Prisons

The Justice Department Is Wrong. Private Prisons Aren't the Problem.

Private prisons are a symptom. Mass incarceration is the disease.

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Prison
Dreamstime

Liberal critics of the U.S. criminal justice system overwhelming cheered the Justice Department's recent decision to cancel federal contracts with private prisons. Their enthusiasm for this misguided half-measure is disappointing, and betrays a fundamental misunderstanding of the real problem.

The criminal justice system is not broken because there are too many people in private prisons. It is broken because there are too many people in prison, period. Merely shuffling prisoners from one form of captivity to another might be an exciting development for lefties whose driving force is hatred of corporations and profits, but the move won't accomplish much else. It may even make life even more uncomfortable for the actual prisoners.

If left-leaning reformers understand this, many of them aren't letting on. Black Lives Matter activist Shaun King hailed the Justice Department's decision as a "huge deal." Ilyse Hogue, the president of NARAL, called it "one of the most significant victories of the decade." California's Democratic Attorney General Kamala Harris said that she applauds the decision. "Mass incarceration should not be incentivized by private gain."

This analysis is ahistorical. Private prisons did not create the conditions that encouraged mass incarceration—private prisons came into being as a response to mass incarceration.

As Reason's C.J. Ciaramella points out, the federal Bureau of Prisons started contracting with private corporations in 1997. The government took this step to help alleviate overcrowding, having arrested and imprisoned huge swaths of the population as a response to public panic stemming from the crime wave of the 1980s and early '90s. Incarcerating so many people was an overreaction to the problem—it was bad public policy, and terribly costly. The rise of private prisons is a symptom of this mistake, and getting rid of them without addressing the underlying condition that made them necessary in the first place is counter-productive to the cause of criminal justice reform.

Where are these federal prisoners going to go? Back to publicly-run prisons? It might very well be the case that further overcrowding of public prisons is the consequence of closing private prisons. While it may delight liberals to know that private companies aren't making money off of prisoners' misery anymore, the prisoners will still be, well, prisoners. They might even be more miserable, living in more closely confined quarters and competing with even more inmates for prison resources.

The Justice Department claims that it reviewed its private prisons and found them lacking. "They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department's Office of Inspector General, they do not maintain the same level of safety and security," wrote Deputy Attorney General Sally Yates, according to The Washington Post. This matches the public perception of private prisons. The media routinely portrays them as less safe: the most recent season of Orange is the New Black insists that privatization is nothing short of a humanitarian crisis for inmates, and Mother Jones garnered universal acclaim for an investigative report on the inadequacies of a private prison in Louisiana.

No one disagrees that private prisons have huge problems, are often mismanaged, and frequently neglect inmates' safety. But public prisons are plagued by the exact same problems. It's not clear that one kind is clearly better run than the other. And private prisons have at least one important advantage over public prisons: it's easier to hold management responsible when management is someone other than the government. As Reason's Leonard Gilroy and Adrian Moore observed, "If dissatisfied with performance, a government can cancel a prison contract with a private company. By contrast, the government tends not to fire itself, and the watchmen ultimately watch themselves."

Concerns that private corporations will pack their prisons as tightly as possible in order to take in more inmates—and thus, more funds—are legitimate. But public prisons have worrisome incentives, too. Unions representing prison guards, for instance, want their prisons overflowing: they want to protect their members' jobs.

Keep in mind that the overwhelming majority of prisoners—state and federal prisoners—are locked up in a public prison. Private prisons hold just about 10 percent of all inmates. The Justice Department's order only applies to federal prisoners, but even if it were expanded to cover all prisoners—a legally dubious move, to be sure—this just wouldn't be a very big slice of the pie.

But more importantly, what good would it do these prisoners, anyway? They will still be locked up, and that's the real public problem, not the manager overseeing their confinement.

Most federal prisoners in privately-run prisons, in fact, have violated immigration laws. If the federal government really wanted to do something for these people, it could enforce immigration laws differently and re-sentence prisoners. The U.S. government should imprison fewer people whose only crime was trying to live in this country, and it should find ways to manage other criminals that do not require locking them up for decades. The government could, for instance, focus on rehabilitation and reducing recidivism. It could require prisons to develop programs to accomplish these priorities, with the ultimate goal of reducing the prison population (and potential prison population), saving money in the long run.

In reality, some state and local governments are already doing this—with private prisons. Pennsylvania, for instance, made reducing recidivism rates among prisoners a factor in determining compensation for private prisons. And governmental authorities in New York and Massachusetts are making creative use of private investment to achieve desirable prison goals. (For more information on these programs, read Gilroy and Moore's article.)

Bernie Sanders wants to ban private prisons entirely, and many liberals apparently agree with him. (Democratic presidential candidate Hillary Clinton has merely stopped accepting campaign donations from corporations that run them.) It would take a lot of political effort to accomplish this, and it would be a huge waste. Private prisons aren't a problem—they are, like all prisons, the symptom of a problem (over-criminalization, over-enforcement, and over-incarceration) that all proponents of criminal justice reform should be working together to fix.

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  1. I tried to explain this to a progressive. He gave me, in rapid succession, a deer-in-the-headlights look, a redirection, and an appeal to ridicule.

    1. Yeah, everyone I saw posting about this on facebook was focused solely on the private part.

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    2. Ah yes. The appeal to ridicule followed the smug rolling of the eyes.

  2. Private prisons ARE a problem. That’s why virtually every country on Earth moved towards public police forces and public prisons and such in the early 19th century. Before that police and prisons were usually private and mercenary and it is a big reason why justice was nonexistent and cruel and arbitrary for anyone who couldn’t afford to corrupt things to their own satisfaction.

    That doesn’t mean anything will be solved by eliminating contracted prisons. We will always jump from stupid to stupid before we finally reach stupid.

    1. Nobody runs a private prison. These are contracted facilities paid for by the government. A private prison would be you hogtied someone and locked them in your basement.

      1. Yes I know. That’s why I called them contracted. But the Reason-type libertarian wet dream about ‘private prisons’ alluded to in this headline DID used to exist. The reason the penalty for gobs of petty crimes committed by the poor used to be ‘hanging’ was because – no one wanted to pay the expenses of imprisonment and there were no taxpayer-paid prisons then and jails are only for short-term (until trial).

        And the reality is that the Reason-type doesn’t ever really seem to bother distinguishing between something ACTUALLY private vs a government-grant of privatized-monopoly vs some purely cronyist neo-liberal ‘privatization’ of a govt service. IMO, its why Reason so easily adjusts to being a two-bit whore for every billionaire donor crony out there.

        1. IMO, its why Reason so easily adjusts to being a two-bit whore for every billionaire donor crony out there.

          Yeah, ok. Haven’t been following the Gawker case much, have you?

        2. So let me get this straight, JFree. If private prisons are the problem, then you still support the locking up of non-violent drug offenders?

          1. When did I say that or is that just a strawman? The two are separate issues. Akin to the notion that outsourcing the Pentagon to mercenaries is not a basis for any decision about going to war with Iraq. Both can be bad decisions.

      2. Today I learned Warty’s basement is an uncontracted private prison.

      3. “A private prison would be you hogtied someone and locked them in your basement.”

        I think Crusty can weigh in on that one.

  3. At some point, when Democrats have been in power 16 straight years, they’ll stop being associated with standing up against the authority, and they’ll be rightly thought of as the oppressive authority.

    Ok, so we’re phasing out private prisons. What happens when even more people are incarcerated into shitty public facilities? Will Dems still be the party of inherent rights?

    When we’re embroiled in every damn war over the next eight years, will Democrats still be thought of as the anti-war party (a reputation which has somehow survived the Obama years)?

    And when everyone and their mom is taxed out the ass and punished for establishing a good career, will Democratic domestic policies still be thought of as looking out for the average American, as they wrongly have been for decades?

    Don’t get me wrong—I don’t think Republicans would do any better. But it’s this shit that pisses me right the hell off at people who espouse that Saint Hillary and the Dems will save us from the current mess. Who has an equal share in this shitty mess, idiots?!

    What happens when 16 straight years of Democratic rule doesn’t make everyone’s dreams come true?

    1. That’s easy, just like they do in every city run by democrats for decades that faces economic devistation. They’ll blame it on republicans and their followers will be stupid enough to vote for more of the same.

      Remember everyone in the world of 1984 _Loved_ Big Brother…..

    2. “What happens when 16 straight years of Democratic rule doesn’t make everyone’s dreams come true?”

      You morons might vote for another gang of crooks. Go Team!

      1. Yeah, democracy is so messy. Better to just have one man, a chairman or commissar if you will, to sort out all the messy decision-making business.

        1. That’s what some of these morons truly desire. And they think a one-man (or woman) dictatorship would be perfectly fine as long as that dictator wins an election (which apparently gives them the moral authority to do literally anything they want).

        2. I would nominate myself for the job. Anybody wanna second me?

      2. I’ll tell you what happens. They’ll happily blame every downturn and failure on Bush and the Republicans in congress. If they can get away with it after the abysmal 7+ years we’ve just been through, I don’t see what difference more time will make.

    3. They elect Harry Truman?

    4. “What happens when 16 straight years of Democratic rule doesn’t make everyone’s dreams come true?”

      People like my aunt will find some republican functionary on whom to dump 100% of the blame. Just like she did with CA’s problems. Every bit of it was the doing of Schwarzenegger and two members of his administration. The state assembly and all the progressive bureaucrats didn’t have a thing to do with it.

      1. Just like Flint; it wasn’t the Democratic city council, or the (almost certainly Democratic) state regulators, it was all the fault of the Republican governor and private corporations.

    5. Will Dems still be the party of inherent rights?

      Huh? Have they ever been?

    6. It’s really not a Democrat thing. It’s a government thing.

      Government gets wide deference and latitude when it comes to creating misery and waste. Private companies? Not so much.

      So, you have a private prison trying to maximize profit with a captive audience? Horror!

      You have a public prison that’s hell on earth, with pretty arbitrary rules in terms of crimes and punishments, enforcement, and judgment? What: are we supposed to just let criminals do whatever they want? Of course not! And, budgets are limited, taxes are only so high (and we all know who’s fault that is), etc. It’s excusable. Perverse incentives and inhumane treatment? Eh, it’s all we can think of. Just wag a finger and say it should stop being perverse. I can’t imagine anything better, so there must not be anything better.

      Never mind it’s essentially the same approach to dealing with undesirable people that we’ve been practicing for a few centuries.

      I’d be all up for a completely damages-based model of justice: compensation for damages to the victim. No damages? No victim. Throw in some fines or fees associated with driver’s licenses, whatever, and jail only for violent criminals. Really, what good does locking up a drug addict do for anyone?

      Of course, you need a prison system for the tax evaders: someone who won’t pay taxes won’t pay fines, and, then what? At that point, no one can imagine anything other than cages or whips, etc. And, once there, why not for other undesirable behaviors, too?

    7. Evidently winning a Nobel Peace Prize gives you free reign to kill people. Ironic isn’t it?

  4. At least this is a better take on this than Reason’s first story regarding this.

    Government run things are always worse than privately run things. Always.

    1. Nope. These prisons are not private. They are government contracts. These prisons might be motivated to cut costs to please investors, but they are not competing in the market place for voluntarily bought services.

  5. What the fuck does NARAL have to do with prisoners rights?

  6. So the government recognizes and discontinues something that is ineffective and in some cases violates the civil rights of others? Im sure the drug war and war on terror are next on the chopping block. Libertarian moment any second now…

    1. They’re not freeing prisoners, they’re transferring them to state-run facilities.

  7. Not the problem? It’s got “private” right there in the name!

  8. Is no one going to mention that lobbyists for private prisons fight every day to keep marijuana illegal so that they can keep their cells filled?

    1. As opposed to the police and correctional officers’ unions?

      1. They do the same without the taint of icky profits.

        1. Right, just generous pensions, copious amounts of overtime pay, and intangible benefits like deference from judges and prosecutors as well as the ability to carry where others can’t.

          Totally different.

          1. It feels different, okay?

      2. One of my progressive friends once made that same argument to me. I mentioned that sure, they do, but the police and correctional officers’ unions do as well, and it’s the state that keeps the laws in place. Somehow my reply was hand-waved away.

      3. See what Ron Paul has to say about it. He’s a true libertarian unlike this clown Gary Johnson.

        http://www.ronpaulinstitute.or…..rofiteers/

    2. Ask yourself who is ultimately the one who keeps marijuana illegal and throws harmless drug users in cells. Is it the evil corporations, or is it some other entity?

      1. The president could reschedule it tomorrow with his pen and phone, and lobbyists have no power to stop him. Do you think he will ever find the courage? I’m sure the stress of the decision would impair his golf performance.

        1. Be patient. The easing of restrictions on research is a step in that direction. Obama does the long game. The problem with unilaterally doing some major thing that pleases half the country is… the other half.

          1. Yeah, the long game of “I only have a few more months with this pen and phone, but instead of doing anything meaningful I’ll do something that’s just enough to keep the reliable base sucking my dick.”

            If he was playing any kind of long game he could have done something in 2009 when dems controlled both houses.

            1. Because you would have been so thrilled if the mythical absolute authority Dems had in 2009 would have passed a Democratic wishlist.

              1. How is it a myth that Democrats controlled the Executive Branch and both the Senate and the Congress when Obama was elected?

                Is there some other legislative branch they didn’t control? If so, what might it have been and what greater authority did it have?

                1. So your argument is that Democrats were simply inept at enacting the agenda they had absolute power to enact?

                  Sixty-vote threshold in the Senate, which they had for like a week.

          2. That explains obamacare?

  9. White fragility?

    http://www.foxnews.com/us/2016…..guilt.html

    1. White people, just stop having opinions.

  10. “Mass incarceration should not be incentivized by private gain.”

    1. Leftists seem to think that it’s intolerable to have someone making a profit from someone else’s misfortune. So why not nationalize all funeral services? After all, death should not be incentivized by private gain! Right? By this logic, basically everything should be nationalized since most private businesses are taking money and solving some negative situation in return.

    2. Removing profit motives from the prison system is impossible. Most prisons use a lot of contract staff including administrative assistants, medical and mental health staff, and food service supervisors. They also buy things like uniforms, food, weapons, and medicine. Even if they outlawed all private prisons tomorrow, there would still be many, many companies that provide services and supplies almost exclusively to prisons. Are those going to be outlawed too? To get profit out of the prison system, you’d have to turn them into self-contained compounds where every single thing they need is produced on-site.

    3. Government employees are still incentivized to keep tons of people in prison. All the wardens, department administrators, and prison union bosses have their jobs hinged on increased amounts of incarceration. These are very cushy jobs with lavish benefits packages, and none of these employees want their jobs to be cut because too many people get let out of prison.

    1. 1. Good idea. The death industry is a racket that preys on people at their most vulnerable.
      2. Maybe but the ideal should be to get profit motive out of the justice system. Because of the fact that the two concepts plainly contradict.
      3. True. Another obstacle, but it’s not either/or.

      1. 1. Fuck off Tony
        2. Fuck off Tony
        3. Fuck off Tony

      2. When you figure out how to run the justice system with angels, let me know.

    2. YOu’re giving Tony ideas. Never a good thing. Kind of like giving nuclear weapons to an earwig.

  11. Things that should not be a crime

    http://nbc4i.com/2016/08/18/am…..nds-cited/

  12. California’s Democratic Attorney General Kamala Harris said that she applauds the decision. “Mass incarceration should not be incentivized by private gain.”

    Fun fact: Not only are there four private prisons in California (all run by CCA), but one of California’s solutions to overcrowding in their prisons was to ship prisoners off to what generally ended up being private prisons in other states.

  13. Libertarians can concoct tenuous-as-hell conspiracy theories at will whenever they need to get out of a rational argument, but the notion that for-profit prisons and their lobby might influence criminal justice policy? At least a lot of you actually get it.

    1. The notion that private prisons and their lobbyists are responsible for even a tiny fraction of the half-century long War on Drugs is laughable.

    2. What’s fucking hilarious is that you can acknowledge the perverse incentives privatizing prisons can have while completely ignoring the same perverse incentives that pubsec unions have in regards to prison and justice reform.

      But hey, keep deluding yourself that supporting the Democrats (ever in the pocket of pubsec union donations) will somehow bring about change.

      1. That was my take as well. Go to any progressive hangout and they’ll lay everything at the feet of the evil corporations that run private prisons. With the solution of ending private prisons and making them all into government prisons.

        They have a huge mental blind spot that won’t allow them to see that there are 10x more public prisons than private.

        Here’s the quickest number I could find:

        The US Department of Justice statistics show that, as of 2013, there were 133,000 state and federal prisoners housed in privately owned prisons in the US, constituting 8.4% of the overall U.S. prison population

        So not completely insignificant, but certainly the tail and not the dog. Public sector unions would have a lot more at stake here than all of the private prison companies combined. Plus you have the layers of bureaucrats, all of the pork to be handed out via prison contracts and construction deals.. There’s plenty of perverse incentives without invoking privatization as the bogie man.

      2. If only your concern about public-sector unions weren’t completely disingenuous and in service of a larger, evil agenda to destroy unionism altogether (which has mostly already succeeded except in the public sector).

        Legislators make the laws. You tell me with a straight face that public-sector unions have more influence on them than corporate interests.

        1. And your arguments aren’t at all biased or indicative of an anti-corporate agenda?

          And on the issue of the criminal justice and prison system, I think it’s absolutely clear that public sector unions and other government-based institution that benefit from the status quo have more influence than private prisons and whatever other corporate interests have stakes in it.

        2. Private sector unions are fine, provided they are VOLUNTARY. I know that’s a big word for such a simple mind.

          Public sector unions, which even your vaunted progressive FDR was against, are an abomination that never should have been allowed to be created in the first place.

          I’d link you to one of the many websites who tally donations from lobbyists that shows the top donators to be unions, but you don’t bother learning anything new so what’s the point.

          1. All I’m saying is it’s impossible to have a real conversation with you guys about public-sector unions because you are all on the Koch agenda, whether you know it or not, to destroy all unions, and all this rhetoric services that. I don’t really care if there are perverse incentives involved with public-sector unions. At least some of the workers in our economy retain the ability to bargain for a decent wage.

    3. I don’t disagree that for-profit prisons, particularly with the bad incentives that currently exist, can have negative effect and have some lobbyist influence, but I think the evidence clearly points to the left consistently and drastically overestimating this impact and its importance on mass incarceration, while underestimating other factors, such as the “profit motives” that exist within the broader CJ system for all the public employees, unions, and other special interests that inevitably benefit from the system.

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  15. So Mother Jones recently ran an “expose” on private prisons, with a reporter taking a job as a guard. It was a well-done piece. One interesting tidbit that came out was that nobody has an incentive to release the prisoners.

    So one of the prisoners was due to be released. But he was from out of state. As condition of his release he was required to have a local address. They had programs for halfway houses, but they were full. So he didn’t get released. Not for a long time after his sentence was up. The prison was happy. They got paid. The DA was happy to leave it that way. As were the police.

    I thought it an anomaly, then I started helping this young family. She’s a single mom with 2 kids. She had a horrific childhood. On the streets by 12. At 19 she was arrested for… get this…. having knowledge of a crime after the fact. A couple of boys (17) robbed a delivery guy with a toy gun, and they told her about it. So the prosecutor goes after her for a felony. With stellar representation (lol) she got a year in jail.

    Actually, 364 days. So they could keep her in jail, rather than prison. (state law requires prison if it is over 1 year).

    So the time comes for her release. And they forget about her. She ends up in jail for 2 years. So they finally figure it out. But they have to cover for the violation on the jail vs. prison thing. So they send her to prison for another 6 months.

    1. This is so absolutely unbelievable that there is zero chance I’d believe it if she had told me. But I didn’t get it from her. We got her an attorney to try to get the felony expunged because she can’t get a job that will support her family with the felony. So they attorney researches the case and finds all of this stuff.

      They literally forgot about her for a year and made her serve double her sentence. Then they were so worried that they’d get in trouble for keeping her in jail past day 364 that they sent her to prison for 6 months, just so it would look OK on the records.

      What kind of evil people do something like that? She did 2.5 years because a couple of boys she knew told the police that they bragged to her about their petty robbery. The boys were prosecuted as juveniles and got probation. Every single soulless person in that food-chain of evil deserves to rot in hell for what they did to her.

      But the scariest part of the whole thing is… nobody thinks it is a big deal. This is so common that it literally doesn’t move the needle at all. No chief judge calling for the judge in her case to be tossed out. No state attorney general vowing to rein in that prosecutor’s office. No public defender supervisor lamenting the incompetence of their staff. No jail warden bellowing that heads will roll….

      Just bored indifference. Another day, another dumb, white trash teen locked away. Nothing to see here.

      1. I would hope she could sue them for at least doing 2.5 years for a 364 day sentence. What does 1.5 years come out as in terms of damages?

        Thats crazy.

      2. Goddamn where is a wood chipper when you need one.

      3. Nut. Punch.

      4. This is not a crime–

        ” having knowledge of a crime after the fact”

        Nor is this–

        “a couple of boys she knew told the police that they bragged to her about their petty robbery”

        There is something not being said here.

  16. Private prisons did not create the conditions that encouraged mass incarceration?private prisons came into being as a response to mass incarceration.

    Whether that is true or not is irrelevant because now that private prisons ARE here means governments have created a situation where it is in the interests of the private prison industry to have even greater mass incarceration than before.

    Why?

    Because the more prisoners there are means there is a greater need for more prisons to house them. In contrast, lowering the incarceration rate would produce fewer inmates which in turn would reduce the need for more (private) prisons.

    That’s called the profit motive. Any industry only survives if it can make a profit. The more profit it makes the larger it grows. It also creates an incentive for that industry to lobby governments and legislators create and/or maintain conditions which allow that industry to flourish.

    Thus, by creating a private prison industry governments have inadvertently created a powerful lobby group whose interests lie in maintaining high levels of incarceration. The more Americans there are in prison the better it is for the private prison industry.

    Which is why, for example, the private prison industry lobbies AGAINST legalising marijuana. Legalising marijuana would reduce the number of prison inmates, which in turn would reduce the need for more private prisons and reduce the profitability of existing ones.

    1. I doubt it was inadvertent. I bet if you dig a little some Dem or Rep’s brother in law was a big proponent of these and stood to make a ton of money.

  17. I think you’re right about the incentives for lobbying.

    That said, I don’t think it’s logical to make policy based on minimizing lobbying. You could make a fairly similar argument that fossil fuel companies are incentivized to lobby for bad policy in their self-interest, and it would be a correct argument, but it doesn’t follow that such a potential for influence means fossil fuels should be banned or socialized.

    The correct answer is to make policy based on principle, not based on which lobbyists padded your wallet, but obviously that’s idealistic.

    1. ^this was directed at Stephen.

  18. RE: The Justice Department Is Wrong. Private Prisons Aren’t the Problem.
    Private prisons are a symptom. Mass incarceration is the disease.

    Mass incarceration should be a topic that makes all us little people be proud to be living in a socialist slave state. It is only through these large numbers of jails and their populations that we can all stand proud that we are putting more people in prison than our sister nations Cuba, North Korea, and all other authoritarian and totalitarian regimes, past and present. One must smile at the thought we have put so many people in jail that even Hitler, Stalin, Castro, et al would turn green with envy. So let us all open a bottle of champagne and celebrate the gulag state our elitist turds have worked so hard to make.

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  20. This is a total bullshit article from a right wing source that completely ignores the fact that privatized prisons have created mandatory minimum sentences for non violent crimes like pot possession through organizations like the American Legislative Exchange Council. They do this because they have contracts to keep their cages filled. So yes they are the problem. If you support caging Americans for non violent crimes with long term sentences, then at least admit this country isn’t the home of the free, it’s the home of the caged for corporate profits.

    1. Private prisons created Mandatory Minimum sentencing?? Wow. The things you learn…

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