Attorney General Eric Holder unveiled new policies on Monday to address the low-level, nonviolent offenses that he argued keep too many Americans locked away “for no truly good law enforcement reason.” Drug laws and mandatory minimums have driven a 700% spike in the prison population over the past few decades, leading many states to literally run out of jails. The result is an unusual problem with a controversial solution.
With far more prisoners than prison cells, states are turning to corporations to pick up the slack—with profound implications for criminal justice reform. In the 1980s, for-profit prisons began winning contracts to operate entire jails for the first time. Politicians in both parties responded to prison crowding with private prisons: The industry grew by 1,600% over a 20-year period ending in 2009. Today, one out of six federal prisoners is in a for-profit facility, according to ACLU data. Industry executives argue their prisons are efficient and necessary.
Corrections Corporation of America (CCA), the largest private prison company, imprisons about 80,000 inmates across 16 states. The company says it combines “the cost savings and innovation of business with the strict guidelines and consistent oversight of government.”
Many independent analysts disagree. After reviewing a battery of studies on cost and effectiveness in the industry, researchers from the University of Utah concluded in a 2007 report that any cost savings “appear minimal.”
Cutting more than costs Whatever the savings, the public does not necessarily benefit when private prisons are run on the cheap. In May, the Southern Poverty Law Center and the ACLU filed a suit alleging that a Mississippi private prison is systematically mistreating mentally ill patients, (including denying them adequate food and medical care).
Florida, which recently rejected a plan to transfer over 20 state prisons to private companies, has found that some private prisons cut health care services by as much as 50%, raising concerns about safety and mistreatment.
After surveying those kind of tradeoffs, The Week magazine concluded last month that “as bad as state-run prisons can be, private prisons ultimately pose a greater threat,” since “they exist solely to make a profit off of incarcerated individuals.”
That profit motive could also impact the renewed national debate about sentencing reform.
Selling punishment In many states, private prisons have grown into a powerful employer and business lobby. Between 2003 and 2010, Corrections Corporation of America spent over $14 million on lobbying in over 30 states. For years, the company has also worked with ALEC, the conservative advocacy group, which backed legislation for harsh sentencing and mandatory minimums at the state level. As the Washington Monthly recently noted, ALEC has “probably contributed more to the spread of mandatory minimum legislation in the states than just about any other single source.” (And CCA is not alone; the top three prison companies have spent $45 million on campaign donations and lobbying over the past decade.) ALEC has recently softened its support on mandatory minimums somewhat.
Despite the lobbying activity, CCA argues that it does not actually have a stance on the wisdom of more or less prison as a policy matter.
“We do not take a position on or in any way promote policies that determine the basis for an individual’s incarceration,” says Steve Owen, a CCA spokesman. “Because our customer is government, lobbying is the way we educate them about the services we provide,” he told msnbc, adding, “We never lobby on policies.” Yet in documents the company is required to file under securities law, Corrections Corporation of America has told investors that its business may be hurt if new policies advance “leniency in conviction or parole standards and sentencing practices.” And in a 2010 report, CCA declared that “any changes” to harsh drug sentences could stem the flow of new prisoners in the U.S., reducing “demand for correctional facilities to house them.” Many criminal justice experts say that a business built on incarceration can’t help but support incarceration. A 2011 report by the Justice Policy Institute, “Gaming The System,” documents how private prison companies, including CCA, have sought to advance “pro-incarceration” policies at the state and federal level. “Private prison companies have had either influence over, or helped to draft, model legislation such as three-strikes‛ and truth-in-sentencing‛ laws,” the report explains, “which have driven up incarceration rates.” Others point to the industry’s reliance on the so-called “war on drugs.” “For-profit prisons are making contracts with states, saying, ‘Guarantee that our prisons will be filled. Guarantee we’ll make a profit,’” says Michael Skolnik, a filmmaker who visited over 100 prisons while researching Lockdown, USA, a documentary about reforming jail sentences for drug offenses. “And how do you guarantee that? You create drug laws,” Skolnik told msnbc. He argues that private prisons reinforce drug sentencing policies that have constituted “a war against black and brown America.” As the Obama administration aims to push federal prosecutors and state officials to find alternatives to lengthy prison sentences, it’s clear the challenge extends beyond the politics of fear and deficits. In many parts of the country, it will include counteracting a powerful set of companies that need a stream of strict sentences to continue their operations. It’s a system that presumes guilt as a business model—and recidivism as a bonus.
Ari Melber
Ari Melber, an Emmy Award-winning journalist, writer and attorney, is the host of “The Beat with Ari Melber” airing nightly at 6 p.m. ET on MSNBC. He also serves as MSNBC’s chief legal correspondent and an NBC News legal analyst. Before joining MSNBC, Melber practiced First Amendment law and served as a legislative aide in the U.S. Senate. He received a J.D. from Cornell Law School and is a member of the New York Bar. Recommended
