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Bernie Sanders’ Private Prison Reform Bill Would Leave Opportunities For Industry To Grow

Democratic presidential candidate, Senator Bernie Sanders (I-VT), has introduced legislation to abolish aspects of the prison industrial-complex. However, despite being touted as a private prison abolition bill, it would still leave some areas of corrections open to contractors.

On September 17, Sanders joined Representatives Raúl M. Grijalva (D-Ariz.), Keith Ellison (D-Minn.) and Bobby L. Rush (D-Ill.) in introducing the Justice Is Not For Sale Act of 2015 [PDF].

The legislation would end local, state, and federal facility management contracts with private prison companies, restrict video, phone and money wire transfer companies from charging inmates with excessive fees, reinstate the federal parole system, end bed quotas for immigrants, and prohibit the detention of families.

The bill would eliminate contracts to operate facilities within three years, returning control to the governments. Government employees would be mandated to conduct “core correctional services” at each facility.

However, the bill does not prohibit contracts for community correctional facilities and house arrest programs. It also does not prohibit contracts with community treatment centers, halfway houses, restitution centers, mental health facilities, alcohol or drug rehabilitation centers, and other community facilities “not within the confines of a jail or prison.”

Reinstating the Federal Parole System

While abolishing private prisons has garnered the majority of press attention concerning this bill, most of the legislation is devoted to re-establishing the federal parole system, which was abolished for all federal prisoners convicted on or after November 1, 1987 by the Sentencing Reform Act of 1984.

At present, only a small subset of the federal prison population is eligible for parole through the US Sentencing Commission. They include military offenders, Washington D.C. code offenders sentenced prior to August 2005, “Transfer treaty cases” involving the transfer of inmates prosecuted in other countries to the United States, and State defendants in the U.S. Marshals Service Witness Protection Program.

The bill establishes a new federal parole commission to meet quarterly and establish rules and regulations “to carry out a national parole policy.” The commission would create a system for granting parole as well as to provide due process proceedings for eligible inmates, and is authorized to hold hearings and subpoena witnesses. It would make decisions by vote, with each commissioner having one vote, and voting records for each member will be made available to the public. A full and  complete record of every parole determination proceeding would be retained by the commission. The commission chairperson would report annually to each house of Congress and publish data concerning the parole process as well.

Prisoners serving one year or more would become eligible for parole after serving a third of their term(s)—notwithstanding any other law that prohibits their release.

A prisoner serving a life sentence would be eligible for release on parole after ten years. Prisoners serving less than a year would have to serve their entire sentences unless otherwise determined by the sentencing judge.

Immigrant detainees become eligible for parole under these rules as well, unless they have a finalized deportation order, in which case the commission may authorize their release and deliver them directly to immigration officials for removal.

“Whenever feasible,” the bill states that parole determination proceedings are to begin no later than thirty days before their eligibility date. Inmates would be permitted to appear and testify at their own proceedings and would be allowed representation.

In general, if a parolee is believed to have violated the conditions of their parole, the commission can summon them for a hearing or issue a warrant for their arrest. This warrant will outline the conditions they are alleged to have violated, their rights and the possible actions the commission might take. If parole is revoked, the individual has a chance to have a preliminary hearing to determine if there is probably cause to believe the parolee committed a violation.

Safeguarding Money Transfers, Phone Calls and Video Visitation

The bill also taps the Consumer Financial Protection Bureau to provide oversight of money transfer services in detention facilities.

Service providers such as JPay have been known to charge excessive fees that place a heavy burden and undue punishment on those trying to support loved ones on the inside.

Under the proposed legislation, fees imposed on these transfers will be required to be “reasonable and proportional to the relative cost or value of the service.” The CFPB will issue rules and standards for assessing fees accordingly. Those rules will also consider whether there are alternative means for transferring funds.

There are similar measures to safeguard against excessive fees for video and telephone services as well. These are especially critical because in some cases, such as inmates who do not have visitors because the cost of travel is prohibitive, these services provide an inmate’s only access to the world outside.

The bill requires providers to offer both collect calling and debit account services to inmates and also mandates at least two provider options be available at each facility so inmates can have a choice.

Payment of commissions by service providers to correctional institutions and departments, which provide perverse incentives to maintain contracts even if they are unfair to inmates and their families, would be limited. Providers would be forbidden under the new law from blocking call service to local carriers with whom they do not have prior agreements.

Ending Family Detention And The Bed Quota

The bill would remove the 34,000 bed quota for immigrant detention facilities and replace it with an “as needed” standard. Instead, “alternatives” to detention for immigrants would be established by the Department of Homeland Security.

The government would be able to contract with non-governmental community-based organizations to screen detainees, operate supervision programs, and implement alternatives that allow ICE to maintain custody over an undocumented person without imprisoning them.

The DHS Secretary would “assess the demand for alternative to detention programs and make available sufficient alternative to detention slots regardless of proximity to available detention beds.”

For vulnerable populations, including “asylum seekers, victims of torture or trafficking, families with minor children, pregnant women, nursing mothers, individuals who are gay, lesbian, bisexual, or transgender, individuals with a mental or physical disability, and individuals who are older than 65 years of age,” an individual could not be placed in detention if their needs could not be met in that setting, unless the DHS secretary determined “such a placement” was “in the interest of national security.”

The DHS Secretary would conduct annual inspections of all detention facilities housing immigrants for compliance with national standards and to ensure detainees are being treated humanely. The secretary also would have to conduct routine oversight of facilities, including unannounced inspections.

Facilities that do not comply with the new standards within one year of the enactment of the law would be punished and potentially closed.

All contracts, memoranda of agreements, audits, inspections, evaluations and reviews would be considered public records. No later than June 30 of each year, DHS would report on inspection and oversight activities to the judiciary committees of both the House and Senate.

The detention of “family units” and separating family members arrested together would be prohibited. However, the secretary may choose to detain parents whom “pose a danger to the community which cannot be mitigated by other conditions of release.”

Room For Improvement

While the reality is the Justice Is Not For Sale Act is unlikely to make its way to the president’s desk due to the years-long partisan gridlock gripping Capitol Hill, it is undoubtedly a strong and well-intentioned step towards reducing our reliance on incarceration and for-profit detention.

If the government can no longer rely on contracts with private companies to relieve overcrowding, it will be forced to deal with massive prison populations through other means, such as decarceration and diversion. There are, however, several areas for improvement or complimentary legislation, which could strengthen protections for some of the core aspects of this bill.

The bill’s prohibition on private contracts should go beyond the operation of facilities to include other areas such as medical care and mental health treatment, where the need is high and abuse is common, especially when contractors are involved.

For-profit probation services and debt collectors working on behalf of municipal courts should also be subject to scrutiny or prohibition, as many of those companies have troubling records of victimizing those in the criminal justice system as well. Simply put, the potential for abuse is too high for private entities to perform debt collection activities on behalf of the government under the threat of legal action and imprisonment.

The parole commission should also oversee and inspect companies operating treatment centers and other programs or residencies, which the commission might compel inmates to attend.

Certainly, there are some good companies out there providing re-entry and treatment services to inmates, but as was the case with private facility management, handing out lucrative contracts without adequate oversight measures and baseline standards can be a recipe for human rights abuses.

Facility management constitutes the lion’s share of profits for private prison companies, and this bill would undoubtedly be a major hit to the prison industrial complex’s bottom line. Yet, many major companies like CCA and GEO Group have already acquired companies specializing in release services and diversified into providing such services as public backlash has mounted against their operating of facilities.

Exceptions in the legislation leave the door open to a lot of business opportunities for these same companies to make considerable profits on current and former inmates. It is possible an individual’s release under the proposed federal parole system could be conditional on that inmates’ participation in programs or residencies operated by these companies, who in some cases could be responsible for paying some of the associated costs.

Finally, abolishing private prisons will not reduce the prison population on its own. Control of these facilities and their inmates will be given back to governments, which lack a lot of badly needed resources that would improve conditions. Overcrowding would remain a problem if this bill passed.

Ensuring the passage of other reforms currently being discussed on Capitol Hill, such as mandatory minimum sentencing reductions, which would reduce prison populations, would become more critical. Bipartisan criminal justice reform, however, appears to be stalled and there are some reports that a perceived wave of murders in recent months is giving lawmakers cold feet.

If Sanders’ bill can get through intact, it will be an important step toward bringing some humanity back to our criminal justice system, but we will still have a long way to go.

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Brian Sonenstein

Brian Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.