Liberty v. Profit: How Privatization Erodes Justice

By: Kira Small

First Place

Better the Public Good. CoreCivic, the private correctional company to whom that motto belongs, runs the “open dormitories” at the Stewart Detention Center in Lumpkin, Georgia.[1] At least, that’s their technical name. The asylum seekers incarcerated there, including Wilhen Barrientos, know them instead as “The Chicken Coop.” The dorms are filthy and overcrowded, patrolled by guards who withhold products like toothpaste and soap. In a class-action lawsuit filed against CoreCivic in 2018, Barrientos describes how an officer once told him to “use his fingers” after he asked for toilet paper. In order to afford hygienic necessities, as well as artificially expensive phone calls and family visits, he has to work inter alia doing prison maintenance. Refusing the jobs means facing physical punishments and solitary confinement.[2] Barrientos isn’t alone. There are well over 600,000 inmates working full-time in America,[3] where minimum wages for prisoners range from seventy-nine to zero cents an hour.[4]

That sounds like slavery because it is.[5] In 1871, Virginia’s Supreme Court declared inmates to be “slaves of the state,”[6] legitimizing a caveat in the Thirteenth Amendment that abolishes slavery “except as punishment for a crime.”[7] A century later, when War-on-Drugs crackdowns designed to dismantle Black communities[8] provoked an unsustainable influx of prisoners, states began contracting private facilities.[9] As American prisons reach 103 percent capacity, many politicians look to privatization to shoulder even more of that burden.[10]

They shouldn’t. For-profit prisons not only incur higher recidivism rates than public institutions,[11] but they also fund legislation that promotes further imprisonment. Although CoreCivic claims not to “lobby for or against criminal sentencing,”[12] the Justice Policy Institute revealed that private correctional companies spent over 21 million dollars per decade lobbying for longer prison sentences, three-strike laws, and mandatory minimums.[13] When President Obama’s Attorney General promised to reduce private prison use,[14] CoreCivic invested heavily in Donald Trump’s campaign.[15] Upon election, President Trump’s Attorney General rescinded the reform[16] and watched CoreCivic’s stocks skyrocket.[17] The government isn’t its only source of funding; 25 percent of CoreCivic’s annual revenue comes from migrant labor performed by detainees like Barrientos.[18] That profit incentive bastardizes Blackstone’s Ratio: It is better that ten guilty persons escape than that one innocent suffer—unless, of course, that one innocent could boost the bottom line. 

Many downplay the role of for-profit institutions as merely “the camera, not the engine” of mass incarceration.[19] Bell v. Wolfish certainly guaranteed that overcrowding would persist even in the absence of private prisons.[20] However, brushing off privatization’s impact means ignoring the future of mass incarceration. Since 2000, America’s overall prison population has risen 3 percent while its private prison population has increased by more than 32 percent,[21] and private prisons house 81 percent of migrant detainees.[22] Those facilities operate with minimal oversight due to cases like Minneci v. Pollard (2012), in which the Supreme Court granted immunity to employees of private prisons facing lawsuits for violating inmates’ rights.[23] This verdict particularly disadvantaged migrants, whose dual struggle for prison discharge and citizenship already impedes legal recourse.

This judicial trend makes Barrientos’ case all the more groundbreaking. In 2020, the United States Court of Appeals sided with the plaintiffs, holding that private prisons are not exempt from human trafficking laws.[24] However, Barrientos is still detained in the same prison that he testified against as he awaits trial for asylum. On January 11, 2022, the Supreme Court heard the opening arguments for Garland v. Gonzalez, which will determine whether U.S. detention centers are allowed to hold him—or any other migrant—indefinitely.[25] 

Meanwhile, privatization’s hold on America’s immigration system only grows tighter. Last April, President Biden, whose promise to close private federal prisons fell through,[26] signed a 530 million dollar no-bid contract to Endeavors Inc. in exchange for housing over 18,000 migrant children.[27] The nominally “non-profit” organization devoted over half of its revenue to employee salaries in 2018,[27] including six-figure salaries for its top executives.[28] Jessica Corely, the strategic coordinator for several immigration nonprofits in El Paso, reported, “It is for money…we call them ICE 2.0.”[29] Guards have threatened to arrest journalists,[30] a level of secrecy protected by the 1972 Branzburg v. Hayes Supreme Court case, which denied constitutional reportorial privileges.[31] Justice Byron White dismissed protests that the 5-4 decision would curb journalism,[32] but fifty years later, Endeavors proves his assumptions wrong. Complacency towards prisoners’ rights poisons lower courts, too. Long after Hutto v. Finney,[33] a 1978 Supreme Court case that banned solitary confinement lasting longer than thirty days, a district court judge in Nevada ruled that CoreCivic wasn’t responsible for leaving a man in solitary confinement for almost a year.[34] His case illustrates another dangerous hallmark of carceral companies: defunding employee training at the cost of safety.[35][36] The judicial branch, America’s supposed beacon of righteousness, risks losing its authority to profiteering.

As easy as it is to blame elite institutions, they reflect public attitudes. Less than two years after the Black Lives Matter Movement, Long Island University reported that “criminal justice” didn’t crack the top ten most popular voting issues,[37] reaffirming Angela Davis’ belief that mass incarceration receives the “implicit consent of the public.”[37] Buoyed by verdicts that limit journalistic freedom, conventional wisdom preaches that if you are free, you are free not to worry about those behind bars. However, the philosophical pioneers of western law recognize that liberty cannot exist in isolation. Immanuel Kant, who promoted a universal maxim,[39] sought to protect not only individual liberties but the individual humanity upon which moral societies are predicated. Without that humanity, we are susceptible to utilitarian institutions that cement injustice into our most vulnerable communities. Upholding individual liberty means empathizing with strangers, limiting the profit motive, and replacing dollar signs with stories. That's how we reduce mass incarceration. That’s how we “Better the Public Good.”

NOTES:

1. “What CoreCivic Does and Doesn’t Do” CoreCivic, last modified 2021, Accessed January 24, 2022, https://www.corecivic.com/news/what-corecivic-does-and-doesnt-do.

2. “Wilhen Hill Barrientos, Margarito Velazquez Galicia, and Shoaib Ahmed v. CoreCivic, Inc.” United States Middle District of Georgia Columbus Division filed April 17, 2018, https://www.courthousenews.com/wp-content/uploads/2018/04/corecivic-class-action.pdf.

3. Noah Zatz, “Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships” Vanderbilt Law Review (Vol. 61, No. 07-35, 2008) (December 2007): (pp. 857-958) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1075842.

4. “How much do incarcerated people earn in each state?” Prison Policy Initiative Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2017/04/10/wages/.

5. “How the 13th Amendment exception perpetuates prison slavery” Freedom United December 19, 2022, Accessed January 24, 2022, https://www.freedomunited.org/news/13th-amendment-prison-slavery/.

6. P. Wright “Slaves of the State” Journal of Prisoners on Prisoners (Vol. 6, No. 162920) (1995): (pp. 17-20) https://www.ojp.gov/ncjrs/virtual-library/abstracts/slaves-state.

7. “Constitution of the United States” Constitution Annotated Accessed January 24, 2022, https://constitution.congress.gov/constitution/amendment-13/.

8. “Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People.” Equal Justice Initiative. March 25, 2016, Accessed January 24, 2022, https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/.

9. Lorna Collier, “Incarceration Nation,” American Psychological Association, (Vol 45, No. 9) (October 2014): (p. 56) https://www.apa.org/monitor/2014/10/incarceration.

10. “Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now? Prison Policy Initiative Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2020/12/21/overcrowding/#capacity_appendix.

11. “How Private Prison Companies Increase Recidivism” In the Public Interest June 16, 2016, Accessed January 24, 2022, https://www.inthepublicinterest.org/how-private-prison-companies-increase-recidivism/.

12. “What CoreCivic Does and Doesn’t Do” CoreCivic.

13. “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies” Justice Policy Institute October 2011, Accessed January 24, 2022, https://justicepolicy.org/research/gaming-the-system-how-the-political-strategies-of-private-prison-companies-promote-ineffective-incarceration-policies/.

14. Sally Yates, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice August 18, 2016, Accessed January 24, 2022, https://www.justice.gov/archives/opa/file/886311/download.

15. Jasmine Gomez and Pamela Cataldo, “Private Prisons and Political Contributions: How Big Money Shackles Immigration Policy” Free Speech for People (No. 2016-03) (December 2016): (pp. 1-3) https://freespeechforpeople.org/wp-content/uploads/2016/12/Immigration-and-Money-in-Politics-Issue-Report-EN.pdf.pdf.

16. Jefferson B. Sessions, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice February 21, 2017, Accessed January 24, 2022, https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.

17. Jeff Sommer, “Trump Immigration Crackdown Is Great for Private Prison Stocks” The New York Times March 10, 2017, Accessed January 24, 2022, https://www.nytimes.com/2017/03/10/your-money/immigrants-prison-stocks.html.

18. Jacqueline Stevens, “One Dollar Par Day: The Slaving Wages of Immigration Jail, From 1943 to Present.” Georgetown Law Review (Vol. 29, Issue 3) (May 2016): (pp. 391-500) https://deportationresearchclinic.org/Stevens-Dollar-Per-Day-GeoILJMay-2016.pdf.

19. Jonathon Booth, “How Private Prisons Profit from Forced Labor” Current Affairs October 26, 2020, Accessed January 24, 2022,  https://www.currentaffairs.org/2020/10/how-private-prisons-profit-from-forced-labor.

20. J. E. Call, “Lower Court Treatment of Jail and Prison Overcrowding Cases: A Second Look” Federal Probation (Vol. 25, Issue 2) (June 1988): (pp. 34-41) https://www.ojp.gov/ncjrs/virtual-library/abstracts/lower-court-treatment-jail-and-prison-overcrowding-cases-second.

21. “Private Prisons in the United States” The Sentencing Project March 3, 2021, Accessed January 24, 2022, https://www.sentencingproject.org/publications/private-prisons-united-states/.

22. “More of the Same: Private Prison Corporations and Immigration Detention Under the Biden Administration” American Civil Liberties Union October 5, 2021, Accessed January 24, 2022, https://www.aclu.org/news/immigrants-rights/more-of-the-same-private-prison-corporations-and-immigration-detention-under-the-biden-administration.

23. “Minecci v. Pollard” Legal Information Institute January 10, 2012, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/10-1104.

24. “Judgment in Barrientos, Velasquez-Galicia, Ahmed v. CoreCivic Inc.” Business & Human Right Resource Centre February 28, 2020, Accessed January 24, 2022, https://www.business-humanrights.org/en/latest-news/judgment-in-barrientos-velasquez-galicia-ahmed-v-corecivic-inc/.

25. “Garland v. Gonzalez” Legal Information Institute opened January 11, 2022, Accessed January 24, 2022, https://www.law.cornell.edu/supct/cert/20-322.

26. Casey Tolan, “Biden vowed to close federal private prisons, but prison companies are finding loopholes to keep them open” CNN November 12, 2021, Accessed January 24, 2022, https://www.cnn.com/2021/11/12/politics/biden-private-prisons-immigration-detention-centers-invs/index.html.

27. Lachlan Markay, Stef Kight, “Exclusive: Texas nonprofit got massive border contract after hiring Biden official” Axios April 14, 2021, Accessed January 24, 2022, https://www.axios.com/texas-nonprofit-border-contract-biden-official-23a493f4-6779-44f0-a5d4-db8690f11aec.html.

28. Anna Giaritelli, “HHS awarded group with Biden ties $530M no-bid contract to house migrant children” MSN April 13, 2021, Accessed January 24, 2022, https://www.msn.com/en-us/news/us/hhs-awarded-group-with-biden-ties-dollar530m-no-bid-contract-to-house-migrant-children/ar-BB1fCynx.

29. Reyes Mata III, “Nonprofits replaced by single service provider” Albuquerque Journal July 5, 2021, Accessed January 24, 2022, https://www.abqjournal.com/2406657/nonprofits-replaced-by-single-service-provider.html?paperboy=loggedin630am.

30. Reyes Mata III, “Nonprofits replaced by single service provider.”

31. Rodney A. Smolla, “The First Amendment, Journalists, and Sources: A Curious Study in ‘Reverse Federalism’” Washington & Lee University School of Law Scholarly Commons (Vol. 29:4) (March 2008): https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1443&context=wlufac.

32. Rodney A. Smolla, “The First Amendment, Journalists, and Sources.”

33. “Terrell Don HUTTO et al., Petitioners, v. Robert FINNEY et al.” Legal Information Institute decided June 23, 1978, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/437/678.

34. Ken Ritter, “US court revives lawsuit against private prison in Nevada” Associated Press May 28, 2021, Accessed January 24, 2022, https://apnews.com/article/nevada-courts-lawsuits-business-government-and-politics-55555c6e282a43c26ed8883b904e60c8.

35. Curtis R. Blakely, “Private and Public Sector Prisons—A Comparison of Select Characteristics” Federal Probation (Vol. 68, No. 1) (June 2004): https://www.uscourts.gov/federal-probation-journal/2004/06/private-and-public-sector-prisons-comparison-select.

36. “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons” Office of the Inspector General August 2016, Accessed January 24, 2022,  https://oig.justice.gov/reports/2016/e1606.pdf.

37. “What Issues Matter Most To Voters in 2022 U.S. Mid-Term Elections: Long Island University Hornstein Center National Poll” Long Island University September 16, 2021, Accessed January 24, 2022, http://headlines.liu.edu/wp-content/uploads/2021/09/Long-Island-University-Hornstein-Center-National-Poll-Topline-Press-Release-9-16-2021-WHAT-MATTERS-MOST-TO-VOTERS-IN-MIDTERM-ELECTIONS-POLL1.pdf.

38. Angela Y. Davis Are Prisons Obsolete? (New York, Open Media, 2003) (p. 14) https://collectiveliberation.org/wp-content/uploads/2013/01/Are_Prisons_Obsolete_Angela_Davis.pdf.

39. “Kant’s Moral Philosophy” Stanford Encyclopedia of Philosophy January 21, 2022, Accessed January 24, 2022, https://plato.stanford.edu/entries/kant-moral/.

BIBLIOGRAPHY:

Angela Y. Davis Are Prisons Obsolete? (New York, Open Media, 2003) (p. 14) https://collectiveliberation.org/wp-content/uploads/2013/01/Are_Prisons_Obsolete_Angela_Davis.pdf.

Anna Giaritelli, “HHS awarded group with Biden ties $530M no-bid contract to house migrant children” MSN April 13, 2021, Accessed January 24, 2022, https://www.msn.com/en-us/news/us/hhs-awarded-group-with-biden-ties-dollar530m-no-bid-contract-to-house-migrant-children/ar-BB1fCynx.

Casey Tolan, “Biden vowed to close federal private prisons, but prison companies are finding loopholes to keep them open” CNN November 12, 2021, Accessed January 24, 2022, https://www.cnn.com/2021/11/12/politics/biden-private-prisons-immigration-detention-centers-invs/index.html.

“Constitution of the United States” Constitution Annotated Accessed January 24, 2022, https://constitution.congress.gov/constitution/amendment-13/.

Curtis R. Blakely, “Private and Public Sector Prisons—A Comparison of Select Characteristics” Federal Probation (Vol. 68, No. 1) (June 2004): https://www.uscourts.gov/federal-probation-journal/2004/06/private-and-public-sector-prisons-comparison-select.

“Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies” Justice Policy Institute October 2011, Accessed January 24, 2022, https://justicepolicy.org/research/gaming-the-system-how-the-political-strategies-of-private-prison-companies-promote-ineffective-incarceration-policies/.

“Garland v. Gonzalez” Legal Information Institute opened January 11, 2022, Accessed January 24, 2022, https://www.law.cornell.edu/supct/cert/20-322.

“How much do incarcerated people earn in each state?” Prison Policy Initiative, Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2017/04/10/wages/.

“How Private Prison Companies Increase Recidivism” In the Public Interest June 16, 2016, Accessed January 24, 2022, https://www.inthepublicinterest.org/how-private-prison-companies-increase-recidivism/.

“How the 13th Amendment exception perpetuates prison slavery” Freedom United December 19, 2022. Accessed January 24, 2022, https://www.freedomunited.org/news/13th-amendment-prison-slavery/.

Jacqueline Stevens, “One Dollar Par Day: The Slaving Wages of Immigration Jail, From 1943 to Present.” Georgetown Law Review (Vol. 29, Issue 3) (May 2016): (pp. 391-500) https://deportationresearchclinic.org/Stevens-Dollar-Per-Day-GeoILJMay-2016.pdf.

Jasmine Gomez and Pamela Cataldo, “Private Prisons and Political Contributions: How Big Money Shackles Immigration Policy” Free Speech for People (No. 2016-03) (December 2016): (pp. 1-3) https://freespeechforpeople.org/wp-content/uploads/2016/12/Immigration-and-Money-in-Politics-Issue-Report-EN.pdf.pdf.

J. E. Call, “Lower Court Treatment of Jail and Prison Overcrowding Cases: A Second Look” Federal Probation (Vol. 25, Issue 2) (June 1988): (pp. 34-41) https://www.ojp.gov/ncjrs/virtual-library/abstracts/lower-court-treatment-jail-and-prison-overcrowding-cases-second.

Jefferson B. Sessions, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice February 21, 2017, Accessed January 24, 2022, https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.

Jeff Sommer, “Trump Immigration Crackdown Is Great for Private Prison Stocks” The New York Times March 10, 2017, Accessed January 24, 2022, https://www.nytimes.com/2017/03/10/your-money/immigrants-prison-stocks.html.

Jonathon Booth, “How Private Prisons Profit from Forced Labor” Current Affairs October 26, 2020, Accessed January 24, 2022,  https://www.currentaffairs.org/2020/10/how-private-prisons-profit-from-forced-labor.

“Judgment in Barrientos, Velasquez-Galicia, Ahmed v. CoreCivic Inc.” Business & Human Right Resource Centre February 28, 2020, Accessed January 24, 2022, https://www.business-humanrights.org/en/latest-news/judgment-in-barrientos-velasquez-galicia-ahmed-v-corecivic-inc/.

Lachlan Markay, Stef Kight, “Exclusive: Texas nonprofit got massive border contract after hiring Biden official” Axios April 14, 2021, Accessed January 24, 2022, https://www.axios.com/texas-nonprofit-border-contract-biden-official-23a493f4-6779-44f0-a5d4-db8690f11aec.html.

“Kant’s Moral Philosophy” Stanford Encyclopedia of Philosophy January 21, 2022, Accessed January 24, 2022, https://plato.stanford.edu/entries/kant-moral/.

Ken Ritter, “US court revives lawsuit against private prison in Nevada” Associated Press May 28, 2021, Accessed January 24, 2022, https://apnews.com/article/nevada-courts-lawsuits-business-government-and-politics-55555c6e282a43c26ed8883b904e60c8.

Lorna Collier, “Incarceration Nation,” American Psychological Association, (Vol 45, No. 9) (October 2014): (p. 56) https://www.apa.org/monitor/2014/10/incarceration.

“Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People.” Equal Justice Initiative March 25, 2016, Accessed January 24, 2022, https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/.

Noah Zatz, “Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships” Vanderbilt Law Review (Vol. 61, No. 07-35, 2008) (December 2007): (pp. 857-958) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1075842.

“Minecci v. Pollard” Legal Information Institute January 10, 2012, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/10-1104.

“More of the Same: Private Prison Corporations and Immigration Detention Under the Biden Administration” American Civil Liberties Union October 5, 2021, Accessed January 24, 2022, https://www.aclu.org/news/immigrants-rights/more-of-the-same-private-prison-corporations-and-immigration-detention-under-the-biden-administration.

“Private Prisons in the United States” The Sentencing Project March 3, 2021, Accessed January 24, 2022, https://www.sentencingproject.org/publications/private-prisons-united-states/.

P. Wright, “Slaves of the State” Journal of Prisoners on Prisoners (Vol. 6, No. 162920) (1995): (pp. 17-20) https://www.ojp.gov/ncjrs/virtual-library/abstracts/slaves-state.

“Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons” Office of the Inspector General August 2016, Accessed January 24, 2022,  https://oig.justice.gov/reports/2016/e1606.pdf.

Reyes Mata III, “Nonprofits replaced by single service provider” Albuquerque Journal July 5, 2021, Accessed January 24, 2022, https://www.abqjournal.com/2406657/nonprofits-replaced-by-single-service-provider.html?paperboy=loggedin630am.

Rodney A. Smolla, “The First Amendment, Journalists, and Sources: A Curious Study in ‘Reverse Federalism’” Washington & Lee University School of Law Scholarly Commons (Vol. 29:4) (March 2008): https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1443&context=wlufac.

Sally Yates, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice August 18, 2016, Accessed January 24, 2022, https://www.justice.gov/archives/opa/file/886311/download.

“Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now? Prison Policy Initiative Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2020/12/21/overcrowding/#capacity_appendix.

“Terrell Don HUTTO et al., Petitioners, v. Robert FINNEY et al.” Legal Information Institute decided June 23, 1978, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/437/678.

“What CoreCivic Does and Doesn’t Do” CoreCivic, last modified 2021, Accessed January 24, 2022, https://www.corecivic.com/news/what-corecivic-does-and-doesnt-do.

“What Issues Matter Most To Voters in 2022 U.S. Mid-Term Elections: Long Island University Hornstein Center National Poll” Long Island University September 16, 2021, Accessed January 24, 2022, http://headlines.liu.edu/wp-content/uploads/2021/09/Long-Island-University-Hornstein-Center-National-Poll-Topline-Press-Release-9-16-2021-WHAT-MATTERS-MOST-TO-VOTERS-IN-MIDTERM-ELECTIONS-POLL1.pdf.

“Wilhen Hill Barrientos, Margarito Velazquez Galicia, and Shoaib Ahmed v. CoreCivic, Inc.” United States Middle District of Georgia Columbus Division filed April 17, 2018, https://www.courthousenews.com/wp-content/uploads/2018/04/corecivic-class-action.pdf.