The Private Prison Primer: How is this even legal?

MuckRock – by Beryl Lipton

In the beginning, private prisons seemed almost natural.

A private prison is one run, and typically owned, by the private sector – ideally, for the operator, at a profit. By the time the idea was under consideration by the United States Department of Justice, correctional bits and pieces were already being run privately.  

As privatized prison management was budding in the early 1980s, private halfway house and treatment centers were common; 49 states, and the Bureau of Prisons itself, contracted for juvenile centers. Private probation operations had repeatedly stood up in court. And two federal agencies – Immigration and Naturalization Services (INS) and the U.S. Marshals (USMS) – already contracted with private entities to run immigration detention centers.

Further, the 1988 Report of the President’s Commission on Privatizationstrongly suggested a foray into privatized prisons and background on the authorization of the Bureau of Prisons to go ahead with the idea.

To this day, America’s correctional system relies on a privatized distribution network that has metastasized to every available detention service.

So, for some, wholecloth privatization of a prison seemed like a reasonable, even necessary, progression.

But amidst the practical conversation of rising prison populations, facility shortages, and cost savings crept another issue that rarely rears its head in serious talks with serious men about economic government administration: propriety.

The Director of the Bureau of Prisons Norman Carlson had reservations in 1985, when the idea was being broached.

However, he suggested that if they wanted to, they could.

Also knotted up with concerns of government responsibility was the issue of profit motive, a key point for both sides of the prison privatization coin. On one side, the innovating incentive of private enterprise; on the other, the multiple opportunities for money’s moral erosion.

Add to that the problem of condoning a centralized business machine to grow in the decentralized public prison environment, and suspicions were high. Suspicions, proponents suggested, that would be assuaged by oversight and results.

For one, the American Bar Association, though not a federal agency, suggested that rather than some private sector solution, one might consider some stronger federal oversight of incarceration procedures nationwide.

For private prisons to have a future, as a solution or an investment for both politicians and financiers, it was important to have a defense against whatever criticism. It was important that they be legal.

Years later, prison privatization and its legality are up for debate again. The leading Democratic candidates have come out against them, in part because their fanbase finds the thought a bit distasteful. The Senate, one-half of America’s law-making apparatus, is considering legislation that could ban them, which, at this point, could easily fail.

This has been the case for a while. Today’s overcrowding crisis is no new phenomenon. In the early nineties, over half of the U.S. states’ systems were on court order to reduce prison populations that were unconstitutional under the Eighth Amendment, cruel and unusual punishment. We’re on the continuation of a steadily rising population fueled by sentencing changes and impervious to disjointed attempts at incarcerated education and work-based rehabilitation.

At least nine states had passed legislation authorizing private prisons by 1991, the year that the United States Congress’s investigative division, theGovernment Accountability Office (GAO) issued a report expressing extreme caution. Tasked as the head auditing honcho of the federal government, the GAO is the internal gauge on bad government ideas, and in this case, it thought that the Bureau of Prisons had no authority to pass off its incarceration responsibilities. If Congress gave it to them, it should be on a trial basis.

But the Bureau of Prisons couldn’t stop running out of room. So they saw if their authorizing statute left room for them to get private prisons anyway.

In 1992, the decision went to the Attorney General. And today the BOP has 14 privately-operated facilities.

Private prisons seemed an almost natural progression in the beginning. Private prisons were theoretically a stopgap measure for while the United States figured out how to handle its crisis, but they had long-term potential, if the private sector in fact was able to deliver on its lauded 1980s promises: correctional innovation through competition at lower costs than the government could manage.

So under an opinion request from the Director, the AG decided the BOP could legally contract with private sector prison contractors. The decision came in April. By December, Quinlan retired, taking years of internal BOP experience with him.

The various routes that each state took to enacting privatization laws are unique enough to deserve their own evaluation. But that fact alone suggests advantages that private sector corrections has over its government counterpart: a centralized cohesion in its mission and enough familiarity with local systems to adjust. Add to that the fact that at the federal level and across the states, standard ethics requirements do very little to prevent the private sector from swiping experienced employees, and the experiment with private prisons spits its lack of control right in the face of the scientific method.

Nonetheless, hundreds of contracts have been entered into across the country.

These contracts have often included a quota, a reasonable abstract business request but a common outrage in this context. They’ve also included bits about having appropriate American Correctional Association accreditation and cost-saving standards. But they don’t have real performance measures or challenges – as a tool as it is, it’s a waste. Rather than regularly demand rehabilitative measures or innovative education on some incentive-based reward system, they generally promote the status quo but cheaper. And then the government is legally bound to the low standards it has set, for itself and for its contractors.

All of which have left places vulnerable to private correctional firms turning the table on them, because, of course, it isn’t technically illegal for a business to exploit governmental inadequacy.

Other legal and constitutional issues have fallen into place for now.

Materials can be legally kept from the public, because private companies get that right. That’s standard practice.

Adjustments can, and have, been made to existing rules governing private security officers to allow otherwise inexperienced employees the ability touse force on inmates just as a public correctional officer would. That’s an easy fix.

And constitutional concerns would rely on demonstrable, systematic violation of rights to due process and standards generally afforded public prisoners. That’s hard to prove.

Further, ethics considerations explicitly state that particular post-employment exemptions can apply to those particularly suited for a private sector position. One would be hard pressed to say that someone with decades of correctional experience isn’t particularly well-qualified to help a company establish a competitor to that model.

So, that three Directors of the Federal Bureau of Prisons – early skeptic Norman Carlson, J. Michael Quinlan, and Harley Lappin – have gone on to lauded careers with major private prison operators, then, should come as no surprise. Throughout the criminal justice system, correctional professionals regularly move between the public and private sectors. It’s too easy, and not quite accurate, to criticize generally as nefarious.

Even still, both early supporters and opponents of private prisons agree on a few key issues. We have too many people in prison. Current rehabilitation programs aren’t working. And it remains exceptionally difficult to compare the effectiveness of the two.

In the current system, there is nothing necessarily inherently illegal about the use of private prisons. How are they even legal? In part, because — despite private-public turnover and speedily passed laws and court interpretations —

And future beneficiaries made a strong case for it.

And now here we are.

It’s a banal answer to a natural question. But it’s an important one.

Despite your feelings on the 2016 State of the Union generally, President Obama made at least one useful point.

“But democracy does require basic bonds of trust between its citizens. It doesn’t work if we think the people who disagree with us are all motivated by malice. It doesn’t work if we think that our political opponents are unpatriotic or trying to weaken America. Democracy grinds to a halt without a willingness to compromise, or when even basic facts are contested, or when we listen only to those who agree with us. Our public life withers when only the most extreme voices get all the attention. And most of all, democracy breaks down when the average person feels their voice doesn’t matter; that the system is rigged in favor of the rich or the powerful or some special interest.”

But that means if we want a better politics — and I’m addressing the American people now — if we want a better politics, it’s not enough just to change a congressman or change a senator or even change a President. We have to change the system to reflect our better selves.”

Private prisons are legal in the United States. The questions of how to make that happen were dealt with decades ago.

So the question, then, becomes: now what?

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