By Seely Kaufmann

 

The Brennan Center recently released a one-year review of President Biden’s criminal justice reform, noting that little to no progress has been made.[1] While mass incarceration broadly continues to be at the forefront of the conversation, there are several other areas that are in desperate need of reform. Capitalism perniciously pervades the criminal justice system from statutes that criminalize poverty to private companies that continue to make money off incarcerated individuals.[2]  Although Biden issued an executive order directing the Justice Department not to renew any contracts with for-profit firms that operate prisons within weeks of taking office, for-profit companies continue to make money in other ways.[3]

Electronic monitoring is an established alternative to detention, used in various stages of the criminal justice system, including at pre-trial, at sentencing, and following a period of incarceration.[4] Using either radio frequency or GPS technology, the courts have increased their reliance on these systems since the beginning of the COVID pandemic.[5] The market value for North America alone reached $823 million in 2020.[6] For example, in Baltimore, MD, the majority of home detention services were provided by for-profit private companies, charging individuals $11 to $17 a day to be electronically monitored.[7] Even worse, if individuals are being subjected to electronic monitoring pre-trial and are found not guilty or the charges are dropped, these individuals don’t get their money back, leaving many indebted to private companies. This business model ties a citizen’s freedom to their financial status, which further exacerbates the criminalization of poverty.

Another alternative to prison, many jurisdictions rely on diversion programs for low-level drug offenses, traffic violations, etc.[8] In theory, they sound like a win-win: the individual avoids prison, and the state reduces the fiscal burden of incarceration.[9] However, many of the programs are pay-to-participate programs, meaning that these programs are financially dependent on revenue from fines and fees imposed on program participants.[10] For example, in Maricopa County, AZ, a felony possession of marijuana can be dismissed altogether for those who complete a diversion program through the Treatment Assessment Screening Center.[11] To complete the program in 90 days, offenders must pay a $1,000 fee, $650 of that goes to Maricopa County Attorney’s Office.[12] Individuals who cannot pay the total fee at once must linger in the program, paying $15 to $20 fees for urine testing; if they cannot afford the urine testing, they fail and can be prosecuted for the felony.[13] Essentially, wealthy individuals buy their way out of diversion quickly, while poor individuals risk program expulsion and prosecution solely because they cannot afford to pay.[14] Of note, Maricopa County Attorney’s Office collected nearly $15 million from the diversion program from 2006 to 2016.[15]

Individuals in the criminal justice system often are subjected to risk assessments using algorithms to rate an individual’s risk of future crime; these assessments are used in a variety of ways, from assigning bond amounts to determining sentence lengths.[16] One of the most widely used assessment tools in the country is an algorithm created by a for-profit company, Northpointe.[17] In a study of 7,000 people arrested in Broward County, Florida, in 2013 and 2014, where Northpointe’s product is used, only 20 percent of the people predicted to commit violent crimes actually went on to do so.[18] Furthermore, black defendants were 77 percent more likely to be labeled as being at higher risk of committing a future violent crime.[19]

These three examples show that banning for-profit prisons is merely the tip of the iceberg for reducing profiteering off incarcerated individuals. In addition to continuing federal reform efforts, state and local governments must also contribute to criminal justice reform campaigns. There is much more work to be done.

 

[1] Ames Grawert et al., Criminal Legal Reform One Year into the Biden Administration, Brennan Center for Justice (Jan. 24, 2022), https://www.brennancenter.org/our-work/research-reports/criminal-legal-reform-one-year-biden-administration.

[2] Peter Edelman, Criminalization of Poverty: Much More to Do, 69 Duke Law Journal Online 114, 117 (2020).

[3] Grawert et al., supra note 1.

[4] Electronic Offender Monitoring Solutions Market Trends and Drivers 2021: Stronger Focus On Software and Analytics Within Offender Monitoring, Businesswire (December 14, 2021), https://www.businesswire.com/news/home/20211214005999/en/Electronic-Offender-Monitoring-Solutions-Market-Trends-and-Drivers-2021-Stronger-Focus-On-Software-and-Analytics-Within-Offender-Monitoring—ResearchAndMarkets.com.

[5] Id.

[6] Id.

[7] Marilyn Mosby & Priya Sarathy Jones, It’s Time to Hit Pause on Home Detention Fees, The Crime Report (Feb. 3, 2021) https://thecrimereport.org/2021/02/03/its-time-to-hit-pause-on-home-detention-fees/.

[8] Roman Gressier, Who Profits From Pay-for-Treatment Diversion?, The Crime Report (Mar. 11, 2019), https://thecrimereport.org/2019/03/11/who-profits-from-pay-for-treatment-diversion-programs/.

[9] Id.

[10] Id.

[11] Michael Kiefer, Maricopa County attorney sued over marijuana diversion program, AZ Central (Aug. 24, 2018), https://www.azcentral.com/story/news/local/phoenix/2018/08/24/maricopa-county-attorney-sued-over-marijuana-diversion-program/1089031002/.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Julia Angwin et al., Machine Bias, ProPublica (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.

[17] Id.

[18] Id.

[19] Id.

 

Image source: https://www.aclu.org/sites/default/files/field_document/bankingonbondage_20111102.pdf