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Elizabeth Warren’s Flawed But Well-Intentioned Proposal For Banning Private Prisons

Editor’s Note

The following was sent out to subscribers to the weekly newsletter, “Keeping The Issues Alive.” It granted subscribers early access before it was published for the general public at Shadowproof.

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Democratic presidential candidate Elizabeth Warren published a policy proposal to ban private prison facility management and place stronger controls on the outsourcing of services in the criminal legal system.

In making her case, Warren attempts to broaden the public’s limited understanding of privatization as a matter of facility management. She raises issues of extortion faced by prisoners and those who support them, and she highlights the growing lobbying influence of private companies searching for avenues to expand their reach into other areas of the system.

“We need significant reform in both criminal justice and in immigration, to end mass incarceration and all of the unnecessary, cruel, and punitive forms of immigration detention that have taken root in the Trump administration,” Warren argues.

Unfortunately, it does not seem that Warren’s proposal is adequate enough. Some of these issues relate to limitations any president faces in pursuing a top-down strategy on criminal punishment issues that are largely the purview of state and local governments.

Others point to apparent failures to grasp the role that private prisons play when it comes to bed space supply and demand.

First, let’s put private prisons in perspective. As many abolitionists and others have pointed out for years, private prisons make up a very small portion of the overall prison system.

Private federal facilities are a relatively small sliver of the pie. The overwhelming majority of prisoners are housed in public facilities on the state and local level, which are just as terrible and unaccountable as private facilities if not worse.

A strategy for “ending mass incarceration” that prioritizes issues of privatization instead of seeing where that piece fits into the larger puzzle will be doomed from the start.

Specifically, the issue is the absence of a plan for major decarceration: if proposals do not meaningfully address the number of people entering and already inside of these systems, they will miss the mark entirely.

Warren’s campaign website lacks specifics on her other criminal legal proposals. She points to ending racial disparities, banning private prisons, embracing “community policing” and police demilitarization, and “comprehensive sentencing reform,” including “rewriting our laws to decriminalize marijuana.” But these seem like approaches that fail to appropriately embrace decarceration.

Warren is not alone in putting forward flawed policy ideas to address mass incarceration. Bernie Sanders’ past private prison proposals suffered from some similar defects.

Still, it is worth using Warren’s new proposal to illuminate issues in the larger mainstream prison discourse, especially as it relates to privatization’s role in mass incarceration.

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Ban private prisons and detention facilities. There should be no place in America for profiting off putting more people behind bars or in detention. That’s why I will shut down the use of federal private detention facilities by ending all contracts that the Bureau of Prisons, ICE, and the U.S. Marshals Service have with private detention providers. And I will extend these bans to states and localities by conditioning their receipt of federal public safety funding on their use of public facilities.

Warren’s first bullet point suggests she will order the federal government to end all facility management contracts with private prison companies.

This would be a major improvement over President Barack Obama’s celebrated plans for reducing reliance on private prisons, which were promptly rolled back by the Trump administration.

However, as the major thrust of the plan, the absence of a decarceration strategy ignores why governments across the United States turned to privatization in the first place: to accommodate an insatiable appetite for criminalizing and incarcerating people.

Privatization is attractive to governments because it reduces overcrowding, contractors bear the majority of the costs, and governments shield themselves from legal liability and transparency.

Any plan to meaningfully deal with privatization must target the root causes behind their use.

To do otherwise poses a serious risk of catastrophe. It means shifting prisoners into public prisons which are already overcrowded, unsanitary, and inhumane.

Many of these facilities are very old and have fallen into disrepair. And they suffer from the same oversight and accountability issues as all other prisons (privately operated or otherwise).

Population reductions from the First Step Act (FSA) may ease some of this pressure. But the number of prisoners who will be heading into public facilities will most likely dampen those reductions, which is important to understand given the rising number of immigrants detained each year that are explicitly barred from the release provisions of the FSA.

Faced with fewer beds but not fewer prisoners, the federal government will need to figure out where to house everyone.

In addition to cramming people into existing facilities, there’s a risk the federal government could embark on prison construction, expansion, and acquisition projects to create new capacity.

The federal government may also hunt for bed space in state prisons and county/municipal jails (again), many of which have the same problems.

Jails are particularly ill-suited for the task of detaining sentenced prisoners because they are built for short-term temporary detention. That makes them especially dangerous for prisoners with serious medical needs (of which there are very many) because most don’t have adequate on-site medical facilities or staff even for their pretrial population.

If the federal government beefs up its reliance on prisons and jails on the state and local level, the flow of federal dollars previously enjoyed by private companies will instead go to state corrections departments and sheriffs, who will be happy to pad their budgets.

Some jail construction projects already anticipate this kind of contracting from the federal government to the point that they even include extra beds for the sole purpose of renting them out to other incarcerators for a lucrative fee.

In fact, the federal government already outsources some incarceration to state and local facilities to hold detainees for immigration authorities and the U.S. Marshall’s service across the nation.

Facilities may even choose to pass federal prisoners off to sub-contracted private prisons anyway, as has happened in Tennessee.

None of the above would seem to run afoul of Warren’s proposal.

The absence of decarceration in this plan could also mean worsening the painful separation of prisoners away from their families and established support networks to facilities that have space for them. This will have serious negative consequences, given how crucial such connections are to surviving prison and reintegration.

Another issue with Warren’s proposal is her plan to extend a ban on privatized facility management to the state and local level by “conditioning their receipt of federal public safety funding on their use of public facilities.”

Federal funding has long been a mechanism through which the government has tried to influence criminal punishment on the state and local level. Despite its popularity, it’s not clear whether this tactic actually works due to the unbridled nature of state incarceration spending and the comparably small percentage of budgets derived from federal funding. The dependency is just not strong enough.

In his book “Locked In: The True Causes of Mass Incarceration And How To Achieve Real Reform,” Fordham University law professor John Pfaff pointed to some examples of where this federal funding strategy has failed.

Observing that withholding federal funds from states to influence their punishment and management of sex offenders did not yield the intended result, Pfaff noted, “States felt that the costs of losing the grant money were less than the costs of implementing the program, so they just ignored it.”

Pfaff added the “amount at stake just didn’t measure up to the amounts state governments were already spending.”

He observed a similar dynamic with regard to truth-in-sentencing laws: “Although 27 states adopted truth-in-sentencing laws, only four said [federal] grants really shaped their decision, and eleven said they had a partial effect. For thirteen states, the grants were irrelevant and twenty-three more never adopted the laws at all.”

“All told,” according to Pfaff, “despite the federal government authorizing about $10 billion for the program, states claimed only around $3 billion, leaving 70 percent of the money unclaimed.”

Warren’s proposal could benefit from more creative means of influencing state behavior.

That being said, it is not clear how much any president would be able to control the choices of states and localities with regards to private facility management. Criminalization, incarceration, and all that comes with it are largely local affairs in which the federal government cannot meaningfully intervene. They require bottom-up mobilizations.

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Stop contractors from charging service fees for essential services. Companies shouldn’t be able to treat incarcerated individuals as captive profit centers. We should prohibit contractors from charging incarcerated and detained people for basic services they need, like phone calls, bank transfers, and healthcare. I’ll also keep contractors from imposing exploitative price markups on other services they provide, like commissary or package services. And I’ll prohibit companies from charging for re-entry, supervision, and probation services, too — because no one should have to pay for their own incarceration, whether it’s inside a facility or outside of one.

Service providers are not well regulated and placing caps on pricing for these services could go a long way.

However, these caps must be coupled with strictly enforced minimum standards and requirements that apply not only to contractors but to the prison system itself.

Contractors could vacate the space altogether once their profit margins dry up, looking for the next area in the system to reap enormous profits. While this is not necessarily a bad thing, if it is not handled correctly, the people who depend on those services could see them disappear or become severely truncated.

Left to their own devices, public facilities will simply cut or severely restrict services altogether. This is why it’s important to recognize the root causes and, most importantly, decarcerate. Governments privatized these services for reasons that are similar to why they sought to contract out facility management: to reduce costs and shift liabilities in the face of growing detained populations.

Besides, there’s nothing stopping them from imposing their own enormous fees and restrictions simply to generate funds for or accommodate their own budgets.

Even if there are rigorous minimum standards, a Warren administration should expect states to resist and risk court challenges, which can take years to initiate and even more years to resolve themselves.

In some cases, administrators have used kickbacks from these services to supplement their budgets, which (although large already) never seem to keep up with the pace of incarceration.
                                                            
This is not to say that none of this is worth doing, only that standards need to be clearly delineated and enforced swiftly and powerfully. Otherwise, it is prisoners and their families who will be left to shoulder the largest burden.

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Hold contractors accountable by expanding oversight, transparency and enforcement. It’s time to shine sunlight on the black box of private services that receive taxpayer dollars. I’ll close the ridiculous FOIA loophole that lets private prison subcontractors operate in the shadows. I will put in place an independent Prison Conditions Monitor within the Department of Justice’s Office of the Inspector General. The Monitor will keep contractors from cutting corners to make a quick buck by setting enforceable quality standards, regularly auditing and investigating contractors, and terminating their contracts if they fall short. I’ll direct the Department of Justice to prosecute companies that blatantly violate the law. And I’ll make sure companies are held accountable no matter who’s in the White House by allowing people to bring a lawsuit against abusive contractors who violate their rights.

Warren is correct in identifying a major issue with oversight and enforcement of contracts. Ending the FOIA [Freedom Of Information Act] loophole is great and monitoring, prosecuting, and terminating agreements with contractors for failure to adhere to standards is critically important. But it is unclear if these monitors will focus solely on contracting with the federal system.

The state and local systems are magnitudes larger and highly fractured. Oversight in these areas is critical and worth fighting for and would have the potential to impact many more people, but would take serious dedicated resources and planning.

Warren needs to be pressed to make sure there is actually follow through.

Monitoring and reporting provisions with contractors exist already.  Many issues are known. The problem is these provisions are rarely exercised meaningfully, recommendations made in audits and reports are rarely acted upon, and often recommendations are only carried out after a groundswell of attention.

Contracting agencies and oversight bodies are incredibly disinterested. This is where an independent body could help. The public would need to make sure the body had the funds, powers, and dedication to truly provide oversight.

So while Warren can add more layers to the process, she should also push for jurisdictions to enforce the existing terms in their contracts in the first place, and there should be consequences for failing to abide by these terms.

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Brian Sonenstein

Brian Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.