Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration

At the Brennan Center, I focus on research examining how funding decisions helped incentivize more arrests, more prosecutions, and, ultimately, more punishment through incarceration or community corrections such as probation. With almost one in 100 American adults locked away behind bars, our incarceration rate is the world’s highest—eight to nine times that of many European countries. Mass incarceration, and the money to pay for it, came from a shift in public policy in the mid-1980s that viewed imprisonment as a primary tool for fighting crime. I had always been interested in how our government delegated such a core governmental responsibility—the running of our nation’s prisons, jails, and detention centers—to private firms, and this work grew out of that research on how funding drives incentives that perpetuate more people behind bars. I wanted to look at the history and write about how private firms become so firmly entrenched in corrections and detention in America. The book also examines the broader prison-industrial complex that relies on a vast infrastructure of financial incentives creating significant hurdles to dismantling a mass incarceration system on which the nation has come to rely.

In terms of research, I knew that I wanted to tell this story from multiple perspectives. This led me to interview people who had far different experiences with the justice system as well as opinions on the value or lack thereof of privatization. I thought it was important to interview officials who had worked for private prison firms and those who worked for government corrections, and especially to speak to impacted people, individuals who were formerly incarcerated as well as people who were still behind bars when I interviewed them. Gaining access to private prisons and private immigration detention centers posed the most challenging aspect of writing this book. I spent so many days calling and emailing private prison firms, state departments of corrections, the US Marshal’s Service, and ICE with no response or, worse, hearing that I could not visit these facilities. At one point when I found it near impossible to visit privately managed immigration detention centers, I spoke to colleagues about whether I could stand around in a detention center parking lot to speak to families who were visiting people inside the facilities. I even looked into whether that would be trespassing. Fortunately, I never had to succumb to that tactic.

In writing this book, I wanted to examine an industry that had intrigued me for years. How different are private prisons and private immigration detention centers? And it’s a question that policymakers have also wondered about. For example, in an early congressional hearing (1985) on the private prison industry, a Kentucky congressman asked an official who worked at a private prison firm, “What do your people wear? Do they wear uniforms?” I often bring up this example because I think it illustrates the initial confusion about what it meant to outsource this core governmental duty to private firms.

Both institutions (public and private) have struggled with corrupt corrections officers and human rights violations at some facilities. Yet there are some government jails and prisons as well as private ones that operate without these problems. In Chapter 9 of my book, I detail the issues that have plagued both industries because it’s important to understand that the problems with prisons in America cut across all facilities and are common to both private prisons and governmentally managed ones. There are some private prisons that operate better than their government counterparts, and the reverse is also true. Studies comparing the cost savings and quality of public versus private prisons are plagued by uncertainty. Prison researcher Gerald Gaes has summed up the aggregate findings of studies comparing private and public prisons well: “The current weight of the evidence on prison privatization in the United States is so light that it defies interpretation.”

Private prison firms are certainly taking steps to diversify beyond managing just prisons, jails, and detention centers. In fact, they have been reading the tea leaves for many years that individuals under some sort of correctional supervision in the community are growing while prison populations are very slowly starting to shrink. To remain financially sound, some of the largest private prison firms have bought companies that provide electronic monitoring services, residential treatment centers such as drug treatment facilities, and even transportation services such as companies that transport incarcerated individuals between courthouses and prisons and between different prison facilities.

Firms that mange prisons and detention centers have also gained a foothold in countries outside the United States. For example, England, Wales, and Australia house more than 18 percent of their prison population in private prisons. Some countries have also started to rethink the relationship between government corrections and private firms. Even though we have relied on the private sector to manage prisons for decades, our governments (state and federal) have never asked these corporations to reduce recidivism rates more than the government has been able to do. After I published Inside Private Prisons, I received a grant from the Pulitzer Center on Crisis Reporting to visit two relatively new private prisons: one in Australia and one in New Zealand, both of which operate within performance-based contracts. What this means for those contracts is that if private prison operators do better than government-run prisons at reducing recidivism, they receive an annual bonus. Is this replicable in America? Are there lessons learned from the experiments underway in Australia and New Zealand?

And in terms of unanswered questions, there are some critical gaps in the law around accountability, transparency, and constitutionality when it comes to the privatization of corrections. How much responsibility can governments delegate to private operators? For example, can private corrections officials issue disciplinary violations that could increase incarcerated individuals’ length of stay behind bars? Can private firms pay incarcerated workers and immigrant detainees far below minimum wage to perform work inside and outside their facilities? Are private firms required to comply with public information requests? Even if they do comply, what are they legally authorized to redact? Some of these issues are currently being litigated, but our country has never truly grappled with the myriad issues around how private prison firms operate in America.