Anne C. Jefferson (firstname.lastname@example.org) is a J.D. candidate at the George Washington University Law School and Senior Articles Editor of the Public Contract Law Journal. She would like to thank Adam A. Marshall, Chung Kun “Kevin” Park, Judge Jeri K. Somers, and Bryan Byrd for their support and feedback.
In May 2012, a group of San Francisco Bay Area business leaders went to prison.1 It was the first Demo Day of Code.7370, a six-month coding program operating within the walls of San Quentin, California’s oldest penitentiary.2 The California Department of Corrections and Rehabilitation partnered with The Last Mile, a nonprofit organization, to run Code.7370 — a program in which inmates develop apps to pitch to potential investors.3 Since San Quentin bans internet access, inmates learn to code in an enclosed environment that “simulates a live coding experience.”4 Participating inmates have demonstrated an interest in learning more about programming and about building their own businesses.5 Code.7370, which has now expanded to three other California facilities,6 represents the possibilities in educational programming when state governments partner with private organizations.7 As more interest develops in evidence-based practices for rehabilitation programming in state prisons, programs like Code.7370 have a bright future.8
As private entities develop rehabilitation programming in new and creative ways, advocates and scholars continue to examine the legal, ethical, and economic implications of contracting management of entire prison facilities to private entities.9 The two most prominent corrections contractors, Corrections Corporation of America (CCA) — recently rebranded as CoreCivic10 — and GEO Group, earn about $3.3 billion in annual revenue combined. Together, they have contributed $10 million to political candidates since 1989 and spent almost $25 million lobbying government officials for policies favor- able to their bottom lines.11 In spite of the criticisms in the legal literature and in the news media, it is unlikely for such powerful interests to be completely removed from criminal justice administration by legislation or policy shifts.12 Nevertheless, to preserve the legitimacy of the criminal justice system, state governments must recognize that contracting out prison management to for-profit corporations is fundamentally incompatible with the liberty interests and rights of prisoners.13
State governments, which house more prisoners in privately operated facilities than the federal government,14 should retake control of their own prison operations and abandon prison management contracts in favor of individual service contracts, including contracts for rehabilitation programming.15 Private operation of state and local correctional facilities, a trend that grew alongside skyrocketing prison populations, does not reduce costs of corrections administration.16 Furthermore, the delegation of discretionary decisions over inmates’ lives, liberty, and property to corporations motivated by profit presents an ethical and political problem for state governments.17
The corrections industry may still pay a vital role. Private entities, like CCA and GEO Group, are well positioned with their nationwide presence to develop and test effective rehabilitation programming.18 State governments should be interested in the prospects of lowering recidivism rates through such programming to reduce criminal justice administration costs.19 States can work individually or form contracting cooperatives by region to offer schedule contracts to private entities, and in turn, private entities can offer the states an array of individual goods and services needed to run a prison.20 Special emphasis should be placed on contracts for effective rehabilitation programming to reduce costs and improve outcomes for individual inmates.21
This Note proposes a two-fold alteration in state government corrections contracting practices. First, state governments should abandon the practice of contracting for prison management. Second, state governments — individually or cooperatively — should instead develop schedule contracts for individual goods and services, particularly emphasizing contracts for rehabilitation programming. Part II of this Note examines the two competing notions of what the fundamental purpose of prison is — retribution or rehabilitation — as well as the current practices in rehabilitation programming in U.S. prisons. Part III describes the trend toward privatizing management of state prison facilities and the persistent problems with contracting for prison management. Part IV proposes that state governments should abandon contracting for prison management and instead contract with private entities to procure individual goods and services needed to operate prison facilities. States should develop a schedule contracting practice — either individually, cooperatively with other states, or by utilizing the U.S. General Services Administration (GSA) schedules — to continue contracting with expert private entities for the provision of goods and services, particularly emphasizing the development of evidence-based best practices in rehabilitation programming.
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