a party and the noise is bothering you, go over and talk to them. Getting to know your neighbors with community events like monthly block parties is a good way to make asking them to quiet down a little less uncomfortable, or to find another neighbor who is willing to do so.

9 If you see someone peeing in public, just look away! Remember, for example, that many houseless people do not have reliable access to bathrooms.

10 Hold and attend deescalation, conflict resolution, first-aid, volunteer medic, and self-defense workshops in your neighborhood, school, workplace, or community organization.

11 Street art is beautiful! Don’t report graffiti and other street artists. If you see work that includes fascistic or hate speech, paint over it yourself or with friends.

12 Remember that police can escalate domestic violence situations. You can support friends and neighbors who are being victimized by abusers by offering them a place to stay, a ride to a safe location, or to watch their children. Utilize community resources like safe houses and hotlines.

White Caller Crimes | Judge of Characters

Further Reading

What To Do Instead of Calling the Police
A Guide, A Syllabus, A Conversation, A Process

When the Police Knock on Your Door
Your Rights and Options: A Legal Guide and Poster

Back to Top


Police Reform

Yes!: We Already Know How to Reduce Police Racism and Violence

“After being pulled over for a busted taillight on July 6, Philando Castile informed a Minnesota police officer at his window that he owned a gun and had a license to carry it. As he reached for his license and registration, his girlfriend and her 4-year-old daughter then watched as the police officer fired four shots into Castile’s body. He died in the driver’s seat.

Allowing suspects to explain their side of the story reduced compliance issues

Castile was one of 137 Black people in the United States killed by a police officer this year [as of July 8, 2016]. Another Black man, Alton Sterling, was killed by police in Louisiana the night before. On Thursday, seemingly in response, five police officers were killed and six were wounded when snipers interrupted a peaceful protest in Dallas on July 7. Amid the violence there have been forceful calls to city leaders to address police racism and brutality.

But research has existed for awhile to show cities how to reduce racism and interrupt the violence.

Train for racial bias

Stereotypes about the criminality of Black communities affect a police officer’s decision to shoot a suspect. That’s a fact. However, racial bias training can address the preconceptions and subsequent racially based brutality. After extensive training with a computer simulator in which the race of the suspect was unrelated to the presence of a weapon, a Florida State University study showed that officers were able to eliminate their biases. In a separate study, California officers also found that listening to the community and giving suspects time to explain their side of the story reduced compliance issues and increased cooperation.

Hire more female officers

Female officers are less likely to use excessive force, according to a National Center for Women in Policing report that looked at seven major U.S. police departments. While women make up 12.7 percent of those departments, they only account for 5 percent of citizen complaints of excessive force. This also means that female officers cost their departments less, because they are less likely to be involved in litigation. The Los Angeles Police Department paid $63.4 million between 1990 and 1999 for lawsuits against male officers and only $2.8 million for those against female officers.

Match the racial diversity of community

Police departments rarely mirror the diversity of their communities. The New York Times reports that hundreds of police departments are 30 percent more White than the populations they serve. But the number of violent incidents drop drastically when the diversity of the force matches the diversity of its community, according to research from Columbia Law School. A call for this diversity goes back decades, points out Joscha Legewie, who conducted the research with Jeffrey Fagan. “Our findings indicate that in cities that are polarized, particularly where there might be more ethnic or racial tensions, a diverse police force might help reduce tensions,” Legewie said.

Open departments to research

Police departments need to open their records to researchers if they want to understand how to fix brutality, said Beatriz Magaloni, an associate professor of political science at Stanford. Magaloni studies police brutality in Rio de Janeiro, Brazil, where 5,132 civilians were killed by police between 2005 and 2014. While Rio is very different from the U.S., violence is likewise concentrated around poor and Black communities. Her research introduced Magaloni to some of the most effective practices, such as peaceful policing of slums and providing salary incentives for reducing homicides rather than rewards for bravery—which contributed to a culture of violence.

Wear body cameras

Body cameras reduce complaints against police officers, University of South Florida researchers found in a study conducted with the Orlando Police Department. During one year, 46 Orlando officers were randomly assigned to wear body cameras while 43 did not. At the beginning, most officers were skeptical. But by the end, the majority acknowledged that body cameras positively influenced behavior, improved evidence collection, and reduced civilian complaints. They agreed to continue wearing cameras.

Shaun King’s 25-part series on stopping police brutality gathered in one spot

Introducing a 25-part series on how to reduce police brutality following the deaths of Alton Sterling and Philando Castile

  1. Solutions for police brutality can begin with our overwhelmingly white male justice system
  2. To help fix police brutality, cops can no longer have less training than the average cosmetologist
  3. Police officers should be routinely tested for drugs and steroids like American athletes
  4. If you want to be a violent racist and never lose your job, become a police officer
  5. Police officers should be required to have a college degree
  6. Every city and state in America must ban racial profiling
  7. 911 operators must ask about mental health issues, a small change that could save lives
  8. To combat police brutality, hire more female cops — studies show they’re better at keeping their cool
  9. Why we must require cops to live in or near the area they police
  10. Communities of color are massively over-policed — effectively criminalizing color itself
  11. American police must be regularly tested for racial bias
  12. American police, who see humanity at its worst, must be regularly tested and treated for PTSD
  13. Why we must take police brutality cases all the way to the Supreme Court
  14. Good police must speak out against bad officers
  15. If nurses and doctors can treat the mentally ill without shooting them to death, so can American police
  16. Why police body cameras are failing, and the exact policies we must enact to unleash their power
  17. If a police officer must use force against a suspect, it should match the ‘crime’
  18. Every American police officer must have three weapons other than guns on them at all times
  19. It must become illegal for police to act violently using only their inaccurate imaginations
  20. American police departments are revenue generating monsters, policing for profit must be banned
  21. Police must record statements explaining their use of force immediately after each incident
  22. All use of force investigations must be turned over to an independent agency with binding instructions
  23. Police departments that fail to report killer cops don’t deserve federal funding
  24. Changing the culture of police brutality needs to happen on the state and local level
  25. Police officers, local prosecutors are two of a kind

Campaign Zero: Policy Changes to End Police Violence

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1. End Broken Windows Policing

A decades-long focus on policing minor crimes and activities – a practice called Broken Windows policing – has led to the criminalization and over-policing of communities of color and excessive force in otherwise harmless situations. In 2014, police killed at least 287 people who were involved in minor offenses and harmless activities like sleeping in parks, possessing drugs, looking “suspicious” or having a mental health crisis. These activities are often symptoms of underlying issues of drug addiction, homelessness, and mental illness which should be treated by healthcare professionals and social workers rather than the police.

Policy Solutions

End Policing of Minor “Broken Windows” Offenses

The following activities do not threaten public safety and are often used to police black bodies. Decriminalize these activities or de-prioritize their enforcement:

  • Consumption of Alcohol on Streets
  • Marijuana Possession
  • Disorderly Conduct
  • Trespassing
  • Loitering
  • Disturbing the Peace (including Loud Music)
  • Spitting
  • Jaywalking
  • Bicycling on the Sidewalk

(Example: Respect State Marijuana Laws Act of 2015)

End Profiling and “Stop-and-Frisk”

Establish enforceable protections against profiling to prevent police from intervening in civilian lives for no reason other than the “suspicion” of their blackness or other aspects of their identity. This should include:

  • immigration status, age, housing status, sexual orientation, gender, gender identity, disability, HIV status, race, religion and national origin as protected groups
  • the right for people to seek court orders to stop police departments from profiling
  • bans on both intentional profiling and practices that have a disparate impact on protected groups
  • ban stops for “furtive” movements such as a reaching for waistband or acting nervous
  • ban stops for being in a high-crime area
  • ban stops for matching a generalized description of a suspect (i.e. black male ages 15-25)
  • require officers to establish objective justification for making a stop and to report every stop including location, race, gender, whether force was used and whether a firearm was found.
  • end the use of predictive policing technology, which uses systematically biased data to enhance police profiling of black people and communities
  • prohibit police departments from using resources to investigate, interrogate, detain, detect, report, or arrest persons for immigration enforcement purposes.
  • prohibit police departments from transferring an individual to federal immigration authorities for purposes of immigration enforcement.
  • prohibit officers from being placed under the supervision of federal agencies or deputized as special federal officers or special federal deputies.

(Examples: End Racial Profiling Act of 2015NYC Community Safety Act; NYC Stop-and-Frisk Reforms; California Senate Bill 54)

Establish Alternative Approaches to Mental Health Crises

Mental health crises should not be excuses for heavy-handed police interventions and are best handled by mental health professionals. Establish and fund Mental Health Response Teams to respond to crisis situations. These approaches have been proven to reduce police use of force in these situations by nearly 40 percent and should include:

  • a multidisciplinary co-responder team that includes mental health professionals, social workers and crisis counselors as well as specially trained police officers
  • involvement of this multidisciplinary team in planning, implementation and response to crises
  • at least 40 hours of crisis intervention training for police officers (Ex: LAPD Mental Evaluation Team)

Learn More About This Issue

2.  Community Oversight

Police usually investigate and decide what, if any, consequences their fellow officers should face in cases of police misconduct. Under this system, fewer than 1 in every 12 complaints of police misconduct nationwide results in some kind of disciplinary action against the officer(s) responsible. Communities need an urgent way to ensure police officers are held accountable for police violence.

Policy Solutions

Establish effective civilian oversight structures

Establish an all-civilian oversight structure with discipline power that includes a Police Commission and Civilian Complaints Office with the following powers:

The Police Commission should:

  • determine policy for the police department based on community input and expertise
  • share policy and policy changes in publicly accessible formats
  • discipline and dismiss police officers
  • hold public disciplinary hearings
  • select the candidates for Police Chief, to be hired by the Mayor
  • evaluate and fire the Police Chief, if needed
  • receive full-time, competitive salaries for all members
  • receive regular training on policing and civil rights
  • not have current, former or family of police officers as members
  • select its members from candidates offered by community organizations

The Civilian Complaints Office should:

  • receive, investigate and resolve all civilian complaints against police in 120 days
  • establish multiple in-person and online ways to submit, view and discuss complaints
  • be immediately notified and required to send an investigator to the scene of a police shooting or in-custody death
  • be allowed to interrogate officers less than 48 hours after an incident where deadly force is used
  • access crime scenes, subpoena witnesses and files with penalties for non-compliance
  • make disciplinary and policy recommendations to the Police Chief
  • compel the Police Chief to explain why he/she has not followed a recommendation
  • have the Police Commission decide cases where the Police Chief does not follow recommendations
  • issue public quarterly reports analyzing complaints, demographics of complainants, status and findings of investigations and actions taken as a result
  • be housed in a separate location from the police department
  • be funded at an amount no less than 5% of the total police department budget
  • have at least 1 investigator for every 70 police officers or 4 investigators at all times,whichever is greater
  • have its Director selected from candidates offered by community organizations
  • not have current, former or family of police officers on staff, including the Director

(Ex: San Francisco Charter Policies on Police Commission and Office of Citizen Complaints)

Remove barriers to reporting police misconduct

For all stops by a police officer, require officers to give civilians their name, badge number, reason for the stop and a card with instructions for filing a complaint to the civilian oversight structure.

Learn More About This Issue

3.  Limit Use of Force

Police should have the skills and cultural competence to protect and serve our communities without killing people – just as police do in England, Germany, Japan and other developed countries. In 2014, police killed at least 253 unarmed people and 91 people who were stopped for mere traffic violations. The following policy solutions can restrict the police from using excessive force in everyday interactions with civilians.

Policy Solutions

Establish standards and reporting of police use of deadly force

A. Authorize deadly force only when there is an imminent threat to an officer’s life or the life of another person and such force is strictly unavoidable to protect life as required under International Law. Deadly force should only be authorized after all other reasonable means have been exhausted. (Ex: International Deadly Force Standard; Tennessee Deadly Force Law)

B. Require that an officer’s tactical conduct and decisions leading up to using deadly force be considered in judgements of whether such force was reasonable. (Ex: LAPD Use of Force Policy)

C. Require officers give a verbal warning, when possible, before using deadly force and give subjects a reasonable amount of time to comply with the warning (Ex: Las Vegas Metro PD Policy)

D.  Require reporting of police killings or serious injuries of civilians (Ex: The PRIDE Act; Colorado law)

E. Require the names of both the officer(s) involved and victim(s) to be released within 72 hours of a deadly force incident (Ex: Philadelphia PD Policy)

Revise and strengthen local police department use of force policies

Revised police use of force policies should protect human life and rights. Policies should include guidance on reporting, investigation, discipline, and accountability and increase transparency by making the policies available online. This use of force policy should require officers to:

  • restrict officers from using deadly force unless all reasonable alternatives have been exhausted (Ex: Philadelphia PD Policy)
  • use minimum amount of force to apprehend a subject, with specific guidelines for the types of force and tools authorized for a given level of resistance (Ex: Seattle PD Policy)
  • de-escalate first (Ex: Seattle PD Policy)
  • carry a less-lethal weapon (Ex: Seattle PD Policy)
  • ban using force on a person for talking back or as punishment for running away (Ex: Cleveland PD Policy)
  • ban chokeholds, strangleholds (i.e. carotid restraints), hog-tying and transporting people face down in a vehicle (Ex: NYPD Policy)
  • intervene to stop other officers who are using excessive force and report them to a supervisor (Ex: Las Vegas Metro PD Policy)
  • have first aid kits and immediately render medical assistance to anyone in police custody who is injured or who complains of an injury (Ex: New Baltimore PD Policy)

End traffic-related police killings and dangerous high-speed police chases

Prohibit police officers from:

Monitor how police use force and proactively hold officers accountable for excessive force

A. Report all uses of force to a database with information on related injuries and demographics of the victims. (Ex: Seattle PD Policy; Indianapolis Metropolitan PD reporting website)

B. Establish an early intervention system to correct officers who use excessive force. These systems have been shown to reduce the average number of complaints against officers in a police department by more than 50%. This system should:

  • report officers who receive two or more complaints in the past month
  • report officers who have two or more use of force incidents or complaints in the past quarter
  • require officers to attend re-training and be monitored by an immediate supervisor after their first quarterly report and terminate an officer following multiple reports

C. Require police departments to notify the state when an officer is found to have willfully violated department policy or the law, committed official misconduct, or resigned while under investigation for these offenses. Maintain this information in a database accessible to the public (Ex: Illinois Law) and prohibit these officers from serving as police officers, teachers or other governmental employees.


Campaign Zero reviewed police department use of force policies in 91 of the largest U.S. cities. Eight use of force policies were found to be associated with fewer police-involved killings and killings of police officers. Learn more at UseofForceProject.org.

4. Independently Investigate & Prosecute

Local prosecutors rely on local police departments to gather the evidence and testimony they need to successfully prosecute criminals. This makes it hard for them to investigate and prosecute the same police officers in cases of police violence. These cases should not rely on the police to investigate themselves and should not be prosecuted by someone who has an incentive to protect the police officers involved.

policy solutions

Lower the standard of proof for Department of Justice civil rights investigations of police officers

Allow federal prosecutors to successfully prosecute police officers for misconduct by passing legislation to eliminate the requirement that an officer must “willfully” deprive another’s rights in order to violate Section 242.

Use federal funds to encourage independent investigations and prosecutions

Pass legislation such as the Police Training and Independent Review Act of 2015 or use of existing federal funds to encourage external, independent investigations and prosecution of police killings (see Action Items 2.2.2 and 2.2.3 of the President’s Task Force Report).

Establish a permanent Special Prosecutor’s Office at the State level for cases of police violence

The Special Prosecutor’s Office should be:

  • required and authorized to prosecute all cases of where police kill or seriously injure a civilian, in-custody deaths and cases where a civilian alleges criminal misconduct against a police officer
  • equipped with an office and resources to conduct thorough investigations
  • required to have its Chief Prosecutor chosen from a list of candidates offered by community organizations

Require independent investigations of all cases where police kill or seriously injure civilians

The independent investigators should be:

  • required and authorized to prosecute all cases of where police kill or seriously injure a civilian, in-custody deaths and cases where a civilian alleges criminal misconduct against a police officer
  • required to investigate all cases where police kill chosen at random from a list of the largest ten agencies in the state
  • required to report their findings to the public

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5.  Community Representation

While white men represent less than one third of the U.S. population, they comprise about two thirds of U.S. police officers. The police should reflect and be responsive to the cultural, racial and gender diversity of the communities they are supposed to serve. Moreover, research shows police departments with more black officers are less likely to kill black people.

Policy Solutions

Increase the number of police officers who reflect the communities they serve

Require police departments to develop and publicly report a strategy and timeline for achieving a representative proportion of police officers who are women and people of color through outreach, recruitment and changes to departmental practices (Ex: Connecticut Law)

Use community feedback to inform police department policies and practices

Require a regular survey (Ex: Milwaukee survey) to be fielded to the community to gauge their experiences and perceptions of the police and use this information to inform:

  • police department policies and practices
  • police officer evaluations
  • police officer pay incentives

Learn More About This Issue

6.  Body Cams/Film the Police

While they are not a cure-all, body cameras and cell phone video have illuminated cases of police violence and have shown to be important tools for holding officers accountable. Nearly every case where a police officer was charged with a crime for killing a civilian in 2015 relied on video evidence showing the officer’s actions.

Policy Solutions

Body cameras

Require the use of body cameras – in addition to dashboard cameras – and establish policies governing their use to:

  • record all interactions with subjects who have not requested to be kept anonymous
  • notify subjects that they have the option to remain anonymous and stop recording/storing footage if they choose this option
  • allow civilians to review footage of themselves or their relatives and request this be released to the public and stored for at least two years
  • require body and dash cam footage to be stored externally and ensure district attorneys and civilian oversight structures have access to the footage
  • require police departments, whenever they want to deny a Freedom of Information Act (FOIA) request for body or dash cam footage, to prove in court that the footage constitutes a legitimate FOIA exemption (Ex: Illinois House Bill 4355)
  • permanently delete footage after 6 months if this footage hasn’t been specifically requested to be stored
  • include a disciplinary matrix clearly defining consequences for officers who fail to adhere to the agency’s body camera policy.
  • consider whether cameras or mandated footage are tampered with or unavailable as a negative evidentiary factor in administrative and criminal proceedings
  • prevent officers from reviewing footage of an incident before completing initial reports, statements or interviews about an incident
  • prohibit footage from being used in tandem with facial recognition software, as fillers in photo arrays, or to create a database or pool of mugshots. (Ex: Baltimore PD Body Cam Policy)
  • update privacy laws to protect civilians from having video or audio recordings released publicly that do not contain potential evidence in a use-of-force incident, discharge of a weapon or death.

(Ex: ACLU Model Policy)

https://www.themarshallproject.org/mp-graphics/201412-dod/embed.html#NY

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7.  Training

The current training regime for police officers fails to effectively teach them how to interact with our communities in a way that protects and preserves life. For example, police recruits spend 58 hours learning how to shoot firearms and only 8 hours learning how to de-escalate situations. An intensive training regime is needed to help police officers learn the behaviors and skills to interact appropriately with communities.

Policy Solutions

Invest in Rigorous and Sustained Training

Require officers to undergo training – including scenario-based training – on the following topics on at least a quarterly basis and involve the community – including youth of color – in their design and implementation:

  • Implicit bias
  • Procedural justice
  • Relationship-based policing
  • Community interaction
  • Crisis intervention, mediation, conflict resolution, and rumor control
  • Appropriate engagement with youth
  • Appropriate engagement with LGBTQ, transgender and gender nonconforming individuals
  • Appropriate engagement with individuals who are english language learners
  • Appropriate engagement with individuals from different religious affiliations
  • Appropriate engagement with individuals who are differently abled
  • De-escalation and minimizing the use of force

Intentionally consider ‘unconscious’ or ‘implicit’ racial bias

Require current and prospective police officers to undergo mandatory implicit racial bias testing, including testing for bias in shoot/don’t shoot decision-making, and develop a clear policy for considering an officer’s level of racial bias in:

  • law enforcement certification
  • the hiring process
  • performance evaluations
  • decisions about whether an officer should be deployed to communities of color

Learn More About This Issue

8.  End For-Profit Policing

Police should be working to keep people safe, not contributing to a system that profits from stopping, searching, ticketing, arresting and incarcerating people.

Policy Solutions

End police department quotas for tickets and arrests

Ban police departments from using ticket or arrest quotas to evaluate the performance of police officers

(Ex: Illinois law)

Limit fines and fees for low-income people

Pass policies requiring local governments to:

  • ban issuing fines or arrest warrants for civilians who fail to appear in court for a traffic citation (Ex: Ferguson Policy)
  • ban generating more than 10% of total municipal revenue from fines and fees (Ex: Missouri law)
  • allow judges discretion to waive fines and fees for low-income people or initiate payment plans (Ex: Pennsylvania law)
  • prohibit courts from ordering individuals on parole or probation to pay supervision fees and other correctional fees

Prevent police from taking the money or property of innocent people

Prohibit police from:

  • seizing property of civilians (i.e. civil forfeiture) unless they are convicted of a crime and the state establishes by clear and convincing evidence that the property is subject to forfeiture
  • keeping any property that has legally been forfeited (instead, this property should go to a general fund)
  • participating in the federal Equitable Sharing program that allows police to engage in civil asset forfeiture

(Ex: New Mexico law)

Require police departments to bear the cost of misconduct

  • Require the cost of misconduct settlements to be paid out of the police department budget instead of the City’s general fund
  • Restrict police departments from receiving more money from the general fund when they go over-budget on lawsuit payments

Learn More About This Issue

9. Demilitarization

The events in Ferguson have introduced the nation to the ways that local police departments can misuse military weaponry to intimidate and repress communities. In 2014, militarized SWAT teams killed at least 38 people and studies show that more militarized police departments are significantly more likely to kill civilians. The following policies limit police departments from obtaining or using these weapons on our streets.

Policy Solutions

End the Federal Government’s 1033 Program Providing Military Weaponry to Local Police Departments

End the supply of federal military weaponry to local police departments under the 1033 program. (Ex: Stop Militarizing Law Enforcement Act)

Establish Local Restrictions to Prevent Police Departments from Purchasing or Using Military Weaponry

Restrict police departments from:

  • using federal grant money to purchase military equipment (Ex: Montana law)
  • deploying armored vehicles, weaponized aircraft, drones, Stingray surveillance equipment, camouflage uniforms, and grenade launchers
  • using SWAT teams unless there is an emergency situation or imminent threat to life and high-ranking officers have given approval (Ex: Cincinnati PD Policy)
  • conducting no-knock raids without probable cause to believe someone inside the home is an imminent threat (Ex: Cincinnati PD Policy)
  • accessing federal grant money or purchasing military equipment if the department has been recently found to demonstrate a “pattern or practice” of discriminatory policing
  • in addition to these restrictions, wherever possible agencies should seek to return to the federal government the military equipment that has already been received (Ex: San Jose)

See What Your Local Agency Received from the Department of Defense

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10. Fair Police Union Contracts

Police unions have used their influence to establish unfair protections for police officers in their contracts with local, state and federal government and in statewide Law Enforcement Officers’ Bills of Rights. These provisions create one set of rules for police and another for civilians, and make it difficult for Police Chiefs or civilian oversight structures to punish police officers who are unfit to serve. Learn more about how police union contracts help officers avoid accountability here.

Policy Solutions

Remove barriers to effective misconduct investigations and civilian oversight

Remove contract provisions, local policies, and provisions in state Law Enforcement Officers’ Bills of Rights laws that:

  • allow officers to wait 48 hours or more before being interrogated after an incident
  • prevent investigators from pursuing other cases of misconduct revealed during an investigation
  • prevent an officer’s name or picture from being released to the public
  • prohibit civilians from having the power to discipline, subpoena or interrogate police officers
  • state that the Police Chief has the sole authority to discipline police officers
  • enable officers to appeal a disciplinary decision to a hearing board of other police officers
  • enable officers to use the contract grievance process to have an outside arbitrator reverse disciplinary decisions and reinstate officers who have committed misconduct
  • prevent an officer from being investigated for an incident that happened 100 or more days prior
  • allow an officer to choose not to take a lie detector test without being punished, require the civilian who is accusing that officer of misconduct to pass a lie detector first, or prevent the officer’s test results from being considered as evidence of misconduct

Keep officers’ disciplinary history accessible to police departments and the public

Remove contract provisions, local and state policies, and provisions in state Law Enforcement Officers’ Bills of Rights laws that allow police officers to:

  • expunge or destroy records of past misconduct (both sustained and unsustained) from their disciplinary file
  • prevent their disciplinary records from being released to the public via a Freedom of Information Act (FOIA) request

Ensure financial accountability for officers and police departments that kill or seriously injure civilians

Remove contract provisions, local policies, and provisions in state Law Enforcement Officers’ Bills of Rights laws that:

  • require officers to be given paid administrative leave or paid desk-duty during an investigation following a police shooting or other use of deadly force
  • prevent officers from receiving unpaid suspensions as discipline for misconduct or allow officers to use vacation or discretionary time to pay themselves while on suspension
  • allow officers to receive paid leave or paid desk-duty after being charged with a felony offense

Campaign Zero reviewed the police union contracts in 81 of the largest U.S. cities. 72 of the 81 cities’ contracts imposed at least one barrier to holding police accountable. Learn more at CheckthePolice.org.

Use of Force Policies

Police Use of Force Project: How police use of force policies can help to end police violence

POLICE USE OF FORCE POLICIES currently LACK BASIC PROTECTIONS AGAINST Police violence

These policies often fail to include common-sense limits on police use of force, including:

  1. Failing to make life preservation the primary principle shaping police decisions about using force
  2. Failing to require officers to de-escalate situations, where possible, by communicating with subjects, maintaining distance, and otherwise eliminating the need to use force
  3. Allowing officers to choke or strangle civilians, in many cases where less lethal force could be used instead, resulting in the unnecessary death or serious injury of civilians
  4. Failing to require officers to intervene and stop excessive force used by other officers and report these incidents immediately to a supervisor
  5. Failing to develop a Force Continuum that limits the types of force and/or weapons that can be used to respond to specific types of resistance.
  6. Failing to require officers to exhaust all other reasonable means before resorting to deadly force.
  7. Failing to require officers to give a verbal warning, when possible, before shooting at a civilian.
  8. Failing to require officers to report each time they use force or threaten to use force against civilians

We (Use of Force Project) reviewed the use of force policies of 91 of America’s 100 largest city police departments* to determine whether they include meaningful protections against police violence.

Click here for full report and highlights

34 of the 91 police departments reviewed require officers to de-escalate situations, when possible, before using force.


                    Philadelphia Police Department Use Of Force Continuum

77 of the 91 police departments reviewed have a Force Continuum or Matrix included in their use of force policy, defining the types of force/weapons that can be used to respond to specific types of resistance.


MiamiPD.png

21 of the 91 police departments reviewed explicitly prohibit chokeholds and strangleholds (including carotid restraints) or limit these tactics to situations where deadly force is authorized.


56 of the 91 police departments reviewed require officer to give a verbal warning, when possible, before using deadly force.




19 of the 91 police departments
 reviewed prohibit officers from shooting at people in moving vehicles unless the person poses a deadly threat by means other than the vehicle (for example, shooting at people from the vehicle).



31 of the 91 police departments reviewed require officers to exhaust all other reasonable alternatives before resorting to using deadly force.


30 of the 91 police departments reviewed require officers to intervene to stop another officer from using excessive force.



Overview

We ( Use of Force Project) compared police department use of force policies with police killings data for 91 of the 100 largest police departments to see if there was a relationship between the two. We found that police departments with policies that place clear restrictions on when and how officers use force had significantly fewer killings than those that did not have these restrictions in place.

Results

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For each of the 8 policies examinedpolice departments that had implemented the policy were less likely to kill people than police departments that had not.

Police departments with four or more of these restrictive use of force policies had the fewest killings per population and per arrest. After taking into account other factors, each additional use of force policy was associated with a 15% reduction in killings by police. According to our analysis, the average police department would have 54% fewer killings and a police department with none of these policies currently in place would have 72% fewer killings by implementing all eight of these policies.

  

DISCUSSION

These results indicate that while the chances of killing a civilian increases the more arrests a police department makes, that likelihood is shaped by the department’s policies governing how and when police can use force during those encounters. This suggests that advocacy efforts pushing police department to adopt more restrictive use of force policies – and the accountability structures to enforce them – can substantially reduce the number of people killed by police in America. And while this analysis was limited to examining rates of deadly force, these policies may also be associated with reductions in other forms of police violence as well.

Despite their potential impact, efforts to push for these changes have often been opposed by police organizations that claim more restrictive use of force policies “endanger officers” (See herehere, and here). We find that these assumptions are not supported by the data. Officers in police departments with more restrictive policies in place are actually less likely to be killed in the line of duty, less likely to be assaulted, and have similar likelihood of sustaining an injury during an assault.

In short, a commitment to protect and preserve life necessitates the immediate adoption of more restrictive policies governing when and how officers use force in our communities.

 

Further Readings

Washington Post: D. C. police to learn black history as part of new training program

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Restorative Justice

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“Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders. This can lead to transformation of people, relationships and communities.” Center for Justice and Reconciliation

  • Restorative Justice practices/programs will respond to crime by:
    • identifying and taking steps to repair harm,
    • involving all stakeholders, and
    • transforming the traditional relationship between communities and their governments in responding to crime.

“Restorative justice theory and programs have emerged over the past 35 years as an increasingly influential world-wide alternative to criminal justice practice.” Center for Justice and Reconciliation

Restorative Justice: Why Do We Need it? BRAVE NEW FILMS

Transformative Justice and Community Accountability

  • Reasons for options beyond the police and the criminal legal system
    • Many survivors’ first priority is not punishing/incarcerating their abuser
      • It’s getting violence to stop
    • Many communities experience police/prison industrial complex as a source of violence rather than safety
    • The majority of survivors do not receive justice even by the criminal legal systems definition’s of justice
      • Only 3 of every 100 rapists will ever spend a day in prison
      • Many ways that abusers maintain power and control may technically be legal
      • Options within the criminal legal system are limited for survivors
        • Often make the situation worst
  • Community Accountability and Transformative Justice Options
    • INCITE, a national collective of Feminists of Color against violence, defines “community accountability”
      • Process which a community (group of friends, family, church, workplace, apartment complex, a neighborhood) work together to do:
        • Create and affirm values & practices that resist abuse, oppression, encourage safety, support, accountability
        • Develop sustainable strategies addressing community members’ abusive behavior, accountability process and transform behavior
        • Commit to ongoing development of all members of the community, and the community itself, to transform the political conditions that reinforce oppression and violence
        • Provide safety & support to community members who are violently targeted
          • That respects their self-determination
  • Community accountability strategies (often framed as an alternative to punitive justice)
    • Educating people in the abuser and survivor’s life about how to support a survivor
    • Communities taking accountability for minimizing or normalizing domestic violence
    • Approaching a person who has caused harm about their behavior
    • Supporting someone to be accountable to their actions
    • Safety plans that leverage community resources (e.g. childcare, respected leaders in community
    • Raise awareness to the survivor’s support system about responding to and preventing violence
    • Full-on community interventions in violent situations.

5 Beneficial Things About Restorative Justice

5 Harmful Things About Retributive Justice

CEGV: Transformative Justice and Community Accountability

Community Accountability and Transformative Justice are community-based responses to violence that seek to address immediate needs for justice (e.g. safety, dignity, connection, self-determination, support, healing, accountability, etc) in ways that both address the survivor’s immediate needs (including addressing the behavior of an individual abusive person) and change the root causes of that harm and oppression and ultimately end violence.

Because options within the criminal legal system are very limited for survivors – and most inaccessible for survivors of color (especially Black and Latino survivors), queer and trans people, survivors involved in the sex trade, people with disabilities, poor people, immigrants, survivors who‘s abusive partners are in law enforcement, and many others impacted by state violence – we need solutions that do not rely solely on the state.

INCITE, a national collective of Feminists of Color against violence, defines community accountability as “a process in which a community – a group of friends, a family, a church, a workplace, an apartment complex, a neighborhood, etc – work together to do the following things:

+ Create and affirm values & practices that resist abuse and oppression and encourage safety, support, and accountability.

+ Develop sustainable strategies to address community members’ abusive behavior, creating a process for them to account for their actions and transform their behavior.

+ Commit to ongoing development of all members of the community, and the community itself, to transform the political conditions that reinforce oppression and violence.

+ Provide safety & support to community members who are violently targeted that respects their self-determination.”

Community accountability is often framed as an alternative to punitive justice. There is often confusion around how TJ/CA tangibly works because it is more about a set of values and organizing goals than a one-size-fits-all response. A TJ/CA response could look like educating people in the abuser and survivor’s life about how to support a survivor, communities taking accountability for minimizing or normalizing domestic violence, approaching a person who has caused harm about their behavior, supporting someone to be accountable to their actions, safety plans that leverage community resources (e.g. childcare, respected leaders in community, etc.) and raise awareness to the survivor’s support system about responding to and preventing violence, and full-on community interventions in violent situations.

Why are we looking for options beyond the police and the criminal legal system?

+ Many survivors’ first priority is not punishing or incarcerating their abuser, it’s getting violence to stop.  Many survivors we work with have a complex relationship with their abuser – who might be their family member, a parent to their kids, a financial or emotional support, or interact with them in a myriad of other ways.  Due to this difference in prioritizing, the goals of the criminal legal system might not match the goals of the survivor. Within the legal system, survivors have very little control over what the level of sentencing would be.

+ Many communities experience the police and the prison industrial complex as a source of violence rather than safety, and have strong distrust of the criminal legal system. The recent non-indictments of police officers in the deaths of Eric Garner and Michael Brown highlight this understood inequality within the justice system.

+ The majority of survivors do not receive justice even by the criminal legal systems definition’s of justice – RAINN (Rape, Abuse & Incest National Network) estimates that only 3 of every 100 rapists will ever spend a day in prison (https://rainn.org/get-information/statistics/reporting-rates) and other research suggests similar rates for domestic violence that only 2% of abusers received any jail time. Many survivors do not report because they do not expect the legal system to support them. To witness survivor’s words about choosing not to report see the hashtags: #JusticeFailsASurvivorWhen #BeenRapedNeverReported #WhyIDidntReport

+ Many ways that abusers maintain power and control may technically be legal (i.e. minimizing, denying, blaming, some forms of intimidation & coercion, using isolation, using male privilege, gas lighting, financial control & economic abuse, threatening to out someone’s immigration status, sexual orientation, involvement in the sex trade, etc). While we know that abuse is about a cycle of power and control, the context of the criminal legal system is about addressing individual offenses.

+ Increased reliance on law-enforcement has led to many victim-defendants being arrested for using self-defense or for surviving abuse. The case of Marissa Alexander – an African-American survivor of domestic violence from Jacksonville, FL who was prosecuted for firing warning shots & defending her life from her abusive husband – highlights the experience of victim defendants and the racial disparities in the criminal legal system. According to a 2012 report by the National Coalition of Anti-Violence Programs, “in nearly 1/3 of the LGBTQ-specific IPV cases reported to the police (28.4%), the survivor was arrested instead of the abusive partner” (http://www.avp.org/storage/documents/ncavp_2012_ipvreport.final.pdf). For more on supporting survivors who are incarcerated for surviving, see Survived and Punished (http://www.survivedandpunished.org/)

Want to learn more?

+ Locally, we’re lucky to have a strong foundation around these topics, largely thanks to the work Communities Against Rape and Abuse (CARA) and the NW Network of BTLG Survivors of Abuse, who have been engaging with these concepts for years. See articles by CARA here: http://www.incite-national.org/sites/default/files/incite_files/resource_docs/9261_anti-prisonbrochure.pdf and The Color of Violence: the Incite! Anthology

+ Locally API Chaya, the NW Network, and a few other organizations engage in CA/TJ work.

+ Further reading with The Revolution Starts At HomeArrested Justice: Black Women, Violence, and America’s Prison Nation by Beth Richiehttp://communityaccountability.wordpress.com/, and Creative Interventions Toolkit (http://www.creative-interventions.org/tools/toolkit/)

+ Survived and Punished toolkit on organizing Defense Campaigns for survivors incarcerated for self-defense (http://www.survivedandpunished.org/sp-toolkit.html)

+ For approaches to addressing child sexual abuse, please see the documentary Hollow Water (https://www.nfb.ca/film/hollow_water), Generation 5, and the National Council on Crime and Deliquency’s Restorative Justice Project

Restorative Justice in Schools

NPR: D.C. Prosecutors, Once Dubious, Are Becoming Believers In Restorative Justice

A teenager’s life is on the line — but he is nowhere to be found.

People have gathered inside a D.C. government building on a rainy holiday morning to help decide what happens to the young man, but he hasn’t shown up.

After several phone calls and nearly an hour of waiting, the 16-year-old boy finally arrives. NPR, which was permitted to attend the meeting for this story, is not identifying him because he is a minor.

Facilitator Roman Haferd is eager to get started.

“It’s been a bit of a morning — a bit of a scramble this morning — but the good news is that everybody’s here,” he says.

The boy was involved with an assault. But what plays out over the next three hours is a restorative justice conference — a guided conversation between a juvenile who broke the law and the person whom the juvenile hurt.

If the program works, the victim and the offender discuss what happened and agree on a way to move ahead so that criminal charges are dismissed.

To supporters, the message is clear: Achieving justice doesn’t always involve punishment or retribution — and young people have the capacity for change.

Culture shift

No one said it would be easy, least of all Karl Racine, the elected official who launched the effort.

“Our objective in our prosecutions, particularly since we’re dealing with young people, is to put them in a position to learn from their mistakes,” says Racine, the attorney general of the District of Columbia.

Racine’s special counsel, Seema Gajwani, first presented the concept to him nearly three years ago. While the roots of restorative justice can be traced to indigenous peoples in the U.S. and Canada, no elected prosecutor had created such a unit inside their own office — until now.

At first, Racine says, he was skeptical. But the process has eroded his misgivings, in part because the sessions help juveniles understand the harm they’ve caused their victims, their communities and even their own family members.

What’s more, Racine says, the concept also promotes public safety. Early data are showing signs that the program is a success, he says. The restorative justice program is not available for offenses involving guns or serious sexual assault.

Prosecutor Erika Clark says she worried that restorative justice would let people off the hook.

Her first reaction? “Oh, OK, so we’re not going to prosecute you? We’re going to sit around in a circle with, like, the hippies down the hallway, and we’re going to have a talk and then you don’t have any punishment?”

Things have changed.

Clark is now referring some of the most serious cases on her docket into the program, including one involving a transit police officer who tore his rotator cuff and strained his knee trying to apprehend a teenager fighting on a subway platform.

Metro Transit Police officer Jason Dixon says some kids are “a little past saving, but [for] the ones that you can save, this program should definitely be on the table.”

Dixon shrugged off objections from his wife, a detective and some of his transit police force colleagues to participate in restorative justice. After the restorative justice conference, the 16-year-old who hurt him called on the phone once a week for six months — even getting parenting advice from Dixon, since the teen had recently become a new dad himself.

“I really feel like this program opens up doors for kids where they have a lot of doors shut in their face,” Dixon says.

The restorative justice program is underway in a city where police interactions with juveniles have become very public and very controversial.

Local law enforcement officers handcuffed a 10-year-old boy this year, stirring vocal protests in the neighborhood. Other incidents with young children followed, often captured by neighbors on cell phone videos.

Racine’s office is reviewing police policies on encounters with children.

“I got me”

Back in the drab D.C. conference room on Good Friday, the process is taking a while.

People have stopped picking at breakfast — chocolate chip muffins and orange juice — and have started dishing out slices of cheese pizza from a cardboard takeout box.

The 16-year-old boy’s foster mom and two older male mentors insist they want to support him, but he has had a tough life and he doesn’t want to grab the hands that are reaching out to help him.

“Y’all keep screaming, ‘Team,’ ” the boy says. “At the end of the day, when I go to sleep by myself, I got me. Any clothes, shoes, anything, support — I get it because I believed in me. … And I got 16 years of life without a team, and I’m going to make it 55 more. I don’t believe in friendship. I don’t believe in trust. I don’t even trust my own mother. I don’t trust my own brothers.”

The conversation turns to the event that brought them all here.

A few months earlier, this boy and his crowd ran into trouble on public transportation. Some people in the group made hostile remarks to a transgender woman. The incident escalated, and she was assaulted.

That woman is sitting across the circle from him, looking through her long eyelashes and waiting for him to talk.

The boy slumps in a chair and mumbles while his foster mom pushes him to continue. He begins to explain: He didn’t want to look like a sucker that day, or for the rest of the school year. So he spat on the victim.

The woman he spat on says everyone has struggles in life — but he has time and support to change.

“I’m always going to have to deal with getting beat up because this is how people feel all the time,” she says. “How many more times am I going to go through this?”

But, she also says, she agreed to come to this session because she saw something more in this teenager during that bad day on the subway: fear or regret, unlike the other young people involved with the assault. The woman has one request: She wants this boy to promise to stand up for other LGBTQ people getting harassed like she did.

“This was a hate crime,” she says.

The boy asks everyone else to leave the room. Later, they say, he apologized — and she accepted.

A clean sheet. A second chance

Back in the conference room, Haferd, the facilitator, asks how everyone is feeling. It has been an exhausting day. One hour in a restorative justice circle, he says, feels like five hours anyplace else.

The woman who was hurt says she’s happy with the process — she feels like it was “completely successful.”

They agree that the teenager will go to school more often and that she’ll even recommend possible clients for haircuts, because he wants to start a barbering business.

“When you make good on these agreements, we’re going to make sure your case gets dismissed,” Haferd says.

A few months later, authorities told NPR, the teenager is sticking to the agreement.

He has found some barbershops willing to take him, he’s going to a better school in the fall and he has reunited with his biological mother. She reports they’re now on “good terms” — one more relationship in the early stages of restoration.

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