Private prisons are one of the most controversial areas of the justice system today. Although the Department of Justice made efforts to limit them during the Obama administration, the private corrections industry has regained influence under the current administration, which has proposed expanding privately run detention facilities for undocumented immigrants.
But private prisons are not new. As Lauren-Brooke Eisen, senior counsel at New York University’s Brennan Center’s Justice Program, writes in her recent book, Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration, the privatization of corrections can be traced back through American history to the convict-leasing system and slavery.
In a chat with The Crime Report’s Julia Pagnamenta, she discusses the expanding role of the private corrections industry in today’s mass incarceration system, how prison privatization in other countries such as Australia and the UK is used to incentivize reductions in recidivism rates, and whether they can be models for reform-oriented US corrections policy.
The Crime Report: You write that privatization can be traced back to the convict leasing system in the 19th century. What are the origins of privatization in American history?
LBE: [This isn’t] the first time that we have treated people who are behind bars as commodities. When slaves were emancipated, under the Jim Crow laws in the South, African Americans were jailed for things that were never crimes before. The wardens would lease the inmates to different businessmen, whether they were textile manufacturers or companies that were building railroads. We ended up almost institutionalizing slavery through these laws, which resulted in African Americans being convicted and sent to jails with whom businessmen would sign contracts to employ inmates. Businessmen would pay the state, the penitentiary, for the use of [convict] labor, and while I am in no uncertain terms analogizing that to the private prison industry today—[they are] very different situations—the common theme is that there has been profit in incarceration from the beginning.
TCR: What kinds of crimes were African Americans accused of?
LBE: In 1876, the Mississippi legislature redefined grand larceny as theft of a farm animal or any property valued at $10 or more. This would result in five years in prison. There are many, many examples of these types of laws. Convict leasing was implemented and began to thrive at about the same time. It solved the labor shortage that the Southern economy faced after the Civil War. Slaves were emancipated [but] who was going to perform labor very cheaply?
TCR: What does the government gain from pushing for the privatization of institutions that were previously under their control?
LBE: The core idea of the Republican Party has been less government control, and the idea of privatization tends to be more popular when we have Republican administrations. That’s part of how the private industry was able to take off. These companies were founded in the “tough-on-crime” heyday; but also when the government does look to privatize it tends to be because it thinks it can save money. There’s always been this sort of ideological divide in US politics over whether the government provide these services better than companies.
Sometimes people talk about the private prison industry as if it’s an outlier. [But] governments have privatized other parts of the justice program. We have private arbitrators, private judges; even firefighting was private at one point in our history. There are more private security guards in the US than there are police officers. Privatization is as old as the founding of our government.
President Ronald Reagan created a lot of blue ribbon commissions to look at privatization and one of the commissions, the Grace Commission, suggested that the government privatize corrections. Is there a difference between privatizing garbage collection and prisons, or are they different sort of services? A lot of people say that that privatizing garbage collection may make more sense than privatizing prisons, where someone is deprived of their life and their liberty. But look at the privatization of military services. Corporations make enormous profits from hiring their own contractors, many of whom are former military people but who are now performing duties that historically were performed by the United States military. Is that a closer analogy to the private prison industry?
TCR: You refer to the fact that privatization basically became a distraction from the real issues of incarceration. The debate shifted to private prisons vs. public prisons instead of focusing on issues that were generating mass incarceration in the first place.
LBE: The early congressional hearings [in November 1985] that Congress held on the private prison industry [were] fascinating. It was really the first time that the country wrestled with the legal issues, the moral issues, the economic issues, of private prisons, and one of the themes of my book is that private prisons emerged without great debate. Law professors testified, correction officials testified, union officials testified, private prison officials testified. [But] no one really understood what the industry meant, where it was headed, what its potential was, or wasn’t.
At the time that the private prison industry really emerged, in the mid-1980s, about three-quarters of states were under some sort of federal court order to reduce the prison population in at least one of their prisons, and the private prison industry offered to build these new prisons. The director of corrections didn’t have to worry about building a new prison, and the industry said, “well we can do this cheaper than you can as well,” so it was a boon to the government.
In 2018, crime rates are much lower than they were in the 1980s and early 1990s. It’s easy for me to sit here today and say there should have been conversations about the proper role of punishment, and over incarceration. I understand that hindsight [is like] Monday morning quarterbacking, but I point to that time when there weren’t debates about the proper role of punishment. There wasn’t a great conversation about what we were doing as a nation, and why we were incarcerating so many people for so long.
I am very careful in the book to say that the private prison industry did not create mass incarceration. [But] their ability to fill these prisons quickly and efficiently let correction departments off the hook. These departments didn’t need to go to their governor and policymakers and tell them to change our laws because they are sending too many people to us.
TCR: How did the two big players in the private prison industry—CoreCivic, previously known as the Corrections Corporation of America (CCA), and the GEO Group—emerge?
LBE: In the mid-1980s, a man named Thomas Beasley, who was formerly head of the Republican Party of Tennessee, a businessman named Robert Crants, and T. Don Hutto, who at one point had been the president of the American Correctional Association, and was also the Director of Corrections in Virginia and Arkansas, got together and founded Corrections Corporation of America [now re-branded as CoreCivic]. The company was originally funded with $10 million raised primarily by the Massey Burch investment group. Which also happens to be the same group that financed Kentucky Fried Chicken and the Hospital Corporation of America. They were entrepreneurs, and they modeled their group partly on the Hospital Corporation of America; and in fact, Thomas Beasley had said that the CCA will be to jails and prisons what the Hospital Corporation of America has been to medical facilities nationwide. In 1984, Thomas Beasley appeared on the 60 Minutes program, where he called prisons a growth industry. In 1985, CCA actually attempted to take over Tennessee’s entire prison system. They were not successful.
And then [there is] Geo Group, formerly the Wackenhut Corporation. These two corporations have bought a lot of other private prison companies, as well as electronic monitoring companies and drug treatment centers over the years; today CoreCivic and GEO Group are the two largest private prison companies, and they are publicly traded on the stock exchange.
TCR: One of the issues raised by the book is whether private prisons, and prisons more generally, provide jobs and an economic boost to rural American communities.
LBE: Prisons bring benefits to rural towns. They bring federal funding because the people who are in these prisons are sometimes counted as part of the population. These prisons bring jobs, correctional officer jobs. Janitor jobs. Cafeteria jobs. They bring hotels, and transportation hubs. On the flip side, there are people in these communities who don’t want prisons, and they don’t feel that it’s safe to have prisons, or they’re worried about escapes. I think it tends to be a little bit rarer, but there are some situations where they are competing with prison labor because individuals behind bars are not paid the minimum wage.
TCR: Can you elaborate on the battle between powerful correctional unions, such as the ones in California and New York, and the private prison industry? They are important political players. You write that since 1989 the union of California corrections officers made $22 million in political campaign contributions.
LBE: [Corrections] unions are certainly a special interest group and a powerful one. It’s important for the reader to understand that the private prison industry is just one of a lot of special interest groups. New York State Gov. Andrew Cuomo found it incredibly difficult to close prisons. He’s closed over a dozen prisons in New York, and the New York Corrections Officers Benevolent Association made it incredibly difficult because they were worried about losing jobs. When we talk about different special interest groups, different ways that we as a country are perpetuating mass incarceration, I thought it was important for the reader to understand that there is no one cause, there is no one solution. Correctional officers’ unions play an important role in protecting correctional officers, but at the same time when we talk about reducing prison populations, they can certainly make it difficult for states to reduce prison populations.
People don’t often talk about correctional officers’ unions and their role in expanding the prison industrial complex. In California in the 1990s, the [California Correctional Peace Officers Association] pushed for Three Strikes legislation; they battled attempts at parole reform; and they became an incredibly powerful union.
What’s interesting about New York is that after Gov. Cuomo closed prisons, it’s my understanding that very few, if any, correctional officers actually lost jobs. People were just moved around.
TCR: You write that New York and Illinois are the only two states that have succeeded in banning private prisons.
LBE: There are no state private prisons in New York. There is a pilot [privately run] immigration detention center in the borough of Queens, but that’s federal. Gov. Cuomo has closed 13 prisons in New York. I think that New York is certainly a model to other states. We haven’t seen crimes skyrocket or get out of control after these prison closures. We’ve continued to see this great crime decline in New York with fewer people locked-up, and fewer prisons in operation.
TCR: You mention that since the 1980s, the US government has passed a number of laws that have increased punishment around illegal immigration. As a result, since the late 1990s and early 2000s, private prison industries saw immigration facilities as “ripe for privatization.” What are the ramifications of privatizing immigration facilities?
LBE: A lot of people are simply unaware that we have essentially privatized immigration detention, about 65 percent of Immigration and Customs Enforcement (ICE) immigration beds are privatized. These are places where undocumented individuals are held. They have not been in those cases convicted of breaking any criminal laws necessarily. Many of the individuals are there simply because they came into the US without authorization. A lot of them are waiting for hearings, deportation or asylum hearings.
ICE itself doesn’t provide much, if any, programming to a lot of these individuals, so the private prison industry also doesn’t provide very much programming. And again, it’s not very different from what the government is doing. The government isn’t requiring the private industry to provide this programming, because a lot of these people will be released back to their home countries; but if you walk around these immigration centers, they look and feel like prisons. People are not free to go.
TCR: After the attacks on September 11th, annual detention rates skyrocketed.
LBE: 9/11 reinvigorated the private prison industry. It certainly is not the only thing that helped the private prison industry step in, but certainly I point to it as a time in American history when people were very afraid, and so that context was important too.
TCR: One of the rationales behind private prisons is that they are cost-effective. However, you point out that there is scant evidence of this and that public and private prisons perform roughly the same.
LBE: It’s difficult to compare even one public facility to another public facility. So when we compare public facilities to private facilities, it’s very hard to find the same population, the same situation. It’s a little bit like comparing apples to oranges, but for those studies that have tried to compare the facilities, there is a mixed bag of research, but little evidence that these facilities are saving money. I think the larger point is that we shouldn’t be asking the private prisons to save money.
Incarceration should be expensive. If we as a society have decided that someone should be separated from their family and their community for significant periods of time, we should be spending money providing programming and services to those people behind bars so that they can successfully rejoin our communities. We shouldn’t be asking the private prison industry to save us money. I think that’s ludicrous.
We really need to change our mindset and say we’re going to send fewer people to prison, and if it’s expensive, it’s expensive because we are providing needed programming and that should be in both public and private prisons.
TCR: You quote people who’ve been incarcerated in both private and public prisons. Tell us about them.
LBE: A lot of those I spoke to were surprised that their time in private prisons was not what they thought it would be. This is anecdotal, it’s not a sample size of thousands, [but] everyone I spoke to said the idea of someone making money from [their incarceration] bothered them.
TCR: There is a debate between academics and public intellectuals around whether corrections and incarceration should be a public or private issue.
LBE: Since the 1985 congressional hearings, there’s always been a debate in this country about the delegation of authority, whether this is a proper delegation of authority. It’s still a question that a lot of people ask: What is the government’s role in punishment? Can this role be delegated? The individuals I interviewed for the book didn’t feel that this was a proper delegation of punishment. Yet there are a lot of policymakers and corrections directors who feel [private prisons] can do a better job than the government. The book doesn’t come down on one side or the other. But I ask the question: If we really care about rehabilitating people and ensuring that we reduce recidivism rates and improve the lives of those who are behind bars, and improve the safety of our communities, does it matter if these people have spent time in public facilities or private facilities?
If our end goal is public safety, should it matter if the private prison industry can do a better job? Maybe it shouldn’t matter, and that’s how I end the book, which is looking at the potential innovation of the private prison industry. Australia and New Zealand are prime examples. The governments of both countries have signed contracts with the private prison industry to pay them more money if they can reduce recidivism rates better than [the state system].
TCR: You mention in the book that there are 11 other countries in the world that use private prisons. How does the US compare to these countries?
LBE: It’s not just an American issue. There are private prisons in the U.K. and Australia and New Zealand, and I end the book with a recommendation that we change a lot of the contracts today, so that members of the public and the media have access to these private facilities. [I recommend] that we basically create performance-based contracts for these facilities, so that if I were a director of corrections I would incentivize these corporations to increase programming and reduce recidivism.
The private prison industry was created partly because of these overwhelming numbers of incarcerated people, where we didn’t have capacity to house them, but also with this idea of innovation—that they can do better than the government. I didn’t see a lot of that, but the models in Australia and New Zealand are really promising because innovation really seems to be happening there.
TCR: What is the future of private prison corporations under the Trump presidency?
LBE: I wrote this book under the Obama administration, but it came out after Trump was elected. In the summer of 2016, the Obama administration asked the Bureau of Prisons to reduce its reliance on the private prison industry and specifically not to renew contracts with private prisons at the federal level. Attorney General Jeff Sessions reversed that memorandum, and asked the Bureau of Prisons to continue to rely on the private prison industry. We saw the stock prices of Geo and CoreCivic increase after [the election].
The Trump administration seems to be planning to expand the number of federal immigration centers used to house undocumented immigrants. We’ve seen some requested proposals posted on the department of Homeland Security’s website. Trump has asked in both of his recent budgets for additional funding, over $1 million, to expand its detention capacities to closer to 50,000 beds a day. Currently we’ve got capacity for closer to 30,000 beds a day. The administration, through Jared Kushner, created the Office of American Innovation, and one of the things the office is supposed to focus on is how to privatize additional government services. The rhetoric coming out of this White House conflating crime and immigrants, despite the fact that all of the research indicates that undocumented individuals actually commit very few crimes, will likely translate into more private immigration detention centers, and will benefit the private prison industry.
TCR: You write, “privatization can come to resemble an exercise in who can better pretend to be a public prison.” What did you mean by that?
LBE: I tried to be evenhanded in writing this book, and really talk about this issue from the eyes of other people. That’s why I interviewed so many different people with different roles and different stakeholders in the criminal justice system or just regular civilians. I end the book with the idea that private prisons are not going away today or tomorrow, especially under the Trump administration.
So, as long as anyone is spending a day, a week, a month, in these [private] jails, prisons, or immigration detention centers, we need to do more to innovate, to make the outcomes better. But we haven’t asked the private sector to do that. We’ve never incentivized them to outperform the government. Today’s recidivism rates [vary] from 60 percent to 80 percent depending on what state you are in. A lot of people who are leaving prison will return within three years. More than half the people released are going to return.
It’s time we ask the private sector to innovate, which is why what’s happening in Australia and New Zealand is so exciting. It’s a little unfair that we’ve asked the private prison industry to replicate what the government is doing, yet also save money. Some of these contracts are written in such a way that we haven’t allowed the private sector to innovate. Conducting this research, I really found that you have to give the private prison industry some room to innovate. The idea that we are asking them to save money makes absolutely no sense if we care about public safety.
As we look to the future, if we’re going to rely on private prisons at all, than we need to incentivize them to innovate. We need to incentivize them to reduce recidivism rates. We’ve always thought of them as government partners, but we’ve never asked them to do more.
EDITOR’S NOTE: Lauren-Brooke Eisen will discuss her book at a special seminar at John Jay College on Wednesday, April 25th at 4:30 p.m. Please find more information and sign up for the event here.
Julia Pagnamenta is a TCR news intern and a student at John Jay College. She welcomes readers’ comments.