English essay

1.pdf

Home >English homework help >English essay

matthew mulch Crime aNd puNishmeNt

iN private prisoNs

I. Introduction This article attempts to analyze the relationship between prison privatiza-

tion and society’s understanding of punishment and criminal justice theory. Simply put, how are our traditional notions of deterrence, retribution, reha- bilitation, incarceration, and restorative justice served when private actors, rather than public institutions, are meting out punishment?

Prison privatization has received a great deal of coverage and analysis over the past decade. The majority of this analysis has focused on the budgetary questions. Can privatized prisons help streamline an extremely expensive industry? Will competition result in cost cutting, skimping, and dangerous conditions for inmates and prison personnel? And, of course, will privatiza- tion in this sector reduce costs in the long run? Or is it merely a short-term solution?

These issues have been addressed numerous times in a variety of ways. My goal here is to provide a more theoretical analysis of prison privatiza- tion. Cost and economic variables will play a role in the analysis; however, the primary goal of this article is to discuss how privatization shapes the conception of the criminal justice system through the eyes of policy makers, inmates, private correctional providers, and society itself. Moreover, this article weighs the economic interests of private prison corporations against the effects of this industry on society as a whole. Economic theory and the bottom line will continue to drive the prison privatization debate. Yet, in a society with a growing number of inmates housed in private facilities it is important to ask how our basic conceptions of criminal justice and punish- ment are changing with the introduction of new private actors.

II. The history and contemporary understanding of prison privatization

First, it is crucial to note that the distinctions between a public, govern- ment-run institution and a private facility are not always clear-cut.1 According to University of Colorado Professor Ahmed White:

To the extent that the state is not ubiquitous, and that the prison is not entirely

__________________________ Matthew Robert Mulch is a graduate of the University of Denver, Sturm College of Law. He is a deputy public defender in Grand Junction, Colorado.

71crime and punishment in private prisons

hermetic, some aspects of every prison are always private. From the labor of its employees, to provisions for inmates’ subsistence needs, to the land and capital that comprise the prison’s physical structure, each exemplifies every prison’s endemically, if partially, private character. In this sense, it is only possible to imagine a fully public prison either in a thoroughly totalitarian society or when the prison itself is (and this would negate its quality as a prison) an entirely self-contained society.2

For the purposes of this article the use of the term privatization will primarily focus on institutions where principal control rests with a private corporation through ownership or leasehold.

Prison privatization is often mistakenly viewed as a modern concept, derived from laissez-faire economic theory first espoused towards the end of the 19th century. Interestingly, however, the first privatized prisons3 pre- date laissez-faire theory.4 According to the Department of Justice, “During the 18th century, the modern prison emerged . . . [and] the use of privately operated facilities became popular.”5 “Popular” is, of course, a relative term, and it should be noted that during this time few institutions resembled modern prisons or jails.6 During this period, government officials would often appoint a head jailer in a particular locality.7 While the jailer held a quasi-public position, it was not uncommon for him to sell the labor of his inmates.8 Moreover, jailers often accepted payment in return for preferential treatment.9 Professor White has likened these post-colonial penitentiaries to European houses of corrections: private institutions that acted as jails, poorhouses, and factories.10

After the Civil War, southern prison populations soared,11 and prison ad- ministrators began the institutionalized practice of outsourcing inmate labor in a system called “convict leasing.”12 According to a Justice Department report “[b]y 1885,states had contracts with private enterprises to lease out prison labor.”13 These contracts took a variety of forms:

At some, companies outside the prison provided raw materials that were refined in prison workshops and later sold by private companies. At others, prisons leased their inmates out to private farms or other businesses if they could not produce salable items within the prison. In a number of states, contractors paid the prison a fee or a percentage of the profits for the right to employ convicts. . . . Even when prisons were not operated entirely by private entrepreneurs, inmates were used as a cheap source of labor. Prisoners often worked on farms, railroads, and mines, in addition to other public work programs.14

Not surprisingly, convict leasing programs were rife with corruption.15 Many of the lessors were government officials.16 Labor contracts were rau- cously disputed, and the states were often underpaid.17 Nevertheless, for a time, the leasing system proved lucrative for those involved.18

72 national lawyers guild review

At this time, the criminal justice system in the South heavily disfavored blacks.19 According to contemporary civil rights journalist Ida Wells, in 1892, ninety percent of the convicts in Georgia were black, with the huge majority of them serving disproportionately long sentences.20

Several factors led to the demise of the convict leasing system near the end of the 19th century.21 First, the success of the system created an environment where government officials and entrepreneurs expected to see profitable returns.22 Prisons, however, require enormous overhead and maintenance fees.23 And even the most efficient of the prison administra- tors found themselves struggling to pay for their enterprise and basic inmate amenities.24 Moreover, the work performed by the leased inmates was no- toriously dangerous.25 The loss of a life or a limb was a cost borne by both inmates and administrators.26

Second, opponents of the convict leasing system placed pressure on state legislatures and public officials.27 Farmers, manufacturers, and labor groups attacked the system and the anomalies that it created upon open competi- tion.28 Reformers and religious groups opposed the leasing system on moral grounds.29 And newspaper editors and journalists spent decades attacking the horrible prison conditions.30 State legislatures eventually buckled and “began investigating alleged incidents of mismanagement and cruelty within privatized institutions, resulting in modifications to the leasing system.”31

Third, federal officials began to dismantle the convict leasing system.32 “An executive order signed by President Theodore Roosevelt in 1905 pro- hibited the use of convict labor on federal projects.”33 Twenty-five years later, Congress enacted the Hawes-Cooper Convict Labor Act of 1929, which allowed states to prohibit the importation of convict-manufactured, interstate goods.34

Eventually, by the 1920s, the practice of convict leasing in state-run institutions came to an end.35 After years of statutory reform and optimistic rhetoric, southern states began to move away from the practice.36 And in an uncertain and piecemeal manner “[t]he operations and administrative func- tions in correctional facilities were delegated to governmental agencies, authorized by statute, staffed by government employees, and funded solely by the government.”37 During this time, private organizations continued to play a role within correctional systems, but their involvement was limited to ancillary services38 and secondary facilities.39

In the 1970s, government officials again revisited their relationship with the private sector.40 The first wave of privatization occurred within the ju- venile criminal justice system.41 In 1974, Congress passed the Juvenile and

73crime and punishment in private prisons

Delinquency Prevention Act.42 One of the goals of the Act was “to develop and conduct effective programs to prevent delinquency, to divert juveniles [sic] from the traditional juvenile justice system and to provide critically needed alternatives to institutionalization.”43 According to Professors Patrick Bayer and David Pozen, this act created an incentive for private entrepreneurs and corporations, and “privatization emerged as the primary mechanism for deinstitutionalization.”44 Two years later in 1976, RCA Services, a division of the Radio Corporation of America, “assumed control of Weaversville Intensive Treatment Unit located in North Hampton, Pennsylvania.”45 Al- though the Weaversville facility was a juvenile center, it is widely regarded as the first private institution for serious offenders in the modern era.46 The second institution arrived in 1982, when the Eckerd Corporation, a drug manufacturer and drug store chain, took over control of the Okeechobee School for Boys in Florida.47

In the mid 1980s the federal government began contracting for the private detainment of adult inmates.48 In 1984, the federal Bureau of Prisons signed a three-year deal with Eclectic Communications, Inc., whereby Eclectic would house sixty 18- to 26-year-old offenders at Hidden Valley Ranch in La Honda, California.49 At the same time, the United States Immigration and Naturalization Service (INS) began contracting with private organizations to house undocumented non-citizens.50 “[B]y the end of 1988, the number of private INS detention facilities had grown to seven, housing roughly 800 of the 2,700 aliens in INS custody.”51

The first private state institutions arrived around this time, when the Corrections Corporation of America (CCA) contracted in 1984 for the man- agement of the Hamilton County jail in Tennessee52 and in 1985 for the full operation of the Bay County jail in Florida.53 However, the first privately owned and operated prison did not arrive until early 1985, when United States Corrections Corporation opened the Marion Adjustment Center in Kentucky, a minimum security prison for inmates nearing parole.54 Since that time, private facilities have continued to multiply, and now roughly 120,000 inmates are held in private state or federal facilities.55

This modern shift from public penitentiaries to private facilities did not happen by accident. The United States has the highest per capita prison population in the world caused by a boom in incarceration rates through the 1970s and 1980s56 due in large part to the War on Drugs57 and to longer prison sentences.58 President Ronald Reagan’s Commission on Privatization found that the number of federal and state inmates increased approximately 74 percent from 1979 to 1986.59 From 1970 to 2007, the number of inmates swelled from 196,000 to 1.5 million, an increase of almost 800 percent.60

74 national lawyers guild review

According to National Magazine Award-winning author Eric Schlosser, “Since 1980 spending on corrections at the local, state, and federal levels has increased about fivefold.”61

Statistics show a disproportionate effect upon black and Latino male populations.62 According to projections “[i]f current trends continue, it means that a black male in the United States would have about a 1-in-3 chance of going to prison during his lifetime. For a Hispanic male, it’s 1-in-6; for a white male, 1-in-17.”63 Though some commentators argue that this racial disparity is the result of completely legitimate factors,64 the number of mi- nority prisoners is increasing.65 Moreover, the total prison population within the United States is escalating with some state incarceration rates growing at an average of 1.9 percent per year from 2000 to 2005, and 2.8 percent between 2005 and 2006.66

These increases have caused state and federal agencies to turn to the private sector for long-term and stopgap solutions.67

Conflicting interests have created a logjam of sorts, whereby lawmakers have willfully funded the front end of tough on crime bills without consid- ering the budgetary concerns caused by new prisoners and the new prisons needed to house them.68 Due in large part to financial costs, from 2000 to 2006 “the number of Federal prisoners housed in private facilities increased 79 percent; State prisoners, by 15 percent.”69 Some commentators have also argued that the shift has been precipitated by desires to improve innovation, quality, accountability, access to expertise, efficiency, and flexibility.70 These motivations, accurate or not, are clearly subordinate to budgets and bottom lines.71

The private prison industry is still booming. According to a report by the Reason Public Policy Institute “[c]orrections is one of the fastest-growing state budget items. In the last 15 years, state spending on corrections grew more than 350 percent—compared to 250 percent growth for spending on public welfare and 140 percent growth for spending on education.”72 Within this environment, an oligopoly has risen, dominated by CCA and Wacken- hut Corrections Corporation, now known as the GEO Group.73 According to a 1997 Bureau of Justice Statistics survey, within the United States, ten private companies were in charge of at least one state facility.74 However, of the sixty-five private state facilities identified in the survey, CCA or Wackenhut managed forty-nine.75 And in total, the same two companies were under government contracts to manage more than 100 prison facilities,76 accounting for seventy-five percent of all private prison beds.77 To put this in perspective, in 2001 there were only twenty-six total private facilities outside of the United States.78 The current environment is so promising, in

75crime and punishment in private prisons

fact, that CCA has been building prisons on spec, with no contract to build and no prisoners to house.79 According to an AFSCME report, these spec prisons are often sold as economic development projects for the communi- ties in which they are built.80 Under these conditions, the contract bidding process is constrained, and prices are often inflated.81 In spec prisons “[t]he inmates are usually from one or more jurisdictions—often not from the host jurisdiction. The purchasers of spec bed space are typically governments that are desperate to relieve overcrowding. When overcrowding reaches a crisis state, a government will often enter into a sole-source emergency contract at a high per diem rate, generating healthy profits for [the company].”82

It is important to note that crime rates and incarceration rates do not neces- sarily correlate. In other words, a decrease in crime does not necessarily mean that incarceration rates have recently risen, or that they will decrease in the near future.83 Both of these rates are the result of numerous causal factors. And while incarceration rates are shaped by lawbreakers, they are also the result of agency and legislative choices. According to the Federal Bureau of Investigation’s Uniform Crime Reporting Program, property crime offenses have decreased steadily for the past five years.84 And while violent crime offenses have fluctuated recently, the FBI reports that the violent crime rates have generally remained steady for the past five years, about sixty percent lower than in the early 1990s.85

It is always a bad idea to predict future happenings from current trends, particularly in the criminal justice system. However, it seems clear from the foregoing that (1) crime rates have remained somewhat steady, and probably will not drastically increase in the near future, and (2) incarceration rates will continue to grow. In this sort of environment, where demand is not lessening, it seems logical to conclude that private prison companies will continue to play a major role within our criminal justice system. There can be no doubt that private prison companies are in business to generate profits. It remains to be seen whether their existence is changing our conception of criminal punishment.

III. Criminal punishment theory Throughout history social scientists have posited numerous theories

on the underlying purpose of criminal punishment.86 Historically, criminal punishment has been rationalized under two general theories: utilitarian theory and retributive theory.87 Simply put “[r]etributive rationales are es- sentially backward-looking, as they seek to justify punishment on the basis of the offender’s behavior in the past. Utilitarian rationales are essentially forward-looking, as they seek to justify punishment on the basis of the good consequences it is expected to produce in the future.”88 These two general

76 national lawyers guild review

theories have then led to the development of more specific rationales, pri- marily: deterrence, retribution, rehabilitation, incarceration, and restorative justice.89 Commentators have noted that these specific rationales often conflict with one another for a variety of reasons.90 For instance a theory of retribution, where punishment is based on the harm caused by crimes, rarely coincides with a theory of rehabilitation. Practically speaking, if a defendant is simply receiving his “just deserts” for a crime, there is no reason to provide treatment for any mental or emotional disabilities that could have precipi- tated the crime. Additionally, on theoretical grounds a hard-line approach to retribution might preclude the possibility of rehabilitation. As the harms committed by certain crimes are simply unimaginable, it stands to reason that a punishment based on retributive theory might not leave any room for rehabilitation programs. Anything less than maximum punishment could be seen as forgiveness or mercy. The theories of criminal punishment are many and will continue to evolve.91

A host of causal factors have shifted emphasis of punishment theory from retribution during its historical genesis,92 to rehabilitation in the mid 1970s,93 and then back to the idea of just deserts over the past decade.94 In this manner, as social perspectives change over time, so does criminal theory and justifications for punishment.95

Lastly, it must be noted that communities are not homogenous.96 “[C]ommunities differ from one another in regard to the kinds of behavior that should receive criminal sanction. The correspondence between the criminal law and what is actually condemned may vary considerably from one commu- nity to another.”97 Additionally, communities by common definition reflect a range of thoughts, ideas, and backgrounds. And it seems not unreasonable to infer that the justification for punishment differs between individuals within a specific community. For instance, in an emotional domestic crime, a prosecutor might seek punishment under a retributive approach. Contrarily, the victim facing a relentless attacker might be concerned primarily with incapacitation, while the defendant’s family seeks rehabilitation.

If there are common understandings to criminal punishment, these under- standings revolve around the idea of using objective, governmental actors98 to confront morally culpable behavior.99 It stands to reason then that privatized prisons necessarily raise questions about the current state of criminal justice and punishment.

Corporations exist to make money. To see a return in a growing market, a profitable prison corporation must either trim inefficiencies, increase inmate numbers, or do both. In other words, the privatized prison industry has incen-

77crime and punishment in private prisons

tives to increase incarceration rates, the length of sentences, worker turnover, and even recidivism rates, all while decreasing expenses. These goals fly in the face of rational public policy—yet many of this nation’s convicted will spend time in a for-profit prison.

In practice, the federal and state prison systems are bureaucratic behe- moths, creating hundreds of thousands of jobs and requiring astronomical budgets.100 Yet in criminal law theory, incarceration is often an afterthought. And by applying criminal theory only during the arrest, indictment, and sentencing phases, we are arguably degrading one of the most important elements of a criminal justice theory: trust.101 Without consistency and the equal application of law, trust breaks down. And without trust, the moral legitimacy of criminal law and punishment declines. It is therefore impera- tive that we ask whether incentives within the private prison industry are harming our notions of criminal justice.

The specific rationales for criminal punishment are discussed in turn.

(A) Deterrence According to the English jurist Jeremy Bentham, one of the principal

rules of punishment is “that the quantity of punishment must not be less . . . than what is sufficient to outweigh the profit of the offence.”102 To Ben- tham, it is not the act of punishment itself that deters, but rather the idea of punishment that acts upon the mind.103 In its essence, deterrence is a theory of criminal punishment based upon the idea that members of society are rational actors capable of making future decisions based on past knowledge and past stimuli.

Modern jurists typically divide deterrence into two subsets: general deter- rence and specific deterrence.104 General deterrence refers to the idea that members of the public can be deterred from committed crimes by witnessing the condemnation and punishment of criminals.105 The public need not actu- ally witness the punishment but must be aware of its magnitude.106

Specific deterrence, on the other hand, is the theory that punishment is capable of deterring criminal behavior within the individual.107 And while recidivism studies are not perfect,108 they do portray the number of past of- fenders who return to the corrections system.

A privatized, for-profit prison corporation has no incentive to deter crimi- nal behavior or support legislation that focuses on deterrence. According to Austin and Coventry, “Firms driven by the profit motive could adversely influence prison population size by lobbying for longer sentences and stricter sentencing guidelines.”109 According to a recent story, CCA and Wacken-

78 national lawyers guild review

hut were both supporters of the American Legislative Exchange Council, an organization that develops form codes for state legislators.110 And both corporations were on the organization’s Criminal Justice Task Force when it drafted Pennsylvania’s tough on crime bill and three strikes bill.111 Another report indicates that private prison corporations paid $1.1 million to Texas lobbyists in 2007, three times more than in 2005.112

It seems axiomatic, in fact, that a prison corporation would have limited interest in an effective criminal deterrent scheme. According to Eric Schlosser “[t]he private-prison industry usually charges its customers a daily rate for each inmate; the success or failure of a private prison is determined by the number of ‘man-days’ it can generate.”113 Effective general deterrence leads to fewer prisoners. And fewer prisoners lead to lower profits. Now this is not to say that a corporation would be opposed to all legislation based on deterrence. Just as criminal punishment is justified by the myriad theories of criminal law, so too is legislation. A bill might be justified and sponsored for its deterrent effect. Yet, as evidenced by recent three-strike bills, rhetoric does not always conform to reality, in that the practical effects of legislation sometimes do not correlate with the proposed rationales.114

Moreover, tough on crime bills illustrate a second problem. Schemes geared towards reducing recidivism rates by deterring offenders with tough prison sentences, can have the secondary effect of increasing prison terms overall.115 In essence then, by trying to address specific deterrence, a state might actually increase total “man-days” by escalating penalties for the convicted.

All told, successful corporations are those that can maximize utility in the long term.116 A rational prison corporation, by definition, would not and should not seek to reduce total inmate numbers in the majority of circumstanc- es. And yet of all the rationales for criminal punishment, deterrence seems to be the most laudable. Fewer crimes and fewer incarcerated individuals are goals that virtually everyone can agree are worth working towards.

(B) Retribution Often associated with 18th century German philosopher Immanuel

Kant,117 retributive theory states that punishment is something a criminal deserves and, in fact, is morally required.118 Under this doctrine, rules are established for order and the collective good.119 And when these rules are violated, it is necessary for society to address the perpetrator, the victim, and the crime in an authoritative manner.120

Many jurists have argued that the rationale behind retributive theory is not entirely clear, as renowned legal theorist H.L.A.Hart explains:

79crime and punishment in private prisons

To some critics it appears to be a mysterious piece of moral alchemy in which the combination of the two evils of moral wickedness and suffering are transmuted into good; to others the theory seems to be the abandonment of any serious attempt to provide a moral justification for punishment. Other critics still regard it as a primitive confusion of the principles of punish- ment. . . . In its most interesting form modern retributive theory has shifted the emphasis, from the alleged justice or intrinsic goodness of the return of suffering for moral evil done, to the value of the authoritative expression, in the form of punishment, of moral condemnation for the moral wickedness involved in the offence.121

Some commentators have argued that retributive theory is little more than vengeance.122 Regardless, retribution is, by all accounts difficult to analyze in empirical terms.123 Professor Banks argues that retribution is akin to censure as the punishment carries expressive or communicative themes.124 She goes on to explain that “[t]his conception recognizes punishment as comprising not merely harsh treatment, but also elements of condemnation, denuncia- tion, and censure.”125

Accordingly, while retributive theory cannot be evaluated in terms of statistics and incentives, privatization raises questions as to the common sense understanding of social condemnation. In response, commentators have noted that private prisons are objectionable on moral and normative grounds.126 Professor Dan Markel has argued that this normative opposition can be expressed under three different theories.127 He states:

First, one might view the use of private prisons as expressing a message of the state’s indifference to the offense. . . . [Second] using private prisons may appear to commodify inmates in a manner antithetical to a state’s duty to respect the dignity of its citizens . . . [Third] the use of private prisons permits the “state to offload custodial responsibility for convicted offenders to institutions only derivatively committed to the values and obligations of the ethical liberal polity, thus itself constituting a violation of those values and obligations.”128

The second theory highlights the idea that, in practice, inmates are often considered a resource.129 While not always acknowledged, crime is about economics and value.130 And simply put, certain individuals might be worth more behind prison bars than in the workforce. For better or worse, inmates create jobs and new prisons are often sold on the promise of revitalizing communities.131 Given the option, most communities would trade an illicit workforce for the economic stimuli provided by a new prison.132

Markel’s first and third theories133 directly address the idea of responsibil- ity. Some critics have suggested that the state—as legislator, investigator, and adjudicator—also has the duty to enforce its decisions. State responsi-

80 national lawyers guild review

bility demonstrates an element of fairness with respect to the inmate. More importantly, public penitentiaries demonstrate state commitment to criminal law and social accountability. Retribution is based on the idea that actors are responsible for their actions.134 However, a state that relies on private corpo- rations to deliver its retributive messages faces a difficult sell. A state that privatizes its facilities compromises its retributive message. Simply put—it appears hypocritical when a state cannot live up to its own responsibilities, and yet attempts to hold individuals responsible for their actions.

objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.”135 Rehabilitation is a complicated mix of practice and theory.136 In practice, rehabilitative pro- grams are designed to remedy past problems and addictions and to provide assistance and educational tools for future success. In theory, the doctrine of rehabilitation looks past the immediate choices of criminal behavior, and attempts to question patterns of behavior within individuals, families, and larger social networks. However, the doctrine of rehabilitation has been attacked for providing more questions than answers. Since the mid 1970s, the doctrine of rehabilitation has been largely dormant after several com- mentators came to the conclusion that most rehabilitative programs failed to provide adequate solutions.137

In theory rehabilitation is clearly a worthwhile goal. Criminologists have proposed never-ending lists of the causal factors that lead to crime.138 And a penal system that fails to address causal factors within the individual and within society, will inevitably fail to prevent crime in the long-term. The incentive for the state then, is to provide effective programs for both defendants and for the communities in which they live. In many ways, the theory of rehabilitation lives on the other side of the deterrence coin: provid- ing carrots, rather than sticks. It is not entirely clear why the private industry would be interested in reforming and rehabilitating inmates, or supporting alternative sentencing schemes.

According to political scientist Katri Sieberg, “To make a profit, normal businesses need to attract customers. This is done through advertising and other marketing devices. To make a profit, a prison needs a steady or in- creasing flow of prisoners. Thus, the incentives exist for private prisons to lobby for increased prison time, rather than alternative sentences, to punish crimes.”139 A recent Department of Justice report supports this argument, stating “arguably, it is in the operator’s financial interests to encourage lengthier sentences for inmates to keep bed spaces filled.”140

81crime and punishment in private prisons

Rehabilitation is a goal geared towards the long-term. Effective rehabili- tation programs are costly and often require years of trial and error.141 As would be expected, the private prison industry has cut many rehabilitative programs in order to save money.142 Rehabilitative programs, however, have both direct and indirect effects.143 Studies have shown that in the absence of rehabilitative programs, inmates receive counseling of another, more sinister kind from their fellow inmates.144 According to Sieberg “In this type of a community of criminals, with the wrong type of career reinforcement, there is an understandable increase in recidivism. . . . [B]y eliminating those pro- grams that are intended to adjust a criminal to an acceptable societal role, we achieve false economic savings.”145 In addition, Sieberg argues that alternative sentencing schemes would actually reduce government spending, by nearly eliminating housing and funding costs.146

It is difficult to see how effective rehabilitation schemes would benefit the prison industry. If we view inmates as resources or commodities, it sim- ply does not stand to reason that a corporation would have any incentive to give inmates the tools necessary to escape the prison cycle. Such acts are contrary to the very idea of capitalism, as they would result in the depletion of resources and increased operating costs.

(D) Incarceration Incarceration serves as both a theory of criminal punishment, and a device

to implement the theories of deterrence, rehabilitation and retribution.147 As a theory of criminal justice, incarceration serves the public by removing dangerous individuals from the community. Unfortunately, not all criminals are capable of effective rehabilitation or deterrence. Therefore, incarceration aims at “isolating dangerous and recidivist criminals from the law-abiding public and thereby enhancing public safety.”148 However, communities do not begin and end at the prison house gates. In light of this, effective incar- ceration requires the removal of dangerous threats from the public at large and the reduction of similar dangers from within the prison community.

“A leading criticism of prison contractors is that they maximize profits through dangerous cuts in staff levels, staff training and staff pay.”149 As Sieberg explains, the privatized prison industry can hire, move, and terminate workers quickly, as the companies are not unionized.150 Not surprisingly, an underpaid and undertrained prison force can be dangerous for those on the inside as well as the outside.

According to Austin and Coventry’s Department of Justice report, “A total of 45 escapes occurred at 14 private facilities between January 1, 1997, and December 31, 1997. The Rate of escapes per 1,000 inmates for the sixty-

82 national lawyers guild review

two private facilities [was] 1.06 percent.”151 Similarly, a 1999 report by the Federal Bureau of Prisons noted that privately operated facilities used more staff, had a higher turnover rate, and had “much higher escape rates from secure institutions” than the public federal system did.152 In one of the most egregious displays of ineffective incarceration, the Northeast Ohio Correction Center in Youngstown, Ohio—a spec CCA prison—witnessed six escapes in its first fifteen months of operation.153 Five of the six escapees were con- victed murderers, and all of them were maximum-security inmates.154 Austin and Coventry noted that operational flaws such as escapes “were linked to inexperienced staff, [and] inadequate training.”155

Ineffective incarceration also presents dangers to prison guards, administra- tors and inmates.156 Over the past decade there have been numerous reports de- tailing violence and sub-standard prison conditions within the private sector:

In 2007, the ACLU filed suit against the Department of Homeland Security and CCA, alleging that a federal immigration facility near San Diego was housing three inmates in two bed cells.157 In Idaho, a recent report indicated that the State’s only privately owned prison had an inmate violence rate three times higher than that of the public facilities.158 A report by the Texas Youth Commission from September 26 to October 2, 2007 listed 21 major operational and security issues at the Coke County Juvenile Justice Center in Bronte, Texas.159 The report detailed “flagrant” violations such as double-bunking youths, racial segregation, and an inmate work schedule for hours between 10:00 p.m. and 4:30 a.m.160

In addition to the six escapes, the Northeast Ohio Correction Center saw seventeen stabbings, numerous assaults on prison personnel, and two murders in under a year and a half of operation.161 Ultimately, the town of Youngstown filed a successful suit on behalf of the inmates alleging that the inmates were in danger due to the company’s housing practices.162 And in 2000, Wackenhut relinquished its contract for a juvenile center in Jena, Louisiana after the Department of Justice filed a suit alleging physi- cal and verbal abuse, and the inappropriate use of pepper spray.163

While shocking, these stories do not appear to be aberrations. According to the Department of Justice, in total there are greater numbers of inmate- on-inmate assaults in private prisons (35.1 percent) as compared to public facilities (25.4 percent).164

While we often think of incarceration as an end product in criminal law theory, for most individuals, incarceration is only temporary. And when a



83crime and punishment in private prisons

corporation has incentives to skimp on personnel, infrastructure, and training, it necessarily raises questions as to the effectiveness of criminal isolation and may increase the likelihood of recidivism. Prisons will never be “safe” places. But they also need not be excessively dangerous or uninhabitable.

(E) Restorative justice Referring to the 2008 recession, the President and Chief Operations Of-

ficer of Corrections Corporation stated that “[t]here is going to be a larger opportunity for us in the future.”165 Just as with rehabilitation, one must question how much of an incentive privatized prisons have to follow a theory of restorative justice.166 Restorative justice, or restitution, is in many ways a blend of civil and criminal law. Instead of focusing on the perpetrator himself, a restorative justice approach seeks to mend the harm of criminal activity by making the victim whole.167 Not surprisingly, punishment and incarceration are not always the principle aims of restitution.

Accordingly, critics have noted that there are several problems with a restorative justice approach. First, a criminal justice scheme based on restorative principles grants elevated roles to victims and victim advocacy groups.168 And while it is important for society and juries to see the harm caused by criminal behavior, it must be weighed with the understanding that victims are rarely objective. Second, restitution is not applicable for every crime.169 By placing monetary value on criminal behavior, we risk a society where all losses can be compensated. Moreover, such a system would favor the wealthy, and create incentives for calculated criminal behavior in situ- ations where the rewards outweighed the risks. In light of this, many feel that values should take precedence over value, and restorative justice should play only a limited role in the criminal justice system.170

Nevertheless, there are times when restitution may play a more effective role in the criminal justice system than incarceration.171 For instance, with juvenile offenders it may be more advantageous to society for the young of- fenders to learn the true value of crime, by working to compensate the victim. Furthermore, some argue that drug crimes, in particular, should be analyzed under restorative approach rather than a retributive model.172

In addition, some commentators have noted that restorative justice mod- els actually aid in the rehabilitation process.173 For example, certain Native American communities use peacemaking circles to confront criminal behav- ior.174 These peacemaking circles “[do] not treat the criminal act as an isolated incident that demands merely retributive action. Rather, any resolution must take an inclusive approach, considering the impact of the crime and possible redress on all parties and the community as a whole.”175

84 national lawyers guild review

Common sense argues that any restorative approach that does not require incarceration would be inapposite to a business oriented approach to criminal justice. Victim compensation creates competition. And although the inmate population rate is growing in the United States,176 it seems reasonable to conclude that the private prison industry would be careful to monitor its only resource, and necessarily oppose restitution and alternative sanctions.

IV. Conclusion The economic benefits of prison privatization may or may not exist. To

the extent they do, they are fleeting. Regardless, focusing only upon the bottom line oversimplifies the subject. Social acceptance of prisons requires moral legitimacy within the criminal justice system. A scheme that shifts responsibility to the private sector necessarily raises questions regarding the importance of criminal law and the rationales for punishment. The true value of any criminal justice system must be measured in terms of the benefits accrued by society. Accordingly, when we look at private prisons we must ask if the alleged but highly disputed benefits of efficiency outweigh the burdens, dangers, and doubts that are known to accompany the privatized prison industry. ________________ NOTES 1. See Geoffrey f. SeGal, reaSon Public Policy inStitute, the extent,

hiStory, and role of Private comPanieS in the delivery of correctional ServiceS in the united StateS 3 (2002), available at http://reason.org/ps302. pdf (The author divides private prison services into three categories: design and construction; ancillary services such as food and medical care; and contract man- agement or ownership of prison facilities).

2. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prison in Jurisprudential Perspective, 38 am. crim. l. rev. 111, 121 (2001).

3. Id. at 120 (“Neither the term ‘prison’ nor ‘private prison’ has a self-evident meaning. . . . At various points it has contemplated everything from facilities for detaining juveniles and undocumented immigrants, to ‘halfway’ houses, to city and county jails housing misdemeanants and those awaiting trial, to the quintessential ‘big houses,’ huge self-contained edifices brimming over with hardened felons, that continue to dominate the prison landscape.”).

4. See JameS auStin & Garry coventry, national council on crime and delinquency, dePartment of JuStice, emerGinG iSSueS on Privatized PriSonS 19 (2001), http://www.ncjrs.gov/pdffiles1/bja/181249.pdf (The authors argue that the history of privatization in the criminal justice system within U.S. territory can be traced back to the early colonial period, where low-level felons were granted amnesty in return for their indentured servitude); see also Sharon Dolovich, State Punishment and Private Prisons, 55 duke l.J. 437, 450 (2005) (“In colonial America, the meting out of criminal punishment was purely a local

85crime and punishment in private prisons

matter and could include any of a range of sanctions, among them fines, flogging, the stockade, banishment, and the gallows—but not imprisonment. As in eigh- teenth-century England, jails were merely holding chambers for debtors or for those individuals awaiting trial or punishment.”).

5. auStin & coventry, supra note 4, at 19; see, e.g., StePhen raher, colorado criminal JuStice reform coalition, Private PriSonS and Public money (2002), http://www.ccjrc.org/pdf/CostDataReport2002.pdf (“The operation of pris- ons for private gain first surfaced in the United States shortly after the Civil War, when prison populations in southern states skyrocketed and a system of ‘convict leasing’ was devised in order to relieve over crowded prisons and enrich private manufacturing concerns.”).

6. White, supra note 2, at 124 (arguing that extra-legal punishments and labor short- ages largely prevented the establishment of formal institutions).

7. See auStin & coventry, supra note 4, at 9. 8. Id.at 9. 9. Id. at 10 (citing clair criPe, leGal aSPectS of correctional manaGement

378 (1997)) (“Payments were extracted for special services, such as better meals or other privileges. Some money was given to the jailer (often the sheriff) for basic services. But it was widely accepted that jailers could charge additional money for virtually any type of special benefit.”).

10. White, supra note 2, at 124. 11. See alex lichtenStein, twice the work of free labor 60 (1995) (demon-

strating that the number of convicts in the Georgia Penitentiary grew from 385 in 1871 to 2558 in 1909, nearly a seven-fold increase).

12. raher, supra note 5, at 4; see Dolovich, supra note 4, at 450-51 (arguing that the first prison labor programs were designed to be rehabilitating).

13. auStin & coventry, supra note 4, at 10; see, e.g., White, supra note 2, at 127 (“Every southern state after the Civil War, except Virginia, eventually instituted the widespread leasing of state inmates to private individuals or firms.”).

14. auStin & coventry, supra note 4, at 10-11 (“For most of the correctional history of the United States, prison labor was expected to generate a profit for the institu- tion. If generating a profit was not feasible, it was incumbent upon the prisoner to pay the costs of incarceration and become self-supporting.”).

15. White, supra note 2, at 127-30. 16. Id. at 129. 17. Id. at FN64. 18. White, supra note 2, at 128 (“On average, leasing generated revenues several times

the costs. At one point, for example, Alabama derived six to ten percent of its total state revenues from leasing—and this in contrast to the prospect of actually paying for incarceration.”).

19. Ida b. wellS & frederick douGlaSS et. al., the reaSon why the colored american iS not in the world’S columbian exPoSition, chapter iii (1893), available at http://digital.library.upenn.edu/women/wells/ exposition/exposition.html.

86 national lawyers guild review

20. Id.; see Dolovich, supra note 4, at 451-52 (illustrating Mississippi’s “Pig Law” which provided a five year sentence for theft of a farm animal, a law aimed at newly freed slaves).

21. auStin & coventry, supra note 4, at 11. 22. Id.at 11. 23. Id. at 11. 24. Id.at 11. 25. Gilder lehrman center, forced labor in the 19th century South, the

Story of Parchman farm 2, avaiable at http://www.yale.edu/glc/events/cbss/ Oshinsky.pdf (last visited Sept. 25, 2009).

26. See id. (“At a prison camp of the Greenwood and August Railroad, convicts were used up faster than South Carolina authorities could supply them. Between 1877 and 1879, the G & A ‘lost’ 128 of their 285 prisoners to gunshots, accidents, and disease (a death rate of 45 percent) and another thirty-nine to escapes.”); matthew zito, international foundation for Protection officerS, PriSon Privatization: PaSt and PreSent (2003), http://www.ifpo.org/articlebank/prison_privatization. html (“In one camp the reported mortality rate of convicts was 10% per month, and at other camps it was even higher.”).

27. auStin & coventry, supra note 4, at 11. 28. Id. at 11. 29. Id.; see wellS & douGlaSS et al., supra note 18, Chapter III; see zito, supra

note 26 (noting that “women and children as young as twelve years old . . . were housed together with hardened criminals, and it was not uncommon for babies to be born inside the camps.”).

30. matthew J. mancini, one dieS, Get another, convict leaSinG in the american South, 1866-1928, at 219 (1996).

31. auStin & coventry, supra note 4, at 11; see also mancini, supra note 30, at 221 (The author notes that some historians have argued that rise of the Democratic party may have played a contributing factor. This explanation places a heavy emphasis on a political rationale, rather than ethical or humanitarian justifications.).

32. auStin & coventry, supra note 4, at 11. 33. Id. at 11. 34. Id.; Whitfield v. Ohio, 297 U.S. 431, 434 (1936) (citing the Hawes-Cooper Act,

49 U.S.C. § 60 (1929) (no longer in force)) (“All goods, wares, and merchandise manufactured, produced, or mined, wholly or in part, by convicts or prisoners, except convicts or prisoners on parole or probation, or in any penal and/or reformatory institutions, except commodities manufactured in Federal penal and correctional in- stitutions for use by the Federal Government, transported into any State or Territory of the United States and remaining therein for use, consumption, sale, or storage, shall upon arrival and delivery in such State or Territory be subject to the operation and effect of the laws of such State or Territory to the same extent and in the same manner as though such goods, wares, and merchandise had been manufactured, produced, or mined in such State or Territory, and shall not be exempt therefrom by reason of being introduced in the original package or otherwise.”).

87crime and punishment in private prisons

35. White, supra note 2, at 133 (The author notes, however, that convict leasing re- mained at the county level until well into the civil rights era).

36. mancini, supra note 30, at 222 (noting that Alabama, Arkansas, and Mississippi continued to allow convict leasing decades after legally prohibiting the practice).

37. auStin & coventry, supra note 4, at 11. But see lichtenStein, supra note 11, at 185 (arguing that in many instances the public chain gang replaced convict leasing, not necessarily, the more modern public penitentiary).

38. auStin & coventry, supra note 4, at 11 (noting such services as food preparation, vocational training, inmate transportation, medical care, dental care, and mental health care).

39. Nicole B. Casarez, Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records, 28 u. michiGan J.l. reform 249, 253-54 (1995) (describing juvenile homes, halfway houses, and federal pre-release community treatment centers).

40. auStin & coventry, supra note 4, at 12. 41. Id. at 12. 42. Juvenile and Delinquency Prevention Act of 1974, Pub. L. No. 93-415, 88 Stat.

1109. 43. Id. § 102(B)(2). 44. Patrick bayer & david e. Pozen, economic Growth center, the

effectiveneSS of Juvenile correctional facilitieS: Public verSuS Private manaGement 4 (2003), available at http://www.econ.yale.edu/growth_pdf/ cdp863.pdf.

45. auStin & coventry, supra note 4, at 12. 46. Id. at 12; see charleS h. loGan, Private PriSonS 18 (1990) (stating that the

facility housed 15-18 year old males who had committed crimes such as “burglary, robbery, assault, sex offenses, weapons offenses, arson, vandalism, and theft”).

47. auStin & coventry, supra note 4, at 12; loGan, supra note 41, at 18 (the author notes that the Okeechobee school housed 400 to 450 boys, far more than Weaversville’s 22 inmates).

48. See loGan, supra note 46, at 21. 49. Id. at 21. 50. Id.at 21. 51. auStin & coventry, supra note 4, at 12. 52. Id. at 12; loGan, supra note 46, at 31; see also Judith Greene, Comparing Private

and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews 1 (1999), available at http://archive.epinet.org/real_media/010111/ma- terials/greene.pdf (stating that CCA unsuccessfully attempted to contract for the entire Tennessee system for 250 million dollars).

53. loGan, supra note 46, at 24-25 (CCA did officially gain title to the jail until 1986). From 1987 to 1997, CCA’s revenue stream increased thirty fold, while its beds grew from 1,715 to 52,890. See auStin & coventry, supra note 4, at 12.

54. auStin & coventry, supra note 4, at 12.

88 national lawyers guild review

55. See office of JuStice ProGramS, united State dePartment of JuStice, bureau of JuStice StatiSticS, PriSonerS in 2006, at 5 (Dec. 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p06.pdf.

56. Judith Greene, Banking on the Prison Boom, PriSon ProfiteerS 3 (2007), 4 (Tara Herivel & Paul Wright ed., 2007).

57. Gary Hunter & Peter Wagner, Prisons, Politics, and the Census, PriSon ProfiteerS 80 (2007), 81 (Tara Herivel & Paul Wright ed., 2007).

58. Jfa inStitute, unlockinG america, why and how to reduce america’S PriSon PoPulation 8 (2007), available at http://www.jfa-associates.com/pub- lications/srs/UnlockingAmerica.pdf; see also franklin e. zimrinG, Gordon hawkinS, & Sam kamin, PuniShment and democracy 6 (2003) (analyzing California’s three strike rule for habitual offenders, a ballot initiative).

59. Casarez, supra note 39, at 254. 60. Jfa inStitute, supra note 58, at 6; see also Public Safety Performance

ProJect, Pew charitable truSt, Public Safety, Public SPendinG, forecaStinG america’S PriSon PoPulation 2007-2011, at 4-5 (2007), available at http://www.pewcenteronthestates.org/uploadedFiles/Public%20Safety%20Pub lic%20Spending.pdf (The organization predicts a prison rate increase of 192,000 people over the next five years, nearly matching the total population in 1970. The organization further forecasts that western states such as Colorado, Montana, and Wyoming will see total rate increases of more than 25 percent.).

61. Eric Schlosser, The Prison-Industrial Complex, the atlantic, Dec. 1998, http:// www.theatlantic.com/doc/print/199812/prisons.

62. Gail Russell Chaddock, US Notches World’s Highest Incarceration Rate, chriStian Science monitor, Aug. 18, 2003, http://www.csmonitor.com/2003/0818/p02s01- usju.html.

63. Id.; see human riGhtS watch, backGrounder: incarcerated america (April, 2003), http://www.hrw.org/backgrounder/usa/incarceration/ (Noting that in twenty states, the percentage of blacks within the prison population was at least five times greater than the total percentage of their state resident population. Strangely, the majority of these states, including Colorado, were in upper West and Midwest. South Dakota, Vermont, and West Virginia lead the nation with ratios over ten.).

64. See william wilbankS, the myth of a raciSt criminal JuStice SyStem (1987), available at http://www.radford.edu/~tburke/Burke/The%20myth%20of %20a%20racist%20criminal%20justice%20system.pdf.

65. See PriSonerS in 2006, supra note 55, at 7 (The study notes that while the total number of black prisoners has increased from 2000 to 2006, the actual rate has dropped. Both the white and Hispanic rates increased).

66. Id. at 1 & 14 (Federal incarceration rates experienced an average annual growth rate of 5.8% from 2000 to 2005, and 2.9% from 2005 to 2006). For the purpose of this article, it is also important to note that roughly 4.3 million former prisoners live outside the criminal justice system. And whether our focus is upon theory or hard evidence, such as recidivism rates, it is important that we note the thousands of individuals existing in private prisons every year. Chaddock, supra note 62.

89crime and punishment in private prisons

67. See SeGal, supra note 1, at 2. 68. Id. (needs to be more clear, need to find page to reference, I can’t find it) 69. See PriSonerS in 2006, supra note 55, at 5. 70. See SeGal, supra note 1, at 6-10. 71. Id. (citing keon chi and cindy JaSPer, council of State GovernmentS,

Private PracticeS: a review of Privatization in State Government 8 (1998) (noting that the rationales were rated as reasons for privatization in about 20% of the agencies surveyed)).

72. See SeGal, supra note 1, at 2. 73. auStin & coventry, supra note 4, at 40. 74. Id. at 39. 75. Id. at 40. A 1999 report by the American Federation of State, County and

Municipal Employees puts the number of private corporations at twelve. afScme, PublicationS, the induStry (2008), http://www.afscme.org/publications/2558. cfm.

76. Kelly Patricia O’Meara, Prison Labor is a Growth Industry, inSiGht on the newS, May 24, 1999, available at http://findarticles.com/p/articles/mi _m1571/is_19_15/ai_54736555.

77. AFSCME, supra note 75. 78. auStin & coventry, supra note 4, at ix (these prisons were housed in the United

Kingdom, Australia, and South Africa). 79. Schlosser, supra note 61. 80. See AFSCME, supra note 75. 81. See id.at 75. 82. Id.at 75. 83. See JuStice Policy inStitute, violent crime fell in 2007; PriSon and

JailS exPerienced leSS Growth than PreviouS yearS: areaS with lower incarceration rateS exPerienced Greater crime reductionS, http://www. justicepolicy.org/images/upload/08-09_FAC_FBIUCR2007_AC-PS.pdf (last vis- ited Sept. 26, 2009).

84. federal bureau of inveStiGation, ProPerty crime, crime in the united StateS 2007, available at http://www.fbi.gov/ucr/cius2007/offenses/property_ crime/index.html.

85. federal bureau of inveStiGation, crime in the united StateS 2007, Table 1, available at http://www.fbi.gov/ucr/cius2007/data/table_01.html.

86. John w. SutherS, no hiGher callinG, no Greater reSPonSibility, a ProSecutor makeS hiS caSe 43 (2008) (“Arguments about the purpose of pun- ishment are as old as civilization.”).

87. Sanford h. kadiSh et al., criminal law and itS ProceSSeS 79 (8th ed. 2007); cyndi bankS, criminal JuStice ethicS 105 (2004).

88. kadiSh, supra note 87, at 79. 89. bankS, supra note 87, at 104-05; SutherS, supra note 86, at 43-54.

90 national lawyers guild review

90. See bankS, supra note 84, at 104. 91. Id. at 104. 92. See id. at 105. 93. kadiSh, supra note 87, at 99. 94. See bankS, supra note 87, at 104. 95. Id.at 104. 96. richard quinney & a. Javier trevino, the Social reality of crime 115

(2001). 97. Id.at 115. 98. kadiSh, supra note 87, at 1. 99. Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship

between Legal and Moral Accountability, 39 ucla l. rev. 1511, 1528 (1992). 100. See federal bureau of PriSonS, budGetary Summary, available at http://

www.usdoj.gov/jmd/2009summary/pdf/bop-bud-summary.pdf (requesting just over $12 billion for the 2009 year); colorado dePartment of correctionS, fy 2009-10 budGet cycle 8, available at http://www.colorado.gov/cs/Satellite ?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=Mu ngoBlobs&blobwhere=1227051791486&ssbinary=true (requesting $824 million dollars for the 2009-2010 fiscal year, up from $761 million).

101. See generally, Associate Attorney General Daniel Marcus, Building Trust and Confidence in the Criminal Justice System, Remarks to the 203rd Federal Bureau of Investigation Academy Class (Oct. 17, 2000), http://www.usdoj.gov/archive// aag/speeches/2000/cp_fbi_marcus_remarks.htm.

102. Jeremy bentham, an introduction to the PrinciPleS of moralS and leGiSlation 189 (A New Ed., 1907).

103. Id. at 193. 104. Mark C. Stafford & Mark Warr, A Reconceptualization of General and Specific

Deterrence, in contemPorary criminoloGical theory 26, 26 (Peter Cordella & Larry J. Siegel ed., 1996).

105. See id.at 26. 106. See bentham, supra note 102. 107. See id. at 102. 108. See generally auStralian inStitute of criminoloGy, ProblemS aSSociated

with meaSurinG recidiviSm, available at http://www.aic.gov.au/publications/ rpp/17/problems.pdf (last visited Dec. 13, 2008).

109. auStin & coventry, supra note 4, at 17. 110. Sarah Posner, Security for Sale, the american ProSPect, Dec. 18, 2005, avail-

able at http://www.prospect.org/cs/articles?articleId=10750. 111. Id. 112. Lauren Reinlie, Lax Oversight Plagues Private Prisons in Texas, 1.9 watch your

aSSetS 5, Feb. 6, 2008, http://www.tpj.org/watchyourassets/prisons/prisons.pdf. 113. Schlosser, supra note 61.

91crime and punishment in private prisons

114. zimrinG, hawkinS, & kamin, supra note 58, at 85 (noting that California’s three- strike rule seems to deter felonious crime by only 0-2%).

115. See generally Paul Gendreau et al., Solicitor General canada, the effectS of PriSon SentenceS on recidiviSm (1999), available at http://www. prisonpolicy.org/scans/gendreau.pdf.

116. See milton friedman & Steven medema, Price theory 280 (new ed., 2007).

117. robert cryer et al., an introduction to international criminal law and Procedure 19 (2007).

118. See bankS, supra note 87, at 109. 119. See id. at 109. 120. See id. at 110. 121. h. l. a. hart, PuniShment and reSPonSibility 234-35 (1968), available at

http://www.stephankinsella.com/texts/hart_punishment-responsibility.pdf. 122. See kadiSh, supra note 87, at 85. 123. See Developments in Law, III. A Tale of Two Systems: Cost, Quality, and

Accountability in Private Prisons, 115 harv. l. rev. 1868, 1871-72 (2002) (not- ing that space constraints preclude the moral debate).

124. bankS, supra note 87, at 110; see andrew von hirSch, cenSure and SanctionS 9 (2003).

125. bankS, supra note 87, at 110-11. 126. See auStin & coventry, supra note 4, at 16 (“As a policy matter, opponents

to privatization . . . claim it is inappropriate to operate prisons based on a profit motive.”); Jody Freeman, The Contracting State, 28 fla. St. u. l. rev. 155, 188 (2000) (““the private interest in maximizing profits may conflict with the public interest in sound correctional policies”).

127. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retribution and the Implications for the Alternative Sanctions Debate, 54 vand. l. rev. 2157, 2234 (2001).

128. Id. (quoting Sharon dolovich, the ethicS of Private PriSonS (1999) (an unpublished document)).

129. See hunter & waGner, supra note 57, at 82. The authors present an interesting argument regarding the usage of inmates to expand rural census counts. Regarding the 2000 U.S. census, they state “there are twenty-one counties where a least 21 per- cent of the reported census population is actually incarcerated people from outside the county. In 173 counties, more than half of the African American population reported in the census is incarcerated.”

130. See clarence darrow, crime and criminalS, an addreSS to the PriSonerS in the chicaGo Jail (1919).

131. Schlosser, supra note 61 (“Prison jobs have slowed the exodus from small towns, by allowing young people to remain in the area. . . . The job brings health benefits and a pension.”).

132. However, as Schlosser notes, the economic transference is typically geographical as well across sector. Id.

92 national lawyers guild review

133. Markel, supra note 127, at 2234. 134. bankS, supra note 87, at 109. 135. Williams v. New York, 337 U.S. 241, 248 (1949). 136. See bankS, supra note 87, at 116. 137. Id. at 117; kadiSh, supra note 87, at 99. 138. See generally StePhan hurwitz & karl o. chriStianSen, criminoloGy 1

(1983). 139. katri k. SieberG, criminal dilemmaS 45 (2001). 140. auStin & coventry, supra note 4, at 16. 141. See generally SieberG, supra note 138, at 10. 142. Id. at 10; see also Freeman, supra note 126, at 188 (“Private prison officials and

private guards exercise discretion over every aspect of the prisoners’ daily experi- ence: meals, health care, recreation, cell conditions, transportation, work assign- ments, visitation, and parole. Private prison officials determine when infractions occur, impose punishments and, perhaps most significantly, make recommendations to parole boards. Their discretion affects prisoners’ most fundamental liberty and security interests.”). But see auStin & coventry, supra note 1, at 55 (noting that inmates in private facilities had greater degrees of participation in educational programs, vocational programs, drug and alcohol counseling courses).

143. See SieberG, supra note 139, at 10 (using the terms “positive” and “negative” influences).

144. Id. at 10. 145. Id. at 10. 146. Id. at 12. 147. See John J. Dilulio, Jr., Prisons are a Bargain, by Any Measure, N.Y. timeS, Jan.

16, 1996, in kadiSh, supra note 87, at 102. 148. SutherS, supra note 86, at 52. 149. Reinlie, supra note 112, at 4; auStin & coventry, supra note 1, at 16 (“Labor

costs are controlled by reducing one of more of the following personnel cost fac- tors: (1) number of staff, (2) wages, or (3) fringe benefits. . . . Prisons are extremely labor intensive, with approximately 65 to 70 percent of the costs of operating a prison going to staff salaries, fringe benefits, and overtime. Controlling these costs is more difficult to achieve with unionized government workers.”).

150. SieberG, supra note 103, at 38. 151. auStin & coventry, supra note 4, at 47. 152. Scott d. camP & Gerald G. GaeS, federal bureau of PriSonS,

Growth and quality of u.S. Private PriSonS: evidence from a national Survey 435 (2006), available at http://www3.interscience.wiley. com/cgi-bin/fulltext/118964088/PDFSTART.

153. auStin & coventry, supra note 4, at 49. 154. camP & GaeS, supra note 153, at 430.

93crime and punishment in private prisons

155. auStin & coventry, supra note 4, at 49; camP & GaeS, supra note 153, at 432 (finding problems in “inadequate numbers of staff, inexperienced staff, insufficiently trained staff . . . and physical plant deficiencies”).

156. See Freeman, supra note 126, at 188 (“the relative invisibility and low moral status of the prison population makes prisoners especially vulnerable and heightens the need for accountability”).

157. ACLU Signs Off on Otay Mesa Detainee Overcrowding Deal, San dieGo 6, http://www.sandiego6.com/news/local/story.aspx?content_id=c4ca75a4-e665- 4535-8cb0-44070322f2e3&gsa=true (last visited Sept. 26, 2009).

158. Associated Press, Idaho Private Prison has Triple Assault Rate, ktvb.com, nov. 10, 2008, http://www.ktvb.com/news/crime/stories/ktvbn-nov1008-private_pris- on_assaults.19d675fe6.html.

159. dimitria d. PoPe, texaS youth commiSSion, coke county Juvenile JuStice center audit 7 (2007), available at http://privateci.org/private_pics/ tyc_CokeCounty_AuditReport[1].pdf.

160. Id. 161. auStin & coventry, supra note 4, at 36 (“The U.S. District Court . . . granted

preliminary approval of a $1.6 million settlement on behalf of the District inmates who claimed that they were abused, denied adequate medical care, and not properly separated from other inmates.”).

162. th e Se n t e n c i n G Pr o J e c t, Pr i S o n Pr i v a t i z a t i o n a n d t h e uS e o f incarceration 3 (2004), http://www.sentencingproject.org/Admin/Documents/ publications/inc_prisonprivatization.pdf.

163. Id. 164. auStin & coventry, supra note 4, at 46. 165. Interview with Damon Hininger, in Stephanie Chen, Larger Inmate Population is

Boon to Private Prisons, wall St. J., Nov. 18, 2008, available at http://online. wsj.com/article/SB122705334657739263.html.

166. It should be noted that many states have restorative schemes whereby inmates “pay” back their victims from work performed within the penitentiary. Certainly a private prison corporation would have an incentive to see such legislation passed. However, for the purposes of this section, I am discussing only those restorative justice schemes that exist as alternatives to prison terms.

167. bankS, supra note 87, at 118. 168. Id. at 119. 169. SutherS, supra note 86, at 46 (“Restitution should play a very important role in

sentencing in many cases and virtually none in others.”). 170. See id. at 46. 171. See id.at 46. 172. eleanor hannon Judah & michael bryant, criminal JuStice: retribution

v. reStoration 58 (2004). And see Corrections Corporation of America 2005 Annual Report, reprinted in Greene, supra note 56, at 1 (“[P]ossible growth de- pends on a number of factors we cannot control. . . . [A]ny changes with respect to

94 national lawyers guild review

drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”).

173. Jessica Metoui, Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American Communities, 2007 J. diSP. reSol. 517, 526 (2007).

174. Id. at 527. 175. Id.at 527. 176. See supra text accompanying note 66.

Subscribe to National Lawers Guild Review

Free to NLG members. Membership information at www.nlg.org or at address below.

 1 Year (4 issues) Non-member Lawyer, Law Office or Business . . . . . . . . . . . . . . $55.00

 1 Year (4 issues) Non-member Student or Legal Worker . . . . . . . . . . . . . . . . . . . . . . $30.00

 1 Year (4 issues) Jailhouse Lawyer/Incarcerated Person . . . . . . . . . . . . . . . . . . . . . . . . . . $10.00

(Outside the U. S., add $5.00/year to above rates.)

NAME________________________________________________________________________

A D D R E S S _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

CITY____________________________________STATE__________ZIP________________

e - M A I L _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _



Please send with check or money order to: NLG Review, 132 naSSau Street, Suite 922, new york, ny 10038. email: [email protected]

emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.

However, users may print, download, or email articles for individual use.

CRIME AND PUNISHMENT IN PRIVATE PRISONS. Authors: Mulch, Matthew Source: National Lawyers Guild Review. Summer2009, Vol. 66 Issue 2, p70-94. 25p. Document Type: Article Subject Terms: *Prison-industrial complex *Prison system *Prisons -- Finance *Criminal justice administration *Military departments & divisions -- United States Privatization -- United States Prisons -- United States United States -- Politics & government -- Moral & ethical aspects Geographic Terms: United States NAICS/Industry Codes: 922190 Other Justice, Public Order, and Safety Activities 236220 Commercial and Institutional Building Construction 911220 Federal correctional services 912120 Provincial correctional services 922140 Correctional Institutions Abstract: The article offers information concerning the disturbing trend towards privatization of the prison system in the U.S. It describes the alarming social and ethical faults originating from the artificial union of punishment and profit known as the prison-industrial complex. It examines the society's understanding of punishment and criminal justice theory. It emphasizes the moral and political identity of a nation when its values are compromised when its own government violates its own laws by instituting inhumane military and intelligence programs contrary to the country's foundation on which it stands for. ISSN: 0017-5390 Accession Number: 52365899