by Katie Jane Fernelius, The Appeal, June 30, 2021
California’s legislature adopted a bill last year that would have limited the price of commissary items in county jails, and imposed new constraints on how the sheriffs who run those jails can contract with private companies that provide jail services. Advocates hoped that the reform would prevent jails from excessively charging people and ensure that any revenue sheriffs generate through fees is poured into jail services.
But Governor Gavin Newsom vetoed the legislation, Senate Bill 555, in the fall. He said it would deprive jails of the funding they need to provide “important rehabilitative and educational programming for individuals in custody.”
Danica Rodarmel, who helped write and advocated for the bill as a legal fellow at the Lawyers’ Committee for Civil Rights in San Francisco, rejects Newsom’s objection. “The sheriffs view those funds as actually one of the only sources of unrestricted funding available to them,” she said.
California sheriffs can determine what fees or rates to charge, who to contract with and on what terms, and they can collect profits in an “inmate welfare fund” they can spend on programs of their choice. They have used these funds to cover things like staff salaries, for instance. During the fiscal year that ended in 2019, the Los Angeles County Sheriff’s Department amassed more than $35 million from commissary sales, telephone contracts, and other fees.
“[Sheriffs] have full control over how they contract for these services at the county level,” Rodarmel said.
The California State Sheriffs’ Association, the organization that lobbies on behalf of the state’s sheriffs, typically against criminal justice reforms, opposed SB 555 in the run-up to its passage and Newsom’s veto.
The battle over SB 555 exposed California sheriffs’ political influence and their vast authority over the monetary costs of incarceration. It exposed how their decisions can exacerbate—or alleviate—the financial burden on people who are locked up. And this discretion extends far beyond California since, in most states, jails are run and managed by sheriffs who receive little oversight.
There have been efforts by some legislatures and county governments to curb costs and abuses. But sheriffs still often control how much they will double down on or mitigate these harms.
“Sheriffs should commit to no longer extracting resources from incarcerated people, who are very disproportionately poor people of color,” said Aaron Littman, a fellow at UCLA School of Law who researches sheriffs.
Sheriffs and the high
cost of incarceration
In February, Sheriff Jerry Clayton of Washtenaw County, Michigan, canceled a collective debt of about $500,000 that more than 30,000 currently and formerly incarcerated people had incurred while in jail.
Jail debt fuels an “absurd cycle,” Clayton said in a statement announcing the change. “We know that as people leave our jail in hope of positioning themselves to be successful upon returning home, the burden of jail debt is an added negative factor that can undermine their attempt at reintegration and feed the cycle of incarceration. We also know that incarceration can seriously compromise a person’s ability to generate income, leading to even more debt.”
For advocates, the significant debt exposes the magnitude of the financial burdens placed on incarcerated people.
More often than not, sheriffs and other jail administrators have upheld or set up policies that have sent those costs soaring, and they have opposed efforts to change them.
“Jails are actually some of the most exploitative places,” said Bianca Tylek, executive director of Worth Rises, a national advocacy group that fights the commercialization of the criminal legal system. “And all of that is largely fed by things that the sheriff has control over.”
Sheriffs in most jurisdictions manage the county jails and are responsible for implementing a host of services, which can include healthcare, telecommunications, commissaries, and educational programming, among others. These may be run through their department or other public entities. But many sheriffs choose to contract with private companies to provide them, often with poor if not dangerous quality.
Laws vary by state over which services jails can charge for and how they can use that money. According to the Brennan Center for Justice, nearly every state permits jails to charge people for some part of their detention, in arrangements known as “pay to stay.”
As a result, incarcerated people and their loved ones are expected to pay for phone calls, facility banking services, hygiene items, food, clothes, medical co-pays, and more.
Many of these services come at prices that are higher than they would be outside of jail, and often they are even higher than they would be in state prisons. On average, jails charge higher rates than prisons for phone calls, for instance.
According to a report by the Prison Policy Initiative, the rates to make a phone call from jail are egregious around the nation; in Arkansas, a 15-minute call can cost nearly $25. Per minute rates do not include fees that a telecommunications platform may also collect.
“The burden is often borne by family members in the community,” said Littman. “It is both unfair and bad for public safety to further impoverish our neighbors who are already struggling to make ends meet.”
And this affects “disproportionately people in poverty and people of color,” Tylek emphasized. People of color are more likely to be arrested by the police; and a large share of a jail’s population is there pretrial, often because they can’t pay cash bail.
This predicament is compounded by these arrangements’ monopolistic character. In jail, people typically do not have a choice between differently priced products or services. They must use whichever company the sheriff has contracted with––no matter the price.
When they have been shaped by sheriffs, reforms have tended to fall short of advocate demands. This month, Massachusetts sheriffs announced that people detained in their jails would be given ten free phone minutes a week; beyond that, they would be charged a maximum of 14 cents a minute—a sum that sheriffs presented as a marker of justice.
New York City, which isn’t run by the sheriff, made phone calls from jail free in 2019. Other jurisdictions have followed suit; San Diego did it this year through its Board of Supervisors, despite the sheriff’s previous opposition.
Rodarmel says California sheriffs should emulate such changes, and they could “with probably very minimal effort work to get money in their budgets to just cover the cost of these phone calls.”
Fees pad sheriff budgets
Sheriffs have perverse incentives to drive up prices, and even to privatize jail services.
To boost their departments’ coffers, they can receive direct kickbacks from the private companies they contract with, as well as commissions from the fines and fees they charge to those they incarcerate in their jails.
And they face few constraints on how they will spend the money acquired through these private arrangements.
According to Joshua Page, a professor of sociology at the University of Minnesota, sheriffs have an incentive to seek contracts with private companies that charge more for commissary items and services because, unlike public funding, the use of this revenue is not restricted.
“They can backfill budgetary expenses, they can use it to get equipment or… things for the office,” he said, “These things are attractive for that reason: to not just bring in money, but to bring in money that they actually have some discretion over.”
A report published by Worth Rises estimated that in 2017, people incarcerated in New York’s county jails outside of New York City paid more than $39 million on phone calls and commissary items. The organization estimated that nearly $12 million from call charges went into county coffers that year.
“Counties are not just customers for these vendors, they are partners in the extraction of resources from working-class and poor New Yorkers,” the report says.
In Pitt County, North Carolina, the sheriff receives a 45% commission on every collect call, per the terms of its contract with Pay Tel Communications.
Good-government advocates are also alarmed by the donations that private contractors pour into the campaign coffers of sheriffs and other local officials. The Appeal reported in 2019, for instance, on the contributions made to a Virginia sheriff by a private provider contracted to provide healthcare to the sheriff’s jail.
Some sheriffs contest that private contracts amount to profiteering. Sheriff James Dzurenda of Nassau County, New York, says that his intent in negotiating contract terms is not to inflate his office’s budget, but to get the people incarcerated at his jail the services they need.
“I can’t speak for all sheriffs around the country, but most recycle the money back into the population,” Dzurenda told the Political Report. “They use it for programs. They use it for services for the inmates that’s offered to every inmate.”
Dzurenda says that charging incarcerated people for services like phone calls and recreational equipment is more appropriate than charging the general public.
“Somebody has to pay for it,” Dzurenda says. “So, either those that use the services have to pay, or the taxpayers will have to pay.”
But Tylek points out that the growth of correctional budgets has often not improved detention conditions, instead going to unrelated sheriff expenses or staff salaries.
“Funneling a ton of money into the system is not making any prisons or jails better,” she said.
Tylek called on sheriffs to “take responsibility for the cost of incarcerating people, and stop shifting that cost onto incarcerated people and their families.” She added, ”they need to stop hoarding important budget dollars that can be better deployed in communities, especially as their custodial populations wane.”
Sheriffs and labor
Besides charging the people they detain, sheriffs frequently save or even generate additional money by making those people work for little to no wages.
This can include doing general housekeeping for the jail, construction work for an outside company, preparations against a hurricane, or even washing the sheriff’s department’s cars. Some sheriffs contract out incarcerated people to bring in extra revenue for their department.
The Appeal reported in 2019, for instance, on a lawsuit filed against the sheriff of Alameda County, California, and against Aramark Correctional Services, a private company, for making some people incarcerated at a local jail work without pay.
“Extraction doesn’t just happen through money, but it also happens through labor,” says Noah Zatz, a professor of law at UCLA who studies labor, including in the criminal legal system.
Since at least 1990, the National Institute of Justice has promoted “jail industries,” which use “inmate labor” to create products or provide services, through a series of resource manuals and guidebooks for criminal justice administrators.
Even when not incarcerated, people may have their labor managed by the criminal legal system because of employment requirements imposed on people on parole or probation.
“Because jail is such a bad outcome, working is seen as a benefit, because at least you’re not jailed,” Zatz says. “But functionally what it’s doing is using the threat of incarceration to extract economic value out of the most vulnerable people.”
And failing to hold a job for people on probation or parole can lead to incarceration, lending them into a space where they face other work requirements.
Some sheriffs are directly involved in overseeing parole and probation, and people’s jobs and income.
For instance, in Baker County, Oregon, parole officers employed by the sheriff can “assign offenders with community service to not-for-profit agencies to provide work, in lieu of payment, to fulfill the community service hours ordered,” according to the sheriff’s office website.
Some jurisdictions even ask people to pay to work as a way to stay out of jail. In Butte County, California, the sheriff’s office runs a “work alternative program,” in which individuals work eight- to 10-hour days instead of serving time in custody. The program costs $7 per day to participate in, on top of an overall $75 administrative fee.
Just as sheriffs can choose to forgo charging incarcerated people for phone calls and other services, they can decide not to contract out the people in their ward for labor that is underpaid and exploitative.
“Jail fees should be abolished, but more than that, opportunities should be taken to give incarcerated people the resources they need to thrive upon release, by paying them free-world wages and facilitating their enrollment in public benefits and health insurance programs,” Littman says. Sheriffs can also reduce arrests to expose fewer people to these problems.
In places where sheriffs do not have the power to make such changes unilaterally, or where they are refusing to make changes, county governments can take similar measures to reduce the financial drain on jailed people. But at the very least, Littman believes that sheriffs should use their “bully pulpits to make the case for ending extractive policies and practices.”
This article was originally published June 30, 2021 at theappeal.org, as part of The Political Report’s series on the power of sheriffs called “The Badge.” Reprinted with permission. Copyright, theappeal.org.
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