Presidential Candidate Bernie Sanders Files “Justice is Not for Sale Act”

by Derek Gilna

Democratic presidential candidate and U.S. Senator Bernie Sanders of Vermont, along with Rep. Raul Grijalva of Arizona in the House, filed companion bills on September 17, 2015 to address some of the many problems in the U.S. criminal justice system. The highlights of their legislation include abolishing all for-profit prisons and reinstating parole for federal prisoners.

The proposed legislation, which must pass both houses of Congress before being signed into law by the President, also takes aim at various other criminal justice issues – including a quota that requires Immigration and Customs Enforcement (ICE) to incarcerate 34,000 detainees at any given time. The bill further addresses excessive charges for prison phone calls and money transfer services, requires ICE to better monitor its facilities and ends the detention of immigrant families.

Senator Sanders, who has advocated other social reforms, including raising the minimum wage and increasing oversight of large banks, noted in a press release that announced the filing of his bill that the private prison industry generates billions of dollars in annual revenues and employs teams of lobbyists to persuade government officials to continue mass incarceration policies to boost their profits.

Sanders also stated that the cost savings promised by private prison companies rarely materialize, and if they occur at all result from inadequate medical care and staffing as well as poor staff training. The bill would eliminate private prisons at the federal, state and local levels within three years.

“It is morally repugnant and a national tragedy that we have privatized prisons all over America,” Senator Sanders declared. “In my view, corporations should not be allowed to make a profit by building more jails and keeping more Americans behind bars. We have got to end the private-for-profit prison racket in America.”

He added, “Today, this situation has gotten so out of hand that our prisoners are no longer people – they have simply become ways to make profits. And, as we have seen, the profit motivation of private companies works at cross purposes with the goals of criminal justice. There is no incentive to offer programming to reduce recidivism rates when you make money based on the number of prisoners you house. And there is no incentive to make your prisons safer, when you can cut corners and save on costs.”

However, less than 9% of the estimated 2.2 million people currently held in prisons and jails are confined in privately-operated facilities, so the bill’s ban on for-profit prisons would not have a significant effect on our criminal justice system as a whole.

It is Sanders’ proposed reinstatement of parole for federal prisoners that may provoke the most discussion and potentially have the greatest impact. The end of parole in 1987 signaled the start of an upward climb in the federal Bureau of Prisons’ population, in addition to an attitudinal change that “tough on crime” was the solution to the nation’s crime problems. Three decades and hundreds of billions of dollars later, there is actually more drug use in the U.S. than before the beginning of the “War on Drugs,” with the lives of hundreds of thousands of families torn apart and large portions of inner-city neighborhoods decimated due to mass incarceration.

“If a person has demonstrated he or she is truly rehabilitated, and is ready to be reintegrated into society,” said Senator Sanders, “they should be given the opportunity to be paroled.”

While his legislation would reinstate parole for federal prisoners, if release on parole is denied due to arbitrary factors and parole supervision is primarily used to return offenders to prison due to technical violations, as is commonly the case in state parole systems, then it may actually result in an increase in the federal prison population.

Additional sections of the bill require the Bureau of Consumer Financial Protection to issue, within three years, “final rules to establish standards for assessing whether the amount of any fee or charge” for prison money transfer services and payments upon release “is reasonable and proportional to the relative cost or value of the service provided.” Further, within one year, the Federal Communications Commission is required to “adopt regulations on the use of inmate telephone and video service” that include rate caps and limits on ancillary fees, and that prohibit or restrict “the payment of commissions by providers of inmate telephone and video service to administrators of correctional institutions, departments of correction, and similar entities.”

In the latter regard, the FCC recently released draft prison phone industry reforms, which are expected to be finalized at the Commission’s next meeting on October 22, 2015. The draft reforms include separate caps on prison and jail phone rates as well as limits on ancillary fees.

With respect to immigration, the legislation would strike the Congressional mandate which requires ICE to maintain a “bed quota” of 34,000 immigrant detainees; instead, the bill requires that ICE’s detention system “shall be based solely on detention needs” and shall expand the use of alternatives to incarceration for persons awaiting immigration hearings. All facilities holding ICE detainees will be inspected for compliance with applicable standards and subject to oversight by federal officials and penalties for non-compliance. Lastly, the detention of immigrant families is prohibited.

“The number of people who have been incarcerated in America has quadrupled – from about 500,000 in 1980 to more than 2.2 million today,” Senator Sanders stated. “That is unacceptable. African Americans are incarcerated at nearly six times the rate of white Americans. That is unacceptable. It makes no sense to me that the United States of America has more jails and prisons than colleges and universities. As a nation, our goal must be to do everything we can to create the conditions that prevent mass incarceration. At a time when we are spending $80 billion a year on our correctional system, it makes a lot more sense to me to be investing in jobs and education than in jails and incarceration.”

Prior to introducing the bill, Senator Sanders’ staff reached out to several criminal justice advocacy organizations, including Prison Legal News, to consult on the proposed legislation. PLN provided a number of recommendations related to private prisons and prison telephone and financial services, and suggested the name that was ultimately adopted for the bill: the “Justice is Not for Sale Act.”

While Senator Sanders’ legislation is ambitious, it is unfortunately flawed in several ways. Notably, it does not include a means of enforcement for abolishing private prisons on the state and local levels; for example, there is no penalty, such as loss of federal funds, if state and local governments fail to comply with the bill should it become law.

Sanders’ staff said federal officials could take a state or local government to court and seek an injunction ordering them to comply with the legislation, and if the state or local government still does not comply, then seek a contempt ruling and penalties. Realistically, though, that is highly unlikely to happen, leading PLN managing editor Alex Friedmann to comment that absent a clear enforcement mechanism, the bill “appears to be more for political purposes than to actually address the many problems in our criminal justice system.”

The Justice is Not for Sale Act is also highly unlikely to pass, given the many vested interests in maintaining the status quo of our criminal justice system – which is very profitable not only for the private prison industry but also for members of Congress who receive campaign donations from private prison firms, who are elected on tough-on-crime platforms and who have prisons in their districts and thus constituents who rely on mass incarceration for jobs and other benefits.

Further, although he is currently championing certain reforms, it should be noted that Senator Sanders has a mixed track record on criminal justice issues; for example, he voted for the 1994 crime bill – the Violent Crime Control and Law Enforcement Act – which included a number of punitive provisions, including a ban on Pell grants for prison education programs.

As of early October 2015, Sanders’ legislation (S. 2054) had no cosponsors in the Senate, while Rep. Grijalva’s companion bill (H.R. 3543) had 29 cosponsors in the House.

Sources: www.congress.gov, www.sanders.senate.gov, www.vox.com, The Atlantic