Bringing Out-Of-State Inmates Home

A story published this summer on the California Watch examined the possibility of bringing back 9,500 California inmates currently serving their term in private institutions run by Correctional Corporation of America in Arizona, Mississippi and Oklahoma.

The grand strategic plan includes a provision for ending out-of-state incarceration, and it’ll begin by bringing back about 600 inmates. This is compounded by the fact that the state’s contract with CCA is based on occupancy rates.

In case you’re wondering who benefits from levels of mass incarceration, the CA Watch story says:

The revised contract will reduce California’s fee to the private prison group by $67 million for the current fiscal year, according to corrections spokeswoman Dana Simas. The state will save another $14 million in 2012 by cutting staff positions for the program, which is administered in Sacramento. 

California is paying the Corrections Corporation $61 to $72 per prison bed per day, making the original contract worth more than $280 million for 2012-13, according to the Legislative Analyst’s Office and corrections department figures.

The fiscal challenges involved in bringing back inmates involve the need to provide adequate housing and health care and the potential need for more construction. But if the total number of inmates to be returned to the state is less than 10,000, that would still render the prisons less crowded than they were in the pre-Plata era.

Private Prison Management Offers to Buy Prisons in Exchange for Occupancy Rates

Our four-year foray into the changes in correctional policies since the fiscal crisis has taught us that various states are scaling back their correctional apparatus to respond to money difficulties. California is no different. But as is the case with every regime, there are always folks who would benefit and make a quick buck from a broad social and economic problem.

This astonishing recent story in USA Today is a case in point. Many states are working on closing down their prisons for fiscal considerations. So, Corrections Corporation of America, of which we’ve written here before, is angling to purchase said prisons and operate them. But therein lies the rub:

The $250 million proposal, circulated by the Nashville-based Corrections Corporation of America to prison officials in 48 states, has been blasted by some state officials who suggest such a program could pressure criminal justice officials to seek harsher sentences to maintain the contractually required occupancy rates.


“You don’t want a prison system operating with the goal of maximizing profits,” says Texas state Sen. John Whitmire, a Houston Democrat and advocate for reducing prison populations through less costly diversion programs. “The only thing worse is that this seeks to take advantage of some states’ troubled financial position.”


Corrections Corporation spokesman Steve Owen defended the company’s “investment initiative,” describing it as “an additional option” for cash-strapped states to consider.


The proposal seeks to build upon a deal reached last fall in which the company purchased the 1,798-bed Lake Erie Correctional Institution from the state of Ohio for $72.7 million. Ohio officials lauded the September transaction, saying that private management of the facility would save a projected $3 million annually.


Linda Janes, chief of staff for the Ohio Department of Rehabilitation and Correction, said the purchase came at time when the state was facing a $8 billion shortfall. The $72.7 million prison purchase was aimed at helping to fill a $188 million deficit within the corrections agency.
Ohio’s deal requires the state to maintain a 90% occupancy rate, but Janes said that provision remains in effect for 18 months — not 20 years — before it can be renegotiated. As part of the deal, Ohio pays the company a monthly fee, totaling $3.8 million per year.

This is not new. CCA had AB 1070 passed in Arizona to guarantee prison occupancy, and built a prison on speculation in California. But it’s astonishing to see the machinations presented so matter-of-factly out in the open.

In these days of dire straits and realignment from state prisons to county jails, is it conceivable that California could cut a similar deal? I very much doubt it. CCPOA, the prison guards’ union, would object it with all their might, and might win the battle again, as they have before. But it’s a somber reminder that prisons are, above all, an industry, and subject to cynical manipulation by profiteers.

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Props to David Greenberg for bringing this to my attention.

Book Review: Josh Page, The Toughest Beat

California has often been proclaimed ungovernable, its politics described either as too dense to fathom or, in an oversimplified fashion, as a mess generated by unfettered direct democracy and shortsighted financial policies. But some astute political actors have accrued the knowledge and skills to navigate these complex political seas, and the California Correctional Peace Officers’ Association (CCPOA) is one of them.  Joshua Page’s new book The Toughest Beat  clearly and intelligently transcends theoretical abstractions and simplistic clichés to provide a sobering, thorough analysis of the CCPOA’s role in shaping California’s penal policies, and in doing so, provides an excellent primer to the entire landscape of California politics and decisionmaking.
The book begins with a detailed, fascinating history of the rise of the CCPOA from an “old boys’ club” providing social opportunities and camaraderie for its members to a powerful player in state legislation and policy. Using a myriad of sources, in the tradition of “old-school,” well-done ethnographies, the book cleverly tells this story oscillating between the macro world of the state and national contexts and the microcosm of specific personalities. Don Novey‘s role as the architect of the CCPOA’s lobbying and influence strategy is particularly highlighted. Emphasis is placed on the CCPOA’s bipartisan alliances with Democracts (with respect to union concerns) and Republicans (with respect to punitiveness concerns).
This account is followed by two somber chapters, which illuminate the role played by CCPOA in shaping penal policies. The first reveals the complex interdependency between the CCPOA and a few victim organizations, such as the Crime Victims United of California; the latter organizations, representing the interest of specific demographics and a particularly punitive and vengeful victim perspective, were effectively created, managed, and puppeteered by CCPOA. Rather than flinging radical accusations and conspiracy theories, Page’s careful analysis of this web of interdependency and coalitions is understated and backed with hard evidence, including a personnel and finances analysis and ethnographic data. The CCPOA’s wisdom in fostering such mutually beneficial coalitions with victim organizations, district attorneys, sheriffs, and wealthy private citizens, is grimly shown to prove itself in the following chapter, which analyzes, blow-by-blow, the passage of the Three Strikes Law, California’s pioneering piece of punitive legislation. While the story behind California’s return to determinate sentencing, and the subsequent story of its romance with an ultrapunitive sentencing regime, are a larger story than that of the CCPOA, the union played a pivotal role in selected phases, and was a dominant factor in swinging the punitive pendulum. This account is an indictment not only against CCPOA, but against a system in which the idea of direct democracy is marred by a reality of unregulated funding, misleading advertisements and abundant disinformation and ignorance.
But Page’s book cannot be reduced to a good guy/bad guy formula. His masterful account of the CCPOA’s epic fight against prison privatization shows the different strategies employed by CCPOA and the private prison corporations, and relies on a deep, intuitive understanding of how the state works to explain how, despite resorting to nefarious techniques such as building a prison on speculation, the private companies did not prevail.
The book reads like a fascinating political thriller. It does not resort to extremism or unfounded proclamations, is concisely written, and is refreshingly free of jargon. Page’s reliance on Pierre Bordieu’s field analysis as his theoretical framework is light-handed and nimble; the theory facilitates, rather than obscures, the book’s clear narrative. It is a book that professionals and laypeople alike would appreciate and enjoy.
I take issue with two minor aspects of Page’s analysis. Firstly, in presenting the punitive background for the rise of the CCPOA, Page paints the “era of rehabilitation” and indeterminate sentencing in nostalgic, overly rosy colors. While the rhetoric and logic of rehabilitation and positivism governed the penal field in California, studies of actual incarceration practice and conditions reveal a grim picture of cruelty, hard labor in the guise of correction at the time, not to mention the arbitrary sentencing practices which dramatically disfavored minority and poor inmates. Determinate sentencing led to a great many evils in California’s correctional system, but it was preceded by a great many evils in its prior regime, which many activists and legal professionals fought to eradicate for all the right reasons.
Second, Page portrays the CCPOA in two somewhat contradictory ways: As an astute political player, who will choose alliances according to what suits its members’ narrow interests, and as an ideologically-committed “law and order” player. I am curious as to which of these frameworks he finds to be a better descriptor. When presenting the CCPOA’s involvement in the creation of Three Strikes, Page refers to it as an “exception” to the “nonintervention rule” regarding sentencing matters, adopted by the union, but his analysis of the involvement and ideological choices made could also regard Three Strikes as a pivotal moment in CCPOA policy, in which it morphed into an ideological player. As Page grimly reminds us at the end of the book, despite CCPOA’s support of sentencing commissions and seemingly more reasonable positions, its powerful, debilitating shadow still looms large over any attempt to reform the correctional system, and its interests in hindering such reforms go beyond its union objectives.
Notwithstanding these minor critiques, The Toughest Beat is a terrific read, and I highly recommend it not only to readers interested in penal policies, but to anyone interested in the inner workings of the political system in the Golden State.

More Out-Of-State Prisoners

The Plata/Coleman oral arguments included an exchange about the means by which the state purports to reduce prison population. Don Specter mentioned, in his arguments, the possibility of doing so not through mass releases, but through shipping inmates out of state. And, sure enough, the Chron recently reported that our inmate export business will be expanding in the near future.

The latest deal will ship 5,800 inmates to private prisons across state lines, bringing the total to more than 15,000. The transfers will begin in May under a contract that runs through June 2013 – nearly halfway through the term of Gov.-elect Jerry Brown.

. . .

Critics of moving prisoners to out-of-state facilities say it does little to relieve the underlying problems that have caused crowded conditions and questioned the timing of the new, no-bid contracts with two private companies. One of the companies houses nearly 10,000 California prisoners.

“This is the governor doing what he wants to in the last minutes of his administration,” said state Sen. Mark Leno, D-San Francisco. “It is a way he can, on his watch, knock another 5,000 from the official numbers.”

When California first signed contracts to ship prisoners over state lines four years ago, it began with 2,260 inmates at a cost of $51 million annually. Now, it is set to pay the companies $330 million a year to house 15,424 prisoners, and spend a total of $365 million once administrative costs are factored in.

If the outcome of Plata/Coleman will be further reliance on the privatization/export option, I fear the whole purpose of the exercise will be missed. The underlying issue of mass incarceration will remain unaddressed, private companies will have further incentive to support and fund measures like Arizona’s notorious 1070 bill (now at the risk of being replicated in other states), and what’s worse, the momentum gathered by the public’s exposure to the costs involved will be lost as the problem recedes underground.

Exporting Inmates to Mexico?

The latest Governor’s proposal to save on corrrections by building correctional facilities in Mexico to house undocumented immigrant inmates has raised eyebrows around the state and yielded various responses, ranging from support to downright mockery. Since I’m not an expert in international law, I consulted some colleagues about the legal implications of putting the proposal into practice.
Can US build prisons in Mexico? The answer to this question depends, of course, on Mexico’s consent. The interdependence between the countries, particularly with respect to labor (read all about it in Eric Schlosser’s Reefer Madness), often makes us forget the Mexico is a sovereign nation. Mexico might, however, agree to such an arrangement, either for profit, or in order to ensure that its citizens are properly treated. Given what we know about corrections in Mexico, the latter would not be a concern. The former raises serious questions about the potential savings for the U.S. from such a solution.
In addition, much as some California secession advocates would like to believe it, California is not a sovereign nation, which presents additional difficulties.
Even if these difficulties were to be overcome, there would still be serious jurisdictional problems involving various legal issues about the new prisons. Which legal system would govern inmates’ rights in Mexico? International law, in itself, provides very little in the way of inmate rights, though some of its minimal provisions may be applicable in a system that employs torture. We are left with two more realistic possibilities: Mexican law or U.S law.
Can California subject its inmates to Mexican law? For inmates who are not Mexican citizens, it is highly questionable whether Mexican law can be imposed on them against their will. Granted, tourists in Mexico are subject to local law, but being involuntarily housed in a foreign country is not an equivalent solution. If the inmates are Mexican citizens, this is easier to resolve, particularly if the intent is to use the new prisons to house people who have been in the U.S. in violation of immigration law. However, not all undocumented immigrants are Mexican, and the current mix-ups at CDCR about people’s status do not bode well for a classification system that would clearly resolve sticky issues of jurisdiction.
What about applying U.S. law? This situation would be, of course, preferable from the inmates’ perspective, because that would allow them to raise constitutional claim and rely on 8th Amendment jurisprudence. The ability to apply U.S. law to prisons in Mexico is not without problems, but is not unheard of. After all, foreign embassies apply the laws of their home countries, and some institutions have been analogized to embassies for jurisdictional purposes. In a fascinating paper, titled Rights Beyond Borders, my colleague Chimène Keitner discusses the complicated and tricky issues involved in applying the U.S. Constitution to defend detainees against torture (say, in the Guantanamo context). There are important differences between the two situations, of course. Moreover, assuming that prison building will be done with private contractors, issues of conflict of laws arise with regard to possible tort litigation.
In the very least, it is safe to say that there are plenty of issues and problems that would need to be resolved before we resort to building prisons on foreign soil. On the ethical side, it would probably be preferable to remember our responsibility to contain and resolve a problem created within our borders.
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Many thanks to my colleagues Chimène Keitner and Naomi Roht-Arriaza for helping me think this through.

State of (the) Prisons: Thoughts on State of the State Speech

Here are some initial thoughts about the Governor’s speech, in no particular order:

It seems that, in general the Governor’s heart is in the right place. It is, indeed, disturbing that our budget allocates more money to education than to corrections. However, the solution he advocates–contracting with private companies for out-of-state housing rather than releasing prisoners–is disappointing and may backfire in the budgetary sense.
It is telling that the press release emphasizes, in bold letters, that the new measure prohibits releasing prisoners as a way of cutting costs. The rhetoric is, of course, familiar. The press release plays on public concerns by invoking the image of prison doors opening and tens of thousands of dangerous criminals walking out. However, as we recall from the original Governor’s proposal back in May, Schwarzenegger himself proposed several important measures, such as good work credits, alternatives to parole violation measures, and some legislative changes to allow prosecuting some current felonies as misdemeanors. Do these measures count as “inmate release”? No proposal ever intended to do what the Governor’s rhetoric suggests – opening the doors and letting massive amounts of inmates walk out – but all proposals, from the Plata/Coleman panel order to the CDCR plan to the plan advocated by the Governor himself, adopted such measures to reduce prison population. Does this new measure preclude only mindless mass releases, or also sensible reform? Will we still see these healthy steps occurring, in addition to privatization and prisoner export?
The other important question is whether exporting our inmates to other states, and paying for their incarceration there, is really cost-effective. In a blog post yesterday, Jonathan Simon characterizes this fiscal measure as “reducing spending on prisoners, not . . . reducing prisoners.” But does out-of-state incarceration really reduce expenditure per inmate in the long run? I have tried to find studies that compare recidivism rates between in-state and out-of-state inmates, and have not found anything. Perhaps this dearth of research stems from some methodological issues; as this study demonstrates, it is very difficult to measure the link between mode of incarceration and recidivism, because recidivism might be linked to factors that also led to differential incarceration modes. The out-of-state issue presents additional complications, as demonstrated by this Ohio study; it is difficult to measure recidivism across states, given the differences between different state criminal codes. Nevertheless, these methodological issues do not present insurmountable hurdles, and it would be an interesting exercise to conduct a study that examines whether out-of-state incarceration increases recidivism. In formulating an (empirically untested as of yet) hypothesis about this, it would stand to reason that when someone is incarcerated far away from family and friends, and has no support system, one stands on a less solid ground upon release and is therefore more likely to reoffend. If our readers have other opinions on the subject, we look forward to reading them in the comment section.
We know more, however, about recidivism rate comparisons between private- and public-prison-housed inmates. This Florida study, for example, found no significant differences between inmates housed in private and public facilities. As the authors say, any argument on behalf of privatization should be based solely on costs, not on rehabilitative potential. I would add that, given our concerns about sustainability in the long run, opting for a privatized system should also examine whether the volume of prisoners is likely to remain the same, which will necessitate continued reliance on out-of-state private institutions for our inmates for many years to come.
Another aspect of this issue is the broader national disparity between states who house their prisoners out-of-state and states who farm out their prisons and make business off of other states. In a previous post by Jesse, we briefly discussed this ACLU report, which praises Michigan for achieving a 8% prison population reduction by closing down eight prisons and relying heavily on reentry mechanisms. The irony is, of course, that while these commendable policies are helping Michigan get out of the political logjam and solve its own correctional crisis, Michigan is exploiting our inability to do the same by trying to rent out its prisons to us. I find this rather grim and thought provoking.
Finally, in reading the Governor’s proposal, I want to suggest that while the new measure might prohibit releasing prisons to release cost, it certainly does not prohibit doing so in order to comply with court orders. Assuming that the Supreme Court will not overturn the Plata/Coleman decision, there is still hope that at least some of the population reduction will be achieved by strategies that tackle not only population rates, but recidivism rates.
I look forward to hearing your thoughts on the Governor’s plan.

Privatization – the answer to rights violations?


San Diego Correctional Facility image courtesy ACLU.org.

The state’s willingness to rely on privatized institutions as a partial contribution to population reduction might be a questionable choice when the final aim is improving medical and mental health in prisons. This is especially true when considering complaints regarding health care and improperly unreported deaths in privately-run institutions. The August 20 New York Times article raises important questions about record keeping, treatment, staff qualifications and staff presence at a Corrections Corporation of America institution designed to keep undocumented immigrants.

Currently, CCA runs two private correctional facilities in California: the low security California City Correctional Center and the minimum/medium security San Diego Correctional Facility. The former is advertised, in a Ventura County brochure, as a source of employment for 551 locals and a source of affordable land. The latter institution–just like the one featured in the New York Times piece–was recently sued over lack of medical care, as reported on the ACLU website.

More Out-of-State Inmates

More prison privatization is occurring, with the added complication of out-of-state imprisonment. The press release reads:

Corrections Corporation of America (NYSE: CXW) (“CCA”), the nation’s largest provider of corrections management services to government agencies, announced today that it has amended its agreement with the California Department of Corrections and Rehabilitation (“CDCR”) to allow for the housing of 2,336 additional offenders from the state of California. Under the amended agreement California will have the ability to house additional inmates at CCA’s North Fork Correctional Facility in Oklahoma and its Red Rock Correctional Center in Arizona. The 2,336 additional beds provide the CDCR the ability to house up to 10,468 offenders in five CCA owned facilities located in the states of Arizona, Mississippi and Oklahoma. CCA currently houses approximately 7,900 offenders from the state of California.
CCA is America’s largest private jailer, housing 75,000 inmates in its institutions.
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Props to Jerry Jarvis for alerting me to this.