Marijuana, Immigration And Private Prisons

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On August 18, 2016, then Deputy Attorney General, Sally Yates, issued a memorandum directing the Bureau of Prisons (BOP) to begin to reduce – with an eye toward eliminating – the use of private prisons. Yates directed “that, as each contract reaches the end of its term, the Bureau should either decline to renew the contract or substantially reduce its scope in a manner consistent with law and the overall declines in the Bureau’s inmate population.”

Of course, when the Deputy Attorney General wrote that memo, DOJ was not in the mode of targeting enforcement of Marijuana laws or rounding up “illegal immigrants.”

With a dwindling Federal prison population, Yates explained that “private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities.” And she added that “they simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”

Yates concerns were not misplaced. In December 2016, the Office of Inspector General (OIG) for the Justice Department (DOJ) issued a stinging audit of BOP’s contract covering CoreCivic’s operation of the Adams County Correctional Facility in Natchez, Mississippi. The two-year audit was conducted following a May 2012 riot that left one corrections officer dead with injuries to approximately 20 staff and inmates.

CoreCivic’s, formerly known as Corrections Corporation of America, is one of the nation’s largest operators of private prisons. The December 2016 OIG audit found deficiencies or problems regarding staffing, staff training, staff turnover, and the delivery of healthcare services. And the audit noted that “CoreCivic did not always comply with contract requirements related to billing.

If CoreCivic was saving any money, it was doing so by skimming dollars off the backs of correctional officers, but even that effort had its drawbacks according to the OIG. Based on an analysis of the year 2014 data, the audit explained that the “BOP offers entry-level correctional officers 48 percent higher wages and 20 percent more paid time off than CoreCivic, which gives the BOP a strong relative advantage over the contractor in terms of both recruiting and retention.”

If by the end of 2016, the message was clear that private prisons do not work, the Trump Administration either missed the message or did not read the fine print. Shortly after his Senate Confirmation, on February 21, 2017, Attorney General Jeff Sessions rescinded the Yates directive. Actually, no surprise there. For President Trump, “draining the swamp” simply means turning the government over to the private sector. For those who make their money from the private prison business, this point did not go unnoticed. Since Mr. Trump’s election to office, CoreCivic’s stock has more than doubled in price including a sharp upward spike in value contemporaneous with the November 2016 presidential election results.

The Trump/Session’s plan to maintain BOP’s relationship with private prisons is replete with a scheme to keep them occupied. The Administration intends to enforce the marijuana laws, and of course, from the perspective of the President, there will be plenty of “illegal immigrants” to fill the cells. While there has been a public dialogue about the propriety of enforcing these laws, there has been little public scrutiny over how the prospective inmate populations will be treated. Of course, once these soon to be inmates are within the custody of a private prison, it is hard to fathom whether these inmates, perhaps convicted and sentenced for minor drug offenses, will have any ability to make their voices heard. And one wonders whether an OIG operating in the Trump era will move any quicker or with more diligence than its predecessor which took two years to issue its Natchez report.

By definition, correctional institutions are supposed to – at least in part -- provide a corrective or rehabilitative function. Just as our judicial system is a function of the government, the corrections system – which carries out sentences or orders imposed by the courts -- should be an inherently governmental function. Yet, that is not the way the current administration sees things. And so as the new President moves to incarcerating minor drug offenders and so-called “illegal immigrants,” the press, public advocates, and Congress need to maintain oversight over where the targets of new enforcement efforts will be housed.

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