Abolishing Private Prisons

Executive Summary

As quoted by Welch and Turner, “The tremendous profits accruing to the prison-industrial complex demonstrate that the free market works best when people aren’t free” (p. 64).

A tougher stance towards crime starting from the 1980s fostered harmful crime policies and a subsequent explosion of the nation’s prison population. Prison overcrowding induced federal and state governments to outsource incarceration by contracting with private companies who take over the management of federal incarceration facilities or hold inmates in their own privately owned facilities. These for-profit companies purport to complement the judicial system by reducing government expenditure on incarceration while increasing the quality of incarceration facilities in terms of employee/inmate safety and recidivism-directed services for inmates. However, the truth behind this for-profit system is that these companies are based on traditional market mechanisms — they receive regular rates from government agencies that are positively correlated with incarceration rates.

In other words, the more incarcerated bodies, the higher the profit and bottom line of these contracted private companies.

This brief argues that the system in question, which has been backed for decades up until the current Biden administration, diverges from & threatens the mission of the justice system and has been proven to fail in making the correctional system more efficient. Moreover, considering that the “business of making money through incarcerated bodies” has roots in US economics and politics, a decisive reform is the best course of action, led by the federal government, to either steer private prisons towards the values of the correctional system or completely abolish federal and state contracts with private-prison companies.

Introduction

Richard Nixon’s “War on Drugs’’ in 1971 set a precedent for federal funding campaigns aimed at reducing crime. These efforts, aimed at individuals who commit violent/armed crimes, recurrent offenders, or drug traffickers, increased the severity of punishment for minor crimes and reduced offense-baseline for incarceration. Subsidies for drug-control agencies were exponentially magnified by Ronald Reagan in 1981, and as a result, incarcerations for nonviolent drug offenses skyrocketed from 50,000 to 400,000 between 1980 and 1997.

With the subsequent rise in sentence length and incarceration rates, federal and state prison populations grew from about 330,000 to over 1.5 million between 1980 and the late 1990s, leading to overcrowding as federal and state prisons exceeded maximum capacity. Seeking to alleviate the burden on the public sector, some states and the federal government started contracting with private companies to take over the management of state/federal facilities or house inmates in their privately owned facilities. Expectations included attenuating overcrowding and reducing correction expenditures by avoiding bond payments, tax increments, and funding referenda. The result was the modern-day emergence of Private Prisons.

However, the justification for the emergence of the private prison system is unsuitable as support for its continuance.

The Bureau of Justice Assistance has recurrently stated that privatizing incarceration is a means for a more efficient correctional system — private prisons supposedly operate on smaller budgets and provide higher quality rehabilitation-directed services for inmates .

Curiously, however, during this period of time (from the 1970s to 2021), in which the United States nearly quadrupled its prison population, crime rates have steadily decreased in contrast to the exponentially increasing and current 43 billion-dollar annual investment on private incarceration.

The truth is that “the number of jailed criminals typically rises to fill whatever space is available,” and privatization has failed to temper prison crowding. Rather, the consistent demand for new prisons and jails provides the setting for increased government spending on the correctional system, resulting in the continuous inflation of corrections budgets alongside prison populations.

From 1995 to 2003, the private prison population increased by 500 percent. Privately operated facilities followed, reaching 415 in number by 2005. Recently, the Bureau of Prisons revealed that of the 1.2 million people in federal and state-operated prisons, 8 percent were in privately-operated prisons as of December 2020.

Putting it into perspective, between 1990 and 2020, the private prison population increased five times faster than the total prison population.

According to Schlosser (1998), the prison-industrial complex is “a set of bureaucratic, political, and economic interests that encourage increased spending on imprisonment, regardless of the actual need.” Declining crime rates and the documented inefficiency of private prisons have not deterred legislative figures from continuously pumping billions of dollars into the private prison system. The logic behind this cycle is evidently not aligned with the premise of increasing public safety by complementing the judicial system but seems in perfect accordance with that of generating revenue for private corporations and stakeholders.

Privatization negatively affects rehabilitation, treatment, and prisoner services.

The correctional system aims to protect society by deterring crime and those who commit it. Its mission is rehabilitation before exclusion, and, as such, private prison performance should be measured equitably with public prison performance in terms of recidivism rates, cost, inmate rights/services, and quality of confinement.

Decades of research have already debunked the relationship between cost savings/quality of incarceration facilities & recidivism efficacy and prison privatizations. Research has also indicated that the massive increase in incarceration has negatively impacted community organization within minorities, namely immigrant and black communities and that poverty in the US would fall by nearly 20 percent if not for the rise in incarceration over the past three decades. This implies that the capitalistic practice of profiting from incarcerated bodies is not only detrimental to the judicial system but has social backlash beyond economic inefficiency.

Therefore, given that the private-prison system diverges from the fundamentals of an effective and humane correctional system, it should be reformed or abolished.

Problem A — Financial Incentives for Incarceration.

“A for-profit prison operator [has] almost no contractual incentive to provide rehabilitation opportunities or educational or vocational training that might benefit inmates after release, except insofar as these services act to decrease the current cost of confinement.”

Standard correctional programs and inmate-directed services at federal and state-operated facilities, such as behavior-related credits, addiction treatment, and education, are often nonexistent in private prisons, and if otherwise established, as a result of contractual obligations, they are often poorly administered by the companies in an attempt to keep their bottom line intact.

A prominent clause included in most private prison contracts is a minimum occupancy clause. For the duration of the contract, these clauses establish a minimum occupancy rate to be maintained by the contracting government at the respective prison. Some may even offer financial subsidies for prisons with occupancy rates beyond that floor percentage. In other words, the clause ties private companies’ financial interests to incarceration and inmate retention instead of subsidizing programs related to inmate rehabilitation and re-entry into society.

An instance of the above-mentioned clause, from the Bay Correctional Facility in Florida, reads, “Regardless of the number of inmates incarcerated at the Facility, CONTRACTOR is guaranteed an amount equal to 90% occupancy (887 inmates) times the 90% Per Diem Rate subject to legislative appropriations.” — The state pays the company $43,046.11 per day to house inmates. Similarly, in Arizona, the State Prisons — Florence West and Phoenix West, run by GEO Corp, have minimum occupancy clauses that guarantee 100% occupancy payments alongside an additional 95% percent occupancy payment for emergency beds.

Inmates have therefore achieved commodity status in today’s prison market. Private prison companies join “bid-wars” for inmates from overcrowded state-run prisons across the country. Inmate overflow is then transferred, without proper monitoring, to facilities that lack adequate provisions, operate under no accountability, and are financially rewarded for going against the purpose of the correctional system — reducing recidivism.

Problem B — Low Quality of Confinement and Lack of employee/inmate safety.

Private prison companies effectively maximize profits by minimizing the operational costs of their respective prisons. This is effectively done by ensuring low expenditures on prison services and a high ratio of prisoners per guard.

Addressing the former, an inmate-survey published in 2008 reported poorer sanitation conditions and food services in private facilities compared to public facilities, across the country. A more targeted survey reflected those results — inmates at Taft private prison reported extremely low sanitation conditions at the dining hall and housing unit compared to public prisons. Taft also ranked at the bottom percentile in terms of food appearance, amount, variety, and overall quality.

In regards to the latter, private prisons employ an average of fifteen percent fewer guards per prisoner than their public counterparts. Moreover, private prison correctional officers receive, on average, lower pay and fewer benefits than the public standard. It follows that there is a high turnover rate among private correctional officers, meaning privately-run facilities often lack guards and constantly cycle new hires who, in turn, reportedly undergo 35 percent fewer training hours than correctional officers in federal and state-operated institutions.

Reports about a private facility in Ohio exemplified this imbalance. Officers indicated a complete absence of mandatory weapons training programs despite being instructed to carry firearms on patrol. Likewise, in a private Texas facility, training seminars consisted of watching videos in which prisoners were beaten, stun-gunned, stripped naked, and subjected to unleashed dogs.

The implications for safety under these policies are obvious.

In 2016 the US Department of Justice investigated the conditions of several sparse US public prisons contracted by the Federal Government from 2011 to 2014. These studies revealed that private prisons had almost 30 percent more incidents of inmate-on-inmate assaults and almost twice as many inmate-on-staff assaults compared with federally/state-operated prisons. The report also concluded that privately-operated prisons in the United States were more likely to jeopardize inmates’ security and rights.

Further, in that same year, a complementary study from the Department of Justice, aimed at outlining safety issues in privately-operated facilities, determined that the incidence of security incidents per capita in the specific areas of contraband, prison lockdowns, and inmate discipline was far higher in private prisons than in comparable Bureau of Prisons (federal) institutions.

The mission statement of a prison is “to keep prisoners…to keep them in, keep them safe, keep them in line, keep them healthy, and keep them busy…and to do it with fairness, without undue suffering and as efficiently as possible”.

This, however, does not seem applicable to private prisons as they are part of a system where efficiency is correlated with economic gain rather than correctional effectiveness.

In addition, it is important to note that any reference to “economic efficiency” in the context of private prisons is only applicable to the big corporations managing the facilities since, in terms of the government and tax-payers, private prisons represent quite the opposite of effective financial allocation.

Problem C — Costs.

In 1996, the US General Accounting Office attempted to quantify the economic efficiency of private prisons. After analyzing four state-commissioned studies and one federally-commissioned study directed at assessing private prison costs, the researchers discovered no substantial evidence that savings had occurred. A 2009 study led by researchers at the University of Utah reached uniform conclusions. The meta-analysis involved eight relevant cost comparison studies and determined that “…prison privatization provides neither a clear advantage nor disadvantage compared to publicly managed prisons’’ and that “…cost savings from privatization are not guaranteed.”

These findings have been replicated in several individual states.

A 2011 audit in Arizona which assessed the state’s incarceration costs, found that medium-security state inmates cost 8.7 percent less per day ($1,679 — $2,834 per inmate) than private-prison inmates. Also in Arizona, in 2010, the state’s Department of Corrections (DOP) calculated that, as a result of contracting out minimum security beds with a private company, the state had spent more money than what would have been spent in comparable state-operated institutions, on that front.

It is important to note that these recent findings mirror those in past decades — a 1999 meta-analysis comparing state prisons to private prisons also concluded that “private prisons were no more cost-effective than public prisons.”

This is further exacerbated when accounting for illusive savings.

A 2014 study reported that yearly incarceration costs for private prison inmates were about 10 percent lower than the average incarceration costs for public prison inmates. The $5,000/year savings per inmate is not only subject to sampling bias but fails to account for adjacent expenditures. When considering the facts that private prison inmates serve longer sentences, that recidivism rates at privately-operated institutions are the same if not lower than in pubicly-operated institutions, and that private prisons charge governments for empty beds, the savings, rather than negligible, become additional costs for the government.

In conformance, a 2019 holistic study of prisons in Georgia accounted for the discrepancy in incarceration-sentence lengths and found state prison inmates cost an average of $44.56 per day, whereas private prison inmates cost about $49.07 per day.

The lack of per-prisoner savings is alarming, considering private prisons bear lower costs than public prisons, given they generally house lower-security prisoners. Maximum-security inmates, death-row convicts, or those with serious disabilities/medical conditions, who pose significantly higher costs, are housed by the state.

Lastly, tax-payers, albeit indirectly, are still the ones who finance the private prison system. Private companies may incur operating costs, but the state and, by default, tax-payers assume the cost of mandatory monitoring programs, prisoner depreciation benefits, tax breaks, and subsidies. As such, economists have estimated that the long-term costs of private prisons “may meet or exceed the short-term savings,” given that private prisons actually cost more than their public counterparts.

Final Considerations and Outlined Conclusions

The emergence of private prisons resulted in policies that incarcerate American minorities and immigrants under capitalist interests. Backstage meetings, lobbying, and a corrupt government are responsible for and strengthened by this capitalistic prison system that profits from the incarcerated status and labor of people of color and poor people.

While the spiked incarceration rate of violent offenders resulted in a minor reduction of violent crimes across the country, there is no evidence that widespread imprisonment of drug offenders has reduced drug crimes. Moreover, incarcerating less serious offenders with no minor or criminal record equates to cutting their ties with society as a whole — families, schools, churches, and labor markets — adversely affecting community organisation.

Therefore, considering that the trend of committing people to prison is backed by pro-privatization legislative models, in other words — politics, and intimately connected to the movements of the national economy, major reform at the Federal level is needed with the intent to reform or abolish the private prison system.

Policy Recommendations

• Option 1 — Reform:

While a reform of capitalistic and neoliberalist ideals that founded this system would be ideal, it is unfeasible in the short-term. The following reforms, however, are tangible and should be implemented.

Private Institutions should be rehabilitative and treatment-oriented:

• The state or federal government should monitor private prisons and hold respective companies accountable for failed programs.
• Standards for the implementation of therapeutic, rehabilitative, and general treatment programs should be outlined in a priority clause on contracts, subject to fitting backlash, given failure of compliance.

Valerie Wright conceptualized aspects that would make the reform successful:

• Treatment programs should be adjusted to the offender. Programs must target behavioral indicators of crime and be offered in several learning styles. Such program designs are more effective and have precedents of significantly lowering recidivism rates, benefitting both the offender and community members.

Other Implementation Specifics:

For this program to be successful, transparency and the removal of financial incentives for incarceration are key.

Expand Transparency Requirements: Jurisdictions should match private-prison contracting with policies that subject the contracted companies to public inquiry and transparency requirements.

• US Representative Sheila Jackson Lee introduced the Private Prison Information Act to address the shortcomings of the Freedom of Information Act. The latter does not apply to private prisons who can legally refuse to disclose information/data about their practices. Her proposal seeks to place private prisons under the same level of scrutiny as federal and state-run prisons.
• In an attempt to record and expose the decades of oversight and guarantee accountability, the Homeland Security Advisory Council should request private prisons to submit regular operational reports that must comply with federal standards.
• Moreover, the Department of Justice should instate an independent Prison Conditions Monitor responsible for regularly auditing contracted entities. Should the referenced entities fail to meet quality standards and other contractual obligations, their contracts are to be immediately terminated.
• Finally, repeated transgressions should ultimately result in prosecutions of the respective contracted party by The Department of Justice.

Remove Federal Bed Quota for Private Detention: The Department of Homeland Security’s bed quota for immigrant detention requires the agency to maintain a minimum of 34,000 beds at any given time, forcing the Immigration and Customs Enforcement to increase contracting with private prison companies to house federal immigrant detainees. Policies such as bed quotas are harmful to the correctional system as they invert a logical order of precedence and breach human rights — The number of incarcerated bodies should not precede but instead follow criminal occurrences.

• Minimum occupancy clauses must be removed from private prison contracts in order to reduce financial incentives for maintaining the facilities at max capacity.
• Contractors should not be allowed to charge private prison inmates for basic services such as healthcare and phone calls.
• Finally, companies should not be subsidized for re-entry, supervision, and probation services. These should be included in the facility’s operational costs rather than allocated towards tax-payers.

Overall, reducing profit-based incentives to incarcerate would phase out State and Federal reliance on privately operated detention facilities by decreasing incentives to renew contracts.

• Option 2 — Abolish:

The alternative to reform is abolishment. This method is timely given President Biden’s recent order to eliminate DOJ Private Prison Contracts. His policy platform promoted funding for a new grant program aimed at eliminating all forms of for-profit incarceration.

In January of 2021, President Biden issued an executive order directing the attorney general not to renew Justice Department contracts with privately operated criminal detention facilities.

The order resembles an Obama-era policy, later reversed during Trump’s mandate, that allowed private prison contracts tied to the federal Bureau of Prisons to expire without renewal. Biden’s order, however, is more extensive and ecompasses USMS-related contracts as well.

Ultimately, the most practical and effective way of dealing with for-profit prisons is shutting down the use of federal private detention facilities by ending all contracts that the Bureau of Prisons, ICE, and the US Marshals Service have with private detention providers.

Other forms of Implementation:

Although the executive order mentioned above is the most practical way of dealing with for-profit prisons, this reform could also be implemented from the bottom up:

Angela Davis, a renowned author, scholar, activist, and current professor at the University of California, Santa Cruz, argues that addressing the problem of prison privatization strictly from the perspective of the correctional system would merely result in a “band-aid” solution. Seeking to address the capitalistic tendencies that back the prison-industrial complex, she argues for the deconstruction of the incarceration system alongside the reform of several economic, social, and ideological institutions.

This method, however, relies heavily on two factors: Time and grassroots organizations:

An example of this process features a prominent anti-prison organization, Critical Resistance. They have established chapters scattered across the United States and often merge with groups that share their ideologies, such as Families Against Mandatory Minimums, Schools Not Jails, and the Prison Moratorium Project. Such organizations stand to eliminate the prison-industrial complex and have the potential to lead significant reforms, given time.

Overall, terminating contracts between federal/state agencies and private companies is the most immediate, effective, and feasible solution to the prison-industrial complex but is government-dependent, whereas a bottom-up approach, although significantly less effective, relies on independent initiatives, uptaken by the general public.

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