Do you daydream about a world without crime? People would not be harmed. There would be no gang violence or drug wars. There would be peace. You could leave your door unlocked without fear. You would not have to worry about where your children are and who they are with.
A crime-free world would, however, necessitate the development of a completely new economy. There would be no need for law enforcement, the military, or the criminal justice system. Corporations would be out of business, and thousands of individuals would be unemployed.
Putting aside the public sector, there is a vast array of American and international corporations that profit from criminal enterprise. In fact, private corporations have been fighting for complete privatization of criminal sentencing.
Privately run prisons currently house more than 8 percent of the United States prison population. The largest private prison company, Corrections Corporation of America (CCA), reported revenues of $1.675 billion in 2010 alone.1
Private corporations also operate halfway houses, juvenile corrections facilities and detention centers for Immigration and Naturalization Service detainees, facilitate mandatory drug testing and counseling, and oversee terms of probation.
For instance, if you are convicted of a drug or alcohol related offense in the state of Utah, you may be required to get a drug assessment, enroll in a drug and alcohol education program, submit to weekly drug tests and/or get an ignition interlock device installed in your vehicle. All of those functions are fulfilled by private corporations.
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Privatization of criminal sentencing is concerning. A private corporation’s mission is to earn maximum profits. That goal is “demonstrably different from the state’s interest in incarcerating criminals. Traditionally, the purpose of incarcerating a criminal falls into three areas: protection for the public, rehabilitation for the offender (so they do not commit future crimes) and punishment for the criminal.2”
Private prisons have failed to provide the same level of protection to the public as government operated prisons. In an effort to save money and maximize profits, private prisons cut corners on maintenance and training and fail to uphold minimum security standards. Private prison employees lack training, are paid less and have fewer benefits than government employees, leading to a high rate of turnover. In addition, the transparency and accountability that is required with public facilities does not exist at private facilities. Private corporations have resisted state and federal records and disclosures laws, leading to a culture of secrecy.3
Case in Point: CCA contracted with the state of Ohio to operate the Northeast Ohio Correctional Facility. Within 14 months of opening, there were 13 stabbings, two murders and six escapes.4
The rehabilitative purpose of incarceration is also directly adverse to the money-making goals of private corporations. More crime means more money for the corporation, while rehabilitation and treatment programs diminish profits.
Dr. James Peterson, a professor at Lehigh University, warned, “One we incentivize private corporations to incarcerate folk – when their bottom line is beds and putting bodies in beds – then we have essentially removed justice from the criminal justice system.”5
Dr. Peterson’s concern is well-founded. Private prisons have found a legal loophole that allows prison employees to violate their inmates’ constitutional rights.
In Correctional Service Corporation v. Malesko, 122 S.Ct. 515 (2001), an inmate filed a lawsuit against a private prison for violating his constitutional right to be free from cruel and unusual punishment. The inmate suffered a heart attack after he was required to walk up six flights of stairs, contrary to his doctor’s recommendations. The Supreme Court issued a split decision. The dissent argued that the inmate should be allowed to pursue his action against the private corporation, because the private corporation was acting as an agent of the federal government – performing functions that would otherwise be performed by the government. However, the majority voted to dismiss the inmate’s action, finding that the private corporation was not a government agent.6
The Malesko decision gives private corporations significant latitude to make decisions that may result in violations of their inmates’ constitutional rights. Malesko is particularly concerning in circumstances where private corporations are permitted to determine the length or terms of a person’s criminal sentence.
In 2011, a Pennsylvania juvenile court judge was convicted of racketeering after an investigation revealed that the judge was paid by private prison officials to sentence kids to harsher punishments in order to keep the company’s juvenile facility filled.7
Similarly, the GEO Group, Inc. operates a private Virginia civil commitment center for sexually violent predators. After a sex offender completes his criminal sentence, he is sent to the GEO facility for treatment. His release from the facility depends upon his “progress in treatment and the reduction of re-offense risk,” which is determined by GEO. The corporation gets to decide when the offender’s sentence is over. GEO profits by keeping the offender at the facility for a long as possible. Thus, GEO has no incentive to provide an effective treatment program. The civil commitment system allows for a period of incarceration that exceeds the maximum statutory sentence for the crime committed.8
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The benefits of privatizing the criminal justice system are difficult to determine, while the risks of privatization should be cause for concern. By privatizing the criminal justice system without establishing a proper system of checks and balances, we are sending a “message to managers of private prisons to adopt cost saving policies that jeopardize the constitution rights of tens of thousands of inmates.”9
1. Brickner, Michael and Shakrya Diaz, Prisons for Profit: Incarceration for Sale, American Civil Liberties Union of Ohio, available at http://bit.ly/Hlp74n.
5. Privatization of prisons hinders criminal justice reform, Center on Juvenile & Criminal Justice, available at http://bit.ly/nK6RBS.
6. Segal, Geoffrey, Supreme Court Rules on Private Prison Liability, Reason Foundation, available at http://bit.ly/SKqUFw.
7. Brickner at Id.
8. Mahanta, Siddhartha, Va. Approaches decision on privatizing sex offender program, The American Independent, available at http://ainn.ly/KXLswL.
9. Segal at Id.
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