Closing Private Prisons—California’s Bold (?) Pushback on the Corporate Warehousing of People

California has done what the federal government refuses to do: stop the incarceration of inmates for private corporate profit. With the passage of Assembly Bill (AB) 32, signed into law on October 11, 2019, California governor Gavin Newsom fulfilled his January 7, 2019, inaugural address promise to fight against overincarceration and overcrowding in California’s prisons and to “end the outrage of private prisons once and for all.”

AB 32 adds section 5003.1, which says that on or after January 1, 2020, the California Department of Corrections shall not add or “renew an existing contract with a private, for-profit prison facility located in or outside of the state” to the California penal code. The new law also provides that no state prison inmate shall be housed in a private, for-profit prison facility after January 1, 2028.

Background

One key to real prison reform is through legislation advanced by politicians who see their roles as advancing equitable reform. The process is not always in a vacuum, as is the case in California. Rather, it’s a continuum of court interventions, over time, that stop government from running amok by filling up its prisons, resulting in the mass incarceration of its people.

In 2011, the US Supreme Court mandated a population limit for California prisons as a result of Brown v. Plata. The Supreme Court’s ruling—with federal law jurisdiction—had titanic impact on California’s corrections policies and procedures.

As I wrote in my post “AB 109—Where Are You Now?” Justice Kennedy, writing for the majority in Plata, “included a list of factual findings of deficiencies in the California prison system. These deficiencies made the level of serious overcrowding in California’s thirty-three prisons the primary cause of a violation of the Eighth Amendment’s ban on cruel and unusual punishment.” Justice Kennedy’s findings, based on the record of expert findings, included “inadequate medical screening of incoming prisoners, delays in or failure to provide access to medical care, untimely responses to medical emergencies, and a lack of quality control procedures, including lack of physician peer review, quality assurance, and death reviews.”

The Significance of the Plata Decision

The Plata decision ordered California to reduce the number of people it incarcerates and to reduce its prison population by thirty-three thousand (the prison population in California in 2010, the year before the Plata decision, was 165,062) . The decision led to California’s historic realignment process that continues today. The intent of the realignment process was to help the state reverse decades of overreliance on incarceration. That’s a nice way of saying, “Hey, California, you’ve got a problem with mass incarceration.”

AB 109: Public Safety Realignment

As I wrote previously,

The mandate of the Plata decision required California to undergo a dramatic transformation of its prison system. The decision ordered California to reduce its prison population to 137.5 percent of design capacity by June 2013—a reduction of roughly 40,000 inmates within two years. Assembly Bill 109 (AB 109) went into effect on October 1, 2011.

It worked. California’s prison population has stabilized as a result of the implementation of Plata/AB 109. Since 2017, California’s prison population has hovered at about 115,000 inmates—just below the Plata-mandated target of 137.5 percent of design capacity. Plata/AB 109 changed the prison population in California; the state reached the eighteenth lowest incarceration rate in the country with 331 per 100,000 people sentenced to a year or more behind bars in 2016. That equated to 120,340 people in California’s state prisons in 2016, with about 5,000 fewer inmates in California today.

The Federal Private Prisons Story: Trump Nixes the Obama Administration’s 2016 Directive to Close Private Federal Prisons

As I wrote in “The Resurrection of Private Prisons,”

In August 2016, the Obama administration announced its plan to phase out for-profit federal prisons. According to an August 18, 2016, memo written by [then] deputy attorney general Sally Yates (who was later fired by President Trump for her refusal to support his Muslim travel ban), “They [private prisons] simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”

Yates’s memo [to the acting director of the Federal Bureau of Prisons] concludes with this directive:

For all these reasons, l am eager to enlist your help in beginning the process of reducing—and ultimately ending—our use of privately operated prisons. As you know, all of the Bureau’s existing contracts with private prison companies are term-limited and subject to renewal or termination. I am directing that, as each contract reaches the end of its term, the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.

The Trump Administration Resurrects Private Prisons

As I explained in “Pork Bellies and Private Prisons,”

In a February 24, 2017, editorial, the New York Times squarely confronted Donald Trump’s policy on private prisons. President Trump views private prisons through the lens of profits and manipulated attorney general Jeff Sessions to scrap the Obama administration’s order to phase out the use of private prisons. According to another 2017 New York Times article, Jeff Sessions’ memo on the subject “directed federal prison officials to keep using the private prisons. He also withdrew a policy set out last August by Sally Q. Yates . . . to phase out the use of private facilities.”

The Second Trump Shoe Drops on Private Prisons

I continued in that post:

Trump’s [2018] tax bill is a catalyst for bolstering real estate investments to grow private prison firms. Say what? According to a December 28, 2017, report in the Guardian, “individual investors in US private prisons are poised to collect their most lucrative earnings ever thanks to changes in the tax code . . . continuing what has been a banner year for the industry since the 2016 election.” The key components to this gift to an industry that should be quashed out of existence are real estate investment trusts (REITs).

Investopedia defines a REIT as “a pool of properties and mortgages bundled together and offered as a security in the form of unit investment trusts. Each unit in an REIT represents a proportionate fraction of ownership in each of the underlying properties.” In other words, smaller investors earn higher returns generated by real estate properties by participating in REITs.

I don’t get it. The Guardian quotes Lauren-Brooke Eisen, an attorney at the Brennan Center for Justice, as saying “prison companies have essentially argued that renting out cells to the government is the equivalent of charging a tenant rent, thus making such business primarily a real estate venture.” This loophole logic makes the US government a slum lord of the worst kind. There is no greatness in a country’s capitalizing on prisoners, minorities, people retained in immigration-hell holds, and all the others who the Obama administration took affirmative steps to shield and protect. An eerie illness is permeating the current administration, which is rewarding investors from the misery of others.

The current president’s financial interests are driven by inhumane indifference—be it in his policies and statements regarding immigration, healthcare, the safety of the nation, the environment, consumer protection regulations, or a taxation policy that hurts the middle and lower classes. The Guardian hits the nail on the head in this instance in what I agree are Trump’s motivations about private prison investment opportunities. Trump is motivated by what’s good for his business cronies and rich constituents. He’s bent on scratching the backs of the wealthy with one hand while breaking the backs of the powerless with the other. The Guardian’s report includes this:

The tax bill gift to private prison investors [a 25 percent reduction in tax from 39.6 to 29.6 percent] mirrors the cosy relationship Trump has had with the industry overall. After years elsewhere, in 2017 the Geo Group [an organization owning an aggregate of more than 80 percent of private prison beds] hosted its annual leadership conference at the Trump National Doral golf club in Miami. The company also gave nearly half a million dollars to Trump through his inauguration committee and Super Pacs. Shortly thereafter, it secured the administration’s first contract for an immigration detention center, a deal potentially worth millions.

Conclusion

Politicians stir the vats of populations of incarcerated people like a witch’s brew. Something’s always cooking, but don’t look too closely at the ingredients.

The federal government’s perspective of private prisons—the reversal of the Obama administration’s directive to end relationships with profiteers’ feeding on the anguish of incarcerated people—reflects the Trump administration’s policy of indiscriminately undoing anything Obama. Trumps adds the predictable incentive for an investor feeding frenzy for a profit opportunity, without regard to inmates’ housing, civil rights, and living conditions. How disgusting.

I always welcome your comments.

Image courtesy of 123rf.com.