How Lawmakers and Lobbyists Keep a Lock on the Private Prison Business

Private prison corporations say they don't lobby on custodial policy. They seem to find legislators with views aligned anyway

Early in August, the Associated Press reported that America's three largest private prison companies, the Corrections Corporation of America (CCA), GEO Group, Inc and Management and Training Corp spent in the region of $45m over the past 10 years in lobbying state and federal governments. During the same period, these companies saw their profits soar as they scored more government contracts.

During the same period, various pieces of legislation got passed ensuring that immigrant detention, in particular, would remain a lucrative growth market. The companies get defensive, however, if anyone attempts to draw a connection between their lobbying efforts and their booming businesses. But whatever the purpose of the lobbying, the very fact that these companies, which perform a public service using taxpayer funds, are first and foremost profit-making entities highlights the flawed incentivisation of the private prison model and its growing presence in the American criminal justice system.

I'll get to the lobbying in a moment, but first let's have a look at that flawed incentive. Thanks to mandatory sentencing laws and the "war on drugs", the prison population has exploded over the past 30 years - to the point where it has become an untenable burden on state budgets. As a result, many state lawmakers have begun to look at ways to reduce their prison populations. This is good for society, as needlessly locking people up for excessive periods for nonviolent crimes has proven to be counter-productive and cost-prohibitive - not to mention inhumane.

This is terrible news for the private prison business, however, as they are reliant on state and federal governments to provide them with their customer base: that is, bodies to fill their cells.

The CCA highlighted its concerns over this potential downturn in demand for services in its Annual Report to shareholders in 2010:

"The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced thereby potentially reducing demand for correctional facilities to house them."

As it turns out, the CCA is doing just fine. Its revenue in 2010 was a record $1.67bn, an increase of $46m from 2009. Half of that revenue came from contracts with states, and 43% of it came from federal contracts with the US Marshals, the Bureau of Prisons and ICE. Since 9/11, the number of immigrants held in detention has grown exponentially, and the number held in private prisons (not just the CCA's facilities) has increased during that period by 206%, according to a report (pdf) by the Sentencing Project.

The companies maintain that their lobbying efforts have nothing to do with this expansion and insist that it is their policy to "expressly prohibit their lobbyists from working to pass or oppose immigration legislation", such as the Arizona immigration bill SB1070, which provides for the mandatory detention of immigrants who cannot produce papers on request. In an email to me, the CCA's spokesperson, Steve Owen, stated his company's position as follows:

"Allow me to strongly reiterate that it is CCA's longstanding corporate policy not to take positions on any legislation at any level of government involving detainment, crime or sentencing policies."

Since it is not to influence custodial policy, where are the private prison firms spending those millions of lobbying dollars? On a state level, it's difficult to ascertain exactly where the funds are directed, as each state has different disclosure requirements for lobbyists. But a report compiled by the Justice Policy Institute issued in 2011 and using data from the National Institute on Money in State Politics found that between 2003 and 2010, the CCA contributed a total of $1,552,350 to state election campaigns, with its efforts concentrated in California, Florida and Georgia. (Of these contributions, approximately half was to candidates, more than a third was to party committees and around one tenth was spent on ballot measures.) Contracts with the state of California account for 13% of the CCA's total revenue, and Georgia is home to the CCA-run Stewart Detention Center, the largest immigrant detention center in the country.

At a federal level, it is much easier to find out exactly where lobbying efforts have been directed. For instance, on the federal government's official lobbying disclosure website, it is possible to do a search to see exactly how much each private prison company has spent in any given year on lobbying efforts, and to find the specific issues they lobbied on. So, in this CCA lobbying report from 2008 (see pdf), it clearly states in box 16 that the "specific lobbying issues" were the "HR1889 (Private Prison Information Act); all provisions and HR1890 (Public Safety Act); all provisions."

The purpose of the latter bill, HR1890, was to "ensure that the incarceration of inmates is not provided by private contractors or vendors and that persons charged with or convicted of an offense against the US shall be housed in facilities managed and maintained by federal, state or local governments".

The bill died in committee. So the CCA lobbied and came out on the winning side against a bill that would have ended privatization of prison services. Whether that fits with the CCA's stated policy of not taking positions on "any legislation at any level of government involving detainment" may be moot, for I'm sure its shareholders would feel that those were lobbying dollars well spent.

The private prison companies insist that their lobbying and campaign donations are above board and legally compliant. They are corporations in the business of making profit, and so you cannot really blame them for doing whatever it takes to achieve that end.

It is their political enablers, the lawmakers who accept millions of dollars from these corporations, who ought to be doing some serious soul-searching. Of all the public services to be outsourced, incarceration, where the state deprives a person of their liberty and assumes responsibility for his or her mental and physical well-being, is not one to be auctioned for campaign contributions.

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