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Jump off the private prison bandwagon

A population under total control deserves to be overseen by entities responsible to the electorate, not to investors

The National Law Journal
April 9, 2012

Onn March 1, a broad coalition of public interest organizations wrote to the governors of every state, urging them to decline a bid from Corrections Corp. of America to buy up public prisons and turn them into private facilities. Significantly, this proposal from the largest for-profit prison company in the country did not come without strings attached. It stipulated that the seller must have a minimum of 1,000 beds, agree to let CCA operate the institution for no less than 20 years and guarantee to keep the prison at least 90 percent occupied. In light of the mass incarceration epidemic — with 5 percent of the world's population, our nation confines 25 percent of all prisoners — the last thing we need is to expand an industry invested in maximizing the number of inmates. The past three decades have seen a proliferation of private prisons. During this time, their advocates have failed to make the case for handing an archetypically public function over to profiteers. The governors ought to heed the letter's advice: CCA's offer is one that can, and should, be refused.

A few statistics (drawn from the Amer­ican Civil Liberties Union's 2011 report Banking on Bondage) will indicate the extent to which private companies stimulate, and benefit from, the burgeoning incarceration phenomenon. Such institutions house a total of 6 percent of state prisoners, 16 percent of federal ones and almost half of immigrants detained by the national government. Between 1990 and 2010, the number of inmates in private facilities grew by 1,664 percent. CCA and the second-place The GEO Group Inc. earned almost $3 billion in 2010; their chief executives received compensation in the millions. The anti-government impetus prevalent in many sectors undoubtedly has fueled the industry's exponential growth.

These companies leave little to chance, however. From 2003 to 2011, CCA and GEO between them hired 271 lobbyists. They also make generous campaign contributions so as to garner lawmakers' favor. In addition, for many years CCA had a close relationship with "ALEC" (the American Legislative Exchange Council), a state legislators' organization that sponsors stringent sentencing laws. That is hardly shocking since privatization's success depends on a "lock 'em up and keep 'em in" strategy.

The private institutions' infiltration of the custody market has not produced the advantages touted by proponents and, worse, has yielded deleterious results. Various studies have failed to uncover evidence that for-profit imprisonment saves money. To the extent it does, such savings appear to come at the price of inmate well-being. Justice John Paul Stevens, dissenting in Correctional Services Corp. v. Malesko (2001), which declined to allow a Bivens action against a halfway house's private operator, correctly noted: "Because a private prison corporation's first loyalty is to its stockholders, rather than the public interest, it is no surprise that cost-cutting measures jeopardizing prisoners' rights are more likely in private facilities than in public ones."


Both the ACLU study and other sources support the conclusion that these prisons have sustained more violence — inmate on inmate and inmate on staff — than comparable public institutions. A particularly egregious series of fights in an Oklahoma facility resulted in 46 prisoner injuries. The Idaho Correctional Center is so dangerous that it has been called a "gladiator school." Guards' failure to protect an especially vulnerable prisoner there, an African-American gay informant, resulted in his horrific beating, recorded in a video, and a later lawsuit.

Private companies' security lapses have also enabled inmate escapes in recent years. One that occurred in 2010 in Arizona was attributed to staff inexperience, lack of proficiency in use of weapons and inattention to blaring alarms — which, being dysfunctional, sounded so frequently that they were routinely ignored. Lower pay as well as inferior working conditions plainly subvert professionalism among personnel.

Furthermore, the profit motive can lead to cutbacks on prisoner food, medical care, rehabilitative programs and amenities. Concern for shareholders' interests all too easily eclipses obligations to captive "clients." Such dereliction of duty, moreover, is easily concealed by the lack of transparency private institutions enjoy. Unlike public prisons, they are not subject to the Freedom of Information Act. Also, because of the revolving door between public and private employment, state officials charged with monitoring corporate prisons may fail to report gross violations of safety, sanitation and human rights because they previously worked for the company under scrutiny. (Finally, in January, in Minneci v. Pollard, the U.S. Supreme Court also refused to permit Bivens lawsuits against employees of private prisons.)

Simply put, privatizing punishment is bad policy. A population under total control deserves to be overseen by entities ultimately responsible to the electorate, not to investors looking for profit.