The Private Prison Myth: Why Criminal Justice Should Focus on Sentencing Laws

With a staggering 2,248,100 people incarcerated in American prisons and jails according to 2015 US Bureau of Justice Statistics figures, America takes the carceral cake on the global level. We imprison more people, both per capita and in absolute numbers, than any other nation in the world, including countries that America deems to have repressive regimes such as Russia, China, and Iran. In the context of our incarceration practices, “the land of the free” seems more like tragic irony than a truism. Incarceration has become a deep part of America’s very functioning.

Our swollen prison population is a relatively modern historical development. Over the last forty years, the number of people being held in prisons and jails has increased by 500 percent, a jump explained mostly by changes in law and policy rather than in crime rates. The political fad throughout the 80s, 90s, and into the 2000s was to be “tough on crime.” In the 2016 election cycle however, the Democrats showed an increased focus on criminal justice reform. Both Hillary Clinton and Bernie Sanders pointed to overcrowded prisons, calling for reduced prison populations. However, both candidates made the conceptual mistake of placing the focus most heavily on the closure of private, for-profit prisons. The first point of Sen. Sanders’s plan addressing the criminal justice system argued that “[w]e need to ban prisons for profit, which result in an over-incentive to arrest, jail and detain in order to keep prison beds full.” Clinton too, targeted private prisons in the first presidential debate, arguing that “you shouldn’t have a profit motivation to fill prison cells with young Americans.”

These campaign objectives paint a false reality that features private prisons as the cause of our country’s criminal justice issues. But while the idea of a big business prison conspiracy fits nicely into a liberal narrative portraying corporate America as evil, the phenomenon of mass incarceration is the result of a complex and changing set of factors. Private prisons do play a role in mass incarceration, as their lobbies work to expand their market. but the reality is that the vast majority of prisoners are held in public facilities. Private prisons detain only eight percent of all federal and state prisoners. It’s an uncomfortable reality to conscience, but America’s prison problem is “a disaster created and perpetuated by the state” in the words of Daniel Denvir, a journalist and fellow at Harvard’s Fair Punishment Project.

Nonetheless, liberals overwhelmingly cheered what they saw to be a criminal justice victory when in August 2016, the Department of Justice announced it would cancel its contracts with federal private prisons. Black Lives Matter activist Shaun King called the decision a “huge deal,” and Ilyse Hogue, President of NARAL, described it as “one of the most significant victories of the decade.” But this enthusiasm misses the mark. The liberal focus on private prison closure is not only a simple overemphasis of private prisons’ importance; calls to shut them down are also misguided.

First of all, the moral claims against profiteering from imprisoning Americans, while logical at a philosophical level, are flawed in practice. There will always be corporations who profit through incarceration, regardless of whether prisons are public or private. Makers of barbed wire, surveillance cameras, prison uniforms, and guns, for example, all receive contracts from prisons. Michael O’Hare, professor of Public Policy at UC Berkeley, points out that for profit to be removed from the process of incarceration, “every potato on the inmates’ plates, and every brick in the building, and all the guards’ shoes, must be made by a government agency.” This is, of course, an unrealistic notion.

More thoughtful claims against the profit motive of private prisons point not to generalized moral issues, but to potential cutting of corners in rehabilitation. Some contend that private prisons skimp on essential services such as adjustment programs or mental health in order to make it more likely that their inmates will reoffend — securing themselves a larger “customer” base. However, studies fail to confirm this fear. While some studies do find that recidivism rates in private prisons tend to be higher than public ones, others come to the opposite conclusion. The vast majority of studies, including an influential study published in the the Journal of Criminology and Public Policy, find that there is no significant difference in recidivism rates for public and private prisons. Without statistics clearly backing up the claim that private prisons result in high rates of recidivism, the argument that private prisons cut corners in rehabilitation is hard to defend.

The larger worry of worsened conditions in private prisons is also questionable. Private prisons are awful places, but so are public prisons. There is no consensus that one type has better or worse conditions than the other. Furthermore, in private prisons, inmates retain the right to protect themselves legally against abusive treatment by suing prison guards. In public prisons, on the other hand, guards have “qualified immunity,” which makes it much more difficult for prisoners to be successful in lawsuits against guards. This legal barrier further cuts into the idea that public prisons are better for inmates.

Closing down private prisons also threatens inmate conditions by forcing inmates to transfer to already crowded public facilities. In states such as California, private prisons have actually expanded over the last ten years as part of a strategy to reduce chronic overcrowding in state-run facilities. Thus, private prisons — flawed as they may be — do not represent the root of the problem, but instead can actually be seen as a response to over-incarceration. Direct progress in criminal justice will require battling over-incarceration itself.

The liberal focus on private prison closure is not only a simple overemphasis of private prisons’ importance; calls to shut them down are also misguided.

These defenses of private prisons do not aim to make a case for the virtues of private prisons. Rather, they intend to demonstrate that by boiling the issue of criminal justice down to private prison closure, Democrats are making easily refutable arguments while not focusing on the core of the problem. This misguided oversimplification seriously hampers the possibility of moving toward viable solutions because it shifts focus away from the more pressing problems of sentencing practices and policing policies. Rather than calling to shut down private prisons, those who want to make substantive criminal justice reform in America should focus on reducing overly punitive sentencing laws.

International examples of drastic “decarceration” exemplify that incremental changes to penal policy can achieve significant reductions in prison populations. Throughout the latter half of the 20th century, Finland moved away from criminal justice policies rooted in the Soviet authoritarian model and gradually adopted less punitive sentencing laws based on research that questioned the efficacy of harsh punishment. As a result, Finland cut its prison population from 150 per 100,000 in 1960 to just over 50 per 100,000 by 2000, resulting in no increase in crime rates and low rates of recidivism.

Norway is another shining Scandinavian example boasting a small prison population and one of the lowest rates of recidivism in the world. These low rates of re-offense come largely from Norway’s focus on rehabilitating its inmates rather than punishing them. Inmates live a lifestyle that is almost cushy (cooking in fully equipped kitchens, gardening, even playing electric guitars), yet only 20 percent of them reoffend compared to 77 percent of American prisoners. However, this model of restorative justice does not fully explain why Norway’s prison population is so low in the first place. As in the case of Finland, the answer comes down to sentencing laws. Rather than operating on mandatory minimum sentences (as we do in the United States), Norway employs maximum sentence restrictions. With a few exceptions (mostly for genocide and war crimes), judges cannot sentence criminals to more that 21 years in prison. America should take a page from the Norwegian playbook and critically reevaluate our mandatory minimum sentencing laws.

Mandatory minimums are part of a collection of current American laws that force judges to dole out overly punitive sentences. “Three strikes” laws also belong to that malignant category, mandating that a third offense, no matter the crime, results in a life sentence. Many of these policies are overly harsh and specifically target minorities and lower socioeconomic groups. Thankfully, there is already momentum to turn these laws around. The Fair Sentencing Act, signed into law in 2010 under the Obama administration, reduced the disparity in federal criminality between crack cocaine (considered a drug for a poorer demographic) and powder cocaine (considered a drug for the upper class) and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine. While the Fair Sentencing Act is just one example, similar deescalation in penalizations can and should occur more broadly to tone down our sentencing practices.

The Eighth Amendment offers another possible avenue for the legal fight against mass incarceration. Some carceral policy experts such as William Berry of the University of Mississippi School of Law believe that the courts may move towards an interpretation of the clause prohibiting “cruel and unusual punishment” that extends to overcrowded prison environments. The decision in the recent case Brown v. Plata sees dismal prison conditions as a violation of “human dignity” for the prisoners, the precedent of which may help judges rule against policies which contribute to overcrowding in the future.

The fight for criminal justice reform can also play out at the local level. Policing practices largely dictate who enters into the court system to begin with, and right here in Providence, the Community Safety Act (CSA) exemplifies action which offers a promising vision to improve police relations with the community. The CSA includes measures such as reformed searching practices and standardized encounter procedures to prohibit racial profiling. While the CSA has hit some legislative roadblocks, the fight must continue. Reforming policing practices at the localized level is a concrete way to chip away at the monolith of mass incarceration, and one of the few available tools for progress remaining, given that the White House that has pledged to be a “law and order administration.”

Under President Trump, federal criminal justice reform now seems to be at a standstill. In a statement of the administration’s incarceration-friendly stance, Attorney General Jeff Sessions scrapped a bill that would have closed private prisons contracted through the Department of Justice. While this action may dismay liberals who fault private prisons with mass incarceration, those who want to substantively reform the criminal justice system should read the tea leaves, see that this action is a precursor for much scarier changes, and stand on high alert for harsher crime policy, ready to resist.

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