Prison Quotas Stall Policy Advancement

STEVEN VITALE — For more than a decade, the United States has had the highest incarceration rate of any country in the world. In order to provide some perspective, the natural incarceration rate in comparable countries is 100 prisoners per 100,000 people in the population; the United States has an incarceration rate of 500 prisoners per 100,000 people.  In 2010, the Bureau of Justice Statistics (“BJS”) calculated there to be about 1.6 million prisoners in United States prison facilities, and that number is currently estimated to have grown to roughly 2.4 million.  Apart from rising immigration detentions, one of the most poignant driving forces contributing to this increasing trend has been harsher sentences for drug offenders. The most serious charge against fifty-one percent (51%) of federal inmates and twenty percent (20%) of state-prison inmates is a drug offense.  The lower twenty percent (20%) in state prisons may be deceptive because although it is seemingly much lower than the fifty-one percent (51%) in federal prisons, it is still larger than any other single category of offense at the state level.

In the 1980s and 1990s, state and local governments struggled to keep up with prison overcrowding as crime rates escalated. It was during this time that private prison corporations emerged to take advantage of the capitalist ideal. Corrections Corporation of America (“CCA”), founded in 1983, is now the nation’s largest private prison company, and has become a multi-billion-dollar-a-year business with more than 60 facilities established across the country.  Meanwhile, the U.S. prison population has more than quadrupled since that time.  Many critics have labeled the emergence of these for-profit prison systems as the single greatest perversion of our criminal justice system.  In September 2013, In the Public Interest, an advocacy group and resource center on privatization and responsible contracting, issued a report exploring how these private prison corporations and their contractual policies with state and local governments have worked to undermine public policy goals of reducing prison populations and to create a “low crime tax” that penalizes taxpayers.

Essentially, these private prison companies make contracts with a state or local government, and enforce lockup quotas to ensure that their organization turn a profit.  If a state fails to incarcerate a certain amount of people and does not meet the quota obligation, it often must pay these for-profit prisons for the empty and unused beds.  In July 2010, Management & Training Corporation, the company that runs an Arizona prison, threatened to sue the state, claiming nearly $10 million in lost profits due to reduced prison population. The company argued that its contract with the state contained a lockup quota clause guaranteeing that the prison would maintain ninety-seven percent (97%) occupancy. After a renegotiation, the state still ended up paying around $3 million for the empty beds. These contractual obligations requiring prison beds to be filled are a common provision in a majority of these agreements throughout the country. In the Public Interest collected and analyzed sixty-two contracts between state and local jurisdictions and private prison corporations across the nation.  Of the 62 contracts, 41 contained similar quotas (roughly 66%). The occupancy requirements ranged from eighty percent (80%) to one hundred percent (100%), with many mandating at least ninety percent (90%).

These bed guarantee clauses and the functioning of these private prison corporations in general have negatively impacted the criminal justice system, state budgets, and society as a whole. CCA and GEO Group are two main private prison companies that have lent a firm hand in shaping criminal justice policies.  These companies have strongly advocated for policies such as mandatory minimum sentences favoring increased incarceration, they have supported laws such as California’s three-strikes law, and they have pushed hard for any policies geared towards continuing the “war on drugs.”  An argument can be made that these industries and their contractual requirements “create an incentive for policymakers to focus on filling empty prison beds, as opposed to pursuing long-term policy changes, such as sentencing reform, that could significantly reduce prison populations.” To achieve substantial growth in revenue, increased cash flow, and higher earnings per share, these companies rely on harsh and ineffective criminal justice policies. A statement from CCA’s 2010 annual report serves to highlight this point: “The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”  In short, because many states are currently obligated to continue incarcerating people regardless of crime rates and public safety needs, any positive efforts to reduce prison populations effectively forces state and local governments to hand over taxpayer dollars in order to ensure that these private prison companies capitalize on the misfortune of others.

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