Sunday, February 24, 2013

Profiting off Prisons: A New Threat to Due Process

            In 1984, and amid a wave of scandals concerning the overcrowding of prisons with ever-increasing numbers of Drug War convictions, the United States began its experiment with private incarceration. It began simply, with a minor contract with the state of Tennessee to handle a prison in Hamilton County; the contract was given to a then-unknown Corrections Corporation of America. The decision was originally thought to be an innocuous one – after all, prisons have an established history of using contractors to outsource basic administrative tasks such as medical services and food preparation. From 1985 onward, private prison corporations such as CCA and the GEO Group have expanded vigorously, entering markets in several other states, all while championing a case of efficient prison administration, cutting costs, and easing the budgetary burden of the state legislatures.
             This expansion has been, in large part, the result of an extensive lobbying campaign that private corrections firms and consultancies have employed to influence the preferences of both legislators and the general public. From the perspective of CCA and GEO, these efforts have been wildly successful. From 1990-2009, federal and state public prison populations have doubled, whereas private prison operators have seen a 17-fold increase in the number of inmates given to their charge. Advocates of privatization urge that such success is indicative of state legislatures recognizing the apparent benefits of contracting out corrections, but the data is inconclusive that efficiency gains made by the public-private transition are very meaningful, if they exist at all. The above-referenced link discusses a New York Times analysis of a University of Utah study and subsequent state investigations that found that, in some cases, private prisons save states only pennies per day in housing costs, and those that do save meaningful amounts of money do so by engaging in a worrying practice of only contracting for healthy inmates and providing fewer and lower-quality medical and rehabilitative services.
            Indeed, one cannot understand the staggering growth of private prison contracts without acknowledging the substantial degree of influence that private prison lobbyists exert on the legislative process. From creating a labyrinthine series of “consultancies” and PACs to influence lawmakers at every level of the executive and legislative process, funding the campaigns of conservative and small-government legislators, drafting laws that limit judicial discretion and pursue incarceration even for minor infractions, to out-and-out corrupting judges to incentivize them to imprison for longer terms, private prison corporations and their supporters at ALEC have created what some term a prison-industrial complex. The goal of this partnership between those charged with maintaining the public safety and those that benefit from a robust and thriving prison population? A seemingly endless chain of incarceration, an increase in predictable profits, and the wearing down of legal protections that frustrate their goals.
            Needless to say, a prison-industrial complex – even if unintentionally – threatens the basic protections of due process and fairness of trial upon which the entire criminal justice system relies. The intersection of money and politics always creates, as it should, a suspicion of impropriety – of those using nonpublic back channels and significant resources to secure legislative concessions that would never have been allowed if the subject of public spectacle. Private corrections is now a multi-billion dollar industry, and some of that money finds its way back into the hands of those charged with maintaining the integrity of the system upon which it depends. The perverse incentives for a legislator to draft harsher sentencing guidelines, for a prosecutor to push for less leniency, and for judges to give it are too apparent to ignore. Even with regulatory safeguards, the economic and financial realities of private prisons will corrupt.

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