A Carceral Dilemma: Budget Cuts and the Complex Ethics of Private Prisons

Since the start of the year, Louisiana’s legislature has been locked in a standstill over budget cuts and potential changes to the state tax system. As has been in the past during times of budgetary uncertainty, the topic of privatizing prisons has come up. Specifically, the privatization of state prison facilities has been argued as a potential avenue in cutting overhead. This week’s discussion explores private prisons and what its precarious origins mean for a government looking to repair its reputation as the “world’s most incarcerated place.”

It is not hyperbole to say that American culture is deeply seeded with an addiction to retribution, with its operating mantra borne from the “eye for an eye” philosophy. Our national ethos is impregnated with a legacy emphasizing ideas about just desserts, where those that break the rules get what they deserve. Naturally, this has come to inform our discussion on how we handle those who violate the law. Prisons – while not unique to the American criminal justice experience – take on a unique position in our society of mass incarceration. For most of history, breaking the law meant violating a collectively-agreed upon social compact (e.g. the Constitution) to behave in specific ways. Anyone depriving a person of the enshrined ideals of life, liberty, and the pursuit of happiness could be said to be violating the law and as such necessitated a response from state authorities. Whether a tribal leader, monarch, or duly-elected official, conceptions of punishment have historically been connected to the governance of and levied by the elected or endowed leaders. Punishment in this form has always been about the state’s effort to exercise and reaffirm its responsibility to maintain order.

With the state taking on this role, expenditures for enforcement of the law are part of any federal or state budget. The budget for prisons is tied to the same government which makes and enforces laws. Under this conception, prisons are a part of a civil service similar to law enforcement and fire protection and must be covered through taxes and other forms of state-earned income. The insecure nature of a market economy and changes in tax code, however, can threaten the stability of funding for civil services at any time and as been demonstrated extensively in past few decades. When revenues contract, government budgets must be adjusted to take on any income loss.

State-funded prisons are a big target for cuts when budgets contract Some states – like California – spend nearly 10% of all operating funds on prison facilities. States feeling the heat of a tightening budget may look for alternatives, like privatization and collaborations with corporate interests. However, any introduction of the profit motive in prisons reimagines the exchange that has been typically been defined as being between private citizens and the government.

Privatization takes incarceration out of the hands of the state and monetizes its operations for wider commercial use. The birth of private prisons begins in the 1980s, as the first wave of budget “crises” emerged and a greater demand for law and order placed a run on resources; resources that were not widely available to the state. Private companies – many of them who provide services to the prisons themselves - have wriggled their way into this demand by not only providing services but offering a complete takeover. Private interests are now there for the state to tap into the ever-growing number of arrested offenders and provide long-term solutions for the housing and maintenance of punishment.

Defining and Debating “private prisons”

Private prisons are an alternative to state-run facilities where operations are run by corporate interests, like the Corrections Corporation of America (CCA) or the GEO Group. These corporations enter into a contractual agreement with governments; the state pays corporations to house and maintain convicted people[1]. The very first private state prison facility opened in Kentucky in 1986, while federal contracts for prisons sprout up in 1997. Throughout the late Clinton and Bush presidencies a construction boom followed, fueled by a growing population of incarcerated people being arrested and convicted in the ever-growing drug war. Today 29 states and the federal government use private contracts and in all incarcerate 120,000 people[2]. Reliance on private facilities varies greatly across states, with only 2% of all California inmates being housed in private prisons while New Mexico’s private prison inmate population exceeds 40%[3].

The politics of privatization can be summarized as one where opponents suggest that private prisons commodify people, with the financial bottom-line being driven by profit, while proponents argue that by contracting to private groups, the state saves millions of dollars and avoids the major investments needed to house inmates.

Research attempting to parse out the claims made by both sides has been thoroughly documented, although a great amount of disagreement remains. A 2016 Brookings Institute Report did just this, by exploring whether there were measurable economic benefits yielded through privatization. In the comparison between public and private prisons, the report first counters the claim of economic sustainability by suggesting that costs average between $5 and $11 dollars more per day per incarcerated person in private prisons than in state prisons[4]. This is a damning finding considering one of the primary points of argument among privatization advocates is the potential windfall from cost-savings. Second, the report examined how cost reductions trickle down to impact the services provided. For example, on average employees of private prisons had annual salaries that were nearly $7,000 less than employees of public prisons. This discrepancy was said to be due to weaker union power and a lower barrier to entry – both of which may be concurrently responsible for extremely high rates of turnover (as high as 90% compared to 24% in public prisons) and understaffed programming. These “cost-saving” devices may in some cases translate into direct savings, but they come at a quality cost. Poorer salaries can easily translate into employees having less or poorer quality training, both of which serve to weaken the management of prison environment. The Brookings report shows that private prisons do appear to save money but do so to the detriment of the quality and service it provides. Private facilities operate with the intention of lowering costs, but at the same time offer fewer internal programs for inmates and less staff support.

In the Bayou State

In Louisiana nearly 54,000 people are behind bars, with close to 3,000 (approximately 9%) people sitting in private prisons[5]. Louisiana in recent years has looked to reform its punitive image but has also had to reconcile such big goals with a tightened budget and large annual deficits[6]. While private prisons only serve as a small percentage of all state-wide contracts, deep budget cuts have reignited a discussion on private prisons as a possible solution. With cuts to the higher education system and state-operated mental health facilities, other civil services are a source of funding policymakers see as potentially privatize-able. Any move towards such a plan would immediately undermine efforts to reduce prison populations however. Negotiating this dilemma is part of a greater cost-benefit analysis as well as one that is part of how society wishes to define itself. Do we want to open the door to abusive punishment arrangements or would we rather see prisons modeled in a more rehabilitative form? Private prisons may not be best positioned to accomplish either, but rather a model that is most lucrative only for their shareholders and corporate collaborators.

It’s not surprising that private prison contracts are attractive to policymakers, particularly among conservative politicians where they see privatization as a path toward narrowing the state’s scope of responsibility and alleviating budgetary problems. These operating companies also serve an interest to policymakers as both donors and campaign supporters. This ethical web complicates the mission that prisons should serve: to transform the individual in ways that prepares them for life outside the prison. What motive do private prisons have to reduce recidivism if they themselves are the recipients of a cycle of offending? It can’t be forgotten that the corporatization of law is problematic and by its very nature transforms the incarcerated into a commodity; part of the profit motive. Under a private prison contract, profits increase as costs are cut and the contract terms grow (i.e. expanding the number of available beds). So here the more people behind bars, the greater the profit. In this there exists a real opportunity for corruption.

Among the many scandals, Pennsylvania Judge Ciavarell was said to have pocketed nearly $2 million dollars from a for-profit facility designated to house juveniles[7]. The judge was found to have adjudicated nearly 3,000 children into the prison, many of which had not previously required jail time. Without deference to the offense, children were taken into custody in droves and held in long-term detention in a for-profit facility. The “Cash for Kids” case sent shock through the industry and emboldened calls to reduce reliance on private prison contracts. Even when the scandals are not of such epic magnitude, private prisons fail to uphold standards that are expected in prison settings. Abuse is industry-wide, with regular reports of brutal and inhumane conditions. Even as Louisiana legislators look for quick fix solutions, they should exercise caution.

Private facilities in Louisiana have had their own share of problems. After a juvenile prison in Jena, Louisiana was outed for the guard-led abuse of 6 minors – depriving them of clothing, food, and medical care for months – the state had to seriously question their commitment to privatization. A New York Times article from 2000 raised the very fundamental question as to whether corporations could truly operate more efficiently without reducing services and proper training. The Justice Department further attributed the horrid conditions as part of the operating company’s efforts to reduce costs[8].

With an industry so heavily rocked by abuse, it is germane that we heed such stories both at home and across the nation before looking to create a for-profit system as the solution to budgetary woes. Legislators can’t seek to both reduce prison populations and the criminalization of people while simultaneously promoting a privatized system that feeds off a market of the criminalized. As Baton Rouge continues to discuss solutions, the Justice and Accountability Center of Louisiana hopes to promote policy directions that can reduce big costs while offering more just outcomes. We believe this can be accomplished by ending practices that criminalize whole communities and emphasize positive re-entry opportunities for the formerly incarcerated. The Clean Jacket Program works to provide a legal literacy necessary to navigate the expungement process through the courts, giving people the new start they need to forge new rewarding and productive paths in life. Life after prison should not carry the collateral consequences of the “offender” label. People need to be given the tools to thrive and it is JAC’s aim to do just that. We believe that doing so will reduce repeat offending and alleviate our national addiction to prison.

[1] https://www.bjs.gov/index.cfm?ty=tdtp&tid=1

[2] https://www.bjs.gov/content/pub/pdf/p15.pdf

[3] https://www.sentencingproject.org/publications/private-prisons-united-states/

[4] https://www.brookings.edu/wp-content/uploads/2016/10/es_20161021_private_prisons_economics.pdf

[5] https://www.prisonpolicy.org/reports/50statepie.html

[6] http://www.nola.com/politics/index.ssf/2016/08/louisiana_private_prisons.html

[7] https://nypost.com/2014/02/23/film-details-teens-struggles-in-state-detention-in-payoff-scandal/

[8] http://www.nytimes.com/2000/03/16/us/privately-run-juvenile-prison-in-louisiana-is-attacked-for-abuse-of-6-inmates.html