A series by Nolan Higdon
View a version of this article that includes citation here: JUSTICE FOR SALE- PART 2 – FROM ACQUIESCENCE TO PROFIT
This is the second article (Part 1) in a five part series examining the US legal system. The series collectively argues that corporate media and political rhetoric have made Americans acquiescent toward corruption in the US legal system. This piece examines how public ambivalence toward an expansion of the legal system has been capitalized upon by the prison industrial complex.
In the 1970s, philosopher Michel Foucault argued that civilizations of the past and present have had an insatiable appetite for justice. The modes of justice experienced cosmetic changes overtime from violently punishing criminals as part of a public spectacle, to a chain gang of workers, to a more soft – but not necessarily humanitarian- version of punishment. Foucault’s discussion mostly focused on how punishments, especially prisons, served the needs of those in power. Foucault’s work also illuminated that historically, people have been obsessed with the idea of justice. However, the ambiguity surrounding the term “justice” allows for it to be invoked as a justification for various degrees of behavior.
The demand for “justice” by the American people has created a profit making opportunity in the capitalist United States. An irrational fear over crime (discussed in Part 1) has allowed for an expansion of the US prison system. In fact the US now has more prisons than colleges. Big profits for the few in the prison industry have resulted in little justice and increased costs and suffering for US citizens. The prison industry increased their revenue by investing in neo-liberal politicians, lobbying for stricter sentencing laws, and hoodwinking tax payers with iron-clad prison contracts. The result is that the US has 5 percent of the world’s population and 25% of its prisoners. One percent of the US population is currently incarcerated, a larger percent than any other western industrialized nation. Incarceration is on the rise in 36 states. If one adds in the citizens on probation or parole; about 2.9% of the adult population are under some form of correctional supervision. Another 70,792 children are in juvenile detention. In 2012, the Supreme Court ruled that the US needed to stop sending minors to jail for life.
This mass incarceration is made worse by the high recidivism rate in the US. Recidivism is the rate at which those incarcerated are re-incarcerated for crimes committed upon release. In the US, two-thirds of inmates are incarcerated after being released. Thus, the prisons system does not provide rehabilitation, it provides a stop for offenders in between crimes. In fact, in Wisconsin, over half of the inmates are incarcerated for parole violations.
Neo-liberalism is a philosophy that calls for reform, particularly when it meets the economic needs of the nation. Neo-liberals support privatization, free trade, open markets, deregulation, and reductions in government spending with the goal of extending private sector control over public life. Neo-liberals conclude that the private sector performs better economically than the public sector. Thus, they support a close relationship between business leaders and politicians to privatize public institutions. In the 1980s, neo-liberals created a political force that coalesced in the candidacy of Ronald Reagan for President. President Reagan instituted an economic experiment of lowering taxes while instituting privatization. As tax revenue decreased, states began having private corporations provide what were historically seen as public services, including inmate dentation.
Prison corporations recognized that citizens’ fear over crime and calls for justice in a time of wide-spread privatization allowed for vast profits to be made. Thus, they would financially support political candidates who would privatize and expand the prison industry. The largest private prison corporations gave a combined $45 million to politicians over the last decade. This resulted in expensive changes to the legal system paid for by taxpayers. The Corrections Corporation of America (CCA) is the largest private prison company in the US worth $3.8 billion. It is followed by the GEO Group worth $1.52 billion.
The High Cost of Private Industry
Many of the cost-cutting measures neo-liberals applied to prisons have hidden costs for the public. Prison corporations cut costs by firing staff and removing pensions. Thus, the loss in wages and benefits to the regions’ working class is a gain for the private industry. Those same working and poor classes are the ones going to jail, not the rich who profit from the prison industry. Other private prison cost-cutting measures cause expensive health crises such as the cuts to meals that cause inmates to lose 10-60 pounds more than their public prison counterparts. Some cuts also produce costly violence. For example, in Mississippi, assault rates are three times higher in private than public facilities. The ACLU provided a video demonstrating how CCA employees sat by idle and watched an inmate get beat unconscious. Similar episodes have happened in Mississippi, Oklahoma, New Mexico, Florida, and California. New research has found that the private prison industry is not more cost effective than public prisons.
By the time the claims of cost-cutting measures are proven false, states often cannot afford to legally end their contract with the private prison corporation. The contracts obligate states to fill prison beds with inmates or reimburse the company for unused materials. Private prison contracts became national news in 2010 after a three violent criminals escaped from an Arizona private prison for two weeks. If Arizona closed the facility, they would have owed $10 million for breaching their contract, which required the state to keep the prison 97 percent full. Arizona renegotiated a settlement of $3 million for not filling beds with prisoners.Arizona is not alone. A random sampling of 60 contracts between private prison companies and state and local governments found that two-thirds had bed quotas. Most contracts guarantee a 90 percent occupancy rate.
Lobbying for Prison Profits
To keep the prisons full, prison corporations lobby legislatures for harsher laws in hopes of boosting arrest rates. In 2011, the Justice Policy Institute (JPI) argued that private prison corporations have not responded to, but rather created the conditions for a massive increase in incarceration. Senators John McCain, Marco Rubio, and John Cornyn along with Representatives Lamar Smith and Jim Sensenbrenner were the largest recipients of prison campaign funds in 2013. These funds continue private prison corporation’s access to lawmakers.
The lobbying efforts and campaign contributions by the private prison industry often press lawmakers to draft legal changes that will help increase profits for the prison industrial complex. Some of biggest victories for the industry include the passage of LWOP (life sentence without parole) laws. These laws guarantee an influx of prison inmates to corporate, for-profit facilities. They are strengthened by the so-called “Three Strikes Laws” which mandate a LWOP sentence for a third offense. In the 1970s, before the private prison lobbying boom, there were next to no LWOP laws, but by 2014, 40 states in the US had them. The LWOP laws keep citizens locked up at an estimated cost of $1.7 billion dollars more than if LWOP were non-existent. The crimes covered by LWOP can even involve non-violent crimes such as those committed by Jeff Mizanskey, who has served over 20 years of a life sentence in Missouri for non-violent marijuana charges; Nathan Pettus and Damon Caliste, who stole from stores; Alexander Surry who possessed a single crack rock; 74-year old Leopoldo Hernandez-Miranda, who has spent 20 years in jail for marijuana possession; Timothy Tyler, who mailed LSD to an undercover agent; and Clarence Aaron, arrested for introducing a friend to a drug dealer. The increased incarceration rate has resulted in having overcrowded facilities, such as in Ohio, where some of the facilities are at a 130% capacity.
Lobbying by the private prison industry is so effective that in places like California it is becoming unsustainable to maintain current inmate levels and provide a proper healthy environment. In response, California Governor Jerry Brown signed a new contract with the CCA in October 2013 to meet a federal order to reduce overcrowded prisons. The deal cost $28.5 million annually for a federal detention facility in California City is incarcerating 2,304 inmates. It came just one month after California signed a $30-million, three-year contract with Geo Group to create two new facilities. However, the facilities have not been enough to ease tensions. Federal judges in November 2014 ordered California to expand its prison release system to decrease its population.
The CCA acts as an extra-legislative branch to state and federal government bodies using its access to help create laws (and excuses) to lock up individuals. The CCA lobbied against a legal path to citizenship for immigrants in order to keep profiting from its ownership of half of the federal government’s Immigration Detention Centers. The prison industry spent $45 million to gain a $5.1 billion contract for Immigrant Detention Centers. In 2014, less than a year after the CCA lost its prison contract with the state of Kentucky, they created a bill to lock up “the old and infirm” in the bluegrass state; something voters and politicians rejected. As of today, the bill has been discussed in the state capitol, but not approved.
Prison lobbying has resulted in increased costs for taxpayers. Government spending on corrections increased 72% from 1997 to 2007, despite a massive drop in crime. The average state pays about 6.8 percent of their general fund on corrections. Sadly, four states spend more on corrections than higher education: Vermont, Michigan, Oregon and Connecticut. In 2008, California faced a $16 billion budget shortfall, but still spent $8.8 billion on corrections.
Neo-liberals created a market for expanded mass incarceration by preying on citizens’ fears of crime which politicians in turn use to win elections. Private prison lobbyists and the politicians they influence manufactured a false perception of crime and justice. This has resulted in a dramatic and costly expansion of the private prison industry, which transforms citizens into profitable objects. The next article will address how public ambivalence toward a justice system which operates for profit, not the public good, has led to corruption in many US communities.
Nolan Higdon is a college history instructor and Project Censored Affiliate Professor in the San Francisco Bay Area. He sits on the board of both Project Censored and ACME: Action Coalition for Media Education. Contact Nolan at NolanHigdonProjectCensored@gmail.com
Read part 3 in this series here.