String of Lawsuits Isn’t Scaring States Away from Corrections Corp. of America

Bob Ortega of the Arizona Republic has been reporting an excellent series on the private prison business. This article is a must-read for summarizing the many connections between Arizona local and state officials and the Nashville-based Corrections Corporation of America. Definitely go read the article, and the “Price of Prisons” series it’s part of, in full. For the purposes of this blog, the highlight of the article is the litany of lawsuits that CCA is facing all over the country. Several stem from the Arizona CCA facilities where Hawaii ships a large number of its prisoners. One Hawaii inmate alleges he was forced to give oral sex to a guard at an Arizona CCA prison; 18 Hawaiian inmates say they were stripped, beaten, and threatened by guards in retaliation for a fight; two other Hawaii inmates were killed by other inmates and their families are alleging that prison security was inadequate. Elsewhere around the country, three female inmates claim they were sexually assaulted at a Kentucky CCA facility; after a series of sexual assault cases nationwide, both Kentucky and Hawaii have removed all their female prisoners from CCA institutions. The most notorious CCA lawsuit, though, is the Idaho “Gladiator School” suit, which alleges 13 instances in which CCA officers opened doors to let violent inmates attack other prisoners and did not intervene during the beatings.

Here, as reported by Ortega, is CCA’s response:

Asked about the suits, CCA’s Owen said, “These are allegations that have not yet been proven in a court of law. These are not established facts, and we respond in court, so I’m not at liberty to respond.”

He said that in June, Hawaii awarded CCA a three-year, $136.5 million contract to continue housing that state’s inmates in Arizona.

“That was a competitive-bid process,” Owen said.

CCA was the only bidder.

“There isn’t a corrections system in the country that’s immune to lawsuits or incidents,” Owen said. “Those don’t necessarily tell the whole story. You have to look at our overall track record. . . . Do incidents occur? Yes. Are we responsive when things happen? Do our partners continue to trust and work with us? Yes.”

The article also notes the troubling lack of security at the Arizona private prisons where many California prisoners are transferred. I’ve heard from prisoners who’ve done time in private prisons that they did not feel safe there. Paid a low hourly wage, private prison guards have little incentive to risk physical harm by intervening in violent situations. In addition, Ortega’s article points out that CCA does not perform full background checks on guards or check whether they have relationships with inmates.

Nevada Private Prison Joins Trend of Replacing Visits with Closed-Circuit Video

The Las Vegas Review-Journal has this interview with the warden of a brand-new private prison. The interview itself is worth reading as a quick look at a warden’s point of view, but I wanted to highlight this line from the introductory material:

Nevada Southern, built by Nashville, Tenn.-based Corrections Corp. of America for $83.5 million, will look different than traditional prisons in more than just ownership. Prisoners can meet with outsiders, except lawyers, only through closed-circuit video feeds. In-person contact, in a large room or separated by heavy glass, has passed into history.

Between their out-of-the-way locations, security measures, advance paperwork requirements, limited visiting hours, exorbitant phone call fees, etc., prisons can make it very hard for inmates to coordinate and receive visits from family and friends. Yet studies have consistently suggested that prisoners who receive visits and maintain family ties fare better in terms of recidivism and reentry after they return to their community (as 90% of prisoners eventually do). In turn, visits are also important for prisoners’ children; studies suggest “those who visit their parents more often and under better visiting conditions exhibit fewer adjustment problems” (Petersilia, When Prisoners Come Home, p. 44). Although I do not know if it’s been empirically proven, I would be surprised if a closed-circuit video visit has the same meaning to either prisoners or their visitors as a face-to-face conversation. I would assume that if pressed about this policy, CCA would say it’s about keeping out contraband and/or cutting costs. But it sounds to me like a short-sighted, counterproductive measure.

Latest in Lawsuit Over Idaho’s “Extraordinarily Violent” Private Prison: CCA Asks Judge to Throw Out Suit on Exhaustion Grounds

In March of this year, the ACLU filed a class action federal lawsuit alleging a pattern of rampant violence in an Idaho prison operated by the Corrections Corporation of America. The complaint (which can be downloaded here) begins:

ICC is an extraordinarily violent prison. It is known in Idaho as “Gladiator School” for a reason. More violence occurs at ICC than at Idaho’s eight other prisons combined, and the unnecessary carnage and suffering that has resulted is shameful and inexcusable. ICC not only condones prisoner violence, the entrenched culture of ICC promotes, facilitates, and encourages it. Indeed, ICC staff cruelly use prisoner violence as a management tool.

It goes on to describe the “symbiotic relationship [that] exists between certain staff and notoriously violent prisoners,” in which “guards persistently send vulnerable prisoners to live near predatory prisoners, and when these predators commit assaults, they receive mild punishment, and often no punishment.”

This week, CCA lawyers asked the judge to throw out the lawsuit on the grounds that the plaintiffs did not first exhaust their administrative remedies as required by the Prison Litigation Reform Act. (The PLRA was passed in 1996, ostensibly to block frivolous prisoner lawsuits. Yet, it has been roundly criticized by prisoners’ rights advocates for mounting insurmountable procedural obstacles to meritorious claims.) Note that earlier this year the ACLU reached a separate settlement with the state of Idaho, which agreed to “aggressively oversee compliance” with any federal court order that results from this litigation. Therefore, CCA is the only remaining defendant.

Regardless of what happens next in this lawsuit, the complaint is well worth reading in full — a disgraceful catalog of fractured ribs, broken noses, knocked-out teeth, wired jaws, and other injuries, all imposed by prisoners upon more vulnerable prisoners with impunity for the perpetrators, and often without even the necessary X-rays and medical care for the victims. The allegations at issue in this case have been shocking even to seasoned prisoners’ rights lawyers:

“In my 39 years of suing prisons and jails, I have never confronted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights violations than this one,” said Stephen Pevar, a senior staff attorney for the ACLU. “The level of unnecessary human suffering is appalling. Prison officials have utterly failed to uphold their constitutional obligation to protect prisoners from being violently harmed and we must seek court intervention.”

Ninth Circuit: Nevada’s Women-only Prison Guard Policy Violated Title VII

After a Nevada inmate was impregnated by a male prison guard in a private Corrections Corporation of America facility, the state canceled its CCA contract and implemented a new hiring policy for its women’s prisons. Under the policy — which is no longer in place — all supervisory (or “lieutenant”) positions would be filled by women and the line prison guard staff would be 70% women. In a Title VII challenge to that policy filed by several male prison guards, the Ninth Circuit has reversed a district court grant of summary judgment for the state. The panel reasoned that sex is not a bona fide occupational qualification for a supervisory position in a women’s prison, rejecting the state’s implications that men are more likely to tolerate sexual abuse, that male supervisors are more likely to sexually abuse inmates, and that female guards are “less susceptible to manipulation by inmates” (PDF p. 9688). Judge Marsha Berzon, writing for the panel, criticized these arguments as stereotypical: “Disturbingly, in suggesting that all men are inherently apt to sexually abuse, or condone sexual abuse of, female inmates, NDOC relies on entirely specious gender stereotypes that have no place in a workplace governed by Title VII” (PDF p. 9695).

The Journalistic Trope of Comparing Jails to Hotels

Sometimes journalists who cover jails, prisons, immigration detention centers, etc. spice up their ledes by making some imagined comparison to hotel amenities. In fairness, their sources who are also fond of the comparison (see, e.g., this post). Anyway, here’s an example from today’s Atlanta Journal-Constitution:

New menus. Redesigned living areas. Bingo nights. Dance classes. Continental breakfasts. Self-serve beverage bars.

These aren’t features of some swanky new hotel. They are among a host of new amenities that Immigration and Customs Enforcement is considering at two immigration detention facilities in Georgia.

I would really like to see a moratorium on this trope. It’s somewhat offensive and virtually always inaccurate. This article refers to eight private immigration jails run by Corrections Corporation of America that are due to be redesigned. Whatever the new amenities after the renovations, I can pretty much guarantee they will not resemble “swanky new hotels.” Hotels typically aren’t surrounded by concertina wire. And I’ve known some swanky people in my time and they do not typically build their travel itineraries around where they can get bingo and self-serve lemonade.

At most, the redesigned CCA facilities will resemble prisons somewhat less than they do now. This makes some people angry. But note:

What We Talk About When We Talk About Private Prisons

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.

Hawaii Legislators Call for Audit of Arizona Private Prison Where Two Inmates Have Been Killed in Four Months

After two inmate-on-inmate killings in the past four months — as discussed in this local news report — Hawaii legislators are calling for a state audit of the Saguaro Correctional Center in Eloy, Ariz., the private prison that Hawaii pays $60 million a year to house 2,000 male inmates. Saguaro is run by Corrections Corporation of America, the nation’s largest private prison corporation (or, as CCA calls itself in a somewhat Orwellian turn of phrase, “America’s Leader in Partnership Corrections”). The article notes that Hawaii used to send its female prisoners to another CCA prison, Otter Creek in Kentucky, but brought them all back after allegations of rape and abuse (I’ve posted before about rape allegations at Otter Creek). Republican governor Linda Lingle has indicated that she may veto the audit bill. The ACLU Hawaii website has information on how you can share your views with Gov. Lingle.

Apart from the issues with privatization generally, I am curious as to what readers think about Hawaii’s practice of exiling its inmates across the Pacific. Arizona is about a six hour flight from Hawaii, to say nothing of Kentucky. Even assuming an inmate’s family has the money for plane tickets, that’s not an easy trip to fit in on a weekend. According to this local article, Saguaro was built especially for Hawaiian inmates, observes Hawaiian holidays, and employs a “Native Hawaiian Cultural Advisor.” I can’t imagine all of that is too much comfort for inmates’ family members, many of whom must be effectively barred from visiting their loved ones in prison by the 3,000+ mile distance between them. Prior to the Arizona contract, Hawaii was scattering inmates to Mississippi, Oklahoma, and Kentucky, so consolidating everyone in Arizona was (supposedly) intended in part to make it easier for families to visit. But surely it’s still not that easy.

Here’s another wrinkle in all this. The first inmate who died was reportedly killed by two fellow inmates who have now been indicted for first-degree murder under Arizona law, and Arizona may seek the death penalty — although Hawaii doesn’t have the death penalty. This is just one of the many jurisdictional knots that arise when states outsource their inmates. To be clear, I don’t see any purely legal reason why Arizona shouldn’t seek the death penalty if authorized under Arizona law, but I thought it was an interesting issue to flag for readers who follow the death penalty.

At least one inmate (though the quote is anonymous) blames the violence at Saguaro on understaffing. In the same article, Honolulu prosecuting attorney Peter Carlisle apparently blames it on the fact that prisoners are inherently “unstable and dangerous,” which leads me to wonder if Carlisle thinks prisons have any responsibility to keep inmates safe. Tellingly, the article quotes a state estimate that Hawaii saves $43 million by outsourcing imprisonment to CCA. Considering the travel costs that must be involved, I would not be surprised if some of those savings are coming from leaner staffing, although maybe overhead is just exponentially lower in Arizona. Anyway, I suppose these are the sorts of things we might learn if the audit goes forward.

Idaho: 30-Year-Old Federal Lawsuit over Prison Conditions May Be Nearing an End

In the early 1980s, a federal judge found that “virtually every inmate” assigned to a particular unit of the Idaho state prison had been “brutally raped.” And that was on top of overcrowding, limited access to psychiatric and medical care, inadequate food, lack of warm clothing, and other unconstitutional conditions at the prison. A number of inmate lawsuits were consolidated into one, the so-called “Balla case,” which remains ongoing to this day. (The inmates were initially represented by one of their own, subsequently represented by the ACLU, and are currently represented by the Western regional law firm Stoel Rives.) Now, as the AP reports, U.S. district court judge Lynn Winmill will soon decide whether to discontinue the component of the lawsuit addressing violence and health care. Although overcrowding remains a problem, Judge Winmill suggests that it may be better addressed by new lawsuits.

The invaluable Civil Rights Litigation Clearinghouse, a website of the University of Michigan law school, provides a summary of the litigation complete with copies of the filings. The clearinghouse notes that at least one result of the ongoing litigation has been to fuel privatization of Idaho’s prison complex:

In response to the decision, Idaho prison officials transferred more than 300 prisoners to a Corrections Corporation of America prison in Appleton, Minnesota, at a cost of $1.1 million. According to news reports, prison officials plan to ask the state legislature for $160 million to construct three new prisons, and for an additional $7.9 million to cover the cost of housing overflow prisoners both out-of-state and in county jail cells.

Vermont Supreme Court: Prisoners Transferred Out-of-State Have Same Rights as In-State Prisoners

The Vermont Supreme Court recently ruled in a case that, although legally binding only for Vermont prisoners, may be of broader interest to the many states that transfer inmates to out-of-state facilities because their own prisons are overcrowded. Out-of-state prisons are typically run by private companies that may impose different rules, and may provide prisoners with fewer rights and privileges, than state-run facilities. So, the question that logically arises is whether it’s permissible to treat prisoners differently based solely upon the happenstance of where they’re housed, or whether out-of-state and in-state prisoners must be treated equally. This week’s Vermont Supreme Court ruling suggests the latter, in a ruling with two parts. First, the court holds that out-of-state prisoners are entitled to all the same statutory rights and privileges that in-state prisoners have under Vermont law. Second and potentially farther reaching, even for rights and privileges provided for by prison policy rather than statute, the court suggests that out-of-state prisoners may have a viable equal protection challenge under the Fourteenth Amendment.

Here are the facts: Vermont’s prisons have two rules in place to facilitate inmate communication with family and friends outside. First, when making phone calls, inmates have a statutory right to choose between making collect calls or paying with debit calling cards. Second, although this rule is not statutory, prison policy is to provide all inmates with up to seven free postage stamps per week. It so happens that, through a contract with the private Corrections Corporation of America, Vermont houses about 600 prisoners in a private Kentucky facility where inmates can only make collect calls (which are more expensive and which don’t always work with cell phones) and receive no free stamps. But, the Vermont Supreme Court recently held, all Vermont prisoners, regardless of where they’re incarcerated, have to be afforded their state statutory right to calling cards. As for the postage stamps, the court remanded back to the trial court to flesh out the record on whether there’s a constitutional equal protection violation. That component of the ruling may be of broader interest since it’s arguably a closer question, and rests not on Vermont law but on the Equal Protection Clause of the Fourteenth Amendment:

In Federal Lawsuit, (Yet Another) Woman Alleges She Was Raped by Employee at Kentucky Private Prison

A former inmate at Kentucky’s Otter Creek Correctional Center, a private prison run (like most private prisons) by the Corrections Corporation of America, has filed a federal lawsuit alleging she was raped repeatedly by a CCA employee who threatened to block her parole if she did not comply with his demands. This inmate is apparently one of many who alleges she was raped by Otter Creek employees. The Louisville Courier-Journal reports:

CCA spokesman Steve Owen said in an e-mail Thursday that the employee was terminated last March. …

At least six workers at Otter Creek have been charged with sex-related crimes involving inmates at the facility.

Gov. Steve Beshear announced last month that the state will move more than 400 women prisoners out of Otter Creek given the allegations of sexual misconduct by male workers there.

The women prisoners will be transferred to the state-run Western Kentucky Correctional Complex in Fredonia this summer, and the nearly 700 male inmates now there will be moved to Otter Creek, which has more than 650 beds, and other prisons in the state.

Note that private prisons are considered “state actors” to the extent that they can be sued for constitutional violations — but unlike state employees, private prison guards don’t enjoy qualified immunity, per the U.S. Supreme Court’s decision in Richardson v. McKnight, 521 U.S. 399 (1997).