Mimesis Law
28 June 2017

Ending Private Prisons: You Believed The Government, You Rube?

Nov. 28, 2016 (Fault Lines) – Well, that didn’t last long.

Last week, CoreCivic (CCA), one of the country’s two largest prison operators, announced that the BOP had renewed its contract for two years to run the McRae Correctional Facility in Georgia. According to the company, the new agreement was barely changed, with only an 8% reduction in inmate beds.

Wait, what? Wasn’t it just three months ago that DOJ, which oversees BOP, said it was going to “decline to renew” these contracts or “substantially reduce [their] scope?” What gives, Deputy AG Sally Yates, who wrote the memo promising to do just that? Here’s what the feds told Quartz:

Curiously, the BOP said the new contract, reduced the number of beds by 24%, and saved $6 million in costs, and followed DOJ instructions. The reason for the discrepancy? BOP initially provided Quartz only the maximum capacity of the facility as a basis for the calculation. CoreCivic presented the minimum number of beds it would get paid for—the fixed amount it is guaranteed by the contract. [All typos in original.]

Huh? If you’re anything like me, you didn’t think that “explanation” made a lick of sense. Maybe something got garbled in the telling? Maybe? Please? Maybe not. From CoreCivic’s press release:

CoreCivic, Inc. (NYSE:CXW) (the “Company”) announced today that the Federal Bureau of Prisons (“BOP”) has exercised a two-year renewal option at the 1,978-bed, company-owned McRae Correctional Facility in McRae, Georgia.  The amended contract commences on December 1, 2016, and provides for housing up to 1,724 federal inmates with a fixed monthly payment for 1,633 beds compared to CoreCivic’s previous contract which contained a fixed payment for 1,780 beds.

Now, we’re nice people, so logic be damned: let’s interpret this in the way most favorable to the federal government. Dividing CCA’s new fixed monthly payment by the maximum number of inmates McRae prison can sleep – a thoroughly ridiculous and worthless metric, but never mind – only gets us 19% savings over 2014.

The right thing to do is divide the number of beds the feds are paying for now by how many they paid for last time. That gets us savings of 8.25%. In other words, BOP’s justification for what looks like a colossal failure to do what they said they would is by turns impossible (“reduced the number of beds by 24%”) and laughable (“followed DOJ instructions,” unless you consider 8% savings the “substantial” reduction Yates was promising.) It’s shocking, I know, but it seems the feds haven’t been straight with us.

The usual suspects, who cheered DOJ on when it put out its press releases, have already started to wake up and do something about the hangover.

Either way the contract renewal is spun, activists are disappointed. According to the American Civil Liberties Union, the McRae facility neglected the medical care of some inmates, and unduly punished inmates with solitary confinement. In 2011, the group asked the BOP to shut the prison down.

Compare this to what the ACLU was saying in August. Quoth Carl Takei, an attorney with the ACLU National Prison Project:

This August, the Justice Department made history when it announced that the Bureau of Prisons would curtail — and eventually end — its use of private prisons. As the Justice Department noted, this change was made possible by criminal justice reforms that reduced its prison population.

Made history, huh? Well, not so much. And the claim that the recent downtick in the federal prison population is thanks to the Obama administration is a little dubious. To be sure, they were eager to take the credit: in her memo, Deputy AG Yates made a point of listing all the possible explanations for the downtick that make DOJ look good, while omitting things like SCOTUS’ decision in Alleyne v. United States that were beyond the administration’s control. Nor was she above playing fast and loose with dates and statistics.

But certainly, no one from the ACLU NPP bothered to call them on it at the time: they were too busy partying to obsess over details. That’s more than a little disappointing – especially since ACLU representatives were among the few civil-liberties advocates not to start partying in December, when AG Loretta Lynch, citing budget cuts, announced a temporary halt to the Equitable Sharing asset-forfeiture program.

Nor are the ACLU the only ones sad about the latest news that Obama’s feds aren’t everything they’re cracked up to be:

“We were hoping for the facility to shut down,” said Azadeh Shahshahani, a human rights lawyer and director of Project South, an anti-racism advocacy group based in Atlanta.

She pointed out that the BOP extended its contract with GEO Group, the other leading prison company in the US in September for the D. Ray James Correctional Facility, also in Georgia. As with the McRae facility, the company presents the reduction of the contract as small, and the BOP presented the cut as larger in an email to Quartz, using different numbers from the agreement.

BOP’s ongoing perfidy is one thing. Another is the interesting fact that if you look at GEO’s press release, the cuts at D. Ray James – about 8.25% – are exactly the same, down to the fifth decimal place, as at McRae. Recall that in her memo, Yates cited the overall decrease in the federal prison population as the thing making DOJ’s cuts possible. As such, you’d expect the size of the cuts to vary at different locations, based on need. It’s unreasonable to expect the decrease to have been homogenous: a sizeable chunk of federal crime is drug crime, Yates correctly observed that nonviolent drug offenders have been especially likely to get shorter sentences recently, and drug crime is unevenly distributed across the US.

Normally, two data points would be awfully little to go on. (Plus, D. Ray James and McRae are in fairly close proximity to one another, and they both house low-risk detainees with questionable immigration status.) But on the other hand, nationwide, BOP contracts with only thirteen private prisons, so a sample of two is still pretty significant. Unless the need for inmate housing has changed in exactly the same way at both D. Ray James and McRae, it’s tempting to conclude the real reasons for the cut were budgetary, and all the reform-y talk of justice and lofty ambitions was a way to score political points on the cheap. It’ll be interesting to learn what the cuts, if any, at the other 11 facilities look like.

Ultimately, of course, none of this matters. As I pointed out in a previous post, the percentage of the federal prison population housed in private facilities is minuscule; even if they were all moved to government-run prisons (which may or may not be any better-run or more humane,) it wouldn’t make a difference in the grander scheme of things. And even if DOJ had honored its promise, DHS would just step in, keep cranking up the deportation machine, filling the cells DOJ left behind with illegal immigrants in pursuit of an impossible dream.

The really annoying thing is that none of it stopped ditzy advocates from showering the Obama administration with praise when Yates released her memo. Maybe they will await some actual reform next time before they start applauding.

4 Comments on this post.

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  • Mario Machado
    28 November 2016 at 8:51 pm - Reply

    What’s worse is that these corporations have a less than zero interest in aiding BOP inmates in removing an ICE immigration detainer from their BOP files, when applicable. If an inmate has an ICE detainer, he is ineligible for a half way house at the tail end of his sentence, or a sentence reduction for participation in the RDAP program.

    Most inmates with immigration issues who know that they won’t be removed any time soon even if they stipulate to an order of removal while at McRae (e.g., Cuban nationals convicted of aggravated felonies), know that they: (i) will get halfway house time at the end; and (ii) will avoid doing an additional 90 or 180 days in ICE custody afterwards while ICE decides to eventually cut them loose.

    But the personnel running these BOP prisons don’t give a damn, and most inmates (who in the bizarre world of immigration and criminal law are dying to stipulate to an order of deportation but never get a chance to do so) get to stay in BOP custody longer than they should, while the taxpayers get the extra bill for the subsequent, and completely unnecessary, non-sentence at an ICE detention center.

    Waste, waste, and more waste.

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