Sunday, September 11, 2016

259.3 - Update: phasing private prisons out of the federal system

Update: phasing private prisons out of the federal system

On the last show, I offered the Good News about the decision of the Department of Justice to phase out the use of private prisons in the federal prison system.

Unfortunately, I also offered the Not Good News that this did not apply to the Department for the Protection of the Fatherland because it and the DOJ are separate departments. And it is Immigration and Customs Enforcement, or ICE, which I think is a remarkably appropriate acronym and which is part of the Department for the Protection of the Fatherland, which oversees the nation's network of immigrant detention centers. Which means the DOJ's decision did not affect them.

Now, however, the Obama administration is considering an end to the practice of keeping immigrant detainees in for-profit prisons. And yes, they call them immigrant detention centers but I still call them prisons because if you can't leave, it's prison.

Jeh Johnson
Homeland Security Secretary Jeh Johnson, whose agency includes the immigration service and the Border Patrol, ordered a review of ways to end the use of the private facilities. A decision is supposed to be made by the end of November.

Grassroots Leadership, an advocacy group, estimates that about half of the federal spending on the prisons, about $1 billion, goes to private companies capitalizing on the desperation of immigrants and refugees, even as those private prisons display a pattern of poor medical care and abuse as documented by civil rights organizations, a pattern that is the direct result of those prisons' incentive to cut costs to increase profits. While the federally-run facilities are not without similar problems, Bob Libal, executive director of Grassroots Leadership, notes that the problems are "magnified" in the private prisons.

So a favorable decision would be a major victory for civil rights and immigrant advocacy groups and much to be hoped for.

But immigration officials have pushed back against the idea, arguing that it would cost taxpayers billions of dollars more a year and take more than a decade to implement and the alternatives could be worse. Put another way, typical "this is the best of all possible worlds, don't rock the boat" bureaucratic bullshit.

Admittedly, it would be an undertaking: Nine of the country's 10 largest immigrant prisons are operated by private companies, and they hold about two-thirds of the detainees in a system that currently keeps more than 31,000 people in custody on a typical day.

But officials, too comfortable with the status quo, are resorting to what approach doomsday scenarios where cutting down on private prisons would bring ruin not to the corporations, not to the prison system, but to the imprisoned immigrants. Why, they'd have to stuff them into state and local jails where conditions may be even worse and besides that would mean putting people who have not been accused of a crime into facilities where they are in contact with potentially dangerous criminals.

Uh-huh. Well, I can think to two answers right off the top of my head. One is that if people have not been accused of a crime, maybe at least for a good number of them it wouldn't be necessary to lock them up at all, especially if, as advocacy groups argue, the government could allow more community organizations to vouch for immigrants and work with courts to ensure that people show up for legal proceedings.

Here's another: If the issue is that in order to stop using private prisons the feds would have to build entirely new ones to replace them, which I expect is where the "it will take more than 10 years to do" comes from, how about we forget about building new ones and just take all those existing private prisons and seize them by eminent domain?

I mean, after all, why not? The 5th Amendment that says that "nor shall private property be taken for public use without just compensation" but courts right up to the Supremos have held that the phrase "public use" doesn't actually mean "for use by the public," it means "public purpose" or even more broadly, "public benefit," so that, for example, seizing people's homes to turn the land over to a private developer in the hope that some project, if it works out, will increase property tax revenue is just fine under the Constitution. In fact, the concept of eminent domain had been distorted and stretched so far that even private corporations are invoking it in pursuit of their own profit.

So why not just take the private prisons? Certainly, it would meet the criteria. It would advance the "public purpose" of ending the use of private prisons and bring a "public benefit" in that while the former owners would have to be compensated, that surely would be less than the cost of building entirely new facilities, thus saving the public money.

The fact that I am quite sure that idea has not even been broached - and if someone did, they were probably fired - is just one more indication of what is wrong in our society and our governing affairs and how the interests of corporations still drive too much of our national policy and more importantly national psychology to the point where questioning them for anything short of the most outrageous criminality usually doesn't even enter the conversation.

Still, the fact that the idea of putting an end to federal prisons in the immigration service is even being considered, that the question is actually being asked, is hopeful news.

Don't shed any tears for the private prison industry just yet, though: Even if the federal government completely ended its use of private prisons, the industry could still thrive because most inmates in the US are in state and local prisons and jails, not federal ones, and many of those are run by private companies.

In fact, Damon Hininger, the chief executive of Corrections Corporation of America, the largest private prison company in America, told investors in June that his firm will be "just fine" no matter who wins the White House.

On the other hand, in August the California legislature passed the Dignity Not Detention Act, which would block local governments from contracting with private companies to run immigration detention centers in the state. The bill went to Gov. Jerry Brown's desk, but as of September 11, he still hadn't signed it. I deeply hope that will have changed by the time you read this.

The funny thing is, I can easily remember a time when the idea of private prisons would have seemed utterly bizarre, even far-fetched. Instead, they were another outgrowth of the war on drugs, when the exploding prison populations which that created produced overcrowding and rising costs. And it was, of course, the '80s, when the word "private" was spoken with reverence normally reserved for religious artifacts until we came to regard them as so normal, so much a part of our broken criminal injustice system, that we dared not undo them.

Happily, it appears that hand has been played out and the tide of opinion, of knowledge, is turning for the better.

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