Last week Deputy Attorney General Sally Q. Yates seemingly turned the criminal justice world upside down. Her tool? A two-page memo to the acting head of the Bureau of Prisons that laid the groundwork for cutting off relations between the federal government and private prison operators. Citing the private facilities for excessive levels of violence, lack of “rehabilitative” services and failure to deliver on promised cost cutting, she directed the BOP head to “reduce” with the aim of “ultimately ending” federal contracts with private prisons. In the immediate future, BOP is either to “decline to renew” or “substantially reduce” the “scope” of each private prison contract when it ends.
However, while the political reverberations of Yates’ memo were enormous, its target is relatively small. Of the some 195,000 people in BOP facilities, a mere 22,000 are held in just 13 private prisons, less than 1 percent of the nation’s incarcerated population. Three companies control all of these prisons: Corrections Corporation of America (CCA), the GEO Group, and Management and Training Corporation (MTC). To further compound the issue, 11 of these institutions are a special category of facility known as Criminal Alien Requirement (CAR) prisons. These house immigrants who have a criminal conviction. Often called “shadow prisons,” CAR facilities have been controversial in immigrants’ rights circles since their launch in 2005 as part of President Bush’s notoriously anti-immigrant policy known as Operation Streamline. The majority of those in CAR facilities are Latinos.
Private prisons have been the issue that the anti-mass incarceration activists have most loved to hate. No aspect of the prison-industrial-complex has drawn as broad a range of support as opposition to private prisons. As a result, response to the memo has been widespread and varied. While noting that far more steps were needed to end mass incarceration, Bernie Sanders joined in praising the measure, characterizing it as “an important step in the right direction” and “exactly what I campaigned on as a candidate for president.” David Fathi, director of the ACLU National Prison Project, called the memo “historic and groundbreaking… a startling and major reversal” of a trend that has spanned 35 years.
Writing in the Atlantic, commentator Juleyka Antigua-Williams described the Justice Department’s actions as signaling a “willingness to address the current incarceration crisis with knowledge, foresight and empathy.” Bethany Carson, researcher and organizer at Grassroots Leadership, a non-profit that advocates for immigrants’ rights, said she hoped “this decision will take the profit motive out of the BOP’s incarceration of non-citizens prosecuted for crossing the border… [and] be a stepping stone… to end the use of segregated prisons for non-citizens and deprioritize improper entry and re-entry prosecutions.”
Not all commentators were as positive. While welcoming the change, the Center for Constitutional Rights argued that the government should go further and cut out all private corrections’ involvement in the immigration system: “It’s time to end the role of CCA, GEO, and other prison profiteers in our inhumane immigration system,” their statement said. In addition to the CAR prisons, private operators run immigration detention centers, which house roughly 20,000 people. These centers fall under the jurisdiction of Homeland Security and therefore lie outside of Yates’ authority. In recent years, immigration detention centers have become the key market niche of the private prison industry. While private prisons only manage about 8 percent of total prison beds in the U.S., they hold 62 percent of immigration detention spaces, up from 49 percent in 2009. Nine of the 10 largest Immigration and Customs Enforcement detention centers are private.
Prison abolitionists were also generally skeptical of the proposed changes. Dan Berger, author of Captive Nation, classified the measure as “hardly spectacular,” noting to AlterNet that “as with so many of the prison reforms of the last few years… [the] announcement sounds better than it is.” While noting that she was “celebrating” the move, Maya Schenwar, editor of Truthout and author of Locked Up, Locked Out, called for a “renewed commitment” to fight for decarceration and an end to criminalizing the poor.
This surprise step by the Department of Justice raises a number of questions. Perhaps the most obvious is, why now? The Washington Post, which broke the story, largely attributes the policy shift to a recent report by the Bureau of Justice, which highlighted the poor performance of private prisons. While the report may have played a part in the DOJ move, this shift is not solely a product of bureaucratic investigations.
Rather, at long last, the feds are reacting to what has perhaps been the single most well-organized, well-resourced campaign of all the efforts made to undermine mass incarceration. As I have argued elsewhere, much of this opposition has been based on general anti-corporate sentiments as well as a disdain for profiteers who rely on locking up more people for longer periods of time to secure bottom lines. Moral outrage has fueled unprecedented levels of action. As far back as 2000, the United Methodist Church passed a resolution expressing its“opposition to the privatization of prisons and jails.” Presbyterian, Catholic, Episcopalian and United Church of Christ folks from Newark to Fairbanks have subsequently followed suit.
A number of non-profits have also consistently exposed the retrograde actions and plans of private prison firms like CCA and the GEO Group. Organizations such as Justice Strategies, Grassroots Leadership, Human Rights Defense Center and Prison Legal News have produced extensive reports and social media pieces in the effort to halt the advance of private prisons. Frank Smith, a co-founder of the Private Corrections Working Group (PCWG), told AlterNet that PCWG has been involved in opposing private prisons in 19 states.
Likely the most far-reaching opposition has come from the National Private Prison Divestment Campaign, launched in 2011. Focused on pressuring institutional investors to divest holdings in private prison shares, this campaign has involved more than 200 partner groups. The steering committee includes the Afrikan Black Coalition, ColorofChange.org, the Queer Detainee Empowerment Project, and one of the country’s largest labor organizations, the Service Employees International Union (SEIU), which represents 1.9 million workers. The Campaign has won divestment victories at UC Berkeley, Wesleyan and Columbia as well as persuading investment firms like Pershing Square Capital Management and Allianz Asset Management to strip away shares in private prisons.
Activists have been busy in state legislatures as well. In 2012, 17 religious and non-profit organizations formed a coalition that halted a proposal to privatize 27 facilities in Florida. The Sunshine State was also the site of another high profile action in 2013 when the GEO Group tried to purchase the branding rights to the football stadium at Florida Atlantic University (FAU). An outraged campus rose up, forcing authorities to give back the $6 million gift from GEO Group head George Zoley, an FAU grad, and remove the GEO Group logo off the side of the stadium. University president Mary Saunders subsequently resigned over the episode. Aside from these much-publicized campaigns, more localized grass-roots efforts have stopped efforts to open private facilities in Joliet and Crete, Illinois; Southwest Ranches, Florida; and Gary, Indiana.
What Does November 2016 Have to Do With It?
In recent months, the media have also helped make private prisons an important issue in the presidential campaigns. When Black Lives Matter activists interrupted Bernie Sanders speeches last year, he responded by adding a racial justice plank to his platform, a central point of which was a commitment to end contracts with private prisons. Not long after, Sanders followed up by co-sponsoring the Justice Is Not For Sale Act in Congress. The bill would end all private prison contracts at federal, state and local levels. It is worth noting that Yates’ memo did not go quite that far.
The debate on private prisons spilled over into the Democratic National Convention, leading to a party platform resolution to close private prisons and detention centers. The highlighting of private prisons by the Movement for Black Lives as well as by the Sanders campaign forced Hillary Clinton to renounce further contributions from the private prison companies that previously lent her financial support. She has also added ending private prisons to her election platform.
Ultimately, the feds could have taken any number of moderate steps besides cutting the private prison contracts. Alternatives such as a massive release of elderly and sick people, changing rules for good time credits, streamlining the process for release via clemency, or declaring a blanket amnesty for all those sentenced under the anti-black crack cocaine laws would have contributed directly to reducing the number of people behind bars. Instead of opting for decarceration, they chose a softer and more expedient path.
Election year dynamics have likely prompted this choice. Reducing ties with private prisons not only provided a hook for Sanders supporters, it will also help to enhance union support for the Democrats. The labor movement has been criticizing wages and working conditions in private prisons for years. While most federal prisons are unionized under the American Federation of Government Employees (AFGE), the private prisons are typically non-union. Guards working in a CCA or GEO Group facility earn about 60 percent of their AGFE counterparts. Hence, by removing some private prisons from the federal sphere, the DOJ is also bolstering union power, a key source of political mobilization and resources for Democratic electoral campaigns.
Furthermore, in a polarized environment, rejecting private prisons distances the Democrats’ stance on criminal justice issues from the GOP.
Donald Trump, by contrast, has recently vowed to “triple” the number of private prisons.
Did the Memo Go Far Enough?
In the end, the symbolic impact of cutting the ties with private prisons will likely far exceed the memo’s concrete effects. Most importantly, the memo has not been accompanied by any talk of shortening sentences or early releases of those in the private prisons. Hence, it is likely that there will be no reduction whatsoever in the total number of people behind bars. Bodies will simply be relocated to existing federal prisons, especially since the BOP population has fallen by more than 20,000 in the last four years. Moving immigrants from CAR prisons to mainstream BOP facilities offers only a modicum of relief. The memo has no implications whatsoever for the 1.3 million people held in state prisons and the 646,000 in local jails, the majority of those behind bars.
A bigger question, though, is how far this wave of reform will go. The feds’ move on the private prisons, coupled with its pronouncement against debtors’ prisons on Friday, may signal a much more aggressive stance toward the rampant profiteering that has been such a central component of mass incarceration. A number of recent actions by the federal government, from the Ferguson report to the Federal Communications Commission ruling to cap the cost of prison phone calls, indicates that public outrage at the exploitation of impoverished victims of overpolicing and mass incarceration is making headway in D.C. circles.
For those seeking immediate closures of all private prisons, the ending of contracts will likely not go far enough. While several of the federal agreements with private firms expire in a few months, those for prisons in Moshannon Valley, Pennsylvania and Great Plains, Oklahoma, extend until 2024. Between them the two facilities house nearly 3,800 people, or just under 30 percent of those held in BOP private prisons. Moreover, the terms of the memo are vague. The directive urges contract non-renewal or “reduction in scope.” The issue of scope is subject to broad interpretation, especially when put in the hands of the private prison corporations’ high-powered legal teams.
Will the Carceral Corporations Disappear?
The day after the memo was released, the share prices of CCA and the GEO Group fell by 38 percent and 39 percent, respectively. Clearly this was a big hit to their shareholders (and senior management whose salary package includes massive share options). Investors may be seeing the end for private prisons and looking to reshape their portfolios.
But the private prison firms won’t be closing their doors any time soon. No doubt their strategic planning and marketing teams are already working 24/7 to counter the negative reports on their facilities. More importantly, they will be exploring ways to modify their business model to capture new revenue streams from mass incarceration and criminalization. This will likely include increased lobbying for even harsher immigration laws, of the kind that have yielded them a long string of contracts in the past. In that light, a recent revelation by theWashington Post showed that CCA had recently garnered a $1 billion no-bid contract to open more immigration detention centers. As with many such contracts, the private providers will get their money whether or not the facility is occupied.
In addition, both CCA and the GEO Group have extended their holdings in the area of alternatives to incarceration and community corrections. CCA has recently upped its investment in re-entry programs and day reporting centers. The GEO Group bought out a major provider of electronic monitoring services in the country, BI Incorporated, in 2011. Through BI, they have secured contracts of over $600 million to supervise immigrants awaiting asylum hearings and equip several thousand of them with ankle monitors.
Is This a Victory for the Anti-Mass Incarceration Movement?
Resoundingly, yes. Although this move is flawed, it serves notice that first and most importantly, pressure, mobilization and movement-building work. They may not produce immediate transformation, but in their absence, the vast and complicated prison-industrial complex will not even waver. The feds would not have made this move if they didn’t feel the heat. Mobilization has put this issue on the table and has pushed the Democratic Party toward some progressive platform changes. Activists need to remember this, to trumpet their success and counter the media versions that simply attribute the change to a report or a spontaneous pang of conscience in the higher circles of the Obama administration.
If Hillary wins the election, she will be hard-pressed to restore the previous relationship with the private prison industry. A Democratic landslide in the November election would likely seal its fate—not only at the federal level, but also spark considerable pressure at the state and local levels to move away from a failed experiment of privatization.
While the memo is a welcome recognition of the outrage of millions of people, moving private prisons back to public status will do nothing to reduce total prison populations. It will not redistribute the billions spent on incarceration to the communities, largely urban folks of color, who have been hardest hit by mass incarceration.
Should activists who have spent years fighting the likes of CCA and the GEO Group continue to focus on these corporate rogues? Or is it time to connect the dots between private prisons and putting the squeeze on the public sector institutions, which, at the end of the day, represent the heart and soul of mass incarceration? The prison-industrial-complex remains an enormous and complicated beast. Fighting to reverse the impact of 30-plus years of mass incarceration and mass criminalization of the poor requires focusing on targets that will fundamentally change the situation. Prison and jail populations must be reduced, and resources must be redistributed away from corrections and policing, and instead toward ending poverty and racialized inequality. Prisons must be closed; new jail construction must be halted; cash bail must be ended; mandatory minimum sentences must be retroactively repealed—with billions of dollars redirected into public housing, jobs, vocational training, education and single-payer health care.
The movement has succeeded in putting these questions on the table, as shown by Yates’ memo. Now the requirement is to push a broad program that builds on the flashy, but small step that the Obama administration has just taken.
As author and activist Dan Berger told AlterNet: “The challenge for people concerned about mass incarceration and human rights remains the same. We have to continue pressing to close facilities, not end contracts. To release people, not move them from one kind of cage to another… We have to double down on our opposition to prisons themselves. Politicians are always looking for ways to satiate popular demands without making structural change. We cannot let that happen.”
When the Movement for Black Lives released its platform earlier this month, it demanded federal action “against G4S and other global private prison companies that are profiting from the shackling of our community in the U.S., in Palestine, in Brazil and around the world.” A formal position like this from the largest component of the contemporary black liberation movement indicates demands for structural change, not symbolic gestures, will be the wave of the future.