The Effect of Privatization on the Public and Private Prison Lobbies — part 2

Yesterday, I posted the first part of my book chapter on privatization and political advocacy (with particular application to prisons). Those who are interested in the fuller argument should consult my 2008 Stanford Law Review article, Privatization and the Law and Economics of Political Advocacy. A technical version of the paper is available in the International Review of Law and Economics.

Last time, I had presented a simple economic model in which, when several actors can give money for industry-expanding political advocacy and only the total amount of money in the pot matters, only the “largest” actor gives and all the others free-ride off him. Thus, within the model, splitting up a 100% public monopoly in which the public-sector union lobbies will reduce, not increase, industry-expanding political advocacy, and increasing the share of the private sector will continue to do so up to the “advocacy-minimizing split”, which depends on the precise magnitudes of the “benefits” being maximized by the various parties.

This time, I’ll elaborate on various aspects of the model, and describe what we know about the lobbying activities of public-sector corrections officer unions and private prison firms.

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Public Corrections Officers’ Unions

Corrections officials were once politically aligned with liberal groups (Berk et al. 1977), but by the 1970s correctional unions were already advocating incarceration (Wynne 1978). This activism continues today—for instance, through the California Correctional Peace Officers Association (CCPOA) (Pens 1998). The CCPOA gives twice as much in political contributions as the California Teachers Association—only the California Medical Association gives more in the state. CCPOA spends more than $7.5 million per year on political activities. It contributes to political parties and candidates, and it hires lobbyists, public relations firms, and polling groups.

Although some of its contributions are general, many are directly pro-incarceration:

  • In 1994, the CCPOA gave more than $100,000 to California’s Three Strikes Initiative, Proposition 184, making it the second-largest contributor.
  • It gave at least $75,000 to the opponents of Proposition 36, the 2000 initiative that replaced incarceration with substance abuse treatment for certain nonviolent offenders.
  • From 1998 to 2000 it gave more than $120,000 to crime victims’ groups, who present a more sympathetic face to the public in their pro-incarceration advocacy.
  • It spent more than $1 million to help defeat Proposition 66, the 2004 initiative that would have limited the crimes that triggered a life sentence under the three-strikes law (Warren 2004).
  • And in 2005, it killed Governor Schwarzenegger’s plan to “reduce the prison population by as much as 20,000, mainly through a program that diverted parole violators into rehabilitation efforts: drug programs, halfway houses and home detention” (Mendel 2006).

CCPOA doesn’t always favor increasing incarceration, but the bulk of its advocacy has been in this direction.

Though corrections officers’ unions outside California aren’t as active as the CCPOA, many do advocate incarceration. One can see this in Florida (Deslatte 2006),Michigan (Gurwitt 1991), New York City (Murphy 2002), New York State (Falk 2003), and Rhode Island (Whitehouse 2006).

In some states, corrections officers are also affiliated with generalized public-sector unions like the American Federation of State, County, and Municipal Employees (AFSCME). But the evidence that AFSCME Corrections United, AFSCME’s corrections arm, has specifically advocated incarceration is weak: AFSCME did lobby in favor of the 1994 crime bill, which civil libertarians opposed because of its emphasis on incarceration, but AFSCME plausibly attributed its support of the bill to its grants for correctional facilities, corrections officer training provisions, and the like.

Private Prison Firms

Private prison firms depend, for their livelihood, on two policies: privatization and incarceration. Indeed, they admit as much to the world in their annual financial reports. It’s thus natural to suspect that prison firms may advocate both privatization and incarceration in the public square. Their political advocacy mainly takes the forms of contributions to politicians and participation in the American Legislative Exchange Council (ALEC, a conservative organization that drafts model legislation), though they also lobby on particular bills, testify before Congress, and present arguments in the popular press. But, while it’s clear that these firms advocate privatization, it’s unclear that they advocate incarceration to any significant extent.

In the discussion of corrections officers’ unions earlier, I focused on advocacy that was specifically pro-incarceration; generalized contributions to candidates or support for multipurpose legislation, unlike targeted activities like contributions to single-issue voter initiative campaigns, can’t be traced back to any specific goal, like pro-incarceration advocacy. The same caveat is appropriate for private prison firms. Some commentators note private prison firms’ advocacy without distinguishing between pro-privatization and pro-incarceration advocacy (Sarabi and Bender 2000), but this blanket approach is a mistake, unless one is attacking all political involvement by prison firms. The industry’s contributions to politicians may not be pro-incarceration at all, or they may be multipurpose, for privatization and for incarceration. This is an important distinction, as merely advocating increased privatization arguably raises quite different concerns than advocating changes in the criminal law itself, and it may not implicate the same sorts of legitimacy values.

Because the industry’s public statements virtually all favor privatization rather than incarceration, there’s little hard evidence on the basis of which to attribute part of their political contributions to a pro-incarceration motive. Indeed, the Association of Private Correctional and Treatment Organizations (APCTO), the industry’s trade group (now mostly inactive), speaking for its member firms, flatly denies that the industry lobbies for increased penalties. On the contrary, APCTO has frequently endorsed alternatives to incarceration, treatment programs, and other measures to reduce recidivism (some of which would also benefit its member firms financially) (Doucette 2006a, 2006b, 2006c, 2006d). Even if one ignores the industry association’s official statements as self-serving and dismisses their anti-incarceration positions as mere public relations, at most, generalized political contributions are soft evidence of pro-incarceration advocacy. The most we can say empirically based on such evidence is that maybe pro-incarceration lobbying happens and maybe it doesn’t. Perhaps the hard evidence is missing because the industry covers its tracks, or perhaps the hard evidence is missing because there’s nothing to cover up.

As stated earlier, prison firms also participate in ALEC. Over the years, the Corrections Corporation of America (CCA) has participated in (and two of its executives have chaired) ALEC’s Criminal Justice Task Force, which drafted, among other things, a “Truth in Sentencing Act” and a “Habitual Violent Offender Incarceration Act” (Sarabi and Bender 2000; Dolovich 2005; Talvi 2006). The ALEC critique has recently resurfaced in connection with alleged CCA involvement with the drafting of the text that became SB 1070, Arizona’s controversial immigration law (Criminal Justice Institute 2011, 30).

The inner workings of ALEC are hazy, and some commentators argue that the private prison industry expressly seeks out channels that are “conveniently out of public view” and “behind closed doors” to promote its pro-incarceration agenda (Dolovich 2005). The trouble with this view is that we can also presume that prison firms work within ALEC on privatization issues: Prison privatization is one of the major issues of the very same Criminal Justice Task Force; the task force has a Subcommittee on Private Prisons and a model “Housing Out-of-State Prisoners in a Private Prison Act,” and CCA is known to have talked to the task force on the subject. Therefore, this, too, is soft evidence; we don’t know that they also work on sentencing or incarceration issues. Indeed, CCA asserts that it hasn’t participated in, voted on, or endorsed any stand on model legislation for sentencing or crime policies within ALEC (see, e.g., Grant 2010).

Apparently, the only CCA official to have ever publicly taken a stand on sentencing is J. Michael Quinlan, formerly director of the Federal Bureau of Prisons and (as of 2010) a CCA senior vice president, who, after he joined CCA in 1993, told a House subcommittee that mandatory minimum sentences “are unnecessary for non-violent, non-serious offenses” and “pose[] a severe threat to prison discipline and management” (Crime Prevention and Criminal Justice Reform Act 1994).

Nor does there seem to be a smoking gun of pro-incarceration lobbying if we examine the industry’s explicit lobbying on particular bills. For instance, in 2010, CCA lobbied on several bills before Congress (Justice Policy Institute 2011, 23). One was the Private Prison Information Act of 2009, which would have extended the Freedom of Information Act to private prisons holding federal prisoners; clearly one expects private prison firms to lobby to reduce their own regulation. Another was the Safe Prisons Communication Act of 2009, which would have allowed prisons to jam cell phones—a public safety issue of interest to all prisons. The other bills were appropriations acts for the Department of Homeland Security and other departments that pay CCA’s contract fees and miscellaneous bills to keep the government running or related to economic stimulus.

At the state level, one can similarly point, for instance, to CCA’s contribution to California’s failed Proposition 6 in 2008 (which would have enhanced some criminal penalties but also substantially increased law enforcement spending, including correctional spending), and GEO’s lobbying in favor of Jessica’s Law in Kansas in 2006 (which enhanced penalties for sex offenders but also—until the controversial language was dropped before the legislative vote—would have authorized private prison construction).

Of course any lobbying for funding plays some part in keeping the system as a whole going, but this is a far cry from lobbying for stricter criminal penalties.

I’ve only found two pieces of evidence of arguably pro-incarceration advocacy by private firms. In 1995, Wackenhut chairman Timothy P. Cole testified in favor of certain amendments to the Violent Crime Control and Law Enforcement Act of 1994. The main point of his testimony was to boost privatization and to make sure his corporation could get a share of certain prison funds. But during this testimony, he also said the following:

  • “Our proposed amendment . . .would help to assure that these grants will help the states incarcerate more violent criminals and not make the state governments more dependent on federal tax dollars in the long term.”
  • “By passing ‘truth-in-sentencing’ laws, states have begun to restore a fundamental sense of justice and fairness to our system of crime and punishment.”
  • “The new grant program [under the 1994 Act, without the proposed amendments] is available for ‘alternative correctional facilities’ and does not recognize the urgent need for more cells in secure facilities.”
  • “Current law encourages billions to be spent on new or retrofitted facilities that are not large enough, secure enough or efficient enough to keep the maximum number of violent criminals in prison for the least cost” (Overhauling the Nation’s Prisons 1995).

This isn’t great evidence—Cole was primarily advocating for funding priorities and privatization-friendly decision making. Cole’s request to divert money from alternative facilities, his kind words for truth-in-sentencing laws, and his positive attitude toward locking up violent criminals are hardly a pro-incarceration smoking gun.

More serious is the story, which broke in 2009, that two Pennsylvania state judges received kickbacks to send teenagers to two privately run youth detention centers (Urbina and Hamill 2009). But this example, reprehensible though it is, stands out for being extraordinary. Even though private industry might have an advantage over the public sector when it comes to corruption, outright judicial corruption, at least in the United States, is not a major problem.

These two cases are the best I’ve found. Private prison firms may have made other statements or taken other actions that are arguably pro-incarceration, but I haven’t found any, and to my knowledge, privatization critics haven’t brought them to light.

Sometimes No Smoke Means No Fire

What do we make of the absence of hard evidence that private firms advocate for stricter criminal law? As I’ve suggested earlier, perhaps they do so secretly. Or perhaps this simple model is basically right, and the private firms are actually spending their money on a form of advocacy where the public good aspect isn’t important—pro-privatization advocacy.

Pro-privatization advocacy is an area where, obviously, the private sector can’t free ride off the public sector, because the public sector is their enemy on that issue. If the private firms cooperate with each other, they reap all the benefits of their pro-privatization advocacy. Even if they don’t cooperate with each other, an individual firm’s pro-privatization contribution may benefit it directly to the extent that the contribution (perhaps improperly) increases the likelihood that the firm will obtain a particular contract.

Next time, I’ll discuss what happens when we complicate the simple model in various ways.