Pros And Cons Of Private Prisons

The living environments at many private prisons deprives many inmates of basic needs. For example, “[o]ne way for-profit prisons to minimize costs is by skimping on provisions, including food.” In fact, a psychiatrist who investigated a private prison in Mississippi “found that the inmates were severely underfed and looked ‘almost emaciated.’” During their incarceration, prisoners dropped anywhere from 10 to 60 pounds.”

Numerous reports detail startling examples of deplorable prison conditions. At one Mississippi prison, “an otherwise healthy inmate had to have a testicle removed after prison officials repeatedly denied his request for medical help when it swelled to the size of a softball from cancer.” Additionally, some prisoners live in “filthy quarters without working lights or toilets, forcing them to

defecate on Styrofoam trays or into trash bags.”
Furthermore, in a comprehensive report, Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison System, the American Civil Liberties Union details shocking conditions of confinement at one private prisons:
At Reeves County Detention Center in late 2008 and early 2009, after a prisoner died from inadequate medical care, prisoners organized uprisings that got so out of control they ended with prisoners setting fire to the facility. Then, in the summer of 2013, prisoners started a petition to protest crowded conditions, bad food, and lack of medical care. When prison staff learned of the petition, they reportedly sought out the protest organizers, tear-gassed their dormitories, shot at them with rubber bullets, and then locked in isolation cells both the organizers and bystanders who objected to being tear-gassed.

In addition, a class-action lawsuit Walnut Grove Youth Correctional Facility asserted that “children there are forced to live in barbaric and unconstitutional conditions and are subjected to excessive uses of force by prison staff.” These conditions are traceable to the demand upon private prisons to consistently operate at nearly maximum capacity. As one commentator notes, “[s]tates sign agreements with private prisons to guarantee that they will fill a certain number of beds in jail at any given point,” and “[t]he most common rate is 90%, though some prisons are able to snag a 100% promise from their local governments.” Because of these contracts, “the state is obligated to keep prisons almost full at all times or pay for the beds anyway, so the incentive is to incarcerate more people and for longer in order to fill the quota.”

III. PERVERSE INCENTIVES THAT MOTIVATE PRIVATE PRISON POLICY [ADPC]

A. PROFIT MAXIMIZATION

B. COST CUTTING

C. EXECUTIVE AND BOARD ENRICHMENT

IV. OUTLAWING THE PRIVATE PRISON MODEL
Democratic Presidential Candidate Bernie Sanders, stating that “[s]tudy after study after study has shown private prisons are not cheaper, they are not safer, and they do not provide better outcomes for either the prisoners or the state,” recently introduced legislation that would effectively ban private prisons.
A. THE LEGISLATION
Titled the “Justice is Not for Sale” Act, the bill seeks to prohibit federal and state governments from entering into contracts with private prisons in the next three years. The Act also seeks the following:
• Reinstatement of federal parole guidelines for eligible prisoners to be released prior to completing their sentences.
• Eliminating the requirement that Immigration and Customs Enforcement meet a 34,000 bed quota, which Sanders argues results in “the detention and abuse of undocumented immigrants to the financial benefit of prison corporations like GEO and CCA.”
• Regulating video and telephone services in correctional facilities, which Sanders claims “overcharge inmates to the benefit of staff and corporate entities.”
Sanders’ proposal should be commended for drawing attention to the fact that private prisons achieve none of the objectives upon which their existence is based, and that inmates suffer substantial and ongoing abuses in such prisons.

As a practical matter, however, given the current state of partisan rancor and the existing contracts between the federal government and private prisons, it is unlikely that Congress will pass Sanders’ proposal. At the same time, Sanders’ legislation underscores the need for systemic reforms to ensure that private prisons operate with greater transparency and accountability, and to safeguard inmates from violent and inhumane prison environments.

B. NEW PROPOSAL FOR ERADICATING PRIVATE PRISONS

Congress should consider several proposals to address the documented problems with private prisons, including: (1) ending the War on Drugs; (2) creating a federal agency to oversee the administration of private prisons; (3) afford private prisoners limited constitutional protections; and (4) create a statutory cause of action against employees of private prisons for conduct that violates constitutional rights.

A. END THE WAR ON

DRUGS

The “War on Drugs” is largely responsible for creating overcrowding in prisons at the federal and state level

B. CREATE STRICTER AGENCY OVERSIGHT
Based on the substantial evidence of abuse and inhumane treatment at private prisons, corporations like CCA should be subject to oversight by a federal administrative agency. This would enable the federal government to establish standards governing the administration of private prisons, including maintenance of facilities, treatment of prisoners, and financial viability. In doing so, the agency could increase transparency and accountability, and more readily uncover instances of prisoner abuse.
C. AFFORD PRIVATE PRISONERS LIMITED CONSTITUTIONAL PROTECTIONS

In Minneci v. Pollard, the United States Supreme Court, by an 8-1 vote held that federal inmates may not recover damages for alleged Eighth Amendment violations that were committed by private prison employees, even where whose employer is under contract with the federal government. The Court’s rationale was based in substantial part on the fact that prisoner have alternative remedies under state law, thus rendering damages for alleged constitutional violations unnecessary. Writing for the majority, Justice Stephen Breyer explained that “state law imposes general tort duties of reasonable care (including medical care) on prison employees in every one of the eight States where privately managed secure federal facilities are currently located.”
To an extent, the Court decision to not permit such suits makes sense, particularly given that inmates may sue prison officials in state court for alleged violations. One problem, however, as recognized by Justice Ruth Bader Ginsburg in her dissent, is that state law may not always provide a sufficient remedy for misconduct by private prison officials. Furthermore, Justice Ginsburg correctly noted that suits for constitutional violations, which are available for inmates in federal facilities, should not be denied to those who by chance are placed in a private prison.
Ginsburg also noted that the majority failure to sufficiently consider deterrence as a reason to permit inmates to sue prison officials. Specifically, Respondent’s suit sought “damages directly from individual officers,” and thus “would have precisely the deterrent effect,” that was central under Bivens to authorizing suits by citizens against federal officials.