Still Bringing the State Back In Private Prisons and Mass Incarceration

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Mass incarceration has been a project of state building. Accordingly, when I teach my students about the history of mass incarceration, I always ground our discussion in theories of the state. In 1919, Max Weber famously recognized that a hallmark characteristic of the state was the “claim to the monopoly of legitimate physical violence within a certain territory.” But the state has also delegated this authority. In the United States, the histories of state and extra-governmental violence are replete with slave patrols, convict-leasing systems, Pinkertons, labor spies, and other so-called private actors who often have acted with tacit or formal license to utilize physical violence to enforce social hierarchies, especially those of race, class, gender, and nation. The current system has winding connections with each of these histories. Private prison companies are a recent expression of this broader phenomenon. Ultimately, however, their power to punish is determined in the political sphere.

In the early 1980s, just as the two most prominent private prison companies were being born, a group of leading social scientists held a conference that would eventuate in the book, Bringing the State Back In. Theda Skocpol, one of editors of the collection, promoted scholarship that refrained from a “grand theory of ‘The State.’” Resistant to some of the totalizing arguments of Marxist state theory, Skocpol indicated the state should not be viewed reductively as simply a tool of capitalist class interests. Instead, the editors emphasized that “states are potentially autonomous and, conversely, that socioeconomic relations influence and limit state structures and activities.” As the editors stressed, “the challenge for researchers is to identify, conceptualize precisely, and explain variations through time and space.” Studying imprisonment—all of which is publicly funded and 93% of which is in the public sector—offers scholars just such an opportunity to understand how and why a particular jurisdiction took one course for its system of policing and imprisonment and not another.

Skocpol sought to understand the precise role of state-capital relations in a given space and time—an essential component of researching imprisonment. Contrary to much reporting on private prisons, they are not the center of the system of mass incarceration. Scholars such as Ruth Wilson Gilmore, Dan Berger, and Lydia Pelot-Hobbs, among others, have demonstrated as much. Rather, according to Berger, private prisons “are the venal byproducts of racial state violence in a capitalist society.” Focusing on private prisons to the neglect of public prisons obscures broader state-capital relations. It inhibits more extensive analysis about the role of policing and imprisonment in capitalist societies: enforcing relations of private property and maintaining social conditions necessary for profitability. And that narrow focus also mystifies the specificities in a given jurisdiction’s system of punishment.

A line graph displays three trend lines with an x-axis ranging from 1978 to 2014 in two year increments and a y-axis ranging from 0 to 2,000,000 in increments of 500,000. One line marked "Private prisons" shows very slow increase over time, ending at its highest point at 131,261. A line labeled "government run prisons" gradually increases and ends at the high number 1,430,264. The final line, labeled "all state and federal prisons" is the highest of all the lines and ends above the other two at 1,561,525.

Figure 1: Private Prisons and Public Prisons. Source: Prison Policy Initiative, 2015.

Like Skocpol’s insights about the state, the field of history of capitalism insists that capitalism be studied in action. As Marx emphasized, capital is value in motion. For historians of capitalism and others, reading private prison company’s annual reports and 10-K’s, listening to investor calls, and viewing their early advertisements for stock in the Wall Street Journal, shows a firm, like most firms, scrambling for greater market share and increased revenues. From this vantage point, private prison companies are revealed as entirely reliant on the government for their viability. This is true at the level of their endowment with the state’s violent power. And it is also evidenced at lower levels of abstraction, such as their struggle to get a given contract by boasting—with dubious evidence—of their cost savings, or their accomplishment in 2013 of convincing the IRS that they should qualify as Real Estate Investment Trusts (REITS), which saved them tens of millions of dollars in taxes. With incessant repetition, their reports remind investors of their reliance on the state. “We depend on a limited number of governmental customers for a significant portion of our revenues,” wrote CoreCivic in their 2016 10-K. GEO Group’s 2016 10-K contains an almost identical statement: “We partner with a limited number of governmental customers who account for a significant portion of our revenues. The loss of, or a significant decrease in revenues from, these customers could seriously harm our financial condition and results of operations.”

These companies are striving to grow their 7% market share to 8%, and so on. Accordingly, the boards of directors for CoreCivic and its chief rival GEO Group reveal their efforts to nurture connections between their firms and the governmental actors who might be willing to give them contracts. The companies’ leadership is replete with those who have worked in all levels of government. Such political networks and knowledge are essential to the workings of private prison companies, because their business rests on these contracts. In the most recent year, for example, 52% of CoreCivic’s revenue came from contracts with the federal government: Immigration and Customs Enforcement (ICE), the U.S. Marshals, and the Bureau of Prisons; while contracts with Tennessee, California, and Georgia also comprised significant revenues. This pattern is similarly reflected with GEO Group.

GEO Group

Figure 2: Information from GEO Group 2016, Annual Report. Graph by David Stein.

However, as scholars and activists frequently lament, private prison companies often receive an outsized proportion of prison-related reporting and attention relative to their share of influence. As legal scholar John Pfaff notes in his criticism of such politics, both Hilary Clinton and Bernie Sanders made private prisons a central issue in their criminal justice platforms after being pressured to do so by activists. But many worry that undermining private prisons would do little to reduce mass incarceration, because they account for a significant, but relatively small, share of the broader system of mass imprisonment. For Pfaff, “the pathologies of the private sector are just as present in the public sector.” As he highlights, “legislators, judges, and prosecutors all have strong incentives to remain tough on crime.” Likewise, scholars and activists whose focus is reducing all imprisonment are concerned that ending the private prison system will shift imprisonment from a 93% public enterprise to a 100% one. Without reducing the number of people who are imprisoned, scholars and activists are apprehensive about what efficacy such changes will have on the lives of people most harmed by imprisonment.

As with public prisons, private prisons are vulnerable to political, and thus market, shifts. In her recent book on James Buchanan and right-wing political activism, Nancy MacLean emphasizes how a perpetual problem for those like her protagonist was that “few politicians would follow his recommended course of action if doing so jeopardized their own reelections.” Pfaff and other scholars of imprisonment come to similar conclusions. Politicians will abandon what Julilly Kohler-Hausmann describes as the political paradigm of “getting tough” when activists and voters compel them to do so. This is not a simple story of corporations serving as puppet master, with police, prosecutors, and legislators from diverse locales and constituencies operating as their willing marionettes. Rather, the politics of law and order have produced a host of constituencies—from public employees like district attorneys and probation officers, to private firms—who seek to maintain punitive politics. Recent budgetary pressures have spurred moderate rollbacks of some jurisdiction’s carceral capacity, both public and private, belying the notion that private aggrandizement is the system’s reason for being. Texas is currently in the process of shuttering four prisons, including the Bartlett State Jail. Managed by CoreCivic, the Bartlett facility accounts for 37% of the reduction of imprisonment on the horizon for Texas.

However, CoreCivic is also positioning itself to take advantage of some of the changes on the horizon for the state’s punitive capacity. Seeking to diversify their holdings, CoreCivic has emphasized investments in residential reentry centers. They are buying up existing competitors to grow their market share and take advantage of the burgeoning demand for such facilities. As their CEO Damon Hiniger explained on a recent shareholder call, “We continue to cultivate and pursue attractive acquisition targets in the residential reentry market that will complement our existing portfolio . . . the pipeline is robust, as it has been since we began our strategic growth initiative in this space four years ago.” GEO Group is taking similar actions. A few months ago, they purchased Community Education Centers—a leader in the private halfway house industry—for $360 million. Here we can also observe how private companies are following broader trends in the field of policing and imprisonment that focus on reentry. They are not setting these industry trends. Similarly, diversifying their business is at the heart of their rebranding effort, as they seek to expand into other governmental sectors beyond imprisonment.

Private prisons continue to rely on the imprisonment of immigrants as a core component of their business model. One of CoreCivic’s early contracts entailed imprisoning 140 undocumented immigrants in Houston’s Olympic Motel while they awaited deportation. CoreCivic leased the motel and put a barbed-wire fence around it, thus converting it into a makeshift prison. In March 1984, this was the provisional solution while CoreCivic built their own prison south of Houston’s airport.[i] Like now, immigration authorities targeted immigrants—many of whom sought asylum—in the country’s interior. On their recent shareholder call, Hiniger expressed enthusiasm that ICE arrests in the interior of the country are up by 33% in the first quarter of 2017 vis-à-vis 2016. This past year CoreCivic received 28% of their revenues from contracts with ICE, while GEO Group took in 18%. So, while CoreCivic and GEO Group seek to diversify and expand their business, they remain positioned to take advantage of President Trump’s escalations of prior administration’s punitive policies towards immigrants.

Private prisons, however, are a camera, not an engine for the broader system of mass incarceration. The camera’s snapshot of private prisons reflects all prisons: a few people make money and many more people get hurt. In some cases, the photo foregrounds and accentuates certain aspects of prisons in general: abysmal healthcare provision facilitating premature death being a key one. But private prisons do not have a monopoly on this. In 2011, the Supreme Court’s Brown vs. Plata decision held California’s public prisons to have violated the 8th Amendment prohibiting cruel and unusual punishment because their inadequate healthcare generated “needless suffering and death.” On June 27, 2017, Alabama’s prisons were similarly held in violation of the 8th Amendment due to what the judge described as, “horrendously inadequate” conditions for imprisoned people with mental illnesses. Activists with California Coalition of Women Prisoners have been organizing against what they describe as “psychological torture” at the California Institution for Women, which has resulted in a suicide rate 4-8 times the national average. Such cases show that the scandal is not about which public or private actor receives money to delegate punishment. Rather, imprisonment itself—the racism and premature death that it generates—is the scandal.

David Stein is a Lecturer in the Departments of History and African American Studies at the University of California-Los Angeles. His first book, Fearing Inflation, Inflating Fears: The Civil Rights Struggle for Full Employment and the Rise of the Carceral State, 1929-1986, will be published by the University of North Carolina Press. He co-hosts and produces Who Makes Cents?: A History of Capitalism Podcast with Betsy Beasley.

[i] King, Wayne. “Contracts for Detention Raise Legal Questions.” The New York Times, March 6, 1984.

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