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Breach of Contract: Prison Privatization in America

A guard stands duty in a tower over Camp Delta on Sept. 12, 2007. (Photo by Army Sgt. Joseph Scozzari)

The civil rights of convicted felons are rarely considered important policy issues. At the risk of losing reelection, politicians often brush them aside. The implications of changing policy concerning a specific bloc of citizens without their consent or input are dangerous, but often overlooked in the case of felons. While the exclusion of felons from the electoral process that culminates in policies affecting them contradicts U.S. governmental philosophy, an even more glaring inconsistency emerges when felons’ inability to vote is coupled with the privatization of prisons.

The United States government is based upon John Locke’s theory of the social contract — which delineates the relationship between the state and the citizenry. Under the social contract “people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property.” For example, a citizen gives up his right to kill others in order to gain the protection against being killed. The social contract is the theory behind the entire United States legal code. Theft is illegal in order to protect the right to property and yelling “fire” in a crowded theatre is illegal in order to protect the right to liberty and the right to life. Locke argues that the rational individual will choose to be a part of a society with a government in which relinquishing certain rights guarantees some protection.

When the government violates the social contract, citizens can exercise their right to revolt and establish a new government through political actions such as elections or the creation of a new constitution. When individuals violate the social contract, they are punished with prison, fines or other legal consequences. However, these punishments do not equate to expelling the criminal from the social contract. Expulsion from the social contract and imprisonment under the social contract are very different. The act of convicting a felon means that they are still a part of the social contract and society. The social contract justifies the right of the United States government to imprison convicted criminals, but the U.S. has also extended consequences for breaching the social contract by denying felons the right to vote. The logic behind such a policy is that a felon has so negatively affected the rights of others that he no longer has the right to influence policy or government. In fact, felon disenfranchisement removes the felon’s right to revolution as a felon cannot vote and cannot change the government.

In 1974, the United States Supreme Court decided in Richardson v. Ramirez that felon disenfranchisement was in fact constitutional, citing the Fourteenth Amendment of the U.S. Constitution. The amendment states — and the Supreme Court voted based on that stipulation — that citizens’ rights to vote will only be restricted or denied “for participation in rebellion, or other crime.” The Guardian reports that as of 2012, 5.85 million American felons have been disenfranchised, meaning that approximately 2.5% of the American population cannot vote.

Prison privatization, however, creates conflict over the legal and philosophical legitimization of felon disenfranchisement. The United States government currently employs a major private corporation to organize and facilitate prisons — the Corrections Corporation of America (CCA). The CCA was founded in 1983 by Don Hutto, Tom Beasley, and Doctor Robert Crants with the intention of managing prisons in cost-effective ways. Essentially, the corporation uses the benefits of the free market to better facilitate prison operations. CCA boasts “the first maximum-security facility under direct contract with a federal agency, managed by a corrections company” — Leavenworth Detention Center. In the thirty years since its establishment, the CCA has expanded into the District of Columbia and eighteen states—Texas, Tennessee, New Mexico, Louisiana, Kansas, Arizona, Florida, Oklahoma, Colorado, New Jersey, Ohio, Washington, D.C., Indianapolis, Mississippi, California, Georgia, Montana, Idaho, and Nevada.

CCA does not just create prisons — the more important function that CCA fulfills is to assume management, according to the corporation’s terminology, of federal and state prisons. Such operational changes have occurred in eighteen prisons in Tennessee, Texas, Louisiana, Florida, Georgia, New Jersey, Massachusetts, and Ohio.

“Assuming management” has important implications because it changes the status of prisoners. The legitimacy of imprisonment is derived from right of the government to punish those who have violated the social contract. However, when a private company “assumes management,” a new social contract is formed. Instead of being imprisoned by the same institution whose values the felon violated, the felon is now imprisoned by a completely different entity. The act of CCA “assuming management” means that the prisoners are not imprisoned under the same social contract under which they were convicted.

In Cleveland, the CCA has recently purchased a state prison — The Lake Erie Correctional Institute. Taking yet another step towards full prison privatization, CCA “owns and operates” the facility for the state of Ohio. Essentially, the felons are convicted by the state judicial system and then transferred to a private corporation for the duration of their imprisonment. Since prison privatization is a cost-effective form of incarceration, Ohio’s cost-benefit analysis would lead it to choose a CCA-owned and operated facility for financial reasons. However, this also means that the state is prioritizing financial concerns over the rights guaranteed to felons under the social contract. Convicted felons therefore no longer have the right to revolution nor are given any rights or protection from the government.

This is a fundamental violation of the social contract under which the criminals were convicted and from which they were not expelled. Treating disenfranchised felons as goods to be transferred to private corporations creates an appalling contradiction in U.S. policy that prioritizes cost-effective measures over civil rights, a contradiction that will not be so easy to ignore if and when it spreads to the non-felon population.

About the Author

A member of the Class of 2017, Brenna is concentrating in Public Policy and Economics.