Prison Policy Initiative endorses the Environmental Health in Prisons Act

Act recognizes the right to live in a healthy environment and offers much-needed environmental protections for people in prisons.

by Emmett Sanders, July 18, 2024

On Thursday, July 18, 2024, U.S. Senator Ed Markey and Congressperson Ayanna Pressley, both of Massachusetts, introduced the Environmental Health in Prisons Act. Prison Policy Initiative is proud to support this bill, which seeks to address hazardous environmental conditions in federal prisons.

The bill has several provisions, all focused on increasing transparency and creating healthier environments for those in prisons. This act:

• Requires stricter monitoring and reporting from federal carceral agencies on a wide array of pollutants and environmental hazards, including air and water quality, temperature, mold, pests, light levels, noise pollution, and more, and establishes oversight through an independent advisory panel.
• Requires people held in federal carceral facilities to be informed as to potential environmental hazards, their effects, and precautions they can take to protect themselves.
• Mandates and funds several feasibility studies and pilot programs, including studies on decarceration as well as those that address mitigating environmental harm.
• Offers much-needed whistleblower protections for both incarcerated people and prison staff who request information about a facility’s environmental data or who raise concerns about potential unreported hazards.

Advocates have long sounded the alarm that prisons are situated, constructed, and operated in ways that perpetuate environmental injustices. Fully one-third of all federal and state prisons lie within three miles of designated federal “superfund” sites — toxic waste areas most needing extensive cleanup. Pollutants such as arsenic and lead are regularly found in prison water, and people in prison often are forced to suffer through dangerously excessive heat and other extreme and sometimes deadly conditions.

We at Prison Policy Initiative strongly support the Environmental Health in Prisons Act. It adds a much-needed layer of independent oversight for a prison system that has long deprioritized the environmental well-being of those it imprisons. The hazardous conditions in prisons can have deep and long-lasting physical and mental health consequences, can socially and economically devastate families and communities, and can create enormous strain on the prison system, which is tasked with providing long-term medical care and mental health care in the aftermath. We are proud to support these efforts toward better policy, more equitable and ethical environmental justice, and the recognition of incarcerated people as human beings with a right to be free of toxic prison conditions.

Read the official press release for the Environmental Health in Prisons Act here.

For further information on the need for environmental justice in prisons, consider the following resources:

• Heat, floods, pests, disease, and death: What climate change means for people in prison
• Prisons are a daily environmental injustice

FCC votes to slash prison and jail calling rates and ban corporate kickbacks

New rules, the result of the bipartisan passage of the Martha Wright-Reed Fair and Just Communications Act, are a massive victory in the decades-long fight for prison and jail communication justice.

by Wanda Bertram, July 18, 2024

Today, the Federal Communications Commission voted to implement several new regulations on phone and video calling services in prisons and jails. As required by the 2022 Martha Wright-Reed Fair and Just Communications Act, the FCC laid out new price caps that prisons, jails, and their telecom providers must abide by, significantly lowering the existing caps which were set in 2021. The agency also made a number of long-sought reforms that will bring critical relief to families of incarcerated people and reduce incentives for bad policy in prisons and jails.

The new caps on phone and video calling rates in prisons and jails

The FCC voted to set price caps for phone calls of 6¢ per minute for prisons and large jails, 7¢/minute for medium-sized jails, and slightly more for small and “very small” jails. This move lowers the existing caps by more than half, a tremendous step forward that will save the families of incarcerated people many millions of dollars every year.

The FCC also laid down the first rate caps for video calling — a quickly growing industry, which we put on the national radar with our 2015 report — though it should be noted that these are interim rates as the agency decides on permanent regulations. Prisons will be required to keep video calling rates at or below 16¢/minute, and jails are required to keep rates between 11¢/minute and 25¢/minute, depending on facility size. While this is an intermediate step, it stands to substantially lower the cost of video calls, for which families currently pay about 25¢ a minute on average.

Additionally, the FCC finally prohibited the companies from charging additional fees for “ancillary services” like making a deposit to fund an account, and now will just require the companies to recover those costs within their per-minute charge for phone or video service. This technical-sounding change ends a long debate around the best way to eliminate some of the industry’s dirtiest tricks that shortchange both the families and the facilities.¹ The FCC itself recognized in 2015 that fees were “the chief source of consumer abuse and allow circumvention of rate caps” when it set caps on five types of fees and prohibited all the others. Since then, the FCC has struggled to keep up with some providers’ attempts to circumvent the fee caps, so with this order the FCC will lower costs to the families while offering more simplicity and consistency to the companies and the facilities.

The FCC’s new rule on ancillary fees also effectively blocks a practice that we have been campaigning against for years: companies charging fees to consumers who choose to make single calls rather than fund a calling account, and deliberately steering new consumers to this higher-cost option in order to increase fee revenue. (Our 2019 State of Phone Justice report offers a visual depiction of this reprehensible practice.)

Other important financial regulations in the FCC’s order

The FCC’s order takes the momentous step of prohibiting companies from paying most kickbacks — or in the industry’s and FCC’s terminology, “site commissions” — to contracting agencies. Commissions, as we have written before, are a major factor driving up the costs of prison and jail telecom services: Counties and states choose their telecom provider based on which one will offer the highest commission payments, and companies offset the cost of paying these kickbacks by raising their rates. The new rules appear to restrict site commissions in all of their many forms, including “donations” of free technology or other gifts to the facilities.

There is an important caveat to this reform: Companies can still make payments to agencies totaling up to 2¢ for every calling minute, provided they can show that these are reimbursements for costs the facilities themselves are paying for “used and useful” calling services. (These commissions must be built into companies’ rates, within the caps listed above.) In other words, commission payments are not completely eliminated, but the biggest perverse incentive they exert in the prison and jail telecom market has been greatly curtailed.

Alternative pricing plans

In another departure from their previous regulatory approach, the FCC voted to allow companies to offer “alternative pricing plans” for phone and video calling. Over the past several years, the agency has required companies to price their services in terms of rates per minute, preventing abusive pricing systems like “flat rate calling” that charge consumers a fee for calls regardless of length (or that make the first minute cost much more than subsequent minutes). This time around, the FCC is allowing alternative pricing plans — with some key caveats.

Per the new rules — and in keeping with advocates’ strong recommendations — companies can only offer alternative pricing plans that they can show generate cost savings for consumers as a group and individually. Critically, the intent of the new rules is to allow the companies and facilities to experiment with new pricing structures but not to circumvent the existing rate caps.

New accessibility and consumer protection rules

Another important issue in the FCC’s rulemaking concerns incarcerated people with disabilities. The agency ruled that telecom providers must make “advanced communications services” (i.e. audio or video communications services and electronic messaging), and any equipment associated with those services, accessible for people with disabilities except when doing so is “not achievable.” In cases where it is not achievable, providers must ensure that their services and infrastructure can integrate with “existing peripheral devices” commonly used by people with disabilities.

Additionally, the FCC issued strong permanent rules to keep the companies from seizing funds that consumers leave behind in their accounts when a loved one is released from jail or prison. The new rules require the companies to make reasonable efforts to return funds when they know that a person has been released or when funds have gone unused for 180 days. If the companies are unable to return these funds, they must turn over those funds to the state’s unclaimed asset programs that hold funds in trust for consumers. This is a significant victory that the Prison Policy Initiative has long sought, because many companies would simply seize these unused funds as a secret form of profit, which in the case of industry giant GTL, averaged to more than $1.2 million per month of consumer funds seized by phone providers just because they could.

Conclusion

Advocates following these developments at the FCC should also be aware of upcoming opportunities to make the new rules even better. The FCC has released a “Notice of Proposed Rulemaking” (see paragraph 608 of the final order) pertaining to a number of topics, most notably video calling and “quality of service” issues. Advocates should act soon to ensure the FCC hears about excessive video calling charges, problems with dropped calls, and other technical issues. (The deadline for comments is 30 days after the order is published in the Federal Register, which probably will be at least a week after today’s vote.)

The FCC’s order is a massive victory for incarcerated people, their families, and their allies who have spent decades fighting the exploitative prison telecom industry. Of course, it does not mean the long fight for communications justice is over: Companies looking for ways to exploit consumers still have plenty of options for doing so, including bundling regulated services into contracts with unregulated services that charge unfair and unreasonable rates (like electronic messaging and tablet features). But the order delivers on the promise of the Martha Wright-Reed Act and accomplishes many of the key goals that we and other advocates have been campaigning on for years.

Webinar: In their own words: Organizing legislative testimony from incarcerated people

Learn strategies advocates around the country are using to help incarcerated people be heard at legislative committee hearings.

by Emmett Sanders, July 1, 2024

Americans have a fundamental right to engage with legislators about decisions that affect their lives, and one of the most powerful ways to do that is by testifying at state legislative hearings. People in prison, however, are routinely denied this right. Silencing incarcerated people is not only unjust, but deprives the public of valuable insights and expertise from those most affected by criminal legal system reforms. Even well-intended changes may ultimately be short-sighted or even harmful when created without any input from the people who bear the brunt of their effects.

Advocates across the country are taking advantage of the recent expansion of communication technology to help incarcerated people have their voices heard in legislative committee hearings. Through these efforts, the testimony of incarcerated people has been a driving force behind bills to end the use of solitary confinement, end life without parole, and more in Massachusetts, Washington, and Connecticut, among other states.

Join Prison Policy Initiative on August 5, 2024 at 3 PM EST, as we host a panel of advocates from around the country for a discussion on the importance and challenges of helping people in prisons testify at legislative hearings and introduce our new legislative testimony toolkit. Panelists with deep experience in successfully implementing legislative testimony programs will share strategies for ethically and effectively facilitating remote testimony for people in prisons. Panelists will include:

• Anthony Blankenship of Civil Survival;
• Jesse White of Prisoners’ Legal Services of Massachusetts;
• Christopher Blackwell, an award-winning incarcerated journalist and Co-founder of Look 2 Justice.

We hope you’ll join us as we explore how to make sure that legislators around the country hear directly from incarcerated people on prison reform issues.

Register here for the webinar.

Calling on the FCC to make the most of its upcoming rulemaking on prison and jail telecom rates

Ahead of the FCC’s vote on new prison and jail phone rate caps, The Leadership Conference sent a letter to the agency, and we signed on.

by Wanda Bertram, June 20, 2024

The landmark 2023 Martha Wright-Reed Fair and Just Communications Act set in motion a new round of rulemaking at the Federal Communications Commission to ensure that incarcerated people and their families are paying fair rates for phone and video calls. As the FCC prepares to vote on new regulations, we joined The Leadership Conference (a coalition of over 200 civil rights organizations) in a letter sent to the agency this week with recommendations for how it can make the most of this opportunity.

First and foremost, we urge the FCC to set rate caps as low as possible for voice and video calls. The current rate caps, handed down in 2021, allow local jails to charge a maximum of 21 cents per minute, a rate that family members say can still add up to several hundred dollars a month. The letter notes that costs could be brought down “as low as pennies per minute,” as evidenced by the rates companies are already charging in counties like San Mateo, Cali. and Dallas, Texas, as well as many state prisons.

Beyond setting rate caps, The Leadership Conference letter also calls on the FCC to:

• Adopt consumer disclosure labels for prison and jail telecom products, to help customers understand whether they are being illegally charged (particularly after the new rate caps go into effect).
• Take extreme care when considering new pricing structures proposed by the companies, particularly subscription-based pricing, and only approve them if they are shown to save consumers money.
• Close regulatory loopholes to ensure that all prisons and jails are providing people who have hearing disabilities with the services they need to call home.

Recent data have shown how prison telecom companies continue to strike lucrative contracts with correctional facilities, particularly jails, deals that impose high costs on consumers and strain their bonds with loved ones. Diligent federal regulation can stop the worst of these abuses. We call on the FCC to use its rare mandate from Congress to guarantee the fairest possible deal for incarcerated people and their families.

Read the full letter from The Leadership Conference here: https://www.fcc.gov/ecfs/document/10617989616085/1

Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care

Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision.

by Wendy Sawyer, June 18, 2024

June 24 marks two years since the Supreme Court stripped Americans of their constitutional right to abortion. The court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization permitted state governments to limit and even ban abortion care — and they did. As a result, the share of patients who cross state lines for abortion care has almost doubled, from about 1 in 10 to almost 1 in 5. Traveling out-of-state for health care, including abortions, is a hardship for anyone, but it is especially challenging for people on probation or parole.

According to The New York Times, since the Dobbs decision, 21 states have implemented abortion rules more restrictive than the standard under Roe v. Wade.¹ Fourteen states now ban abortion altogether, and most other states ban abortion after a certain point in pregnancy. And while some of these less-restrictive bans preserve abortion as an option for most people who need one, these bans are nonetheless as obstructive for people who need abortion care after their state’s time limit.² In all, 41 states have some kind of abortion ban in place post-Dobbs, whether “total bans” or bans based on gestational duration.³ In every one of these states, standard conditions⁴ of probation and/or parole require permission to travel out of state, county, or another specified area.⁵

To understand how this post-Dobbs landscape impacts women under the U.S.’ massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 women⁶ (82%) on probation or parole nationwide.⁷ That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision,⁸ 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

Every state and D.C. restrict the movement of people on probation or parole
For our analysis, we first looked at rules related to travel in the standard conditions of probation and parole in each state and D.C. (These are summarized in the table below.) We find that probation agencies in all but two states (Ala. and Iowa) generally require permission to leave the state, county, or other designated area. Four of these states empower the court or probation officer to set the boundaries for travel restrictions on an individual basis.⁹ Rules restricting interstate travel are just as common in the context of parole and post-release supervision: 40 states have a standard condition requiring permission to leave the state. Among the states that do not, five (Ark., Iowa, Mont., N.M., and Pa.) require permission to leave an even smaller area — the county or district.¹⁰ West Virginia and D.C. require permission to travel, but individualize the specific geographic boundaries in the supervision contract.

Excluding federal supervised populations, the vast majority of women on probation (98% or 672,000) and parole (96% or 60,000) live in states where their standard supervision conditions require permission to leave the state, if not an even smaller geographic area. Every single state and D.C. require permission to travel for either their probation or parole population — and almost all require permission for both.

It’s important to note that “standard conditions” are just part of the picture of probation and parole conditions, because courts can — and very frequently do — impose any number of additional “special conditions.”¹¹ So even if travel restrictions are not included in the standard conditions that apply to everyone on probation or parole, they may still be imposed at the discretion of the court or community supervision agency.

Limited abortion care options are made worse by these standard conditions

We next looked at each state’s abortion bans and restrictions alongside their standard conditions of probation and parole. This analysis gets to how quickly state laws foreclose the possibility of in-state abortion care for women under either form of community supervision, forcing them to request permission to seek care in another state instead.¹² We find that the much tighter restrictions imposed by states since the Dobbs decision put over 400,000 more women in this precarious position than there were under the protections of Roe v. Wade. Alarmingly, we find that only 1 in 6 women on probation or parole can access abortion care at any stage of their pregnancy without needing permission to cross state lines.

Delving deeper, our analysis shows that, excluding federally supervised populations:

• Over half (53%) of women on probation and parole live in the 21 states that the Times identified as banning abortion care at an earlier point than the standard set by Roe v. Wade (i.e., the highly variable point of “fetal viability”). Less than 3% of these women are able to travel across state lines without permission.
• Nearly one-third (31%) of all women on probation and parole live in states that now have a total abortion ban. Of these, just 4% have no standard condition restricting travel.
• Another 17% of women on community supervision live in states that ban abortions at six weeks — a point at which more than 1 in 4 women are not yet aware of their pregnancy.
• Only 16% live in places without abortion bans and can access abortion care at any gestational point without crossing state lines.

Importantly, even when parole or probation authorities approve interstate travel, the process of getting a “travel permit” takes time and logistical coordination — and sometimes even fees.¹³¹⁴ This necessarily delays abortion care, increasing the risk of complications and often further limiting access.¹⁵ For example, a woman on probation in South Carolina who only becomes aware of her pregnancy when she’s eight weeks along will have to travel out-of-state for an abortion. But if it takes two weeks for her to get permission to travel, a non-surgical abortion is likely no longer an option, as the necessary medications are only approved for use until 10 weeks’ gestation.

A travel restriction is just one of many barriers to healthcare for people on probation and parole

Interstate travel restrictions are just one of the barriers women — or for that matter, everyone on probation and parole — face when it comes to accessing health care. As we’ve already touched upon, some standard conditions restrict travel across much smaller areas, such as counties or court districts. Similarly, people on electronic monitoring — an increasingly common condition of community supervision that amounts to a form of “e-carceration” — are regularly blocked from leaving their home, workplace, or other approved locations. As we have explained before, people on electronic monitoring often report being denied permission to see a doctor or go to the pharmacy to have prescriptions filled.

Even in the few places that don’t impose restrictions on movement, financial costs often put healthcare out of reach for people on probation and parole. As we’ve found in previous research, people on community supervision tend to have lower incomes, with about 60% reporting annual incomes below $20,000. About 25% don’t have health insurance to cover the cost of even basic care — despite reporting worse overall health and greater levels of need.¹⁶ Probation and parole conditions often come with additional expenses as well, such as monthly fees and the costs of drug testing or electronic monitoring devices, which leave even less money for healthcare.

Finally, for women on probation and parole who need abortion care, there is a special risk of further criminalization, either for violating the conditions of their supervision or for the abortion itself. A recent law review article details the various laws used historically and currently to criminalize abortion seekers and providers, paying special attention to laws targeting people who choose “self-managed abortions” when they are unable to access care from the formal healthcare system. A report by researchers at If/When/How describes 61 cases, across 26 states, in which people were investigated or arrested for allegedly ending their own pregnancy or helping someone else end theirs. All were from 2000-2020 — in other words, pre-Dobbs. Efforts to criminalize abortion have only gained momentum since.

Conclusions

Ultimately, Dobbs not only made abortion care much less accessible for everyone who may become pregnant; it created new risks of criminalization as well. For people under supervision, those risks are intensified by the travel restrictions found in standard conditions across the country. As the Community Justice Exchange and Repro Legal Defense Fund explain in their organizing guide, “In states where clinical abortion is banned or inaccessible … [self-managed abortion] will likely be the abortion option most accessible to people under carceral surveillance, putting them at a risk for criminalization that people who can travel freely do not face.”

For this reason (among others), state legislators, courts, and community supervision agencies should minimize the number and restrictiveness of standard conditions imposed on everyone on probation and parole — and greatly reduce the use of these massive supervision programs in general. Courts should limit who they place on supervision, individualize supervision conditions, and apply those conditions only for as long as necessary to achieve results. This approach is far more likely to set people up for success than relying on restrictive, one-size-fits-all rules that only act as tripwires to further criminalization and punishment.

Certainly, whether it’s appropriate to restrict someone’s movement is among the most situation-dependent decisions supervision authorities can make, whether for work, family, religious, educational, or — as we’ve discussed here — health reasons. Restricting where people can go inevitably blocks many from accessing the resources they need, which in turn creates health and safety risks for both individuals and communities. These very real and life-threatening consequences must be taken into account and not discounted simply because of a criminal legal status.

Author’s note: Amelia Wittig and Emily Widra provided the foundational research for our analysis of standard probation conditions by collecting and categorizing the relevant forms, web pages, and statutes that stated whether travel restrictions apply to everyone on probation. These sources are on file with the author. As part of a forthcoming report on probation conditions more broadly, we plan to upload the publicly-accessible documents and those we were given permission to share, and to provide a summary table with links in our Data Toolbox.

New memo shows Fulton County, Ga., should rethink proposal for massive new jail

At the request of the Georgia-based Community Over Cages Coalition, the Prison Policy Initiative examined the proposal for a new jail and found serious shortcomings.

by Mike Wessler, June 14, 2024

UPDATE: On July 11, 2024, the Fulton County Board of Commissioners voted to scrap its $2 billion plan to build a new jail, marking an important victory for the advocates who opposed the proposal. Learn more here.

On Wednesday, the Georgia-based Community Over Cages Coalition hosted a press conference at the Fulton County Superior Court and released a new analysis by the Prison Policy Initiative that called into question the county’s proposed massive new jail.

In the 17-page memo, we make three key points:

1. The overuse of pretrial incarceration hurts communities, and Fulton County is no exception. Pretrial incarceration undermines public safety by increasing the likelihood that people will be arrested in the future by up to 21%. It also harms employment and housing rates, increases overdoses and suicides, and undermines the presumption of innocence by increasing guilty pleas and sentences. These harms fall squarely on the shoulders of Fulton County’s Black and Brown residents, who make up a disproportionate number of people in the jail.
2. The feasibility study fails to consider alternatives to new jail construction. For example, the study fails to sufficiently consider the possibility of renovations to the existing jail or the impact of decarceration efforts. It also does not take into account the fact that crime rates in Fulton County are falling, not rising.
3. The feasibility study ignores the reality that a massive new jail would likely exacerbate its existing staffing issues. The feasibility study claims that updating the jail will completely solve staffing shortages and attempts to highlight other jails around the country as “model jails.” However, we show that even in these updated “model” jails, staffing concerns run rampant, jail deaths are on the rise, and conditions in these new facilities are still bad enough that they are leading to human suffering and costly lawsuits. The reality is that there is no “model jail”, and creating a massive new facility will make staffing problems worse, not better.

The Community Over Cages Coalition was formed to oppose the county’s proposal to build a $2 billion new jail. The coalition includes legal experts, people with lived experience in Fulton’s legal system, healthcare providers, and community organizers and activists with a shared goal of a Fulton County that enables the health and safety of all communities.

Is your community seeking to build a new jail or expand the capacity of its existing facility? We’re happy to help you push back on their arguments (drop us a line to tell us about your fight). There is no need to wait, though. We have created a how-to-guide with tips for pushing back on “jail needs assessments” that local leaders put together to justify the construction and provide strategies for pushing back on false or misleading arguments they’re making.

What can journalists do when prisons and jails cite HIPAA to withhold information about deaths in custody?

If you're a journalist who's been stonewalled while seeking public records about deaths in custody, you are not alone. We offer tips for requesting information and strengthening your story against HIPAA-related denials.

by Wanda Bertram, June 11, 2024

Prisons and jails often claim that the Health Information Portability and Accountability Act (HIPAA) privacy rule prevents them from sharing information about in-custody deaths with the press, or even with families of people who have died. Since these agencies have also been known to invoke HIPAA in denying information not remotely related to health,¹ one might assume that many of these denials have no clear legal basis. But because prison oversight is abysmally weak — and because most people impacted by prisons’ lack of transparency are too poor to fight back — not a lot of legal precedent exists around what prisons and jails must or must not share.

The good news is that despite the grey area around health privacy law, HIPAA obstacles don’t have to spell the end of an investigation into deaths behind bars. This briefing lays out the HIPAA-related challenges for journalists investigating deaths in custody, offers tips for overcoming those challenges, and suggests ways to strengthen your stories against information denials.

HIPAA and common questions about in-custody deaths

HIPAA is a federal law passed in 1996 to set legal standards around healthcare coverage, efficiency in sharing of healthcare information, and processes for preventing healthcare fraud and data theft. Its Title II “privacy rule” prohibits healthcare providers — implicitly including confinement facilities — from sharing their patients’ “protected health information” (or PHI) with anyone other than approved family members and sometimes healthcare authorities.

When information requests remotely involve issues related to health, prisons and jails tend to default to denying journalists access to information. But journalists have the power to push corrections agencies to be more transparent about in-custody deaths.

Here are some of the obstacles you might encounter when asking common questions about deaths — and tips for getting around them:

1. “Did someone die in this prison recently?”  
   While you may be denied even this most basic information, it’s worth pointing out that HIPAA applies only to someone’s personally identifiable health information, which generally does not include the fact that someone died. Furthermore, a jail or prison refusing to release this information upon request is a red flag, given that at least 15 prison systems proactively make this information public:

2. “What was the deceased person’s name?”  
   Many prison systems post the names of the deceased as a matter of policy (see table above). If a prison or jail refuses to provide names, you may want to point out to them that other prison systems have done so without running afoul of the law. If that doesn’t work, you should consider challenging the DOC’s policy. When Hawaii’s Department of Public Safety refused to release the names of people who died during COVID-19, the Honolulu Civil Beat sued the department and won, with a Hawaii Circuit Court ordering the Department to release the names of people who die in custody going forward.
3. “What was the cause of death?”  
   It’s common for officials to deny reporters information related to the cause of someone’s death, often citing HIPAA as the reason — and in many cases, this may be a legitimate claim. However, you’re wise to remember that several different documents are created when someone dies behind bars. There may be a death certificate, coroner’s report, medical examiner’s report, “death review” or incident reports, and/or an autopsy. While not every death triggers an autopsy, autopsies are public records in many states, so they are typically easier to obtain.

Journalists should also keep in mind that if a prison or jail refuses to release information and vaguely cites “health privacy law,” it’s worthwhile to clarify which law. Most often, the answer will be HIPAA, but some states have their own laws that go beyond HIPAA’s prohibitions to exclude additional information from public records disclosure.

Making the most of your public records request

Here are a few ways to maximize your chances of a fruitful records request and to fight back against stonewalling:

• Review the basics about public records laws concerning the criminal legal system in your state before you file. (We wrote a 50-state guide to filing public records requests to criminal legal agencies.)
• Call the public records official at the DOC or jail before you file to get an idea of what records exist and in what format. Ask them what kinds of records and reports the agency creates around deaths in custody, including any records of internal investigations of deaths.
• Find out what kind of reporting about healthcare is made between the correctional agency and other parties. If the jail or prison uses a private healthcare provider, what kinds of reports does the company have to make to the agency regularly? The prison/jail may also make reports to hospitals it partners with and to any state or local oversight bodies. Reports that aggregate data without personally identifiable information may be easier to release than records pertaining to individuals.
• If possible, clarify in your records request that you do not intend to seek personally identifiable health information and ask for the agency to redact any such information.
• Appeal denials to your Attorney General’s public records ombudsman, whose job it is to determine if denials of public records requests were legitimate. If you think a prison or jail is denying you information that is not necessarily protected by HIPAA, it’s worth at least telling the ombudsman what is going on. (You may also want to alert prison oversight officials in your state when you get an unreasonable denial.)

Tip: If your public records requests are denied or delayed, you can also try searching the jail or DOC’s website for the records you’re looking for.² Occasionally, correctional agencies store sensitive documents on their web server without strong security.

Privacy law obstacles can be the beginning, not the end, of a good story

Being stonewalled is frustrating, but if getting the information you want seems impossible, broadening or adjusting the focus of your story can allow you to hold the prison (or jail) system accountable even in the face of information denials. We suggest that you:

• Look for patterns of medical neglect rather than individual cases. There may already be public evidence of neglect in the prison or jail system you’re investigating. States and large counties often audit correctional facilities’ healthcare systems, and the auditor/comptroller, Inspector General, and Attorney General’s office may have information about prior medical issues in the facility. (For an example of a story that uses evidence from local audits, see Arizona Luminaria’s reporting on jail deaths in Tucson.) You can also search legal databases like PACER for the name of the facility you’re investigating, or the names of any healthcare companies contracting with the facility, to find evidence of prior healthcare issues, which could put the deaths you’re investigating into context.
• Connect with families. If you’re having trouble getting basic facts about in-custody deaths, chances are that families are, too. Ask the families of people who died in the facility about their experiences with the prison or jail after their loved ones’ deaths. Journalists have written powerful stories about correctional agencies stonewalling families who ask for information, or waiting hours or days to tell them about deaths or injuries.
  

  Conversely, it’s also possible that the jail or prison will release medical records to the family that they wouldn’t release to the media. Building strong relationships with impacted communities and working with them to pressure the facility to release records may help you overcome HIPAA-related obstacles.

• Talk to prison and jail oversight officials. Ask these officials if they have had trouble getting information about deaths and medical care in the facility. Again, a corrections agency that keeps journalists in the dark about deaths is probably creating similar obstacles for others. The Sacramento Bee, for example, has reported skillfully on the barriers facing Sacramento’s Inspector General.

Beyond the story: pushing for systemic change

Obstacles to transparency around prison conditions often go beyond a single story, revealing a larger problem with corrections agencies stonewalling journalists who are working in the public interest. News organizations, particularly in partnership with impacted communities, have the power to change that. In Massachusetts, for example, news organizations campaigned successfully for public records reform.

Remember: Journalists do critical work to bring deaths behind bars to light, but they’re far from the only ones fighting the lack of “sunlight” in jails and prisons. The more creative you can be with your investigations, the greater the chances that family members, oversight officials, and even corrections officers will come forward to strengthen your story — and, hopefully, help you build the case that in-custody deaths should not be obscured by health privacy law.

Did you find this briefing helpful? Have a story to share? Let us know through our contact page.

Donald Trump can still be president, but he could be barred from being a bartender, car salesman — or real estate developer

The former president’s conviction spotlights how state policies make it hard for people with felony convictions to find good jobs.

by Brian Nam-Sonenstein, June 5, 2024

Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony. While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions. Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs. That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.

Criminal records lock people out of the job market, making everyone less safe

Most people who have criminal records are not billionaire reality TV stars or real estate moguls with wealth and connections to fall back on. For them, getting a job is a matter of survival, and having a record greatly diminishes their chances of success. That’s because a variety of policies across the country effectively disqualify and deter people with records from obtaining employment.

This dynamic traps people in a vicious cycle of poverty and policing that makes everyone less safe in the end. Nearly four out of every 10 people in state prison — most of whom had past convictions — were jobless in the month leading up to their arrest. Black people (46%) and women (53%) in state prisons were especially unlikely to have been employed during that time. Meanwhile, more than 600,000 people return to their communities from prison each year and struggle to secure employment, housing, healthcare, and care for children in large part due to restrictions imposed on those with criminal records. Even though people in this situation are more likely to be actively seeking jobs than the general public, they are far more likely to be rejected by employers and report unemployment at a rate five times higher than the general public. These differences are rooted in discriminatory policy choices, not individual aspirations or capabilities.

Even when people in these circumstances do find work, they are often relegated to the most insecure and low-paying positions. Licensed occupations can provide a path to better job security, but that option is foreclosed by counterproductive policies such as these.

State laws ban people with felony convictions from holding many jobs

State laws and policies give employers ample opportunities to reject potential workers simply on the basis of their having been convicted of a crime. Though explicit employment bans that prohibit hiring from these populations have been modified in some states in recent years thanks to tireless advocacy, decision-makers in most places still enjoy wide discretion to exclude people from certain kinds of work on these grounds.

This is especially true for occupations that require professional licensing, such as bartenders, exterminators, healthcare workers, and car salesmen. People who want to work in real estate — either as agents or developers — are often required to submit to criminal background checks as part of the licensing process, too. Though these bans most frequently target people who are convicted of felonies in particular, certain misdemeanors can also preemptively disqualify people as well.

Whether explicit or discretionary, occupational licensing restrictions for people with felonies on their records are widespread. Just a few examples include:

• Pest control in North Carolina: No one can be issued an ID or work as an estimator, serviceman, salesman, solicitor, or an agent for any licensee if they have been convicted of a felony within three years of their application.
• Car sales in Mississippi: People who want to sell cars must have “good moral character, honesty,” and “high ethical standards” — qualities that are “presumptively” not met if they were, among other things, convicted of a felony or certain misdemeanors.
• Bartending in Florida: Licensed bars cannot employ anyone as a manager, person in charge, or bartender who has been convicted of a felony anywhere in the U.S. in the past 5 years.
• Any health professional in Virginia: Previously licensed healthcare workers face mandatory license suspensions if convicted of a felony. This includes early-career positions like certified nursing assistants, veterinary technicians, and peer recovery specialists. Nurses, in particular, could be prevented from receiving licenses or certifications for any felony or misdemeanor involving “moral turpitude.”
• Firefighters in Florida: Firefighters must not have been convicted of certain misdemeanors, a felony, or any crime punishable by at least one year of imprisonment.

Employment bans need not be explicit to be effective

Even when jurisdictions do not explicitly ban people with felony convictions from obtaining occupational licenses, they typically give licensing agencies so much discretion that they can deter potential job-seekers with records from applying. If you have a record but want to work as a plumber’s apprentice in Texas, you have to fill out an additional extensive “Supplemental Criminal History Information” form. In New York, meanwhile, people with criminal records are not explicitly banned from working in the real estate profession, but they are not entitled to receive real estate licenses without the express permission from the Secretary of State, either. Hurdles such as these are enough to keep most people from applying in the first place.

In other places, discretionary bans are designed to target people who have felony convictions that are “directly related” to the work they would be doing. In Texas, for example, Trump’s convictions for falsifying business records could easily be construed as grounds to deny him a license to handle insurance, taxes, or (as he loves to do) hiring and firing people as an employee for a professional employer organization.

Conclusion

It’s important to reiterate that most people with criminal records have to navigate these challenges with far fewer resources and connections, and far less power, than Donald Trump. Though he officially has a felony record, he will not encounter the majority of these barriers to making money, let alone surviving. In the coming months, we will likely see clear examples of how rich and powerful people like Trump are insulated from the consequences of a criminal record that millions of the most vulnerable people in society — typically the primary targets of the criminal legal system — are forced to endure each day. This will ultimately not be a lesson in equality in justice, but a reminder of the freedom from punishment that people in Trump’s position enjoy even in the rare instances that they are convicted of their crimes.

That being said, the lesson we take from Trump’s conviction should not be that the system needs to get tougher. In fact, the opposite is true: the fact that such employment policies are counterproductive to basic safety interests and are so unequally applied are strong reasons to lower barriers to work for the average person with a criminal record — not erect new ones. At the very least, anyone who believes that a felony conviction shouldn’t disqualify someone from the most powerful office on the planet must also agree that it makes no sense to prohibit others with felony convictions from serving in more ordinary roles as plumbers, pest control workers, and bartenders. Fortunately, there are plenty of measures states can take to make life easier for people with criminal records:

1. Enact occupational licensing reform: States should reform their licensing practices to eliminate the automatic rejection of people with felony convictions.
2. Ban blanketed employer discrimination: Criminal records are not good proxies for employability. Additionally, because of racially disproportionate incarceration rates, organizations who discriminate against people with criminal records may also be contributing to racial discrimination and are therefore subject to litigation under Title VII of the Civil Rights Act of 1964.
3. Implement automatic record expungement procedures: Having an automatic mechanism for criminal record expungement that takes into account the offense type and length of time since sentencing would, in the near term, help formerly incarcerated people succeed and would, in the long term, promote public safety.
4. Issue a temporary basic income upon release: Providing short-term financial stability for formerly incarcerated people would operate as an investment, helping to ease reintegration and provide public safety and recidivism reduction benefits that would result in long-term cost savings.
5. Make bond insurance and tax benefits for employers widely available: Some governmental bodies offer insurance and tax incentives for employers who hire people with criminal records, protecting against real or perceived risks of loss. Increasing the availability of such programs would provide hesitant employers with added financial security.

For more information about the kinds of policies that prevent people with criminal records from obtaining occupational licenses, the various collateral consequences of those policies, and state-by-state comparisons, the following organizations offer excellent resources:

• CSG Justice Center: Fair Chance Licensing Project: States Expand Access to In-Demand Jobs
• The National Reentry Resource Center: National Inventory of Collateral Consequences of Criminal Conviction
• The Rights Restoration Project: Advancing Second Chances: Clean Slate and Other Record Reforms in 2023

6 facts about the mass incarceration of LGBTQ+ people

For Pride Month, we gathered a few of the most striking facts about the criminalization of queer youth and adults.

by Wanda Bertram, June 4, 2024

As we’ve reported in the past, LGBTQ+ people are overrepresented throughout the criminal legal system, from their high rates of juvenile justice involvement to the long sentences they often receive as adults. While little government data exists about the over-incarceration of this group, research is slowly emerging that shows how a multitude of forces push LGBTQ people into jails and prisons at highly disproportionate rates. This year, for Pride Month, we gather a few of the most striking facts about the criminalization of queer youth and adults.

• Lesbian, gay, and bisexual people are more than twice as likely to be arrested as straight people — and lesbian and bisexual women, specifically, are more than four times as likely to be arrested as straight women. Scant research exists about the causes of these disparities, but it’s likely that drug law enforcement, laws against sex work, and the criminalization of homelessness are largely to blame.

• 40% of homeless youth are LGBT. Stigma, conflict, or a lack of acceptance at home drive many LGBT youth onto the streets — funneling many of them into the juvenile justice system, where 20% of the population identifies as LGBTQ.
• 35 states have laws against behaviors that can potentially spread HIV. These laws — carryovers from the height of the HIV pandemic — punish people for exposing others to the illness even if no transmission occurs, and can lead to people being criminalized for simply having sex while HIV-positive.
• One in six trans people have been incarcerated at some point, including nearly half of Black trans people. This is compared to about 3% of the total adult U.S. population in 2010 that had ever been in prison, and almost 10% of Black adults.
• 44% of trans people in prison have been denied access to hormones they requested, according to a 2015 national survey by Black & Pink. Denying access to hormone therapy is just one way that prison policies fail trans people, as we reported in a 2017 briefing.
• 85% of LGBTQ incarcerated people have been put in solitary confinement, that same 2015 survey found. This is often done in the name of “protecting” queer individuals behind bars, despite the well-documented, long-lasting harms of solitary confinement.

Readers interested in learning more about the forces driving LGBTQ+ into jails and prisons may also be interested in these recent reports:

• Lambda Legal’s 2022 national survey of 2,546 LGBTQ+ people and their experiences with the criminal legal system;
• Vera and Black & Pink’s new report Advancing Transgender Justice, based on a large-scale survey of transgender people about their experiences in state prisons;
• Our 2022 briefing about transgender respondents to the Survey of Prison Inmates, including five data visualizations about the demographics of this group.

Prison Policy Initiative endorses the Families Over Fees Act of 2024, which would protect incarcerated people from predatory fees

Bill would take an important step toward ending the exploitation of incarcerated people

by Wanda Bertram, May 24, 2024

Yesterday, U.S. Senator Cory Booker and Senator Elizabeth Warren introduced the Families Over Fees Act, a bill targeting “junk fees” in prisons and jails. This piece of legislation would take an important step toward ending the exploitation of incarcerated people and their families, and we urge lawmakers and the public to support its passing.

Incarcerated people are frequently subjected to hidden and unnecessary fees when they make important purchases and transactions, such as paying to call their loved ones. The Act would authorize the Federal Trade Commission to establish rules prohibiting these fees. It would also require prison and jail service providers to disclose these fees upfront, and would create legal protections for people impacted by junk fees looking to bring lawsuits.

“As we have recently noted, billions of dollars each year are mined from incarcerated people, their families, and the often economically disadvantaged communities from which they come. Much of this money comes from charging massive predatory junk fees for things like basic needs and communication,” said Sarah Staudt, Policy and Advocacy Director at the Prison Policy Initiative. “These fees are inflicted upon incarcerated people and their families and used to line the pockets of prison profiteers who have little competition and even less oversight. The Prison Policy Initiative is happy to support the Families Over Fees Act which places people above profits, and offers much needed consumer protections for incarcerated people and their communities.”

Readers can learn more about the Families Over Fees Act in the official press release.

As Congress considers this bill, we also remind state and municipal lawmakers that they can take action to stop predatory fees locally through diligent contracting with prison service providers. Policymakers should refer to these resources:

• Our best practices guides for correctional phone, video, and tablet contracts
• Our explainer about deposit fees and how prisons can prohibit them
• Insufficient Funds, our report on hidden fees in “release cards”