e-mail us

Cover story

Prisons a new growth industry

Special to the National Catholic Reporter

More than words, it is the numbers that tell this story, yet behind every statistic is a story waiting to be told. One is about Gregory Taylor, a homeless man arrested in the wee hours of the morning after security guards spotted him trying to pry open the metal screen over the kitchen door at St. Joseph’s Church in Los Angeles.

At Taylor’s trial, Fr. Allan McCoy, the parish priest, testified that he had often given Taylor food and let him sleep at the church occasionally. But Taylor was convicted of burglary, and because he had two prior “strikes” against him, he was sentenced to 25 years to life in prison. The harsh punishment was handed down despite a plea by McCoy, technically the “crime victim,” against imposing a three-strikes sentence. Lawyers for Taylor appealed, saying the defendant may have honestly believed he was entitled to the food because priests had regularly given him food and shelter in the past, but the 2nd District Court of Appeals in April denied the appeal in a 2 to 1 vote.

Taylor’s case, many would argue, represents the excesses of a get-tough approach to crime that has caused an explosion in the U.S. prison population. It is a development that might carry in its wildest success the very arguments for its own reversal. For as America’s prisons continue to bulge, giving rise to a new growth industry -- privately owned prisons -- deep and serious flaws in the U.S. justice system become glaringly apparent.

With nearly 2 million people incarcerated, the growth of the U.S. prison population has dramatized the severe racial imbalances in the justice system, inequities that begin with enforcement strategies and carry through the court system and sentencing. Mandatory sentencing has stripped judges of discretionary authority that historically has resided in that position and handed it over to prosecutors. And the clamor for more punishment from a frightened electorate, say the critics, has incited politicians to weigh into the justice system repeatedly in recent years, often sacrificing long-term wisdom to vote-friendly short-term fixes.

The failure of the get-tough policies -- harsher prison terms, mandatory sentencing and relentless construction of new prisons -- is so evident that some of the country’s best-known law-and-order advocates are saying “enough.” They see little being accomplished apart from the warehousing of more and more people each year.

“What we’ve done is confuse accountability with incarceration,” said Nancy Mahon, director of the Center on Crime, Communities and Culture in New York. “One of our concerns is that this heavy focus on incarceration as the way to address crime is incapacitating people without addressing the problem.”

Growth of for-profit prisons

Ironically, their pleas come at a time when one of the newest players in the criminal justice arena -- the privately owned or operated prison -- is hitting its stride. Growth of the worldwide private prison industry, whose specialized product is inmates, “has been explosive, from about $650 million in 1996 to about $1 billion in 1997,” acording to a 1998 study done for Congress. A 1997 study by the brokerage firm Legg Mason Wood Walker, projects private prison operations will be worth $4 billion by 2002.

The overwhelming majority of that growth has occurred in the United States.

The Private Corrections Project of the University of Florida in Gainesville notes that 10 years ago there were just under 11,000 private prison beds throughout the world. Today, that figure stands at 138,000 in 188 facilities worldwide, most of them in the United States.

In 1998, according to the project, the capacity of private prisons in the United States was 116,923 in 160 facilities owned and/or operated by 14 companies. The largest company is CCA with more than 67,000 beds in the United States. The state with the most privatized prisons is Texas with 43.

According to the latest Justice Department statistics:

  • About 1.8 million people -- one out of every 150 Americans -- are behind bars. This population has doubled over the past 12 years.
  • On any given day, 1.96 million U.S. children have a parent or other close relative in jail or prison; 5 million more have parents who have been incarcerated.
  • One out of three young African-American males is under some form of criminal justice supervision.
  • For every black male enrolled in a California college, five are behind bars; for every Latino in a four-year college, three are incarcerated.
  • The number of women inmates has tripled since 1985; 78 percent of the women in state prisons are mothers, many of them single parents. African-American woman are the fastest-growing demographic group among the newly incarcerated.

Those who support a get-tough approach to crime say it’s working and point to FBI statistics that show most crime is down. The Sentencing Project, a national, nonprofit organization, points out that despite an almost doubling of the rate of incarceration in the United States from 1985 until 1995, crime rates continued to rise from 1985 to 1991 and then declined from 1991 to 1995. But according to the liberal Justice Policy Institute, more than half of all new inmates are locked up for

offenses involving neither harm, nor threat of harm to someone.

The increase in incarcerations has dramatically increased jail costs. The average annual cost of keeping an adult prisoner ranges from $30,000 to $75,000, depending on the facility and the security level, and the costs of building and maintaining prisons jumped from $7 billion to $38 billion between 1980 and 1996.

If the get-tough initiatives are failing today, they hold the seeds for even greater failure tomorrow. In the June issue of The Atlantic Monthly, Sasha Abramsky reports that, even with mandatory and truth-in-sentencing laws, on average more than 40 percent of prison inmates are released in any given year.

In 1995 that meant 463,284 inmates were released; 660,000 are expected to be released in 2000, some 887,000 in 2005, and about 1.2 million in 2010. “Even factoring in lower release rates because of three-strikes laws and truth in sentencing, and even taking into account estimates that 60 percent of prisoners have been in prison before, there will still be somewhere around 3.5 million first-time releases between now and 2010, and America by then will still be releasing from half a million to a million people from its prisons each year (not to mention hundreds of thousands more from short stints in jail). That is an awful lot of potential rage coming out of prison to haunt our future.”

Even Buckley says time to change

Statistics like those seem to have prompted a sea change in the thinking of even conservatives such as William F. Buckley Jr. who, in a 1995 statement to the New York Bar Association, reasoned, “ ... one dollar spent on the treatment of an addict reduces the probability of continued addiction seven times more than one dollar spent on incarceration. Looked at another way: Treatment is not now available for almost half of those who would benefit from it. Yet we are willing to build more and more jails in which to isolate drug users even though at one-seventh the cost of building and maintaining jail space and pursuing, detaining, and prosecuting the drug user, we could subsidize commensurately effective medical care and psychological treatment.”

Princeton University professor John J. DiIulio Jr., a leading conservative criminologist writing in The Wall Street Journal last spring, declared “the nation has ‘maxed out’ on the public-safety value of incarceration.”

“Until recently, increased incarceration has improved public safety. But as America’s incarcerated population approaches 2 million, the value of imprisonment is a portrait in the law of rapidly diminishing returns,” DiIulio wrote. “The justice system is becoming less capable of distributing sanctions and supervisions rationally, especially where drug offenders are concerned. It’s time for policy makers to change focus, aiming for zero prison growth.”

DiIulio and Buckley join a growing chorus of academics, law enforcers and intellectuals from across the political spectrum critical of a criminal justice system that distinguishes the United States, along with Russia, as having the highest incarceration rate in the industrialized world; where the number of black men in prison is four times higher than that of South Africa during apartheid; where people who kill white persons are far more likely to be executed that those who kill minorities; where, as other countries abolish the death penalty, capital punishment is on the increase; where, in 24 states, people can be put to death for crimes they committed as children. All at a staggering cost.

Jenni Gainesborough of the Campaign for an Effective Crime Policy, a Washington-based nonpartisan coalition of corrections officials, prosecutors and academics, said in an interview with NCR that she is beginning to see a growing consensus, not necessarily among politicians, but among policymakers and academics -- “those who had supported the lock ’em up and throw away the key approach, who now are saying we’ve gone far enough in that direction ... particularly in the so-called war on drugs.”

Gainesborough continued: “Every year, we’re seeing so many people locked up because we aren’t dealing with the need for drug treatment. The answer is to do something about the fact that people are taking drugs and committing crimes. We take people and lock them up and don’t give them treatment, then let them back onto the street.” Nonetheless, federal and state lawmakers, ever sensitive to what they perceive as voters’ thirst for harsh sentencing both in court and at the polling booth, continue to pass sweeping mandatory sentencing laws, the results of which are filling prisons faster than they can be built.

It was the Omnibus Crime Bill of 1984 that escalated the drug war with mandatory minimum sentences for drug crimes. Those laws, passed by Congress and many state legislatures that followed suit, force judges to hand out fixed sentences, without parole, to people convicted of drug and gun-related crimes.

The spoils of war

Federal mandatory sentences are determined by the amount and type of drug involved and the number of prior convictions. Motivation to break the law, the offender’s role in the crime and the likelihood of re-offending are not allowed as factors in the sentencing decision. Yet, even with such specific guidelines, punishment is meted out far more heavily to black and Hispanic convicts. A 1991 report to Congress by the U.S. Sentencing Commission found that “whites are more likely than non-whites to be sentenced below the applicable mandatory minimum.”

In cases where mandatory minimums apply for drug offenses, a 1992 Federal Judicial Center report found that “there has always been a tendency for the sentences of whites to be lower than the sentences of non-whites, a difference that, unfortunately, has become larger over time.” The average sentence for African-Americans was 28 percent higher in 1984 than for whites. That gap dropped to 11 percent in 1986, but since then it has steadily increased. By 1990, the average sentence for blacks was 49 percent higher than for whites.

Further, it is prosecutors, not judges, who have the discretion to decide what quantity of drugs to include in a charge, whether to accept or deny a plea bargain, to reward or deny a defendant’s “substantial assistance” or cooperation, and ultimately, to determine what the final sentence will be.

Writing in the October 1998 issue of the [Fordham Law Review] (“Prosecution and Race: The Power and Privilege of Discretion”) American University associate law professor Angela J. Davis states, “At every step of the criminal process, there is evidence African-Americans are not treated as well as whites -- both as victims of crime and as criminal defendants.”

Davis lays the blame squarely at the feet of prosecutors who, she writes, “more than any other officials in the system, have the power, discretion and responsibility to remedy the discriminatory treatment of African-Americans in the criminal justice process.

“Although police officers decide whether to arrest a suspect, the prosecutor decides whether he should be formally charged with a crime and what the charge should be. This decision is entirely discretionary,” Davis writes. The charging decision often predetermines the outcome of a criminal case, according to Davis, since the vast majority of such cases result in guilty pleas or guilty verdicts.

“The charge also often determines the sentence the defendant will receive, particularly in federal court, where criminal sentences are governed by the federal sentencing guidelines, and in state cases involving mandatory sentencing.”

When Attorney General Janet Reno ordered the Justice Department to determine how many nonviolent offenders were serving mandatory sentences, she found more than one in five federal prisoners were low-level drug offenders with no record of violence, no involvement in sophisticated criminal activity and no prior prison record.

New York’s so-called Rockefeller laws, in place since 1973, mandate terms ranging from 15 years to life for nonviolent drug offenses. Nearly one-quarter of recent incarcerations in that state were of felons whose only crimes have been low-level, nonviolent drug offenses, according to research by DiIulio and University of New Mexico criminologist Bert Useem.

A quarter century after the drug war was launched, with eight times as many people in prison and 2.3 million people on probation and parole, Nobel Prizewinning economist and Hoover Institution senior research fellow Milton Friedman declared in a 1998 New York Times editorial: “There is no light at the end of the tunnel. How many of our citizens do we want to turn into criminals before we yell ‘enough’?”

Families Against Mandatory Minimums, or FAMM, a national citizens group that advocates the reform of federal and state mandatory sentencing laws, points to a recent Gallup Poll that found 90 percent of 350 state and 49 federal judges surveyed opposed to federal mandatory minimum sentencing for drug offenses.

In California, where lawmakers five years ago pioneered “three-strikes” laws that send people away for between 25 years to life for a third felony conviction, Sacramento Superior Court Judge Barry Loncke in an interview with NCR said the state’s sentencing criteria “are so warped these days because of the political need to satisfy a public that seems unaware of the consequences of these mandatory-sentencing schemes.”

The result of the laws, Loncke says, has been to remove discretion from judges “who often have a good feel for the person before him or her, and realize that person could deal with less punishment than called for, yet they’re sometimes unable to do anything about that.”

Loncke, who advocates community-based accountability and alternative-sentencing programs for criminals, is an outspoken critic of lawmakers who fear appearing soft on crime. “Quite often there’s not enough political gumption to say, ‘That’s crazy. I’m not voting for that.’ Because they’re afraid it will come back to them in the next election.”

In Washington, Gainesborough of the Campaign for an Effective Crime Policy concurs. “The anecdote of the week is driving public policy. People are afraid of what they see -- the violent images put in front of them about crime -- and lawmakers react by passing more get-tough-on-crime measures. That sets up a situation where, once they’ve done it, they’ve boxed themselves into a corner and find it difficult to turn around and say, ‘Maybe we need to do something different.’ ”

At the Center on Crime, Communities and Culture, Mahon, too, has harsh words for politicians who fail to respond to waves of studies that show America’s prison system isn’t working and money would be better spent on education and rehabilitation programs. Building more prison complexes while cutting education and literacy programs within them Mahon calls an “ill-informed, mean-spirited action that the states and the federal government have taken so politicians can look like they’re ‘tough on crime.’ It’s a very limited approach over the long term and it’s creating crime for our children, because the vast majority of people in prison now, 95 percent, are going to get out, and we’re not doing much to redirect them when they come out.”

The blindfold of justice

Richard Pryor, the African-American comedian, jokes that when blacks go down to the courthouse looking for justice, “that’s what we find: just us.” But the effect on African-American and other communities of color is no laughing matter. Well over half of those sentenced under California’s “three strikes” provisions are minorities. Department of Corrections statistics indicate that, as of Dec. 31, of the 4,884 people sent to prison for 25 years or more for a third strike, 2,138 were African-American; 1,262 were Latino, 201 were classified as “other”; and 1,237 were white.

“Our laws are having the effect of genocide,” says Judge Loncke, who is black. “Prisons are, in fact, becoming concentration camps for a group of people who don’t need to be there. If that’s the drug war, then it’s a war that’s had a pernicious effect on our community ... a war waged against the weak and those unable to defend themselves.”

Although African-Americans comprise about 12 percent of the national population and 13 percent of drug users, they make up 35 percent of those arrested for drug possession, 55 percent of those convicted for drug possession and 74 percent of those imprisoned for drug possession, according to the U.S. Sentencing Commission. According to the commission’s 1997 special report to Congress, while more than 80 percent of the defendants convicted of crack possession are African-American, more than half of all crack users are white.

Former drug czar William Bennett, in fact, described the typical cocaine user as “white, male, a high school graduate employed full-time and living in a small metropolitan area or suburb.”

“There is as much cocaine in the Sears Tower or in the stock exchange as there is in the black community,” Commander Charles Ramsey, supervisor of the Chicago Police Department’s narcotics division, told the Los Angeles Times. “But those guys are harder to catch.” Instead, law-enforcement efforts focus on urban and inner-city areas populated primarily by African-Americans and other people of color, where multi-agency sweeps are carried out under media-hyped, paramilitary names like Operation Pressure Point in New York, Operation Thunderbolt in Memphis and Operation Hammer in Los Angeles.

The racial inequities are exacerbated by the difference in penalties for the possession and use of cocaine base, or crack cocaine, and powder cocaine. The penalties for crack, used mainly by minorities in urban settings, are 20 times more severe than those for powder cocaine. The federal mandatory minimum sentence for possession of more than five grams of crack cocaine (averaging $225 to $750 retail, according to the Sentencing Commission) is five years in prison (five grams amounts to a teaspoon of crack). First-offenders get the same five-year penalty for dealing 500 grams of powder cocaine (averaging $32,500 to $50,000 retail).

Acknowledging criticism of those differences, the Sentencing Commission in 1994 recommended the equalization of the amount of crack and powder cocaine that triggers federal mandatory sentencing requirements. Commission Vice Chairman Michael S. Gelacak wrote at the time: “Even though the commission has conceded that there was no intent by the Legislature that penalties fall disproportionately on one segment of the population, the impact of these penalties nonetheless remains. ... The problem is particularly acute because the disparate impact arises from a penalty structure for two different forms of the same substance. It is a little like punishing vehicular homicide while under the influence of alcohol more severely if the defendant had become intoxicated by ingesting cheap wine rather than scotch whiskey.”

Penalties fall on black youth

He continued: “Black Americans know that the penalties for crack cocaine fall primarily upon the youth of their communities and they do not countenance the present penalty structure. There is a vast difference between wanting to rid your neighborhoods of crack users and dealers and wanting members of your community treated more harshly than others using and trafficking in the same substance in a different form.” Congress rejected the commission’s recommendation.

One result of this discrepancy has been the permanent disenfranchisement of fully 1.4 million African-American men -- 13 percent of black males in the country -- who, as of October 1998, had their right to vote taken away because of felony convictions.

Forty-six states deny prisoners the right to vote; 32 states prohibit felons on probation and/or parole from voting; 14 states and the District of Columbia take away voting rights only while felons are in prison, and another 14 rescind voting rights permanently. Among the latter states, former felons may regain their voting rights only by order of the governor or by an action of the parole or pardons board, but it rarely happens, according to the Human Rights Watch/Sentencing Project report. One example is Virginia, a state that permanently removes voting rights of felons, where only 404 of the approximately 200,000 felons have had their rights restored in the past two years.

According to a 1998 report by Human Rights Watch and The Sentencing Project, “(T)he restrictions on voting by ex-felons clash with long-standing notions of justice -- that once offenders have paid their debt to society, they are free to resume a normal life in the community.”

Amnesty International reports there are about 138,000 women prisoners in the United States -- three times the number in 1985 -- 40 percent of whom are serving time on drug violations. The largest increase has come among African-American women, who are jailed eight times as often as white women, and Hispanic women, who are incarcerated at four times the rate of whites.

Sexual misconduct and various forms of abuse and neglect of female inmates so pervade the U.S. correctional system that human rights violations are virtually a daily part of prison life, according to an Amnesty report on the violation of the human rights of women in custody, issued in March.

“Amnesty International has found that sexual abuse is virtually a fact of life for incarcerated women in the U.S.,” William F. Schulz, executive director of Amnesty International USA, said at a news conference in Washington when the document was released. The report notes that in 12 states, there are no laws prohibiting sexual contact between prisons guards, who are primarily male, and female inmates.

“Our report documents other kinds of human rights violations, including prison guards who shackle women’s legs to bedposts during labor and medical staff who refuse to authorize treatment for life-threatening illnesses.”

More than 2,000 women arrested last year were pregnant, and an estimated 200,000 U.S. children have mothers in jail or prison. Amnesty’s report states: “In a vicious cycle of crime and punishment, children of incarcerated mothers are in danger of entering a spiral of social disenfranchisement and criminal activity, often resulting in their own incarceration. The low priority given by prison administrators to maintaining mother/child relationships contributes to family disruption and children’s social alienation. Harsh sentencing for nonviolent, first-time drug offenders has exploded the population of women in prison by 432 percent between 1986 and 1991 and places more children at risk.”

No holds barred

Ironically, as the nation’s prison population grows, rehabilitation efforts such as San Antonio parenting program are shrinking as public money once available for rehab is diverted into additional beds needed to house the burgeoning population. And true to the American way of capitalism, where there’s growth there’s money to be made. Prisons are no exception. Increasingly, private-sector companies are getting into the business of incarceration, luring government agencies with the promise of prisons built in half the time for less money, and touting lower operating costs than their public counterparts.

Usually paid based on inmate occupancy per day, these companies must find ways to keep costs down and occupancy up to maximize the profits so crucial to their bottom line. The largest of these, Corrections Corporation of America, whose real estate division is publicly traded on the New York Stock Exchange, operates 50 correctional facilities in 17 states and the District of Columbia, with more than 50,000 beds in use and more on line.

On May 21, the company issued a news release “in an effort to dispel unsubstantiated rumors involving inmate sourcing and occupancy levels,” and, apparently, to calm investors’ jitters. The statement said that as of May, the corporation had an overall occupancy rate of more than 93 percent. The occupancy rate in its federal facilities was 100 percent. Since September 30, 1998, Corrections Corporation of America has opened six new facilities and five expansions with design capacity of 6,633 beds, the release stated.

Among the corporation’s newest facilities is a $94 million, 2,300 medium-security prison built on speculation in the desert of California, part of which is expected to open this summer. “We are excited about this project as it opens an important new market for CCA,” CEO Doctor R. Crants stated in a news release when the company announced it was building the California prison. Although California, as yet, has no large scale private prison contracts due to the political muscle of the prison guards union, a move is afoot in the Legislature to change that, spearheaded by Democratic Sen. Richard Polanco.

“The issue is how you address the problem of overcrowding without allowing autopilot prison spending,” said Polanco’s chief of staff, Bill Mabie, whose boss chairs the Senate Select Committee on Prison Construction and Operation. Mabie said Polanco is eying a range of options including alternative sentencing plans and boot camps or intensive drug treatment for drug offenses, we well as private prisons. David Myers, president of CCA’s West Coast region, said if the state does agree to privatization, his company can house prisoners in its new facility for about $55 each per day, or $25 less than the state cost of $80 per person daily. If state lawmakers fail to contract with CCA, the new facility is expected to house federal inmates brought in from out of state.

Myers said his company provides better rehabilitation programs than those offered in state penitentiaries, where, he said, overcrowding has muted the benefits of such programs. “If you take a prison that has 2,000 inmates in it and you have five rehabilitation programs, and you put another 2,000 inmates in there, you still have those same programs, but your conditions of confinement are so horrible there’s nothing good taking place,” Myers said.

Although CCA couldn’t turn away extra prisoners if the state wanted to house them in their facility, Myers said, his company “would be able to add cell blocks, spend our own money. We would just do it, no committees, no laws, just build it.”

In California City, Calif., home to CCA’s new facility, city manager Jack Stewart said his town has laid out the welcome mat for the prison, which is expected to bring about 500 new jobs by the time it’s fully operational this fall. The economy of California City, a bedroom community for nearby Edwards Air Force Base, has suffered the whims of a fickle aerospace industry and was “looking for an industry that wouldn’t have its ups and downs,” Stewart said.

National Catholic Reporter, July 2, 1999