Pre-Occupied: Private Detention Facilities, Bed Occupancy Requirements, and Mass Incarceration

WE’RE NUMBER ONE!

The United States of America detains more people in various forms of incarceration than any other nation on the planet. While our country, at 320 million strong, comprises only 4% of the global population, it houses 22% [please hyperlink the following site to “22%”: http://www.rawstory.com/2016/04/why-trumps-support-for-private-prisons-and-mass-incarceration-should-worry-you/ ] of the world’s prisoners: roughly 1.5 million in federal or state prisons, and 700,000 in county or local jails. Additionally, approximately 400,000 people spend time in immigration detention [please hyperlink the following site to “immigration detention”: (https://www.americanprogress.org/issues/immigration/report/2015/12/18/127769/how-for-profit-companies-are-driving-immigration-detention-policies/] every year. These numbers do not include those who are detained in juvenile facilities, nor do they include the thousands of people who are subject to state or federal supervision by virtue of being on probation or parole. Overall, out of every 100,000 people, the U.S. incarcerates 716, making America the #2 incarcerator per capita after Seychelles and putting us roughly on par with North Korea [please hyperlink the following site to “North Korea”: http://www.alternet.org/news-amp-politics/myriad-ways-political-corruption-and-mass-incarceration-go-hand-and-hand].

How did our nation achieve this dubious honor? It wasn’t accidental, and it has literally nothing to do with rising crime rates; crime rates have remained relatively stable for over forty years now [please hyperlink the following site to “forty years now”: http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf]. In fact, it has taken substantial efforts by several major corporations and politicians on both sides of the aisle to change the way that our nation uses prisons, jails, and other detention facilities.

 

HISTORY AND LEGISLATION

In 1973, there were fewer than 200,000 people incarcerated in the United States. This was a mere two years after President Nixon declared he was launching a “War on Drugs,” which resulted in heavy prison sentences being handed down for drug offenses. Often these were for nonviolent offenses that caused no harm to anyone but the drug user, like possession. Additionally, part of the federal “War on Drugs” was the expansion of mandatory minimum sentencing laws [please hyperlink this site to “mandatory minimum sentencing laws”: http://www.cato.org/publications/congressional-testimony/mandatory-minimum-sentencing-provisions-under-federal-law], which required people convicted of certain crimes to serve a sentence of a minimum duration, regardless of what sentence the judge felt best fit the crime. These extended federal sentences were soon replicated in state criminal codes [please hyperlink the following site to “state criminal codes”: https://en.wikipedia.org/wiki/Mandatory_sentencing#United_States]. By 1980, the prison population had risen to 316,000; by 2011, it had reached 1.5 million people. Our nation now incarcerates over 100,000 people more than China, a nation with a population four times our size.

With more and more people being incarcerated, prison construction boomed in the 1980s [please hyperlink this site to “1980s”: http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/304669/]. The 1980s also saw the birth of a new industry that would forever alter corrections in America: the private prison industry. In 1983, the former chairman of the Tennessee Republican party, along with the former president of the American Correctional Association and a Harvard-educated businessman/lawyer, formed the Corrections Corporation of America, the nation’s first private prison management company [please hyperlink the following text to “private prison management company”: http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming_the_system.pdf]. The next year, Wackenhut Corrections Corporation was formed as a division of The Wackenhut Corporation, and Cornell Companies began to privately operate adult prison facilities. WCC would later become the GEO Group, which purchased Cornell Companies in 2010. By the end of 2010, CCA operated 66 correctional and detention facilities, had contracts with 19 states, Washington D.C., the Federal Bureau of Prisons, the U.S. Marshals Service, and Immigration and Customs Enforcement, and had an annual revenue of $1.67 billion; while GEO operated 118 facilities, had contracts with 13 states, the Federal BOP, the U.S. Marshals, and ICE, and had a revenue of $842 million. This number jumped to $1.4 billion the year after the merger. As of GEO’s merger with Cornell, CCA and GEO now operate the majority of private prisons in the United States.

Both CCA and GEO went on to become members of ALEC, the American Legislative Exchange Council [please hyperlink this site to “American Legislative Exchange Council”: http://www.npr.org/2010/10/28/130833741/prison-economics-help-drive-ariz-immigration-law]. ALEC, which has existed since 1973, is a conservative public policy think tank that specializes in authoring model legislation that is frequently copied, word for word, by both state legislatures and Congress. ALEC’s members include conservative politicians, activists, and business representatives, and it has successfully drafted and seen many laws passed, including:

Stand Your Ground laws [please hyperlink this site to “Stand Your Ground laws”: http://www.thenation.com/article/how-alec-took-floridas-license-kill-law-national/], making it legal to use lethal force to protect oneself even in situations where retreat is possible and would save lives;

Voter identification laws [please hyperlink this site to “voter identification laws”: http://www.rollingstone.com/tv/news/watch-john-olivers-takedown-of-voter-id-laws-20160215], requiring the presentation of state identification in order to vote despite the fact that many Americans live in regions where accessing state identification is difficult and voter fraud is remarkably rare;

SB1070 [please hyperlink this site to “SB1070”: http://www.colorlines.com/articles/npr-investigation-private-prison-companies-helped-write-sb-1070] and its versions in other states, which require law enforcement officers to racially profile citizens;

The Animal and Ecological Terrorism Act [please hyperlink this site to “Animal and Ecological Terrorism Act”: https://cldc.org/organizing-resources/animal-enterprise-terrorism-act-aeta/], which makes it a crime to document conditions or practices at industrial agricultural sites without corporate consent;

“Swift and Certain” [please hyperlink this site to “Swift and Certain”: https://www.alec.org/model-policy/swift-and-certain-sanctions-act/] laws, which mandate prison time for probation and parole violations, including technical (i.e., non-criminal) violations;

“Truth-in-sentencing” [please hyperlink this site to “Truth-in-sentencing”: http://americanradioworks.publicradio.org/features/corrections/laws4.html] laws, which require people to serve most or all of their sentences without the option of parole, regardless of behavior while incarcerated;

And “three strikes” [please hyperlink this site to “three strikes”: http://www.miroundtable.org/National%20Articles/Who%20Profits%20from.htm] laws, which mandate giving 25 years-to-life sentences for certain repeat offenses, including nonviolent offenses.

While some of these laws have had little impact on detention rates, SB1070 and its progeny, swift and certain, truth-in-sentencing, and three strikes laws have all made major contributions to our nation’s out-of-control incarceration rate. Additionally, ALEC has successfully advocated for adoption of variants of its Electronic Home Detention Act, which offers extended electronic supervision as an alternative to either detention or diversionary programs. Perhaps unsurprisingly, BI Technologies, the nation’s largest manufacturer of electronic monitoring devices and a recent acquisition of the GEO Group, was also an ALEC member corporation.

Private prison corporations do not limit themselves to one political venue, however. They are also major players in the country’s lobbying game. Between 2004 and 2014, CCA spent $18 million and GEO spent $4 million on lobbying. Between 2006 and 2015, CCA spent $8.7 million and GEO spent $1.3 million just lobbying the Congressional Homeland Security Appropriations Subcommittees. This statistic is particularly troubling, considering it was these two committees that were primarily responsible for the introduction, adoption, and interpretation of the DHS Appropriations Acts of 2010 and 2012, which substantially increased the number of beds required to be maintained for immigration detention and led to language referring to beds “maintained” being reinterpreted as referring to beds “occupied.”

Bed maintenance requirements in immigration detention facilities have been mandated since the 1980s. However, in recent years, the number of beds required to be available has skyrocketed: in 1980, 4,062 beds were required; in 1998, 14,000 beds were required; and by 2012, 34,000 beds were required. Additionally, the interpretation of “maintained” has changed. While a few decades ago it referred to beds being available for detainees, now some members of the Senate and House DHS Appropriations Subcommittees, such as Rep. John Culberson (R-TX), are arguing that “maintained” means “filled.” This creates a perverse incentive to incarcerate immigration law violators. This is especially disturbing in light of the fact that immigration law is not criminal law. Committing an immigration violation is a civil offense, not a crime, and should be treated as such; to do otherwise, to incarcerate someone who has not committed a crime and to leave them in detention for months at a time without going to court, makes a mockery of due process rights. While the heads of both DHS and ICE claim that their agencies still use the older interpretation, reports from the General Accounting Office indicate that ICE field agents regularly detain immigrants in order to meet the guaranteed minimum population quota. In effect, there is little difference between the bed maintenance requirements of the DHS Appropriations Acts and the bed occupancy requirements found in private prison contracts with government bodies.

 

OCCUPANCY REQUIREMENTS AND LOW CRIME TAXES

While bed maintenance requirements in law mandate that a certain number of beds be available in immigration detention facilities, bed occupancy requirements [please hyperlink this site to “bed occupancy requirements”: http://www.motherjones.com/mojo/2013/09/private-prisons-occupancy-quota-cca-crime] in private prison contracts with government bodies mandate that prisoners actually occupy the beds in the facility. When the beds are unoccupied, the government body, and thus the taxpayers, are charged a fee for each unoccupied bed that falls under the requirement. The most common occupancy requirement is 90%. If a facility were 80% full, the government body bound by a 90% occupancy contract would have to pay for the 10% of beds that are required to be occupied, but that aren’t actually being used. This is known as a “low crime tax.” [please hyperlink this site to “low crime tax”: http://billmoyers.com/2013/09/20/report-low-crime-tax-keeps-for-profit-prisons-profitable/]. This again creates an incentive to incarcerate more people, in order to avoid paying the low crime tax and getting nothing in return.

Of those private detention facilities for which contract data is available, 65% have occupancy requirements [please hyperlink this site to “65% have occupancy requirements”: http://www.njjn.org/uploads/digital-library/Criminal-Lockup-Quota,-In-the-Public-Interest,-9.13.pdf], or “lock-up quotas,” ranging between 80% and 100% occupancy. Arizona, Louisiana, Oklahoma, and Virginia have the highest requirements; all of their private prisons have lock-up quotas between 95-100%. Moreover, the per-person, per-diem cost of maintaining these facilities is ever-increasing, having jumped 14% since 2008 [please hyperlink this site to “14% since 2008”: https://www.prisonlegalnews.org/news/2015/jul/31/report-finds-two-thirds-private-prison-contracts-include-lockup-quotas/], meaning even more taxpayer money is directed towards paying for prison beds, occupied or not.

If the private prison companies had their way, our nation’s entire prison system would be under their management. In 2012, CCA made offers to 48 governors [please hyperlink this site to “48 governors”: https://www.aclu.org/letter/letter-state-governors-regarding-cca-offer] to purchase and operate their states’ prisons. Each offer contained a 90% occupancy requirement, and would have given CCA control over the prisons purchased for a minimum of 20 years. Fortunately, every governor who received the offer rejected it. While their reasons are unknown, the questionable cost benefits and demonstrated health and safety violations associated with private prisons may have impacted their decisions.

 

COST, OVERCROWDING, AND HEALTH & SAFETY VIOLATIONS

While private prison companies claim that they save taxpayers dollars, this statement has yet to be validated by the facts. A 1996 General Accounting Office report found that there was little difference in the cost of operating a public prison versus a private one in the five states analyzed; a 2008 National Institute of Justice study found that the studies produced by private prison companies were only able to make their facilities appear to be less costly than public prisons by excluding overhead costs and indirect operational costs; and a 2009 study by the University of Utah found that, while private prisons can be operated more cheaply than public ones, the difference is marginal and any savings in cost are theoretical, not guaranteed. Even a 2007 report produced by the Arizona Department of Corrections found that the state lost more money through its minimum security private prison contracts than it saved through its medium security private prison contracts. Additionally, both the GAO and the NIJ have noted that drawing comparisons between private and public prisons is difficult due to, among other things, inadequate data produced by the private prisons and lack of oversight within private prison facilities.

This lack of oversight has led to much worse than sparse research, including overcrowding of facilities. Lake Erie Correctional Facility, in Ohio, provides one of the starkest examples. The lack of government oversight, and the financial incentive to pack as many beds as possible into a facility with a 90% occupancy requirement, led CCA to add an additional 300 beds to the prison after the company took over its operations in 2011. Due to lack of cell space, some of these beds were added to non-sleeping areas, such as rooms that had formerly been classrooms. Many people were “triple-bunked,” forced to sleep three to a cell in cells that were designed for only two people; the lucky ones got an extra mattress to put on the floor, but many people found themselves sleeping on concrete. Under these deplorable conditions, violent incidences in the facility increased, putting the safety of both inmates and staff at risk. Additionally, the increase in the inmate population without a concomitant increase in resources and staff led to the drug trade booming both inside and outside the prison. With insufficient staff and a general lack of security, it became possible for drug dealers within the prison to traffic with dealers outside the prison, who would simply throw packages of narcotics and other contraband over the facility’s fences.

Prisons are difficult to manage to begin with; but private prison companies have found ways to make it even more difficult. In addition to lack of oversight and facility overcrowding, many private prison staff members are simply not able to do the jobs in front of them. They tend to have less education than public prison staff, receive minimal training [please hyperlink this site to “minimal training”: http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf] compared to public prison staff, are paid substantially less, and most aren’t allowed to join or form unions, contributing to even higher staff turnover rates than found in public prison facilities. This is, of course, when the staff is composed of civilians; many private prison facilities are largely staffed by those detained within them, further cutting costs at the expense of safety.

That, however, can neither explain nor justify the abominable treatment that many incarcerated people receive while in detention. Many private prisons have rates of violence against inmates that are up to double those found in public prisons. In 2009, the New York Times [please hyperlink this site to “New York Times”: http://www.nytimes.com/2009/08/26/us/26kentucky.html] found that the rate of sexual assault in the privately operated women’s prison at Otter Creek Correctional Center in Kentucky was four times the rate of sexual assault in Kentucky’s state-operated women’s prison.

While it might provide some minimal comfort to believe that these problems could be solved with greater governmental oversight, the history of privately run immigration detention facilities argues against that. In 2011, the Eloy Detention Center was found to be in compliance with sexual assault prevention standards, despite ten allegations of sexual assault in the previous year, which ICE dismissed as “unfounded and unsubstantiated.” At least one of the guards accused of sexual assault, the allegation against whom ICE described as “unsubstantiated,” was later convicted of the assault. Eloy has also at least once responded to an allegation of staff sexual assault by placing the accuser in solitary confinement, making future assaults more likely by increasing the staff’s control over the detainee’s movements and decreasing the number of potential witnesses to an assault. Between 2005 and 2009, there were 72 deaths in immigration detention facilities; 23 of them were in private facilities. Between 2010 and 2015, there were 41 deaths in immigration detention facilities; however, despite the significant decrease in overall deaths, the number of deaths in private prisons actually increased, to 24. 14 of those deaths occurred in the Eloy Detention Center.

ICE’s attempts at monitoring have proven ineffective, in no small part because the agency’s various divisions apparently use different standards to determine if a health and safety violation has occurred. In 2013, ICE’s Office of Enforcement and Removal Operations inspected 35 facilities and found 343 deficiencies overall. However, that same year, ICE’s Office of Detention Oversight inspected the same facilities and found 448 deficiencies. Moreover, The US Commission on Civil Rights found that, despite ICE’s monitoring and inspections, it was difficult to determine if any of ICE’s contracted prisons were complying with the Prison Rape Elimination Act. The Commission also found that some facilities, including Port Isabel Service Processing Center and the Karnes County Residential Center, were in violation of the 5^th Amendment because the conditions of the facility were punitive in nature, and because facilities punished detainees without the due process protections afforded in criminal proceedings.

Furthermore, certain populations are more in danger of either finding themselves in a prison or immigration detention facility, privately-run or otherwise, and the industry has given no indication that it is taking measures to deal with these enhanced vulnerabilities. Overall, Black and Latinx people, young people in particular and men especially, are disproportionately likely to be held in prison, comprising 60% of the nation’s prison population despite the fact that only 31% of the country’s general population is Black or Latinx. If Black and Latinx populations in the prison system were equalized to those in the rest of the nation, the incarcerated population would drop by almost half; the Justice for All Institute estimates that such a reduction would save the nation $20 billion per year.

LGBTQI people experience an enhanced vulnerability in prison or detention settings. Not only are they more likely than heterosexual, cisgender people to experience physical or sexual assault from other detainees or guards, but they are more likely to wind up in detention in the first place. ICE recognizes that LGBTQI detainees are more likely to be attacked than other detainees, so its automated computer system classifies approximately 70% of LGBTQI immigrants as releasable due to increased vulnerability. However, thanks to bed maintenance requirements that are treated as bed occupancy requirements, only 2% of LGBTQI immigrants are actually released. The rest are detained, despite ICE’s institutional acknowledgment of the dangers they experience.

People with medical conditions and psychiatric disorders are also at an increased risk. Not only is the use of solitary confinement, which is considered torture by the United Nations [please hyperlink this site to “United Nations”: http://solitarywatch.com/2014/12/05/un-committee-against-torture-says-u-s-must-reform-its-use-of-solitary-confinement/], particularly problematic in the case of those who need regular medical or psychiatric attention, but even when held with the rest of the population, such individuals frequently receive substandard care. This is because private prison contracts allow them to choose not to house people with serious medical or mental health issues, giving prison officials little incentive to make sure training is available for staff when the prison does accept a person who requires additional care.

 

WHAT CAN BE DONE?

Private prisons are a growing concern in America today, but they are a problem that can be stopped. The suggestions that follow would not only decrease our nation’s use of this dangerous disciplinary tool, but would save taxpayer money that could then be redirected to other endeavors.

1. Reduce or eliminate reliance on detention facilities for civil offenses like immigration violations and for nonviolent criminal offenses that are the result of substance addiction or mental illness. Instead, immigration violators could remain within the communities they immigrated to, under non-electronic supervision, until they are able to legally immigrate, while people with substance addictions and/or mental illnesses could receive treatment.
2. Do not renew private prison contracts. Once they are up, those prisons that are still able to be filled can be reclaimed by the government bodies that contracted them out, and those that can no longer be filled can be repurposed.
3. Repeal the laws that have led to mass incarceration: three strikes laws, mandatory minimums, non-parole sentencing laws, truth in sentencing laws, bed maintenance requirements, laws mandating prison time for technical violations of probation or parole, and laws offering alternatives to detention that require extended electronic supervision.
4. Pass legislation making all private prison companies and facilities vulnerable to FOI requests so that further research can be done to verify their claims regarding cost savings, recidivism rates, and political expenditures.
5. Reduce the duration of prison, parole, and probation sentences. In particular, there is no correlation between a parole or probation sentence of greater than one year and a decrease in recidivism rates, making taxpayer-funded supervision of people on parole or probation for over a year especially wasteful.
6. For those facilities that remain open, conditions must be improved by: increasing both government and community oversight; providing more training and better pay to staff, and allowing them to unionize; and reducing reliance on detainee labor to operate facilities, while paying detainees fair wages when they do such work.
7. Restore voting rights to those who have lost them through felony convictions. When the people who have endured prison conditions are unable to have a voice in the political discussion about prisons and are unable to affect the choice in representatives who will sit on the committees that write the laws that govern prisons, the entire nation is deprived of the insights and impact of those who have the most direct and relevant experience regarding the issue.

The prison system continues to expand, and the private prison industry gains an ever greater degree of control over that system. The suggestions above would not only minimize or eliminate that dominance, but the effort that it would take to enact them would also require our nation to have a collective conversation about how we treat those least valued by our society, a conversation that is long overdue.

 

REFERENCES AND RESOURCES

American Civil Liberties Union, “Letter to state governors regarding CCA offer,” located at: https://www.aclu.org/letter/letter-state-governors-regarding-cca-offer

American Legislative Exchange Council, “Swift and Certain Sanctions Act,” located at: https://www.alec.org/model-policy/swift-and-certain-sanctions-act/

American RadioWorks, “Tough-on-crime measures increase prison population,” located at: http://americanradioworks.publicradio.org/features/corrections/laws4.html

Civil Liberties Defense Center, “Animal Enterprise Terrorism Act (AETA),” located at: https://cldc.org/organizing-resources/animal-enterprise-terrorism-act-aeta/

Jack Craver, “America’s prisons for refugees,” located at: http://www.progressive.org/news/2016/04/188681/americas-prisons-refugees

Grassroots Leadership, “Payoff,” located at: http://grassrootsleadership.org/sites/default/files/reports/quota_report_final_digital.pdf

Sharita Gruberg, “How for-profit companies are driving immigration detention policies,” located at: https://www.americanprogress.org/issues/immigration/report/2015/12/18/127769/how-for-profit-companies-are-driving-immigration-detention-policies/

Joshua Holland, “’Low-crime tax’ keeps for-profit prisons profitable,” located at: http://billmoyers.com/2013/09/20/report-low-crime-tax-keeps-for-profit-prisons-profitable/

In the Public Interest, “Criminal,” located at: http://www.njjn.org/uploads/digital-library/Criminal-Lockup-Quota,-In-the-Public-Interest,-9.13.pdf

The Justice for All Institute, “Unlocking America,” located at: http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf

Justice Policy Institute, “Gaming the system,” located at: http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming_the_system.pdf

Ana Kasparian, “Why Trump’s support for private prisons and mass incarceration should worry you,” located at: http://www.rawstory.com/2016/04/why-trumps-support-for-private-prisons-and-mass-incarceration-should-worry-you/

Daniel Kreps, “Watch John Oliver’s takedown of voter ID laws,” located at: http://www.rollingstone.com/tv/news/watch-john-olivers-takedown-of-voter-id-laws-20160215

Andy Kroll, “This is how private prison companies make millions even when crime rates fall,” located at:  http://www.motherjones.com/mojo/2013/09/private-prisons-occupancy-quota-cca-crime

Erick Luna, “Mandatory minimum sentencing provisions under federal law,” located at: http://www.cato.org/publications/congressional-testimony/mandatory-minimum-sentencing-provisions-under-federal-law

Cody Mason, “Too good to be true,” located at: http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf

Michigan Roundtable for Diversity and Inclusion, “Who profits from the prison boom?,” located at: http://www.miroundtable.org/National%20Articles/Who%20Profits%20from.htm

Sridevi Nambiar, UN Committee on Torture says U.S. must reform its use of solitary confinement,” located at: http://solitarywatch.com/2014/12/05/un-committee-against-torture-says-u-s-must-reform-its-use-of-solitary-confinement/

John Nichols, “How ALEC took Florida’s ‘License to Kill’ law national,” located at: http://www.thenation.com/article/how-alec-took-floridas-license-kill-law-national/

Eric Schlosser, “The Prison-Industrial Complex,” located at: http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/304669/

Laura Sullivan, “Prison economics help drive immigration law,” located at: http://www.npr.org/2010/10/28/130833741/prison-economics-help-drive-ariz-immigration-law

Ian Urbina, “Hawai’i to remove inmates over abuse charges,” located at: http://www.nytimes.com/2009/08/26/us/26kentucky.html?_r=0

Joe Watson, “Report finds two-thirds of private prison contracts include ‘lockup quotas’,” located at: https://www.prisonlegalnews.org/news/2015/jul/31/report-finds-two-thirds-private-prison-contracts-include-lockup-quotas/

Seth Freed Wessler, “NPR investigation: Private prison companies helped write SB1070,” located at: http://www.colorlines.com/articles/npr-investigation-private-prison-companies-helped-write-sb-1070

Wikipedia, “Mandatory sentencing, United States,” located at: https://en.wikipedia.org/wiki/Mandatory_sentencing#United_States

Eric Zuesse, “The myriad ways political corruption and mass incarceration go hand in hand,” located at: http://www.alternet.org/news-amp-politics/myriad-ways-political-corruption-and-mass-incarceration-go-hand-and-hand