Public Contract Law Journal

Rehabilitating Prison Contracting: States Must Reclaim Prison Management & Empasize Inmate Rehabilitation through Utilization of Schedule Contracts for State-Run Prison Procurement

by Anne C. Jefferson

Anne C. Jefferson ( 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.

I.  Introduction

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.” 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.

II.  Rehabilitation Programming Continues to be Underutilized in Prisons across the United States Dispite its Potential to Decrease the Costs of Prison Management

Rehabilitation has not always been the goal of incarceration. Even today, some would argue that retribution is the primary purpose of imprisonment.22 Nevertheless, rehabilitation programming is essential for releasing individual inmates from prison with a hope of remaining out of prison.23 This section explores the competing ideas of retribution and rehabilitation and examines the benefits, as well as the shortcomings, of different types of rehabilitation programming used in prison facilities across the United States.

A.  Changing Notions of Incarceration’s Fundamental Purpose: Retribution or Rehabilitation?

The history of prison privatization highlights the shifting social and cultural understandings of the purpose of incarceration between two poles: retribution and rehabilitation.24 The retributive approach understands incarceration merely as the means through which the state punishes the inmate, while the rehabilitative approach prioritizes reform of the incarcerated individual — focusing on educational and vocational training programs.25 In the mid-nineteenth century, most people thought that prisons ought to emphasize retribution.26 Then, with the Progressive Era beginning in the 1890s, the focus shifted toward rehabilitation.27 The 1970s and 1980s saw the focus shift back to retribution as the war on drugs developed and states and the federal government implemented harsh sentencing policies, even for low-level drug offenses.28

Recently, the Department of Justice’s Smart on Crime Initiative, which values fair enforcement and reentry assistance, indicated a return to a system at the federal level that values rehabilitation above the mere retributive function.29 Individual states have experienced this shifting back and forth.30 For example, Texas recently emphasized rehabilitation and has already seen benefits in cost reduction and lower recidivism rates.31 In fact, with its emphasis on rehabilitation, “more [Texas] offenders are being released to parole supervision, [and] fewer are committing new crimes.”32 Individual states, therefore, can and should emphasize rehabilitation over retribution because rehabilitation can substantially reduce recidivism rates, possesses significant public support, and represents the morally right way to treat incarcerated individuals.33 Rehabilitation within a fundamentally retributive system can, and should, provide inmates education, treatment, and skills training in order to reduce recidivism and save costs for state governments in the long run.

A.   Rehabilitation Programming Is Essential for Cutting Costs and Improving Outcomes

Rehabilitation programming is essential for inmates to stay out of prison once they are released.34 Cuts made to rehabilitation programming leave individual inmates without the skills and resources needed to reduce their chance of reoffending.35 For example, a lack of substance abuse treatment programs causes individual inmates suffering from drug or alcohol abuse to leave prison without treatment, leading to recidivism.36 Similarly, a lack of basic programming providing educational or vocational skills decreases inmates’ chances of finding a job, also leading to recidivism.37

1.   Rehabilitation Programming Takes Many Forms

Rehabilitation programming has developed and expanded to encompass traditional educational programming as well as other creative options that emphasize other life management skills. Perhaps the most traditional approach, educational and vocational programs have a long history within many prisons across the United States.38 These traditional options include GED programs, advanced education, and job skills training in fields such as electric work and carpentry.39

Some facilities, however, have provided educational and training approaches with creative twists — e.g., The Last Mile’s coding program, which helps in- mates develop marketable job skills outside of the more typical manual labor arenas.40 Another creative approach is the cosmetology program at California’s Valley State Prison, a male-only institution.41  The program — “boast[ing] a 100% graduation rate”— provides the same certification to inmates as matriculating cosmetology students receive by attending similar programs outside of prison.42

Other types of rehabilitation programming emphasize the skills and resources needed for inmates to reintegrate into society once they are released.43 These types of programs teach inmates about managing personal finances, finding housing and applying for assistance, and the importance  of managing health and nutrition.44 Other programs have aimed to help inmates overcome cognitive issues, develop problem-solving skills, and improve self-control.45 Other public facilities have implemented programming to address coping skills, such as how to handle stress and improve self-esteem.46 Mentoring programs that connect inmates with individuals from whom they can seek help on the outside have also been implemented.47

One particular rehabilitation program teaches inmates mediation skills and thereby, focuses on “emotional development and decision-making skills.”48 Developing these skills helps prisoners transition back to their communities because they are better able to resolve both conflicts they have with others and conflicts they witness between others in the community.49 Developing these skills in inmates also benefits the prison setting itself because inmates can be engaged as mediators to resolve disputes among their fellow inmates.50 This not only gives inmates a greater sense of usefulness in maintaining the community in the prison but also helps alleviate the administrative burden of resolving conflicts among inmates.51

One other creative approach merits examination; some evidence suggests that improvements to prison food can significantly impact inmates’ behavior and the likelihood of recidivism.52 Prison facilities generally have cut food costs to below $2.50 per day per inmate,53 and many inmates eat mostly soda, chips, and candy items from the commissary as a result.54 The reasoning behind nutrition-based rehabilitation is that increasing an inmate’s overall health and instilling more nutritious eating habits may help inmates make better behavioral choices both in and out of prison.55 Although the connection may appear tenuous, more research may actually demonstrate positive results when inmates are provided, at the very least, more nutritious food.56

2.   Additional Evidence-Based Approaches Are Needed to Determine the Optimal Efficacy of Prison Rehabilitation

Researchers have spent decades analyzing rehabilitation programs and their effectiveness, but it remains unclear whether particular types of programs, or particular modes of program administration, are more effective than others.57 The literature identifies one key issue: there simply is not enough educational rehabilitation programming in U.S. prisons, which in itself, creates a barrier to gathering evidence on the effectiveness of these programs.58 Budget cuts have also decreased the prevalence of occupational training programs, and external factors such as employment discrimination make it difficult to determine the programs’ actual efficacy.59

Although work and education programming has been common, “the research evidence on whether this treatment modality reduces recidivism is limited and of low quality.”60 Thus far, some particular rehabilitation methods have proved more effective than others; some researchers have hypothesized that “rehabilitative efforts will work better if they have clear, concrete objectives, their contents are structured and there is focus on activity and the acquisition of skills.”61 To be effective in this way, individuals running the program need to possess excellent interpersonal skills and foster community with inmates while setting clear boundaries.62 Additionally, “it is vital to adapt intervention strategies to accommodate diversity amongst participants with respect to age, gender, ethnicity, sexuality, language, culture[,] and learning styles,” which may not require different program methods but simply “modifying their delivery or presentation to maximize engagement and participation.”63

For these reasons, there is immense need for development of evidence- based best practices to implement effective rehabilitation programming to reduce reoffending and reentry rates across the United States. Failing to recognize that prison time represents formative years in an individual’s life deprives state governments of the opportunity to help inmates shape their lives for the better.64

III.  As Prison Privatization Has Increased, Persistent Financial & Ethical Problems Remain

As prison populations increased over the last thirty years, the financial burden of prison construction and administration overwhelmed many state governments, leading to a trend toward privatization of prison management in many states.65 Scholars have criticized the operation of privately managed prisons at the state and federal level for decades.66 Major critiques include: (1) privatization does not actually reduce costs and (2) the profit motive model of private companies conflicts with the goals of ensuring inmate safety and protecting their constitutional rights.67 Furthermore, private exercise of discretionary decision-making regarding inmate treatment and punishment is problematic both morally and legally.68 This section explores these recent developments in prison administration in the United States and emphasizes two common criticisms: (1) the lack of evidence that contracting prison management actually serves cost reduction goals69 and (2) the legitimacy issues raised by delegating inherently governmental functions involving discretionary decisions about inmates’ lives and liberty.70 Contracting prison management to corporations, which benefit from an ever-increasing prison population, conflicts with the goals of rehabilitation.

A.  Privatization of Prisons at the State Level Has Expanded over the Last Thirty Years

Since the early 1980s, prison populations have skyrocketed as states and the federal government implemented harsh sentencing policies, such as three strikes rules and mandatory minimum sentencing.71 While rapidly increasing prison populations forced state and local governments to explore ways to feed and house inmates in the most cost effective way possible, “[e]ntrepreneurs canvassed for business in a climate which was receptive to their campaign.”72 In the early days of the U.S. criminal justice system, the desire for cost effectiveness reflected a belief that prisons ought to pay for themselves.73 Unsurprisingly, such a perspective gave rise to convict leasing systems and the use of inmates in industrial facilities to produce goods sold on behalf of the prison.74

Private corrections facilities were common in the United States in the nineteenth century, but their use fell out of favor in the early twentieth century as grave abuses — previously hidden behind the prison gates — came to light and provoked public outcry.75 Several decades later, privatization again began in a piecemeal fashion with individual service contracts to run food and health services in prisons.76 Then, in 1984, the first fully privately operated modern prison opened.77 An increased willingness to contract out government functions and rising prison populations meant that operations contracts took off as a common method of corrections contracting.78

B.   The Model of Prison Privatization Carries Significant Shortcomings

The recent trend toward prison privatization promised efficiency and cost- effectiveness.79 However, as more and more state governments have privatized their correctional facilities, costs have not decreased.80 Meanwhile, states have delegated sensitive decision-making with life-altering consequences for individual inmates’ lives, liberty, and property.81

1.   There Is Little Evidence that Privatization of Prison Management Has Decreased Costs

As in other areas of government contracting, the assumption driving the general move toward privatization is that private companies can do what the government does in a more efficient and cost-effective manner.82 However, the U.S. Government Accountability Office found in a 1996 study that “studies comparing costs of private and public prisons ‘do not offer substantial evidence that savings have occurred’ under privatization contracts.”83 In the prison context, it has been particularly difficult to determine whether this assumption holds up, due in part to the differences in how private and public facilities operate.84

In most prison operation contracts, payment is based on a per diem rate, which may fluctuate depending on the facility’s overall capacity.85 But direct comparisons of the per diem costs at a public facility and at a private facility are likely misleading.86 In some cases, contractors can choose the inmates they take, so they choose the least costly, i.e., non-violent and healthy inmates, enabling them to lower their per diem rate and make it appear as though the contractor is able to do the same work for less.87 Also, direct  cost comparisons do not account for disparities in services available in prisons or the training given to the guards and other staff.88

Furthermore, cost comparisons are also misleading due to the indirect costs of prison contracting on a locality’s or a state’s current and future budget, such as contract preparation costs; potential financial liabilities; tax benefits provided to the corporation; potential need for public assistance for the families of low-paid private prison guards;89 and the future costs of recidivism (including the crime itself, law enforcement, prosecution, and imprisonment).90 Additionally, these per diem costs do not include the costs of monitoring the prison’s operations and compliance with relevant contract terms.91 Therefore, it may be difficult to determine, even with dedicated research and analysis, whether private facilities reduce costs for the state.

Even if the data could show that total costs to state and local governments are lower with privately managed prisons, the goal of cost-effectiveness should not be the only consideration of what constitutes effective prison operations. While cost effectiveness in prison administration is a valid concern and addresses the problems with short-term economic policies, bare cost effectiveness ignores long-term financial issues raised by high recidivism rates.92 The market-driven business model and its tendency to cut costs — and thus reduce the quality of the prison environment — is fundamentally incompatible with the idea that corrections environments should be effective and humane.93 By valuing efficiency above all else,94 we “neglect[] a range of important values at stake in the corrections context.”95

2.   Privatization Has Led to Increased Delegation of Discretionary Decision-Making, Undercutting the State’s Role in Protecting the Lives, Liberty, and Property of Incarcerated Individuals

Individual prison management contracts can specify, with low or high particularity, minimum conditions — such as living standards, rehabilitation programming, usage of force, and when an inmate’s conduct merits extension of the sentence — but in practice, individual decisions are made by the contractor’s employees.96 Indeed, operating a prison facility requires such daily decision-making at all levels of the institution:

[A]dministrators must develop policies regarding the provision of medical care, standards for administrative classification, and the procedures for inmate discipline. Corrections officers who interact directly with inmates must not only implement these policies in a variety of settings, they must also make on-the-spot judgments about inmates and their behavior — determining whether they require medical attention, represent a danger to themselves or others, or merit disciplinary action, administrative segregation, or even the use of force.97

These are decisions about the lives, liberty, and property of the inmates98 — decisions that are made out of the public eye.99

In addition to the general lack of state or public oversight of discretionary decision-making in privately managed facilities, the profit motive of a private entity is fundamentally opposed to effective prison management.100 While an understandable, legitimate interest pursued by most private entities, the profit motive inevitably affects decision-making by individual employees, as well as corporate policies, given the “firm’s bottom line.”101 Such entities — typically operating with little state oversight — have an incentive to cut costs on essential items such as guard training and salary, leading to high turnover rates.102 This results in inexperienced guards being placed in difficult situations and making possibly ill-advised decisions.103

C.    The Profit Motive Underlying Privately Run Prisons Conflicts with the Goal of Rehabilitation

Corrections corporations demonstrate their profit motive and related interest through their strong lobbying efforts for harsh sentencing policies.104 The profit motive suggests that prison management corporations have an interest in ensuring a filled facility.105 There is little or no incentive, therefore, for rehabilitative programming to be effective in privately run facilities.106

An incarceration model that rewards private entities for keeping inmates in prison and making them more likely to return to prison once released is fundamentally incompatible with justice and undercuts the legitimacy of the criminal justice system.107 A significant threat to accountability and rule of law arises when corporations with a profit motive make decisions about inmates’ lives, liberty, and property: “[u]nder these circumstances, the quality and character of public services will depend on the ad hoc judgments of private actors, who may or may not be motivated by public concern.”108

IV.  Abandoning Prison Management Contracts & Emphasizing Contracts for Rehabilitation Programing through Development of Schedule Contracts Can Lead to Innovation in Evidence-Based Best Practices that Decrease Costs

This Note proposes a two-step solution to the problems of prison privatization and soaring incarceration and recidivism rates. States contracting for prison management must abandon this practice in favor of contracting for individual services, which private entities are well-positioned to provide. To make this shift in contracting practice, state governments should — either individually or cooperatively — develop a schedule contracting practice to streamline the potentially burdensome change to individual contracts and   to make needs clear to contracting entities. States should focus their corrections contracting practice on individual service contracts and should emphasize contracts to develop and implement effective evidence-based rehabilitation programming. After explaining the necessity of shifting contracting practice from management to individual services, this section examines the methods for schedule contracting and cooperative contracting that state governments can utilize to promote efficiency and clarity in the proposed contracting practice.

A.   State Governments Should Abandon Prison Management Contracting and Instead Contract with Private Entities for Procurement of Goods and Services

First, and foremost, states should phase out prison management contracts. The trend toward prison privatization over the last thirty years represents a willingness to cut costs in the short term regardless of non-economic costs or increased economic costs in the future.109 Even so, it remains unclear whether state governments save money in the short term or in the long term.110 Private management of prisons is problematic because it involves the state handing over decisions about incarcerated individuals’ lives and liberty to entities driven by a profit motive.111 For these reasons, private management of prisons also undermines the legitimacy of the criminal justice system,112 and state governments should abandon the practice.

Rather than investing in prison management contracts, state governments should maintain their relationships with corrections contractors by contracting for individual goods and services. As this Note has repeatedly emphasized, contracting for rehabilitation programming has the potential to significantly improve the outcomes for individual inmates — as measured by recidivism rates — and in turn, decrease corrections costs in the long term. As explained above, social scientists and criminologists studying rehabilitation programming practices lack a clear understanding of what types of programs are most effective and how to most effectively administer programs.113 Nevertheless, rehabilitation programming is essential for reducing recidivism because different types of programs provide individual offenders with substance abuse treatment, education, life management skills training, and job skills training — all of which make reoffending less likely.114

Such development and innovation can occur with involvement of private entities and long-term monitoring of the impact of particular types of rehabilitation programming. Corrections corporations are well suited to develop innovative solutions for effective rehabilitation programming due to their experience with corrections across the United States.115 Both CCA and GEO Group have been contracting with state governments for decades116 and implementing various rehabilitation programming in their facilities.117 These two entities have direct experience with providing rehabilitation programming to inmates in different regions and facility types.118 More rehabilitation programming is needed, and thus far, state governments have been unable to provide it on their own.119

Contracting with private entities may enable states to provide more programming because contracting for effective programming could cut other costs in the states’ budgets in the long-term — such as policing, court administration costs, and general prison operating costs if fewer inmates need to be housed and cared for.120 While many rehabilitation approaches implemented by state governments are either ineffective or untested, corrections corporations likely have the infrastructure and skill needed to assess current approaches.121 Because of the financial and ethical-political problems posed by contracting prison management, state governments must resume operating their own prison facilities and rely on corrections contractors for individual services, especially rehabilitation programming.

At the state and federal levels, rehabilitation programming takes a variety of forms, some of which private and state entities currently provide through contracts. For example, the Federal Bureau of Prisons already contracts for rehabilitation programming through individual field offices, including contracts with local colleges and universities to provide accredited educational programming to inmates.122 Similarly, California has also contracted with community colleges to provide educational opportunities for inmates.123

By contracting for a variety of rehabilitation programming in state-run prison facilities, state governments can evaluate the effectiveness of particular programming options and work to reduce recidivism rates. The state level  is an “experimental breeding ground[] for new programs” because “[i]ndividual state prisons seem to be better equipped to adapt to the successes and failures of new programs and suffer from less bureaucracy.”124 Short-term outcomes, such as a decrease in the frequency of violent conflicts between inmates or with guards, and long-term outcomes, such as reoffending and re-entry rates, are key parameters for assessment. Innovative solutions for rehabilitation programming are needed, and some unexpected approaches have appeared, thus far, to be successful — e.g., the Last Mile’s coding program and Valley State Prison’s cosmetology program.125 Because of the various programs at work across the country and because of the lack of concrete evidence on efficacy, there is an immense need for state governments to have access to the development of new techniques as well as data about program effectiveness.126

B.   State Governments Should Utilize Contract Schedules for the Goods and Services Needed to Operate a Prison Facility, Including an Array of Rehabilitation Programming

Once state governments regain control of their prison facilities, corrections corporations should be invited to become involved through contracts for individual services, which could include food service, healthcare, and most importantly for this Note, rehabilitation programming. State and local governments may achieve success with innovative approaches to new contracting challenges because they can quickly adapt to new circumstances.127 This section proposes that state governments use contract schedules to procure goods and services for the operation of state-run prison facilities. Next, this section outlines how contract schedules can facilitate procurement of rehabilitation programming in state-run prison facilities. Finally, this section explores the possibility of state governments utilizing cooperative agreements with other states to share schedules or buying from GSA schedules to ease the burden of contracting for individual goods and services.

1.   Schedules Are an Appropriate Solution for Procurement of Most Goods and Services, Including Rehabilitation Programming, Because These Goods and Services Are Commercial

Reclaiming operation of prison facilities has the potential to place an increased burden on state governments as procurement departments begin to implement individual contracts for goods and services. Furthermore, the vast array of rehabilitation programming options could make releasing solicitations even more difficult. In order to avoid this confusion, state governments should incorporate rehabilitation programming into contract schedules along with the other goods and services needed in state-run prison facilities. This would allow state governments to solicit a multitude of services while alerting potential contractors to what types of rehabilitation programming interests them for their state-run prison facilities.

Schedule contracts are appropriate for the proposed contracting practice because the goods and services needed to operate a prison, including rehabilitation programming, are commercial items.128 Some goods and services plainly meet the definition of commercial item, such as office equipment and food service.129 These kinds of items are “of a type customarily used by the general public . . . for purposes other than governmental purposes” and have been sold to the general public.130 Specific types of rehabilitation programming are also fairly categorized as commercial items because they are also used by the general public and have been sold to the general public.131 For example, coding programs, vocational programs, and even conflict management training programs are widely available.132 Other types of diversionary rehabilitation programming, such as art, writing, and meditation classes, are likewise available in the commercial marketplace.133 Programs focusing on an inmate’s reentry into the community, such as the model program implemented at the Montgomery County Correctional Facility,134 may still need to be administered by state officials in state-run prisons because such programs address issues wholly unique to inmates and are generally only used in prison facilities.135 Utilizing schedules for procurement of the vast majority of goods and services needed to operate a prison facility should cut overall costs, freeing resources to implement additional rehabilitation programming administered by state officials.136

2.   State Governments Should Utilize Contract Schedules to Streamline the Potentially Burdensome Process of Contracting for Individual Goods and Services in Prison Facilities

A schedule could include specific line items for various types of rehabilitation programming. As explained previously, this includes both vocational programs as well as other programs focusing on development of other skills, such as mediation and diversion therapy programs.137 By including the array of rehabilitation programming possibilities in a schedule, state governments may specify their preferred rehabilitation options. Some states may be willing to experiment with the more creative options described above, such as cosmetology programs in prisons housing only male offenders or programs that train inmates in conflict resolution skills, but others may prefer to focus on more traditional job skills training.138

Regardless, state governments can utilize schedule contracts to provide an array of rehabilitation programming for inmates in prison facilities. Having these options available will better enable prison administrators to bring different types of rehabilitation programming into individual facilities, and by monitoring the success of such programming through recidivism rates as well as rates of conflict within the facility, state governments can better understand the rehabilitative needs of their inmate population. Contract schedules will help take the guesswork out of contracting for rehabilitation programming and will streamline the contracting process by integrating desired goods and services for state-run prisons into a single schedule.

Many state governments already utilize schedule contracting for procurement of goods and services.139 California’s Department of General Services, for example, developed several Master Agreements for both IT and non-IT goods and services.140 Likewise, Texas employs Multiple Award Schedules (known as TXMAS) in partnership with GSA and its Multiple Award Schedules and in conjunction with contracts negotiated by governmental entities of other states.141 For development of prison-related schedules, individual state governments should consider the various goods and services that are needed to operate a prison facility that the state itself would not provide, and state governments should include a variety of different rehabilitation programming options.

3.   State Governments Should Consider Cooperative Agreements to Share the Burden of Developing a Prison Contracting Schedule

While contract schedules would help overcome this increased burden, the contracting process could be streamlined even further through the development of regional cooperative agreements utilizing shared schedules. In order to improve contracting efficiency, state governments should consider developing co- operative agreements with neighboring states. Cooperative agreements — the“sharing [of] procurement contracts between governments”142 — can improve efficiency and provide effective support for the procurement process in a particular area.143 The National Association of State Procurement Officials defines cooperative purchasing as “[t]he action taken when two or more entities com- bine their requirements to obtain advantages of volume purchases including administrative savings and other benefits.”144 In addition to improving efficiency in the contracting process, cooperative agreements can also help reduce contract prices by aggregating the procurement needs of multiple government entities.145 Use of such cooperatives is becoming more and more widespread; in 2014, expenditures associated with cooperative agreements were estimated in the hundreds of billions of dollars.146 Forty-four states already participate in multi-state contracts.147 Cooperative contracting has increased in popularity148 and “is likely to remain a viable contract method for state and local governments because these entities have learned to leverage large volume buys to achieve lower market prices while simultaneously reducing transaction costs  by purchasing goods and services collectively.”149

The process for developing a cooperative agreement among state governments would be relatively simple. Two or more governments would first identify the area of common requirements — here, the array of goods and services needed to facilitate the operation of a prison facility — and would then sign a written agreement to cooperate.150 Next, a lead party — perhaps the state with the greatest contracting needs, the state with the greatest resources for contracting, or a third party organization — would solicit proposals and award contracts.151 Once the contract is available for member governments to utilize, an individual government signs a “participating addendum” in the specific contract, which also enables compliance with that state’s statutory requirements.152

A few cooperative agreement types are available: (1) true cooperatives, in which two or more government entities combine their requirements and solicit together; (2) piggyback contracts, in which two or more governmental entities relay their requirements and allow other entities to “ride” the contract once awarded; and (3) third party aggregators, in which an organization of governmental entities pools the individual entity’s requirements and then manages awarded contracts.153 Each of these cooperative types has advantages and disadvantages, and individual state governments should consider these options carefully.154 For a schedule contract, a cooperative agreement would enable state governments to collaborate in listing specific goods and services in a schedule and contract with private entities utilizing the same catalogue of solicited goods and services.155 This approach could significantly reduce costs and the administrative burden of creating and managing multiple contracts instead of one prison management contract for a single facility.

Finally, another cooperative purchasing method available for state governments is to utilize GSA schedules to order products and services more quickly and for lower prices.156 The Federal Supply Schedules or Multiple Award Schedules may be the most efficient option for a state government as it retakes prison management.157 As with cooperative purchasing arrangements, states that authorize such purchasing may find this a more attractive option than states where a change in regulation would be required to make this option viable.158 Many states already utilize the federal schedules to procure goods and services for a variety of purposes.159 This option may be particularly attractive in states that already have authority to utilize the federal schedules and especially so in states with a long-standing practice of utilizing the federal schedules.160 Such pre-existing practices would allow the state procurement officials simply to incorporate prison goods and services into their existing practice.

Procuring the needed commercial items from GSA schedules would enable prison procurement officials to purchase goods and services at volume discount pricing while GSA contracting officers negotiate pricing with the contractor.161 State officials, then, would not be required to assess pricing each time they place an order.162 GSA schedules make available both goods and services.163 Use of GSA schedules may provide a quick and simple method for state governments to procure particular goods and services at significantly discounted prices, potentially easing the administrative burden resulting from reclaiming prison management.164 Schedules, and cooperative options in particular, may provide a significant streamlining effect to promote efficiency and cost savings as state governments shift their prison contracting practice from whole facility management to procurement of individual goods and services.

V.  Conclusion

Because contracting prison management to private corporations — with adverse incentives — fails to reduce costs and presents unresolvable issues  regarding the delegation of discretionary decision-making over life, liberty, and property of inmates, state governments should abandon the practice of contracting for prison management. Instead, they should develop schedule contracts to procure goods and services from corrections corporations and other private entities, focusing particularly on innovative rehabilitation programming options. Schedule contracts — which states could also develop as cooperative contracts in partnership with other states or through utilization of the GSA schedules — would enable state governments to clarify desired rehabilitation programming forms and styles, and private entities are well-positioned to provide state governments with innovative rehabilitation programming options that may reduce recidivism rates as well as corrections administration costs.

  1. Anand Giridharadas, Silicon Valley Gives Ex-Convict a Familiar Feeling, N.Y. TIMES (Feb. 15, 2016), convict-a-familiar-feeling.html?_r=0 [].
  2. Stephanie Chuang, San Francisco Nonprofit the Last Mile Teaches San Quentin Inmates How to Code, NBC BAY AREA (Dec. 1, 2014), [].
  3. Changing Lives Through Tech, THE LAST MILE, [] (last visited Apr. 11, 2017).
  4. Id.
  5. Id.
  6. Issie Lapowsky, Inside the Classroom Where San Quentin Inmates Learn to Code, WIRED (Nov. 2, 2016), [].
  7. Changing Lives Through Tech, supra note 3.
  8. Cf. Chuang, supra note 2; Changing Lives Through Tech, supra note 3.
  9. See Lucas Anderson, Note, Kicking the National Habit: The Legal and Policy Arguments for Abolishing Private Prison Contracts, 39 PUB. CONT. L.J. 113, 120 (2009) (citing, among others, Andrew Coyle et al., Introduction to CAPITALIST PUNISHMENT 9, 9 (Andrew Coyle et al. eds., 2003)).
  10. Bethany Davis, Corrections Corporation of America Rebrands as CoreCivic, CCA (Oct. 28, 2016, 11:00 AM), [].
  11. See Michael Cohen, How For-Profit Prisons Have Become the Biggest Lobby No One Is Talking About, WASH. POST (Apr. 28, 2015), [].
  12. See id.
  13. See Anderson, supra note 9, at 116.
  14. See id. at 119; Juleyka Lantigua-Williams, Feds End Use of Private Prisons, but Questions Remain, ATLANTIC (Aug. 18, 2016), [].
  16. See infra Parts III.A, III.B.1.
  17. See infra Part III.B.2.
  18. See Locations, GEOGROUP, [ SV8L-24M4] (last visited Apr. 11, 2017) [hereinafter GEOGROUP Locations]; CCA’s Nationwide System of Correctional Centers, CCA, [] (last visited Apr. 11, 2017) [hereinafter CCA’s Nationwide System].
  19. See Emily A. Whitney, Note, Correctional Rehabilitation Programs and the Adoption of International Standards: How the United States Can Reduce Recidivism and Promote the National Interest, 18 TRANSNAT’L L. & CONTEMP. PROBS. 777, 807 (2009).
  20. See infra Part IV.B.2.
  21. See infra Part IV.
  23. See Gary Cohen, Punishment and Rehabilitation: A Brief History of the Texas Prison System, 75 TEX. B.J. 604, 605 (2012).
  24. See id. at 604–05.
  25. KICENSKI, supra note 22, at 20–22.
  26. Id. at 20–21.
  27. Id. at 19.
  28. Id. at 42.
  29. See The Attorney General’s Smart on Crime Initiative, U.S. DEP’T JUST., [] (last updated Dec. 1, 2015). With the current administration’s general policy of undoing Obama-era policy, the national conversation may be changing. See, e.g., Sari Horwitz, How Jeff Sessions Wants to Bring Back the War on Drugs, WASH. POST (Apr. 8, 2017), [].
  30. See, e.g., Cohen, supra note 23, at 604.
  31. Id. at 606.
  32. Id.
  33. Francis T. Cullen & Cheryl Lero Jonson, Rehabilitation and Treatment Programs, in CRIME AND PUBLIC POLICY 293, 328–29 ( James Q. Wilson & Joan Petersilia eds., 2011).
  34. See Cohen, supra note 23, at 605.
  35. See id.
  36. Id.
  37. Id.
  38. Cullen & Jonson, supra note 33, at 311.
  39. See Jeremy Coylewright, New Strategies for Prisoner Rehabilitation in the American Criminal Justice System: Prisoner Facilitated Mediation, 7 J. HEALTH CARE L. & POL’Y 395, 395 (2004).
  40. See Changing Lives Through Tech, supra note 3.
  41. Stacey Leasca, Wash, Rinse, Redeem: A Look Inside a Beauty School—In a Men’s Prison, DAILY GOOD (Sept. 28, 2016), [].
  42. Id. Although no data can be found regarding the success of this particular program in assisting inmates find and keep jobs on the outside (perhaps due to the recent implementation for the male population at the facility), the program appears to significantly improve the quality of life for inmates participating in the program as well as those who patronize the salon as clients.
  43. Coylewright, supra note 39, at 406.
  44. Id. at 402.
  45. Clive R. Hollin et al., Efficacy of Correctional Cognitive Skills Programmes, in WHAT WORKS IN OFFENDER REHABILITATION: AN EVIDENCE-BASED APPROACH TO ASSESSMENT AND TREATMENT 117, 117 (Leam A. Craig et al. eds., 2013).
  46. Melanie Reid, The Culture of Mass Incarceration: Why “Locking Them Up and Throwing Away the Key” Isn’t a Humane or Workable Solution for Society, and How Prison Conditions and Diet Can Be Improved, 15 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 251, 264 (2015).
  47. Id.
  48. Coylewright, supra note 39, at 395.
  49. Id. at 414.

    Prisoners need to be taught how to solve problems, how to settle disputes, how to communicate more effectively, and how to take responsibility for themselves and their actions. Successful inmate rehabilitation requires that programs “enhance the prisoner’s capacity to cope maturely with life’s stresses, both now in prison and later in the free world.”

  50. Coylewright, supra note 39, at 415–16.
  51. Id. On a small scale, mediation programs have been successful, but their success in large-scale implementation is not yet proven and further research is needed. Id. at 418.
  52. See Reid, supra note 46, at 271–85.
  53. See id. at 275–76 (citing Daily Costs to Feed Prisoners and the Average American, PRISON POL’Y INITIATIVE, [] (last visited Apr. 11, 2017)) (costing $2.45 to feed the average prisoner in California; $2.32 in Florida).
  54. See Reid, supra note 46, at 274.
  55. See id. at 284.
  56. See id.
  57. See James McGuire, “What Works” to Reduce Re-offending: 18 Years On, in WHAT WORKS IN OFFENDER REHABILITATION: AN EVIDENCE-BASED APPROACH TO ASSESSMENT AND TREATMENT 20, 34 (Leam A. Craig et al. eds., 2013). Key questions remain even after decades of academic study.
    Id. Do inmates from specific regions or subcultures respond differently to different programming? See id. at 32. Do particular programs fare better in facilities that house men rather than women, or vice versa? See generally Franca Cortoni & Theresa A. Gannon, What Works with Female Sexual Offenders, in WHAT WORKS IN OFFENDER REHABILITATION: AN EVIDENCE-BASED APPROACH TO ASSESSMENT AND TREATMENT 271 (Leam A. Craig et al. eds., 2013).
  58. “Only one-quarter of prisoners receive vocational training and only one-third receive any educational training prior to release.” Coylewright, supra note 39, at 402. Educational programming has also suffered due to budget cuts. Id. at 402, 404.
  59. See id. at 404.
  60. Cullen & Jonson, supra note 33, at 311. Four conclusions have been reached in the literature:
    First, there is evidence that participation in education and work education programs may decrease inmates’ disciplinary problems while incarcerated . . . . Second, although less clear, involvement in these prison programs may increase prosocial activities in the community such as employment and increased schooling . . . . Third and most salient, it appears that across existing studies, education and work programs reduce recidivism . . . . [Fourth,] treatment effects may be modified by offender and program characteristics.
    Id. at 311–12.
  61. McGuire, supra note 57, at 32.
  62. Id.
  63. Id.
  64. Reid, supra note 46, at 253.
  65. Anderson, supra note 9, at 114.
  66. See generally id. at 120.
  67. See id. at 120.
  68. See id.
  69. See SHICHOR, supra note 15, at 11–12.
  70. See Anderson, supra note 9, at 120. Though it is beyond the scope of this Note, for additional discussion of issues around secrecy in private prisons and compliance with open records laws, see Tara Parker, Comment, Private Prisons Behind Bars: Why Corrections Corporations Must Abide by Public Information Laws, 48 TEX. TECH L. REV.—ONLINE EDITION 39 (2016).
  71. See ADRIAN L. JAMES ET AL., PRIVATIZING PRISONS: RHETORIC AND REALITY 2 (1997); Anderson, supra note 9, at 114.
  72. See JAMES ET AL., supra note 71, at 4.
  74. See id.
  75. Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1392 (2003).
  76. Anderson, supra note 9, at 118.
  77. Rachel Christine Bailie Antonuccio, Note, Prisons for Profit: Do the Social and Political Problems Have a Legal Solution?, 33 J. CORP. L. 577, 583 (2008).
  78. See JAMES ET AL., supra note 71, at 4.
  79. See supra Part III.B.1.
  80. See Anderson, supra note 9, at 130.
  81. See Metzger, supra note 75, at 1393.
  82. Anderson, supra note 9, at 114. The Department of Justice recognized in an August 18, 2016, memorandum that private prisons “do not save substantially on costs.” Memorandum from Sally Q. Yates, Deputy Attorney Gen., to the Acting Dir. of Fed. Bureau of Prisons, Reducing Our Use of Private Prisons (Aug. 18, 2016).
  84. See SHICHOR, supra note 15, at 11–12; see also Alex Friedmann, Apples-to-Fish: Public and Private Prison Cost Comparisons, 42 FORDHAM URB. L.J. 503, 504–05 (2014).
  85. Mary Sigler, Private Prisons, Public Functions, and the Meaning of Punishment, 38 FLA. ST. U.L. REV. 149, 151 (2010).
  86. See id.
  87. Id. at 150–51.
  88. Id. at 151.
  89. SHICHOR, supra note 15, at 11–12.
  90. Anderson, supra note 9, at 131.
  91. SHICHOR, supra note 15, at 131.
  92. See KICENSKI, supra note 22, at 12.
  93. See Anderson, supra note 9, at 116.
  94. See id.
  95. Sigler, supra note 85, at 160.
  96. See Metzger, supra note 75, at 1393.
  97. Sigler, supra note 85, at 175–76.
  98. See Anderson, supra note 9, at 120.
  99. Metzger, supra note 75, at 1393.
  100. See Anderson, supra note 9, at 125–26.
  101. Sigler, supra note 85, at 157.
  102. See Anderson, supra note 9, at 125–26.
  103. See id.; Metzger, supra note 75, 1394; Sigler, supra note 85, at 151.
  104. See Anderson, supra note 9, at 120.
  105. See id. at 130.
  106. See id.
  107. See Sigler, supra note 85, at 157. “Moreover, just ‘the appearance of private motives in a public domain can undermine respect for government and even generate doubt whether the government is sincerely pursuing public purposes.’ ” Id. (quoting Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 HARV. L. REV. 1229, 1234 (2003)).
  108. Sigler, supra note 85, at 156.
  109. See supra Part III.A.
  110. See supra Part III.B.1.
  111. See supra Part III.B, III.C.
  112. See supra Part III.B.2.
  113. See supra Part II.B.2.
  114. See Cohen, supra note 23, at 605.
  115. See GEOGROUP Locations, supra note 19; CCA’s Nationwide System, supra note 19.
  116. Cohen, supra note 11.
  117. See Inmate Reentry Preparation, CCA, -services/inmate-reentry-preparation [] (last visited Apr. 11, 2017) [hereinafter CCA Inmate Reentry Preparation]; GEO Continuum of Care, GEOGROUP, [] (last visited Apr. 11, 2017) [here-inafter GEO Continuum of Care].
  118. See CCA Inmate Reentry Preparation, supra note 117; GEO Continuum of Care, supra note 117.
  119. See Whitney, supra note 19, at 807 (“More of these state programs would save taxpayer money and reduce recidivism rates.”).
  120. Cf. SHICHOR, supra note 15, at 11–12; Whitney, supra note 19, at 807.
  121. See McGuire, supra note 57, at 32; CAA Inmate Reentry Preparation, supra note 117; GEO Continuum of Care, supra note 117.
  122. See, e.g., Computer Applications/Business Technology Program—FCI Sheridan, Oregon, FEDBIZOPPS.GOV (Dec. 22, 2016, 1:46 PM), =opportunity&mode=form&id=8ff74e490ddeabe71085d902ce5fc4d4&tab=core&_cview=1 []; Dog Trainer Certification Program; FY2017 FCI Waseca Mn, FEDBIZOPPS.GOV (Sept. 6, 2016, 10:21 AM), []; Culinary Arts/Horticulture Educational Programs, FEDBIZOPPS.GOV (Nov. 10, 2015, 2:55 PM), [].
  123. AN UPDATE TO THE FUTURE OF CALIFORNIA CORRECTIONS 45 (2016), available at [] (noting that a state law was changed to allow colleges to provide courses for inmates that are not available to the general public).
  124. Reid, supra note 46, at 265.
  125. See Changing Lives Through Tech, supra note 3; Leasca, supra note 41.
  126. See supra Part II.B.2.
  127. Donna T. Ginter, Contracting in State and Local Governments, in GOVERNMENT CONTRACTING: A PUBLIC SOLUTIONS HANDBOOK 203, 203 (Robert A. Shick ed., 2016).
  128. See FAR 8.402.
  129. See FAR 2.101 (defining “commercial item”).
  130. Id.
  131. See id.
  132. See, e.g., Learn to Code by Doing, CODE SCH., [] (last visited Apr. 11, 2017) (online coding training program); Developer Training and Tutorials, LYNDA.COM, [] (last visited Apr. 11, 2017) (same); Code Avengers, CODE AVENGERS, [] (last visited Apr. 11, 2017) (same); Cosmetology Program in Washington, D.C., BENNETT CAREER INST., [] (last visited Apr. 11, 2017) (cosmetology program); AVEDA INSTS., [] (last visited Apr. 11, 2017) (same); Training Programs, CTR. FOR CONFLICT RESOL., [] (last visited Apr. 11, 2017) (conflict management program).
  133. See, e.g., Expressive Arts Therapy and Art Therapy Online and Live Courses, Workshops and Events!, TRAUMA-INFORMED PRACS. & EXPRESSIVE ARTS THERAPY INST., [] (last visited Apr. 11, 2017) (therapeutic art classes); Creative Writing 101, GOTHAM WRITERS, [] (last visited Apr. 11, 2017) (creative writing classes); Yoga and Meditation Classes, CHOPRA CTR., [] (last visited July 22, 2017) (yoga and meditation classes).
  134. See Re-Entry Services, DEP’T CORRECTIONS & REHABILITATION (MONTGOMERY CTY.,MD.), [] (last visited Apr. 11, 2017). This model program takes a holistic approach with the involvement of many individuals and entities in the community, such as “other County and State Agencies, local non-profits, faith-based organizations[,] and local civic leaders.” Id.
  135. See supra text accompanying notes 47–51.
  137. See supra Part II.B.1.
  138. See discussion supra Part II.B.1.
  139. See, e.g., Master Agreements, DEP’T GEN. SERVS., [] (last visited Apr. 11, 2017) (California schedule contracts system).
  140. See id.
  141. See Purchasing: Texas Multiple Award Schedule Program, COMPTROLLER.TEXAS.GOV, [] (last visited Apr. 10, 2017).
  142. NASPO, STRENGTH IN NUMBERS, supra note 136, at 2.
  143. Id. at 1.
  144. James W. Nelson & Julia A. LoBosco, Understanding the WSCA-NASPO Cooperative Purchasing Organization: It’s Time to Invite the Elephant out of the Corner, 44 PUB. CONT. L.J. 113, 114 (2014) (citing NAT’L ASS’N OF STATE PROCUREMENT OFFICIALS, STATE AND LOCAL GOVERNMENT PROCUREMENT: A PRACTICAL GUIDE 312 (2008)).
  145. NASPO, STRENGTH IN NUMBERS, supra note 136, at 1.
  146. Ginter, supra note 127, at 208.
  147. NASPO, STRENGTH IN NUMBERS, supra note 136, at 5.
  149. Nelson & LoBosco, supra note 144, at 114; see also Ginter, supra note 127, at 207.
  150. NASPO, STRENGTH IN NUMBERS, supra note 136, at 2.
  151. Id.
  152. Id.
  153. Id. at 3; Sylvia Yi, Note, State and Local Governments: Ditch the GSA Schedule and Do It Yourself, 44 PUB. CONT. L.J. 573, 576 (2015).
  154. For a full explanation of benefits and disadvantages of the cooperative types and related contracting options, see Yi, supra note 153, at 575–76, 580–81.
  155. For a full explanation of cooperative contracting, including an analysis of WSCANASPO CPO as a leading example of cooperative contracting, see Nelson & LoBosco, supra note 144, at 115–21.
  157. See id.
  158. See id. at 96.
  159. Cf. NASPO, STRENGTH IN NUMBERS, supra note 136, at 5.
  160. See id. (“[Thirty-seven] states have the authority to do cooperative purchasing with the federal government.”).
  161. See Robert J. Sherry et al., Competition Requirements in General Services Administration Schedule Contracts, 37 PUB. CONT. L.J. 467, 470 (2008).
  162. Id.
  163. Id. at 472.
  164. See Yi, supra note 153, at 576.