The Shadow Prison Industry and Its Government Enablers

I hope people are aware of the CIP (Center for International Policy) Americas Program. -Rick

http://americas.irc-online.org/

Americas Program Policy Brief

Tom Barry | January 29, 2010

Outsourcing
governmental responsibilities to private contractors is routine and
alarming. The Blackwater, Wackenhut, CACI, and Halliburton scandals
have highlighted the damage to our foreign affairs resulting from the
reliance on private contractors to perform essential foreign policy
missions. However, it is at home—in our domestic system of crime and
punishment—where government outsourcing and private contracting may be
causing the most damage to our system of democratic governance.

Elements of our criminal justice and immigration enforcement
systems are spinning dangerously out of public control. Increasingly,
the Department of Justice (DOJ) and the Department of Homeland Security
(DHS) are outsourcing their imprisonment and detention responsibilities
to hundreds of contractors and subcontractors—with scant oversight,
little transparency, and often tragic consequences. As a result, human
rights abuses, squandering of public revenues, and unscrupulous
profiteering pervade and pervert the U.S. system of crime and
punishment.

A shadow prison industry has spread to all parts of the federal
detention and prison system. It is, with a few exceptions, in complete
charge of all immigrant imprisonment and detention at both DOJ and DHS.
Because the shadow industry has evolved without a plan or strategy, it
has become a bizarre, labyrinthine complex of public and private
players that is little understood and frighteningly out of control.

The Main Players in the Shadow Prison Industry

The Outsourcers:

DOJ: USMS, BOP, OFDT

Within DOJ, since the mid-1990s, the United States Marshals Service
(USMS) and the Bureau of Prisons (BOP) have increasingly contracted
private prison firms and local governments to assume responsibility for
the custody of federal detainees and prisoners. The largest USMS
detention centers and most of its immigrant detention centers are
operated by private corporations. Since 1998 the BOP has created 10
large prisons solely for immigrants that are managed by private firms.

The other DOJ player in detainee outsourcing is the Office of
Federal Detention Trustee (OFDT), created in 2000 to coordinate and
provide oversight to a woefully uncoordinated and unmonitored patchwork
of detention centers and jails variously operated by local governments,
state governments, private companies, and federal agencies. In part
because of the creation of DHS in 2003 and in part due to diminished
White House concern about the detention center crisis, OFDT currently
functions not as a central oversight and coordinating office for
federal detention but rather as small DOJ agency that caters to private
contractors seeking detention business with the USMS.

DHS: ICE

DHS now surpasses DOJ as the leading federal custodian of
detainees. The DHS agency Immigration and Customs Enforcement (ICE)
subsumed the legacy of the Immigration and Naturalization Services,
taking charge of the criminal detention and deportation of immigrants.
Currently ICE holds about 33,000 immigrants on any given day in its
network of 350 detention centers—some 400,000 annually.

Prison and Detention Center Owners:

Prisons and detention centers with federal prisoners and detainees
are owned variously by: 1) federal agencies (of both DOJ and DHS), 2)
private prison companies, and 3) local governments that have agreements
and contracts with both federal agencies and private prison firms.
Generally, when either owned directly by the federal government or
owned by local governments that have custodial agreements with the
federal government, the actual operators and managers of the facilities
are private prison companies.

Contractors:

Three private prison companies—Corrections Corporation of America,
GEO Group, and Cornell Companies—are the largest firms holding federal
prisoners and detainees, which constitute the source of about 40% of
their revenues. Others include Management & Training Corporation,
Emerald Corrections, and Community Education Centers. The prison
contractors contract either directly with BOP, USMS, and ICE, or
indirectly through contracts with local government intermediaries that
have custodial agreements with these three federal agencies.

Subcontractors:

In addition to supplying private prison firms with an increasing
stream of federal prisoners and detainees (along with associated per
diem payments for "man days"), federal prison outsourcers also have
created an adjunct prison services industry of subcontractors. These
service subcontractors include private security firms such as Akal
Security and Wackenhut Corporation (division of G4S) and correctional
healthcare firms such as Physicians Network Association and
Correctional Healthcare Management. This network of prison-services
companies contracts or subcontracts with all the main actors in the
prisoner outsourcing complex: federal agencies, local government
intermediaries, and private prison firms.

A federal prisoner can, for example, legally be under BOP custody,
but held in a local government prison that is operated by a private
prison firm where his or her medical care is provided under a
subcontract between the local government and a correctional healthcare
firm. As another example of this complicated web of outsourcers,
contractors, and subcontractors, a detainee held in one of the several
detention centers owned by ICE may actually not be under ICE care but
rather under the actual custody of a private security firm.

Local Government Intermediaries:

Federal government outsourcers routinely sign inter-governmental
agreements (IGAs) with local and state governments (mostly county
governments) that authorize the cooperating government to hold federal
detainees or prisoners. In many such cases, the local government then
turns around and contracts out the management and operation of the
prison or detention center to private prison companies and to prison
services subcontractors. USMS or ICE will then typically pay the local
government a per-diem stipend for each prisoner. In practice, only a
small portion (a couple of dollars) of this per diem goes to the local
government, with the balance being transferred to the contractors,
subcontractors, and investors who provide the capital to build prisons.
Local governments that have signed prison IGAs often subcontract
medical care responsibilities to correctional healthcare firms. In
practice, the local government intermediaries exercise no oversight of
their contractors and subcontractors.

The Main Problems in the Shadow Prison Industry

The federal government has proved increasingly unwilling to take
direct responsibility for the human products of its vast criminal
justice and immigration enforcement systems. Instead, it has outsourced
this thankless, costly task. In doing so, the federal government has:
1) largely avoided its responsibilities for contract management and
oversight; 2) ignored its continuing responsibility to monitor
conditions inside these federally financed prisons; and 3) created a
shadow industry that has, in practice, near-absolute control over more
than a half-million prisoners and detainees.

Problems with the shadow prison industry mostly fall under the following issues of concern:

1. Lack of Coordination: Federal government
outsourcers rely largely on the same patchwork system of hundreds of
contractors and subcontractors. Both ICE and USMS depend exclusively on
this contracting network to hold the rapidly expanding number of
federal detainees, largely legal and illegal immigrants. Described by
congressional studies as a crisis in the late 1990s, the now bifurcated
(DHS and DOJ) federal detention system, overwhelmed in both departments
by the surge of immigrant prisoners and detainees, has recently become
vastly more complicated and problematic.

DHS's new promise to overhaul its own part of the federal detention
system ignores the recent history of attempts to reform the system, and
illustrates the bureaucratic tension between DOJ and DHS. What is more,
DHS has failed to acknowledge its own role—by increasing
criminalization of immigration violations and launching new criminal
alien programs—in driving the surge of immigrant prisoners in the BOP
and USMS facilities.

2. Lack of Effective Oversight: While the prison
industry and its supporters argue that the chief motivation for
prisoner outsourcing is to improve efficiency and reduce costs, little
evidence exists to support this conclusion. Instead, the operative
factors driving this booming shadow prison industry include intense
prison-industry lobbying, the spread of the government downsizing
ideology, and the eagerness of federal justice and immigration agencies
to rid themselves of the burden of incarceration.

Rather than providing effective oversight and contract monitoring,
federal outsourcers function mostly as expeditors of contracts and per
diem payments. In the absence of due diligence at DOJ and DHS, federal
prisoner/detainee outsourcing has led to gross abuses of
prisoner/detainee rights, a pattern of financial irregularities, and
the emergence of a virtually uncharted archipelago of private/public
prisons.

3. Lack of Transparency: A near-total absence of
committed oversight has allowed the prison industry to flourish in the
shadows. Requests for the most basic information about the functioning
of these prisons and detention centers routinely lead nowhere.

Private operators like GEO Group bounce back media requests and
questions from advocacy organizations to local government prison owners
and to the federal outsourcers. In turn, local government entities with
IGAs refer inquiries to their contractors and subcontractors, knowing
that this will lead to another dead end. For their part, the federal
outsourcers refer inquiries to their local government and private
partners and demand that requests for the even the most basic
information be channeled through FOIA submission, and then belatedly
reply with denials or heavily redacted documents, citing trade secrets
and proprietary information.

It is a revolving pass-the-buck system in which all the main
players deflect questions to the other players. The outsourcing system
permits them to evade their own responsibility and to contend that the
problems and failings of the prison outsourcing systems belong to their
contract partners. The result is a convoluted system of incarceration
that is little understood. However, more importantly, there are no
effective pathways to seek understanding and clarity about the
functioning of the heavily outsourced prison system. It is a system
that thrives in the absence of systematic governance—a system that
daily consigns thousands of U.S. residents to this shadow world.

Such reforms would constitute important first steps in improving
accountability and transparency in federally contracted private
prisons. However, the underlying, causal problem is the federal
government's unwillingness to assume full and direct responsibility for
the consequences of its enforcement and sentencing policies. The
criminal justice and immigration systems are both badly broken and
immensely costly, having resulted in the mass incarceration of
nonviolent citizen and noncitizens.

Structural reforms are urgently needed that will substantially
reduce the numbers of citizens and immigrants that are relegated to
expensive and ineffective lock-ups and that will give more
consideration to alternatives to detention, community supervision, and
the termination of prison sentences for many nonviolent offenses,
particularly drug law and immigration violations.

Our country cannot afford the high financial, social, and moral
price of mass incarceration and mass detention. What is more,
imprisonment and detention are inherently governmental
responsibilities, which should not be outsourced to private firms and
local governments that view criminal and immigration law violators
primarily as a source of profit and revenue.

Presented by Tom Barry, director of the Transborder Project of the Center for International Policy,
at Congressional Briefing, January 25, 2009, on H.R. 2450, a bill
sponsored by Rep. Sheila Jackson-Lee, among others, to ensure fiscal
accountability and reduce fraud and waste by extending FOIA to include
all correctional facilities that hold federal prisoners and detainees. Private Corrections Institute (a prison reform advocacy group) was pivotal in organizing the briefing.

To reprint this article, please contact americas@ciponline.org.

For More Information

A Death in Texas: Profits, Poverty, and Immigration Converge
http://americas.irc-online.org/am/6522

The New Political Economy of Immigration
http://americas.irc-online.org/am/5873

ICE Detention Reforms Hide Abusive Practices
http://americas.irc-online.org/am/6506