Expert Commentary

Uncovering the US prisoner transfer system and alleviating coronavirus outbreaks in prisons: Q and A with Emma Kaufman

NYU law professor Emma Kaufman breaks down open-records requests she filed in every U.S. state, offering a previously unseen glimpse into the nation's prisoner transfer system.

(Ye Jinghan / Unsplash)

It’s rare in the U.S. for prisoners to be held in states apart from where they were convicted. But in certain states, prisoner transfers that cross state boundaries are much more common than at the national level.

That’s according to new research in the Harvard Law Review from New York University law professor Emma Kaufman. She breaks down results from open-records requests she filed in every state, offering a previously unseen picture of a system for moving inmates across state lines that much of the public is unaware exists.

“The straightforward assumption — state prisoners live in their state’s penal institutions — is wrong, and has been for decades,” Kaufman writes.

Kaufman, who has also studied U.S. prisoner segregation by citizenship and extraterritorial punishment across nations, estimates there are 10,000 to 20,000 state prisoners living outside their state of conviction. There are about 1.3 million state prisoners in total, according to the federal Bureau of Justice Statistics.

State inmate transfers span more than 1,200 miles on average, Kaufman found, and transfers are more likely in some states than others. As of 2019, Hawaii had transferred about 45% of its prisoners, according to Kaufman’s data. About 15% of prisoners in Vermont have been exported. New Hampshire and Wyoming have each transferred about 5% of their prisoners to other parts of the country.

I reached out to Kaufman to chat about her investigation, find angles for journalists who want to launch their own investigations and to learn how transfers might alleviate coronavirus exposure in state prisons where there are outbreaks.

“The problem is not that transfers are always problematic,” she says. “The problem is that we don’t know anything about it. It looks like a lot of the time it’s happening for ad hoc reasons. We need to create a system we can all agree on where transfers are based on good reasoning.”

Here are five key takeaways from our conversation:

  • Get prisoner transfer investigations moving by asking local criminal defense attorneys if they have clients who have been transferred. Talk to family members of prisoners who have been transferred. Or reach out to inmates at institutions that primarily house transferred prisoners.
  • Keep an eye out for prisoners who disappear from state prison records post-transfer. There may be examples where weeks go by and families and lawyers don’t know where a prisoner is.
  • Explore counterintuitive political dynamics. For example, states that generally oppose new prison construction have some of the highest rates of prisoner transfer.
  • Ask why individual prisoners are transferred. Authorities might have reasonable explanations for transferring inmates — for example, moving them to facilities that can better meet their health needs or returning prisoners to the state they’re from. But prison officials might also use transfers as retribution against powerful prisoners capable of organizing protests.
  • Consider prison conditions. Are prisoners in your state being transferred to prisons with better or worse conditions than the ones they came from?

Here’s my full conversation with Kaufman, lightly edited for clarity.

Clark Merrefield: Let’s start with a broad rundown of what the prisoner transfer system is, how it works and how prevalent it is in the American penal system.

Emma Kaufman

Emma Kaufman: What I describe as the prisoner trade is the practice of either paying another state to hold your state’s prisoner or trading prisoners one-to-one. So either paying California $76 dollars a day to hold a prisoner from Maine, or having an agreement between Maine and California that they will trade one California prisoner for one Maine prisoner. This practice of outsourcing punishment to other states was illegal or uncommon for about the first century of U.S. history. That began to change in the 1920s through the middle of the 20th century as states started to find ways to share prison beds and share prison populations.

Today, the practice of trading prisoners across state lines has been upheld by courts as legal and is increasingly common, but it is concentrated in certain states. It’s not unconstitutional for someone convicted of a crime in Massachusetts, say burglary, to end up serving his time in Arizona or Alaska.

CM: Why does it matter if someone is held in a state other than the one where they were convicted?

EK: One thing we’re seeing here is that we’re talking about extraordinary distances. If you just got in your car and drove straight for 24 hours, you’d go from, I think I have it in the article, it’s something like from Rhode Island to Florida. These are distances people can’t afford to travel. You might be concerned for humanitarian reasons, that people have a right to see their family members. But you might be concerned for pragmatic reasons, too. There’s evidence that keeping prisoners close to family reduces recidivism when they get out. People with connections to the communities where they are going to be released are less likely to recommit. In lots of states, there are programs where someone could get a certification from the [state] department of labor. So [transfers] displace people from reentry programs they might need, and from their families.

CM: Do you mean a state where the prisoner was convicted might have robust employment training programs and then they’re transferred to a state that doesn’t have those options?

EK: Yeah. Or say you are convicted in New York and you want to get certified in the electrical trades. In New York you can get a state department of labor certification and, when you get out, go into the trade. If you get transferred to Florida, a Florida certification won’t serve you very well in New York. We’ve built reentry programs around state lines and regulations. It’s important to be tied to reentry programs in the state you’re going to be released into. And then it’s very difficult to do things like set up a bank account when you’re 1,200 miles from where you will be living.

Another thing to think about here is the extent to which people have children, and many prisoners do. There could be consequences for their access to their children, their children’s development and their parental rights. If you don’t see your child for a long period of time, that could trigger parental custody issues.

It’s a huge federalism dilemma. Many features assumed in state incarceration are built around you being in that state’s prison. You have legally national systems but practically state-based systems. That creates all of these conflicts.

CM: What would you recommend for journalists who want to investigate prisoner transfers in their state but are new to the concept or the prison beat and don’t quite know where to begin?

EK: I think the first place to start is to find prisoners and families to whom this has happened. The best way is to call lawyers and ask if they have clients transferred out of state. I have found lawyers often weren’t focused on that aspect of the case, they were defending the case, but then they were like, “Oh yeah, I have three clients transferred out of state,” and they could connect me with those people.

The other thing to do, which is challenging, is there are some private prisons that are made up entirely of out-of-state people. There is a Kentucky prison that holds all Vermont prisoners. There was, for a long time, an Arizona prison that held all-Californian prisoners. So the other angle is to write to people in those institutions that hold people from out of state.

It’s important to note that there are some circumstances in which transfers are good. I started out thinking this was an inherently problematic practice. But let’s imagine a particularly vulnerable prisoner, like a former police officer who is well known and cannot be kept safe. Or a person who has acute health care needs and goes to a prison in a neighboring state that has the capacity to treat those needs. If you were from Massachusetts and traveled to Florida and committed a crime there, you might want to serve your time in Massachusetts. There are lots of these sorts of transfers where I think even people concerned about prison conditions would be hard pressed to say, “This is problematic.” So I think we need to sort out when transfers are a good idea.

The problem is not that transfers are always problematic. The problem is that we don’t know anything about it. It looks like a lot of the time it’s happening for ad hoc reasons. We need to create a system we can all agree on, where transfers are based on good reasoning.

CM: There are reports from Georgia, Florida, New York, Ohio and other states about the new coronavirus spreading through prison populations, along with issues with care for prisoners who contract the virus. What’s changed in terms of the prisoner trade in the context of COVID-19?

EK: No one knows enough about what’s going on with COVID inside prisons right now. We need to find out about that. But this research illuminates the analogy between prisons and other institutions, like hospitals. It makes you wonder why we are not transferring hospital staff to places with higher need. My research begs the question, “Why are we thinking about this in a way with state lines?”

The other thing is that prisons are intensely close quarters where COVID is an enormous problem. My research has made me wonder in emergency situations if we couldn’t use transfers to alleviate exposure to staff and prisoners. I don’t think that’s a better solution than letting people out who should not be there at all, but we have the legal infrastructure to move people all over the United States. Why are we not doing it when they need to be out of hotspots?

CM: Talk about some of the data gathering methods you used, particularly the open-records requests you made and the variety of responses from states.

EK: I would say the data gathering took a year from start to finish. I submitted the same open-records request to every state department of corrections and got a whole range of responses — from states that refused to provide information because I wasn’t an in-state resident to states that provided incredibly detailed information for every prisoner they transferred. So it ran the gamut.

Many states declined to provide information about the use of private prisons. Many states declined to provide demographic information about who was being transferred. They would provide gross numbers for transfers but not the kind of detail you would need to know about particular groups of prisoners being transferred. So it really ran the gamut based on their own freedom of information cultures. And based on who answered the request.

But I was surprised that some states did share this information to the extent they did. Prisons are such black boxes. It’s so hard to find basic information about what goes on at penal institutions. I think it’s a testament to the idea that they don’t find this a practice that is especially controversial.

CM: So you got the information you got and you went with it.

EK: It became clear to me at a certain point I wasn’t going to sue to contest denials or follow up at great length. One example is New Jersey, which declined to provide information. But by that point, I had enough information from other states that said they received or sent prisoners to New Jersey. By the time I had a critical mass of responses, I decided not to contest the responses.

This suggests that doing this kind of systematic research has an upside. If you want to find out about a particular facility, when they say “no” you have to continue with that particular system. But because I was doing this blanketing of the United States, I could figure out answers about transfers from the other states that did provide information.

CM: You document that Hawaii, Vermont, New Hampshire and Wyoming have some of the highest rates of prisoner transfer. In particular Hawaii, where, according to your findings, nearly half of prisoners are transferred out of state. What is the nature of those states that seem to make them more likely to export their prison populations?

EK: What’s interesting is that the states you’re mentioning aren’t the typical states that we talk about when we talk about mass incarceration. We tend to talk about Texas and California and Florida, and states with harsh systems, like Alabama and Mississippi. But I discovered it’s the small and sparsely populated states where transferring is happening.

Hawaii and Vermont are interesting in particular because the story seems to be a political dynamic in blue states where there is signification opposition to prison construction. One surprising and perhaps perverse feature of this story is that states that are opposed to building prisons are not incarcerating at lower rates. They are still sending as many people into the prison system and those people get sent thousands of miles away. So people opposing prison construction in those states are licensing long-distance incarceration. They are sending more people to prison than they can hold. That’s certainly what’s happening in Hawaii and Vermont. There’s different stories in each of these states. In some states, it’s about a political dynamic where people prefer to privatize imprisonment and then prisoners get outsourced to the cheapest location. I want to know what [Vermont Senator] Bernie Sanders thinks about this. I was surprised Vermont was near the top of the list. You wouldn’t think states known for more benevolent policies would be the states outsourcing prisoners in these numbers.

One other interesting dynamic is that it appears to be happening in budget-strapped states. Delaware, for instance, couldn’t negotiate to pay overtime for their correctional staff, and they have a balanced budget requirement. So they sent hundreds of prisoners to Pennsylvania. Prisoners are transferred and then states can avoid paying some corrections officers. In those cases, it’s about unionized prison officers. This is essentially like an X-ray of all the politics of imprisonment.

CM: What are the characteristics of transferred prisoners in the data that you uncovered?

EK: Prisoners are disproportionately likely to come from low-income families. The average annual income of a person prior to incarceration is around $19,000. This is a reason the really long-distance transfers are a problem. Put aside the fact that no one can fly right now, it’s that the cost of a trip that’s 1,200 miles becomes prohibitive when families can’t afford a hotel room.

States wouldn’t tell me really granular demographic data. I wasn’t able to find the things I’m most interested in, like are people of color or certain nationalities more likely to be transferred. But it does look like people who are transferred have disproportionately long sentences. On the one hand, it makes sense not to transfer someone who is going to get out in six months. But to the extent that a prisoner transfer is harmful, it is harmful for a really long period of time.

CM: You write that, “This mixed bag — serious objections with obvious benefits — demands a limiting principle to guide when, if ever, transfers may take place.” What does “limiting principle” mean?

EK: What I mean to say is that the Supreme Court has established this practice is constitutional. Specifically, it does not violate the due process clause. But that doesn’t mean there aren’t ways to regulate. The mere fact that the Supreme Court has upheld it as constitutional doesn’t mean you couldn’t establish a commission with a public database of transfers. There are all sorts of ways to make this a more accountable, transparent process. It doesn’t mean you couldn’t erect a legal and regulatory process to make it less opaque.

So what I mean is that we need to have a public conversation about when it’s OK to displace a person who is incarcerated. And we need to come to agreement when physical displacement of prisoners is acceptable rather than an ad hoc set of decisions made by bureaucrats in totally opaque institutions.

CM: There’s another phrase in the paper that I thought was fascinating, which is that prisoner transfers create a “power-sharing framework in which states can rent out space in other states’ prisons without relinquishing their authority over prisoners.” Can you talk that out a bit?

EK: It creates a huge mess of legal problems to send somebody to another state. Although the prisoner transfer itself is constitutional, once you’re in another state, the law is totally unclear on all sorts of things.

For example, states appear to be having disputes over liability for medical costs under the terms of these [prisoner transfer] agreements. If I have a serious medical need, like I need surgery — and, by the way, prisoners disproportionately do because we are holding older and older populations in prisons — if you need a surgery, the two states may have a dispute over who pays for the surgery. That may delay medical care. The sending state is supposed to pay for very serious medical needs, but states fight over what that means.

There are rules about discipline. If you get in trouble in prison or want to object to something, like not having access to a lawyer or law library, you have to go through a disciplinary procedure within a prison. Courts are split on if you would follow procedures in your home state or where you are confined.

To give another example, people transferred are participating in their parole hearings from afar, so they have to navigate their parole hearing in absentia, in writing. One of my favorite examples, as a lawyer, is that it’s not clear which state’s criminal law applies to you. If you get transferred from one state to another and you do something in prison that would be illegal in the state you are in but not in the state you come from — there are all these puzzles because, as a matter of law, you don’t know which state you’re in.

The legal fiction of remaining in your home state creates all these problems. Another example is that states vary dramatically in how they pay prisoners for their labor. Some don’t pay at all. New Jersey pays $2 an hour. So transfers can have huge differences in what you can buy at a commissary.

CM: It seems like you’ve scratched the surface with the data you uncovered and that you still have a lot of questions. What would you like to see journalists dig into?

EK: I learned a ton just from talking to people — prison law practitioners, family members of people who had been transferred — who had anecdotal stories. But the individualized stories of people affected by transfers are not prominent enough in what I was able to uncover, and I would love to hear more individual stories.

One person I spoke with told me about one problem that doesn’t get foregrounded enough in the research, which is that it appears in some cases transferred prisoners are disappearing from both states’ records. It looks sometimes like, with a transferred prisoner, you disappear from the original state system and the receiving state doesn’t always put you into their systems. I think one story that would be interesting to explore is whether it’s true that for weeks at a time family members and lawyers don’t know where the person went.

I would be fascinated to have a better sense about the conditions in the prisons where people are being sent, whether they are being channeled into worse prisons. There’s some anecdotal evidence there have been disruptions. I cite a few in the paper. If you send 100 prisoners from one state to another, it leads to unrest because people are organized around geographic identification. New York prisoners are different from Georgia prisoners. It’s like a revolving door where we are transferring problems all over the United States.

And this political dynamic, which I have just tapped the surface of, this opposition to prison construction licensing long-distance incarceration, I would be curious to have journalists follow up on the political dynamics leading to these large-scale transfers.

The last thing I would be curious about is, I know a range of reasons why transfers are happening, some of which seem like good ideas. But I wasn’t able to find out how often transfers are punitive — how often they’re taking a powerful person, or a person who’s volatile, and sending someone away to punish that behavior. That looks like classic banishment, so I would be curious to know about the local dynamics.

One of the most surprising things for me is that I’m not sure judges really know about this. The people sentencing people to prison time don’t know where the people go who they have sentenced. There is something jarring about realizing you could sentence someone in Massachusetts and that person could serve their time in Arizona.

CM: What does it mean to be a “powerful person” in a prison?

EK: There’s lots of sociological research on prison hierarchies. You might think someone in a prison for a long time who has amassed power might be good at organizing prisoners and fomenting protests. So, to maintain control, are prisons picking out leaders in the prison community? And you might think that’s an effective management strategy. On the other hand, if protests are to seek wages for their labor or to protest conditions, that would be a really concerning reason to transfer someone. Prisons are tiny universes with all the social dynamics you might imagine.

Multiple people described this to me with a baseball trade analogy. I’ll give you so-and-so for so-and-so. That is another fascinating angle for journalists to dig into.

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