The inmate population in the United States has grown steadily over the past fifteen years, increasing by 49.6 percent, while the proportion of those prisoners in private prisons has exploded -– according to the Justice Policy Institute’s analysis of federal statistics; the number of people in privately-run prisons has increased by 353.7 percent since 1996.
But one aspect amid the increases has not changed -– there has been no federally-mandated minimal level of oversight for facilities run by private prisons.
There are three main issues that worry critics about the lack of oversight in privatized facilities: the standards of confinement, the cost oversight and the ability to get information on either of these points from privately-run detention facilities.
“I think that prisons are closed institutions in general as they are outside the public view … and most citizens have very little understanding of what goes on behind the closed doors,” said Michele Deitch, a senior lecturer at the University of Texas School of Law. “But that changes dramatically when looking at private prisons.
“They are not subject to the same requirements about open records, the sharing of public information,” Deitch continued, “and because they have a contract with the government, not directly with the people, there is a layer of bureaucracy and privacy that is even deeper.”
This growth has been led by a handful of companies, including the two largest private prison companies, Corrections Corporation of America (CCA), which partners with all three federal corrections agencies, according to its website, and “almost half of all states and several municipalities;” and GEO Group, which runs prisons outsourced by federal, state and local prison bureaus as well as immigration facilities around the country.
According to the U.S. Department of Justice (PDF), the growth of the inmate population in private prisons is 5 percent a year. This does not include jails or immigration detention facilities. In the latter, private companies control nearly half of all detention beds.
Private prison oversight so far
Historically, federal courts have stepped in to oversee particularly egregious examples of prison abuse, but because no federally-mandated minimal level of oversight exists, how private contractors are watched depends on the locality doing the contracting.
“The issue of transparency is really big,” said Mel Wilson, assistant director of Officer Workforce Studies at the National Association of Social Workers. “If you look closely at the criminal justice system, each state has a lot of latitude in structuring what level of oversight it has.”
At the federal level, the Office of Federal Detention Trustee (OFDT) was created in 2000 to provide oversight of federal prisons, but the creation of the Department of Homeland Security in 2003 — and decreased focus on the detention crisis — has left the OFDT to function primarily as a Department of Justice agency that contracts out prisons with private companies, according to a 2010 report from the Center for International Policy.
Immigrations and Customs Enforcement (ICE) also established an Office of Detention Oversight in 2009 to look over the then-32,000 detention beds in 350 facilities. Most of these were not run by ICE employees, the ICE fact sheet noted, but were “operated by county authorities or detention centers operated by private contractors.”
Both CCA and GEO Group, the biggest players in the private-corrections-facility game, lobby directly to some of these agencies. In 2011, CCA spent $810,000 on lobbying agencies including the U.S. Marshals Service, which awards private-prison contracts, and the Bureau of Prisons. GEO Group spent $160,000 lobbying in 2011 -– it expanded its agency targets to ICE, the Department of Homeland Security (DHS) and the Department of Justice, according to Open Secrets.
Recently, GEO Group lobbied on a DHS budget bill, in particular on the issue report related to alternatives to detention for immigrants. CCA also lobbied on the bill, focusing on three issue reports about budgeting for federal agencies overseeing detention. The filings do not say the position of the companies.
On the local level, 27 states have bodies with mandatory inspection duties, eight states have a discretionary monitoring authority, three have a statewide voluntary inspection body and five states have a local jail inspection body, according to a study (PDF) in Pace Law Review by Deitch.
Seventeen states — Arizona, Connecticut, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Rhode Island, South Dakota, Vermont, West Virginia, Washington, Wyoming — have no oversight bodies at all.
The states with the two fastest-growing prison populations (PDF) -– West Virginia and Indiana -– both have little or no regularized oversight, and no independent monitoring agencies.
In Indiana, where the prison population increased 5.2 percent between 2008 and 2010, according to the Pew Center (PDF), an ombudsman with the state government is charged with investigating any prison-related grievances submitted voluntarily.
West Virginia’s facilities are overseen by the West Virginia Regional Jail and Correctional Authority, though its oversight is not enforced through regular inspections and the state has “no formal external prison or jail oversight mechanisms.”
This can be contrasted to what Deitch calls one of the best prison oversight systems –- Ohio, which provides external oversight of its prisons through the Correctional Institution Inspection Committee, which was created by the state Legislature for independent oversight in 1977.
**Private prison exceptionalism **
But with private prisons, critics say setting up effective oversight mechanisms is only part of the battle.
“There is just example after example of the failure of oversight,” said David Shapiro, a staff attorney at the National Prison Project of the American Civil Liberties Union, which has monitored prison issues since 1972.
The Corrections Corporation of America notes on its website that over 93 percent of it’s 60 facilities have passed an audit done every three years by the American Correctional Association (ACA), another private group that “offers training, support and operational standards to correctional facilities and officers.”
But critics question the reliability of the audit. A three-year accreditation (PDF) from the ACA costs $3,000 per day and $1,500 dollars for the each auditor on the team. Ken Kopczynski, with the non-profit Private Corrections Working Group, writes that this is a sign of pay-for-play.
Kopczynski also notes that “at least two CCA employees serve as ACA auditors – CCA warden Todd Thomas and company vice president Dennis Bradby,” further breaking down the ACA’s authority as an independent auditor.
Meanwhile, CCA has dealt with lawsuits around the country. Hawaii took more than 200 prisoners back from CCA prisons outside the state after they alleged they had been abused by guards; 234 inmates from Colorado sued CCA for injuries suffered from guards after a riot they didn’t participate in; and in Minnesota the company was a defendant in eight cases between 1997-2006, according to court records obtained by staff at The Minnesota Independent.
Deitch stresses the importance of independent oversight for objective observation of a facility. Budgets cuts could make localities “less likely to be able to conduct appropriate oversight,” which puts both prisoners and staff in danger.
Shapiro, with the ACLU, also worries about the revolving door. In New Mexico, the corrections secretary Joe Williams didn’t penalize CCA and GEO Group for breaking their contractual obligations by running under-staffed prisons and then pocketing extra profits. As The New Mexico Independent reported, before becoming corrections secretary, Williams was hired by GEO Group as a warden for the Lea County Correctional Facility.
The American Bar Association (ABA) passed a resolution in 2008 calling for independent correctional oversight in every jurisdiction that has now been adopted as part of ABA policy. Deitch co-chairs the ABA’s committee on correctional oversight.
But Shapiro says no amount of oversight can ever make as opaque an institution as a private prison function transparently. The ACLU has called for the “elimination of private prisons” in its policy priorities as far back as 2001.
“The best approach to private prisons is just say no,” said Shapiro “No amount of oversight can really account for the problems with the profit motive and the problematic incentives that it creates.”
*(Jon Collins contributed to reporting this story) *
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