Our comfortable injustice, Part 2: Incarceration for profit

Read part one of this series, Christians, race, and the U.S. legal system.

Recent years have given rise to what John W. Whitehead and others refer to as the “Prison Industrial Complex.” The Prison Industrial Complex, comprised of companies like the Corrections Corporation of America and GEO Group, are for-profit corporations making money for shareholders by building, owning and operating prisons. Whereas state and federal jails and prisons are maintained by federal or state employees, the prison industrial complex operates for profit like McDonald’s or Burger King. Custody of prisoners transforms taxpayer dollars into corporate profits.

At first blush, this might sound logical. Take some of the society’s burden off government and let private corporations shoulder it. Debt ridden states could use some help. Right? The reality, though, is much darker than a simple shift of responsibility. In order for the prison industrial complex to make a profit, a steady stream of “customers” must be provided. Those “customers” are men, women, boys and girls prey to an ever expanding fog of laws.

Justice Fellowship, a branch of the Prison Fellowship ministry, recognizes governmental intrusion into personal liberty through the increasing number of laws. From their website:

In response to political pressure and publicity campaigns, the United States government has dramatically expanded its federal criminal code. The code contains over 4,000 criminal offenses and at least 10,000 federal rules that can be enforced through criminal sanctions. Many of these statutes contain vague, loose requirements for mens rea, or criminal intent, in order for the action to warrant punishment. Many others contain no such requirements at all…The overcriminalization of our society erodes the rule of law and threatens liberty. Removing the moral foundation of law makes government whim the basis for crime. This undermines public confidence in the law code, expands government control over individual freedom, and increases the likelihood of people committing crimes unknowingly. [Emphasis added.]

The end result of overcriminalization is a burgeoning non-violent criminal population. That is, more and more people being locked up for less and less severe crimes. Who benefits from this overcriminalization? The Prison Industrial Complex and their shareholders.

Corrections Corporation of America, the nation’s largest operator of for-profit prisons, has sent letters recently to 48 states offering to buy up their prisons as a remedy for “challenging corrections budgets.” In exchange, the company is asking for a 20-year management contract, plus an assurance that the prison would remain at least 90 percent full.

(A copy of the original letter is here. In addition, the 2010 CCA annual report warned that “The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”)

As Whitehead writes:

“And this is where it gets creepy,” observes reporter Joe Weisenthal for Business Insider, “because as an investor you’re pulling for scenarios where more people are put in jail.” In making its pitch to potential investors, CCA points out that private prisons comprise a unique, recession-resistant investment opportunity, with more than 90% of the market up for grabs, little competition, high recidivism among prisoners, and the potential for “accelerated growth in inmate populations following the recession.” In other words, caging humans for profit is a sure bet, because the U.S. population is growing dramatically and the prison population will grow proportionally as well, and more prisoners equal more profits.

It should be noted the offer from CCA is proffered for facilities operating at 90% capacity. This does not automatically translate into increased sentencing immediately as incarcerated populations can be shifted to the privately owned prisons allowing public facilities to close. Over the long term, however, the probability is far too real that such contracts will force the entire legal system to serve as an active feeder system for the prison industrial complex.

This danger was noted by Roger Werholtz, former Kansas secretary of corrections, who recognizes that while states may be tempted by the quick infusion of cash [from selling prisons to private interests], they “would be obligated to maintain these (occupancy) rates and subtle pressure would be applied to make sentencing laws more severe with a clear intent to drive up the population.”

The need to maintain a high “population” of incarcerated people is not the mythical assumption of crazed ACLU lawyers. It’s the stated requirement of the Corrections Corporation of America. In a report entitled, Gaming the System: How The Political Strategies Of Private Prison
Companies Promote Ineffective Incarceration Policies, the Justice Policy Institute found

While private prison companies may try to present themselves as just meeting existing “demand” for prison beds and responding to current “market” conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

A 2011 report from the PICO group found the total prison population grew between 1990 and 2009 from 773,919 to 1,613,740 inmates-an increase of 209%. But, the private prison population increased over the same period from 7,771 to 129,336-an increase of 1,664%. Equally as troubling is their finding that

Private prison companies have been particularly successful in the youth and immigrant detention markets. Private prison companies run half of the youth correctional facilities in the United States.

The obvious conflict of interest in such a situation was revealed in the so-called “cash-for-kids” scandal in Pennsylvania in 2009. As CNN reported at the time Judge Mark Ciavarella and former Luzerne County Senior Judge Michael Conahan both plead guilty to “federal criminal charges of fraud and other tax charges” having received more than $2.6M in bribes. The two

corruptly and fraudulently “created the potential for an increased number of juvenile offenders to be sent to juvenile detention facilities,” federal court documents alleged. Children would be placed in private detention centers, under contract with the court, to increase the head count. In exchange, the two judges would receive kickbacks.

The prison company that provided the kick-backs, however, suffered no legal ramifications since they cooperated with the investigation.

In March 2006 Walter Cronkite, the venerable newsman whose signature “And that’s the way it is” closed newscasts in living rooms across America for decades, related this typical story from a legal system that has lost all sense of justice:

Nicole Richardson was 18-years-old when her boyfriend, Jeff, sold nine grams of LSD to undercover federal agents. She had nothing to do with the sale. There was no reason to believe she was involved in drug dealing in any way.

But then an agent posing as another dealer called and asked to speak with Jeff. Nicole replied that he wasn’t home, but gave the man a number where she thought Jeff could be reached.

An innocent gesture? It sounds that way to me. But to federal prosecutors, simply giving out a phone number made Nicole Richardson part of a drug dealing conspiracy. Under draconian mandatory minimum sentences, she was sent to federal prison for ten years without possibility of parole.

To pile irony on top of injustice, her boyfriend – who actually knew something about dealing drugs – was able to trade information for a reduced sentence of five years. Precisely because she knew nothing, Nicole had nothing with which to barter.

As noted in my last post the injustice of our current legal system has been especially tough on African-Americans. Poverty, broken family units and shrinking educational opportunities (see point 7 here) do and will continue to conspire against these souls.

“Recently a lady called me whose son had missed out on the state sponsored Hope Scholarship by just a fraction of a grade point,” said Buford, Georgia pastor Kary Harris. “His family cannot afford to put him through college, he has no skill because he doesn’t know anyone to teach him a trade. And people wonder why kids like this get involved selling drugs ending up at your back door with a gun? They don’t see a way out.” Kids like this will be unending fodder for the prison industrial complex.

Dwight McKissic, an African-American pastor in Arlington, Texas, is known as a voice of the racial conscience in the Southern Baptist Convention. He responded via email saying,

The matter of the criminal justice system becoming commercialized is a serious issue. The State, in order to fulfill a business contract, will have to indict, convict and incarcerate enough persons to satisfy the demands of the contract. That does not pass the smell test for me, and it also means the criminal justice system has a vested interest in not giving the benefit of the doubt to her citizens. My greatest concern is that people of color and people economically disadvantaged will disproportionally become victims of this commercially driven system. And, the Bible is clear in Amos 5:12 that the government should not deprive the poor of justice at the gates.

Yet this is what we see over and over again. It is endemic injustice. It is just as wrong, just as sinful, just as ungodly as abortion, murder or a lifetime Klan membership. But across evangelicalism as a whole, it seems to raise few red flags or concerns.