Author: andré douglas pond cummings

10

The Private Prison Industry on Tilt

Last month, I posted several times on the profit motive flow of the private prison industry.  To follow up here, nobel laureate economist Paul Krugman weighed in this week on the privatization of prisons (amongst other areas, including education) in the New York Times by describing the role of lobbyists in influencing and creating legislative policies that impact American lives. In his opinion piece Lobbyists, Guns and Money, Krugman details the activities of ALEC (American Legislative Exchange Council), a self described non-partisan lobbying organization, and its massive emerging influence.  Krugman describes ALEC as follows:

“What is ALEC? Despite claims that it’s nonpartisan, it’s very much a movement-conservative organization, funded by the usual suspects: the Kochs, Exxon Mobil, and so on. Unlike other such groups, however, it doesn’t just influence laws, it literally writes them, supplying fully drafted bills to state legislators. In Virginia, for example, more than 50 ALEC-written bills have been introduced, many almost word for word. And these bills often become law.

Many ALEC-drafted bills pursue standard conservative goals: union-busting, undermining environmental protection, tax breaks for corporations and the wealthy. ALEC seems, however, to have a special interest in privatization — that is, on turning the provision of public services, from schools to prisons, over to for-profit corporations. And some of the most prominent beneficiaries of privatization, such as the online education company K12 Inc. and the prison operator Corrections Corporation of America, are, not surprisingly, very much involved with the organization.”

Based on the last sentence of Krugman’s description “And some of the most prominent beneficiaries of privatizations, such as . . . the prison operator Corrections Corporation of America, are, not surprisingly, very much involved with the organization,” he received a tense response letter from the Corrections Corporation of America (CCA) trying to force a retraction for things that Krugman did not actually say.

The CCA claims that it does not, and never has lobbied for increasing prison sentences or developing new areas for detention (like criminalizing immigration). The CCA letter claims that “CCA does not and has not ever lobbied for or attempted to promote any legislation anywhere that affects sentencing and detention — under longstanding corporate policy.”

Krugman is dubious about this claim, as am I. CCA employs dozens of lobbyists and spends millions of dollars per year lobbying legislatures around the United States in connection with promoting its business interests. CCA was in the news just last month after it sent letters to 48 states offering to buy the state’s prisons in exchange for a 20 year agreement to pay CCA to warehouse the state’s prisoners and contractual agreement to keep the prisons filled at 90% capacity.

A private prison company contractually obligating a state to keep its prisons filled to 90% capacity seems to me to be an attempt to influence sentencing and detention policy for profit.

1

Hip Hop and the Prison Industrial Complex

In finishing up my posts this month in connection with the corporatization of the prison industry in the United States, I wanted to take a moment to think about how our students are witnessing, feeling and experiencing mass incarceration.  Many law students today would identify as members of the “hip hop generation.”  Indeed, some of us teaching in the legal academy likely consider ourselves members of this generation as well.  What does the hip hop generation say or think about the prison industrial complex?  As it turns out, this generation thinks radically about ending mass incarceration.  This anecdotal comment is based on experiences this semester with a group of 60 students that are enrolled in a law school course styled “Hip Hop and the American Constitution.”  Hip Hop and the American Constitution is being offered as a companion course at both Drexel University Earle Mack School of Law and the West Virginia University College of Law.

Dr. Donald Tibbs at Drexel Law originally conceptualized a “Hip Hop and the Law” course and successfully petitioned Drexel for a grant to organize and conduct the course as a lecture series.  Together with Dr. Tibbs, a proposal was then introduced to the academic planning committee at the West Virginia University College of Law to approve a companion course at WVU Law, to be offered collaboratively between Drexel Law and WVU Law.  The result has been a law school course that includes 60 students from both schools  engaged in an incredibly intellectual mining of topics like mass incarceration, police brutality, anti-snitching, the black public sphere, electoral politics, the prison industrial complex, and hip hop feminism, all through the lens of the U.S. Constitution as critiqued by hip hop and its artists, past and present.  With an emerging body of scholarship that examines the intersection of law and hip hop, the course has allowed students a rich material to read from in advance of lectures and discussion.

What has seemed most urgent for the students that self-selected into this course, has been the utter failure of the War on Drugs and the massive imprisonment scheme that literally overwhelms communities of color and impacts these students personally, through individual experience or familial affiliation.  This of course, should not come as a surprise (the intense personal experience so many have with mass incarceration).  With the prison population increasing more than 335% over the past twenty-five years, more of our students are going to be personally or tangentially affected by this increase.  From these discussions, student groups have been formed to lobby against new prison construction in West Virginia and creative solutions are being sought to prison overcrowding in both WV and Pennsylvania.

8

Corporate Boards and Private Prison Corporations

This month, I’ve posted about the moral dilemma that I see facing the Board members and Executives of Private Prison Corporations.  As Board members are duty bound to increase profits for shareholders, I’ve suggested that one of the primary ways that Board members can increase profits for shareholders is to engage in planning for, lobbying for and affirmatively making efforts to imprison more American citizens (and increasingly, illegal immigrants).  In comments to these posts, I’ve been queried as to whether this practice is illegal or why I believe that the profit maximization duty would necessarily lead private prison executives to engage in this kind of planning.

I want to be clear that I do not believe that a duty exists for private prison executives and Board members to aggressively seek to imprison more human beings, I am simply suggesting that the duty to increase profits requires executives to consider growth as one way to maximize profits.  Growth in companies that manufacture products or deliver most services, does not implicate locking people up and increasingly locking up people of color.  I am perfectly willing to believe that private prison Board meetings consist of discussions about cutting costs and running more efficiently to increase profits.  I also believe that private prison Board meetings involve long and intense discussions about how to convince state legislatures and federal politicians to privatize more prison facilities.  Still, I remain convinced that the duty to increase profits leads private prison Boards to discuss growth which necessarily includes increasing prison sentences for those already locked up and seeking new avenues to criminalize and imprison those that are currently free.  That said, the business judgment rule likely protects any and all of the above considerations.  Moral or not, these are business decisions.

To the commentator that states: “There is nothing unlawful about convincing politicians seeking to be “tough on crime” to lock more people up for longer,” Professor Annette Gordon-Reed captures my thinking and states it eloquently (per her comment):

“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.”

3

Private Prison Profiteering

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.

7

Profit Maximization and the Prison Industrial Complex

Many thanks to Solangel Maldonado, Frank Pasquale, Kaimi Wenger and the Concurring Opinions crew for the invitation to guest blog in this space.

As I prepare to teach Dodge v. Ford in my Business Organizations course tomorrow afternoon, the seminal case that stands for the proposition that U.S. corporations exist to maximize profits for its shareholders, my mind is drawn to private prison corporations and the prison industrial complex.  Each semester that I teach Bus. Org., I often ask my students to imagine themselves in the shoes of a particular corporation’s member of the Board of Directors as we study the decisions that led a company into a particular dispute or lawsuit.  When teaching the Dodge v. Ford case, I challenge the students to think through how they would react as Ford Board members to Henry Ford’s repeated decisions to consistently lower the price of his vehicles in an early 1900s era where his car sales dominated the American auto industry.  They are to consider Ford’s decision to lower prices against the required goal of the Ford Motor Co. to work diligently to increase profits for its shareholders (in this case the Dodge Bros. were significant shareholders in Ford Motor Co.).  Often this exercise will situate the students around an imagined large boardroom table during a Board meeting, as Board members debate, discuss, argue, cajole, and conceptualize how the corporation can better increase profit streams, open new markets, streamline products and delivery mechanisms, and run more efficiently.  One can imagine that the Ford Board might have considered raising the prices of its cars that were selling very briskly, building additional factories and plants to manufacture additional cars and parts, inspiring its labor force to work more diligently with steadier pay, etc.

After carefully reading “The New Jim Crow” by Michelle Alexander last year, referenced in this blog space by Frank Pasquale, I find myself constantly thinking about Mass Incarceration from the perspective of the prison industrial complex and the corporatization of the prison industry.  In Alexander’s tour de force, she persuasively makes the case that Mass Incarceration is the civil rights issue of our generation.  She argues that the War on Drugs has functioned as a re-subordination of African American and Latino men, a new Jim Crow of sorts, that continues to lay waste to urban city centers and the families of those that are incarcerated under our onerous drug policies in the United States.  As I go into the classroom to teach “profit maximization” tomorrow, I find myself wondering about what happens exactly during the Board meetings of the Corrections Corporation of America (CCA) and the Geo Group (formerly Wackenhunt), the two largest private prison corporations, as they engage the process of increasing profit streams, opening new markets, and running the business more cost effectively.  Is it possible, that the Board of Directors of private prison companies, sitting around that boardroom table, 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)?  Emerging evidence appears to suggest that the answer to these questions is yes.  The thought that incarcerating more and more American citizens may be a policy goal for private prison companies is to me, a chilling and immoral conceptualization.  In future posts this month I will detail the emerging evidence that appears to support the proposition that perverse incentives are actively influencing the private prison company executive and Board member.