Drop in Bucket

03.09.15 9:15 AM ET

For-Profit Prisons Are Bad, But the Drug War Is the Problem

Critics of for-profit prisons have a point. But they’re just a symptom of the over-criminalization epidemic that started with government.

In the last few years, as a surprisingly bipartisan backlash against American over-criminalization has grown, many justice reformers have noticed, and rightfully critiqued, private prisons. The stalwart American Civil Liberties Union (ACLU) is uncomfortable  with the idea of profiteering from mass incarceration and notes that the industry’s bread and butter is putting and keeping people behind bars. The Methodist and Presbyterian churches, and some Catholic dioceses, are starting to come out in opposition to the multibillion-dollar private prison industry. Liberal outlets like Think Progress and Alternet publish fearful exposes about these powerful, amoral corporations.  

And they have good points, these upset people. They note how private prisons held 128,195 people back in December 2010. That’s only about 5.5 percent of the total population behind bars (including county jails); but that number shot up 37 percent between 2002 and 2009. Critics point to Corrections Corporation of America (CCA), the largest private prison corporation, which employs eight lobbyists and have waged multimillion-dollar efforts to influence laws and politics.

CCA owns or runs 67 prisons and detention centers nationwide and made a profit of $195 million in 2014. And foes of private prisons have pointed to sometimes horrible conditions. One facility in Texas run by another private contractor had such subpar medical care that it provoked a massive prison riot last month.

Fundamentally, these good people proclaim that a private prison is a horrifying prospect. Making a profit from a racially skewed, draconian justice system is wrong!

Sure. There’s nothing wrong with protesting private prisons—provided, that is, that you don’t stop your protestations there. Or you don’t falsely believe that private prisons have created a new problem, instead of simply being a small percentage of an older, larger one.

The U.S. prison population began to explode after Ronald Reagan and an obsequious Congress decided to militarize the war on drugs. Suddenly narcotics were Public Enemy No. 1. The drug war created millions of criminals. Harsh mandatory minimum laws kept them behind bars longer. A federal civil asset forfeiture program directly incentivized law enforcement agencies to prioritize drug crimes, guaranteeing a steady supply of arrests. Between 1980 and 2011, the state and federal prison population increased from 316,000 to 1.5 million—with another 700,000 in jails. (Jails are usually locally run, and their populations consist of individuals serving under a year, or who are waiting for sentencing.)

Some for-profit prisons got into this devastating growth industry early—CCA was founded in 1983—but they have remained one small slice of a bigger, more insidious issue.

The blatant profiteering, and the obvious lobbying by some private prison companies is their only unique evil, perfectly legal though it may be. Otherwise, private prisons are essentially the same as public prisons. The same perverse economic incentives are present in both. Both employ special interest groups that work to keep tough-on-crime legislation in place.

According to the Bureau of Labor Statistics, there are 432,680 people employed as prison guards and jailers in the United States. For all of them to stay employed, the prison population can’t go down. Long before fancy private prisons rolled into town, regular old prisons served as lucrative employment opportunities. The state of California—with both its population and its prison population surpassing many countries’—is a convenient stand-in for this nationwide problem.

For decades, the 33,000 member-strong California Prison Guards Union—or, to use their cozier name, the California Correctional Peace Officers Association (CCPOA)—has worked its powerful magic to sabotage attempts at reforming the justice system. Its annual millions in union dues go toward some very harsh ends. The union often back politicians who will keep it happy with tough-on-crime stances. And to use only the most high-profile examples, in 2008, its $1 million gift helped sink Proposition 5, which would have lessened punishments for nonviolent drug offenders. In 1994, the union contributed $100,000 to help pass California’s now-notorious three strikes law, which put repeat nonviolent felons behind bars for decades, or even life. A decade later, the union reportedly spent up to a million bucks fighting an unsuccessful proposition that would have softened the cruelties of three strikes.

And though their rhetoric has softened with changing times, their very existence guarantees that they were pushing for full jails and prisons since the heady pre-militarized drug war days—when California’s prison population was a mere 22,000. And why wouldn’t they want a larger supply of “criminals”?

In 2011, the U.S. Supreme Court ruled that California prisons were unconstitutionally overcrowded, and a slow trickle of releases and the realignment of prisoners to county jails or house arrest began. At its peak population, California had 170,000 convicts living in spaces meant for 100,000. This meant extra overtime for guards who already earned sturdy starting salaries of $45,000 to $65,000. Who would want that gravy train to derail? The livelihoods of union members depend on keeping lots of people in under lock and key—just like employees in private prisons.

It sounds outrageous when you read that Corrections Corporation of America (CCA) has signed a billion-dollar contract with the Federal Bureau of Prisons to detain undocumented immigrants. But the Bureau of Prisons is a public institution. It exists to lock up people—in this case, migrants whose only crime was voluntarily crossing a political border. The CCA is coldly profiting from this reality because it can.

Other bad federal laws like the Controlled Substances Act perpetuate the war on drugs. Likewise, strings attached to federal dollars from Washington make states and localities pass similar laws. The amount of lobbying that private prison corporations are doing is alarming, but it isn’t the creator of our prison state. The fundamental problem is too many laws and too harsh punishments for nonviolent offenders.

After all, private prisons aren’t private—not really. They’re simply hired contractors doing government business. Arguing that someone else will do the government’s dirty work if it won’t still doesn’t let private prison companies off the hook when they profit from human misery. But it does underline the fact that they did not give birth to this over-criminalization crisis, and they don’t possess the real power.

What really needs to be changed are the laws that created nonviolent criminals and filled our prisons to bursting. By all means, object to private prisons and their profiteering. But also object to the public prisons that house the vast majority of inmates. Hand-wringing only over private prisons and profits is morally myopic. Only the state can lock you up, or permit another institution to do so and call it something other than a crime.