Private Prison Profiteering
posted by andré douglas pond cummings
Last week in this space, I posed the following two questions in connection with the prison industrial complex: “Is it possible, that the Board of Directors of private prison companies . . . are literally strategizing ways to increase the prison population in the United States? To effectively increase profits for shareholders, are private prison companies not only cutting services to prisoners as a way to increase profits, but are they now drafting policies, lobbying politicians, and actively debating ways to ensure that a steady stream of “clients” continues into the private prisons that are proliferating across the United States (now over 25% of prisoners are housed in private prison facilities)?” I answered those two posed questions by suggesting that yes, emerging evidence seems to indicate that private prison corporations are in fact drafting policies, lobbying politicians and actively debating ways to increase the U.S. prison population. Several commentators backed up this assertion.
Seeing that Board members of private prison corporations are duty bound to increase profits for its shareholders, I posit that a moral dilemma faces those executives that would draft policies, lobby legislatures and actively work to increase prison populations in the United States and around the world.
A little over a year ago, NPR reported that Arizona’s controversial SB1070 (“The Support Our Law Enforcement and Safe Neighborhoods Act”), was drafted by private prison company lobbyists (through ALEC), and delivered to an Arizona congressman, at his request, who introduced the draft legislation into the Arizona House virtually word-for-word. Following introduction of SB1070, some 36 legislators immediately co-sponsored the bill (apparently unheard of in Arizona) with NPR reporting that 33 of those legislators received substantial campaign contributions from the private prison lobby. As reported by Professor César Cuauhtémoc Garcìa Hernàndez the newest profit stream for the private prison industry appears to be illegal immigrants. Recent reports indicate the federal funding for programs targeting “criminal aliens” has increased significantly in recent years, and a concomitant rise in arrests and imprisonment has followed. Most of these “criminal alien” arrests have been for illegal entry.
The notion that private prison company executives are working furiously to increase prisoner populations and are lobbying legislators to affirmatively imprison more Americans has been challenged over at the Volokh Conspiracy. Private prison leadership argues that they are simply working for privatization of the prison industry, not in favor of measures that increase incarceration rates. Professor Alexander “Sasha” Volokh supports this particular argument in his Stanford Law Review piece.
February 22, 2012 at 3:04 am
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Responses (3)
James Grimmelmann - February 22, 2012 at 9:40 am
Can you say a bit more about the duty to increase shareholder profits that you see facing private prison corporations? It’s not clear to me that this is the sort of “duty” that creates moral or legal obligations to affirmatively engage in the conduct you describe. In particular, how does the business judgment rule enter into your account of the moral dilemma?
nidefatt - February 22, 2012 at 10:05 am
Right. I’m not sure why this is something you have to argue. It’s not as if we don’t have weapons manufacturers urging us into wars and “global conflicts.” It wouldn’t be business if these corporations didn’t seek to increase their profit by any lawful means. And there’s nothing unlawful about convincing politicians seeking to be “tough on crime” to lock more people up for longer. However, since the taxpayer pays for the whole thing, it seems like just a matter of time before an expose brings down the house.
Annette Gordon-Reed - February 24, 2012 at 2:15 pm
“There is nothing unlawful about convincing politicians seeking to be “tough on crime” to lock more people up for longer.” As is often the case, what is “legal”/ “lawful” is the real scandal. The end of slavery in this country brought new methods to “deal with” the black population that was not to be truly assimilated into society and was, in fact, despised. Legislators, former slave owners and their kids and grandkids, used law–being “tough on crime”– to round up black men and women whose labor was then hired out. Whether it was for profit or just to get them out of sight, law was used as a direct tool for social oppression. It was all legal, and all morally reprehensible.
The US locks up more people than any nation in the world, certainly any other industrialized nation. There is no question that blacks and people of color are disproportionately represented in the prison population. The policy of targeting those communities in the war on drugs helped to drive the rise in the jail and prison population over the past few decades. History’s fingerprints are all over this. So, I see a difference between being tough on crime because you want to raise profits and being tough on crime out of a desire to protect the public. If it’s about profits, there will be an incentive to criminalize behavior whether it harms society or not. You can do that more easily with disfavored members of society, blacks and Hispanics, for example.
I don’t see why the business of prisons should operate differently than other businesses. Name a business that does not care whether it grows or whether it declines.
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