Prison Law Blog

Sara Mayeux

What We Talk About When We Talk About Private Prisons

with 8 comments

As I noted in an earlier post, the Hawaii Legislature and Governor Linda Lingle are mired in battle over whether the state should send auditors to the private prison in Arizona where Hawaii sends most of its inmates. In this op-ed, Kat Brady tallies at least five inmate deaths at the Saguaro prison in the past two years and accuses the Corrections Corporation of America of falsifying internal audit reports to downplay troubling incidents. Like any good corporate spokesperson, CCA operations VP Ron Thompson took to the op-ed page to defend his employer against such claims. From the Honolulu Star-Advertiser:

For more than a decade, CCA has partnered with Hawaii to relieve prison overcrowding. In doing so, CCA has provided cost-effective prison space and services that include meaningful rehabilitation programs to help inmates stay out of prison once released. … To ensure that we are accountable, Hawaii’s contract with CCA sets requirements for services and performance. One requirement is accreditation by the American Correctional Association – the nation’s highest standard of professional correctional services. This means that in addition to oversight from Hawaii officials – who have full access to our prisons – we are also audited and inspected by an independent team of professional experts.

Now, I’m sure there are holes to be poked in Thompson’s argument, but I’m less interested in vilifying CCA, and more interested in interrogating the rhetorical limits of the current debate on private prisons. The argument between these two op-eds takes place in fairly practical, dollars-and-cents terms. Brady and Thompson are debating whether CCA prisons are adequately staffed, whether they offer enough rehabilitative programming, whether they’re transparent, whether they’re subject to sufficient state oversight, whether they’re cost-effective for states. If the answer to any of those questions is “no,” then that’s certainly a problem, but it’s a problem that could theoretically be fixed through various regulatory or legislative mechanisms without necessarily scrapping the concept of private prisons altogether. States could mandate higher staffing ratios for private prisons, require more programming, appoint an independent auditor, etc.

Neither side is really engaging the much deeper set of questions raised by private prisons about the legitimacy of the carceral state and the anti-democratic implications of privatizing incarceration. As Sarah Armstrong has written, “Private prisons are evaluated not according to whether they are good or bad, but whether they are cheap, safe, and legal” (PDF p. 277). Let’s take a closer look at the CCA’s own rhetoric. In Thompson’s mildly Orwellian language, CCA is just a “partner” to the State of Hawaii. (See also the CCA’s Q&A about “partnership corrections,” a PDF file tellingly labeled “Brand Message.”) Sounds innocuous enough. But wait a minute: Why should quasi-sovereign states be “partnering” with for-profit corporations to build and maintain cages for their citizens? It’s one thing for states to contract out to private companies to provide specific goods and services but the word “partner” goes beyond that — it implies a relationship of equals. No one elects CCA officials to be the equals of government officials, yet now they have all this de facto power for setting and implementing criminal justice policy. Obviously state law provides parameters, but prison officials necessarily have a lot of day-to-day discretion and to the extent that discretion is being carried out by employees of a for-profit corporation rather than government employees who are ultimately accountable to someone, that may be troubling. If so, that’s a problem that can’t be fixed simply through increased regulation or oversight or better funding of private prisons. It can only be fixed by fundamentally re-thinking privatization.

In the case of Hawaii, both of these levels of questions become especially salient. For our 50th state, outsourcing to CCA necessarily means sending prisoners literally thousands of miles away from their home, to prisons where their families can’t easily visit, state auditors can’t easily visit, legislators can’t easily visit, Hawaii lawyers can’t easily visit, etc., etc. Basically, there’s no way for anyone who cares about Hawaiian prisoners to keep regular tabs on what’s actually going on in the prisons where they’re kept, unless they feel like moving to Arizona. In Hawaii, it seems, a prison sentence is really a temporary exile. Now, maybe that’s the policy that Hawaii voters and legislators want, but if so then it seems that they should clearly and explicitly establish this policy by law, not de facto through a contract with a private corporation. As Newsweek reported this week, the leading private prison companies are also generous political donors in states (like California) where they are courting new business. But that’s neither surprising nor avoidable — all corporations seek to protect their interests. That’s precisely why I think it’s worth debating whether we should allow corporations to have such strong interests in the prison industry at all.

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8 Responses

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  1. Thank you for this timely and important posting. The issue of distance has always been a problem for women prisoners in the Federal prison system. Likewise, with the closure of Lorton in DC, DC prisoners get shipped all over the country. It’s called `efficiency’, I believe.

    Dan

    July 2, 2010 at 6:50 am

  2. Thank you for detailing the implications of prison privatization in general. I’d like to point out a few more reasons that Hawai’i is a good case to think with:

    The state’s land scarcity for prisons is due largely to the fact that significant parts of the islands are US military bases, and to the fact that tourism industry drives up land prices. Subcontracting prison operations onto the US mainland is an expedient choice for policymakers whose economy is driven by mainland cash.

    Hawaii’s government has been intertwined with private business interests ever since the US claimed a formal political stake in the island in the late 1890s. The island became a US territory (and later a state) largely because of US business interests, which supported the overthrow of the indigenous government. The rhetoric of “partnership” is new, but the underlying patterns are much older.

    Imprisoning Hawai’i residents and sending them to the mainland is, as you point out, a form of exile—- but for indigenous Hawaiians, it’s also a separation from their traditional homelands and language communities. Given that indigenous Hawaiians are disproportionately imprisoned relative to their percentage of the state’s population, it’s worth investigating how the use of mainland private prisons hinders the political organizing of indigenous communities on the islands.

    Shane Landrum

    July 2, 2010 at 12:24 pm

  3. I agree that even just the basic concept of making a profit off of imprisonment makes one pause. However, I have to say that in the prisons that I have seen to date, the privately run ones have been some of the best. The staff seemed happier and less trapped in a “us versus them” mentality. The private prisons are accountable – they’re accountable to a greater corporation that wants to keep its contract with the state and may therefore be more likely to abide by state laws/regulations than a state-run facility that has to fear…what, exactly? Prisons aren’t often shut down unless budgetary issues compel closure. Even if an inmate sues, the cost is born by the state and ultimately the taxpayers–not exactly a disincentive to the correctional officials.
    As for the distance issue – I agree that it is a problem that further tears asunder families and worsens the chance for true rehabilitation. But to play devil’s advocate in this forum, nowhere is there precedent (as far as I know) that says separation is cruel and unusual punishment (nor is there likely to be since imprisonment is, in fact, quite literally separation). If states can save money by outsourcing and it’s not inhumane treatment, then I’m not sure of the argument.

    Joanna

    July 3, 2010 at 8:17 pm

    • @Joanna “nowhere is there precedent (as far as I know) that says separation is cruel and unusual punishment (nor is there likely to be since imprisonment is, in fact, quite literally separation).”

      Your standard for making public policy seems pretty low. It sounds like you’re saying that if it’s not cruel and unusual punishment, then do it.

      Warehousing people thousands of miles from home is bad policy because it hurts their children. Kids need frequent contact with both parents. People in prison fulfill vital parental roles during visiting hours. Exiling parents will increase the risk of states having bunch of poorly parented, alienated, and depressed kids. In the long run those children will be a drain on state resources as they need rehabilitative services of their own.

      jmalsb832

      July 6, 2010 at 2:51 pm

      • I was looking at it from a legal standpoint, not a public policy standpoint. Pleading poor visitation is not a good hook on which to hang a legal case.

        However, even from a public policy standpoint, I’m not sure of an argument that would be convincing to state legislators. Right now budget crunches are forcing legislators to look for ways to cut costs and again, inmates wanting more visitation isn’t an issue likely to convince either legislators or taxpayers not to outsource prison costs – unless it can be linked through data to lower recidivism or some other public good. I haven’t seen that data, but I certainly hope that someone does an analysis.

        I’m not saying this is how it should be in a perfect world or even that I agree. People are criticizing a political move and I’m attempting to represent that side.

        Joanna

        July 6, 2010 at 7:18 pm

  4. Joanna,

    Sorry i’ve taken a whole month to respond.

    1. I tend to forget this is a legal blog. I see what you’re saying about court room strategy.

    2. Exiling prisoners may be penny wise, but it’s pound foolish

    http://gritsforbreakfast.blogspot.com/2010/08/incarceration-rates-headed-straight-up.html.

    If legislators are serious about decreasing costs they can look to plenty of existing programs that show how to safely decarcerate nonviolent offenders and reduce recidivism. They can also change the policies that lead to mass incarceration in the first place. That stuff is not rocket science. It’s just plain politics, and mostly the angry and emotive kind. I think sentimental arguments about children separated from their parents are useful that context.

    This article reminded me to respond to you:

    http://sentencing.typepad.com/sentencing_law_and_policy/2010/08/private-prisons-public-functions-and-the-meaning-punishment.html

    It pushes back against the cost arguments in favor of private prisons. It also attempts to broaden the debate and look at values besides efficiency. Which was Sara’s point at the start.

    jmalsb832

    August 9, 2010 at 3:50 pm

  5. 1. The first solution is that Hawaii needs sure that it should only lock up people who need to be locked up, so maybe sentence policies should be more lenient.
    2. Someone mentioned that Hawaii has many military bases. Maybe those bases would like some inmate labor? (Many federal prisons are on the grounds of military bases, so inmates provide labor to them)
    3. Why can’t Hawaii build up? Look at how Japanese prisons are build.

    Donny Marksonton

    September 29, 2010 at 9:42 pm


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