by La Risa R. Lynch
Special to the NNPA from The Final Call

“When you make prisons into a profit, you drive the need for incarceration and that is not in the public interest.”

( – The private prison industry’s profiteering off mass incarcerations has come under fire by prison reform advocates who blasted the industry’s use of bed or lockup quotas to pad their bottom line even as states attempt to decrease their prison population.

The backlash stems from a September report by Washington D.C.-based watchdog group In the Public Interest (ITPI). Their report found states and local governments that have contracts with private corporations, like Corrections Corporation of America (CCA) and the GEO Group, to run their prisons contain clauses requiring high occupancy levels. And if those prisons fall below those levels, states must foot the bills for those empty prison beds often at taxpayers’ expense.

ITPI called the practice a “low-crime tax,” since states and local governments are penalized for trying to reduce their prison population. ITPI monitors public contracts with private entities.

According to the report, 65 percent or 41 contracts ITPI reviewed have occupancy quotas between 80 and 100 percent. ITPI analyzed 62 contracts nationwide.  Several states top the heap with high occupancy rates.

Arizona has three private prison contracts requiring 100 percent occupancy. Oklahoma also has three contracts at 98 percent occupancy while Louisiana and Virginia have occupancy rates at 96 and 95 respectively. Private firms like CCA, the GEO Group and Management and Training Corporation (MTC) operate many of these prisons. CCA and the GEO Group did not respond to emails seeking comment.

Using lockup quotas is not surprising since the U.S. locks up more people than Russia, China or Iran.  According to the Bureau of Justice Statistics (BJS), the U.S. prison population grew every year between 1978 and 2009, from 307,276 prisoners in 1978 to a high of 1,615,487 prisoners in 2009. Currently 1.5 million people are incarcerated in state and federal prisons, a 1.7 percent decline from 2011 to 2012, a BJS press release stated.

Still the U.S. high incarceration rates have created an expansion of private prisons, which were virtually nonexistent until the early 1980s, according to a 2011 American Civil Liberties Union (ACLU) report.

But criminal justice activists claim bed quotas chip away at sentencing and criminal justice reforms while promoting legislation that push incarceration. Activists contend bed quotas incentivize keeping prison full.

The report bears that out. The private prison industry has lobbied and pushed for laws that increase mandatory minimums, three-strike laws and harsher drug sentences, which U.S. Attorney General Eric Holder acknowledge disproportionately target minorities.

Nicole Porter of the Sentencing Project called occupancy quotas problematic. The quotas, she said, tie lawmakers’ hands in managing state prison population.

“If they build prisons, they’ll fill them,” Ms. Porter said, noting that lawmakers often see increased prison capacity as a “safety vale” to address crime rather than reserving incarceration “for people who actually need to be in prison.”

“If state officials are required to pay out a contract then that may limit the innovation … in rethinking the use of incarceration in a particular state,” said Ms. Porter, advocacy director for the 27-year-old organization that pushes sentencing policy reforms.

Additionally bed quotas, she explained, shift budget priorities to pay for prison bed space rather than social services.

“That is a social policy problem because those dollars could be used towards other services that could help to strengthen communities and strengthen families such as health care, education and infrastructure,” Ms. Porter said.

No more has the ineffectiveness of private prisons played out than in the state of Arizona. The state shelled out over $3million for empty beds in a prison operated by MTC. MTC sued Arizona when it pulled some 200 prisoners from a jail it operated after a 2010 prison break. Three prisoners escaped and killed a New Mexico couple.

An investigation allegedly showed several safety violations from broken alarms and security systems to staff leaving posts and doors open. MTC sued and won based on the 97 percent occupancy guarantee, said Caroline Isaacs, program director of the Arizona chapter of the American Friends Service Committee. The Quaker-based organization advocates service, development and peace programs throughout the world.

“It shows that bed quotas are an impediment to accountability,” said Ms. Isaacs, who contributed to ITPI’s report. “If even one of these prison operators does something incredibly wrong, even criminally wrong these bed quotas can keep them from being held accountable.”

In Arizona’s case, she explained, the corrections department has few options if private prisons do something wrong. They can level fines or remove prisoners from the jail, which Ms. Isaacs called a rational response, “but they couldn’t do it because of the bed quotas.”

“It’s already hard enough to hold these prisons accountable when they screw up and they do,” Ms. Isaacs said.

While the report did not put a dollar figure on the cost private prison charge per-empty bed, Ms. Isaacs contends states avoid the fee by shuffling prisoners around. Prisoners, she explained, are moved from state jails to private prisons to meet the quota.

She warned about a rising trend in the prison industry. As states work to reduce their prison population through alternative sentencing, Ms. Isaacs said private prisons now see immigration detention centers as their new cash cow. Ms. Isaacs has seen an increase in federal contracts going to private prisons “because of an enforcement only approach” to immigration reform.

In 2010, Arizona enacted a stringent immigration law, SB 1070 that has earned the moniker of “breathing while brown law.” The law allows police to check the immigration status of people they’ve stopped. That provision of the law was upheld in a 2012 U.S. Supreme court challenge.

“If you put more border patrol agents on the border what are they going to do? They are going to stop more immigrants,” she said, adding that private prisons are eyeing halfway houses, day reporting centers and drug rehab facilities.

“If you are a private corporation that makes money from that person being in your program, you are going to keep them there as long as you can,” she added.

The fallout of incentivizing the use of private prisons has already claimed victims. In Pennsylvania a judge was sentenced to more than 20 years in prison in a “jailing kids for cash” scheme. Mark A. Ciavarella and colleague, Michael T. Conahan plead guilty in 2009 to fraud and tax charges stemming from accepting cash payments in exchange for sentencing youths to a private prison operated by juvenile detention developer. The kickbacks amounted to more than $2.6 million, according to news reports.

Safer Foundation’s Anthony Lowery said the Philadelphia case is an example of what states could face when contractually obligated to private prisons. These obligations, he explained, could lead to judicial misconduct, disproportional minority contact with police and strip away judicial discretion in sentencing.

“When you are contractually obligated to fill the prison, where is your judicial discretion going to be?” asked Mr. Lowery, policy and advocacy director for the Chicago-based nonprofit. Safer Foundation provides supportive services for ex-offenders in an effort to reduce recidivism rates.

“Is it going to be with giving this person an opportunity for a second chance or making sure that prison bed is full? I think that is ripe and open for the misconduct we’ve seen,” he added.

John Maki of the John Howard Association of Illinois agreed. States using private prisons are in a precarious position, said Maki, executive director of the Chicago-based group which monitors Illinois’ juvenile and adult prison system.

Illinois escaped having private prisons thanks to a 1990 state moratorium on the practice, although CCA has attempted and so far has failed to open an immigration detention facility in the state.

“When you make prisons into a profit, you drive the need for incarceration and that is not in the public interest,” Mr. Maki said. “That is not in the interest of protecting safety. It could lead to a real perversion of the justice system when you create a kind of financial incentive to incarcerate people. Money moves things. Money incentivizes behavior.”