Ending the Barbarity

Activists scored a win last week against for-profit prisons. Can they use it to launch a broader attack on the carceral state?

In the days since the Department of Justice’s (DOJ) announcement that it would “end the use of private prisons,” as the Washington Post put it, activists have reacted with warranted enthusiasm. Few corporations so ably combine American capitalism’s most grotesque features like for-profit prison companies, so any news of their potential downfall is good news.

Yet like anything the DOJ announces, a closer look, with a skeptical eye, is probably in order.

The August 18 memorandum, authored by Deputy Attorney General Sally Yates, directs the Bureau of Prisons (BOP) — the DOJ agency that runs the federal prison system — to discontinue the outsourcing of operations to private entities. “[A]s each contract reaches the end of its term,” Yates writes, “the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.” (That decline, which began in 2013, amounts to about twenty-five thousand people.)

The DOJ’s directive affects thirteen private prisons that incarcerate roughly 22,000 people (who will now be funneled into the federal system). If that sounds like a staggeringly small number compared to the more than 2.3 million people currently locked up in the US — or even compared to the 195,000 incarcerated in federal prisons, according to the DOJ’s own estimate — that’s because it is.

This may at least partly explain why, despite an initial, steep drop in company stocks, executives at the two publicly traded private prison corporations, Corrections Corporation of America (CCA) and the GEO Group, remain relatively confident about the future.

Some of that confidence, no doubt, is designed to assuage the fears of skittish investors. But, there’s also good reason — at least for the time being — for investors not to worry. As the Washington Post notes:

The vast majority of the incarcerated in America are housed in state prisons — rather than federal ones — and Yates’ memo does not apply to any of those, even the ones that are privately run. Nor does it apply to Immigration and Customs Enforcement and U.S. Marshals Service detainees, who are technically in the federal system but not under the purview of the federal Bureau of Prisons.

ICE is housed in the Department of Homeland Security — the for-profit prison industry’s most lucrative client. In fact, the share of beds in privately operated ICE facilities has risen in recent years, jumping from 49 percent in 2009 to 62 percent in 2015. And just this month, CCA, the largest of the for-profit prison companies, was awarded a four-year, $1 billion contract “to build a massive detention facility for [Central American] women and children seeking asylum.” In what the Washington Post described as “an unusual agreement,” CCA will receive “the money regardless of how many people are detained at the facility.”

As with the Obama administration’s much-touted federal prisoner release last year, undocumented immigrants seem to be getting the rawest deal. Under that directive, 1,764 of the estimated 6,112 people set to be released were undocumented — so instead of gaining their freedom, they were passed off to the Department of Immigration and Customs Enforcement for potential deportation hearings.

What’s more, some 3,350 of last year’s “released” prisoners had already been moved to transitional housing (also known as “halfway houses”). As it happens, CCA received yet another contract (and a rebid of a previous BOP contract) last month for what amounts to a 483-bed reentry facility with the California Department of Corrections and Rehabilitation. Those halfway houses account for a significant portion of the private prison industry’s revenue (and, the DOJ made sure to note, won’t be affected by its recent directive).

Such is the incestuous, barbaric world of private prisons. As the ACLU’s Carl Takei wrote last year:

The profit motive is an unstated but ever-present connecting thread. Using solitary confinement cells as overflow space, for example, was something that private prison wardens conceded was “not a good correctional practice,” but which they engaged in because the company’s contract with the bureau encouraged them to continue accepting new prisoners regardless of whether they had the space to house them humanely. Similarly, medical understaffing — such as one prison’s decision to go without a full-time physician for eight months — seems to persist because it is cheaper for the private prison company to pay penalties for understaffing than to provide adequate medical staff. [emphasis added]

These conditions and practices don’t jibe with the folklore that paints the US as the “world’s greatest democracy,” and the “recalibration” the DOJ memorandum alludes to is likely motivated by a desire to appear to be improving them. A recent New York Times editorial perfectly captured the contemporary liberal anxiety on the issue, writing that “[w]hile privately run detention facilities were once seen as a fiscally responsible alternative, there’s now growing acknowledgment that they are a national shame.”

Obama, however, seems to be building a legacy of prison reform on the backs of migrant families trying to escape violence — all while preserving, to a great extent, the profits of private prison companies.

None of this is to say that the DOJ’s private prison directive is inconsequential, or that it should be dismissed out of hand. It is undoubtedly significant that the DOJ felt the need to investigate and respond to the horrifying conditions at many of its contracted-out facilities.

For this undeniable victory, we have countless activists — sung and unsung, from myriad organizations — to thank. For decades, they’ve organized in various capacities to unearth the stories buried behind prison walls, helping effect a shift in public consciousness about prisons and the tortuous conditions in which they hold inmates. Bravest of all have been those organizing and resisting on the inside. The very report that led to the DOJ’s directive made explicit reference to “a series of riots at these facilities in recent years, often sparked by substandard food and medical care and generally poor conditions.”

The DOJ’s decision opens up a small crack that activists can fight to expand into a larger, more devastating one for the carceral state. Immigrant rights activists, for example, will likely be calling attention to the fact that if for-profit prisons are, in the words of the New York Times editorial board, “a national shame,” then why should they be used to imprison migrant children and their parents? Does the “world’s greatest democracy” hold them to a different standard?

The brutal conditions exposed in private facilities also beg the question: are publicly run facilities much better? Recent events — from the nearly fatal beating in 2011 of George Williams at the infamous Attica Correctional Facility to the devastating suicide last year of Kalief Browder, who took his own life after spending three years at Rikers Island Jail Complex only to have all charges against him dropped — offer no reason to answer in the affirmative.

And Ruth Gilmore’s query is correct: “What kind of future will prison divestment campaigns produce if they pay no attention to the money that flows through and is extracted from the public prisons and jails, where 95 percent of inmates are held?”

Fortunately, there are some campaigns underway targeting state-run facilities, including Beyond Attica in New York City. The success of such campaigns will hinge on the ability of organizers and prisoners to amass broad and deep public support — not just on the basis of dollars and cents, but on the humanity of the incarcerated.

It’s difficult to say what lies ahead for the criminal justice movement. In New York at least, the movement hasn’t visibly linked up with Black Lives Matter. But the recently released platform from the Movement for Black Lives is a crucial and heartening development.

The culmination of a collaboration between a number of groups and individuals, the document not only speaks to the question of prison divestment, but includes specific demands for investment in health care, employment, and education for those most affected by the carceral state. This is a much-needed step forward, and it fits well with ongoing activism in prisoner rights and prison abolition groups.

At the same time, prison profiteers don’t seem especially worried about the future of their business endeavors — regardless of who is residing in the White House. Damon Hininger, chief executive of the CCA, spoke candidly and self-assuredly at an investor forum in June: “I would say that being around thirty years and being in operation in many, many states, and also doing work with the federal government going back to the 1980s, where you had [a] Clinton White House, you had a Bush White House, you had [an] Obama White House, we’ve done very, very well.”

Given that Hillary Clinton has accepted campaign donations from private prison lobbyists, Hininger probably doesn’t take her vow to stop doing so very seriously. Clinton likely thinks she can continue riding Obama’s faux-reform coattails without having to worry about any significant rebellion during her (likely) tenure. And she might be right. But wouldn’t it be wonderful to prove her wrong?