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What are private prisons?

Private prisons are prisons that are privately owned and operated, or leased by private corporations that have total operational control. Such prison services are procured by federal, state and local governments. At present our governments spend approximately one billion dollars to house approximately 130 private prisons nationwide, 150,000 beds, $3 billion/year in profits for the industry around the USA, including immigration detainees. (Source: USDOJ report, pg. ix)

Who uses private prisons?


The Federal Bureau of Prisons, United States Marshall Services, Immigration and Customs Enforcement, US Department of Homeland Security; formerly parts of Immigration, the departments of corrections of the majority of the 50 states, and numerous counties, cities and towns around the country.

How long have privates prisons existed?


The private prison industry was resurrected in this country in the early 1980s as part of the push to privatize many government functions, much of it under the mantra that whatever government can do, the private sector can do better and for less cost.

However, private prisons and jails have been around for several centuries. They existed in the American colonies and during the pre-Civil War history of the United States.

What is the problem with private prisons?


A. The government breached its social contract with the people of the United States by selling the incarceration of people to the lowest bidder. “We the People” of the United States surrendered power and individual liberty to form a government that would in tum provide order and protection of individual liberties. Thus, an individual’s life, liberty or property may not be taken without “due process of law”. The private prison vendor is not the law. The taking of liberty is an inherent governmental function that may not be delegated to profit-making ventures.

B. Once having delegated the function to prison corporations, the government has injected serious financial bias into the criminal justice system. These corporations have no incentive to rehabilitate or release prisoners. They have financial incentives to keep prisoners longer and they spend lots of money on Congress and state legislators to put more people in prison and for longer sentences. As jailers they are responsible for reports that affect liberty and early release time.

C. Crime and punishment should be viewed by government officials as societal burdens that cry out for public solutions. The private prison profits from societal decay and commands contracts that guaranty 90% occupancy and taxpayer payment for empty beds. Worse, the prison corporation is not transparent. The people who run them are not accountable to the voters. The incentives are all wrong.

D. The inmate himself or herself becomes a commodity, a de-humanized source of profit for the corporations. What does that look like? It is a new form of the plantation, of slavery. More is taken from the inmate than liberty itself. The inmate’s very presence, very humanity, is reduced to a dollar value to the corporation that imprisons him.

E. Certification standards for correctional officers also suffer in the private prison system, which affects safety and security.

Has anyone brought this challenge before? If not, why is that?


A. No. This will be a case of first impression. There are two court opinions that comment on the issue in non-binding, non-precedential fashion. The opinions are very weak intellectually and it is plain from reading them that the constitutional issues were not briefed to the court by the parties.

B. The two opinions mentioned are not favorable and may have scared off potential challengers. Some assume the industry is too entrenched to be abolished. That is a short view of history-consider how long slavery, apartheid and other forms of discrimination were with us before societal values changed. Changing values have enormous impact on the Supreme Court.

C. It is noteworthy that the Supreme Court of Israel has already declared prison privatization to be a human rights violation and therefore unconstitutional in Israel.

Can you win?


Yes. When something is terribly wrong, of course we can win. We have already invested substantial effort in preparing a challenge and will do much more, especially with your help. The time is right for this challenge. Societal values have changed since the early 1980s. Much more work has to be done but the foundational research is done. The American Bar Association (ABA) itself have been very skeptical of the constitutionality of private prisons for some time. There just hasn’t been a lawsuit to make the challenge.

It is noteworthy that the Supreme Court of Israel has already declared prison privatization unconstitutional in Israel as a human rights violation