Cover
story Prisons a new growth industry
By KATHRYN CASA
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. Josephs Church in Los Angeles.
At Taylors 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.
Taylors 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 Americas 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 countrys 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 weve 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 its
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 Americas 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. Its 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 weve gone far
enough in that direction ... particularly in the so-called war on drugs.
Gainesborough continued: Every year, were seeing so
many people locked up because we arent 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 dont
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 offenders 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 defendants 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 Yorks 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 states 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
theyre 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 theres not
enough political gumption to say, Thats crazy. Im not voting
for that. Because theyre 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 theyve done it, theyve 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
Americas prison system isnt 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 theyre tough on
crime. Its a very limited approach over the long term and its
creating crime for our children, because the vast majority of people in prison
now, 95 percent, are going to get out, and were 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, thats 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
Californias 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 dont need to be there. If thats the drug
war, then its a war thats 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 commissions 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 Departments 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 commissions 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 womens 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. Amnestys
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 childrens
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 nations 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 theres growth theres 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 corporations 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 Polancos 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 CCAs 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 theres nothing good taking place,
Myers said.
Although CCA couldnt 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 CCAs 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 its 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 wouldnt have its ups
and downs, Stewart said.
National Catholic Reporter, July 2,
1999
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