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Private Prisons Are Going Away—But They Were Never Really the Problem

Private Prisons Are Going Away—But They Were Never Really the Problem: Netflix


Last week, the Department of Justice announced it will phase out its use of corporation-run prisons by letting those contracts expire over the next five years. The memo optimistically (and somewhat evasively) stated that “the goal of the Justice Department is to ensure consistency in safety, security and rehabilitation services by operating its own prison facilities” and that the decision “means that we can better allocate our resources to ensure that inmates are in the safest facilities and receiving the best rehabilitative services.”

John Pfaff, a law professor at Fordham University who studies prisons and criminalization, believes the DOJ’s announcement to eliminate prison beds from private-sector control is all sizzle and no steak. That’s because the plan is perforated with caveats, including the exemption of the Department of Homeland Security, meaning the 15,000 undocumented immigrants in private detainment centers will stay there. In addition, only a handful of all convicts are held in private prisons; state prisons are already controlled by the DOJ.

“On any given day, there are 2.2 million people in prison or jail. The 22,000 beds [in private prisons] represent about 0.1 percent of that total amount,” says Pfaff. This means that the DOJ’s angle of private prisons being worse for criminal safety and rehabilitation is entirely misinformed.

Piper Kerman, author of the book upon which Orange Is the New Black is based, recently wrote about the dangers of private prisons, including higher numbers of women alleging sexual assault against guards. But she’s mistaken when she writes that getting rid of private prisons “remove[s] the profit motive from the center of our decisions on safety and justice.” (Perhaps not so coincidentally, the most recent season of Orange Is the New Black spent lots of time on the issues of privatization.) In reality, when it comes to incentives, financial and otherwise, private prisons are no different than public ones.

The Corrections Corporation of America was the first privately operated prison company in the United States some 30 years ago. For all the inherent coldness in their and other private prison contractors’ business models (such as GEO Group), the CCA has been disproportionately critiqued given how few prisoners they actually control when compared to the total. While inmate numbers have increased since CCA became the first of its kind, private contractors still oversee only seven to eight percent of the total incarcerated population. Altogether, the DOJ’s memo will affect 22,000 prisoners, which is about 13 percent of the federal prison population. Whether the memo will change anything about their lives behind bars is another matter.

Earlier this summer, Mother Jones published an epic investigate takedown of CCA, for which one of their own reporters got a job as a guard in a private state prison in Louisiana for four months. Journalist Shane Bauer paints a miserable picture of hopeless guards living on minimum wage, some of whom clearly enjoy the power they possess a little too much. But in reality, how much of what he describes is unique to private prisons? While Bauer notes that CCA has tried to avoid the same public records laws as normal prisons, that’s essentially what any institution does, public or private. They haggle and they fight for their own survival and will argue “No, that law doesn’t apply to us.”

The private prison industry, then, is only a problem because its financial survival is based on bodies behind bars. CCA is not a good organization, especially as one that allegedly sometimes cuts corners on training of guards or other resources. But up until now, it’s the government that has let them operate while promoting its own system of funneling massive numbers of people into jails. The DOJ’s announcement that private prisons essentially compromise the safety and rehabilitation of convicts then suggests that “normal” prisons are better. That’s untrue.

Government-run prisons and jails have the same financial goals as private ones. They employ correctional officers and wardens directly; indirectly, prosecutors, police officers and even defense attorneys’ livelihoods depend the system of incarceration. The California Correctional Peace Officers Association, a public prison guards’ union, has profited off the militarized war on drugs like crazy. They have lobbied for other tough-on-crime policies as well, spending hundreds of thousands of dollars fighting individual attempts at reform in the 1980s, 1990s and into the 2000s. As its power grew, so did the number of prisons in the state, increasing from 12 in 1980 to 33 less than two decades later.

The CCA and other private prisons lobby, too, but they spend less, peaking at about $3 million in 2005. According to the California Fair Political Practices Commission, the CCPOA spent more than $32 million between 2000 and 2009 alone, making them the 17th highest spending lobby in the state.

A decade ago, the average salary of a member of the CCPOA was more than $73,000, with more than 6,000 people earning more than $100,000. Mother Jones’s report stresses the pittance the guards at the CCA prison make—about $9 an hour. But in public prisons, overtime pay due to overcrowding has helped increase guard salaries. In fact, prisons became so overcrowded in California—thanks to laws like three strikes, mandatory minimum sentencing, and those related to the war on drugs—that the Supreme Court ruled in 2009 that conditions were unconstitutional. The CCPOA’s power or ugly reputation is not what it was even five years ago, but they still push on issues that are to their benefit.

In spite of Mother Jones, Think Progress, the ACLU and numerous religious groups campaigning heavily against private prisons, Pfaff argues that some actually do have better conditions, especially juvenile detention centers. In fact, the most harshly critiqued detainment centers tend to be immigration ones, which, as stated, will not being affected.

The real threat to the rehabilitation and safety of convicts then does not live in the divide between public and private ownership. Instead, it’s entirely dependent on the people putting criminals behind bars. Prosecutors specifically have a tremendous amount of power and do not have the same kind of guidelines that restrict judges or police officers, such as use of force rules for the latter and mandatory minimum sentencing for the former. District attorneys are the ones who push plea deals so that the majority of defendants never make it to trial. They are the ones who decide to bring any charges at all.

Unfortunately, there’s no easy way to fix our system of district attorneys, but Pfaff does suggest a massive influx of federal funding for public defenders as a potential solution. Some 80 percent of all people who go through the system have a low enough income to require a court-appointed attorney. Unfortunately, public defenders are overworked and underpaid in most areas, sometimes having only minutes to devote to each case. Suddenly, the high number of defendants who go for plea bargains—the New York Times reported one in 40 felony cases make it to trial in 2011—makes sense. And plea bargains don’t mean that a defendant goes free, just that they got talked down or scared into taking a few years in prison after they were threatened with a whole lot more. So it usually just means one more body behind bars. Whether or not those bars are privately owned doesn’t seem like it’ll make much of a difference in our incarceration epidemic, at least not in the long term.

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