Do For-Profit Prisons Violate the Constitution?

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Rally against private prisons, 2012 United Methodist conference. Photo by United Methodist news service via Flickr

For-profit prisons “hamper access to justice” and violate constitutional protections against cruel and unusual punishment, says a paper published by the University of Baltimore Law Review.

“The question [of] why we as a nation stand for private corporate profit in the realm of human imprisonment must be addressed and resolved,” says the paper, noting that the enormous political clout wielded by the private prison industry has allowed it to evade calls for abolition over nearly four decades.

“The implementation of for-profit incarceration in the United States hampers access to justice,” wrote Robert Craig, associate director of Abolish Private Prisons, an advocacy group; and andré douglas pond cummings, a law professor at the University of Arkansas.

The authors said the constitutional issues raised by the private prison industry merited review by the U.S. Supreme Court.

“Mixing profit with the core governmental function of incarceration leads to damaging consequences for prisoners, employees (of both private and public prisons), and the public at large while benefiting a small group of executives and shareholders,” they wrote.

Over 120,000 federal and state detainees are currently confined to institutions operated by private corporations, according to 2017 figures. While that amounts to a relatively small fraction of the total incarcerated population in the U.S., in some states they represent a significant proportion of inmates.

In New Mexico and Montana, private prisons house 43 percent and 39 percent, respectively, of the total inmate population, according to a 2018 report by the Sentencing Project.

The private prison industry emerged as a significant player in the 1980s, driven by state efforts to reduce costs and the acceleration of the War on Drugs. Between 2000 and 2016, the number of individuals housed in private prisons increased five times faster than the total prison population, the Sentencing Project said.

Although at least eight states had eliminated the use of private prisons by 2016, the fortunes of the for-profit industry benefited from Washington’s crackdown on immigration. According to figures cited in The Sentencing Project report, the proportion of individuals held in private detention facilities under contract with the federal government increased by 442 percent between 2000 and 2016.

‘Lamentable Experiment’

The University of Baltimore Law Review paper cited the work of Ira P. Robbins, a legal scholar at Washington College of Law.

Testifying in Congress a year after the country’s first for-profit prison was established in Tennessee in 1984 by a firm then known as the Corrections Corporation of America (CCA), Robbins warned of “serious constitutional and pragmatic concerns” connected with the rise of private prisons.

Two decades after his 1985 testimony, Robbins issued a second warning about what he called the “lamentable experiment” of private prisons.

It is long past time to take such warnings seriously, the paper argued.

“Private prison executives and lobbyists seek to increase privatization of the industry by promising that their prisons are run more efficiently at lower costs, with greater safety records, improved facilities, and with greater outcomes for prisoners,” the authors wrote.

“However, studies and reports now show that these declarations by private prison executives and lobbyists are deceitful. Private prisons are increasingly being shown to cost contracting governments more, not less, are less safe, and less economical.”

The evidence makes clear that a system that puts profit over quality has exposed inmates to poor food, poor sanitation, and overcrowding, asserted the authors.

And, as such, it is unconstitutional, they wrote.

The paper declared that the for-profit industry violates constitutional prohibitions of cruel and unusual punishment as well as guarantees of due process and equal protection under the law.

“The unique circumstances involved with incarcerating people for profit implicates concerns that make a categorical challenge relying on modern conceptions of human dignity appropriate,” the paper said.

Similar conclusions have been drawn by other researchers.

Private prisons have a “28 percent higher rate of inmate-on-inmate assaults and more than twice as many inmate-on-staff assaults, as well as twice as many illicit weapons than comparable federal facilities,” according to the Justice Policy Initiative. 

The paper’s authors wrote that the constitutional and moral concerns raised by for-profit prisons have grown more serious over the decades, and deserve new consideration by the U.S. Supreme Court.

“The evidence shows that the depths to which profit seekers will sink to earn revenues knows no bounds, and the effects reverberate through the justice system,” the authors conclude.

“Private prisons are abhorrent on moral grounds, including for the ways that for-profit incarceration wrecks access to justice and diminishes equality in the U.S. criminal justice system.”

The authors of the paper were Robert Craig, associate director of Abolish Private Prisons, an advocacy group; and andré douglas pond cummings  a professor of law at the University of Arkansas at Little Rock William H. Bowen School of Law.

[Editor’s Note: Prof. cummings spells his name in lower-case]

Additional Reading: Private Firms Earn Billions for Service to the Incarcerated

Amid COVID-19, Inmates Work, Private Firms Profit

The full paper can be accessed here. 

Andrea Cipriano is a staff writer for The Crime Report.

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