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.
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.
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.
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 There are two court opinions that comment on the issue in non-binding, non-precedential fashion.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.
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.
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.
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.
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.
Research Into Privatization
The United States has the largest immigrant detention infrastructure in the world with over 400,000 individuals passing through detention each year. The expansion of the system is in part due to an arbitrary quota from Congress that requires the incarceration of 34,000 immigrants in detention at any given time. This policy, known as the detention bed quota is unprecedented; no other law enforcement agency operates on a quota system. “. . . at a current cost of over $2 billion each year, immigration detention quotas are a way for the private prison industry to protect their bottom line.” (from Detention Watch Network) See Public Law 114-4, Section 544, 114th Congress.
Comprehensive immigration numbers compiled by Detention Watch (2009) are staggering; ICE had an adult average daily population (ADP) of 32, 606 in a total of 178 facilities. Of these, 15,942 detainees—or 49%—were housed in thirty privately-operated detention centers. Corrections Corporation of America (CCA) is the largest private contractor of ICE detention beds. The company operates a total of 14 ICE-contract facilities with a total of 14,556 beds. In 2009, CCA averaged a daily population of 6,199 detained immigrants. Since then the number has just gone up and up, with no sign of reduction.
The 2015 report, “Banking on Detention: Local Lockup Quotas & The Immigrant Dragnet”, published by Detention Watch Network and the Center for Constitutional Rights, provided more updated information. The number of people detained each year increased from 2009 to a record-breaking 477,000 in fiscal year 2012. As of 2015, 62% of immigration detention beds were operated by private prison companies. “This interdependent relationship with private industry has produced a set of government-sanctioned detention quotas that insure profits for the companies involved while incentivizing the incarceration of immigrants.” Accordingly, a large portion of the over $2 billion in fiscal year 2016 budget for detention operations will ultimately go to for-profit contractors.
To exacerbate the situation, ICE’s contracts with private detention companies impose local lockup quotas, or “guaranteed minimums”. Guaranteed minimums require government payment to contractors whether beds are filled or not, and thus function as local lockup quotas. The report concludes “. . . the growth of local lockup quotas is inextricably linked to the rise of corporate interests in immigration detention.” Publicly-traded prison corporation GEO Group has been most successful in getting guaranteed minimum clauses incorporated into their contracts, and thus their facilities now are often prioritized in order to fill local quotas. Among the reform recommendations contained in the report, the report “calls on ICE to stop contracting with private companies that lobby to pervert public policy via guaranteed minimums and other contractual giveaways.” “. . . that private sectors should not be rewarded for placing a price tag on the deprivation of liberty and the government should be held accountable for being a willful participant in this corrupted system.”
Migration Policy Institute - Profiting from Enforcement: The Role of Private Prisons in Immigration Detention
The United States' problem with mass incarceration and private prisons cannot be overstated. The US has 5% of the world’s population and 25% of its inmates. The US’s incarceration rate is the highest in the world, in fact more than 4 times the world’s average.
The US has 2.2 million people serving time in prisons and jails, and more than twice that many on probation or parole. Since 1980 this population has more than quadrupled. Private prisons enjoyed a re-birth in the U.S. that began in approximately 1980.
ACLU - Banking on Bondage
Brennan Center- Do Private Prisons Fuel Mass Incarceration?
All around us there is evidence that racial inequality in the United States is a persistent and systemic issue. One place where it is easy to see the consequences of racial inequality is the private for-profit prison industry. Our system of mass incarceration falls most heavily on Black and Latino individuals and families.
Black and Latino people make up 30% of the USA population, showing the racial shift in the overall population. However more than 50% of the inmate population are Black and Latino. Black and Latino children are 2 to 7 times more likely to have a parent incarcerated than White children. Based on historical trends, nearly one third of Black men and one sixth of Latino men born in 2001 will serve time in prison. For black men, this is 5.5 times the rate of White men.
There is no debate that people of color disproportionately suffer at the hands of our criminal justice system generally, and even more so due to the private prison industry.
Recidivism represents an investment opportunity rather than a societal ill to private prison corporations. This dynamic create perverse incentives that discourage rehabilitation, successful re-entry programs, education, and alternatives to incarceration. This is because every inmate body in a prison cell represents a unit of profit on corporate balance sheets.
A. Mukherjee - Impacts of Private Prisons on Recidivism
In The Public Interest - How Private Companies Increase Recidivism
A. Spivak and S. Sharp - Inmate Recidivism as a Measure of Private Prison Performance
If we want to understand the total impact of the private for-profit prison industry we must understand the economic impact of this industry. Because incarceration rates continue to increase, despite decreasing crime rates, real spending on incarceration exceeds $80 billion annually. Eleven states in the U.S. spend more on incarceration than higher education.
Indirect costs of incarceration add up to hundreds of billions of dollars annually in the USA. For example the U.S. system of mass incarceration hurts the poor, people of color, families and taxpayers. It is becoming increasingly difficult for individuals to be successful and attain the American Dream after coming out of the criminal justice system. The rise of the private for-profit prison industry has only made this worse. Government contracts with prison vendors have made it very profitable for large corporations and shareholders to put people into prisons. Private prisons are paid for each day prisoners occupy their prison cells which means they have no incentive to release prisoners. This profit motive is causing our society to incarcerate increasing numbers of people in private prisons. For-profit prisons financially benefit from long-term incarceration and recidivism.