Are For-Profit Prisons the Answer
to California Prison Overcrowding?

Written by Ralph E. Stone. Posted in Politics

Published on May 29, 2011 with 4 Comments

Cartoon by Monte Wolverton.

By Ralph E. Stone

May 29, 2011

On May 23, 2011, the U.S. Supreme Court in Brown v. Plata, affirmed lower court rulings that ordered California to reduce its prison population to 137.5 percent, or to 109,805 from 143,436 prisoners within two years. (California’s prisons are designed to house a population of just under 80,000.)

The decision was based on evidence that prisoners were being deprived of basic medical care caused by overcrowding. The Court noted, for example, that there were high vacancy rates for medical care (20 percent for surgeons) and medical health care (54.1 percent for psychiatrists). And the state had not budgeted for sufficient staff and, even if vacant staff positions were filled, there is not enough space for them. The Supreme Court ruled that the state had violated the Eighth Amendment to the U.S. Constitution, which prohibits the infliction of “cruel and unusual punishments.”

Governor Jerry Brown’s response to prison overcrowding is to shift low-risk inmates from state-run prisons to counties as set forth in Assembly Bill 109 signed into law last month. But, of course, the legislature and counties must find the money to move inmates to county facilities, many of which are already overcrowded, to comply with the Supreme Court decision without putting criminals back on the street. AB 109 will be at best a short-term solution to California’s overcrowded prison system.

Why is the prison system overcrowded? California’s tough-on-crime policies have led to the passage of hundreds of laws that increased prison terms. One of the most significant was the 1977 policy mandating that every prisoner leaving the system get paroled resulting in thousands of ex-convicts being sent back to jail each year for minor parole violations. Last year’s change in parole laws, which allows some non-violent offenders to avoid parole and others to avoid getting sent back to jail for minor violations, was a step in the right direction.

In 1994, California passed the three-strikes law, which requires those convicted of any three felonies be sentenced to 25 years to life. There is also a two-strike provision, as well, which requires hose convicted of a second felony to receive a doubled sentence. As the 25-year-to-life inmates increase, California will be housing a disproportionate share of elderly inmates.

California has a 70 percent recidivism rate. What is needed is a support network for inmates reentering society. Unfortunately, rehabilitation and drug treatment are severely underfunded.

In 2000, Proposition 36 was passed by the voters that permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration. As a condition of probation defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence which may include incarceration. Proposition 36 is not retroactive, meaning that defendants who had to attend unlicensed drug rehabs prior to Prop 36 are not afforded the opportunity to have their cases reheard in court. One UCLA study found that convicted drug users had become more likely to be arrested on new drug charges since the proposition took effect.

AB 900, passed in 2000, provides authorization to build up to 40,000 state prison beds and up to 13,000 local jail beds in two phases. Assemblyman Todd Spitzer, R-Orange, the chairman of a state Assembly committee overseeing the state’s prison construction efforts remarked about AB 900: “The department is a shambles. They couldn’t build their way out of a paper bag. Everyone has a reason to be skeptical. Everyone is holding their breath, hoping that this time they’re successful.” Clearly, AB 900 was not the answer to prison reform. Otherwise, California would not have been a defendant in Brown v. Plata.

Prison overcrowding has been a problem for years but the California legislature has lacked the political will to implement necessary reforms. Will California be forced to turn to private, for-profit prisons to help solve its overcrowding prison problem?

Many believe that government programs — social security for example — would run more efficiently and cheaply by the private sector. This may or may not be true. However, recent research by the Arizona Department of Corrections indicates that this is not necessarily so for private, for-profit prisons. This research based on Arizona’s own facts and figures shows that privately-operated prisons can cost more than state-run prisons, even though they often do not accept the sickest, costliest inmates. Arizona law stipulates that private prisons must create “cost savings,” but the research shows that inmates in private prisons cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons.

Similarly, a University of Utah team reviewed years of research and concluded in a 2007 report that “cost savings from privatizing prisons are not guaranteed and appear minimal.”

For many years, private prisons have been a hot issue in California. While Texas and Florida have embraced privatization as a supplement to state-run institutions, California has resisted. In 2002, former Governor Gray Davis ended California’s experiment with privately operated prisons, fulfilling his promise to the California Correctional Peace Officers Association (CCOA) that spent $2.3 million to help elect him to his first term. Davis’ budget proposed closing five of California’s nine private prisons almost immediately and phasing out the rest as their operating contracts expire. He cited budget concerns, saying that the state could save about $5 million by closing the minimum-security facilities. Prisons run by private companies was finally discontinued in 2007 after continued lobbying by the CCOA.

California does use private, for-profit facilities for community corrections facilities (seven are in operation today) and various contracted services, including education, vocational training, and substance abuse treatment.

Private prisons are making a subtle comeback in California. For example, as the prisons’ population swelled to an all-time high in 2006, former Governor.Arnold Schwarzenegger declared a public safety emergency and then used his emergency powers to begin transferring more than 10,000 inmates to private prisons in other states. California now contracts with for-profit private prison companies to house up to 10,468 inmates in out-of-state facilities.

Shortly after Schwarzenegger’s declaration of a public safety emergency, the Reason Foundation, a Los Angeles-based libertarian think-tank that promotes the privatization of government services, and the Howard Jarvis Taxpayers Association issued the so called “Reason-HJTA Report,” which advocated sending 25,000 California inmates to out-of-state for-profit prisons, claiming that would save the state up to $1.8 billion over a five-year period. The Report purports to offer a solution to California’s prison overcrowding crisis.

The cost savings touted in this Report were severely criticized by the Private Corrections Institute, a non-profit citizen watchdog group that opposes prison privatization: “The joint Reason-HJTA report is based on sources that are so plagued with conflicts of interest that the results would be laughable if they weren’t masquerading as credible research.”

I believe that California will turn to private, for-profit prisons as the long-term solution to prison overcrowding and not necessarily for any purported cost savings, but because California may have no other choice. California cannot build new prisons and/or remodel/expand existing prisons fast enough to keep up with new inmates. Lacking the political will, California will likely take the easy way out by shipping the prisoners to private prisons.

N.B.: In his State of the State address in January 2010, Gov. Arnold Schwarzenegger said that California is spending 10 percent of its general fund on prisons and 7 percent on higher education. Isn’t this a case of misplaced priorities?

Ralph E. Stone

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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  • Get European,

    De-criminalize all victimless drug possession. That’s 40% of the California prison population. But, with fewer prisoners to guard, the Guards’ union would push to criminalize oral sex or something like that. Does this locale seem familiar?

    I’m thinking of the building trades people who stood up at the hearings on Parkmerced and voiced their willingness to tear down solid housing to create jobs for them building more housing.

    One testimony:

    “I’m sympathetic to your need for a job but you shouldn’t have to tear down my home to get one.”

    It’s the old ‘loggers vs trees’ scenario. They need to cut down redwood old growth (in their mind) to keep being loggers but what they aren’t facing is the reality that the very nature of their jobs is bad for society and the environment.

    Giants up 7-2 on Torres grand slam.

    Bumgarner bounces on over the wall for a double.


  • Expert

    This is a terrific article in a number of respects.

    Firstly, it mentions the Reason Foundation public relations trash, thinly disguised as “research.” David Koch is on the Reason board, is a major supporter of the Foundation and magazine. He and his brother, Charles de Ganahl Koch, have been pushing a privatization agenda for decades, particularly of prisons. Their estranged brother Bill even convened a prison privatization conference in the mid-’90s.

    Reason is only the tip of the iceberg as far as the Koch public relations machine goes. There may be dozens. Some of the better known are the Heartland Foundation, the Rio Grande Foundation, the Mackinac Institute, the Independent (sic) Institute, the Evergreen Institute, the Cato Institute. There are academic institiutions as well, that produce supposed research on order for the Kochs and the for-profit prison industry. Not only is it not peer-reviewed, but the research models they employ wouldn’t earn a passing grade in a sophomore methodology design class.

    The Kochs also have their own stable of politicians as well. Governors John Kasich, Paul LePage (ME), Rick Scott (FL), Scott Walker (WI), Piyush Jindal (LA), Mitch Daniels (IN), Tom Corbett (PA), Jan Brewer (AZ), Rick Snyder (MI), are all Koch Ho’s. Jindal and Kasich are all trying to sell five state prisons at fire sale prices to the industry that put them in office. Scott is privatizing every prison in South Florida. LePage hired a CCA hack as his Director of Prisons. Daniels brought a pathetic reject from the industry and installed him as his director.

    This has been under the radar for a long time. Bill Richardson, the sole Democrat in the sorry lot, hired Joe Williams from Wackenhut/GEO Group to run his prisons, already overprivatized by his predecessor, pseudo-libertarian and presidential candidate Gary Johnson. The ethically challenged Williams responded by neglecting to fine GEO and the other industry titan, Corrections Corporation of America, $18 million for deliberate understaffing. Arnold Schwartzenegger took on GEO’s Donna Arduin as his director of finance, another industry hack, and ran end runs around the state constitution.

    Arnold had gotten $5,000 from GEO just before the recall of Gray Davis and they followed that up with $48,000 more within a few days of his election. Cornell Corrections, now owned by GEO, made a fakeumentary and showed it on statewide cable extolling their imagined virtures in the election runup, and showing cartoonish images of union “thugs” delivering supposed bags of cash to the Davis campaign.

    During all this, the state (and national) press was prodigiously somnolent, irresponsibly delivering soporific pap to the public.

    More in a moment.

  • Expert

    Following the money also leads directly to CCA. It contributes to Reason but more importantly, subsidizes another Koch-front, the secretive American Legislative Exchange Council, where is has had its executives chairing the criminal justice committee.

    ALEC has enrolled over half the conservative legislators in the U.S., charging them a pittance ($50/yr, up from $25 annually in the recent past), wining and dining, pampering and flattering them as sand and surf, ski and golf resorts, and handing them “model” draconian legislation to bring back to their home states where they roboticallly introduce this fascistic garbage as their own creations.

    That’s the origin of “Three Strikes,” and “Truth in Sentencing,” etc., but the for-profit prison industry is able to keep its fingerprints from appearing at the scene of the crime. It produces for them more market (the commodificaiton of human beings) and more market share (especially in the export of prisoners from states such as Alaska, Hawai’i, Vermont, California, Arizona, Montana, etc.) to their pretend prisons overseen by pretend guards (thinly diguised fast food workers with badges), escape and riot-ridden crackerboxes. It represents such a blatant conflict of interest that even such a corrupt outfit as GEO withdrew from membership a few years ago, perhaps confident that CCA would carry the flag in their stead.

    But corporate greed has not always stayed in the closet. CCA contributed and worked for Proposition Six in California, the supposed anti-gang initiative that would have expanded the scope of the police state by writing new crimes and enhancing punishments for other crimes and allowing lazy and venal district attorneys to overcharge defendants to coerce plea bargains. In Kansas, GEO, attempting to end two decades of a ban on new troublesome for-profits, lobbied to pass “Jessica’s Law,” which vastly increased the sentences for sex crimes for often somewhat innocuous defendants. It needlessly sacrificed young alleged victims of sexual abuse to rigorous cross examination and forced them to relive those cases of actual abuse in front of a room full of jurors and spectators. GEO used the prediction of a 15% increase in the state prison population created by the law as a rationale for passage of its bundled repeal bill.

    A commenter here, while advising us of Giant baseball scores, erroneouslly blames the rise in sentencing on CCPOA, the Correctional Officers union. In fact, they did little to increase sentencing, and then only by support a victims’ group and got Gray Davis to veto a needle exchange bill that would have actually reduced risk exposure to its membership.

    To get some sense of how poisonous the for-profit industry truly is, look only to Arizona and its SB 1070, the deliberately racist “Breathing while Brown” law. Besides the industry’s contributions to corrupt hacks such as Senators Pearce, Gould and Burns, they actually provided their lobbyists as the campaign director as well as the spokesman for Jan Brewer’s gubernatorial campaign, and her director of Corrections, Chuck Ryan, has bent over backwards to acccomodate the industry.

  • Expert

    The article’s author is correct about the costs of privatization being higher, rather than presenting a savings, as has been repeatedly shown by legitimate reserach.

    But none of the studies or opinion pieces pretending to be reserach by industry minions such as Sasha Volokh, deal with the massive externalizaiton of costs brought upon the taxpayer by the for-profit prison industry.

    Here’s just one example:

    Arizona’s poorly constructed, maintained and managed Kingman state prison, operated by Utah’s private Management and Training Corporation, the third largest for-profit allowed an easily preventable escape on July 30th last year. After one of the escapees abandoned his fellow murderers and their accomplice, and the others walked to a distant highway interchange and hijacked an interstate tractor-trailer. Voting 2-1, not to kill the drivers, they dropped it off in Flagstaff 140 miles away. The first murderer, who had 32 years left on his sentence and who had absconded with the getway car got into a shootout the next day with a deputy and a policeman in Colorado, eventually being sentenced to 60 years in that state. His high security classification, prosecution and defence will probably cost the Colorado taxpayers two million dollars before he dies in prison.

    The three then fled to Texas when they got word of the capture of their accomplice and turned around as the news indicated he was divulging their plans. On their rearrival in New Mexico, they hijacked a retired couple in order to steal their camper trailer, murdering them along the way. Stopping for gas, the realized the victims’ blood was running out of the trailer so they towed it to a remote ranch and incinerated the trailer and the remains of the victims.

    The chase went on all over the nation as the three went all the way to Montana, dropped off one of the murderers, an Arizona lifer, held up a beauty salon in Gentry, Arkansas and drove all the way to Pennsylvania before returning to Arizona, where the couple was eventually captured by a SWAT team.

    The manhunt for the latter three may have cost millions. They are being charged with Federal murder by a grandstanding U.S. Attorney, a case that will cost the public millions to prosecute and defend.

    Meanwhile the family of the victims are suing the state of Arizona, MTC and the flaky and corruptive Oklahoma corporation that built the crackerbox prison for $40 million.