Profiting From Injustice:

Addressing Mass Incarceration And Prison Reform

As a criminal defense lawyer, I have seen the inside of the justice system up close, and am well versed in the lies, misconceptions, inefficiencies and abuses that plague that system. And I have seen my share of young, non-violent offenders slapped with oppressive prison sentences for relatively minor crimes. Thankfully, there seems to be a new movement emerging in many parts of the country to reform the criminal justice system, but rest assured that progress will be slow, and opponents will invariably present a compelling case against reform based on inaccurate information and fear mongering tactics. It is these detractors that keep an 18th century mob mentality ingrained in our culture.

The particular trouble with reforming criminal justice, is the preconception that most people have about “criminals” in the first place. Proponents of reform have to break through a very hard and deeply ingrained prejudice to even engage in a meaningful conversation. And that is made more difficult by the fact that most people will simply tune out reform proponents before any real ground can be gained. Let the police do their jobs, let criminals pay for their crimes, and who cares if some criminals’ rights are violated — they shouldn’t have rights in the first place.

There is a psychological concept known as “Polarization of Opinion,” and it is particularly relevant in a conversation about unpopular and/or emotionally charged public policy issues, like the reform of our criminal justice system. Basically, when people with opposing views interpret new information in a biased way, their views can move even further apart. This is called, more specifically, “attitude polarization”.

This effect was demonstrated by two researchers, Charles Taber and Milton Lodge, who conducted a study using the emotionally charged topics of gun control and affirmative action. They measured the attitudes of their participants towards these issues before and after reading arguments on each side of the debate. Two groups of participants showed attitude polarization: those with strong prior opinions and those who were politically knowledgeable. In part of this study, participants chose which information sources to read, from a list prepared by the experimenters. For example they could read the National Rifle Association’s and the Brady Anti-Handgun Coalition’s arguments on gun control. Even when instructed to be even-handed, participants were more likely to read arguments that supported their existing attitudes than arguments that did not. This biased search for information correlated well with the polarization effect.

There is a similar effect known as the “backfire effect,” first coined by Brendan Nyhan and Jason Reiflerwhich, which is a form of attitude polarization that works in reverse, so to speak. Participants demonstrating the backfire effect, when given evidence against their beliefs, tended to reject the evidence and believe in their preconceived point of view even more strongly.

These specific cognitive handicaps contribute to the type of thinking that keeps people from appreciating the damage that is done to society by excessive law enforcement and over zealous prosecution and imprisonment. It is that same problem that makes the arguments of reform opponents resonate so loudly. People already have a prejudice against criminals, and thus anything that seeks to demonize criminals and build fear against reform, is very readily embraced by the masses. And any evidence that contradicts these strong beliefs is disregarded, discounted, or misinterpreted to strengthen those already-entrenched beliefs. Therefore, law enforcement advocates — and there are plenty of them given that law enforcement and imprisonment are both big businesses — can distort information, or simply make up lies, and no one questions them. Crime bad — prison good.

Let’s start with some baseline statistics to establish just how big our crime and punishment business is. First, because America loves superlatives, it is no surprise that we are number 1 in the incarceration race. That’s right, not only does the US lead the globe in incarceration rates, ie the number of people in prison as a percentage of our population, but we also boast the highest absolute number of citizens behind bars, even though we are not the most populous.

The U.S. has less than 5% of the world’s population, yet boasts almost 25% of the world’s prison population. Currently, there are more than 2 million people in state and federal prisons in the U.S., and another half million in local jails. Besides those actually incarcerated, there are another 5 million or so on probation and parole. That’s over 7 million people under correctional supervision in the U.S., which represents a whopping 2.9% of all adults in the country.

Between 1925 and 1970, the incarceration rate remained at approximately the same level, with slight fluctuations in the intervening years. However, in the early 1970’s, the rate began skyrocketing exponentially, and has since increased almost 500%. What is fueling this rapid and unprecedented increase in the number of people in prison? Well, there is much to write about the multitude of causes, but the primary culprits are the war on drugs and militarization of police departments along with the birth and rapid expansion of the prison-industrial complex.

Since the dawn of the nation, some form of cooperation existed between state and federal authorities and private industry. For much of modern history, there have been contracts between prisons and private vendors for specialty services such as food preparation, inmate transportation and medical services. However, in the 1980s, with the War on Drugs raging on, prison overcrowding became a serious issue, and there was a need for more space. The regrettable response to this “need,” was the rise of the private prison industry.

In 1984, Corrections Corporation of America (CCA), became the first private company to take over an entire prison facility, in Hamilton County, Tennessee. The private prison business has now grown to be a $5 billion a year industry. CCA’s profits have increased more than 500 percent. An it should be no surprise that, since its inception in this burgeoning industry, CCA has been the subject of a plethora of lawsuits alleging rampant violence, understaffing, gang activity and contract fraud.

Recently, a dedicated journalist went undercover at a private prison in Louisiana — Winn Correctional, one of many owned by CCA. He did this because it became clear that private prisons are not at all transparent with reporters, often allowing them access to the prison only through carefully guided tours and monitored interviews with inmates. He noted that these prisons’ records are often not subject to public access laws, a particularly sinister perquisite offered to these companies, allowing them to avoid the disclosure rules applicable to public corrections centers.

What was revealed by the journalist’s four months as a CCA corrections officer was really not surprising, albeit a little disconcerting. For instance, the facilities were understaffed, and the employees were underpaid. As would be expected, the guards were relatively unprofessional, poorly trained, and reluctant to exhibit any initiative. If they saw two prisoners fighting, or stabbing each other, the guards were instructed to tell the inmates to stop. If the inmates didn’t stop, the guards were instructed to just walk away. Breaking up a prison fight entails a level of risk that $9.00 an hour just doesn’t cover. And violence by guards on prisoners is not only common, but applauded.

There is also rampant prisoner-on-prisoner violence, with very little supervision. The conditions are often filthy, and the prisoners are offered practically no enrichment programs, instead left to sit around all day doing nothing constructive, and often doing things that are patently un-constructive. One of the most obvious externalities of all this free time is the rate of sexual assault in CCA-run prisons. In Winn Correctional, the sexual abuse rate is almost double that of other state-run facilities. And the guards and staff do little to reverse that disturbing trend.

As unsettling as the poor conditions and lack of safety are in private prisons, there is potentially a more ominous endeavor engaged in by the private prison industry — establishing a renewable customer base. Private prisons are generally paid on a per prisoner basis, therefore the prison companies want to keep their cells full. They do this in a variety of ways. One way is to extend prison stays for its current customers, usually by way of taking away “good time” credits from inmates for minor rule infractions. Another way is through so-called “occupancy guarantees” that are contained within a large majority of the contracts CCA and other private prison companies enter into with state and federal agencies. These guarantee clauses require the government to provide a certain number of prisoners to the private prison at all times, failing which results in a penalty. One can imagine, I hope, that having quotas on prisoners has a very uncomfortable potential for abuse.

Perhaps one of the most disquieting examples of the potential for abuse in the for-profit prison system has become known as the “kids for cash” scandal. In 2008 in Wilkes-Barrre, Pennsylvania, Judges Mark Ciavarella and Michael Conahan, were convicted of accepting bribes from Mid-Atlantic Youth Services Corp, a private prison company which runs juvenile facilities. A representative of Mid-Atlantic was found to have paid the two judges $2.8 million in exchange for imposing harsh sentences on juveniles in order to increase the number of inmates at their facilities in the state. Approximately 2,000 children were sentenced to serve time at Mid-Atlantic prisons, many for petty crimes such as trespassing in vacant buildings and stealing DVDs from Wal-Mart, in exchange for the bribes.

More subtly, though no less despicably, the private prison industry lobbies state and federal lawmakers for legislation that increases incarceration rates and lengths of sentences, such as habitual offender laws (often referred to as “three strike laws”) that drastically increase a criminal defendant’s prison term based on his previous criminal record. In my practice, I have seen, first hand, such oppressive sentencing regimes wreak terrible consequences, such as non-violent drug addicts being sentenced to 20 or 30 years, sometimes even life without parole (see my article Unconstitutionally Excessive), for relatively minor offenses.

Private prison companies are not solely, nor even primarily, the source of our mass incarceration problem, but they are a dark and ugly component of it. For the sake of profits, these facilities are poorly managed, unsafe, and unsanitary. These companies expend great effort to boost occupancy, by encouraging longer prison sentences, extending sentences for current inmates, and, at least occasionally, engaging in unethical practices such as bribery — all of which compromises civil liberties and basic human decency in the name of boosting revenue. Vermont Senator Bernie Sanders, who introduced the “Justice is Not For Sale Act” in 2015 attempting to prohibit the government from contracting with private companies, once stated:

“Keeping human beings in jail for long periods of time must no longer be an acceptable business model. . . We have got end the private prison racket in America.”

And there is really no good argument to continue allowing this practice. It has proven to enable substandard confinement conditions and corruption, and the cost savings to the states is minimal, at best. In fact two studies found that the actual cost savings of contracting to private, unregulated facilities amounted to less than 15% over state-run and regulated facilities. And the conditions have proven to be far worse, with twice as many violent assaults and sexual abuse of inmates, both by other inmates and by prison personnel. There are simply some things in a civilized society that should not be relegated to greedy, for-profit corporations. Prisons should be one of those things. End the private prison industry now.