People over Profit: The Case for
Abolishing the Prison Financial System
Sean Kolkey *
The term “mass incarceration” is used to describe a crisis that,
to many, is both abstract and distant. But for Black, Latinx,
Indigenous, low-income, and other communities whose lives are
disproportionately affected by the criminal legal system, the reality of
carceral exploitation is as unavoidable as it is harmful. Incarceration
has always had economic ramifications, but the modern prison has
become an amalgamation of public and private interests that
increasingly treat incarcerated individuals and their communities as a
source of profit. In a matter of decades, prison finance has become a
billion-dollar industry concentrated in the hands of powerful
corporate interests, and it overwhelmingly preys on historically
marginalized and low-income communities. The advent of the digital
economy has opened a new dimension of economic exploitation,
typified by fee-laden debit release cards and exorbitant money transfer
fees. In light of these increasingly exploitative practices, documenting
the full extent of financial exploitation within the prison system is an
immensely difficult task. Ending it is even harder.

DOI: https://doi.org/10.15779/Z38GB1XH92
Copyright © 2022 Sean Kolkey.
* J.D. Candidate, 2022, University of California, Berkeley, School of Law. This note is
dedicated to the activists, educators, agitators, and scholars fighting for justice each and every day. Many
thanks are owed to Professors Ted Mermin, Joy Milligan, Bertrall Ross, and Manisha Padi for their
thoughtful feedback. Thanks also to my peers: Lucia Childs-Walker, Nabila Abdallah, Jameson Davis,
Blaine Valencia, Paul Messick, the Spring 2021 Note Publishing Workshop, and the editors of the
California Law Review. I am eternally grateful to Tiffany de Guzman, whose conversations, comments,
and constant support made this project possible.

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Despite persistent efforts to reform prison finance through
litigation and regulation, the problem is getting worse—not better.
This Note argues that the prison financial system is beyond repair and
that it must be abolished. To that end, this Note proposes a communitycentered alternative to the existing prison financial system that
reclaims the economic power seized by the carceral state and relocates
it within the communities that mass incarceration has
disproportionately impacted. Though it is only one part of the broader
project of prison abolition, the proposed alternative addresses an
aspect of the criminal legal system that is often overlooked. Doing so
represents a concrete step towards the eventual dismantling of the
prison industrial complex.
A Note About Language: The words that we use to describe
people who have come in contact with the criminal legal system play
a foundational role in our own conception and, by extension, our
society’s treatment of these individuals. While terms like “inmate,”
“ex-convict,” and “prisoner” are widely used and recognized, they
carry an inseparable connection to physical spaces that many people
view with fear and contempt. Though linguistically convenient, this
connotation reinforces harmful ideas and attitudes towards some of
the most marginalized members of our communities. As such, this
Article identifies people who have come in contact with the criminal
legal system by their names when possible and in other instances refers
to them as “incarcerated” or “formerly incarcerated” individuals. 1
Introduction ............................................................................................ 259
I. Profits over People: The Journey to the Modern Prison System ......... 104
A. Tracing the Roots of Mass Incarceration ............................. 105
B. The Rise of the Prison Industrial Complex .......................... 110
C. The Impacts of the Prison Financial System........................ 113
1. Exploitative Money Transfer Fees ................................. 113
2. Predatory Debit Release Cards ...................................... 115
II. The Reformist Approach: Litigate, Regulate, and Increase Access to
Banking ....................................................................................... 117
A. Litigation: Useful Tool for Reform? .................................... 117
1. Contractual Barriers to Recovery .................................. 118
2. Claims Under State Tort and Consumer Protection
Statutes........................................................................... 119
3. Brown v. Stored Value Cards and the Future of Litigation
Under the EFTA ............................................................ 120
1. For a more thorough discussion, see Victoria Law & Rachel Roth, Names Do Hurt: The
Case Against Using Derogatory Language to Describe People in Prison, REWIRE NEWS GRP. (Apr. 20,
2015),
https://rewirenewsgroup.com/article/2015/04/20/case-using-derogatory-language-describeperson-prison/ [https://perma.cc/N8K5-Y8WA].

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B. Prison Telecommunications: A Blueprint for Regulating
Prison Finance? .................................................................... 122
C. Pathways to Consumer Banking for Incarcerated Individuals
124
1. The Challenges of Being Unbanked .............................. 124
2. Bank Accounts and Recidivism Rates ........................... 125
III. Abolishing the Prison Financial System ........................................... 126
A. The Limitations of Reform .................................................. 127
1. The Reformist View Is Narrow ..................................... 127
2. Reformist Solutions Are Fragile .................................... 129
B. The Alternative: Non-Reformist Reform ............................. 130
1. Defining Ideological Differences in Framing and
Motivation ..................................................................... 130
2. Abolitionist Politics Demand Concrete Alternatives ..... 131
C. Community Development Financial Institutions: An
Alternative to the Prison Financial System.......................... 133
1. ShoreBank: Blueprint for the Modern CDFI ................. 133
2. CDFIs in Action: The Two-Account System................. 134
3. Advancing the Project of Prison Abolition .................... 137
4. The Question of Feasibility............................................ 138
Conclusion .............................................................................................. 139
INTRODUCTION
Clarence Justin Alred was released from prison in July of 2013. 2 In lieu of
cash, the balance of his trust account (a pseudo-bank account used to pay for
items within prison) was given to him on a prepaid debit card issued by JPay,
Inc., one of the largest providers of prison financial services in the country. 3
Unbeknownst to Mr. Alred, the card that was foisted upon him concealed a
predatory secret. Unlike a normal debit card, Mr. Alred’s release card carried a
vast array of hidden charges and fees, ranging from a $0.70 surcharge with each
purchase to a $9.95 cancellation fee. 4
Mr. Alred’s story is far from unique. Release cards are just one part of a
broader array of services, including money transfers, prison telecommunications,
and for-profit prison commissaries, which allow the private sector to harvest
money from incarcerated individuals and their communities. These practices
2. Amirah Al Idrus, Debit Cards Slam Released Prisoners with Sky-High Fees, Few
Protections, CTR. FOR PUB. INTEGRITY (Oct. 2, 2014), https://publicintegrity.org/inequality-povertyopportunity/debit-cards-slam-released-prisoners-with-sky-high-fees-few-protections/
[https://perma.cc/5N7S-JZ55].
3. See id.; Stephen Raher, The Multi-Million Dollar Market of Sending Money to an
Incarcerated
Loved
One,
PRISON
POL’Y
INITIATIVE
(Jan.
18,
2017),
https://www.prisonpolicy.org/blog/2017/01/18/money-transfer/ [https://perma.cc/5JFW-XDBK].
4. Al Idrus, supra note 2.

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have sparked outrage and countless calls for reform, 5 but efforts to mend this
broken system have thus far been largely unsuccessful, and private interests
continue to develop new ways to exploit their influence for profit.
But imagine instead that Mr. Alred, upon his release, already had a debit
card. Imagine that the card, rather than being attached to an account managed by
the institution responsible for his imprisonment, was connected to an account at
a financial organization managed by and for members of his community. Not
only is this scenario possible, but it is a necessary step toward dismantling the
prison industrial complex and relocating financial power within the low-income
communities and communities of color that shoulder a disproportionate share of
the harm mass incarceration has caused.
This Note argues that the systematic abuse perpetrated by the prison
financial system cannot be answered by reform—it requires abolition. Part I
investigates the roots of the current mass incarceration crisis and the prison
industrial complex before examining the resulting financial exploitation of
incarcerated individuals through two case studies: exploitative money transfer
fees and prison debit release cards. Part II explores three current efforts to reform
the prison financial system: litigation under state consumer protection laws and
the Electronic Fund Transfer Act, regulation inspired by recent action from the
Federal Communications Commission to curb financial exploitation in the prison
telecommunications industry, and pilot programs both at home and abroad that
seek to increase incarcerated individuals’ access to consumer banking. Part III
juxtaposes the politics underlying the existing reform efforts with the prison
abolitionist movement and proceeds to articulate a concrete non-reformist
alternative to the prison financial system: relocating incarcerated individuals’
finances within Community Development Financial Institutions.
I.
PROFITS OVER PEOPLE: THE JOURNEY TO THE MODERN PRISON SYSTEM
The United States’ prison system is distinct from those of other wealthy
nations in the Global North for two deeply troubling reasons: first, the United
States has by far the highest incarceration rate per capita of any country in the
world; 6 and second, the United States has allowed the private sector to take

5. See, e.g., German Lopez, How Private Bankers Cash in on Released Prisoners, VOX (Nov.
3,
2015),
https://www.vox.com/explainers/2015/11/3/9661554/prison-bank-prepaid-card
[https://perma.cc/Q736-CLW2]; Ashley Soriano, Fees, Fees and More Fees: The High Cost of Being a
Georgia Prisoner, ATLANTA J.-CONST. (Sept. 1, 2019), https://www.ajc.com/news/state--regional/feesfees-and-more-fees-the-high-cost-being-georgia-prisoner/ldSA2zieAYgMfsefBUas1L/
[https://perma.cc/U2LU-95S6].
6. See Emily Widra & Tiana Herring, States of Incarceration: The Global Context 2018,
PRISON POL’Y INITIATIVE (Sept. 2021), https://www.prisonpolicy.org/global/2021.html
[https://perma.cc/GXB6-P9ZZ].

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unprecedented control of its criminal legal system. 7 These two problems show
few signs of abating. Mass incarceration is an ongoing crisis that
disproportionately targets poor, Indigenous, Latinx, and especially Black
communities, and the prison industrial complex continues to exert outsized
influence on the carceral state in search of new sources of profit. While this Note
ultimately seeks to articulate how one of these exploitative profit streams can be
challenged and dismantled, it also attempts to humanize the people impacted by
the violence of the carceral state. In order to fully understand why the prison
financial system has fallen under the control of the private sector and how it can
be reclaimed, it is necessary to first grapple with the history of mass incarceration
and its disproportionate impact on Black people and Black communities.
A. Tracing the Roots of Mass Incarceration
The unprecedented size of the United States’ incarcerated population is
increasingly being recognized as a national crisis. 8 Now totaling almost 2.3
million people, 9 the United States imprisons and jails a population greater than
that of its three least populous states combined. 10 Though everyone feels the
harm of mass incarceration, it is far from equally dispersed. The prison system
disproportionately affects the lives and livelihoods of Black people, who
constitute 40 percent of the incarcerated population despite making up only 13
percent of the United States’ population. 11 While the immediate crisis is largely
the result of the racially discriminatory penological reforms of the 1970s and
1980s, the outsized impact of those reforms on Black communities is rooted in a
far older and longstanding prejudice.
The institutionalized anti-Black racism that fueled generations of
enslavement in the United States did not vanish in the wake of the Civil War,

7. Though the United States is not the only country that has privatized certain aspects of its
prison system, other wealthy countries that also cede carceral power to the private sector, such as
Australia and New Zealand, do so with contracts that incentivize lower recidivism rates as opposed to
higher occupancy rates. See Lauren-Brooke Eisen & Rebecca Autrey, A Critical Look at Private Prisons
Overseas, BRENNAN CTR. FOR JUST. (May 13, 2019), https://www.brennancenter.org/ourwork/analysis-opinion/critical-look-private-prisons-overseas
[https://perma.cc/K636-BMMP]
(“[Foreign] contracts revolve around performance metrics, as opposed to occupancy rates which are the
center of so many private prison contracts in the United States. The companies running the prisons will,
for example, receive bonuses from the government if individuals who are incarcerated there do not end
up back in prison.”).
8. See, e.g., Sunday Reading: America’s Incarceration Crisis, NEW YORKER (Nov. 18, 2018),
https://www.newyorker.com/books/double-take/sunday-reading-americas-incarceration-crisis
[https://perma.cc/L2PM-ZZYC].
9. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POL’Y
INITIATIVE
(March
24,
2020),
https://www.prisonpolicy.org/reports/pie2020.html
[https://perma.cc/AT5A-UT5W].
10. See Resident Population of the U.S. in 2020, by State (Including the District of Columbia),
STATISTA (Jan. 20, 2021), https://www.statista.com/statistics/183497/population-in-the-federal-statesof-the-us/ [https://perma.cc/CKK8-P76R].
11. Sawyer & Wagner, supra note 9.

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and it is witnessed to this day in many aspects of American life, including the
modern prison system. In 1865, Frederick Douglass proclaimed that slavery
“steadily exerted an influence upon all around it favorable to its own
continuance” 12 and that it was “so strong that it could exist, not only without law,
but even against law.” 13 His words proved prescient. In the immediate aftermath
of the Civil War, Southern states seized on the Thirteenth Amendment’s
Exceptions Clause, which expressed approval of enslavement “as a punishment
for crime whereof the party shall have been duly convicted.” 14 Rather than
ending chattel slavery as an institution, the Thirteenth Amendment instead
translated the underlying power dynamic that had fueled generations of
subjugation into the language of the criminal legal system. 15 The South set about
creating a “criminal justice system that could legally restrict the possibilities of
freedom for newly released slaves,” 16 and those efforts would successfully
recreate many of the abusive hallmarks of enslavement.
The system devised by Southern states took as its starting point the Slave
Codes that governed Black life in the years before the Civil War. 17 These
reintroduced “[B]lack [C]odes” criminalized seemingly commonplace behaviors
such as vagrancy—broadly defined to include routine circumstances such as
unemployment18—and were selectively enforced against Black people. 19 Black
labor, once claimed outright by enslavers, was seized and sold by the state
through the convict leasing system, whereby prison operators sold incarcerated
individuals’ labor to fuel the economic resurgence of the “New South.” 20 Though
the first systems of convict labor that had originated in colonial America largely
faded from view by the time of the American Revolution, the post-war South
proved fertile ground for their reemergence. 21 The practice reproduced the
inhumane treatment that had defined chattel slavery and, in some cases, exposed
Black people to conditions that were arguably worse than what they or their
ancestors had experienced as enslaved people. 22 The practice also demonstrated

12. Frederick
Douglass,
Reconstruction,
ATLANTIC
(Dec.
1866),
https://www.theatlantic.com/magazine/archive/1866/12/reconstruction/304561/
[https://perma.cc/5DUR-KMJE].
13. Id.
14. U.S. CONST. amend. XIII, § 1.
15. See Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, 132 HARV. L.
REV. 1575, 1580 (2019); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth
Amendment: A Revisionist Account, 94 N.Y.U. L. REV. 1465, 1470–72 (2019).
16. ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 11 (2003).
17. See id. at 11–12.
18. See Pope, supra note 15, at 1479.
19. See DAVIS, supra note 16, at 11.
20. TALITHA L. LEFLOURIA, CHAINED IN SILENCE: BLACK WOMEN AND CONVICT LABOR IN
THE NEW SOUTH 66–67 (Heather Ann Thompson & Rhonda Y. Williams eds., 2015).
21. See id. at 65.
22. See DAVIS, supra note 16, at 13 (“Slave owners may have been concerned for the survival
of individual slaves, who, after all, represented significant investments. Convicts, on the other hand,

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that the privatization of the penal system had the potential to offer immense
wealth to those who controlled the tools of incarceration, be they private parties
or the carceral state. 23 Though convict leasing was largely abolished by 1927, 24
the anti-Black attitudes that were empowered and entrenched by the Black Codes
and the convict leasing system continue to influence the United States’
penological policies. 25
The racist institutions established in the South in the wake of the Civil War
—many of which had analogous counterparts in the North 26—have had a lasting
impact on the relationship between carceral politics and Black communities. Not
only did the Black Codes dramatically reshape the demographic character of
southern penitentiary systems from primarily White institutions to
overwhelmingly Black ones, but they also seeded the view that Black people,
and by extension Black communities, were inherently criminogenic. 27 This
misperceived connection between Blackness and crime helps to explain how,
decades later, efforts to “reform” the prison system resulted in the
disproportionate imprisonment of Black people.
During the Civil Rights Movement of the 1950s and 1960s, the rhetoric of
“law and order” and calls to get “tough on crime” laid the groundwork for a new
era of racially discriminatory penological reforms that ultimately resulted in the
pervasive incarceration of Black people. 28 Though little effort was made to
conceal the connection between “tough on crime” rhetoric and racism in the
early-mid 1960s, changing political winds prompted the adoption of the “racially
sanitized rhetoric of ‘cracking down on crime’ . . . that is now used freely by
politicians of every stripe.” 29 The political palatability of the newly sanitized
rhetoric facilitated the passage of racist sentencing reforms in the ensuing
decades, both as part of a broader national shift towards determinate sentencing
and through specific policies pursued as part of the War on Drugs.

were leased not as individuals, but as a group, and they could be worked literally to death without
affecting the profitability of a convict crew.”).
23. See LEFLOURIA, supra note 20, at 67. Georgia alone made $250,000 (roughly $6.5 million
today) between 1872 and 1886 as a result of their extensive prison, and convict leasing allowed the state
to limit the costs of housing incarcerated individuals. Id.
24. Pope, supra note 15, at 1526.
25. See Bryan Stevenson, Slavery Gave America a Fear of Black People and a Taste for Violent
Punishment. Both Still Define Our Criminal-Justice System, N.Y. TIMES (Aug. 14, 2019),
https://www.nytimes.com/interactive/2019/08/14/magazine/prison-industrial-complex-slaveryracism.html [https://perma.cc/3M39-53KQ] (“[A] presumption of danger and criminality still follows
[B]lack people everywhere. New language has emerged for the noncrimes that have replaced the Black
Codes: driving while [B]lack, sleeping while [B]lack, sitting in a coffee shop while [B]lack. All reflect
incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be
ignored if they were [W]hite.”).
26. See Pope, supra note 15, at 1495.
27. See DAVIS, supra note 16, at 12–13.
28. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 42 (2010).
29. Id.

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In the 1970s, the United States embraced a host of punitive sentencing
reforms that dramatically reshaped the carceral landscape. During the preceding
decades, indeterminate sentencing guidelines were the norm in both state and
federal courts. 30 These sentencing guidelines gave judges a wide range of
possible sentencing options that were supposedly sensitive to the environmental
and psychological backgrounds of criminal defendants. 31 However, as the United
States increasingly favored an explicitly punitive prison system, state legislatures
adopted more rigid sentencing schemes that attached stricter punishments to
criminal offenses. 32 Jurisdictions that did not embrace a fully determinate
sentencing structure employed other tools to limit the individualization of
sentencing practices. These tools included restricting or eliminating parole for
certain offenses and introducing mandatory minimum sentences. 33 Though
indeterminate sentencing was by no means free of racial bias before the 1970s,
the new regime eliminated any pretense of flexibility and dramatically increased
both the frequency and duration of prison sentences. Together, these reforms
contributed to the exponential increase of the incarcerated population during the
ensuing decades. 34
The 1970s also witnessed the beginning of the War on Drugs, an ongoing
ideological and political campaign that led to the passage of racially
discriminatory sentencing policies under the auspices of protecting public safety.
The initial calls for a War on Drugs appeared during the Nixon administration in
1971, 35 and the first of what would be many draconian drug laws—New York’s
Rockefeller Drug Laws—was enacted in 1973. 36 Though these early efforts
resulted in the disproportionate incarceration of Black and Latinx individuals,
the increased usage of crack cocaine in the 1980s caused a public health crisis
that ultimately set the stage for some of the most harmful sentencing reforms of
the era. 37 The Anti-Drug Abuse Act of 1986 introduced mandatory minimum

30. See DORIS LAYTON MACKENZIE, NAT’L CRIM. JUST. REFERENCE SERV., SENTENCING AND
CORRECTIONS IN THE 21ST CENTURY: SETTING THE STAGE FOR THE FUTURE 6 (2001).
31. See id.
32. See id. at 9.
33. See id. at 18.
34. The total incarcerated population fluctuated between 100,000 and 200,000 from 1925 to the
mid-1970s, before growing to 1.4 million between 1976 and 2018. SENT’G PROJECT, TRENDS IN U.S.
CORRECTIONS 1 (2020).
35. BETSY PEARL, CTR. FOR AM. PROGRESS, ENDING THE WAR ON DRUGS: BY THE NUMBERS
(2018),
https://cf.americanprogress.org/wp-content/uploads/2018/06/EndingTheWarOnDurgsfactsheet.pdf?_ga=2.183089826.561918954.1636566377-230970726.1636227739
[https://perma.cc/CE3W-5DSC].
36. Ernest Drucker, Commentary, Population Impact of Mass Incarceration Under New York’s
Rockefeller Drug Laws: An Analysis of Years of Life Lost, 79 J. URB. HEALTH 1, 1 (2002). The harsh
mandatory sentences mandated by the Rockefeller Drug Laws, coupled with inadequate legal
representation, resulted in plea bargains in over 90% of drug cases. Id. Ninety-four percent of the
individuals imprisoned under the Rockefeller Drug Laws were Black or Latinx. Id.
37. See ELIZABETH HINTON, FROM THE WAR ON POVERTY TO THE WAR ON CRIME: THE
MAKING OF MASS INCARCERATION IN AMERICA 309–10 (2016).

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sentences for all cocaine distribution but especially punitive sentences for crack
cocaine, which by that time had become associated with Black communities. 38
Congress intensified its efforts in 1988, passing another Anti-Drug Abuse Act
that imposed five-year mandatory minimum sentences for mere possession of
crack cocaine. 39 Contrary to their publicly stated goal, punitive drug laws have
had little effect on overall drug usage rates, which remained stable throughout
the 1990s and 2000s. 40 Instead, the ongoing effects of the War on Drugs are felt
in Central and South America, where over a hundred thousand people have lost
their lives to drug-related violence, 41 and in Black communities in the United
States, which face disproportionate imprisonment for drug offenses.
Despite their alleged colorblindness, the sentencing reforms of the late
twentieth century have had an outsize impact on Black communities. 42 Today,
Black adults are imprisoned at a rate that is 5.9 times higher than the rate for
White adults, and Black children are 4.1 times more likely than White children
to come in contact with the juvenile legal system.43 Racially discriminatory
sentencing reforms continue the legacy of the penitentiary as an instrument of
Black subjugation. And just as the convict leasing programs of the New South
enriched those in control of incarcerated Black labor, the operators of the modern
prison system similarly profit off mass incarceration.

38. ALEXANDER, supra note 28, at 52; The sentencing disparity between powder and crack
cocaine was as high as 100:1 prior to the passage of the Fair Sentencing Act in 2010. Fair Sentencing
Act, ACLU (Nov. 26, 2014), https://www.aclu.org/issues/criminal-law-reform/drug-law-reform/fairsentencing-act [https://perma.cc/CYM8-KUS3]. The racial disparity in cocaine sentencing resulted in
“African Americans serv[ing] virtually as much time in prison for non-violent drug offenses as [W]hites
did for violent offenses.” Id.
39. See DEBORAH J. VAGINS & JESSELYN MCCURDY, ACLU, CRACKS IN THE SYSTEM:
TWENTY YEARS OF THE UNJUST FEDERAL CRACK COCAINE LAW 2 (2006),
https://www.aclu.org/sites/default/files/pdfs/drugpolicy/cracksinsystem_20061025.pdf
[https://perma.cc/9J37-V64B].
40. See Eduardo Porter, Numbers Tell of Failure in Drug War, N.Y. TIMES (July 3, 2012),
https://www.nytimes.com/2012/07/04/business/in-rethinking-the-war-on-drugs-start-with-thenumbers.html [https://perma.cc/UA2J-W732] (“The use of hard drugs, meanwhile, has remained
roughly stable over the last two decades, rising by a few percentage points in the 1990s and declining
by a few percentage points over the last decade, with consumption patterns moving from one drug to
another according to fashion and ease of purchase.”).
41. George P. Shultz & Pedro Aspe, The Failed War on Drugs, N.Y. TIMES (Dec. 31, 2017),
https://www.nytimes.com/2017/12/31/opinion/failed-war-on-drugs.html
[https://perma.cc/SH8YSJUG].
42. See Graham Boyd, Collateral Damage in the War on Drugs, 47 VILL. L. REV. 839, 846
(2002) (“African-Americans are admitted to state prison at a rate that is 13.4 times greater than Whites,
a disparity driven largely by the gross racial targeting of drug laws. In some states, even those outside
the Old Confederacy, [Black people] make up 90% of drug prisoners and are up to fifty-seven times
more likely than Whites to be incarcerated for drug crimes.”).
43. SENT’G PROJECT, REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS
SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION,
XENOPHOBIA, AND RELATED INTOLERANCE: REGARDING RACIAL DISPARITIES IN THE UNITED
STATES CRIMINAL JUSTICE SYSTEM 1 (2018), https://www.sentencingproject.org/wpcontent/uploads/2018/04/UN-Report-on-Racial-Disparities.pdf [https://perma.cc/4RZL-6HE8].

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B. The Rise of the Prison Industrial Complex
Contemporary scholars identify the interweaving of corporate and state
interests as the “prison industrial complex,” 44 and it continues to influence policy
decisions and impact the lives of incarcerated individuals and their communities.
The alarming increase in the incarcerated population since the 1980s and its
localized impact on Black communities, viewed in context, are an unsurprising
result of the preceding decades’ policy choices and the anti-Black racism
entrenched in the criminal legal system. 45 But the corresponding increase in
privatized penal responsibilities was not preordained. Though the dramatic spike
in incarceration rates quickly outpaced available carceral capacity, 46 it was the
failure of public budgets to keep pace with the massively expanded incarcerated
population that led prison operators to cede carceral power to the private sector.
The inability of public budgets to respond to the burgeoning mass
incarceration crisis is, like the crisis itself, a largely self-inflicted wound. Since
the 1970s, many states have adopted property tax caps that limit access to a
predictable source of state revenue, forcing state and local budgets to rely instead
on more erratic revenue streams such as sales taxes and fees. 47 The policies also
place a disproportionate share of the overall tax burden on low-income
communities, which have lower home ownership rates. 48 These shortcomings

44. The term has various definitions. See, e.g., Eric Schlosser, The Prison-Industrial Complex,
ATLANTIC (Dec. 1998), https://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrialcomplex/304669/ [https://perma.cc/STE4-SNLX] (defining the prison-industrial complex as “a set of
bureaucratic, political, and economic interests that encourage increased spending on imprisonment,
regardless of the actual need”); What Is the PIC? What Is Abolition?, CRITICAL RESISTANCE,
http://criticalresistance.org/about/not-so-commonlanguage/#:~:text=PIC%20abolition%20is%20a%20political,alternatives%20to%20punishment%20a
nd%20imprisonment [https://perma.cc/7GNB-MLV8] (“The prison industrial complex (PIC) is a term
we use to describe the overlapping interests of government and industry that use surveillance, policing,
and imprisonment as solutions to economic, social and political problems.”).
45. See Tara Joy, The Problem with Private Prisons, JUST. POL’Y INST. (Feb. 2, 2018),
http://www.justicepolicy.org/news/12006 [https://perma.cc/LSG6-UDQD].
46. See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 12–13 (2006)
(examining the sudden and drastic expansion of the incarcerated population throughout the latter half of
the 20th century); German Lopez, Watch the Number of US Prisons Skyrocket After 1980, VOX (July
14, 2014), https://www.vox.com/2014/7/14/5898267/prison-America-mass-incarceration-map-gif
[https://perma.cc/K4YT-87DF] (exploring the corresponding expansion of physical prison
infrastructure during the same time period).
47. See IRIS J. LAV & MICHAEL LEACHMAN, CTR. ON BUDGET & POL’Y PRIORITIES, STATE
LIMITS ON PROPERTY TAXES HAMSTRING LOCAL SERVICES AND SHOULD BE RELAXED OR REPEALED
(2018), https://www.cbpp.org/sites/default/files/atoms/files/7-18-18sfp.pdf [https://perma.cc/G946NPH3].
48. In the fourth quarter of 2020, homeownership rates among households with family income
above and below the median family income were 79.4% and 52.3%, respectively. U.S. CENSUS
BUREAU, CB21-15, QUARTERLY RESIDENTIAL VACANCIES AND HOMEOWNERSHIP, FOURTH
QUARTER 2020, at 10 (2021), https://www.census.gov/housing/hvs/files/currenthvspress.pdf
[https://perma.cc/M3FR-UQ3B].

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have frequently left state and local budgets exposed to economic forces that are
beyond their control. 49
While states were unwittingly limiting their future revenue streams, they
continued to enact policies that perpetuated mass incarceration and placed
increased strain on carceral budgets. For example, California enacted
determinate sentencing in 1976 and a Three Strikes Law (mandating enhanced
sentences for people convicted of a second and third offense) in 1994. 50
Correspondingly, the number of incarcerated individuals in California expanded
from 25,033 in 1970 to 172,528 in 2006 (a 589 percent increase). 51 Despite the
sharp increase in the incarcerated population, spending on incarceration as a
share of total state expenditures failed to keep pace, rising from 2.9 percent to
10.5 percent (a 262 percent increase) during a similar time period. 52 The
disconnect between the incarcerated population and prison funding is by no
means unique to California. 53 Across the United States, this divergence has laid
the groundwork for the monetary colonization of the prison system.
Rising expenses and shrinking budgets have created a financial incentive
for prison operators at the local, state, and federal54 levels to contract out some
or all aspects of their operations to the private sector. With financial survival
rather than the supposed public interest serving as their lodestar, prison operators
have outsourced duties such as meal preparation, commissary services,
telecommunications, and financial management, to name just a few. 55 With an
estimated $1.8 billion transferred into prisons and jails each year by the families

49. Decreased economic activity during the Great Recession of 2008 resulted in declines in tax
revenue totaling more than half a trillion dollars in just a few years. BRIAN HIGHSMITH, NAT’L
CONSUMER L. CTR., COMMERCIALIZED (IN)JUSTICE: CONSUMER ABUSES IN THE BAIL AND
CORRECTIONS INDUSTRY 10 (2019), https://www.nclc.org/images/pdf/criminal-justice/reportcommercialized-injustice.pdf [https://perma.cc/PY5N-VAFD]. Sadly, few lessons were learned in the
wake of 2008, and the COVID-19 pandemic once again left public coffers short during a time of crisis.
See generally CTR. ON BUDGET & POL’Y PRIORITIES, STATES GRAPPLING WITH HIT TO TAX
COLLECTIONS
1–5
(2020), https://www.cbpp.org/sites/default/files/atoms/files/4-2-20sfp.pdf
[https://perma.cc/U2AW-JQKC] (detailing various states’ reduced budgets as a result of COVID-19).
50. See SCOTT GRAVES, CAL. BUDGET PROJECT, STEADY CLIMB: STATE CORRECTIONS
SPENDING
IN
CALIFORNIA
8
(2011),
https://calbudgetcenter.org/wpcontent/uploads/110914_Corrections_Spending_BB.pdf [https://perma.cc/T6F7-KUWY].
51. Id. at 5.
52. Id.
53. See HIGHSMITH, supra note 49, at 10–11.
54. Budgetary constraints play a less prominent role in the drive towards federal prison
privatization, but pervasive privatization at the state and local level has served as a model for private
prison lobbyists to successfully pitch their services to the federal government. See KARA GOTSCH &
VINAY BASTI, SENT’G PROJECT, CAPITALIZING ON MASS INCARCERATION: U.S. GROWTH IN PRIVATE
PRISONS 11 (2018), https://www.sentencingproject.org/wp-content/uploads/2018/07/Capitalizing-onMass-Incarceration.pdf [https://perma.cc/89YM-W5DA] (“[P]rivate prison companies at times have
joined with lawmakers, corporations, and interest groups to advocate for privatization . . . .”).
55. See WORTH RISES, THE PRISON INDUSTRY: HOW IT STARTED, HOW IT WORKS, AND HOW
IT HARMS 48–75 (2020), https://worthrises.org/s/The-Prison-Industry-How-It-Started-How-It-Worksand-How-It-Harms-December-2020.pdf [https://perma.cc/V2SW-2FF6].

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and friends of incarcerated individuals, 56 and another $1.4 billion spent within
prisons on telecommunication services, 57 these contracts can be immensely
profitable for both prison operators and private companies. 58 Budget constraints
impose a dual incentive to privatize: not only do prison operators save money by
externalizing expensive and time-consuming tasks, 59 but they also receive a
share of the revenue, which helps offset the dearth of public funds they receive.
In exchange, a handful of private companies are given exclusive control of
various aspects of a prison facility, and they quickly establish schemes that
extract wealth from incarcerated individuals and their communities. 60
To be clear, the harmful impacts of mass incarceration would have been
just as prevalent even if public budgets had managed to absorb the costs of states’
fiscal policy choices. But few can argue that the alternative—the massively
increased influence of the private sector—is a better outcome. The prison
industrial complex is a uniquely insidious and exploitative manifestation of
capitalism, accountable to only a handful of wealthy stakeholders and in constant
search of new sources of profit.
As their power and influence have grown, private companies have
successfully shifted many of the expenses of incarceration onto the very
individuals they incarcerate, along with their loved ones and communities.
According to official estimates, the United States still spends approximately
$80.7 billion on prison operations annually, 61 but this figure only tells one part
of the story. In addition to publicly supplied funds, families and friends of
incarcerated individuals pay over $3 billion to the private sector just to stay in
contact with and provide bare necessities for their loved ones. 62 For people like
Kae Boone, sending $100 per month to her boyfriend, Charles Lee Isaac, has
made it possible for him to purchase necessary items such as toiletries and food
56. Id. at 60.
57. Id. at 48–49.
58. See HIGHSMITH, supra note 49, at 11–12 (examining the usage of kickbacks to offset fiscal
pressure and generate revenue for the private prison industry); id. at 18–19 (exploring some of the
abusive schemes implemented by private prison service providers); id. at 21–22 (discussing the costsharing structure of private prison contracts).
59. For example, one prison in Oregon estimated that accounting for and returning incarcerated
individuals’ money when they are released costs approximately $275,000 annually and several hours of
labor per week. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 569 (9th Cir. 2020).
60. See WORTH RISES, supra note 55, at 49 (detailing, for example, how prison telecom
contracts provide lucrative kickbacks to prison operators by charging incarcerated people and their
families “egregious rates” for their services).
61. EMILY D. BUEHLER, U.S. DEP’T OF JUST., NCJ 256093, JUSTICE EXPENDITURES AND
EMPLOYMENT
IN
THE
UNITED
STATES,
2017,
at
4
(2021),
https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/jeeus17.pdf [https://perma.cc/84CX76DM]. The U.S. has a multi-tiered system of incarceration, and expenditures are similarly split between
federal ($7.8 billion), state ($51.4 billion), and local ($30 billion) governments. Id.
62. This figure is accurate as of 2017, but it notably omits sectors of the corrections industry–
including money transfers and release cards––where expenditures total less than $1 billion. Peter
Wagner & Bernadette Rabuy, Following the Money of Mass Incarceration, PRISON POL’Y INITIATIVE
(Jan. 25, 2017), https://www.prisonpolicy.org/reports/money.html [https://perma.cc/83EA-ZR7N].

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from the prison commissary, but the payments have also left her struggling to
pay her own bills on time. 63 These are the real costs of the prison industrial
complex. Within this new ecosystem, the private sector is perfectly positioned to
capitalize on increasingly strained state budgets at the expense of individuals
who have any direct or indirect contact with the criminal legal system.
C. The Impacts of the Prison Financial System
Though it is relatively young, 64 the prison financial system has quickly
become the site of harmful and extractive practices that have the potential to sap
hundreds of millions of dollars from incarcerated individuals and their
communities each year. 65 Two practices in particular, exploitative money
transfer fees and fee-laden debit release cards, have emerged as the most
prominent examples of unchecked financial abuse within prisons and jails.
1. Exploitative Money Transfer Fees
The lack of financial regulation within prisons and jails has allowed a
handful of corporations to profit off of incarcerated individuals’ reliance on
prison commissaries for everyday items. 66 For-profit commissaries have become
a mainstay within prisons throughout the country, serving as a vehicle for private
industry to profit off of prison facilities’ increasingly sparse provisions. 67
Increased reliance on purchases made within the confines of the carceral system
has spurred the development of a parallel system of prison finance used to
manage incarcerated individuals’ assets.
Prison operators seldom allow incarcerated individuals to possess cash.
Instead, they must access their money through trust accounts controlled by either
the prison itself or, as is becoming increasingly common, a private company
contracted by the prison facility. 68 These accounts are subject to a host of
mandatory deductions that are used to pay court-imposed fees and fines, as well
63. See Beatrix Lockwood & Nicole Lewis, The Hidden Cost of Incarceration, MARSHALL
PROJECT (Dec. 17, 2019), https://www.themarshallproject.org/2019/12/17/the-hidden-cost-ofincarceration [https://perma.cc/5WNF-ZGV4].
64. See WORTH RISES, supra note 55, at 59–60 (noting that the federal prison system adopted
the current financial system in the late 20th century).
65. See id. at 60 (“In 2015, the correctional money transfer market was estimated to be worth
$172 million.”).
66. See Daniel Wagner, Prison Bankers Cash in on Captive Customers, CTR. FOR PUB.
INTEGRITY (Nov. 11, 2014), https://publicintegrity.org/inequality-poverty-opportunity/prison-bankerscash-in-on-captive-customers/ [https://perma.cc/YBM5-7KW6] (explaining that “governments
increasingly shift the costs of imprisonment from taxpayers to the families of inmates,”
forcing them to pay for “basic needs like toothpaste, visits to the doctor and winter clothes,”
and in some cases “toilet paper, electricity, even room and board”).
67. See Stephen Raher, The Company Store: A Deeper Look at Prison Commissaries, PRISON
POL’Y
INITIATIVE
(May
2018),
https://www.prisonpolicy.org/reports/commissary.html
[https://perma.cc/5786-W55M].
68. See Isaac Colunga, An Alternative Look at the Takings Clause and Inmate Trust Accounts,
39 U. TOL. L. REV. 791, 792 (2008).

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as some of the costs associated with incarceration itself. 69 Incarcerated
individuals can use their earned wages to fund trust accounts, 70 but these
relatively meager and exploitative earnings are insufficient to pay for even the
most essential items, such as basic toiletries and clothing, that aren’t provided in
sufficient quantities (if they are provided at all) by the prison operator. 71 As a
result, family and friends commonly supplement trust accounts through money
transfers. 72
The process through which friends and family are able to fund an
incarcerated individual’s account leaves well-intentioned community members
exposed to exorbitant fees. 73 These financial transactions exist in a regulatory
gray area that allows financial service providers to essentially charge whatever
they want for transfers into prison facilities. 74 As a result, transfer fees are
frustratingly arbitrary. In California, JPay charges a transfer fee of $1.95 for
sums between $0.01 and $30, but it charges $7.95 for a transfer between $30.01
and $75. 75 This means that it is cheaper to send two $30 transfers and a $15
transfer than it is to send one transfer of $75. 76 Further, a transfer between $75.01
and $200 costs $9.95, 77 but the fee for a transfer between $200.01 and $300 goes
back down to $7.95. These inconsistent fee schedules show that the service is
69. See Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law
in Prisons and Jails, 17 HASTINGS RACE & POVERTY L.J. 3, 11 (2020) [hereinafter Raher, The Company
Store].
70. See Wendy Sawyer, How Much Do Incarcerated People Earn in Each State?, PRISON
POL’Y INITIATIVE (Apr. 10, 2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/
[https://perma.cc/9MBH-2WCJ]. These wages are often painfully low, even for jobs that are incredibly
dangerous. For example, incarcerated individuals are often called upon to fight wildfires, yet they are
paid only $1.45 per day for their service. See David Fathi, Prisoners Are Getting Paid $1.45 a Day to
Fight the California Wildfires, ACLU (Nov. 15, 2018), https://www.aclu.org/blog/prisonersrights/prisoners-are-getting-paid-145-day-fight-california-wildfires [https://perma.cc/33PP-JNZF].
71. See RAHER, supra note 67.
72. See Wagner, supra note 66.
73. See Stephen Raher, The Multi-Million Dollar Market of Sending Money to an Incarcerated
Loved One, PRISON POL’Y INITIATIVE (Jan. 18, 2017) [hereinafter Raher, The Multi-Million Dollar
Market], https://www.prisonpolicy.org/blog/2017/01/18/money-transfer/ [https://perma.cc/5BJYZH5E].
74. See Wagner, supra note 66 (explaining that “[d]espite its kudzu-like growth, JPay so far has
avoided scrutiny by consumer regulators”).
75. California Department of Corrections & Rehabilitation: Available JPay Services, JPAY,
https://www.jpay.com/Agency-Details/California-Department-of-Corrections--Rehabilitation.aspx
[https://perma.cc/5C5W-PVSD].
76. See id. Fees vary widely from state to state and, in some cases, different rates are charged
for transfers made online versus over the phone. For example, money transferred to individuals
incarcerated by the Washington State Department of Corrections incur fees ranging from $3.95 for
amounts up to $20 to $11.95 for sums above $200. An additional $1 fee is incurred for transfers initiated
over the phone. Washington State Department of Corrections: Available JPay Services, JPAY,
https://www.jpay.com/Agency-Details/Washington-State-Department-of-Corrections.aspx
[https://perma.cc/ZXJ4-CWLU]. In some jurisdictions, “JPay’s fees approach 45 percent.” Wagner,
supra note 66.
77. California Department of Corrections & Rehabilitation: Available JPay Services, supra
note 76.

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not rooted in any actual costs incurred by JPay, but instead is designed to
maximize profit at the expense of incarcerated individuals and their friends and
family.
Though electronic money transfers are now the norm, this was not always
the case. In the past, paper money orders could be mailed directly to prisons and
deposited in an incarcerated individual’s account for no more than the cost of
postage. 78 However, as more and more prisons contract out their financial
systems, this option has become painfully inefficient, leaving fee-laden transfers
as the only feasible option. 79 Rosemary Collins, whose son is incarcerated in
Alabama’s St. Clair state prison, explained that a money transfer mailed to Keefe
Group (the exclusive provider of financial services at the institution where her
son is housed) takes two weeks to deposit in her son’s account. 80 Sadly, many
others share Ms. Collins’s experience, and this practice is widespread among
prison finance operators. When asked for an explanation as to why money
transfers take so long to process, Adryann Glenn, a victim of JPay’s abusive fee
schedules, shared what he believed to be the obvious explanation: “JPay doesn’t
really want your money order. They want you to use the money transfer.”81
Regardless of whether JPay’s actions are deliberate, they present consumers with
a difficult choice between long wait times and excessive fees. Yet in other areas
of the prison finance industry, incarcerated individuals are given no choice at all.
2. Predatory Debit Release Cards
For many formerly incarcerated individuals, release from prison involves
the mandatory acceptance of a debit release card with excessive fees. These cards
have quickly become a common method through which prison operators return
the remaining funds in an incarcerated individual’s account, but a lack of
publicly available data renders it difficult to sketch a complete picture of their
usage. 82 A 2014 survey from the Association of State Correctional
Administrators revealed that 52 percent of responding agencies used prepaid
debit cards to refund account balances, and most of those agencies indicated that

78. See Wagner, supra note 66; Raher, The Multi-Million Dollar Market, supra note 73.
79. See Wagner, supra note 66 (explaining how companies like JPay would take weeks to
deposit money orders in trust accounts).
80. See Amadou Diallo, ‘Release Cards’ Turn Inmates and Their Families into Profit Stream,
AL JAZEERA AM. (Apr. 20, 2015), http://america.aljazeera.com/articles/2015/4/20/release-cards-turninmates-and-their-families-into-profit-stream.html [https://perma.cc/7P9V-4KMS].
81. Id.
82. See Andrea M. Lindsey, Daniel P. Mears & Joshua C. Cochran, The Privatization Debate:
A Conceptual Framework for Improving (Public and Private) Corrections, 32 J. CONTEMP. CRIM. JUST.
308, 311 (2016) (“[T]here do not exist accurate empirical estimates of the use of privatization by local,
state, and federal governments and by the type of corrections privatization (e.g., fees, probation, prison),
or, by extension, of changes in the use of privatization over time.”).

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the cards carried usage fees. 83 There is also reason to think that these practices
have continued expanding since then. JPay, one of the largest providers of
release cards, has continued to grow in recent years, and at least some of its
services are now offered in 33 states. 84 Additionally, JPay’s parent company,
Securus, “offers products that affect more than 1.2 million people incarcerated
across 2,200 facilities in 47 states.” 85 Though JPay is not the only provider of
debit release cards, virtually every purveyor of these financial instruments levies
similarly exploitative and harmful fees on their users. 86
The fees charged by release card issuers for routine usage vary wildly
between providers, but they all follow a central theme: they are
disproportionately larger than the fees associated with “standard” debit cards,
and they serve to extract wealth from unwilling and often unwitting users. Not
only do many release card providers assess fees for basic activity such as balance
inquires (up to $1 at an ATM), 87 but some charge weekly account maintenance
fees of up to $3.50, 88 and account closure fees as high as $30. 89 Stories abound
of formerly incarcerated individuals whose money was siphoned away as they
sought to reintegrate into their communities. One involuntary release card user,
Gregg Cavaluzzi, was only able to spend approximately $70 of the $120 he was
released with due to fees he was unaware of when he was given the card. 90 And
just like the arbitrary money transfer fees, the divergent costs imposed by
different providers suggest that they likely are not based on actual expenses
incurred by the vendor. 91
Release cards offer little real utility to their users, regardless of claims to
the contrary by release card vendors. The limitations that release cards place on
formerly incarcerated individuals far outweigh the relatively sparse benefits that
the cards provide. Promoters of release cards tout their convenience to

83. See Letter from Stephen Raher, Prison Pol’y Initiative, to Richard Cordray, Director,
Consumer
Fin.
Prot.
Bureau
(Mar.
18,
2015)
[hereinafter
Raher
Letter],
https://static.prisonpolicy.org/releasecards/CFPB-comment.pdf [https://perma.cc/QGG2-GGYQ].
84. Katie Rose Quandt, Lawsuit Reveals How Tech Companies Profit off the Prison-Industrial
Complex, THINKPROGRESS (Feb. 9, 2018), https://thinkprogress.org/prison-technology-companiesinmates-9d4242805363/ [https://perma.cc/H2PZ-3E3D]. JPay is also just one player in the world of
privatized prison finance. Other companies such as Keefe Group, Numi Financial, and Rapid Financial
Solutions offer similar services. See id.
85. Id.
86. See WORTH RISES, supra note 55, at 60–64.
87. Debra Cassens Weiss, Can Jails Return Inmate Cash in the Form of Fee-Laden Debit
Cards?
9th
Circuit
Allows
Suit,
A.B.A.
J.
(Mar.
26,
2020),
https://www.abajournal.com/news/article/can-jails-return-inmate-cash-in-the-form-of-fee-laden-debitcards-9th-circuit-allows-suit [https://perma.cc/Y46A-CXZU].
88. Raher Letter, supra note 83, at 4.
89. Id.
90. Diallo, supra note 80.
91. See Raher Letter, supra note 83, at 5 (“This variation indicates that consumer fees are not
cost-based, but instead are merely a profit mechanism that is undisciplined by either regulatory oversight
or an efficient marketplace.”).

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individuals who lack banking access, 92 an especially salient consideration given
the overlap between communities that are most frequently unbanked and most
frequently incarcerated. 93 Some release card providers even suggest that
formerly incarcerated individuals continue to use their release cards in place of
a bank account by reloading the cards with additional funds after their initial
release money is spent. 94 Though a prepaid debit card may offer some utility to
an unbanked individual, the release card provider’s suggestion certainly fails to
account for the many practical shortcomings release cards pose, such as the
inability to pay for critically important expenses such as rent and the continued
exposure to abusive fees. Further, the fees associated with the everyday use of a
release card can actually make it more expensive than a retail check-casher. 95
Though there may be extremely limited circumstances in which a release card
would work to the benefit of a formerly incarcerated individual, those situations
are likely rare.
II.
THE REFORMIST APPROACH: LITIGATE, REGULATE, AND INCREASE ACCESS TO
BANKING
The harm inflicted by the prison financial system has sparked calls for
reform, and efforts to ameliorate that harm take many forms. This section will
examine three: (A) efforts to use the courts as a tool to recover the funds pilfered
from incarcerated individuals and their communities; (B) regulatory efforts
modeled after recent actions by the Federal Communications Commission
(“FCC”) to rein in excessive fees in prison telecommunications; and (C) reforms
aimed at increasing banking access for currently and formerly incarcerated
individuals.
A. Litigation: Useful Tool for Reform?
Litigation represents one potential pathway for incarcerated and formerly
incarcerated individuals to bring claims against prison operators for exploiting
them financially, but it is not without its structural difficulties. While significant
progress has been made by using the courts to seek relief from the economic
92. See What Iis ReleasePay?, RAPID FIN. SOLS. (Oct. 6, 2021), https://rpdfin.com/releasepay/
[https://perma.cc/557T-VWDV].
93. Compare FED. DEPOSIT INS. CORP., 2017 FDIC NATIONAL SURVEY OF UNBANKED AND
UNDERBANKED HOUSEHOLDS 69 (2017), https://www.fdic.gov/householdsurvey/2017/2017report.pdf
[https://perma.cc/N5UD-YAVZ] (“Unbanked rates for . . . [B]lack and Hispanic households, remain
substantially above the national average.”), with ASHLEY NELLIS, SENT’G PROJECT, THE COLOR OF
JUSTICE: RACIAL AND ETHNIC DISPARITY IN STATE PRISONS
14
(2016),
https://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-andEthnic-Disparity-in-State-Prisons.pdf [https://perma.cc/25LV-Z6VX] (“[Many states] exhibit
astounding rates of racial and ethnic disparity: African Americans are incarcerated in state prisons at
nearly five times the rate of [W]hites.”).
94. See What Iis ReleasePay?, supra note 92.
95. See Raher Letter, supra note 83, at 7.

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damage caused by release cards, opportunities to challenge exploitative money
transfer fees have yet to yield success. 96 Further, mandatory arbitration clauses
and class action waivers are nearly always included in release cards’ terms of
use. Despite these challenges, several lawsuits have successfully recovered
excessive release card fees from Bank of America and JPMorgan Chase under
state tort and consumer protection laws. Claims are also currently being brought
against JPay, Keefe, and Numi Financial, alleging, inter alia, violations of the
Electronic Fund Transfer Act (“EFTA”). Though litigation has unquestionably
yielded material success, its usefulness as a tool for reform is nonetheless limited
by restrictive contract provisions and the limitations of state and federal law.
1. Contractual Barriers to Recovery
One of the largest legal barriers to challenging release card issuers in court
is the near-universal inclusion of mandatory pre-dispute arbitration agreements
in the release cards’ terms of use. Though some providers, such as Numi, offer
users the ability to opt out of the arbitration agreement while still using the card,
the concealment of the relatively tedious opt-out procedure within prolix legal
writing makes this option inaccessible to the average person. 97 Others, such as
JPay, include no such option, 98 instead allowing users to opt out by sending in a
written notice and cutting the card in half. 99 This approach presents card users
with a false choice: with no alternative means of receiving their money, they can
either accept the release cards’ terms or forfeit their reentry funds.
The lack of any alternative means through which formerly incarcerated
individuals can receive their reentry funds has presented legal advocates with a
useful avenue to challenge arbitration clauses in court. Despite some outlying
results, this approach has been increasingly successful. Several recent challenges
to arbitration clauses in the release card context have yielded positive results,
with courts frequently holding that the usage of release cards is not voluntary
due to the lack of an alternative means of receiving payment. 100 Yet other adverse
96. Though at least one lawsuit has sought to challenge excessive money transfer fees, it was
unsuccessful. See Fayne v. Clipper, No. 12 CV 2500, 2013 WL 459895 (N.D. Ohio Feb. 6, 2013)
(dismissing case on the pleadings); see also JPay, Inc. v. Kobel, 904 F.3d 923 (11th Cir. 2018) (allowing
a claim based on excessive money transfer fees to proceed to arbitration).
97. See Raher Letter, supra note 83, Exhibit 3.
98. See
Payments
Terms
of
Service,
JPAY
(Aug.
18,
2021),
https://www.jpay.com/LegalAgreementsOut.aspx [https://perma.cc/69XU-Z3XQ].
99. Reyes v. JPay, Inc., No. CV 18-315-R, 2018 WL 10811497, at *1 (C.D. Cal. June 26, 2018).
100. See Reichert v. Keefe Commissary Network, No. C17-5848, 2018 WL 2018452, at *2
(W.D. Wash. May 1, 2018) (denying motions to compel arbitration because of a lack of mutual assent);
Brown v. Stored Value Cards, Inc., No. 15-cv-01370-MO, 2016 WL 755625, at *4 (D. Or. Feb. 25,
2016) (denying motion to compel arbitration because “[plaintiff] had to take the card and had to work
through the Defendants’ system in order to get her money back”); see also Regan v. Stored Value Cards,
Inc., 85 F. Supp. 3d 1357 (N.D. Ga. 2015), aff’d, 608 F. App’x. 895 (11th Cir. 2015) (ordering an
evidentiary hearing on whether a contract had been formed after Defendants argued that Plaintiff had
implied acceptance or ratified the cardholder agreement through his use of the release card (the case
settled before the evidentiary hearing)). Courts’ acknowledgment of recently released individuals’ lack

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outcomes indicate that any emerging consensus is far from universal within the
federal courts. 101
Class action waivers within release cards’ terms of use present a further
barrier to the successful recovery of formerly incarcerated individuals’ release
money. At least one major release card provider, JPay, now includes such a
provision within its terms of service. 102 Given the relatively small size of
individual claims, class actions represent the only realistic chance for formerly
incarcerated individuals to challenge release card purveyors in court. Though the
enforceability of such clauses is still being tested, the Supreme Court has found
them to be increasingly permissible in recent years. 103 As a result, the availability
of litigation (or arbitration) as a means of seeking restitution for formerly
incarcerated individuals may become more limited in the near future. Despite
these barriers, advocates have still demonstrated some degree of success
challenging prison financiers in court.
2. Claims Under State Tort and Consumer Protection Statutes
Some of the most noteworthy release card lawsuits have been class actions
brought under various states’ tort and consumer protection laws, which provide
vehicles for challenging both the release cards’ excessive fees and compulsory
acceptance. Two cases highlight the potential impact that these claims can have.
The first, Brill v. Bank of America, 104 involved individuals who were formerly
incarcerated by the State of Arizona. The second, Krimes v. JPMorgan Chase
Bank, N.A., 105 was brought on behalf of individuals incarcerated in the federal
prison system. Both suits resulted in settlements that returned some of the money
that the class of plaintiffs had lost to excessive fees, along with a cessation of
such practices by both financial institutions. 106 Though these lawsuits remain a
of choice is underscored by an outlier case in which the court granted a motion to compel arbitration
because the plaintiff had been given the option to receive his money via check. Pope v. EZ Card &
Kiosk LLC, No. 15-61046, 2015 WL 5308852, at *3 (S.D. Fla. Sept. 11, 2015) (“The Jail gave him an
option to receive a check, but Plaintiff elected to take the debit card instead. Plaintiff signed a form
which provided him with a choice of his refund options.”).
101. See Reyes, 2018 WL 10811497 (granting motion to compel arbitration because plaintiff was
apprised of the terms of use when he received the release card); Jones v. NetSpend Card Co., No. 17CV-304, 2018 WL 2427376, at *2 (W.D. Tex. May 30, 2018) (concluding that “the record demonstrates
a valid agreement to arbitrate between the parties” and granting motion to compel arbitration); see also
Oliver v. First Century Bank, No. 17cv620, 2017 WL 5495092 (S.D. Cal. Nov. 16, 2017) (granting
motion to compel arbitration on the question of the arbitration clause’s enforceability).
102. Payments Terms of Service, supra note 98.
103. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (holding that the Federal
Arbitration Act preempts state laws prohibiting class action waiver clauses); Am. Express Co. v. Italian
Colors Rest., 570 U.S. 228 (2013) (holding that prohibitively high arbitration costs are not a sufficient
reason to overrule a class action waiver clause).
104. No. CV-16-03817, 2017 WL 3047034, at *1 (D. Ariz. Apr. 14, 2017) (granting motion for
preliminary approval of class settlement).
105. No. 15-5087, 2016 WL 6276440 (E.D. Pa. Oct. 26, 2016).
106. See Erik Larson, JPMorgan Pays Inmates for Fees on Get-Out-of-Jail Debit Card, CHI.
TRIB. (Aug. 5, 2016), https://www.chicagotribune.com/business/ct-jpmorgan-inmate-debit-card-

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potentially powerful tool in the fight to curtail the exploitative behavior of
release card vendors, the impact of these settlements is limited by the lack of
enhanced damages provided by many state consumer protection statutes. 107
While banks are required to return any ill-gotten funds, there is no further
monetary punishment and thus little disincentive for further harmful behavior.
Though these laws are not always an effective tool for recovering stolen funds
and deterring further exploitative behavior, activists continue to develop other
pathways to seek restitution for incarcerated individuals through litigation.
3. Brown v. Stored Value Cards and the Future of Litigation Under the
EFTA
Two recent developments have opened up new opportunities for advocates
to leverage the EFTA’s prepaid card provision 108 to challenge release card
vendors’ predatory practices. 109 The prepaid card provision prohibits providers
of general-use prepaid cards from charging dormancy, inactivity, and service
fees unless certain disclosure requirements are met, and the card has remained
inactive for a period of twelve months. 110 However, the regulation includes a
specific exemption for financial instruments that are “not marketed to the general
public.” 111 Thus, advocates must resolve two questions to bring claims under the
provision: (1) whether release cards fall under the definition of general-use
prepaid card; and (2) whether they are marketed to the general public. Though
the answer to these questions was unclear in the past, a recent rulemaking by the
Consumer Financial Protection Bureau (CFPB), along with the Ninth Circuit’s
ruling in Brown v. Stored Value Cards, 112 have provided would-be claimants
with a greater degree of clarity.
20160805-story.html [https://perma.cc/4PH7-ZSMR]; Derek Gilna, Settlements in Arizona DOC, BOP
Lawsuits over Release Debit Card Fees, PRISON LEGAL NEWS (Mar. 6, 2018),
https://www.prisonlegalnews.org/news/2018/mar/6/settlements-arizona-doc-bop-lawsuits-overrelease-debit-card-fees/ [https://perma.cc/49V9-EA99].
107. See NAT’L CONSUMER L. CTR., CONSUMER PROTECTION IN THE STATES: STATE-BYSTATE SUMMARIES OF STATE UDAP STATUTES – APPENDIX B 23 (2009),
https://www.nclc.org/images/pdf/udap/analysis-state-summaries.pdf [https://perma.cc/FX9X-ECYZ].
Only twenty-five states and the District of Columbia provide double or treble damages, though seven
other states expressly authorize some form of punitive damages. See generally NAT’L CONSUMER L.
CTR., CONSUMER PROTECTION IN THE STATES: A 50-STATE EVALUATION OF UNFAIR AND DECEPTIVE
PRACTICES
LAWS
44
(2018),
https://www.nclc.org/images/pdf/udap/udap-report.pdf
[https://perma.cc/3NNN-VEW7].
108. 15 U.S.C. § 1693l-1.
109. This section builds on the excellent work of the National Consumer Law Center. A more
thorough analysis of release card litigation under the EFTA can be found at ARIEL NELSON BRIAN
HIGHSMITH, ALEX KORNYA & STEPHEN RAHER, NAT’L CONSUMER L. CTR., COMMERCIALIZED
(IN)JUSTICE LITIGATION GUIDE: APPLYING CONSUMER LAWS TO COMMERCIAL BAIL, PRISON RETAIL,
AND PRIVATE DEBT COLLECTION 48–51 (2020), https://www.nclc.org/images/pdf/criminaljustice/WP_Litigation_Guide.pdf [https://perma.cc/N89V-UAKQ].
110. 15 U.S.C. § 1693l-1(b)(2).
111. Id. § 1693l-1(a)(2)(D)(iv).
112. 953 F.3d 567 (9th Cir. 2020).

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The CFPB’s 2016 amendment to Regulation E, which implements the
EFTA, clarified that the type of accounts governed by the statute include
“prepaid account[s],” which likely includes prison release cards. 113 The CFPB’s
commentary even goes so far as to explicitly mention prison release cards as a
type of account covered by the updated regulation. 114 This regulatory guidance
indicates that the EFTA’s prepaid card provision is applicable to prison release
cards.
The Ninth Circuit recently answered the question of whether prison release
cards fall under the provision’s public marketing exception in Brown. The case
involved a plaintiff, Danica Brown, who was arrested for participating in a public
protest and forced to turn over $30.97 when she was taken into custody. 115 The
Multnomah County jail where she was briefly held “contracted with Numi to
return released inmates’ funds via prepaid debit cards,” 116 and Brown was given
such a card when she was released. 117 Numi contended that its release cards were
not marketed to the general public because “inmates are not the general public,”
and they “did not directly market the cards to inmates.” 118 But the Ninth Circuit
concluded otherwise. 119
Two key findings in Brown help explain the court’s conclusion. First, the
court observed that because the cards are issued when individuals “are released
from jail or prison,” they have “rejoin[ed] the general public.” 120 Put another
way, the question of whether incarcerated individuals are members of the general
public is moot because the cards are only ever issued to the formerly
incarcerated. The court also held that, despite a lack of direct marketing targeting
formerly incarcerated individuals, the cards were indirectly marketed to them
through representations made to “municipalities and correctional facilities.” 121
Because Numi expected and intended for the county to provide the advertised
release cards, and formerly incarcerated individuals had no choice but to accept
them, the marketing directed at county officials satisfied the CFPB’s articulated
standard for indirect marketing. 122 The decision in Brown, coupled with the
CFPB’s clarification of Regulation E, presents a clear path forward for release

113. 12 C.F.R. § 1005.2(b)(3) (2020). The CFPB’s official interpretation further clarifies that the
term “prepaid account” includes accounts “loaded with funds when [they are] first provided to the
consumer for use.” Id.
114. See Prepaid Accounts Under the Electronic Fund Transfer Act (Regulation E) and the Truth
in Lending Act (Regulation Z), 81 Fed. Reg. 83,934, 83,968 (Nov. 22, 2016) (“The Bureau notes . . .
that the final rule’s definition is broad enough to . . . include . . . prison release cards that meet the other
criteria set forth in the definition.”).
115. Brown, 953 F.3d at 571–72.
116. Id. at 570.
117. Id. at 571.
118. Id. at 573.
119. Id.
120. Id.
121. Id.
122. Id. (citing 12 C.F.R. § 1005.20(b)(4) (2019)).

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card litigation under the EFTA. Free from the ambiguity surrounding the prepaid
card provision, future litigants can ground challenges to release card vendors’
abusive practices in a clearer understanding of the EFTA’s applicability to debit
release cards.
Litigation is rightfully viewed as a useful tool in recouping funds that have
been stolen from formerly incarcerated individuals via exploitative release cards,
but the recovery it provides is reactionary and jurisdictionally limited. Lawsuits
brought by the plaintiffs’ bar require a violation to take place before a response
can begin the tedious process of navigating the legal system. Recovery, if it is
ever obtained, can arrive too late to make a meaningful difference in the lives of
those who have had their reentry funds stolen from them. Past victories are also
limited by the multitude of jurisdictions within the U.S. legal system. Absent a
favorable decision from the Supreme Court, the issue would need to be
relitigated successfully in multiple circuits before a durable precedent would
form. Such a result could take years to achieve, and during that time release cards
will continue to extract money from formerly incarcerated individuals
attempting to rejoin their communities. Given these limitations, other reform
efforts have sought to address the problem closer to the source.
B. Prison Telecommunications: A Blueprint for Regulating Prison
Finance?
Though not identical, the inmate communications services (“ICS”) industry
and the prison finance industry occupy similarly structured spaces within the
larger prison industrial complex. Both are dominated by a handful of
consolidated private firms, 123 and both rely on a business model that coerces
prison operators into providing the firms with exclusive access to their
incarcerated market in exchange for lucrative kickbacks. 124 Both industries have
also played host to systematic financial abuse. 125 While money transfer fees and
release cards have served as the primary vehicles for the prison finance industry,
the ICS industry is built on drastically inflated communications costs. Telecom

123. Global Tel*Link and Securus control a collective 70% of the ICS industry. See Zachary
Fuchs, Behind Bars: The Urgency and Simplicity of Prison Phone Reform, 14 HARV. L. & POL’Y REV.
205, 209 (2019). As recently as 2015, JPMorgan Chase had exclusive control of the financial industry
in federal prisons, while state and local prisons and jails contract with several companies, the largest
being JPay, Inc. (now owned by Securus). See Diallo, supra note 80.
124. ICS industry contracts “almost always involve kickbacks.” Fuchs, supra note 123, at 210.
In the prison finance industry, “both Keefe Group and JPay agree to provide contracting facilities with
a ‘commission’ (kickback) for each deposit received into a trust account.” Raher Letter, supra note 83,
at 11. Release cards also carry a financial incentive for prison operators because they allow operators to
off-load a tedious and expensive task. See Brown, 953 F.3d at 569 (“[The process of providing formerly
incarcerated people with cash or check] was considered by Multnomah County to be expensive and time
consuming: Multnomah County estimates that it spent about $275,000 in labor costs annually and two
to three staff hours per day handling inmates’ cash.”).
125. See generally Fuchs, supra note 123, at 208–13 (detailing the history and negative effects
of the ICS industry).

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providers have charged rates as high as $1 per minute to contact friends and
family on the outside, sums that place even more fiscal pressure on incarcerated
individuals and their already strained budgets. 126
Regulatory authorities have shown a willingness in recent years to curtail
the excesses of the ICS industry. Recent action taken by the FCC has capped
many of the fees associated with prison telecommunications, 127 and many state
prisons have lowered rates for both in-state and out-of-state calls as a result. 128
While the FCC eventually caved to public pressure and acted to partially curtail
some of the abuses of the ICS industry, similar calls for regulation of the prison
financial system have been less successful. Advocates have long called for
increased choice of medium for formerly incarcerated individuals’ release
money disbursement, 129 but thus far those calls have failed to spark
comprehensive action from the CFPB. 130
One possible explanation for why the CFPB hasn’t been able to fully curtail
the usage of debit release cards is that they simply lack the authority to impose
such a sweeping change. The EFTA has been the primary focus of advocates, 131
but the reality is that it’s not a perfect fit for regulatory action directed at
expanding formerly incarcerated individuals’ choice of medium when receiving
their release money. 132 The EFTA focuses on strengthening disclosure
requirements in the hopes that informed consumers will make decisions that are
in their own financial self-interest. In situations where such choice is impossible,
it is unclear if the law could be interpreted to provide the protection sought by
reform advocates.
The regulatory approach, though it is useful in certain respects, is illequipped to produce durable results within the decentralized carceral framework
126. See Peter Wagner & Alexi Jones, State of Phone Justice: Local Jails, State Prisons and
Private
Phone
Providers,
PRISON
POL’Y
INITIATIVE
(Feb.
2019),
https://www.prisonpolicy.org/phones/state_of_phone_justice.html [https://perma.cc/HF9A-U5ZP].
127. See Press Release, Fed. Commc’n Comm’n, FCC Takes Next Big Steps in Inmate Calling
Rates (Oct. 22, 2015), https://www.fcc.gov/document/fcc-takes-next-big-steps-reducing-inmatecalling-rates [https://perma.cc/E5ED-4KMX]; Peter Wagner, FCC Commissioners Reveal Details of
their Proposal to Protect All Families of Incarcerated People, PRISON POL’Y INITIATIVE (Oct. 1, 2015),
https://www.prisonpolicy.org/blog/2015/10/01/clyburn-proposal/ [https://perma.cc/E5RZ-TXA6].
128. See Wagner, supra note 127; Wagner & Jones, supra note 126.
129. See Raher Letter, supra note 83, at 6–7.
130. See Aleks Kajstura, A Partial Victory: Release Cards Included in CFPB’s New Regulations,
PRISON POL’Y INITIATIVE (Oct. 5, 2016), https://www.prisonpolicy.org/blog/2016/10/05/cfpb/
[https://perma.cc/W4A2-Z4KF] (“Prison Policy Initiative had argued that correctional facilities should
be prohibited from requiring that people receive their money on prepaid cards. The CFBP [sic] declined
to impose such a prohibition at this time.”).
131. See Raher Letter, supra note 83, at 7–8.
132. See RAHER, supra note 67, at 63 (“[T]he law is largely concerned with preventing
unauthorized transactions, which does not appear to be a widespread problem in prison retailing. Rather,
the primary problem is exorbitant fees, but EFTA contains little direct regulation of fees, instead favoring
disclosure of costs under the premise that consumers will make informed choices. In the context of
correctional banking, the EFTA’s emphasis on disclosure is an ill fit, since consumers have no
meaningful choice in financial companies.” (internal citations omitted)).

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of the United States. Even if a regulatory body can be persuaded to act, which
can take several years and face varying challenges depending on the political
climate du jour, that action is often limited by the restricted tools that each
agency has to effect change. As such, a commitment to working within the
existing system to ameliorate the harm caused by the prison industrial complex
will likely end in disappointment.
C. Pathways to Consumer Banking for Incarcerated Individuals
In addition to harming incarcerated individuals through exploitative fees
and financial instruments, the existing prison financial system also denies them
any opportunity to engage with the financial institutions and tools that they will
rely on when they are free. Formerly incarcerated individuals already face
myriad financial barriers upon reentry, some of which can potentially be
removed by increased access to financial services. As such, reformists have
worked to increase the ties between incarcerated and formerly incarcerated
individuals and traditional financial institutions.
1. The Challenges of Being Unbanked
When Martize Tolbert was released from prison in 2013, he faced a
seemingly insurmountable debt from his contact with the criminal legal system,
and his financial challenges were compounded by the fact that he also faced
numerous barriers to opening a bank account. 133 Without access to a permanent
address or government-issued identification, many people like Martize lack the
necessary tools to begin the process of opening an account. 134 Those that make
it past the first step are often penalized and discriminated against if they have a
checkered financial history, which is common among formerly incarcerated
individuals. 135
Living without a bank account can lead to cascading financial crises.
Unbanked individuals are a frequent target of the predatory payday loan
industry, 136 and between twenty and forty percent of unbanked individuals living
in large urban areas rely on commercial check cashing services that charge
exorbitant fees for basic financial services. 137 Many unbanked individuals also
rely on prepaid debit cards to conduct everyday transactions. 138 Though prepaid
133. See David Benoit, Ex-Inmates Struggle in a Banking System Not Made for Them, WALL ST.
J. (Oct. 31, 2020), https://www.wsj.com/articles/ex-inmates-struggle-in-a-banking-system-not-madefor-them-11604149200 [https://perma.cc/P5S2-NL9A].
134. Id.
135. See id.
136. See Marc D. Glidden & Timothy C. Brown, Separated by Bars or Dollar Signs? A
Comparative Examination of the Financial Literacy of Those Incarcerated and the General Population,
42 AM. J. CRIM. JUST. 533, 536–37 (2017).
137. See id. at 537.
138. See JEAN ANN FOX & PATRICK WOODALL, CONSUMER FED’N OF AM., CASHED OUT:
CONSUMERS PAY STEEP PREMIUM TO “BANK” AT CHECK CASHING OUTLETS 9–10 (2006),

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cards obtained at check cashing outlets often have fewer fees than the release
cards foisted upon formerly incarcerated individuals, the average card still costs
$10.86. 139 Reliance on off-the-grid financial instruments also prevents unbanked
individuals from building and accessing credit, which can jeopardize future
financial prospects. 140 For Martize, lingering court debt and a lack of access to
financial services left him unable to obtain a driver’s license. 141 When he was
pulled over while driving to work, he faced greater fines that put him further in
debt. 142
2. Bank Accounts and Recidivism Rates
Given the potential role that banking access can play in assisting formerly
incarcerated individuals with reintegration, reformists have suggested that
strengthening the relationship between incarcerated individuals and external
financial institutions can reduce recidivism rates. Examples from the United
Kingdom and United States suggest a correlation between banking access and
successful reintegration, but the proposed pathways are also contingent on the
willingness of traditional banks—which often lack interest in a formerly
incarcerated individual’s successful reentry—to embrace the proposed reform.
The United Kingdom was one of the first countries to experiment with
building a pathway for currently and formerly incarcerated individuals to open
bank accounts. Several large banks, including Halifax and Barclays, piloted
programs that allowed formerly incarcerated individuals to gain access to
financial services in the mid-late 2000s. 143 A survey of participants in one such
program found that only thirty-nine percent reoffended, notably lower than the
national average of sixty percent. 144 Research from the United States, though not
directly comparable, suggests a similar relationship between banking access and
recidivism. A recent survey of formerly incarcerated residents of Pennsylvania
found that seventy-three percent of “successful reentrants” had an account with
a credit union or a bank. 145 Conversely, that same survey found that “[o]f
https://consumerfed.org/pdfs/CFA_2006_Check_Cashing_Study111506.pdf [https://perma.cc/3FZ946GK].
139. Id. at 10.
140. See Tony Armstrong, The Cost of Being Unbanked: Hundreds of Dollars a Year, Always
One Step Behind, NERDWALLET, https://www.nerdwallet.com/blog/banking/unbanked-consumerstudy/ [https://perma.cc/28RA-XJ6V].
141. See Benoit, supra note 133.
142. See id.
143. See Bank Accounts and Insurance: Access in Prison and Beyond, PRISON REFORM TRUST
(Nov.
20,
2012),
http://www.prisonreformtrust.org.uk/PressPolicy/Parliament/AllPartyParliamentaryPenalAffairsGroup
/BankaccountsinsuranceNovember2012 [https://perma.cc/B98X-272R].
144. Colin Shek, Barclays Launches Prisoner Bank Accounts Scheme, GUARDIAN (Sept. 28,
2010),
https://www.theguardian.com/money/2010/sep/28/barclays-prisoner-bank-accounts
[https://perma.cc/Q8UZ-CKS7].
145. JOHN E. WETZEL & ROBIN L. WIESSMANN, FINANCES AFTER PRISON, A COLLABORATIVE
APPROACH
2
(2018),

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unsuccessful reentrants (those recidivating before three years) only thirty-nine
percent had accounts.” 146 These results suggest a correlation, but still leave many
questions unanswered.
Efforts to build pathways between prisons and banks require that the
destination banks demonstrate a willingness to accept a demographic group
frequently viewed as high-risk into their customer base. This is by no means
assured. In fact, Prisoner Assistant, a private service that offered to open and
maintain bank accounts on behalf of incarcerated individuals, was forced to shut
down when Wells Fargo suddenly closed their clients’ accounts without
explanation. 147 While this incident is not necessarily indicative of the industry’s
attitude as a whole, it creates doubt about whether traditional banks are best
positioned to assist formerly incarcerated individuals as they seek to reintegrate.
Traditional banks have little, if any, incentive to act in the best interest of
low-income individuals. Indeed, the banking industry has adapted itself to
primarily address the needs of wealthy individuals and corporate interests. 148
Banks’ overhead costs are the same regardless of the size of a loan, but “the
larger loan yields a much higher profit.” 149 Faced with this reality, it is
unsurprising that formerly incarcerated individuals—an overwhelmingly lowincome demographic group—are not well-served by the financial services sector.
Further, two of the largest banks in the United States, JPMorgan Chase and
Bank of America, issued exploitative debit release cards to individuals formerly
incarcerated in federal prison. Banks have no imperative to act in the interest of
the general public, much less incarcerated and formerly incarcerated individuals,
and efforts to build banking relationships between the two groups should be
approached with some degree of skepticism. And even if this reform approach is
widely pursued, advocates should be vigilant about further exploitative behavior.
III.
ABOLISHING THE PRISON FINANCIAL SYSTEM
Thus far, this Note has largely contextualized the existing practices that
have come to define the prison financial system and explored contemporary
efforts to rein in the abuses of the system, as well as the challenges those efforts
face. The remaining section will take on a new project: exploring the advantages
of addressing the prison financial system through the lens of abolition and
https://www.dobs.pa.gov/Documents/Publications/Reports/Financial%20Capability%20for%20Reentr
y.pdf [https://perma.cc/9ZSB-AYZS].
146. Id.
147. See Joe Palazzolo, Wells Fargo Cuts Ties with Prisoner Banking Service, WALL ST. J. (Dec.
1, 2014), https://www.wsj.com/articles/BL-LB-49949 [https://perma.cc/6JPV-HKMC].
148. See MEHRSA BARADARAN, HOW THE OTHER HALF BANKS: EXCLUSION, EXPLOITATION,
AND THE THREAT TO DEMOCRACY 64 (2015).
149. Id. at 140 (“Several barriers keep mainstream banks from serving the poor—the most
important is simple math. Banks can make much higher profits elsewhere. The poor may need banks,
but banks most definitely do not need the poor.”).

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articulating a non-reformist alternative that replaces the prison financial system
with a community-centered solution.
A. The Limitations of Reform
There is a critical distinction to be drawn between reforms that leave the
overall architecture of the prison system largely intact—including the efforts
examined within this Note—and those that seek to build towards the abolition of
the system entirely. 150 The difference between these two camps is drawn along
both ideological and methodological lines. While it is readily apparent at times
how the two schools of thought differ, it is decidedly less clear at others.
The abolitionist group Critical Resistance characterizes the difference
between reform and abolition as one of vision, explaining that “[t]he abolitionist
keeps a constant eye on an alternative vision of the world in which the [prison
industrial complex] no longer exists, while the reformist envisions changes that
stop short of this.” 151 While abolitionists view their work as “both a
deconstructive and imaginative project,” 152 reformists instead “advance
critiques . . . that do not question underlying premises or advance alternative
futures.” 153 But this disconnect exists in spite of the fact that both ideological
groups are often drawn to support similar policies. 154 As Professor Amna Akbar
explains, “whether something is non-reformist or reformist is about more than
the nature of the demand and its particulars: it is also a question of how the
campaign is waged.” 155 This section will explore how the limitations of reformist
politics, including both the range of solutions that they consider viable and the
durability of the solutions they champion, explain why some of the campaigns
pursued by each group can overlap even while their overarching perspectives
differ radically. 156
1. The Reformist View Is Narrow
One of the critical limitations of the reformist view is that it often dismisses
demands that challenge the institutional legitimacy of the prison system. The
reformist view sees incarceration as a regrettable but necessary part of our
society. 157 While it is acceptable to view carceral overabundance as a problem
150. See, e.g., Dan Berger, Mariame Kaba & David Stein, What Abolitionists Do, JACOBIN (Aug.
24,
2017),
https://www.jacobinmag.com/2017/08/prison-abolition-reform-mass-incarceration
[https://perma.cc/6327-BY35].
151. CRITICAL RESISTANCE, ABOLITIONIST STEPS 1 (2012), http://criticalresistance.org/wpcontent/uploads/2012/06/Ab-Toolkit-Part-6.pdf [https://perma.cc/89EF-DNS4].
152. Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 461 (2018).
153. Amna A. Akbar, Demands for a Democratic Political Economy, 134 HARV. L. REV. F. 90,
103 (2020) [hereinafter Akbar, Demands].
154. See CRITICAL RESISTANCE, supra note 151, at 1.
155. Akbar, Demands, supra note 153, at 102.
156. See id.
157. See, e.g., Andrew D. Leipold, Is Mass Incarceration Inevitable?, 56 AM. CRIM. L. REV.
1579, 1584–85 (2019).

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in dire need of reform, the idea that incarceration could be abolished entirely
fails to gain any meaningful traction. Conversely, abolitionists take as their
starting point the idea that incarceration itself is a symptom of much larger social,
economic, and political problems. Rather than helping solve those problems,
incarceration only perpetuates them. The reformist focuses on correcting the
course of a misguided prison system, while the abolitionist travels towards an
entirely different destination.
The commitment of the reformist view to repairing the perceived flaws of
the prison system has real consequences. As a result of placing reform efforts at
the center of the conversation, the debates “which should be the focal point of
our conversations on the prison crisis” are pushed to the margins. 158 Nowhere is
this more acutely evident than in the divergent reactions to the ongoing police
brutality against Black people—crisis that has provoked calls for dismantling
from abolitionists and similar resistance from reformists. As Professor Akbar
explains:
[T]he prevailing frame for thinking about solutions remains focused on
reforming the police. Police are taken as a necessary social good: they
ensure our safety, maintain law and order, protect us from violence and
anarchy, and prevent and punish crime in socially valuable ways.
Scholars locate the problem with police violence as a problem for
regulation. . . . But there is no way to redress police violence without
acknowledging the centrality of violence to their function or the scale,
history, and power of the institution. 159
The parallels between incarceration and policing as tools of Black
subjugation render the latter an insightful tool in evaluating the limitations of the
reformist approach on both fronts. Just as the modern prison system exists in the
shadow of the Black Codes and convict leasing, the modern police force traces
its roots to slave patrols and the Ku Klux Klan. 160 These early institutions existed
largely to “monitor, control, suppress, and kill Black and Indigenous people,” 161
and their current incarnations continue this shameful legacy. While the murder
of George Floyd and the protests that followed marked a turning point in the
dialogue surrounding police abolition, 162 few substantive changes were actually
made to major metropolitan police budgets in the succeeding months. 163
158. DAVIS, supra note 16, at 20.
159. Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 CALIF. L. REV. 1781,
1802 (2020) [hereinafter Akbar, An Abolitionist Horizon].
160. See id. at 1817–18.
161. Id. at 1818.
162. See id. at 1783 (explaining how the protests following the murder of George Floyd
“catapulted prison and police abolition into the mainstream. . . .”).
163. Though New York City cut $1 billion from their police budget, critics maintain that many
of the changes were illusory. See, e.g., Dana Rubinstein & Jeffery C. Mays, Nearly $1 Billion Is Shifted
From Police in Budget That Pleases No One, N.Y. TIMES (Aug. 10, 2020),
https://www.nytimes.com/2020/06/30/nyregion/nypd-budget.html
[https://perma.cc/B26W-E4QP].
For example, the proposed budget relocated $400 million spent policing schools from the Police

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Within the reformist framework, efforts to defund, dismantle, and
delegitimize police forces are met with reactions that range from cautious
skepticism 164 to outright hostility. 165 The rejection of views that are
“incompatible with the preservation of the system” 166 silences important
discussions about the role police should play in society. Similarly, reformists’
decision to devote their energy to improving the existing prison system
strengthens the “stultifying idea that nothing lies beyond the prison.” 167 By
limiting themselves to reforms that fail to challenge the racist and violent
systems that they claim to oppose, reformists’ efforts instead further legitimize
and strengthen these systems. 168
2. Reformist Solutions Are Fragile
Reformists’ willingness to preserve the underlying structure of the prison
system also undermines many of the changes they have successfully pushed.
Consider the recent FCC actions to curb financial exploitation in prison
telecommunications, introduced earlier as an example of regulatory “success.”
While the FCC’s reforms—including capping the cost of out-of-state phone calls
and eliminating some abusive fees—undeniably reduced the harm inflicted upon
incarcerated individuals, advocates acknowledge that their progress has largely
been limited to state-run prisons. 169 In county- and city-run prisons and jails,
which are home to approximately 630,000 incarcerated individuals, phone calls
can still cost up to $1 per minute. 170 Further, many of the hidden fees displaced
by the FCC’s regulatory action found new homes elsewhere in the chain of
transactions required to communicate with incarcerated individuals. 171
Companies such as Western Union and MoneyGram now charge as much as
double their usual fee for payments made to prison telecommunications

Department to the Department of Education, despite the fact that “[t]he Department of Education already
funds the school safety program, sending some $300 million a year to the Police Department.” Id. Other
cities, such as Washington D.C., have increased their police budgets. See James Doubek, D.C. Mayor
Muriel Bowser: ‘Not at All’ Reconsidering Police Funding, NPR (June 10, 2020),
https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/10/873371574/d-cmayor-muriel-bowser-not-at-all-reconsidering-police-funding [https://perma.cc/T9DU-8ZYP].
164. See Nolan D. McCaskill, ‘Defund the Police’ Faces Skepticism – Even in Deeply Liberal
Cities, POLITICO (June 19, 2020), https://www.politico.com/news/2020/06/19/defund-the-policemovement-faces-skepticism-328084 [https://perma.cc/SGW3-JA6M].
165. See Robert Verbruggen, Cities Need Better Policing – Not Depolicing and Riots, NAT’L
REV. (June 5, 2020), https://www.nationalreview.com/2020/06/cities-need-better-policing-notdepolicing-and-riots/ [https://perma.cc/CJG7-4YYB].
166. Akbar, Demands, supra note 153, at 103.
167. DAVIS, supra note 16, at 20.
168. See Akbar, An Abolitionist Horizon, supra note 159, at 1814 (“[T]he conventional reform
agenda . . . invites investments in police and, therefore, builds the power and legitimacy of police,
including their discretion for violence.”).
169. See Wagner & Jones, supra note 126.
170. Id.
171. See id.

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providers such as Securus. 172 A portion of these excessive fees are then kicked
back to the telecommunications provider through payment channels that are
beyond the regulatory authority of the FCC. 173 This illustrates the pitfalls
inherent in attempting to solve systemic problems with isolated reforms, and
those hoping for similar action by the CFPB to rein in the prison financial system
would do well to temper their expectations.
B. The Alternative: Non-Reformist Reform
Non-reformist reforms reject the idea that the prison system can be fixed,
and instead aim to “reduce the power of an oppressive system while illuminating
the system’s inability to solve the crises it creates.” 174 Despite the widespread
preference within abolitionist circles for non-reformist reforms, the demarcation
between reformist and non-reformist demands is not clearly drawn. This section
clarifies the distinction between the two and explores some of the guiding
principles of non-reformist reforms.
1. Defining Ideological Differences in Framing and Motivation
The distinction between reformist and non-reformist organizing is difficult
to discern when each ideological group is reduced to the demands that it makes
of the carceral state. Differences become clearer when the motivations behind
and framing of those demands are drawn into focus. Consider the ongoing
litigation in Brown v. Stored Value Cards. In the most recent decision, the court
commented that the private prison financier should not “be able without
restriction to provide cards to released inmates who have not asked for them and
who are likely to end up with less money than was taken from them.” 175 Two
things are implicit in the court’s statement: first, that the state has a fundamental
right to control the financial identity of an incarcerated individual; and second,
that private companies with a history of predatory practices should still be
allowed to manage an incarcerated individual’s finances—but should simply be
restricted in how they do so. While many reform advocates considered this
decision to be a clear victory, 176 the abolitionist perspective calls for a more
cautious endorsement. Though the decision is a step towards reducing the harm
caused by release cards, it simultaneously reaffirms the state’s authority to strip
incarcerated individuals of their financial autonomy.

172. See id. Both Western Union and MoneyGram charge a standard price of $6.00 for transfers
to most companies, but that rate goes up to almost $12.00 for payments made to Securus. Id.
173. See id.
174. Berger et al., supra note 150.
175. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 576 (9th Cir. 2020) (emphasis added).
176. See, e.g., Press Release, Hum. Rts. Def. Ctr., Ninth Circuit Court of Appeals Agrees That
Debit Card Companies Cannot Financially Exploit Prisoners Without Restriction (Mar. 17, 2020),
https://www.prisonlegalnews.org/media/pdfs/HRDC_press_release_re_Ninth_Circuit_debit_cards.pdf
[https://perma.cc/7VE3-A5H5].

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Herein lies a key difference between reform and abolition. While a
reformist might be content with a procedural success that brings them one step
closer to their material goal, an abolitionist grounds their objection to the abusive
practice in a rejection of the underlying structure that aids and abets symbiosis
between private industry and the carceral state. As Professor Akbar explains,
alignment with either the abolitionist or reformist approach “reflect[s]
ideological commitments, critiques of or acquiescence to underlying systems,
aspirations for the future, and theories of change.” 177 Reformist demands are
content with leaving the underlying structure of the prison industrial complex
uninterrogated. Though the concrete actions pursued by abolitionists may work
in the short term towards the same material end, they are motivated by the longterm goal of bringing an end to the carceral state as a whole. From the abolitionist
perspective, a victory that legitimates the power of the carceral state or private
industry—even while acknowledging certain contexts in which it is
unacceptable—is no victory at all.
2. Abolitionist Politics Demand Concrete Alternatives
One of the defining ideological repercussions of prison abolitionists’
refusal to accept the legitimacy of the carceral state is the need to articulate a
system that can replace it. This project has long been at the core of abolitionist
thought. W.E.B. Du Bois argued that one of the great failures of the abolition of
chattel slavery in the wake of the Civil War was the dearth of institutional power
set forth with the express goal of “the uplift[ing] of slaves and their eventual
incorporation into the body civil, politic, and social, of the United States.” 178 For
this reason, Du Bois contended that abolition was accomplished only in the
negative sense, while the positive project was left unfinished. 179
Professor Angela Davis places Du Bois’s call for positive institutional
development within the context of prison abolition, explaining that “[prison
abolitionists] would propose the creation of an array of social institutions that
would begin to solve the social problems that set people on the track to prison,
thereby helping to render the prison obsolete.” 180 But this call to action also
leaves two important questions unanswered: what should these new institutions
look like and how should they work to advance the cause of abolition? Though
there is no single answer to these questions, modern abolitionist scholarship has
come to embrace broad positional requirements for proposed alternative
institutions.

177. Akbar, Demands, supra note 153, at 104.
178. W. E. B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 189 (Transaction Publishers
2014).
179. See ANGELA Y. DAVIS, ABOLITION DEMOCRACY: BEYOND EMPIRE, PRISONS, AND
TORTURE 95 (2005).
180. Id. at 96.

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Traditional abolitionist scholarship maintained that alternative institutions
must be both competitive with and contradictory to the existing systems they
seek to replace. 181 Norwegian sociologist and abolitionist pioneer Thomas
Mathiesen explained that contradiction was a necessary feature of any true
alternative to the existing prison system because it protected that alternative from
being subsumed by existing reform efforts. Correspondingly, competition was
necessary because confronting a “satisfied system-member” with a competing
alternative was the best way to expose the insufficiency of their satisfaction,
thereby motivating a change in attitude. 182 While Mathiesen’s view continues to
influence abolitionist scholarship, more recent work has sought to articulate
clearer guiding principles for the positive project of prison abolition. 183
One of the emerging principles in contemporary abolitionist scholarship is
the importance of power shifting as a central focus within proposed nonreformist reforms. Power shifting seeks to place control over harm-producing
institutions, such as the police or the prison system, within the low-income,
Black, Latinx, and Indigenous communities that are most directly affected by
those institutions. 184 Professor Jocelyn Simonson explained power shifting as not
simply questioning “whether voices are heard,” but whether historically
marginalized communities are given “direct political power: the ability . . . to
influence policy outcomes . . . and control the distribution of state resources.” 185
This focus is rooted in a fundamental recognition that historically marginalized
communities possess an experiential understanding of the carceral state that is
critical to imagining and working towards a post-prison society. 186 Further, the
focus on power shifting sends an important message that the composition of the
movement—its decision makers, thought leaders, and community groups—is
more important than any single material goal. 187
Perhaps unsurprisingly, the focus on where and how power is located
within the abolitionist movement has led many contemporary scholars and
activists to champion community-centered alternatives to the police or the prison
system. These alternative systems take many forms. For example, Critical
Resistance’s Oakland Power Projects have developed “Know Your Options”
workshops designed to educate historically marginalized communities on
alternatives to police intervention in health crises. 188 Elsewhere, organizations
181. See THOMAS MATHIESEN, THE POLITICS OF ABOLITION REVISITED 47–48 (2015).
182. Id. at 48.
183. See Akbar, Demands, supra note 153, at 100–02 (observing that “[o]rganizers are
increasingly invoking non-reformist reforms” and “focus[ing] on the ideological scaffolding of carceral
control”).
184. See, e.g., id. at 94.
185. Jocelyn Simonson, Police Reform Through a Power Lens, 130 YALE. L.J. 778, 803–04
(2021).
186. Id. at 805–06, 812.
187. Id. at 812.
188. See Oakland Power Projects, Power Project #1: Healthcare, OAKLAND POWER PROJECTS,
https://oaklandpowerprojects.org/healthcare [https://perma.cc/3R6Z-D7TC].

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such as “Sistas Liberated Ground,” a collective of women of color based out of
Brooklyn, have worked to “empower[] vulnerable individuals to keep
themselves safe” by holding members of the community accountable for
domestic violence. 189 Alternatives to the existing systems of policing and
incarceration also exist in various stages of development. The two examples
mentioned already prove themselves to be viable alternatives, but other ideas—
such as proposed frameworks for the complete community control of police
forces 190—exist at a largely theoretical level. The abolitionist movement seeks
to nurture new and bold ideas from inception to action, while also recognizing
that practices of abolition are readily available already. 191 This work is far from
complete, but recognition of and respect for the role that abolition can play in the
dismantling of the prison industrial complex continues to grow.
C. Community Development Financial Institutions: An Alternative to the
Prison Financial System
The work of articulating alternatives to the prison system is being done on
a number of different fronts, 192 and this section will open yet another by
articulating a concrete alternative to the prison financial system. The proposed
alternative is to liberate the fiduciary responsibility currently claimed by the
prison system and relocate it within Community Development Financial
Institutions (“CDFIs”).
1. ShoreBank: Blueprint for the Modern CDFI
CDFIs are financial institutions that operate with the express goal of
serving communities that historically lacked access to banking and credit. 193
Unlike traditional banks, CDFIs prioritize the economic wellbeing of their
communities over their own bottom line. Given their commitment to uplifting
many of the same communities that are most acutely harmed by the prison

189. Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156, 1217
(2015).
190. See Olúfẹ́mi O. Táíwò, Power over the Police, DISSENT (June 12, 2020),
https://www.dissentmagazine.org/online_articles/power-over-the-police
[https://perma.cc/4D9C5KJD].
191. See Akbar, An Abolitionist Horizon, supra note 159, at 1834.
192. For efforts to articulate an alternative to the police, see ANDREA J. RITCHIE, MARIAME
KABA & WOODS ERVIN, INTERRUPTING CRIMINALIZATION, #DEFUNDPOLICE TOOLKIT: CONCRETE
STEPS TOWARD DIVESTMENT FROM POLICING & INVESTMENT IN COMMUNITY SAFETY (2020),
https://www.interruptingcriminalization.com/s/Defund-Toolkit.pdf [https://perma.cc/L2ZV-7TGW], as
just one example of abolitionists at work.
193. See What Is a CDFI?, OPPORTUNITY FIN. NETWORK (Feb. 2, 2021), https://ofn.org/whatcdfi [https://perma.cc/L9UT-3589]. CDFIs take a number of different forms, including Community
Development Banks, which operate as for-profit businesses but are directed in part by members of the
community, as well as Community Development Credit Unions, which are nonprofit financial
cooperatives owned by their members. Id.

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industrial complex, CDFIs are a natural destination for an incarcerated
individual’s finances both during and after their time in prison.
The modern CDFI traces its roots to ShoreBank, an experiment in providing
banking services to poor communities that, at one point in time, had invested
$4.1 billion in inner-city Chicago and financed more than 59,000 units of
affordable housing. 194 Founded by community activists in 1973, ShoreBank was
a response to the redlining that defined the preceding decades’ lending practices
and resulted in an extreme racial wealth gap. 195 Its then-radical mission was not
merely to provide low-income communities and communities of color with bank
accounts, but to invest in minority-owned businesses and fund non-profit
organizations that shared the goal of revitalizing communities that were cast
aside by the traditional financial system. 196
ShoreBank was a remarkable success, but its rapid expansion elevated it as
both a model for success 197 and a lightning rod for criticism. 198 ShoreBank’s
decision to target its services to impoverished communities also left it vulnerable
to fluctuations in the market, and it ultimately shut down in the wake of the 2008
financial crisis. 199 Despite its eventual demise, ShoreBank spurred the
establishment of over a hundred institutions built in its image and in pursuit of
the same transformative goal. 200 Today, CDFIs include not just banks, but also
credit unions, loan funds, and even venture capital funds, all of whom are
committed to operating for the benefit of—and often are directly managed by—
historically marginalized communities. 201
2. CDFIs in Action: The Two-Account System
Relocating incarcerated individuals’ financial power within CDFIs would
simultaneously strengthen a financial network dedicated to providing economic
support to traditionally underserved communities and builds relationships
between incarcerated individuals and the financial system. This allows formerly
incarcerated individuals to reap many of the same benefits that reformists fight

194. James E. Post & Fiona S. Wilson, Too Good to Fail, STAN. SOC. INNOVATION REV., Fall
2011, at 66, 66.
195. See BARADARAN, supra note 148, at 162–63.
196. See Post & Wilson, supra note 194, at 66–68.
197. Then-President Bill Clinton referred to ShoreBank as “the most important bank in America”
during his 1992 campaign. RICHARD DOUTHWAITE, SHORT CIRCUIT: STRENGTHENING LOCAL
ECONOMIC FOR SECURITY IN AN UNSTABLE WORLD 144, 153 (1996).
198. See, e.g., Post & Wilson, supra note 194, at 70–71.
199. See Nick Carey, Regulators Close ShoreBank in Chicago, REUTERS (Aug. 20, 2010),
https://www.reuters.com/article/us-shorebank-failure/regulators-close-shorebank-in-chicagoidUSTRE67J5AE20100821 [https://perma.cc/7FTR-39S9].
200. See generally NAT’L CMTY. INV. FUND, CDFI BANKING INDUSTRY PEER GROUP REPORT:
FIRST
QUARTER
2020
6–9
(2020),
http://ncif.org/sites/default/files/documents/CDFI_Banking_Industry_Peer_Group_ReportQ1_2020.pdf [https://perma.cc/2EN3-XMXH].
201. See What Is a CDFI?, supra note 193.

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for while also shifting power away from the carceral state. An alternative
financial system has the potential not just to act as a conduit for incarcerated
individuals to build relationships with financial institutions in the formal
economy, but also to serve as a pedagogical tool that allows incarcerated
individuals to build their financial literacy and establish a fiscal safety net that
can facilitate successful reentry.
Within the proposed alternative system, each incarcerated individual would
be empowered to maintain access to or be provided with a checking account at a
bank or credit union dedicated to community investment. While an individual is
incarcerated, this account would serve as a collection point for funds sent to them
from their family and friends, and prison operators would be required to provide
the necessary infrastructure to allow incarcerated individuals to access and
manage their money while they are in prison. Incarcerated individuals would, in
turn, be able to use the account to pay for any items that they needed within a
prison facility. This system has two immediate benefits: it eliminates much of
the harm caused by the current prison financial system, and it provides formerly
incarcerated individuals with the benefit of increased access to the formal
economy upon their release.
Under the alternative system, prison profiteers would no longer have
control over the critical financial conduits that currently allow them to take
advantage of incarcerated individuals and their communities. Transfers to an
incarcerated person’s bank account would be no different than an ACH transfer
between any two bank accounts, thus obviating the need for excessive transfer
fees. Further, prison operators would play no role in returning formerly
incarcerated individuals’ money at the point of their release because it would
never have been taken from them in the first place. As such, there would be no
opportunity to further extract wealth from formerly incarcerated individuals
through debit release cards.
These benefits are also a demonstration of the durability that comes with
the reclamation of power from the private sector. Prison telecommunications
providers were able to evade regulatory action by the FCC because they still
controlled the basic system of communication that every incarcerated individual
was forced to use. The proposed reform does not allow for that possibility. By
reclaiming and relocating incarcerated individuals’ financial power, private
interests have no opportunity to find loopholes or develop alternate profit
streams.
The alternative system also ensures that every incarcerated person begins
the reentry process with a bank account. As many reformists have correctly
argued, this financial tool can have a positive effect on a formerly incarcerated
individual’s reintegration back into their community. 202 Yet the proposed
alternative takes this idea a step further. Current reform efforts have sought to
202.

See supra Part II.C.2.

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build connections between incarcerated individuals and traditional banks, many
of whom have been active participants in the exploitative prison financial
system. Connecting incarcerated and formerly incarcerated individuals with
CDFIs ensures that their interests are considered and the fiscal health of their
communities is prioritized.
The second account provided to incarcerated individuals under the
alternative system is a savings account, which would be funded by a percentage
of the wages earned during an incarcerated individual’s time in prison. Though
some jurisdictions, such as Washington 203 and Kansas, 204 already provide (and
often mandate) that incarcerated individuals maintain a savings account, the
accounts proposed here differ in two key ways.
First, the accounts proposed under the alternative system would contain
additional protections not found within the existing prison financial system.
Specifically, money deposited in a savings account would be safeguarded from
garnishment to pay external debts (including court fines). This provides formerly
incarcerated individuals with at least some 205 financial safety net that they can
use to cover the necessary costs of reintegration even if they leave prison in debt,
as is often the case with formerly incarcerated individuals from low-income
communities.
Second, the percentage of an incarcerated individual’s wages that are
directed to the savings account would not be predefined, as is currently the case
in jurisdictions mandating that incarcerated individuals maintain a savings
account. Under the proposed alternative system, incarcerated individuals are free
to place as much or as little of their wages in the account as they choose. This
allows incarcerated individuals to retain their financial autonomy and make
decisions that are in their own financial interest while they are incarcerated. This
added flexibility allows the system to better respond to the individual needs of
different incarcerated individuals, and it has the added benefit of helping them
develop financial skills that will assist them in the reintegration process.
The savings and checking accounts work in concert with each other to
provide incarcerated individuals with an opportunity to develop economic
autonomy. Under the current prison financial system, financial selfdetermination is necessarily compromised when an individual is incarcerated,
and the closed economies of prison bear little similarity to the actual economy
203. See ST. WASH. DEPT. CORR., TRUST ACCOUNTS FOR INCARCERATED INDIVIDUALS (2020),
https://www.doc.wa.gov/information/policies/files/200000.pdf [https://perma.cc/PF44-T5UD].
204. See
KAN.
DEPT.
CORR.,
FISCAL:
INMATE
TRUST
FUND
(2015),
https://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-4/04-103d/view
[https://perma.cc/K9J2S4EK].
205. I recognize that the wages earned by incarcerated individuals are unfair and exploitative–
averaging only $.86 per hour if they are provided at all. Sawyer, supra note 70. This proposal is not
meant to suggest that this practice is acceptable or that the wages accumulated in a proposed savings
account will meaningfully affect a formerly incarcerated individual’s reintegration, it merely sets forth
a framework that allows for such a benefit when exploitative prison labor practices are abolished as well.

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that formerly incarcerated individuals will interact with after their release. In
contrast, the alternative system allows prison facilities to serve as fora for
incarcerated individuals to learn critical financial skills. By allowing
incarcerated individuals to engage with and balance both a checking and a
savings account, the system promotes the development of choice-making
capacity, which can serve as a prerequisite for financial decision-making. 206 This
alternative, though far from comprehensive, shifts power back to the
communities that are disproportionately incarcerated, and it represents an
important potential step towards prison abolition.
3. Advancing the Project of Prison Abolition
CDFIs represent the ideal place for incarcerated individuals’ finances
because of their institutional commitment to investing in and responding to the
needs of communities that have historically been denied access to formal
financial services. Those communities are disproportionately represented within
prisons and jails. 207 Ensuring that the interests of incarcerated individuals are
represented by the financial institutions that serve them can play a critical role in
shaping their reintegration into their community—as well as the fabric of the
community itself.
Today, CDFIs are responsible for over $11 billion in lending to first time
homeowners, community facilities, and Black-, Latinx-, and Indigenous-owned
businesses. 208 Organizations like access+capital, located in Fresno, California,
provided $6.7 million to small businesses in 2019 alone, and 55% of that money
went to businesses owned by Black, Latinx, and/or Indigenous individuals. 209
Other CDFIs, such as the Northwest Native Development Fund in Coulee Dam,
Washington, or the Citizen Potawatomi Community Development Corporation
in Shawnee, Oklahoma, operate with the express goal of providing financial
services and education to Indigenous communities. 210 Collectively, these two
organizations have provided loans totaling more than $85 million. 211 The
diversity of the communities served by CDFIs, as well as the diverse financial
tools that they are able to offer, provide historically marginalized individuals
with critical tools to build safer and more prosperous spaces for themselves and
their loved ones.
206. See Charlotta Bay, Framing Financial Responsibility: An Analysis of the Limitations of
Accounting, 22 CRITICAL PERSPS. ON ACCT. 593 (2011).
207. See supra Part I.A.
208. CDFI COALITION, COMMUNITY DEVELOPMENT FINANCIAL INSTITUTIONS: COMMUNITYBASED, MISSION-DRIVEN 6 (2019), https://cdfi.org/wp-content/uploads/2019/03/2019-CDFI-ReportComplete-FINAL-1.pdf [https://perma.cc/BA66-4VLG].
209. 2019
Annual
Report,
ACCESS
PLUS
CAPITAL
(June
2,
2020),
https://www.accesspluscapital.com/2019-annual-report/ [https://perma.cc/L8X2-FJGQ].
210. See About, CITIZEN POTAWATOMI CMTY. DEV. CORP. (Aug. 16, 2021),
https://cpcdc.org/about/ [https://perma.cc/C637-D3DM]; Mission Statement, NW. NATIVE DEV. FUND,
https://thenndf.org/about/ [https://perma.cc/97CG-VYVJ].
211. CDFI COALITION, supra note 208, at 22, 59.

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Locating incarcerated individuals’ finances within CDFIs also works
towards the project of prison abolition by redirecting financial power into spaces
that are defined and managed by and for the communities that they serve. While
some CDFIs, such as community development credit unions, are directly owned
and managed by the communities they serve, even community development
banks and venture capital funds—organizations that are often for-profit—
include community representation in their management.212 For example, Optus
Bank, a for-profit CDFI in Columbia, South Carolina, is the only Black-owned
bank in the state, 213 and in 2018 it provided 144 loans to individuals with belowaverage credit. 214 By shifting financial power away from prison operators and
towards community-driven organizations, the individuals who have most
directly experienced the harm of the prison financial system will be empowered
to direct the policies and strategies that push the alternative system forward.
Despite the promise that CDFIs have shown, embracing them as a widespread
alternative to privatized prison finance is not without challenges.
4. The Question of Feasibility
The most obvious challenge in relocating incarcerated individuals’ finances
to CDFIs is one of feasibility. There are numerous practical barriers standing in
the way of entrusting millions of incarcerated individuals’ finances to a relatively
small sector of the financial services industry. First, the current network of
CDFIs, as vibrant as it may be, is neither geographically nor logistically capable
of providing financial services to the vast population the United States currently
incarcerates. Second, there are powerful institutional forces, ranging from
private prison financial service providers to prison operators whose budgets are
reliant on kickbacks, invested in maintaining the status quo. They will
doubtlessly use whatever political will they have to sabotage or circumvent any
attempt to reduce their power. Third, there may be public resistance to
developing the necessary infrastructure to support the relocation of prison
finances, as well as apprehension as to their proposed new destination. These
criticisms are a natural response to any radical idea that challenges the
fundamental framework of the criminal legal system. But they also reflect an
unnecessarily pessimistic view of our capacity for far-reaching change.
The fact that abolitionist demands push the boundaries of public thought is
neither accident nor oversight. Instead, it reflects a conscious choice to “reignite
people’s imaginations” 215 by envisioning alternatives to systems that heretofore
have existed only in the shadow of racism and state-sanctioned violence.
212. See What Is a CDFI?, supra note 193.
213. See U.S. Map of Black Banks & Credit Unions, BLACKOUT COALITION (Aug. 22, 2021),
https://blackoutcoalition.org/black-u-s-banks/ [https://perma.cc/8Z2A-G62P].
214. CDFI COALITION, supra note 208, at 63.
215. Dean Spade, Solidarity Not Charity: Mutual Aid for Mobilization and Survival, 38 SOC.
TEXT 131, 134 (2020).

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Arguments rooted in feasibility and public resistance were mobilized against the
movement to abolish chattel slavery in the 19th century, the movement for
women’s suffrage in the 1910s, and the Civil Rights movement in the 1950s and
1960s. 216 That these monumental projects were ultimately realized is proof
enough that massive political and social change is within our reach. Though it
may be difficult to imagine a world in which corrupt and abusive prison financial
practices are abolished as well, it is certainly within our capacity to make it so.
No single piece of scholarship can offer an immediately complete
prescriptive answer to the immense problems plaguing the criminal legal system.
The needs of individual communities are as varied as the people who comprise
them, and abolitionist alternatives can and should remain adaptable. Rather than
attempting to prescribe a one-size-fits-all solution, abolitionist scholarship
provides a “hopeful horizon” towards which we can aspire. 217 As Professor
Davis explains, “The most difficult and urgent challenge [for abolitionists] today
is that of creatively exploring new terrains of justice, where the prison no longer
serves as our major anchor.” 218 Exploring that terrain necessarily requires bold
ideas, and dismissing them for their perceived lack of feasibility serves only to
limit our conception of what a post-carceral future can look like.
CONCLUSION
The predatory practices that define the modern prison financial system have
rightfully provoked outrage, but there remains a deep divide between reformists
and abolitionists as to how the system should be challenged. Efforts to reform
the prison financial system through litigation and regulation, though they often
do improve the lives of incarcerated individuals and their communities in the
short term, also strengthen and legitimize a system that is inextricably connected
to the institutionalized racism that has shaped the United States for centuries—
from chattel slavery to the Black Codes to the War on Drugs. Overcoming the
institutional power of the prison industrial complex requires us to imagine what
our society can look like when such institutions are abolished. Scholars, activists,
and ordinary people everywhere continue to construct the systems that will one
day replace prisons and jails. By articulating concrete alternatives to the prison
industrial complex, abolitionists work to chart a pathway towards a safer and
more just future.

216.
217.
218.

See Berger et al., supra note 150.
Akbar, An Abolitionist Horizon, supra note 159, at 1825.
DAVIS, supra note 16, at 21.