The DOJ’s Prison Decision Should Make Us Question the Logic of Privatization

August 19, 2016

This week the Justice Department announced an end to the use of private prisons over the next five years. The decision is one to be celebrated, and we should take this moment to recognize the work of the ACLU, NAACP, AFL-CIO, Sentencing Project, and many more, as well as the organizers, especially people of color, who shaped this momentous decision. We would be remiss, though, if we did not also take this moment to question the underlying logic of the privatization of governmental functions. The failure of private prisons provides a spectacular glimpse at the failure of a for-profit model to provide one of the state’s most important functions: justice and rehabilitation.

The aggressive expansion of private prisons began in the 1980s, when the Reagan administration’s push for across-the-board tax cuts led to decreased state revenues. This was also the period in which the federal government began aggressively pursuing the “War on Drugs,” vastly increasing the ranks of potential prisoners. Through these policies, the influx of prisoners was greater than current state facilities could contain. The federal government had two choices: either alter the rules of sentencing and incarceration to place fewer people behind bars, or find ways to cut the costs of each prisoner. Clearly, it opted for the latter. And, just as in so many other case of cash-strapped governments forced into cost-cutting contractual relationships, predatory private contractors stepped in, offering private prison facilities for the vast influx of new prisoners.

Make no mistake: The private prison industry understands that it has governments in a tight spot. For example, in its 2014 Annual Statement, the Corrections Corporation of America (CCA) lists under business strategy:

The unique budgetary challenges governments are facing may cause them to further rely on us to help reduce their costs, and also cause those states that have not previously utilized the private sector to turn to the private sector to help reduce their overall costs of incarceration.

As my Roosevelt colleague Saqib Bhatti has chronicled, there is nothing new about the cycle of private contractors creating the conditions for budget deficits at the local, state, or federal level by advocating for austerity policies such as tax cuts, then positioning themselves to fill that gap through “cost-cutting” services. It is the same underlying logic that led local and state government to take on cost-cutting financial deals with big banks, the national expansion of charter schools, and the murmurs of water privatization in Detroit. That’s why it’s so important for us to use the DOJ’s latest decision and the spectacular failure of private prisons to learn a basic lesson: The privatization of basic government services does not, cannot, and will not lead to the effective provision of those services.

Conceptually, prisons are supposed to provide basic state services: justice, safety, and rehabilitation. Private prison contracts were designed with a radically different logic: warehousing an ever-growing number of people at a decreasing per capita cost. Contractors like GEO Group or the CCA are paid on the basis of occupancy rates. The greater the number of occupied beds within their facilities, the greater their profit margin. The very concept of private prisons represents a conflict of interest, incentivizing contractors not to rehabilitate prisoners. No wonder, then, that any criminal justice policy targeted at rehabilitation or lowering incarceration rates is viewed as a risk. For example, the CCA’s 2014 report claims:

The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by criminal laws.

Similarly, it’s worth examining the business models for private prison. The more contractors can cut costs on running their facilities, the wider their profit margins. No wonder the DOJ report finds the 14 private prisons contracted by the Bureau of Prisons (BOP) contain one or more security deficiencies, health service deficiencies, and a greater number of food grievances.

The DOJ’s decision, which impacts 13 federal private prisons, ought to provide a precedent for other levels of government to terminate their use of private prisons. This is especially important with reference to the Immigration and Customs Enforcement, which houses 62 percent of its inmates in private facilities. Over the past 30 years, the federal government opted for private prisons as a Band Aid solution to the influx of prisoners rather than dealing with the structural conditions that led to the problem. These conditions include an emphasis on broken windows-style policing over community-focused policing, mandatory minimums, strikingly high recidivism rates, and a drug war that has made non-violent offenders account for 46 percent of BOP prisoners. This decision sets an important precedent for us to imagine and build toward a radically different criminal justice system that tackles the root causes of hyper-incarceration. Equally, though, it offers an opportunity to contest the privatization of state services beyond the prison system.