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MEMORANDUM

TO: Congressman Cedric L. Richmond

FROM: Ryne Kessler, Quinnetta Younge, Amanda Samuel, and Allisha DeFreitas

RE: Prison Privatization

DATE: May 15, 2014

Executive Summary

Companies that seek profit through the ownership and operation of private prisons, often lobby for longer confinement and push to increase prison occupancy. Mistreatment and abuse within private prisons around the United States, has led to countless reports of riots, lawsuits and even deaths. This memo will address the concerns surrounding the use of for-profit prisons and outline options that can be implemented to solve these issues. Possible options include the improvement of staffing policies, elimination of occupancy guarantee provisions in private prison contracts, the development of an oversight board and Rights of Private Prisoners Act and the implementation of services that will reduce the need for private prisons. While all of these options should be explored, elimination of occupancy guarantee provisions in private prison contracts and the implementation of services to reduce the need for private prisons are the most feasible, cost efficient, and effective in solving these issues.

Background

Privately owned prisons such as New York’s Auburn and Sing Sing Prisons have had a long history of mistreatment and abuse of prisoners dating back to the 1800’s. Consequently, many prisons were closed due to overcrowding, malnourishment and frequent whippings. Unfortunately today these problems still exist. “While there may not be frequent “whippings,” private prisons continue to provide limited services and lack proper security and inmate monitoring.”1

There have been patterns of abuse especially against juveniles and the mentally ill in prisons operated by for-profit prisons such as the GEO group and Corrections Corporations of America.2 The GEO Group, one of the biggest for-profit prison operators in the world, has been accused of providing abysmal care to prisoners with serious medical and mental health needs.3 Corporate officials with conflicting motives run these prisons and sacrifice quality of care in their organizations in order to make a profit.  Other issues with private prisons include “under-trained guards, poor oversight, deficient rehabilitation programs, lack of educational options, and an increased rate of assaults, disturbances, and riots.”4

Problems arising in private prisons are due in part to lack of government oversight and limited accountability. In Mississippi a federal judge excoriated the Department of Corrections (MDOC) for failing to monitor and halt GEO’s abuses. “MDOC has long been on notice with the deficiencies of private prisons, some of which resulted in deaths. MDOC has failed to address these incidents or prevent them from reoccurring.”5 “The Huffington Post reports that "private [prisons] don't have to follow the same public records and access requirements” as state prisons.6

In addition to limited accountability, for-profit prisons hope to “generate the greatest possible profit, and do this by any means necessary.”7 Lack of transparency and governmental regulation encourages corruption in organizations and allows companies to freely cut corners in order to boosts revenue. This may mean cutting services, ignoring prisoners that seek medical attention, hiring fewer employees, and offering low wages. “Providing safe and humane conditions of confinement to the human beings in their custody is –at best- a distant secondary goal.”8

For the past twenty years this industry has driven the mass incarceration in the U.S.9 Perverse incentives and conflicting motives lead corporate officials to force inmate occupancy in order to make a profit. The private industries themselves are the ones pushing for privatization. The “private prison industry and its stockholders are the clear winners, as they make billions in revenue.”10

There have been a number of harmful acts resulting from unfair treatment and abuse in private prisons. “A federal judge found that GEO’s operation of the Walnut Grove Youth Correctional Facility, which incarcerates teenagers as young as 13, has created a picture of such horror as should be unrealized anywhere in the civilized world, including a pattern of sexual abuse and severe beatings.”11

Further, massive evidence collected from the ACLU and the Southern Poverty Law Center, has shown companies such as the GEO Group have been starving mentally ill prisoners. In several cases, ACLU medical experts have documented inmates had been losing up to 30 pounds, after a few months in GEO custody.12 GEO has allegedly punished prisoners with solitary confinement and exposed them to such systemic abuse and neglect that the rate of suicides and suicide attempts has increased.13 Families of inmates have begun to file lawsuits against companies for negligence.

Reduced security and inmate monitoring has led to increased violence in private prisons. In one example in Mississippi a group of inmates rioted while taking hostages and killing a correctional officer.14 It is important to recognize that private prisons are not the only solution to the government’s inefficiency and inability to operate state prisons. In fact, evidence has shown that private prisons are not even producing cost-savings. "Cost savings from privatizing prisons are not guaranteed and appear minimal.”15 So why then should we leave inmates at the mercy of corporate officials that seek huge profits?

The rate of incarceration in the U.S. is rapidly increasing. Appendix A shows the rapid increase in private prisons over the course of 14 years. “In total 6 million Americans are incarcerated today as opposed to as little as 400,000 during the Reagan era. Yet according to The Christian Science Monitor and Common Dreams, crime has dramatically decreased in the past 20 years.”16 The reason for this discrepancy is due in part to private prisons, which now “house half of all inmates in the civil detention center.”17 Three of the major private prisons corporations-The GEO Group, CCA, and Training Corp. earned an estimated $2 billion in 2012, thanks largely to the increased number of incarcerated undocumented immigrants.18

Policy Options

The issues stemming from the use of private prisons need to be addressed and regarded as high priority. We have proposed four solutions to help improve standards currently in place and to implement preventative measures to decrease the rate of mass incarceration in the U.S. Our four options are:

• Staffing Policy to improve safety of inmates and staff

• Elimination of Occupancy Guarantee Provisions in Private Prison Contracts and Full Utilization of Public Prisons

• Oversight Board and Rights of Private Prisoners Act

• Reduce the Need for Private Prisons

Option 1: Improved Staffing Policy by Ryan Kessler

One of the major concerns in private prisons is the safety of the inmates as well as the staff. In 2008, the Justice Department reported that there were 49% more staff assaults and 65% more prisoner assaults in private prisons compared to state prisons.19 Typical problems include serious security lapses, calling for back-up and nobody came, security violations, not enough staff, and inexperienced staff. Furthermore, there are inadequate patrols and prison movement, excessive false alarms, a lax culture, and inconsistencies with visitor screenings.20 In order to deal with these issues, proper safety measures need to be put in place.

Currently there is only one state, New Mexico, which requires the same standards in private prisons as the public prisons have, while there are private prisons in 35 states and counting. When Governor Susana Martinez took over in 2011, she changed the way private prisons were operating by demanding contractual compliance that contrasted with former Governor Bill Richardson’s lax business ways. GEO and CCA did not have to worry about fulfilling contractual obligations until Susana Martinez took office.21 New Mexico has since hit GEO and CCA with $1.4 million dollars in fines for inadequate staffing in 2011 and 2012 alone.22

The CCA is the fifth largest penal system and seeing that they were heavily fined in New Mexico, it can be argued that they may be inadequately staffing in other states. To better protect the staff and inmates in other states, similar laws to New Mexico’s policies need to be put into place to force contractual obligations. The high-profit private prison corporations can afford to pay the fines in one state, but if more states can pass legislation for this proposal, then appropriate staffing will be established and increase the overall safety of the private prison facilities.

Option 2: Elimination of Occupancy Guarantee Provisions in Private Prison Contracts and Full Utilization of Public Prisons by Amanda Samuel

According to the American Civil Liberties Union, private prison companies have admitted that their business model is dependent on an increase in the number of incarcerations. 23 In their 2010 Annual Report filed with the SEC, CCA stated that a decrease in occupancy levels could cause a decrease in revenues and profitability. “When combined with relatively fixed costs for operating each facility, regardless of the occupancy level, a decrease in occupancy levels could have a material adverse effect on our profitability.”24

To ensure the continued increase in occupancy, private prison companies have been known to lobby federal and state lawmakers for harsher and longer prison sentences. According to CCA’s annual report, “the demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”25

In 2012, CCA wrote to 48 state governors offering to buy and operate public state prisons in exchange for a 20-year contract guaranteeing a 90 percent occupancy rate throughout the term.26 To combat this inherent greed and rise in incarceration rate, occupancy guarantee provisions should be eliminated from federal, state and local contracts. Although governors did not take CCA up on their offer, occupancy guarantee provisions are common in contracts. In a study conducted by ITPI, it was found that 65% of state and local private prison contracts analyzed included occupancy guarantee provisions.27 Of those contracts with occupancy guarantee provisions, 5% guarantee below 90% occupancy and 38% guarantee between 90% to 94% occupancy. 16% of private prisons located in Arizona, Louisiana, Oklahoma and Virginia guarantee between 95% and 100% occupancy (Appendix B).28

States that adhere to occupancy guarantee provisions end up losing money in the long run. Before inmates are sent to private prisons, public prisons should be fully utilized. In the past decade Colorado was forced to close five of its prisons after a decrease in its prison population. With a projected impending closure of two to ten more of its prisons, CCA was impelled to renegotiate three of its contracts with the state to include occupancy guarantee provisions although the original contract specifically stated that the state of Colorado did not guarantee a minimum number of inmates. CCA was able to keep its three prisons open, and Colorado was compelled to keep at least 3,300 prisoners in the three facilities, at an annual cost of $20,000 per inmate for the 2013 fiscal year.29 This meant that even though private prisons were not filled to capacity, states still incurred the operational costs (Appendix B).

Option 3: Oversight Board and Rights of Private Prisoners Act by Quinnetta Younge

The development of privatized prisons in various states has led to an in depth discussion on the rights of inmates. While some may believe privatized prisons are more cost efficient, it is important to review the correlation between the monetary interest of prison owners and the protection of the inmates’ human rights. Unlike state prisons, where provisions are shared amongst all facilities and strictly enforced, the use of private prisons give for profit investors creative ability to create their own provisions. Privatized prisons raise concerns about contractors being allowed “to subordinate fairness and decency to financial consideration.”30

Douglass W. Dunham argues that there must be safeguards in place which ensures that inmates are not being denied their constitutional rights, specifically the rights granted in the eighth and fourteenth amendments due process clause. Under the fourteenth amendment “procedural due process guarantees that only by following fair procedures can the government or its agencies deprive a person of life, liberty or property.”31 Within the realm of a prison, all procedures involving inmates “require the existence of a decision making system” which is sought out to provide fair treatment.32 The liberties of inmates in private prisons are even more at stake due to the interest in capital gain per inmate.

In procedures such as disciplinary hearings, there is great concern involving the financial biases of board officials when determining the length of an inmate’s stay. During disciplinary hearings in private prisons, inmates are usually threatened to forfeit the time deducted from their sentence for good behavior as a notion of discipline. Dunham explains that “private operators are compensated based on the number of inmates they house and have a pecuniary interest in ensuring that inmates remain in custody.”33 This interest of keeping inmates in custody has the ability to cause many discrepancies including unfair decision making procedures which puts the inmate’s right to procedural due process of the law at risk.

The eighth amendment protects inmates from cruel and unusual punishment while incarcerated. “The treatment of inmates must not be inconsistent with contemporary standards of decency. When the government imprisons individuals, it must also assume responsibility for their well-being.”34 Prisons must be able to provide adequate housing, food, medical and psychiatric care. Private prison investors have adopted the strategy of “cherry picking” their inmates, carefully choosing inmates that don’t require costly services. Five out of eight private prisons serving Arizona refused inmates who displayed limited physical capacity, and stamina or severe physical illness or chronic conditions. “None took inmates with “high need” mental health conditions and some inmates were returned to state prisons due to an increase of their medical scores that exceeds contractual exclusions.”35

According to the Daily Newspaper article, contracts give private prisons the authority to carefully pick which inmates are being held in their prisons which in the end alters the amount spent per inmate. Research by the Arizona Department of Corrections states, “They often house only relatively healthy inmates” making them seem less expensive even though they are not.”36 The method of strategically picking prisoners based on medical obligations is an obvious example of private contractors cutting corners for profit.

Critics and human right activist fear that the privatization of prisons will lead to other cuts in the standards of living for inmates. Regulations on acceptable living conditions are usually set forth by the state in order to protect inmates but in private prisons, contractors have the authority to make all fund allocation decisions. As a result cases of abuse, malnutrition and medical emergencies due to neglect are prevalent within private prisons. Dunham argues that the privatization of prisons is permitting “the cost conscious operators to economize at inmate’s expense.”37

There are many human rights concerns and risks associated with the privatization of prisons. The discussion involving the human rights of inmates has led to very little recognition on the federal level. In order to truly protect the rights of the inmates, we propose the formation of a federal law that goes beyond state jurisdiction entitled the Rights of Private Prisoners Act (RPP Act) and an Oversight Board that forces private prisons to uphold the same standards as public prisons. The Rights of Private Prisoners Act (RPP Act) will include guidelines for staff training, standards for both decent living conditions and medical resources within a facility, guiding principles for disciplinary hearings including records of each hearing and mandatory oversight visits from a non-affiliated federal agent. The establishment of such law will decrease the risks of human rights violations and hold private prison proprietors more accountable for protecting the rights of their inmates.

An Oversight Board in privatized prisons is needed to make sure that private prisons are adhering to the regulations set forth in the proposed RPP Act. This non-affiliated independent body chosen by the federal government will be responsible for overseeing administration, reviewing conduct and, management, and evaluating the contractor’s performance. The Oversight Board will not only help ensure protocols put in place by the RPP Act are being met; the group will make policy-level recommendations

The common use of outside services in privatized prisons will allow the oversight board to put forth immediate consequences such as the loss of payment to private firms. The proposed oversight board should fashion that of what is currently present in the United Kingdom whereby private contractors face losing a portion of their contract if they fail to abide by certain standards.

Government currently maintains certain responsibilities such as selecting inmates to be placed in private prisons, choosing the type of facility to be contracted out, overseeing the contractor’s disciplinary practices, evaluating the contractor’s performance.38 Unfortunately, this is not enough. Experience has shown that even with this Public-Private Partnership (PPP), lack of government oversight and conflicting motives from private prison profiteers have led to corruption, lawsuits and even death in privately operated prisons. The use of an Oversight Board will help to measure safety, quality of care and accountability for both the private firms and the government.

Option 4: Reduce the Need for Private Prisons by Allisha DeFreitas

Building more prisons whether it is public or private is a short-term solution to a long-term problem. The Treatment Alternatives to Street Crime program at the University of Alabama (TASC) proposes long-term solutions such as, prevention programming for at risk youth, intervention, alternative sentencing, treatment instead of incarceration, secondary and higher education and job training behind bars, effective re-entry programming, and other justice reinvestment programs that are geared towards restoration of our communities.39

The Alabama Department of Corrections (DOC) recently requested $27 million to lease private prison beds outside of the state of Alabama. However if the state used the $27 million to begin “reforming the long list of people who were sent to prison for simple drug possession and addiction”40 in the first place, the need for private prisons might not be as great. “There are prisoners in need of drug treatment services that currently are not being provided.”41

The $27 million could potentially be used to: “Contract out drug treatment services to existing treatment providers in the mental health system and expand substance abuse treatment capacity in the community so that people busted for drug use are sent to a treatment facility instead of a prison cell.”42 It is also important to “expand the use of and increase the effectiveness of community based corrections programs and electronic monitoring for low risk offenders.”43

In addition, addressing the “war on drugs” is critical in helping to reduce the need for private prisons. “On Dec. 31, 2012, there were 196,574 sentenced prisoners under federal jurisdiction. Of these, 99,426 were serving time for drug offenses and 11,688 for violent offenses.”44 The imprisonment approach to drug policy is counterproductive, costly and ineffective.

There is a need to eliminate or change policies that cause mass incarnation such as the Mandatory Minimum Sentencing Laws and the Three Strikes Law-which significantly increases the prison sentencing of a person convicted of a felony who was previously convicted of two or more violent crimes or serious felonies.

Further, many states have successfully reduced prison populations by participating in the Justice Reinvestment Initiative (JRI). Launched in 2001 by the Bureau of Justice Assistance and Pew Charitable Trusts, “JRI is a program model adopted by states designed to identify and implement data-driven criminal justice reforms that will reduce state prison populations and save money.”45

Recommendation

Prisoners deserve to be treated fairly and not left at the mercy of prison profiteers. To protect the rights of prisoners, there needs to be an overhaul of the private prison industry. As we are aware that all four options we have proposed may have both benefits and drawbacks, it is important to determine a solution that will be most feasible, cost efficient, and effective in solving the problems in private prisons.

After thoroughly analyzing the four policy options, eliminating occupancy guarantee provisions in private prison contracts and fully utilizing public prisons is the best and most cost efficient option. To ensure justice, avoid corruption, and combat the inherent greed and increase in incarceration rates, we need a plan that will address the profit maximization motives of private prison corporations.

An obvious objection to eliminating occupancy guarantee provisions is that corporations that run private prisons will be forced to exit the market if there is no guaranteed occupancy and profit in it for them. Some states that rely on private prison services as a result will have increased prison expenses and overcrowdings. Money that can be used for inmate rehabilitation will then have to be used to build more public prisons. However, since studies have shown that states are in fact losing money on private prisons, a reduction in the supply of private prisons will in fact save some states money. By eliminating occupancy quotas, public prisons will be fully utilized before utilizing private prisons, thus saving taxpayers millions. This does not address the issue of poor conditions in private prisons, but filling up the public prisons may urge private prisons to be more competitive and offer better conditions and more affordable prices.

Eliminating occupancy quotas is not the only option that needs to be taken into consideration. Preventative measures to address the issue of mass incarceration and reduce the need for private prisons should also be considered. Preventative measures such as the Justice Reinvestment Initiative has helped to reduce the prison population and also help to rehabilitate inmates. Some may argue that this option doesn’t immediately address the issue at hand. It will take time to implement these services and then measure the success of these programs. By reducing the incarceration rates, the need for private prisons will be reduced, ultimately saving taxpayers millions as well.

Congressman Richmond, in your recent letter to Attorney General Eric H. Holder you mentioned your eagerness to work to ensure a more reasonable, efficient and impactful prison policy. We hope that you would see privatization of prisons as an injustice and seek to propose legislation to bring an end to this issue. We hope that you would take our recommendation to eliminate occupancy guarantee provisions in private prison contracts and preventative measures into consideration. Thank you for your attention to this matter and we anticipate working with you in the future to help with the issue of private prisons.

Appendix A

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Appendix B

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Notes

1Nagin, Matt. "Private Prisons: A Criminal Injustice." Mic Network Inc. N.p., 2012. Web. 11 Feb. 2014. .

2"2010 Annual Report on Form 10-K." Corrections Corporation of America. N.p., 2010. Web. 4 Mar 2014. .

3Winter, Margaret, and Gabriel Ebner. "Private Prisons Are the Problem Not the Solution." ACLU: American Civil Liberties Union. N.p., 2012. Web. 12 Feb. 2014. .

4See Nagin, Matt.

5See Nagin, Matt.

6See Nagin, Matt.

7See Winter, Margaret.

8See Winter, Margaret.

9See Winter, Margaret.

10See Winter, Margaret.

11See Winter, Margaret.

12See Winter, Margaret.

13See Winter, Margaret.

14See Nagin, Matt.

15See Nagin, Matt.

16See Nagin, Matt.

17See Nagin, Matt.

18See Nagin, Matt.

19 Now: Prisons for Profit. PBS, 2008.

20 Now: Prisons for Profit. PBS, 2008.

21"Private Prisons: Payoffs, Profits & Failures." MisBehaved Woman. N.p., 10 Apr. 2013. Web. Mar. 2014. .

22"New Mexico Slaps Private Prison Companies with $1.4 Million in Fines." Albuquerque Journal (2012): 38-42. Print.

23"Banking on Bondage: Private Prisons and Mass Incarceration." American Civil Liberties Union. N.p., 2011. Web. 4 Mar 2014. .

24"2010 Annual Report on Form 10-K. " Corrections Corporation of America. N.p., 2010. Web. 4 Mar 2014. .

25See Corrections Corporation of America.

26"Criminal: How Lockup Quotas and “Low-Crime Taxes” Guarantee Profits for Private Prison Corporations." In the Public Interest 3. , Sept. 2013. Web.30 Mar 2014.

27See In the Public Interest 6.

28See In the Public Interest 6.

29See In the Public Interest 7-8.

30 Dunham, Douglas W. "Inmates’ Rights and the Privatization of Prisons." Columbia Law Review 86.7 (1986): 1475-504. Print.

31See Dunham, Douglas W.

32See Dunham, Douglas W.

33See Dunham, Douglas W.

34See Dunham, Douglas W.

35Oppel, Richard. "Private Prisons Found to Offer Little in Savings." The New York Times 18 Mar. 2011: A1. Print.

36See Oppel, Richard.

37See Dunham, Douglas W.

38 Joel, Dana. "A Guide to Prison Privatization." The Heritage Foundation. N.p., 1988. Web. 1 Mar. 2014. < >.

39"Alabama Voices: Private Prisons Not Proper Solution for Corrections | Ordinary People News." Ordinary People News RSS. N.p., 10 Mar. 2006. Web. 14 May 2014. .

40See Ordinary People News RSS.

41See Ordinary People News RSS.

42See Ordinary People News RSS.

43See Ordinary People News RSS.

44"Common Sense for Drug Policy." Drug Offenders in the Correctional System. N.p., 2014. Web. 1 May 2014. .

45Kirby, Holly. "Locked up and Shipped Away: Interstate Prisoner Transfers & the Private Prison Industry."Grassroots Leadership. N.p., 2013. Web. 10 Mar. 2014. .

Works Cited

"2010 Annual Report on Form 10-K." Corrections Corporation of America. N.p., 2010. Web. 2014. .

"Alabama Voices: Private Prisons Not Proper Solution for Corrections | Ordinary People News." Ordinary People News RSS. N.p., 10 Mar. 2006. Web. 14 May 2014. .

"Banking on Bondage: Private Prisons and Mass Incarceration." American Civil Liberties Union. N.p., 2011. Web. 2014. .

"Common Sense for Drug Policy." Drug Offenders in the Correctional System. N.p., 2014. Web. 1 May 2014. .

"Criminal: How Lockup Quotas and “Low-Crime Taxes” Guarantee Profits for Private Prison Corporations." In the Public Interest. 1-15, Sept. 2013. Web. 2014.

Dunham, Douglas W. "Inmates’ Rights and the Privatization of Prisons." Columbia Law Review 86.7 (1986): 1475-504. Print.

Joel, Dana. "A Guide to Prison Privatization." The Heritage Foundation. N.p., 1988. Web. 1 Mar. 2014. < >.

Kirby, Holly. "Locked up and Shipped Away: Interstate Prisoner Transfers & the Private Prison Industry."Grassroots Leadership. N.p., 2013. Web. 10 Mar. 2014. .

Nagin, Matt. "Private Prisons: A Criminal Injustice." Mic Network Inc. N.p., 2012. Web. 11 Feb. 2014. .

"New Mexico Slaps Private Prison Companies with $1.4 Million in Fines." Albuquerque Journal (2012): 38-42. Print.

Now: Prisons for Profit. PBS, 2008.

Oppel, Richard. "Private Prisons Found to Offer Little in Savings." The New York Times 18 Mar. 2011: A1. Print.

"Private Prisons: Payoffs, Profits & Failures." MisBehaved Woman. N.p., 10 Apr. 2013. Web. Mar. 2014. .

Winter, Margaret, and Gabriel Ebner. "Private Prisons Are the Problem Not the Solution." ACLU: American Civil Liberties Union. N.p., 2012. Web. 12 Feb. 2014. .

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