Written by: Mirko Bagaric and Morgan Begg

Australia is experiencing both an incarceration crisis and an unprecedented worker shortage. Sensible criminal justice reform can address the excessive burden on Australia’s prison system while also filling persistent job vacancies in the economy.

According to the Australian Bureau of Statistics, there are currently close to 450,000 jobs vacancies across the economy, which is double the number of job vacancies prior to covid-19. And close to one in four businesses have stated they cannot find the workers they need.

In terms of incarceration, Australia’s incarceration rate has increased by 240 per cent since the mid-1980s. This is three times our population growth rate. This is much higher than other commonwealth countries with similar legal systems, such as Britain and Canada, and more than double European countries such as Germany, The Netherlands, and Sweden.

The total cost to the Australian taxpayer of imprisoning roughly 42,000 prisoners is now nearly $4.5 billion annually. Over-incarceration imposes an additional cost on Australians by depriving our labour force of healthy, working age men and women who could otherwise be productive members of society.

Approximately 42 per cent of prisoners have not committed sexual or violent offences. Not imprisoning these low-risk non-violent offenders would support, and most likely enhance, their rehabilitation. It has been firmly established that many employers are prepared to employ people who have prior convictions for non-violent and non-sexual offences, and when they do employ such people they are invariably pleased with their decision.

If Australian governments reformed sentencing so that non-violent low-risk offenders were not detained at taxpayer expense, but rather were put to work in industries which urgently need workers, this could deliver substantial benefits to taxpayers without compromising community safety.

If this reform had been implemented in 2021-22 as many as 14,000 young and healthy adults could have been added to the workforce, which would have improved government budgets by $1.95 billion in reduced incarceration costs and increased income tax revenue. If this reform had been implemented between 2016-17 and 2021-22, total budgetary savings would have been in the order of $10.4 billion in reduced incarceration costs for state governments and additional income tax revenue for the federal government.

Diverting low-risk non-violent offenders from prison and giving them the opportunity to work would enhance their lives and prospects, promote community safety, improve the economy through increased productivity, and reduce net government spending and debt.

Melbourne: Institute of Public Affairs, 2023. 20p.

By Jennifer L. Doleac and Benjamin Hansen

Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from asking about job applicants’ criminal records until late in the hiring process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing criminal history information could increase statistical discrimination against demographic groups that include more ex-offenders. We use variation in the timing of BTB policies to test BTB’s effects on employment. We find that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men.

Journal of Labor Economics, Volume 38, Number 2, April 2020

By The Death Penalty Information Center

It is a common assumption that the federal death penalty is reserved only for the most serious crimes against the country, like terrorism, that have a unique federal interest. But an expansion of the federal death penalty in the 1990s added more than 60 crimes that carried a potential death sentence. The cases the federal government decides to pursue are rarely “exceptional” compared to the cases tried at the state level. Federal defendants also share many of the same characteristics as state court defendants: they are often poor, traumatized and mentally impaired, and disproportionately people of color. This report documents use of the federal death penalty from its earliest beginnings through modern day. Like many state-level capital punishment systems, the federal death penalty has been used in a racially biased manner, a conclusion that the many historical examples and data in this report confirm. The federal death penalty was a tool historically used by the government to intimidate and subjugate people of color, particularly Black and Native American communities. Today, the most active death-sentencing federal jurisdictions were once the nation’s leaders of extra-judicial lynchings, a through line of connection that links the past to the present and raises serious questions about the future use of the federal death penalty.

Death Penalty Information Center, 2024. 36p.

By Nicola Collett

In the UK, there are over 12.5 million people living with a criminal record (henceforth PWCRs). Owing to its widespread use outside of the criminal justice system, the oftenindefinite retention of such information can have long-term consequences for those who have them. This has attracted the attention of charities such as Unlock, and scholars such as those forming the Collateral Consequences of a Criminal Record Working Group1 . Notably, a significant amount of this research has focused on the experiences of prison leavers as they navigate desistance and re-integration. However, the vast majority of those living with a criminal record have not experienced incarceration, and have records relating to minor cautions or convictions having briefly interacted with the criminal justice system (CJS) in youth. This means a significant number of people living with criminal records are currently overlooked, and their experiences are not effectively captured in research. This is a considerable oversight because, as this report will demonstrate, many of these individuals face life-long stigma and discrimination despite the lesser nature of their historical offending. This report presents the key findings from doctoral research funded by Keele University. The purpose of this report is twofold. First, it seeks to illustrate the varied and often unpredictable ways criminal record disclosure can occur in both public and private life domains. Second, it will explore how PWCRs navigate such disclosures, acknowledging the highly subjective nature of criminal record experiences. In doing so, this report provides an evidence base for significantly reducing the use of criminal record information outside of the CJS, and illustrates why there is a need to develop communities of support for PWCRs. It calls for more empirical research with those living with criminal records to further understand the implications of early-life CJS interaction. Indeed, it is hoped that this report will encourage further research with those living in England and Wales with criminal records, adding to the growing evidence base for meaningful reform.

Keele, UK: Keele University, 2024. 36p.

By The Justice Policy Institute

In January 2019, the District of Columbia government enlisted the Justice Policy Institute to explore the feasibility of restoring local control of parole and make recommendations for how release decision-making can be transferred from the federal government to the DC government. Transferring supervision responsibilities and parole decision-making from the federal government back to the District is an ambitious, complicated undertaking. Fortunately, local leadership can draw on a wealth of data, evidence, and experience from other jurisdictions as they evaluate how best to move forward. This new report highlights the best available research and practice in the parole field, provides 22 recommendations for parole decision-making and supervision, and outlines three options for restoring local control of release decision-making. JPI undertook a series of activities to produce this report. These included:

• Interviewing District and federal officials to understand how the current system functions and how best to build upon its strengths.

• Speaking with attorneys who handle parole applications to the United States Parole Commission.

• Attending community speak-out events and local criminal justice coalition meetings to solicit input from a wide range of community and system stakeholders, including currently and formerly incarcerated people with experience in the District’s parole system.

• Consulting with experts from multiple organizations that provide technical assistance to help states improve their parole practice, including attending the 2019 Association of Paroling Authorities International Chairs Meeting and Annual Training Conference in Baltimore, Maryland.

• Examining a broad array of research in academic peer-reviewed journals, technical white papers, and state agency reports.

The recommendations outlined in this report should guide the development and staffing of a new parole board, the criteria for release decision-making, and how individuals are supervised in the community. If the District follows this plan, we believe it has the opportunity to serve as a model jurisdiction for other states. We also hope the report can be useful for jurisdictions currently considering reforms to their parole systems.

 Washington, DC: Justice Policy Institute, 2019. 97p.

By The Justice Policy Institute

Most states have established release mechanisms for the aging population and those in prison who are battling a terminal illness, often referred to as compassionate release. Compassionate release policies typically permit individuals in prison to petition for early release after having served a pre-determined number of years for either health (medical parole) or advanced age (geriatric parole). However, the laws frequently have restrictive eligibility requirements and are applied sparingly, often when an individual is expected to survive only a matter of days or weeks. While Maryland has both medical and geriatric parole options, approval is fleeting. Data are limited but provide a glimpse into their restricted use. Between 2015 and 2020, the Maryland Parole Commission approved 86 medical parole applications and denied 253. Further, the Governor granted nine medical parole requests from individuals serving life sentences and rejected 14 requests. Most notably, the lowest yearly approval rating occurred during the height of the pandemic in 2020 at seven percent. The Justice Reinvestment Act of 2016 expanded geriatric parole eligibility by lowering the age threshold from 65 to 60 years old. However, petitions are rarely approved. Currently, there are about 650 individuals over the age of 60 in Maryland’s prison system who have served at least 15 years. These individuals are eligible to be evaluated for release. But, like in most states, Maryland seldom relies on these compassionate release policies to release the elderly and infirm from prison, despite posing a minimal risk to public safety and a significant cost burden on the state budget. Without substantial reforms to compassionate release in Maryland, the aging population will continue to grow, and the onus will be on the Department of Public Safety and Correctional Services (DPSCS) to provide the adequate care.

Washington, DC: Justice Policy Institute, 2022. 14p.

By Kayla Freemon  

An estimated 5.4% of individuals in United States jails are in private facilities. While our knowledge about jail experiences and private prisons has grown in recent years, little is known about the private jail experience. Jail stays are often assumed to be a less severe punishment; however, transient and diverse populations and limited investments in treatment and programming suggest jails may be particularly unsafe. The current study uses the 2011–12 National Inmate Survey to compare how individuals perceive and experience safety while incarcerated in public and private jails. A quasi-experimental approach is taken using propensity scores to match individuals in private jails to those in public facilities based on demographics, past experiences, and incarceration measures. The findings suggest that individuals in private jails perceived these facilities as less safe compared to their public counterparts. Respondents in private jails reported higher levels of gang activity in their facility, more had belongings stolen while detained, and fewer individuals believed the facility was adequately staffed or that corrections officers ended fights quickly. This study highlights harms experienced in both public and private jails and underscores a need for more research on the private jail experience.

Journal of Criminal Justice Volume 90, January–February 2024, 102134

By Nicole Gelinas

Six months before the Covid-19 epidemic spread across New York City in early March, Mayor Bill de Blasio and the city council approved a plan to spend nearly $9 billion over the next half-decade to build four jails, one each in the Bronx, Brooklyn, Manhattan, and Queens. The completion of the new jails, in turn, would allow the city to close Rikers Island, home to most existing jail facilities. The mayor and the council are right in one respect: the jail facilities on Rikers are deficient. One way or another, New York must invest billions to make good on its promise to treat detainees—most of whom have not yet been convicted of any crime—with compassion and dignity. But there are major flaws in the city’s plan. The construction of four new jails in dense urban neighborhoods, at enormous expense and risk to the city’s fiscal health, does not guarantee inmates the better care that the city has promised. By concentrating on location rather than on deeper-seated problems, the city may simply replicate Rikers’ problems elsewhere. Indeed, should the city fail to successfully execute its borough-based jails plan, it would even fall short of its ultimate, symbolic goal: closing Rikers. The coronavirus crisis puts these flaws into sharper relief. At present, the city faces the loss of hundreds of thousands of jobs, billions—if not tens of billions—in tax revenue, and significant uncertainty over when recovery will begin and how strong it will be. As a result, New York simply has far less room for error than it did last fall, when it approved its plan to build new jails. There is a better alternative: rebuild Rikers. This 400-acre island is an optimal location for multiple, well designed, low- to mid-rise jail facilities. Rikers is also New York’s only remaining open space near enough to the courthouses in all five boroughs to be a practical location for housing inmates in a sprawling setting—but far away enough from the general population to serve as a secure location. Figure 1 is a sketch of what a rebuilt Rikers Island might look like.

New York: Manhattan Institute, 2020. 16p.

By: Michael L. Marumo and Connie Zulu

Maintaining good learner discipline continues to be a battle in many schools amidst debates around the human rights of learners and the effectiveness of current systems of learner discipline. The purpose of this study was to investigate teachers’ and learners’ perceptions of alternatives to corporal punishment in Mahikeng Township secondary schools of the North-West province in South Africa. A qualitative research design based on the social constructivist or interpretive paradigm was adopted in this study. Teachers who had been in the field before the official banning of corporal punishment were purposefully selected from four schools. Grade 11 and 12 learners were also purposefully sampled on the basis of their ‘maturity’ as senior learners who had been in the school long enough to experience the new, alternative disciplinary measures. Data were collected through focus group interviews, four with educators and four with learners, and thereafter subjected to qualitative data analysis procedures. The findings showed conflicting perceptions. Although some teachers and learners felt that alternative forms of discipline were effective to a certain extent, the general perception was one of scepticism. Both teachers and learners expressed the need for a return to corporal punishment in cases of serious misconduct. Some learners applauded the introduction of alternative forms of discipline only because this system replaced what was considered to be an abusive system of corporal punishment. Although teachers attributed their negative perceptions to a lack of adequate training in the implementation of alternative forms of discipline, continuous repetition by learners of the same offences for which they had been ‘positively’ disciplined resulted in learners’ negative perceptions. The main recommendation is that follow-up training and workshops on alternative forms of discipline should be regularly held for teachers to develop confidence in the use of these strategies and to improve perceptions.

A scholarly inquiry into disciplinary practices in educational institutions, January 2019

By: Emanuel Tirosh, Shlomit Offer Shechter, Ayala Cohen, and Michael Jaffe

Objectives: To assess physicians’ attitudes towards corporal punishment in childhood and their subsequent actions regarding the reporting of child abuse.

Participants: 107 physicians (95 pediatricians and 12 family practitioners) who work in hospitals and community clinics in northern Israel were interviewed. Of the participants, 16% were new immigrants.

Procedure: A structured interview was conducted by one of two pediatric residents.

Results: Attitudes towards corporal punishment were not influenced by the physicians’ sex or specialty. Corporal punishment was approved by 58% of the physicians. A significant difference in attitudes towards corporal punishment between immigrants and Israeli-born physicians was found (p = .004). Family practitioners and especially senior ones were found significantly less tolerant towards corporal punishment than pediatricians (p = .04). While reporting behavior was not found to be associated with parental status and the past experience of the physicians with child abuse, a significant effect of attitudes towards corporal punishment on reporting behavior was found (p = .01).

Conclusions: (1) Corporal punishment is still perceived as an acceptable disciplinary act by a significant proportion of physicians responsible for the health care of children in our area. (2) Attitudes towards corporal punishment are different between immigrants and native-born Israeli-trained doctors and, unexpectedly, pediatricians were more tolerant of corporal punishment than family practitioners.

Child Abuse & Neglect 27 (2003) 929–937

By: Rose Ashraf and George W Holden

It is increasingly being recognized that children have the right to not be hit by anyone, including parents and teachers. This chapter focuses on the need to protect children from corporal punishment (CP) and represents an update to our chapter in the first edition (Holden & Ashraf, 2016). The chapter will review what is known about the use of CP in one country in South Asia: Pakistan. The chapter marshals the available evidence about the prevalence of CP in the home and schools, as well as problems associated with its use. We then examine the legal status of corporal punishment from the perspective of federal, provincial, and Shariah laws. Recent efforts at federal law reform will then be reviewed. The final section of the chapter will provide recommendations for advancing the protection of Pakistani children from CP and their right to safety.

Child Safety, Welfare and Well-being, Issues and Challenges, March 2022

By: Eunice K. Najoli, Tawanda Runhare, James B. Ouda

Since the beginning of this century, a global tendency to abolish corporal punishment has been introduced to challenge old dependence on corporal punishment as a tool for reforming children’s misbehavior. This tendency was highly supported by the contemporary call for protecting human rights including the right in security and human treatment and child rights in physical protection. Corporal punishment continues to be practiced at unacceptable rates in Kenyan schools; at the same time violence rates are rising. Management of children’s behavioral problems presents a significant challenge for many teachers in schools. The purpose of this research is to analyze why corporal punishment is being practiced in schools in spite of its legal ban. The paper highlights the attitudes of teachers, parents, pupils and the use of corporal punishment as a tool for discipline. A survey research design was used to collect data on attitudes of 32 parents, 32 teachers, 160 students and 8 Principals in secondary schools in western region of Kenya. A sample size of 232 respondents was included and participated in the study. The main finding of this study is that while most teachers understand and support the policy of banning corporal punishment in schools, there remain certain concerns on the effect of such a ban on children rights and equally alternative warm contributions of punishment as a means of maintaining school discipline. These concerns and conflicting viewpoints are over issues related to the difficulty in disciplining students and respecting the students’ human rights.

Open Journal of Social Sciences, 7, 51-69.

By: Yuhanza Othman, Ida Rahayu, and Ekmil Krisnawati Erlen Joni

The government has introduced various programmes to rehabilitate and give treatment to drug dependent. However, statistic from Agensi Anti Dadah Kebangsaan (AADK) has shown that a number of drug dependents have increased annually. It is high time for the government to review and enhance the punishment for drug dependents. The Drug Dependants (Treatment and Rehabilitation) Act 1983 is silent on imposing punishment on a first offender. Therefore, this paper will examine on imposing whipping as punishment for drug dependent as provided by Syariah law. Adopting the application of qiyas, the rule and punishment of drinking liquor which is stated in the Qur’an (5:90) and the hadith is extended to consuming drugs. This paper seeks to discuss alternative methods to deter the public from drug abuse and at the same time to decrease the government expenditure in providing rehabilitation programmes and services for drug dependents.

Islamic perspectives relating to business, arts, culture and communication, January 2015

By: Carla Ferstman

My motivations to write this book stem in part from my having left in 2018 my work at the nongovernmental organisation REDRESS after what then felt like a lifetime of 17 years. I was trying to unpack and process what I learnt from all those I worked with – my colleagues, our partners and, of course, our clients – all of them survivors of torture, and the bulk of them having been arbitrarily detained, many for extended periods of time. The subject matter shaped my work over many years representing and advocating on behalf of persons detained in different parts of the world for reasons including their human rights advocacy, connections to certain political or other movements, the persecution they faced in their home countries, and the policies of deterrence put in place by countries attempting to stem the flow of migrants or respond to the threats of terrorism. The trauma of arbitrary detention and torture, and the heavy emotions associated with pursuing remedies, was at the heart of what we did, why we did it, who we did it with, and what it meant to survivors. It framed why we kept going, how we approached the barriers we faced and the motivation we brought to the advocacy work and the litigation. My decision to concentrate on arbitrary detention in this book is because it was at the heart of so many of the cases I encountered and was so central to the intense and continuing suffering of former detainees. Added to this was my belief from the world around me that the scourge of detention, including arbitrary detention, was being normalised by a growing number of governments for increasingly nefarious reasons.

The other impetus stems from my experience of the COVID-19 lockdowns. Early in the pandemic, I co-edited a collection of reflections on COVID in which I began to think through the relationship between pandemics and detention. These early reflections helped to hone my thinking on exceptionalities, arbitrariness, vulnerabilities and the placement of law, which have become crucial themes explored in the book.

Bristol University Press, May 2024

By: Mauricio Stegemann Dieter and Renato Rocha

This book introduces the ‘Southern criminology’ movement; explores its theoretical, methodological, and philosophical tools; offers analytical accounts on the development of criminological thoughts in marginalised regions; and showcases the cutting edge of criminological research from Southern settings.

Southernising Criminology is structured into three parts. The first part provides theoretical and methodological insights into how criminology can be Southernised, including renowned social scientists who share concerns for the need to reconceptualise the centre, the periphery, and their relations. The second part brings the reader up-to-date with the state of criminological research in different parts of the world and how far this landscape has changed when introducing Southern perspectives. The third part shows first-hand examples of how Southern criminology is done, with its challenges and transformative potential for criminological knowledge. Bringing together contributions from leading scholars working across the five continents and drawing on issues such as state criminality, violent crime, criminal justice practices, and state and non-state punishment, this book offers a critical 44account of the problems of metropolitan thinking, colonial and imperial power relations, and Western ethnocentric approaches to criminology. It offers a nuanced and grounded reflection on how things are being done differently and why that is important.

An accessible and compelling read, this book will appeal to students and scholars of criminology, sociology, politics, and policy makers from around the world who are interested in the field of criminology and are aware of the urgent need for it to be decolonised and democratised.

Southernising Criminology, April 2024

By: John Tillson and Winston C. Thompson

In this chapter we analyze general views on punishment in order to consider what behavioural requirements schools may establish for students and which (if any) they may enforce through punishment, during compulsory education. Punishment, as we use the word, is the intentional imposition of burdensome treatment on someone – usually on the rule breaker – for having broken a rule, partly because the treatment is burdensome. By carefully analyzing various aspects of punishment, we aim to identify principles that should guide and constrain which behaviours schools punish, and how and why they punish them. In brief, we develop the following principles regarding legitimate requirements that can be made of students and the ways punishment may be used to enforce them. Before children are autonomous, schools may establish both paternalistic, and other-regarding requirements, but not requirements imposed from within comprehensive conceptions of the good. They may punish children in order to ensure a fair distribution of the burdens and benefits of social arrangements. Schools may punish children for paternalistic reasons, including developmental reasons, but not for reasons of general deterrence. When children become autonomous, compulsory schooling may establish only other-regarding requirements of student conduct. They may punish to ensure a fair distribution of the burdens or benefits of social arrangements; this includes punishing for reasons of general deterrence, due to children’s responsible choices enhancing their liability, as well as for other-regarding developmental reasons.

We acknowledge that more or less detail may be given for operationalizing and implementing these principles. Given the generality of our task, we offer limited detail in this regard. A yet more comprehensive account would explain by what authority schools may make and enforce requirements, and to what extent (if any) students or parents should have a role in the deciding requirements. For our present purposes, we highlight that however this authority is distributed, there are better or worse decisions that can be made. In this chapter, we seek only to guide the content of these decisions through identifying appropriate goals for and constraints on school discipline.

Pedagogies of Punishment The Ethics of Discipline in Education, Bloomsbury

By: Lisa Mary Armstrong and Margaret Malloch

In June 2011, the Commission on Women Offenders was set up to explore ways to improve the justice system in Scotland. The Commission’s report made a broad range of recommendations echoing those of the Corston Review (2017) but for the most part have remained aspirational. In Scotland, change has been painfully slow with many women imprisoned on short term sentences and remand rates having spiralled during the pandemic. One of the recommendations to come out of the Commission’s report led to the building of two Community Custodial Units (CCUs). The units were designed to take into consideration the high rate of trauma and adversities that formed the experience of many women in prison. Consequently, the discourse of trauma-informed and gender-specific approaches to punishment has been pronounced. This chapter considers the aims and objectives of the restructuring of the women’s prison estate and the emphasis that it gives to conjoining ‘community’ and ‘custody’ in the operation of the two new units that are presented as the innovative pulse of the new Strategy for Women in Custody. We are interested in exploring the extent to which the prison is the most effective space for this attempt at community integration, in contrast to a distinct community resource. While acknowledging the recent introduction of the CCUs, we do not attempt to provide an evaluation of them, but rather to engage with the principles and ethos which underpin their conceptualisation.

Geographies of Gendered Punishment, Palgrave Studies in Prisons and Penology

By: Emil E Jonescu, Talia Uylaki, and Sonja Duric

The purpose of this paper is to draw attention to gaps in existing research and design for neurodiverse people and their quality of life. In particular, this paper focuses on custodial typologies (their philosophical position, and design evolution) as facilities designed to detain either sentenced or unsentenced people, over the short or long term.

Historically, criminality was regarded as an illness and treated through segregation, and to varied degrees, crime, morality, mental health, and religion were deemed inextricably connected. Therefore, prisons, mental institutions, hospitals, and ecclesiastical architecture share philosophical and historical infrastructure. Concurrent evolutionary threads of 'new' solutions, philosophies, and architecture particular to confinement were formed through discourse among social reformers. However, prisons have largely overlooked the needs of neurodivergent individuals.

Neurodiversity refers to the natural variation of human brains and includes individuals who have been diagnosed with conditions such as autism spectrum disorder, attention deficit hyperactivity disorder, and other developmental or intellectual disabilities. Neurodivergent individuals often have unique needs that must be considered in the design and operation of custodial facilities.

Accordingly, this research first undertook a scoping review of online databases and literature to examine, evaluate, and extend on existing peer-reviewed published scholarly literature related to theories, carceral frameworks, and criminality, with a focus on the intersection of neurodiversity and the justice system. The study specifically sought recent and relevant crime and punishment studies.

Secondly, the study conducted a meta-synthesis on an accumulated pool of existing international studies and identified areas of contemporary research, existing gaps, and potential areas of future research for neurodivergent individuals. The findings of this review highlight a general lack spatial research and gaps in existing literature that recognises the complexity of the police ‘lockup’ (a short-term custodial facility for un-sentenced detainees) and its critical function in the criminal justice system, in comparison to other custodial settings that have been studied and have evolved.

Lastly, in examining the extant literature on custodial facilities the study advocates for increased contemporary initiatives and a shift in attitudes that recognise the distinct functions performed by disparate institutions that necessitate different accommodation structures and a distinct functional form. This includes considerations for the unique needs of neurodivergent individuals that are overrepresented in such institutional settings.

X-Potential, V.02 (4), Australia: Hames Sharley.

By Sunny K. Frothingham

In October 2021, the Consumer Financial Protection Bureau (“CFPB”) announced a $6 million settlement with JPay, a leading provider of financial services in prisons and jails. The consent order detailed how JPay’s prepaid debit cards took advantage of justice-involved people as they were released from carceral facilities. As the CFPB’s first enforcement action under Director Rohit Chopra, the action signaled the Bureau’s concern about incarcerated people’s unique vulnerabilities to exploitative financial products.   When someone is released from prison or jail, release funds may include any wages earned during their incarceration, any remaining balances in their prison accounts, or any “gate money” benefits.6 Gate money programs aid re-entry by providing people with modest funding to cover basic transportation, housing, and food expenses in the first hours after release. While these release funds were traditionally available by cash or check, in the mid-2000s many departments of corrections started contracting with financial technology companies to offer prepaid debit cards. Over time, some departments of corrections eliminated the cash or check options and started to require that incarcerated people receive funds on prepaid debit cards. As part of a CFPB rulemaking process that culminated in a final rule on prepaid cards in 2016, a variety of civil rights organizations raised concerns about the predatory nature of prepaid cards in American prisons and jails. In response, the CFPB’s final rule noted that certain  prison release cards were already subject to consumer financial protection laws about prepaid cards, and stated that the CFPB was “continuing to monitor financial institutions’ and other persons’ practices relating to consumers’ lack of choice.” A few years later, this commitment to monitor prison release cards came to fruition in the 2021 enforcement action targeting JPay, which identified a variety of consumer protection law violations. According to the CFPB, JPay’s prison release cards took advantage of incarcerated people in several ways, including “[i]llegally requir[ing] consumers in certain states to receive protected government benefits on debit release cards,” “abus[ing] its market dominance,” “[c]harg[ing] fees without authorization,” and “[m]isrepresent[ing] fees to consumers.” The bulk of the violations involved either prohibitions on forcing consumers to use specific financial products to receive wages or government benefits, or prohibitions against unfair, deceptive, and abusive practices. While the order was specific to JPay’s conduct, it significantly clarified legal limits on prepaid debit release cards and can be seen as one step in a broader effort to develop the CFPB’s ability to hold companies accountable for abusive conduct that takes advantage of vulnerable consumers, especially justice-involved consumers. This Note proceeds in six parts and examines how the JPay consent order fits into broader CFPB efforts to protect justice-involved people from predatory financial products. Part II provides context for how preloaded debit cards fit into the broader landscape of prison banking. Part III assesses the statutory and regulatory landscape that applies to prepaid debit cards, including the Electronic Fund Transfer Act (“EFTA”), its implementing rules under Regulation E, and the CFPB’s standard for assessing unfair, deceptive, and abusive practices. Part IV explores the steps that the CFPB has taken under President Biden to expand protections for justice-involved people using existing statutes and regulations. Part V suggests potential next steps for protecting the rights of justice-involved consumers. Part VI summarizes and concludes this Note. 

28 N.C. BANKING INST. 227 (2024).

By Stephen Raher

The growth of public expense associated with mass incarceration has led many carceral systems to push certain costs onto the people who are under correctional supervision. In the case of prisons and jails, this frequently takes the form of charges associated with telecommunications, food, basic supplies, and access to information. The operation of these fee-based businesses (referred to here as “prison retail”) is typically outsourced to a private firm. In recent years, the dominant prison retail companies have consolidated into a handful of companies, mostly owned by private equity firms. This paper explores the practices of prison retailers and discusses potential consumer-law implications. After an overview of the prison retail industry and a detailed discussion of unfair practices, the paper looks at some potential legal protections that may apply under current law. These protections, however, prove to be scattered and often illusory due to mandatory arbitration provisions and prohibitions on class adjudication. The paper therefore concludes with recommendations on a variety of steps that state, local, and federal governments can take to address the problems inherent in the current model.

17 Hastings Race & Poverty L.J. 3 (2020).