Prison Dilemma: When Profit Undermines Safety

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Every day, Washington State prisoners anxiously await their opportunity to sit at a kiosk to check emails, download music and video visit (which is similar to Skype).

Since 2010, the Washington Department of Corrections (WDOC) has contracted with a company called JPay, which operates communications services for prisoners and to those who wish to communicate with them electronically in at least 19 states.  

According to WDOC, the system gives offenders the opportunity to create positive family and community ties, which in turn helps them transition back into society and reduces their likelihood of reoffending.

But it is also a profit-making enterprise. Not only does JPay earn revenue through fees paid by the friends and families of inmates, but the WDOC earns commissions each time the system is used.

The profit motive has created a glaring contradiction with WDOC’s own policies of maintaining security within the facility—and also endangers the safety of the outside community.

For example, although WDOC policy requires designated facility employees to monitor video visits for compliance with facility rules[i]   WDOC leaves it to JPay to review video visits after they occur and agency employees are notified weeks later of any security concerns.

WDOC earns $3 for each video visit that takes place.

Editor’s Note: Endnotes for this article are listed below.

Similarly, WDOC policy requires that mailroom staff review JPay messages before they are released to ensure they are not objectionable.[ii]  Here again, JPay takes the lead.  WDOC staff only review JPay messages if they have an attachment, have been flagged by the JPay system, or have been targeted by investigators within WDOC.

Currently, WDOC pockets five percent of the gross revenue from all email services.

WDOC disciplinary rules also forbid prisoners from possessing sexually explicit material.[iii]  Still, JPay’s music catalogue has contained content ranging from erotic sound effects titled “Female-Moaning” to audio derived from pornographic movies.  WDOC takes in $0.04 for each song and $0.20 for each album sold by JPay.

WDOC also earns $2 for each MP3-player that is sold by JPay.  While JPay maintains that its players only connect and accept downloads from its secure kiosks and network, prisoners have actually been able to download X-rated films onto these devices.

Without context, the security issues surrounding the JPay system may appear to be insignificant.  But to put them into perspective, one need only consider the interaction between JPay and the Sex Offender Treatment and Assessment Program (SOTAP).

The Washington Legislature has declared that sex offenders pose a high risk of committing sex offenses after being released from confinement and that protecting the public from sex offenders is a paramount governmental interest.[iv]  To reduce this risk, SOTAP provides “opportunities for offenders to learn the attitudes, thinking skills, and behaviors necessary to minimize their risk of future sexual offense.”[v]

But JPay in effect undermines those efforts.  How that happens becomes clear when reviewing the case  of one former prisoner in SOTAP.[vi]

According to court records, Joe L. Todd had an extensive history of sexual crimes against young children.  Prior to being confined, his favorite website featured older men having sex with boyish looking males.  Based upon his Relapse Prevention Plan in SOTAP, Todd understood that his use of pornography was a behavior that “if left unchecked will lead into a next step, a next step until a person re-offends.”

Sex offender treatment providers identify the use of pornography as a risk factor for offending behavior.  Yet counselors in SOTAP do not review JPay content to determine whether it is appropriate.  This hands-off approach therefore gives prisoners in SOTAP the ability to purchase sexually explicit content and the technology to download pornographic movies—courtesy of JPay and WDOC.

This happens in spite of the fact that policies governing contraband “shall provide maximum protection of legitimate penological interests, including prison security and order and deterrence of criminal activity.”[vii]

It is doubtful that those in SOTAP realize that purchasing sexually explicit content through authorized channels could put their freedom in jeopardy.

Washington’s Sexually Violent Predator Act permits the State to civilly commit sex offenders whose probability of re-offending exceeds 50%. [viii]

Engaging in high-risk behavior that is part of an individual’s offense cycle is a basis for civil commitment, even if there is no actual contact with any potential victim. [ix]

This is the danger for those in SOTAP.  Civil commitment when their criminal sentence is complete.  As for WDOC, the danger lies in liability.

Public agencies can face civil liability for not taking “reasonable precautions to protect others against reasonably foreseeable dangers.”[x]  This is known as a “Take-Charge” duty. For instance, if WDOC did not take reasonable steps to prevent Joe L. Todd  from accessing pornography, knowing this was one of his “triggers,” then unleashed him upon the community, the agency could face liability for a third-party’s injuries.

Such access appears to be widespread. Content from pornographic movies were best sellers in 2015.  But the number of prisoners in SOTAP who have accessed such material through JPay is a mystery.

If a citizen wished to learn what sort of access prisoners in SOTAP have to sexually explicit material, or how much WDOC has earned in commissions from its sale, such records should be accessible under Washington’s Public Records Act, which mandates that “the public have full access to information concerning the workings of government.”  The state legislature has further declared that the corrections system “should be accountable to the citizens of the state.”

Regardless, WDOC officials are adamantly opposed to disclosing any records from the JPay system.  According to Devon Schrum, Director of Reentry, “Subjecting JPay messages and other content to public disclosure would create a significant security concern, could endanger the families of offenders, and would erode the trust between the Department, offenders, and their families.”  [xi]

What is left unsaid is that subjecting JPay records to public disclosure could also erode the trust between WDOC and the public.

The Washington Supreme Court has recognized that sexually explicit information when linked to the performance of a government agency is “of legitimate concern to the public and must be disclosed.”  The Court has also made clear that “the public has an interest in knowing about claimed misconduct at public agencies.”[xii]

Willful neglect by WDOC officials in making pornography accessible in SOTAP is just the sort of misconduct that is of legitimate concern to the public.[xiii]

Given WDOC’s approach to JPay services, it is no surprise that officials would want to keep the public in the dark.

Ultimately, the more prisoners utilize JPay services, the more  WDOC can offset the cost of incarceration.  Tolerating security threats simply becomes the cost of doing business.  Relying on JPay to screen communications also provides a shadow-revenue stream for WDOC.

Quite simply, the fewer employees WDOC needs to review inmate communications, the further WDOC offsets the cost of incarceration.

WDOC’s hands-off approach to JPay highlights how a pecuniary interest trumps sound penological practices in the correctional system.

Ironically, emblazoned across the footer of all WDOC documents is its motto, Working Together for SAFE Communities.

Jeremiah Bourgeois is an inmate at Stafford Creek Corrections Center in Aberdeen, WA, where he is currently serving 25 years to life for a crime committed when he was 14. He will be eligible to go before the parole board in 2017. He welcomes comments from readers.

 


[i] DOC Directive 450.300, Attachment 1.

[iii] “Sexually explicit” material is defined under WAC 137-25-020 as any display, portrayal, depiction, or description of nudity or sex acts.  Possession of sexually explicit material is punishable under WAC 137-25-030 (Rule 728).

[iv] Laws of 1990, Ch. 3, § 116.  One should not be misled by this Legislative finding, however.  While it is true that sex offenders are more likely to commit sex crimes than other offenders upon release, sex offenders actually have the lowest recidivism rates in Washington State.  See, Washington State Institute for Public Policy, “Sex Offenders in Washington State: Key Findings and Truths,” 2005. 

[v] DOC Directive 570.000.

[vi] In re Detention of Todd, 2013 Wash.App.  LEXIS 2735. 

[vii] RCW § 72.09.530.

[viii] In re Detention of Post, 170 Wn. 2d 302, 309-10 (2010)

[ix] In re Detention of Broten, 130 Wn. App. 326, 335-36 (2005)

[x] See, e.g., Taggart v. State, 118 Wn.2d 185, 224 (1992) (parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees’ dangerous propensities). 

[xi] Attachment 2

[xii] Koenig v. City of Des Moines, 158 Wn.2d 173, 187 (2006).

[xiii] Sergent v. Seattle Police Dep’t, 129 Wn.2d 376, 393 (2013). 

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