Prison, Incorporated

by Athena Bryan

In 2011 the U.S. Supreme Court ruled in Brown v. Plata that the degree of overcrowding in California prisons constituted cruel and unusual punishment. Hordes of suffering prisoners might present an image culturally mapped to conditions under foreign military dictatorships or the gulag system in the heyday of the Soviet Union, but it’s time to acknowledge that American incarceration has reached that level. Although California’s incarceration is an extreme case, 18 other states were operating above capacity in 2010, and the federal prison system was at 36 percent over capacity.

How did it get to this point? And what lies ahead?

One plausible narrative claims that lawmakers, bribed by corporate interests, write severe sentencing laws to supply private prisons with inmates and provide a massive pool of cheap laborers. Voices in The Guardian, The Nation, AlterNet and many others decry the U.S. justice system as a “prison-industrial complex” in exposés of prison labor or private, “for-profit” prisons.

But in order to argue that a prison-industrial complex exists, the policies that contribute to massive incarceration must be linked to industries that benefit from the existent pool of prisoners. It is easy to prove the independent existences of an enormous incarcerated population and of industries benefiting from incarceration. But it’s much harder to prove whether the financial benefits of privatization create a positive feedback loop with incarceration — so that hyper-incarceration pays enough for it to become entrenched in the system.

Here’s an arresting list of statistics. The United States has the highest prison population rate in the world: 716 people incarcerated per 100,000 members of the population. With just around 5 percent of the world population, the U.S. contains 25 percent of the world’s incarcerated population — there were 1,612,395 people incarcerated in state and federal U.S. prisons in 2010. These numbers continue to grow, and the cost of processing, convicting and incarcerating so many people expands with it.

Hyper-incarceration is not a deeply entrenched aspect of American society but rather a fairly recent phenomenon showing astonishing growth in the past 30 years. The prison population in 2009 is over four times as large as it was in 1980. The rate of increase in incarceration also has seen steady annual growth, with an average increase of 1.7 percent between 2000 and 2009 and a 15.9 percent increase in overall prison population from 2000 to 2010.

It is important to differentiate between federal and state incarceration, as the policies governing each of them differ. The grand total of the prison population of 1.6 million breaks down lopsidedly to 1,402,624 prisoners in state prisons and 209,771 in federal prisons. Furthermore, the distribution of prisoners by type of offense is radically different in federal and state prisons. In 2010, a little over half of the inmates in state prisons were serving time for violent offenses and only 18 percent behind bars for drug offenses. In federal prisons, about half of the inmates were serving for drug offenses. Growth in federal prisons is also more robust than in state prisons. Between 2000 and 2009, federal prison populations have averaged 4.1 percent growth rates per year, while state rates averaged 1.4 percent.

The trend of over-incarceration is directly related to mandatory minimum sentences. Before the 1980s, there were only three offenses with existing federal mandatory minimums: first-degree murder, failure or refusal to testify before Congress and disobedience of a cease-and-desist order.  Mandatory minimums have since been attached to many other crimes, including for laws related to drug trafficking, large-scale weapons, immigration and sex offenses.

Mandatory minimums are not unpopular with voters.  Such policies, driven by citizens’ fear, are not dirty secrets but instead popular campaign slogans in judicial, gubernatorial and congressional elections of candidates who promise to keep crime rates low. The push to get criminals in prison for long stretches of rigidly determined time reinforces the purpose of incarceration, not so much for rehabilitation but for retribution — and as a way to get criminals out of sight at any cost.

In 2010, 14.5 percent of offenders sentenced in federal courts were convicted of an offense carrying a mandatory minimum and subject to that penalty at sentencing. Although 27.2 percent of federal offenders were convicted of offenses carrying mandatory minimums, almost half avoided or mitigated the sentence by acting as informants or qualifying for the federal “safety valve” of being low-level, first-time and nonviolent. . So it might initially appear that sentencing with mandatory minimums fairly deals federal penalties. But in reality, 39.4 percent of prisoners in federal custody were subject to mandatory minimum penalties at sentencing. The very nature of mandatory minimums means that prisons will be clogged with inmates for vast stretches of time. Even if the rate of sentencing stays relatively low, the proportion of the prison population of those incarcerated under mandatory minimums will logically continue to increase.

There is a growing cultural association between mandatory minimum sentences and the War on Drugs. Yet of the whopping 52 expansions of federal mandatory minimum provisions that Congress wrote between 2002 and 2012, 43 involved the sexual exploitation, harm or murder of children. Only two involved drug policy — one for the possession of armor-piercing ammunition during a drug trade and one to expand drug statutes to include the distribution of synthetic drugs.

So when a 2011 editorial in The New York Times criticizing the harshness of drug-related mandatory minimum sentences concluded that “Congress needs to rescind all mandatory minimum sentences,” the editors were aiming at the wrong target. It is not the legislation itself where the focus on drug crimes is disproportionate but its execution. Of 19,896 defendants convicted in 2010 of an offense carrying a mandatory minimum penalty, 77.4 percent were for drug trafficking. In fact, just four statutes make up 71.6 percent of mandatory minimum sentences. The New York Times’ bold proclamation that all mandatory minimums be rescinded was too broad and unrealistic, and it does not take much effort to suss out the actual culprits.

As the nation warms up to the legalization of marijuana, it is worth noting that although marijuana cases composed 26 percent of the federal drug offenses in 2010, marijuana was the drug type for just 17.2 percent of drug offenses carrying mandatory minimum penalties. There are stories of nonviolent criminals put away for life for possessing small amounts of marijuana, but the only three-strike law where all three strikes need not be violent or serious was in California, and it was repealed in 2012 by a plebiscite. This horror story is no longer possible under any state or federal laws.

In fact, the majority of mandatory minimum drug sentences concern powder or crack cocaine, with sentences handed down for the former slightly outpacing those of the latter (28.1 percent of mandatory minimum drug sentences and 24.7 percent, respectively). However, these federal mandatory minimums have inconsistent trigger quantities. Crack cocaine’s lowest mandatory minimum sentence is triggered at 28 grams, versus 500 grams of powdered cocaine, even though crack — much more prevalent in poor, minority communities — is pharmacologically the same as powder cocaine. Such a policy may go some way in beginning to explain why blacks represent the highest proportion of those penalized with mandatory minimum sentences (38.5 percent versus whites’ 27.5 percent) and why blacks disproportionately made up 37.8 percent of the total incarcerated population in 2010, compared to 13 percent of the national population. The country’s persistent, systemic racism and its relationship with poverty and crime is a topic that cannot be entirely covered in one article — let alone as an aside to an already complex issue — but not mentioning the skewed racial representation in incarcerated America would be dishonest by omission.

All of this is simply to say that the mandatory minimum drug sentences themselves put into question the purpose of incarceration, be it rehabilitative or punitive. They cannot, however, be materially linked to the flood of prisoners incarcerated for petty drug crimes, especially, as people are wont to point out, for possession of small amounts of marijuana. The most pressing matter at the federal level (where, again, about 50 percent of inmates were charged on drug crimes versus states’ 18 percent) is the trigger quantities for crack versus powder cocaine, calling into question the social equity of mandatory minimums.

The facts at hand may not be as lurid as some discussions on mandatory minimums would imply. But the continuing growth of prison populations, the use of mandatory minimums for drug trafficking and little else, the status of drug offenders as the majority of those incarcerated in federal prisons, and the faster rate of growth in federal prison populations compared to state populations all point toward these statutes as a good place to start investigating for reform in order to curb prison population growth and consequently defray exploding costs.

A massive incarcerated population is costly, and the increased prison population has been consequently met with an increase in government spending. The most recent comprehensive statistics on corrections spending from 2007 put the cost of the nation’s police protection, corrections, and judicial and legal services at $228 billion. This represents an increase of 171 percent since 1982 after adjusting for inflation. Corrections expenditures alone rose from $21 billion in 1982 to $74 billion in 2007, representing a 255.3 percent change.

State and local government spending accounts for the majority of this total, at $67.8 billion. Incarceration is the second fastest-growing budget item for states after Medicaid. The price for a state to incarcerate one prisoner in 2010 ranged from $14,603 in Kentucky to $60,076 in New York, averaging out to $31,286 per year.

With costs mounting and constant fever-pitch anxiety over government budgets, decreasing the financial burden of the prison system is in the U.S. government’s interest. Obvious solutions would be to slow the rate of incarceration and decrease prison populations, perhaps by reforming mandatory minimum sentences. Two often proposed methods of offsetting taxpayer costs — privatizing penal institutions and using the pool of available labor in prisons — contain troubling pitfalls. These solutions presuppose the enormous, costly pool of prisoners as a permanent aspect of the nation. They switch the dilemma from, “How can we safely decrease the prison population?” to “How can we make the prison population pay for itself?”

For the past quarter-century, the privatization of prisons has been suggested as a hypothetical solution to the high cost of incarceration, wherein free-market forces would increase the quality and decrease the cost of prisons. Results so far have not matched these hopes.

Quality of life and opportunities is demonstrably worse in private prisons. While nine out of 10 public correctional facilities offer academic or vocational training, the proportion is only six out of 10 for private facilities. Counseling programs, available in virtually all public facilities, are present in only three out of four private facilities. Why isn’t the free market ameliorating and streamlining incarceration?

Richard Culp, a Ph.D. in criminal justice, argued in an article for Prison Legal News that a free-market solution to incarceration is fundamentally flawed since there exists no natural market for incarceration facilities in the first place. The market for prison facilities is artificially constructed by the government, and is limited in demand and supply, resulting in uncompetitive oligopolies. The only possible customers are federal correctional facilities, state correctional facilities and local county or city-operated jails, totaling a mere 4,700 potential customers for the private prison industry.  Further, only eight states (Texas, Florida, Arizona, Oklahoma, Colorado, Tennessee, California and Mississippi) and the federal government account for 70 percent of business done with private prison providers. On the supply side of private prisons, the top four companies make up a staggering 92 percent of the market for incarceration facilities or services — out of only seven providers total. Lack of competition in oligopolies does not produce the sort of innovation and cost reduction a free market solution promises. Thus the free-market solution is socially unrewarding, and private prisons can self-interestedly increase profits simply by lowering the quality of incarceration.

And the number of private prisons is still growing. Between 2000 and 2005 the proportion of private facilities compared to public ones grew from 16 percent to 23 percent. Approximately 8 percent of the prison population was housed in private facilities in 2010, up from 6.3 percent in 2000. And 16.1 percent of federal prisoners are in private facilities compared to state prisons’ 6.7 percent. The growth in private federal prison populations has been robust at an average annual change of 9.1 percent from 2000 to 2009, while private state facilities have seen a more modest growth in population of 3.2 percent. Trends point toward growth in the privatization of prisons, despite no signs that such institutions improve the incarceration system — opening ethical inquiries into the nascence and perpetuation of the private prison industry.

The top two private prison companies, Corrections Corporation of America (CCA) and GEO Group, capture 77 percent of the private prison market with a combined revenue exceeding $3.3 billion. Both have uncomfortably close relationships with the political right-wing establishment, whose ideology steadfastly espouses privatization, and have acquired companies with track records of similarly shady dealings. Both have made contributions to the American Legislative Exchange Council, whose members are the same conservative legislators pushing for stricter prison sentences, inmate labor in the private sector and the legalization of private prisons in various states. One of CCA’s founders was the chair of Tennessee’s Republican Party. Executives in U.S. Corrections Corporation, which was acquired by CCA in 1998, paid $77,000 in campaign contributions to Republican candidates in local Kentucky races between 1987 and 1993. And one of GEO Group’s acquisitions, Correctional Services Corporation, has been accused of abusing and mistreating inmates and was fined for failing to report gifts, meals and transportation to various Brooklyn and Bronx legislators. Innovation and quality improvements may be lacking in prison privatization, but profits are high and populations are growing, making privatization a very potent element of the prison-industrial system. But the privatization of corrections facilities is just one way in which prisons are being drawn to the private sector. Another looming time bomb — and one with even more dangerous ethical implications — is the use of inmate labor.

The argument in favor of inmate labor holds that such programs help keep prisoners busy while preparing them for employment once their sentences are complete, reducing recidivism. At the same time, the goods produced and wages earned would help defray incarceration costs. Wariness about public substitution effects on the private sector has led to bans on interstate commerce of prison-produced goods and to limited government contracts since the early 20th century. Yet inmates today in both state and federal prison are employed in manufacturing. Private sector employment by prisoners has been legal in state prisons for over 30 years, and in 2011, Congress allowed federal prison industries to carry out pilot projects with private companies.

Federal prisoners are employed exclusively through a government-owned corporation called Federal Prison Industries (FPI), whose trade name is UNICOR. The FPI employs inmates at wages of $0.23 to $1.15 per hour to produce goods that government agencies are sometimes forced to buy through controversial mandatory clauses, wherein government agencies are required to purchase UNICOR products. Complaints have arisen that this unfairly competes with the private industry and would be especially harmful to small-scale private businesses. There has been a push to reform these arrangements, and legislation has rolled back the FPI’s advantage by reducing these requirements to purchase from FPI.

The number of prisoners employed by FPI in 2010 had tripled to about 15,900 since 1970, after peaking at 23,200 in 2007. But the proportion of inmates employed by FPI has been decreasing steadily since the late 1980s, from a high of around 30 percent. In 2010, fewer than 10 percent of federal inmates were employed by the FPI, suggesting that the true cause of the absolute increase in FPI employment is the growth of the total prison population. This renders the claim that increased federal incarceration is tied with a desire to turn inmates into a cheap labor force a tenuous one at best. The scale between growth of incarceration and the growth of industrial labor do not match. The speed and consistency of prison population growth is not paralleled by the more erratic trends in the employment of the prisoners. For the most part, they are an unused pool.

FPI’s partnering with private industries is nascent and, as of now, lacks data, but the use of inmates from state prisons for labor in the private sector is well established. The Justice System Improvement Act of 1979 authorized the Prison Industry Enhancement Certification Program (PIECP), which allows private industry to establish joint ventures with certified prison institutions. It has understandably raised some hackles. Detractors have called it slave labor or attempted to connect PIECP and the exploding prison population as a plot to give corporations a cheap and compliant labor pool. However, despite temptation to condemn corporations, the numbers simply aren’t yet there to ring any alarms about an underground private industry slave-wage labor force. As of June 30, 2010, there were 30 jurisdictions with PIECP operations, but inmate laborers in this program total only 4,500 to 5,000 nationwide.

Still, prison labor, though currently not fully realized, remains extremely attractive, enough so that despite the relative smallness of the PIECP program (especially in contrast to the size of the incarcerated population), its growth seems inevitable. Industries using prison labor would not have to pay a lease on manufacturing space, and benefits such as vacation or health insurance are not provided. Wages comparable to non-incarcerated workers must be paid, but deductions from wages can include room and board, restitutions, and family support as long as they do not exceed 80 percent of gross wages. In theory, the wages paid would not severely undercut non-prison competition even if little makes its way to the inmate’s actual possession, but new model legislation for establishing prison industries has proposed diverting some of the room-and-board deductions to the maintenance of the PIECP program. So far, such legislation has only been adopted in Florida, but the profitability advantages of such a policy are absurd, not to mention the blatant departure from the overarching goal of using proceeds of such ventures to reduce incarceration costs.

In fairness, to become a certified PIECP participator, jurisdictions must comply with eight mandatory guidelines that attempt to ensure that prisoners receive the effective minimum wage, that inmates participate voluntarily and that the existing industry and its workers undergo no harm. In 2010, the most recent compliance assessment of these guidelines by the National Correction Industries Association, which is responsible for PIECP oversight, called ensuring the minimum wage the “single most difficult requirement…to implement.” As far as not interfering with existing laborers and industry, the NCIA compliance assessment notes that they were able to secure “non-displacement determinations,” meaning that the State Department of Enterprise Services signed off on a statement that non-inmate workers in the same industries were not forced out of their jobs by inmate laborers. However, the report notes that the State Department of Enterprise Services “expressed strong discomfort” in doing so and likely wouldn’t in the future. Additionally, NCIA’s oversight is itself weak; it performs reviews every two years of about only 30 percent of the institutions and mostly reviews previously filed documents instead of performing on-site assessments.

The ethical implications of inmate labor are obvious cause for concern. Not only would the huge pool of laborers — who are subject to low wages and unable to organize or agitate in any politically meaningful way — undercut employment of regular civilians, but also the goods they produce could choke out competition. There is additionally the plainly horrifying concept of a permanent underclass of Americans, gaining far below minimum wage with no ability to move up or away from their menial, low-skill jobs.

To date, private prisons and for-profit prison labor are not operating on a scale anywhere near the size of the prison population. It is consequently difficult to argue that privatization is causing the expansion of the prison population. The enormous pool of prisoners, yet untapped for profit, is more of a time bomb than an aftereffect of an entrenched industrial prison system. If such a large incarcerated population can start turning a profit for enough moneyed interests, reform might be pushed permanently out of reach. The figures as of yet do not present the private prison system as an unconquerable monolith — but at its present rate of growth, incarceration reform needs to be discussed soberly, now.

In terms of incarceration itself, the statistics are not so elusive or inconclusive. Hyper-incarceration in modern America is no secret, and mainstream media sources will roll out an article here and there whenever a new study is published. So why is the trend still going upward? Why the gap between identifying the problem and addressing it?

Michel Foucault notes that “in a very strange way, the history of imprisonment does not obey a chronology in which one sees…the establishment of a penalty of detention; then the recognition of its failure; then the slow rise of projects of reform.” While his arguments concern prisons in early 19th century France, the statement retains a chilling relevance today. Crime rates correspond little with incarceration rates, yet imprisonment is employed with only heightened fervor. The American cultural acceptance and embrace of incarceration is evident, if difficult to explain. But the dilemma of presenting a comprehensive theoretical model to explain such a love of incarceration will only become a moot point if private industries’ profit margins make a straightforward, if somber, economic case for hyper-incarceration.

Athena Bryan ‘15.5 intends to concentrate in History.

An earlier version of the article incorrectly referred to Athena Bryan as a Public Policy concentrator and staff writer at BPR. The byline has been corrected in the online edition. Brown Political Review regrets the error.