The Exploitation Of Blackness By Mass Incarceration Profiteers
In a series of emails circulated during February 2022, which were overlaid with the red, green and yellow colors of the African freedom flag, the company JPay purported to “celebrate Black History Month” by “helping you stay connected with your incarcerated loved one” and making “every Tuesday during February a ‘Free Reply Tuesday.’” But what does it mean to celebrate Black history when you profit from a prison system that harms the Black present?
As I know from my personal experience, JPay is only one of several companies that enjoy enormous profits from “correctional” facilities that are disproportionately comprised of Black and brown people. Others include Securus, JPay’s parent company, Global Tel Link, and Access Corrections. Those companies charge exorbitant fees to family members seeking to add money to their locked-up loved one’s commissary accounts. They have also made telephone calls and other forms of communication prohibitively expensive and have even advocated for the cruel end of in-person family visits because it increases reliance on their products.
These predatory companies are among the beneficiaries of the prison industrial complex, but their central role in that story is often obscured by the singular focus on private prisons. To be sure, private prisons have played an important role in creating perverse incentives that have increased incarceration in the United States. (One comprehensive study examining nearly 30 years of data found that a rise in private prison beds per capita increased the number of incarcerated people per capita as well as the average sentence length.) As the Corrections Corporation of America explained in an annual statement, “The demand for our facilities and services could be adversely affected by … leniency in conviction or parole standards and sentencing practices.”
Private prisons, though, are just one part of a much broader infrastructure of privatization. Any public interest lawyer would tell you that the vast majority of our clients are warehoused in public jails and prisons. Indeed, less than 8% of the incarcerated population are confined in private prisons, which means we could eliminate those facilities and would still incarcerate more people than any country in the world. Even the Biden Administration seems to have missed this point, calling for the end of private prisons while embracing the deeply troubling for-profit company Smart Communications’ “MailGuard” Program, which would monetize correspondence and eliminate physical letters from entering facilities.
Meanwhile, companies such as Securus — which has a monopoly over the prison telephone industry in many states — are reported to have contracts with more than 2,500 “correctional” facilities throughout the country, the overwhelming majority of which are public prisons. The prison telephone industry is itself a billion-dollar industry, as is the prison money transfer industry, the electronic messaging industry and the video visitation industry.
The broader infrastructure of privatization even reaches into the community. This past fall, for example, the Consumer Financial Protection Bureau concluded that JPay “engaged in unfair and abusive acts” by attaching illegal fees to people re-entering society, swindling millions of dollars from people who could afford it least. People on probation or parole, meanwhile, are frequently returned to jail for technical violations — placing them once again at the mercy of JPay and other companies who treat human beings as if they were financial assets.
I know firsthand what it is like to be turned into one of those financial assets. For 31 months, I languished on Rikers Island, waiting for my day in court. I waited on a carceral island bearing the name of the notorious enslaver Richard Riker, where nearly 90% of people awaiting trial were Black or brown. Once I got my day in court, I was greeted by a white judge, a series of white lawyers and a white prosecutor — who illegally excluded the Black people from the jury. I know, quite personally, that one cannot divorce the racial bias that shapes the adjudication process from the profits that result upon conviction. (My conviction was overturned on appeal because of the prosecutor’s race-based misconduct.) This understanding is part of the reason why I found JPay’s email so intolerable.
For those of us who are serious about confronting the broader infrastructure of privatization and mitigating the perverse incentives that lead to more incarceration, we must first monitor and tell the truth about corporate gaslighting and its entry into the criminal legal system. Claiming to celebrate Black history while benefiting from a prison system that separates, confines and monitors millions of Black Americans is a form of resistance to racial reckoning and civil rights — cut from the same cloth as the widespread challenges we have seen to move toward a fact-based teaching of U.S. history. In other words, saying that JPay celebrates Blackness is about as truthful as that the U.S. Civil War was not about slavery. Such falsehoods influence the body politic and make meaningful progress much harder to achieve.
Second, there are also modest and urgent legislative fixes. Prison profiteers are not going to regulate themselves. One legislative priority is to outlaw the kickback clauses that lead to monopolization and enrich local jurisdictions with the money taken from incarcerated families through correspondence and money transfer fees. Another priority — currently being led by Color of Change and Common Cause — is to prohibit private companies that benefit from incarceration from donating to sheriffs races across the country, which creates a conflict of interest and compounds already misaligned incentives away from freedom. Until we pass common-sense legislation, human beings will continue to be seen in terms of dollars and cents. Black people have a long history of being viewed through that prism.
Finally, the longer-term and more fundamental fix lies in this question: Why should incarcerated people and their families be required to spend the little money they have on transfer fees, phone calls and electronic messages? Imagine being charged every time you reply to an email. Now imagine the price rising on Mother’s Day. And imagine earning 26 cents an hour from prison labor.
Making family communication free and therefore more widely accessible would also decrease recidivism rates, as our experience and every study has shown. We know from experience that people who stay connected to their communities are much more likely to succeed as they navigate a re-entry process too often defined by stigma and a lack of support. Companies like JPay would lose from lower recidivism rates, but society would win.
As we continue to reconceptualize public safety, broader conversations around family separation and those who profit from it must be part of that reimagining. “Do I send money to him so he can afford to stay in touch with the kids, or do I feed the kids?” is a question we have heard often, and it’s one that simply cannot be reconciled with a just or safe society.
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