The Night Watchman Nonstate (1)

In political science there is a very old principle of ideal governments doing the absolute minimum; all social roles are delegated to churches, Gesellschaftsstand,  zu'ama,  jāti, or comparable social groups.  Among philosophers, this has traditionally been known as the "night watchman state," i.e., a state restricted to protecting its citizens from violence or fraud.  But the USA has been engaged in a strange experiment to delegate precisely this one function to the private sector—a sector now almost wholly in foreign hands.

My exposure to the this topic begins with an article¹ about UAVs (or drones, as they are universally known). Studded with links, it included one referring to a story about Adelanto, California—more specifically, about a facility there and the company that runs it:² GEO Group, formerly known as Wackenhut Corrections Corporation.

Wackenhut acquired notoriety as a huge security firm turned private jailer. In 1983, thanks in large measure to lobbying by organizations such as Wackenhut and Corrections Corporation of America (CCA), the State of Tennessee privatized the management of several prisons; soon, states and federal agencies were outsourcing incarceration to a booming sector of for-profit, private prisons. By 2001, the soon-to-be-renamed WCC "managed 61 contracts and awards worldwide that represented a 22 percent share of the U.S. private correctional market and 56 percent share of the international private correctional market."³

THE CARCERAL LANDSCAPE

Most people are probably well aware of the fact that, for the last 30 years, the USA (and some other countries) have been privatizing their jails and prisons. The first carceral system to fully privatize entire facilities was Tennessee's, in 1986. Prior to that, Florida had privatized its entire inmate employment system.⁴ Subsequently, the for-profit carceral complex boomed.

Much has been written about the private prison business.  In 2003, a Judge Michael Conahan of Luzerne County, PA, used his authority to defund a publicly administered juvenile detention facility, then sent thousands of teenaged children to its private rival for petty allegations.  He and a colleague, Judge Mark Ciavarella Jr., were paid $2.6 million to do this by the facility's owner, Atty. Robert Powell (PA Child Care LLC).⁵ At the same time, this sort of manipulation is often not quite illegal, as members of Congress receive huge "donations" from the carceral sector, and shunt undocumented residents of the USA to CCA facilities.  In reality, there is little difference.⁶ Persons detained in the for-profit prison-industrial complex, especially for immigrants seized without proper documents, are of all humans in the developed nations, the most wretched and disregarded.  They are routinely denied medical care, access to legal representation, and even adequate food.⁷

But what are the orders of magnitude involved?

At years end of 2011, the total incarceration of the USA was 2,239,751; overall, this reflected a 1.3% decline since 2010.  The decline had been caused by a fiscal crisis in California, which was compelled to trim its incarcerated population by 13%; otherwise, the incarcerated population continued to increase.⁸ This figure more than doubled during the 1980s, then slowed down somewhat as the system started to come apart.  The explosion in inmate populations was universally cited as a motivator for privatization (for-profit prisons were not unionized), but in fact after 2000 the for-profit share of the incarcerated population remained about 7% (for the states).  Federal incarceration, which is still growing rapidly, rose from 7% private to 14% private; the federal system accounts for slightly more than 9% of the national total.

That's 122,121 people.

Next, we have US Marshall Service and the Immigration and Customs Enforcement (ICE); the average daily detention population by the ICE in 2011 was about 33,000;⁹ for the US Marshall Service it was 63,112.¹⁰ Privately-held detainees in 2010 were 14,814 and 17,154, respectively.¹¹ In fact, statistics are not perfectly comparable, because the last statistic is for 2010 (the next year federal inmates rose), there is a huge disparity in significant figures, and we are not certain if the privately-held detainee figure is computed the same way (is it the average daily population too?  or capacity at year's end?).  But this boosts the total private incarcerations to around 155,000 for 2011.

OVERSEAS

Click for larger image

The USA is widely understood to account for a quarter of the world's population of corrections inmates: a penal colony—by coincidence—very close in the number of residents to that other very large penal colony, the Occupied West Bank. If the entire population of Frankfurt-am-Main were thrown in the slammer, it would create a prison population of equal magnitude. And so far I've been focused on the most palpably sinister aspect of it: entire prisons commissioned, financed, and maintained by private entities, subject only to such inspections as the (presumably scandal-averse) state government dares to make.  In other words, a recipe for regulatory capture.

But long before there even was a Corrections Corporation of America (CCA), there was Wackenhut and Fluor Daniels and many other entities, receiving government contracts to manage the logistics of construction, food services, and site security.  Quite apart from the business of actually performing government functions is supplying the government as it does them.  No one raises their eyebrows at the government commissioning the construction of prisons by Turner Construction Company, or purchasing supplies from Cornerstone Detention Products.  And while the USA remains the world's biggest jailer, many other countries are catching up.

Country	Incarcerated (2003)	Population (2003)	Ratio (2003)	Incarcerated (2010)	Population (2010)	Ratio (2010)	Incarcerated (2010-2003)
USA	2,033,331	290.00	701	2,292,133	308.40	743	258,802
Brazil	284,989	178.50	160	496,251	196.40	253	211,262
China *	1,512,194	1294.40	117	1,650,000	1354.10	122	137,806
Mexico	154,765	98.90	156	222,330	110.90	200	67,565
Russia	806,100	141.93	568	864,590	142.70	606	58,490
Vietnam	55,000	77.6	71	108557.00	89	122	53,557
Colombia	54,034	42.80	126	84,444	46.61	181	30,410
Venezuela	19,554	25.70	76	43,461	29.17	149	23,907
Argentina	38,604	36.23	107	60,611	40.14	151	22,007
Peru	27,493	26.50	104	47,164	29.75	159	19,671
Chile	33,098	15.60	212	52,563	17.22	305	19,465
Spain	56,140	40.65	138	73,459	46.20	159	17,319
El Salvador	10,278	6.50	158	24,283	6.21	391	14,005
Italy	56,574	56.30	100	67,615	60.68	111	11,041
UK	82,241	60	138	94,511	62	151	12,270
Japan	67,255	127.50	53	74,476	127.90	58	7,221

* Data for China includes only sentenced prisoners
SOURCE:  Walmsley (2003) 🙵 Walmsley (2010)

While the USA added over a quarter million incarcerated between 2003 and 2010, the next 20 largest national prison populations grew by 860,000 (data for China do not include jails, which hold 21% of the incarcerated population of the USA). Brazil's prisons are among the world's most crowded;¹² since 1999, at least five states have opened correctional facilities operated by private companies. Already, about 3.5% of Brazil's incarcerated are held in privately run prisons.¹³

Surprisingly, France, with its well-known distaste for the private sector (more alleged than true), has about 36% of its carceral population in privately run institutions—massively greater than the USA.  While the USA has a prison population 38 times that of France, its private-sector prison population is about eight times as large.  Moreover, studies of French prisons suggest that, while privately-run institutions in the USA are markedly worse than their state-run counterparts, the opposite is true in France.¹⁴

In part two of this post, I plan to write about the non-state actors who dominate this global network of private prisons.

(Part 2)

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Notes

1. Yasha Levine, "Welcome to Drone Country," Not Safe For Work Corporation (7 Feb 2013)


2. Yasha Levine, "The Deportation Corporation," Not Safe For Work Corporation (5 Feb 2013).


3. Wackenhut Corrections Corporation website, corporate profile; mirrored by "American Buddha"; probable date of profile is early 2002. Identical text appears in a statement by MP Ben Skosana, Minister of Corrections, Republic of South Africa, on the opening of Kutama-Sinthumule Maximum Security Prison (August 2001).


4. Joel (1988). Regarding Florida:

   Florida in 1981 became the first state to contract out the entire state prison industry to private management. Prison Rehabilitative Industries 🙵 Diversified Enterprises Inc. (PRIDE), a firm based in Clearwater, Florida, now manages all 53 Florida prison work programs as a for profit operation. PRIDE made a $4 million profit last year.

   Regarding Tennessee:

   Corrections Corporation of America (CCA), based in Nashville, Tennessee, and founded in 1983, is the largest private corrections organization in the country [JRM notes: it still is as of 2012]. A spinoff of Hospital Corporation of America, CCA designs, constructs, finances, and manages both secure and non-secure facilities. [...] In 1985, CCA proposed to operate the entire Tennessee state correctional system for 99 years. Governor Lamar Alexander supported the idea. It was blocked, however, by lobbying [sic] by some state officials and groups like the American Civil Liberties Union.

   Joel's article, for the conservative thinktank Heritage Foundation, is a transparent plug for the privatization "movement." I object to his use of "lobbying" to describe legal activity by the ACLU; according to Hacket, et al. (1986), p.62, the ACLU was not of a consensus at the time on privatization (since then, the ACLU has become opposed to privatization). The deal with CCA was rejected by the Tennessee State Legislature, but was allowed for a new Carter County facility to be built by CCA (Hacket, et al. (1986), p.36).


5. "Court Tosses Convictions Of Corrupt Judge" Associated Press (accessed 24 Feb 2013). In August 2011, Ciavarella was sentenced to 28 years in federal prison for his involvement in the Kids for Cash scandal; on September 23, 2011, Michael Conahan was sentenced to 17.5 years in prison and ordered to pay $874,000 in restitution. See Robin Young, "Corrupt Juvenile Justice Leaves Mark On Pa. Kids" WBUR, Boston (15 Jan 2013).  A little-noted aspect of this case is the extremely widespread cooperation of police, court officials, et al. in what they must have known were widely disproportionate responses to petty misbehavior: for the criminal justice system, this sort of behavior is extremely commonplace, if not the norm.


6. See Greene 🙵 Mazón (2012). My contention that there is no meaningful difference between the views of CCA's 🙵 GEO Group's Congressional patrons, and the judges in the "Cash for Kids Case" relies on the following inferences: (a) Ciavarella and Conahan were ideologically supportive of a draconian approach to juvenile offenders; (b) politicians continue to be unanimous in expressing the same attitude (see Frank (2009); so it would be a leap of faith to assume Ciavarella and Conahan were behaving very differently because they were bribed); (c) Ciavarella and Conahan's ideological position was in fact Draco[nian], after the 7th cent. BCE Athenian lawgiver  who argued that all transgressions of the law were worthy of death.
   
   In recent decades, this attitude has been a staple of conservative ideology regarding undocumented foreign-born residents—that "illegals" (i.e., people lacking valid bureaucratic documentation allowing them to perform their jobs in the country where they reside) lacked any rights, and ought to be punished by deportation regardless of their social usefulness or moral conduct.


7. Greene 🙵 Mazón (2012), p.7; for issues outside the USA, see Global Detention Project, Programme for the Study of Global Migration (2007-2011).  As of 2011, only the UK retained private firms to manage immigration detention centers.  The largest detainee populations in Europe is Spain (nearly 17,000) followed by the UK (with 3,500); by contrast, the USA has over 400,000 immigrants in detention, of whom about half are in for-profit facilities.  All figures are for detainees at any given time; most governments deport detainees as fast as they are able.


8. BLS tables; "Corrections Population." Incarceration rates are much lower than "imprisonment rates," which exclude people serving terms of less than 1 year (that includes people who have not been sentenced). Data for imprisonment is far more complete.  Although it is an extremely interesting topic for many reasons, this post cannot address the huge problem of probations.  Incarceration rates in 2011 were almost 1% of the adult population of the USA, but only one third of the total penalized population. Another 3,971,319 were on probation and 853,852 were on parole.


9. Written testimony of U.S. Immigration and Customs Enforcement Office of Detention Policy and Planning Assistant Director Kevin Landy for a House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement hearing on Performance-Based National Detention Standards (PBNDS) 2011; released (27 March 2012)


10. "Office of the Federal Detention Trustee," Department of Justice (accessed 24 Feb 2013)


11. Mason (2012), p.6


12. "World Prison Populations," BBC (20 June 2005; accessed 24 February 2013); "Prisons in Latin America: a journey into hell," The Economist (22 September 2012; accessed 24 February 2013).  The article in The Economist notes that criminal gangs overwhelmingly control the majority of prisons in Latin America.


13. "Brazil to Open First Public-Private Prison," The Rio Times (18 December 2012; accessed 24 February 2013); Sandro Cabral 🙵 Stéphane Saussier, "Organizing Prisons through Public-Private Partnerships: A Cross-Country  Investigation" (PDF), Brazilian Administration Review (June 2012). Cabral 🙵 Saussier note that Brazilian PPPs are very different from privatization contracts in the USA; the key difference is that, in the USA, privatization is absolute whereas in Brazil and other countries, contract administration is under state supervision (p.21ff).


14. Cabral 🙵 Saussier (2012); see table 3, "Table 3: Effects of participation of private actors in prison services."  In France, "privately-run" prisons are under far more direct government supervision than in either Brazil or the USA.  In the USA, they are almost completely ceded to the operator.  France's rate of incarceration is about average by European standards: 96 per 100,000 population.

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Sources and Additional Reading

Rita Abrahamsen 🙵 Michael C. Williamson, Security Beyond the State: Private Security in International Politics, Cambridge University Press (2010)


Thomas Frank, "Lock 'Em Up: Jailing kids is a proud American tradition" Wall Street Journal (1 April 2009)

Judith Greene 🙵 Alexis Mazón, "Privately Operated Federal Prisons for Immigrants: Expensive. Unsafe. Unnecessary" (PDF), A Justice Strategies Report (September 2012)

Judith Hackett, Harry Hatry, Robert B. Levinson, Joan Allen, Keon Chi, 🙵 Edward D. Feigenbaum, Issues in Contracting for the Private Operation of Prisons and Jails (PDF), Council of State Governments, Lexington, KY (1986)

Henry Hoffman, "Corrections Corp. of America Can Help Right Your Portfolio," Seeking Alpha blog (6 August 2010; accessed 24 Feb 2013)

Dana Joel, "A Guide to Prison Privatization," Heritage Foundation Backgrounder #650 (24 May 1988; accessed 24 Feb 2013)

German Lopez, "Liberty for Sale: Should Ohio inmates be commodities in a for-profit venture?" City Beat, Cincinnati (19 September 2012)

Cody Mason, "Dollars and Detainees  The Growth of For-Profit Detention" (PDF), The Sentencing Project  (July 2012)

Caroline Sawyer, Brad K. Blitz, Statelessness in the European Union: Displaced, Undocumented, Unwanted, Cambridge University Press (2011) 

Julia Sudbury (editor), Global Lockdown: Race, Gender, and the Prison-Industrial Complex, Psychology Press (2005)

Emilio C. Viano, " America’s prison system" (PDF), Prison policy and prisoners’ rights, Proceedings of the Colloquium of the IPPF, Stavern, Norway, 25-28 June 2008, Nijmegen, Wolf Legal Publishers (2008.)

Roy Walmsley, "World Prison Population List" (PDF), International Centre for Prison Studies, University of Essex (2010)

Bureau of Justice Statistics (BJS) - "Corrections"  (accessed 24 Feb 2013)

"The Influence of the Private Prison Industry in the Immigration Detention Business," Detention Watch Network (May 2011; accessed 24 Feb 2013)

"Children in Confinement in Louisiana" (PDF) Human Rights Watch, Children's Rights Project (1995)

"The Math of Immigration Detention:  Runaway Costs for Immigration Detention Do Not Add Up to Sensible Policies" (PDF), National Immigration Forum (August 2012)

Global Detention Project, Programme for the Study of Global Migration (2007-2011; accessed 24 Feb 2013).