The National Catholic Review
Some ethical and practical problems

A relatively new phenomenon in this centurythey began to appear only in the early 1980’sprivately operated prisons have rapidly proliferated throughout much of the United States, especially in the South and West. Their upward surge is one result of ongoing tough-on-crime policies that have swollen the population of incarcerated men and women nearly to the two million mark.

The concept of private prisons has appealed to state legislatures and other governmental bodies on the grounds that they are less expensive to operate than public prisons: an argument that is disputed. The U.S. Government Accounting Office, in fact, concluded that the cost difference between operating a private penal facility and a public one is small. Their very existence, moreover, raises an ethical issue: what are the implications of basing the operation of a prison on a purely profit motivation?

Consequently, critics of private prisons have increasingly challenged their use. Marc Mauer, assistant director of the non-profit Sentencing Project in Washington, D.C., noted in an interview that they actually create an incentive for legislators to promote prison expansion becausewith private corporations building the facilities at their own expenselegislators can bypass having to go to voters for the approval of bond issues to obtain the needed construction funds. As an added incentive for their construction and use, many rural areas struggling with high unemployment rates clamor for prisons, public or private, because they mean jobs; and local legislators are often anxious to gratify these wisheswhether or not another facility is needed.

Once private prisons are built, states pay the firmsthe two giants are the Wackenhut Corporation and the Corrections Corporation of Americaa certain amount for each prisoner. It is therefore to private companies’ advantage to keep the beds filled. As Mr. Mauer put it, build-and-fill is a significant aspect of the privatization dynamic. Consequently, he said, potential conflicts are set in motion with regard to how much time offenders should remain behind bars. Thus the longer prisoners remain in their custody, the greater the financial gain for the companies.

With ever-increasing cell space available through private firms, moreover, Mr. Mauer said that use of the for-profit prison system allows legislators to avoid the more difficult issues of determining what sentencing policies should look like. In his opinion and that of others including some members of the criminal justice establishmentmany low-level, non-violent drug offenders do not need to be behind bars. Another concern is that in their eagerness to obtain contracts with local or state governments, companies may be underbidding in terms of what the actual cost of operating the prison will eventually be. There might be a situation in which a private firm has a third of its inmates in its prisons; then, when the contract came up for renewal, the firm might raise its per diem fees for the inmates by 20 or 30 percent. The state, he continued, would then be in a bind, because it could not create cells of its own overnight. The more it invests in a private system of incarceration, he concluded, the poorer is a state’s bargaining position.

The making of contracts between state governments and private firms is also an area in which critics see difficulties. Jamie Fellner, associate counsel at Human Rights Watch in New York City, spoke of ways in which governments have failed to negotiate with sufficient care and foresight, as well as the failures in monitoring contractual agreements once they have been made. Not holding firms accountable has led to serious problemssome with fatal consequences. Events at a relatively new C.C.A. facility, the Northern Ohio Correctional Center in Youngstown, provide one notable example of what can happen when a government entity enters into a contractual relationship with a private company without ensuring adequate safeguards. A former steel industry town with high levels of unemployment, the city sold land to C.C.A. for a token amount, and the prison opened in 1997. The city had already contracted with the Department of Corrections of Washington, D.C., for over 1,500 inmates, to be sent from its own crowded facilities to Youngstown. The contract stipulated that only nonviolent prisoners suitable for a minimum security prison were to be considered.

In fact, however, during the first 14 months of operation, two of the transferred inmates were stabbed to death, and a number of others were injured in additional stabbings. An investigation revealed that because of lax screening on the part of the D.C. Department of Corrections, dangerous inmates had been included among those sent to Youngstown. Subsequently, over 100 inmates were determined to be in need of maximum, not minimum security conditions. Ultimately, C.C.A. faced a class action suit brought on behalf of the inmates, charging C.C.A. with maintaining unsafe conditions. In addition, a report by the U.S. Department of Justice concluded that the D.C. Department of Corrections had not only failed in its selection of supposedly nonviolent inmates for transfer to Youngstown, but had also rushed the process to such an extent that within a space of just over two weeks, more than 900 inmates had been moved to the new facility; on one day alone, 156 inmates were transferred. As a result, the Youngstown staff was overwhelmed in its efforts to absorb the new arrivals.

Another finding of the investigation was that the correctional officers at Youngstown were poorly traineda circumstance that added to the volatile mix. Ms. Fellner observed that most of the costs of any prison are personnel-related. But when you start cutting back on training of the staff, as well as on their numbers, that’s going to affect the quality of life of the inmates. Personnel cutbacks, often undertaken to reduce costs and increase profits, are particularly risky when they involve not only security issues, but matters relating to education and medical care. Indeed, the latter was one of the complaints made in the Youngstown inmates’ class action suit.

At the level of governance, a major argument brought against private prisons by Ms. Fellner and other critics is that the administration of justice should not be in private hands. Even if there were no evidence that private operators were keeping people in prison longer or treating them differently from those in public prisons, she said, we would still have a concern about privatization because we believe the administration of justice should stay in public handsas it does with the police and the courts. An aspect of governance she finds especially troubling involves the question of who disciplines in a private prison when infractions occur. We are very uncomfortable, she observed, with private employees making decisions as to whether, say, a prisoner should be put into solitary confinement, or go to a disciplinary hearing that could affect his release date in terms of losing whatever good time he might have built up.

The discipline issue and its ramifications have become a matter of such concern that some states have instituted policies mandating that representatives from their own departments of corrections be present for disciplinary hearings in private prisons. But that kind of rubber stamping by the state, Ms. Fellner said, doesn’t lessen the fundamental problem, because disciplinary issues are not just a matter of hearings. They go all the way to how rules in private facilities are enforced. For instance, whether or not an officer should write a person up. And yet, in for-profit prisons you have a private employee making these decisions. Determinations of this kind could easily affect a prisoner’s release date.

Ms. Fellner finds it ironic, too, that promoters of private prisons claim that their facilities can not only do the job of running them more cheaply than public prisons, but can also do a better job. And yet a number of these same private companies have hired some of their top people precisely from among those who have had long careers in public corrections. A notable example is Norman Carlson, former director of the federal Bureau of Prisons. He is a director of Wackenhut. Michael Quinlan, another former Bureau of Prisons director in the Bush administration, is now president of C.C.A.

As to lobbying by private firms, State Senator Cal Hobson of Oklahoma spoke of what he called rotunda dynamics there. Lobbyists from four private prison firms, he said, are regularly in the state capitol, and all are after the same resource: additional incarcerants to put into their systems. But even a law-and-order state like Oklahoma, he said, can manage only so much spending on corrections. Currently, as part of the corrections budget, over $100 million a year is spent on the private prison industries’ six facilities. Five years ago, the amount was barely three million. So you see the exploding growth that has occurred in this one industry.

Senator Hobson also commented on private prison companies’ contention that a state can walk away from us anytime you don’t need us. He pointed out that since private facilities frequently exist near small towns that quickly grow dependent on them as a major employer, any talk of closing their operation creates an outcry. The local chamber of commerce and the mayor complain, then the local legislator says to the state government, You can’t do that.’ So the private prison becomes the equivalent of the community’s junior college, and you’re stuck with it because of the jobs.

In addition to seeking a greater flow of prisoners to the beds of private prisons, lobbyists also work to increase the level of inmates’ classificationas, for instance, from minimum to medium securitybecause the higher the level of classification, the greater the level of the state’s payment to the firm. Senator Hobson described Governor Frank Keating of Oklahoma as a strong supporter of private prisons, and he went on to speak of how the governor arranged for Mr. Quinlan to examine the state’s classification system. If Mr. Quinlan were still with the federal Bureau of Prisons, I would have had no trouble with that. But now that he’s with C.C.A., I see his being asked to evaluate our classification system as a blatant case of conflict of interest. The result of Mr. Quinlan’s involvement, in fact, was that several thousand inmates were moved up the classification ladder. In the spring of 2000, however, through pressure by the Oklahoma speaker of the house, a further examination of the upgraded classifications concluded that 800 of those classified as medium security could just as easily have been handled by minimum security. Senator Hobson sees the upward movement in this case as showing what you can get into when you’re not careful about dealing with private prisons in the context of conflicts of interest.

Although the operation of private prisons for adults raises serious ethical and moral questions, those that handle juveniles raise even more. As Ms. Fellner put it, all the problems that exist in running an adult prison are multiplied in managing one for children, because they need special care provided by people with special training. In the present climate of privatization, though, with profit and accountability to stockholders as the driving force, truly stunning situations of neglect and abuse have come to light in the past few years.

Among the most notorious in terms of neglect and abuse are those that arose at two private prisons for juveniles in Louisianathe Tallulah Correctional Center and the Jena Juvenile Justice Center. Jena, which opened in 1998, was run by Wackenhut; Tallulah was run by a smaller company, Transamerican Development Associates. In opening Jena, Wackenhut had claimed that it would focus on drug treatment. But David Utter, director of the Juvenile Justice Program of Louisiana and an attorney involved in litigation brought against Wackenhut over conditions at Jena, described the treatment aspect as a charade: When we looked at the program, we found nothing in the way of psychologists and social workers that would indicate additional staffing aimed at treatment for substance abuse.

Overall physical conditions were characterized by inadequate food and a lack of warm clothes for cold weather. Little was done in the way of education and health care. Conditions at Tallulah were equally bad. The number of mentally ill juveniles at both institutions, moreover, was disproportionately high in relation to state-run juvenile facilities. The reason for the disparity, Mr. Utter said, was that the state institutions wanted to get rid of them because of their behavior; and then, perversely, they were sent to private institutions with even less in the way of mental health services.

Both at Jena and Tallulah, brutality on the part of guards was another serious problem. In an investigation of Jena by the U.S. Department of Justice, Dr. Nancy Ray, the department’s expert on protection from harm and abuse investigations, spoke in her report of an unacceptably high rate of traumatic injuries...almost all of which were attributed to officers’ use of force or fights among youth. In her interviews with juveniles at Jena, most of them reported having been hit or harmed by the physical intervention of officers. Again, inadequate training was seen as a factor in the abuse by officers. As a result of the investigation, the State of Louisiana’s Department of Public Safety and Corrections took over the operation of Jena. Tallulah, too, is now being operated by the state. There are no more private juvenile prisons in Louisiana, Mr. Utter said. It’s the one thing we can point to as an unmitigated victory. For him, private prisons, whether for juveniles or adults, are sullied by an internal moral conflictnamely, that for the sake of profit and stock prices, such companies would work to increase the number of people they hold in their facilities, and even limit basic services.

The continuing growth of the private corrections industry notwithstanding, there are signs of a beginning backlash. Some states, alarmed by situations like those at facilities in Louisiana, Ohio and elsewhere, are becoming more aware of the pitfalls involved in contractual arrangements with private prison companies, as well as the need for closer scrutiny and stricter accountability. Judith Greene, a former senior fellow at the Center on Crime, Communities and Cultures in New York, and now an independent researcher and policy analyst on privatization, pointed to North Carolina as an example of the more cautious view that some jurisdictions are taking of the industry. North Carolina recently ended a contractual arrangement with C.C.A. for the operation of two facilities C.C.A. had built.

In its contract, Ms. Greene said, North Carolina insisted that the two prisons have single celling rather than the double celling that would have been more financially profitable, and it was able to hold C.C.A. to that. Another provision stipulated that if essential staff positions became empty and were not filled within a reasonable time, the North Carolina Department of Corrections would be owed the salaries and benefit costs that would otherwise have accrued to the positions. So over the course of a year’s operation by the two prisons, North Carolina withheld a considerable amount of moneyabout a million dollarsbecause of lack of services related to unfilled line positions in areas like security and education, as well as because of inadequate work assignments for inmates. The state therefore parted ways with C.C.A., and will run the prison itself under a lease agreement.

The state was smart in making contracts for private management of the prisons separate from the contracts for lease of the facilities, she said, so that if the pilot program didn’t work out, it wouldn’t have to withdraw its prisonersthe kind of eventuality that, as Marc Mauer had pointed out, could leave a state scrambling for alternative prison space elsewhere.

Besides profit-losing situations like the one in North Carolina, Wackenhut has suffered a damaged image not only because of its poor performance at Jena, but also because of other scandal-tainted situations. Two prisons it ran in New Mexico were the scene of stabbings and deaths in 1999. In Texas, a rape scandal involving guards at a jail run by Wackenhut in Austin led to a takeover by state officials. Ms. Greene observed that as a result of such high-profile failures, along with unprofitable business decisions, its stock has fallen. According to the August 2000 issue of Forbes, its stock dropped by 65 percent in the past year. Still, the company continues to expand. Although C.C.A. is the larger in the United States, Wackenhutin addition to its four dozen prisons herehas built and operates penal facilities in Australia, the United Kingdom and Canada. Ms. Greene said that it is also under contract for facilities in New Zealand and the Netherlands Antilles.

The outlook is that these two firms, as well as other smaller ones, will go on expanding in the United States as long as our levels of incarceration continue to increase. And, as Mr. Mauer observed, it would require a substantial change in our political climate to slow down the rate of growth, because the political climate affects the sentencing policies that are responsible for driving the rates up. Increasingly, he went on to observe, the prison system has become our response to the societal and economic problems of poor peopleespecially in minority communities. But this sort of response does not look beyond incarceration as an answer. Far better, he emphasized, would be a response focused on making investments that strengthen families and communities. These, however, are not the kinds of investments calculated to increase the profits of private prison companies.

George M. Anderson, S.J., an associate editor of America, is author of With Christ in Prison.