‘60 Days In’ Everyday People Are Sent to a Violent Prison.docx

‘60 Days In’: Everyday People Are Sent to a
Violent Prison in the Most Insane Reality TV
Show Yet
The television series documents seven volunteers who agree to
serve as undercover agents in a
corrupt county jail. It debuts March 10 on A&E.
Jen Yamato, 03.09.16
It’s always taken a certain alchemy of bravery and brio to even
desire to become a reality
TV star, but A&E Networks changed the otherwise glam reality
game with some of realitydom’s
most harrowingly human setups: real people sharing tough
stories. Hoarders. Intervention.
Goddamn Duck Dynasty.
Their latest docuseries 60 Days In treads such stomach-churning
ground that, at times,
you truly wonder if all seven of the average civilians who
signed up to spend two months in a
county jail—for (social) science and, y’know, ratings—will
make it home in one piece.

The 12-episode series follows an “unprecedented” prison reform
program conceived by
Clark County, Indiana, Sheriff Jamey Noel, a ruddy-cheeked,
stocky man who landed the
sheriff’s gig only to find he inherited a county jail rotted
through by corruption and extreme
anarchy.
“Before I took office… the inmates were running the facility,”
he tells the camera, posing
for a glossy stand-up shot that gives 60 Days In an unfortunate
sheen of opportunistic slime.
“People were getting arrested on purpose because drugs were
cheaper to get in jail,” he says,
while security footage from the compound’s 300 cameras cut
through scenes of violent cellblock
brawls and shockingly conspicuous drug use.
Noel says he staged raids to sweep narcotics out of his jail, but
the problems persisted. He
suspected both inmates and guards were in cahoots moving
contraband throughout an invisible
network he couldn’t reach. So he came up with a
LEGITIMATELY INSANE IDEA: Why not
recruit normal, law-abiding citizens to go undercover in this

very dangerous prison rife with
drugs, violence, and lawlessness and have them operate as
informants?
Why not? Oh, maybe the extraordinary liability of possible
harm coming to any of Noel’s
civilian moles deep undercover in the clink? 60 Days In raises
the question immediately: What
kind of person would sign up to take such a risk?
Pretty average upstanding Americans, it turns out. The septet of
innocent citizens in the
show hail from diverse backgrounds, each with their own
honorable reasons for signing on.
There’s Zac, a former Marine who hopes the experience helps
him land a job with the DEA—so
much so that he leaves his wife and baby back home to join the
program. Tami, a 20-year veteran
police officer, also has a wife and daughter waiting for her but
is driven by a foster home
upbringing to understand how the other half lives behind bars.
After the first two episodes, which debut back-to-back this
Thursday, it seems likely at
least a few of these incognito prison test subjects will not be

escaping bodily harm or worse after
60 days in the shit. Not that they seem to understand what’s at
stake as the premiere episode
unfurls.
With the exception of the sheriff who came up with this brilliant
idea to clean up his jail,
one overseeing officer on the ground, and the show’s producers
who moonlight as a
documentary film crew, nobody has knowledge of this secret
program. Not even the guards, who
may or may not also be dirty themselves, know that these
newbie criminals are actually
completely unprepared normal persons who have been cast—I
mean, recruited—to serve as state
informants.
The first episode is structured much like any reality competition
show. We meet the
“characters,” see their webcam audition tapes, make a home
visit or two with the adoring
families who don’t quite understand why their loved one has
gone off the deep end for a
television show—but support them nonetheless.
Also mind-blowing is the fact that, although given fake arrest

and conviction records,
they’re instructed to go by their real identities—with the
exception of one woman who has a
pretty great reason for using an alias: She’s the daughter of
Muhammad Ali. “If my father didn’t
have Parkinson’s and was bright, he wouldn’t go for this!”
Maryum Ali, a social worker by
trade, laughs to the camera while still a free woman.
These seven fake inmates undergo “training”—if that’s what
you can call a few days
sitting in a classroom, learning from burly professionals how
not to be made as a rat in jail, who
not to piss off, what not to do AT ALL COSTS in order to avoid
being labeled a snitch. For
example, Prison Economics 101, or how to spend money without
borrowing from the wrong
people. How not to let anyone steal too much of your food,
otherwise “they’re gonna think
you’re a bitch.” Don’t intervene in prison fights. Don’t break
the law. Don’t hide in your cell too
much. Don’t go outside your cell too much. Whatever you do,
don’t blow your cover.
Nervously scratching his head through all of this is Jeff, a
professional “security officer”

who worries about defending himself if attacked. Blond,
bespectacled, and of a gently doughy
build, he’s doing the program to prove he can make it as a bona
fide correctional officer and
graduate from his position as a mall cop back home in Iowa.
“He,” a colleague who has seen the show declared with a grim
sigh, “is going to die.”
It’s worth noting that, technically speaking, snitching is what
these reality show
participants are being paid to do—willingly move into a volatile
county jail with virtually no
safety net or protections in place in order to observe the crime
and corruption that may be taking
place in the shadows.
That said, it’s riveting stuff once the charade gets going. Call it
Undercover Inmate. Once
in the slammer where they’re forced to trade their street clothes
for prison orange and leave the
world they know behind, it starts to get real for everyone
involved. One participant gets a little
too cozy with the pod boss who runs their cellblock like a mini
fiefdom, worrying the prison

admins who are discreetly monitoring their lab rats from afar.
Another participant, a schoolteacher named Robert, inspires the
most concern right off
the bat. From episode 1 he’s conspicuously flippant about the
risks at hand, comparing the prison
system to a country club where inmates get to lie around
watching television all day on the
government’s dime. When Robert finally saunters into his jail
pod his condescension lands him
in a precarious position, painting a giant target on his back that
slick editing suggests leads
directly to a violent encounter.
The moral complications of this precarious setup escalate
quickly, augmented by a
dramatically throbbing score. It’s a mutually beneficial
arrangement for Sheriff Noel, whose
gamble could pay off with huge exposure for his maverick brand
of prison reform, and for the
producers, who can blame the program if anything goes horribly
wrong. More questionable is
what the seven participants will have gained when their time on
the show is up, for by the end of
episode 2, hidden cameras capture suspicious inmates plotting

nefarious deeds.
Is it any wonder A&E just green-lit a second season?
-- -- --
Accessed on 26 November 2016 on The Daily Beast website at
www.thedailybeast.com/
articles/2016/03/09/60-days-in-everyday-people-are-sent-to-a-
violent-prison-in-the-most-insane-
reality-tv-show-yet.html
Invictus
By William Ernest Henley
Out of the night that covers me,
Black as the pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.
In the fell clutch of circumstance
I have not winced nor cried aloud.

Under the bludgeonings of chance
My head is bloody, but unbowed.
Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds and shall find me unafraid.
It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate,
I am the captain of my soul.
-- -- --
Written in 1875 and published in 1888, this poem was retrieved
from the Poetry Foundation
website at https://www.poetryfoundation.org/poems-and-
poets/poems/detail/51642 on 26
November 2016.
Nelson Mandela—the world famous political activist, Nobel

Peace Prize Winner, political
prisoner for 27 years, who later became President of South
Africa in the 1990s—claimed that
this poem kept him alive while in prison and that he recited it
from memory to other prisoners as
inspiration to keep going. (Claims in this sentence are from the
Open Culture website in a
segment labeled “Morgan Freeman Masterfully Recites Nelson
Mandela’s Favorite Poem,
‘Invictus’” published on 18 December 2013 at
http://www.openculture.com/2013/12/morgan-
freeman-masterfully-recites-nelson-mandelas-favorite-poem-
invictus.html and retrieved the
same day as the poem.)
10.16.15
The Harsh Realities of Prison, Through the Lens of Piper
Kerman, Author of
Orange is the New Black
By Dan Rogan
Prison is not the easiest topic to make entertaining, but The

Washington Post called “Orange is the New Black” “the best TV
show about prison ever made.”
Of course “Orange is the New Black” is not all entertainment,
and not entirely fiction. In fact it is
based on the book, Orange is the New Black: My Year in a
Woman’s Prison, the memoir of Piper
Kerman. Piper is not just the inspiration behind the show, she is
the real life hero tackling issues
surrounding prison.
Join us Sunday, October 25 at 2 p.m. for the 2015 Ed Likover
Memorial Lecture, with our
special guest Piper Kerman. Engage with Piper and hear her
discuss her personal experiences,
as well as relay stories and insights into the issues surrounding
women’s prisons, mass
incarceration, and solitary confinement.
The event is free and open to the public. Visit our event page
for further details and to RSVP.
Get a copy of Orange is the New Black: My Year in a Woman’s
Prison and watch the show
“Orange is the New Black.” For more information on prisoner
rights, visit our issue page.
Piper’s Impact

Piper has taken her real-life experience in prison, engrained it
into the American people’s
psyche, and now everyone is paying attention. Piper is an
activist, and is using her newly found
notoriety and success in all the right ways.
What is Piper up to?
in New York City.
incarceration – as well as – girls’
and women’s rights on her Twitter.
ess on the negative impact of
solitary confinement.
Institution and the Ohio State
Reformatory.
Plan of Action for the ACLU of Ohio
Piper and the ACLU of Ohio are in this fight together. We want
to make changes in Ohio’s
criminal laws, including the issues of over incarceration, drug
addiction, mental health, and
sentencing.

What has the ACLU of Ohio been up to?
-to-Prison Pipeline”.
This report focuses on the
introduction of bills facilitating the over incarceration problem
in Ohio’s prisons.
and the mentally ill, as well as
published letters to the editor.
s to the Ohio Department of Rehabilitation and
Correction, Ohio State
Penitentiary, and a key Ohio lawmaker proposing much needed
reforms.
who are disenfranchised by on
our draconian drug laws.
Why we do the Likover Lecture
Ed Likover is remembered as an ACLU hero. A longtime ACLU
board member and volunteer,
we honor Ed every year because of his tireless efforts to protect
civil liberties. Ed stood up for
his right – and the right of others – to have political and social
views that diverged from what the

U.S. government considered acceptable. In 1953, he was one of
many subpoenaed by the Ohio
Un-American Activities Committee. Against counsel wishes, he
took the first amendment as his
defense (rather than the Fifth) because he strongly believed the
government had no right
badgering him about his associations or convictions.
-- -- --
Taken from the ACLU of Ohio website at
http://www.acluohio.org/blog-posts/the-harsh-realities-
of-prison-through-the-lens-of-piper-kerman on 26 November
2016.
matthew mulch
Crime aNd puNishmeNt
iN private prisoNs
I. Introduction
This article attempts to analyze the relationship between prison
privatiza-
tion and society’s understanding of punishment and criminal
justice theory.
Simply put, how are our traditional notions of deterrence,
retribution, reha-

bilitation, incarceration, and restorative justice served when
private actors,
rather than public institutions, are meting out punishment?
Prison privatization has received a great deal of coverage and
analysis over
the past decade. The majority of this analysis has focused on the
budgetary
questions. Can privatized prisons help streamline an extremely
expensive
industry? Will competition result in cost cutting, skimping, and
dangerous
conditions for inmates and prison personnel? And, of course,
will privatiza-
tion in this sector reduce costs in the long run? Or is it merely a
short-term
solution?
These issues have been addressed numerous times in a variety
of ways.
My goal here is to provide a more theoretical analysis of prison
privatiza-
tion. Cost and economic variables will play a role in the
analysis; however,
the primary goal of this article is to discuss how privatization
shapes the
conception of the criminal justice system through the eyes of
policy makers,
inmates, private correctional providers, and society itself.
Moreover, this
article weighs the economic interests of private prison
corporations against
the effects of this industry on society as a whole. Economic
theory and the
bottom line will continue to drive the prison privatization
debate. Yet, in a

society with a growing number of inmates housed in private
facilities it is
important to ask how our basic conceptions of criminal justice
and punish-
ment are changing with the introduction of new private actors.
II. The history and contemporary understanding
of prison privatization
First, it is crucial to note that the distinctions between a public,
govern-
ment-run institution and a private facility are not always clear-
cut.1 According
to University of Colorado Professor Ahmed White:
To the extent that the state is not ubiquitous, and that the prison
is not entirely
__________________________
Matthew Robert Mulch is a graduate of the University of
Denver, Sturm College of
Law. He is a deputy public defender in Grand Junction,
Colorado.
71crime and punishment in private prisons
hermetic, some aspects of every prison are always private. From
the labor of its
employees, to provisions for inmates’ subsistence needs, to the
land and capital
that comprise the prison’s physical structure, each exemplifies
every prison’s
endemically, if partially, private character. In this sense, it is
only possible to

imagine a fully public prison either in a thoroughly totalitarian
society or when
the prison itself is (and this would negate its quality as a prison)
an entirely
self-contained society.2
For the purposes of this article the use of the term privatization
will
primarily focus on institutions where principal control rests
with a private
corporation through ownership or leasehold.
Prison privatization is often mistakenly viewed as a modern
concept,
derived from laissez-faire economic theory first espoused
towards the end
of the 19th century. Interestingly, however, the first privatized
prisons3 pre-
date laissez-faire theory.4 According to the Department of
Justice, “During
the 18th century, the modern prison emerged . . . [and] the use
of privately
operated facilities became popular.”5 “Popular” is, of course, a
relative
term, and it should be noted that during this time few
institutions resembled
modern prisons or jails.6 During this period, government
officials would
often appoint a head jailer in a particular locality.7 While the
jailer held a
quasi-public position, it was not uncommon for him to sell the
labor of his
inmates.8 Moreover, jailers often accepted payment in return
for preferential
treatment.9 Professor White has likened these post-colonial
penitentiaries

to European houses of corrections: private institutions that
acted as jails,
poorhouses, and factories.10
After the Civil War, southern prison populations soared,11 and
prison ad-
ministrators began the institutionalized practice of outsourcing
inmate labor
in a system called “convict leasing.”12 According to a Justice
Department
report “[b]y 1885,states had contracts with private enterprises to
lease out
prison labor.”13 These contracts took a variety of forms:
At some, companies outside the prison provided raw materials
that were refined
in prison workshops and later sold by private companies. At
others, prisons
leased their inmates out to private farms or other businesses if
they could not
produce salable items within the prison. In a number of states,
contractors paid
the prison a fee or a percentage of the profits for the right to
employ convicts.
. . . Even when prisons were not operated entirely by private
entrepreneurs,
inmates were used as a cheap source of labor. Prisoners often
worked on farms,
railroads, and mines, in addition to other public work
programs.14
Not surprisingly, convict leasing programs were rife with
corruption.15
Many of the lessors were government officials.16 Labor
contracts were rau-
cously disputed, and the states were often underpaid.17

Nevertheless, for a
time, the leasing system proved lucrative for those involved.18
72 national lawyers guild review
At this time, the criminal justice system in the South heavily
disfavored
blacks.19 According to contemporary civil rights journalist Ida
Wells, in 1892,
ninety percent of the convicts in Georgia were black, with the
huge majority
of them serving disproportionately long sentences.20
Several factors led to the demise of the convict leasing system
near
the end of the 19th century.21 First, the success of the system
created an
environment where government officials and entrepreneurs
expected to
see profitable returns.22 Prisons, however, require enormous
overhead and
maintenance fees.23 And even the most efficient of the prison
administra-
tors found themselves struggling to pay for their enterprise and
basic inmate
amenities.24 Moreover, the work performed by the leased
inmates was no-
toriously dangerous.25 The loss of a life or a limb was a cost
borne by both
inmates and administrators.26
Second, opponents of the convict leasing system placed pressure
on state
legislatures and public officials.27 Farmers, manufacturers, and

labor groups
attacked the system and the anomalies that it created upon open
competi-
tion.28 Reformers and religious groups opposed the leasing
system on moral
grounds.29 And newspaper editors and journalists spent
decades attacking
the horrible prison conditions.30 State legislatures eventually
buckled and
“began investigating alleged incidents of mismanagement and
cruelty within
privatized institutions, resulting in modifications to the leasing
system.”31
Third, federal officials began to dismantle the convict leasing
system.32
“An executive order signed by President Theodore Roosevelt in
1905 pro-
hibited the use of convict labor on federal projects.”33 Twenty-
five years
later, Congress enacted the Hawes-Cooper Convict Labor Act of
1929,
which allowed states to prohibit the importation of convict-
manufactured,
interstate goods.34
Eventually, by the 1920s, the practice of convict leasing in
state-run
institutions came to an end.35 After years of statutory reform
and optimistic
rhetoric, southern states began to move away from the
practice.36 And in an
uncertain and piecemeal manner “[t]he operations and
administrative func-
tions in correctional facilities were delegated to governmental
agencies,

authorized by statute, staffed by government employees, and
funded solely
by the government.”37 During this time, private organizations
continued to
play a role within correctional systems, but their involvement
was limited
to ancillary services38 and secondary facilities.39
In the 1970s, government officials again revisited their
relationship with
the private sector.40 The first wave of privatization occurred
within the ju-
venile criminal justice system.41 In 1974, Congress passed the
Juvenile and
Delinquency Prevention Act.42 One of the goals of the Act was
“to develop
and conduct effective programs to prevent delinquency, to
divert juveniles
[sic] from the traditional juvenile justice system and to provide
critically
needed alternatives to institutionalization.”43 According to
Professors Patrick
Bayer and David Pozen, this act created an incentive for private
entrepreneurs
and corporations, and “privatization emerged as the primary
mechanism for
deinstitutionalization.”44 Two years later in 1976, RCA
Services, a division
of the Radio Corporation of America, “assumed control of
Weaversville
Intensive Treatment Unit located in North Hampton,

Pennsylvania.”45 Al-
though the Weaversville facility was a juvenile center, it is
widely regarded
as the first private institution for serious offenders in the
modern era.46 The
second institution arrived in 1982, when the Eckerd
Corporation, a drug
manufacturer and drug store chain, took over control of the
Okeechobee
School for Boys in Florida.47
In the mid 1980s the federal government began contracting for
the private
detainment of adult inmates.48 In 1984, the federal Bureau of
Prisons signed
a three-year deal with Eclectic Communications, Inc., whereby
Eclectic
would house sixty 18- to 26-year-old offenders at Hidden
Valley Ranch in
La Honda, California.49 At the same time, the United States
Immigration and
Naturalization Service (INS) began contracting with private
organizations
to house undocumented non-citizens.50 “[B]y the end of 1988,
the number
of private INS detention facilities had grown to seven, housing
roughly 800
of the 2,700 aliens in INS custody.”51
The first private state institutions arrived around this time,
when the
Corrections Corporation of America (CCA) contracted in 1984
for the man-
agement of the Hamilton County jail in Tennessee52 and in
1985 for the full
operation of the Bay County jail in Florida.53 However, the

first privately
owned and operated prison did not arrive until early 1985, when
United
States Corrections Corporation opened the Marion Adjustment
Center in
Kentucky, a minimum security prison for inmates nearing
parole.54 Since
that time, private facilities have continued to multiply, and now
roughly
120,000 inmates are held in private state or federal facilities.55
This modern shift from public penitentiaries to private facilities
did not
happen by accident. The United States has the highest per capita
prison
population in the world caused by a boom in incarceration rates
through
the 1970s and 1980s56 due in large part to the War on Drugs57
and to longer
prison sentences.58 President Ronald Reagan’s Commission on
Privatization
found that the number of federal and state inmates increased
approximately
74 percent from 1979 to 1986.59 From 1970 to 2007, the
number of inmates
swelled from 196,000 to 1.5 million, an increase of almost 800
percent.60
According to National Magazine Award-winning author Eric
Schlosser,
“Since 1980 spending on corrections at the local, state, and
federal levels

has increased about fivefold.”61
Statistics show a disproportionate effect upon black and Latino
male
populations.62 According to projections “[i]f current trends
continue, it means
that a black male in the United States would have about a 1-in-3
chance of
going to prison during his lifetime. For a Hispanic male, it’s 1-
in-6; for a
white male, 1-in-17.”63 Though some commentators argue that
this racial
disparity is the result of completely legitimate factors,64 the
number of mi-
nority prisoners is increasing.65 Moreover, the total prison
population within
the United States is escalating with some state incarceration
rates growing
at an average of 1.9 percent per year from 2000 to 2005, and 2.8
percent
between 2005 and 2006.66
These increases have caused state and federal agencies to turn
to the
private sector for long-term and stopgap solutions.67
Conflicting interests have created a logjam of sorts, whereby
lawmakers
have willfully funded the front end of tough on crime bills
without consid-
ering the budgetary concerns caused by new prisoners and the
new prisons
needed to house them.68 Due in large part to financial costs,
from 2000 to
2006 “the number of Federal prisoners housed in private
facilities increased

79 percent; State prisoners, by 15 percent.”69 Some
commentators have also
argued that the shift has been precipitated by desires to improve
innovation,
quality, accountability, access to expertise, efficiency, and
flexibility.70
These motivations, accurate or not, are clearly subordinate to
budgets and
bottom lines.71
The private prison industry is still booming. According to a
report by the
Reason Public Policy Institute “[c]orrections is one of the
fastest-growing
state budget items. In the last 15 years, state spending on
corrections grew
more than 350 percent—compared to 250 percent growth for
spending on
public welfare and 140 percent growth for spending on
education.”72 Within
this environment, an oligopoly has risen, dominated by CCA
and Wacken-
hut Corrections Corporation, now known as the GEO Group.73
According
to a 1997 Bureau of Justice Statistics survey, within the United
States, ten
private companies were in charge of at least one state facility.74
However,
of the sixty-five private state facilities identified in the survey,
CCA or
Wackenhut managed forty-nine.75 And in total, the same two
companies
were under government contracts to manage more than 100
prison facilities,76
accounting for seventy-five percent of all private prison beds.77
To put this

in perspective, in 2001 there were only twenty-six total private
facilities
outside of the United States.78 The current environment is so
promising, in
fact, that CCA has been building prisons on spec, with no
contract to build
and no prisoners to house.79 According to an AFSCME report,
these spec
prisons are often sold as economic development projects for the
communi-
ties in which they are built.80 Under these conditions, the
contract bidding
process is constrained, and prices are often inflated.81 In spec
prisons “[t]he
inmates are usually from one or more jurisdictions—often not
from the host
jurisdiction. The purchasers of spec bed space are typically
governments that
are desperate to relieve overcrowding. When overcrowding
reaches a crisis
state, a government will often enter into a sole-source
emergency contract at
a high per diem rate, generating healthy profits for [the
company].”82
It is important to note that crime rates and incarceration rates
do not neces-
sarily correlate. In other words, a decrease in crime does not
necessarily mean
that incarceration rates have recently risen, or that they will
decrease in the

near future.83 Both of these rates are the result of numerous
causal factors.
And while incarceration rates are shaped by lawbreakers, they
are also the
result of agency and legislative choices. According to the
Federal Bureau of
Investigation’s Uniform Crime Reporting Program, property
crime offenses
have decreased steadily for the past five years.84 And while
violent crime
offenses have fluctuated recently, the FBI reports that the
violent crime rates
have generally remained steady for the past five years, about
sixty percent
lower than in the early 1990s.85
It is always a bad idea to predict future happenings from current
trends,
particularly in the criminal justice system. However, it seems
clear from the
foregoing that (1) crime rates have remained somewhat steady,
and probably
will not drastically increase in the near future, and (2)
incarceration rates will
continue to grow. In this sort of environment, where demand is
not lessening,
it seems logical to conclude that private prison companies will
continue to
play a major role within our criminal justice system. There can
be no doubt
that private prison companies are in business to generate
profits. It remains
to be seen whether their existence is changing our conception of
criminal
punishment.

III. Criminal punishment theory
Throughout history social scientists have posited numerous
theories
on the underlying purpose of criminal punishment.86
Historically, criminal
punishment has been rationalized under two general theories:
utilitarian
theory and retributive theory.87 Simply put “[r]etributive
rationales are es-
sentially backward-looking, as they seek to justify punishment
on the basis
of the offender’s behavior in the past. Utilitarian rationales are
essentially
forward-looking, as they seek to justify punishment on the basis
of the good
consequences it is expected to produce in the future.”88 These
two general
theories have then led to the development of more specific
rationales, pri-
marily: deterrence, retribution, rehabilitation, incarceration, and
restorative
justice.89 Commentators have noted that these specific
rationales often
conflict with one another for a variety of reasons.90 For
instance a theory of
retribution, where punishment is based on the harm caused by
crimes, rarely
coincides with a theory of rehabilitation. Practically speaking,
if a defendant
is simply receiving his “just deserts” for a crime, there is no

reason to provide
treatment for any mental or emotional disabilities that could
have precipi-
tated the crime. Additionally, on theoretical grounds a hard-
line approach
to retribution might preclude the possibility of rehabilitation.
As the harms
committed by certain crimes are simply unimaginable, it stands
to reason
that a punishment based on retributive theory might not leave
any room for
rehabilitation programs. Anything less than maximum
punishment could be
seen as forgiveness or mercy. The theories of criminal
punishment are many
and will continue to evolve.91
A host of causal factors have shifted emphasis of punishment
theory
from retribution during its historical genesis,92 to rehabilitation
in the mid
1970s,93 and then back to the idea of just deserts over the past
decade.94 In
this manner, as social perspectives change over time, so does
criminal theory
and justifications for punishment.95
Lastly, it must be noted that communities are not
homogenous.96
“[C]ommunities differ from one another in regard to the kinds
of behavior that
should receive criminal sanction. The correspondence between
the criminal
law and what is actually condemned may vary considerably
from one commu-
nity to another.”97 Additionally, communities by common

definition reflect
a range of thoughts, ideas, and backgrounds. And it seems not
unreasonable
to infer that the justification for punishment differs between
individuals
within a specific community. For instance, in an emotional
domestic crime,
a prosecutor might seek punishment under a retributive
approach. Contrarily,
the victim facing a relentless attacker might be concerned
primarily with
incapacitation, while the defendant’s family seeks
rehabilitation.
If there are common understandings to criminal punishment,
these under-
standings revolve around the idea of using objective,
governmental actors98 to
confront morally culpable behavior.99 It stands to reason then
that privatized
prisons necessarily raise questions about the current state of
criminal justice
and punishment.
Corporations exist to make money. To see a return in a growing
market, a
profitable prison corporation must either trim inefficiencies,
increase inmate
numbers, or do both. In other words, the privatized prison
industry has incen-
tives to increase incarceration rates, the length of sentences,

worker turnover,
and even recidivism rates, all while decreasing expenses. These
goals fly in
the face of rational public policy—yet many of this nation’s
convicted will
spend time in a for-profit prison.
In practice, the federal and state prison systems are bureaucratic
behe-
moths, creating hundreds of thousands of jobs and requiring
astronomical
budgets.100 Yet in criminal law theory, incarceration is often
an afterthought.
And by applying criminal theory only during the arrest,
indictment, and
sentencing phases, we are arguably degrading one of the most
important
elements of a criminal justice theory: trust.101 Without
consistency and the
equal application of law, trust breaks down. And without trust,
the moral
legitimacy of criminal law and punishment declines. It is
therefore impera-
tive that we ask whether incentives within the private prison
industry are
harming our notions of criminal justice.
The specific rationales for criminal punishment are discussed in
turn.
(A) Deterrence
According to the English jurist Jeremy Bentham, one of the
principal
rules of punishment is “that the quantity of punishment must not
be less . .

. than what is sufficient to outweigh the profit of the
offence.”102 To Ben-
tham, it is not the act of punishment itself that deters, but rather
the idea of
punishment that acts upon the mind.103 In its essence,
deterrence is a theory
of criminal punishment based upon the idea that members of
society are
rational actors capable of making future decisions based on past
knowledge
and past stimuli.
Modern jurists typically divide deterrence into two subsets:
general deter-
rence and specific deterrence.104 General deterrence refers to
the idea that
members of the public can be deterred from committed crimes
by witnessing
the condemnation and punishment of criminals.105 The public
need not actu-
ally witness the punishment but must be aware of its
magnitude.106
Specific deterrence, on the other hand, is the theory that
punishment is
capable of deterring criminal behavior within the individual.107
And while
recidivism studies are not perfect,108 they do portray the
number of past of-
fenders who return to the corrections system.
A privatized, for-profit prison corporation has no incentive to
deter crimi-
nal behavior or support legislation that focuses on deterrence.
According
to Austin and Coventry, “Firms driven by the profit motive

could adversely
influence prison population size by lobbying for longer
sentences and stricter
sentencing guidelines.”109 According to a recent story, CCA
and Wacken-
hut were both supporters of the American Legislative Exchange
Council,
an organization that develops form codes for state
legislators.110 And both
corporations were on the organization’s Criminal Justice Task
Force when it
drafted Pennsylvania’s tough on crime bill and three strikes
bill.111 Another
report indicates that private prison corporations paid $1.1
million to Texas
lobbyists in 2007, three times more than in 2005.112
It seems axiomatic, in fact, that a prison corporation would have
limited
interest in an effective criminal deterrent scheme. According to
Eric Schlosser
“[t]he private-prison industry usually charges its customers a
daily rate for
each inmate; the success or failure of a private prison is
determined by the
number of ‘man-days’ it can generate.”113 Effective general
deterrence leads
to fewer prisoners. And fewer prisoners lead to lower profits.
Now this is
not to say that a corporation would be opposed to all legislation
based on

deterrence. Just as criminal punishment is justified by the
myriad theories
of criminal law, so too is legislation. A bill might be justified
and sponsored
for its deterrent effect. Yet, as evidenced by recent three-strike
bills, rhetoric
does not always conform to reality, in that the practical effects
of legislation
sometimes do not correlate with the proposed rationales.114
Moreover, tough on crime bills illustrate a second problem.
Schemes
geared towards reducing recidivism rates by deterring offenders
with tough
prison sentences, can have the secondary effect of increasing
prison terms
overall.115 In essence then, by trying to address specific
deterrence, a state
might actually increase total “man-days” by escalating penalties
for the
convicted.
All told, successful corporations are those that can maximize
utility in
the long term.116 A rational prison corporation, by definition,
would not and
should not seek to reduce total inmate numbers in the majority
of circumstanc-
es. And yet of all the rationales for criminal punishment,
deterrence seems
to be the most laudable. Fewer crimes and fewer incarcerated
individuals
are goals that virtually everyone can agree are worth working
towards.
(B) Retribution

Often associated with 18th century German philosopher
Immanuel
Kant,117 retributive theory states that punishment is something
a criminal
deserves and, in fact, is morally required.118 Under this
doctrine, rules are
established for order and the collective good.119 And when
these rules are
violated, it is necessary for society to address the perpetrator,
the victim, and
the crime in an authoritative manner.120
Many jurists have argued that the rationale behind retributive
theory is
not entirely clear, as renowned legal theorist H.L.A.Hart
explains:
To some critics it appears to be a mysterious piece of moral
alchemy in
which the combination of the two evils of moral wickedness and
suffering
are transmuted into good; to others the theory seems to be the
abandonment
of any serious attempt to provide a moral justification for
punishment. Other
critics still regard it as a primitive confusion of the principles
of punish-
ment. . . . In its most interesting form modern retributive theory
has shifted
the emphasis, from the alleged justice or intrinsic goodness of
the return of

suffering for moral evil done, to the value of the authoritative
expression, in
the form of punishment, of moral condemnation for the moral
wickedness
involved in the offence.121
Some commentators have argued that retributive theory is little
more than
vengeance.122 Regardless, retribution is, by all accounts
difficult to analyze in
empirical terms.123 Professor Banks argues that retribution is
akin to censure
as the punishment carries expressive or communicative
themes.124 She goes
on to explain that “[t]his conception recognizes punishment as
comprising
not merely harsh treatment, but also elements of condemnation,
denuncia-
tion, and censure.”125
Accordingly, while retributive theory cannot be evaluated in
terms of
statistics and incentives, privatization raises questions as to the
common
sense understanding of social condemnation. In response,
commentators
have noted that private prisons are objectionable on moral and
normative
grounds.126 Professor Dan Markel has argued that this
normative opposition
can be expressed under three different theories.127 He states:
First, one might view the use of private prisons as expressing a
message of the
state’s indifference to the offense. . . . [Second] using private
prisons may appear

to commodify inmates in a manner antithetical to a state’s duty
to respect the
dignity of its citizens . . . [Third] the use of private prisons
permits the “state
to offload custodial responsibility for convicted offenders to
institutions only
derivatively committed to the values and obligations of the
ethical liberal polity,
thus itself constituting a violation of those values and
obligations.”128
The second theory highlights the idea that, in practice, inmates
are often
considered a resource.129 While not always acknowledged,
crime is about
economics and value.130 And simply put, certain individuals
might be worth
more behind prison bars than in the workforce. For better or
worse, inmates
create jobs and new prisons are often sold on the promise of
revitalizing
communities.131 Given the option, most communities would
trade an illicit
workforce for the economic stimuli provided by a new
prison.132
Markel’s first and third theories133 directly address the idea of
responsibil-
ity. Some critics have suggested that the state—as legislator,
investigator,
and adjudicator—also has the duty to enforce its decisions.
State responsi-

bility demonstrates an element of fairness with respect to the
inmate. More
importantly, public penitentiaries demonstrate state commitment
to criminal
law and social accountability. Retribution is based on the idea
that actors are
responsible for their actions.134 However, a state that relies on
private corpo-
rations to deliver its retributive messages faces a difficult sell.
A state that
privatizes its facilities compromises its retributive message.
Simply put—it
appears hypocritical when a state cannot live up to its own
responsibilities,
and yet attempts to hold individuals responsible for their
actions.
(C) Rehabilitation
In 1949, Justice Hugo Black stated “[r]etribution is no longer
the dominant
objective of the criminal law. Reformation and rehabilitation of
offenders
have become important goals of criminal jurisprudence.”135
Rehabilitation
is a complicated mix of practice and theory.136 In practice,
rehabilitative pro-
grams are designed to remedy past problems and addictions and
to provide
assistance and educational tools for future success. In theory,
the doctrine
of rehabilitation looks past the immediate choices of criminal
behavior, and
attempts to question patterns of behavior within individuals,
families, and

larger social networks. However, the doctrine of rehabilitation
has been
attacked for providing more questions than answers. Since the
mid 1970s,
the doctrine of rehabilitation has been largely dormant after
several com-
mentators came to the conclusion that most rehabilitative
programs failed
to provide adequate solutions.137
In theory rehabilitation is clearly a worthwhile goal.
Criminologists
have proposed never-ending lists of the causal factors that lead
to crime.138
And a penal system that fails to address causal factors within
the individual
and within society, will inevitably fail to prevent crime in the
long-term.
The incentive for the state then, is to provide effective programs
for both
defendants and for the communities in which they live. In many
ways, the
theory of rehabilitation lives on the other side of the deterrence
coin: provid-
ing carrots, rather than sticks. It is not entirely clear why the
private industry
would be interested in reforming and rehabilitating inmates, or
supporting
alternative sentencing schemes.
According to political scientist Katri Sieberg, “To make a
profit, normal
businesses need to attract customers. This is done through
advertising and
other marketing devices. To make a profit, a prison needs a
steady or in-

creasing flow of prisoners. Thus, the incentives exist for
private prisons to
lobby for increased prison time, rather than alternative
sentences, to punish
crimes.”139 A recent Department of Justice report supports this
argument,
stating “arguably, it is in the operator’s financial interests to
encourage
lengthier sentences for inmates to keep bed spaces filled.”140
Rehabilitation is a goal geared towards the long-term. Effective
rehabili-
tation programs are costly and often require years of trial and
error.141 As
would be expected, the private prison industry has cut many
rehabilitative
programs in order to save money.142 Rehabilitative programs,
however, have
both direct and indirect effects.143 Studies have shown that in
the absence of
rehabilitative programs, inmates receive counseling of another,
more sinister
kind from their fellow inmates.144 According to Sieberg “In
this type of a
community of criminals, with the wrong type of career
reinforcement, there
is an understandable increase in recidivism. . . . [B]y
eliminating those pro-
grams that are intended to adjust a criminal to an acceptable
societal role, we
achieve false economic savings.”145 In addition, Sieberg argues
that alternative

sentencing schemes would actually reduce government
spending, by nearly
eliminating housing and funding costs.146
It is difficult to see how effective rehabilitation schemes would
benefit
the prison industry. If we view inmates as resources or
commodities, it sim-
ply does not stand to reason that a corporation would have any
incentive to
give inmates the tools necessary to escape the prison cycle.
Such acts are
contrary to the very idea of capitalism, as they would result in
the depletion
of resources and increased operating costs.
(D) Incarceration
Incarceration serves as both a theory of criminal punishment,
and a device
to implement the theories of deterrence, rehabilitation and
retribution.147
As a theory of criminal justice, incarceration serves the public
by removing
dangerous individuals from the community. Unfortunately, not
all criminals
are capable of effective rehabilitation or deterrence. Therefore,
incarceration
aims at “isolating dangerous and recidivist criminals from the
law-abiding
public and thereby enhancing public safety.”148 However,
communities do
not begin and end at the prison house gates. In light of this,
effective incar-
ceration requires the removal of dangerous threats from the
public at large

and the reduction of similar dangers from within the prison
community.
“A leading criticism of prison contractors is that they maximize
profits
through dangerous cuts in staff levels, staff training and staff
pay.”149 As
Sieberg explains, the privatized prison industry can hire, move,
and terminate
workers quickly, as the companies are not unionized.150 Not
surprisingly, an
underpaid and undertrained prison force can be dangerous for
those on the
inside as well as the outside.
According to Austin and Coventry’s Department of Justice
report, “A total
of 45 escapes occurred at 14 private facilities between January
1, 1997, and
December 31, 1997. The Rate of escapes per 1,000 inmates for
the sixty-
two private facilities [was] 1.06 percent.”151 Similarly, a 1999
report by the
Federal Bureau of Prisons noted that privately operated
facilities used more
staff, had a higher turnover rate, and had “much higher escape
rates from
secure institutions” than the public federal system did.152 In
one of the most
egregious displays of ineffective incarceration, the Northeast
Ohio Correction

Center in Youngstown, Ohio—a spec CCA prison—witnessed
six escapes
in its first fifteen months of operation.153 Five of the six
escapees were con-
victed murderers, and all of them were maximum-security
inmates.154 Austin
and Coventry noted that operational flaws such as escapes
“were linked to
inexperienced staff, [and] inadequate training.”155
Ineffective incarceration also presents dangers to prison guards,
administra-
tors and inmates.156 Over the past decade there have been
numerous reports de-
tailing violence and sub-standard prison conditions within the
private sector:
In 2007, the ACLU filed suit against the Department of
Homeland
Security and CCA, alleging that a federal immigration facility
near San
Diego was housing three inmates in two bed cells.157
In Idaho, a recent report indicated that the State’s only privately
owned
prison had an inmate violence rate three times higher than that
of the
public facilities.158
A report by the Texas Youth Commission from September 26 to
October
2, 2007 listed 21 major operational and security issues at the
Coke County
Juvenile Justice Center in Bronte, Texas.159 The report
detailed “flagrant”
violations such as double-bunking youths, racial segregation,
and an
inmate work schedule for hours between 10:00 p.m. and 4:30

a.m.160
In addition to the six escapes, the Northeast Ohio Correction
Center
saw seventeen stabbings, numerous assaults on prison
personnel, and
two murders in under a year and a half of operation.161
Ultimately, the
town of Youngstown filed a successful suit on behalf of the
inmates
alleging that the inmates were in danger due to the company’s
housing
practices.162
And in 2000, Wackenhut relinquished its contract for a juvenile
center in
Jena, Louisiana after the Department of Justice filed a suit
alleging physi-
cal and verbal abuse, and the inappropriate use of pepper
spray.163
While shocking, these stories do not appear to be aberrations.
According
to the Department of Justice, in total there are greater numbers
of inmate-
on-inmate assaults in private prisons (35.1 percent) as compared
to public
facilities (25.4 percent).164
While we often think of incarceration as an end product in
criminal law
theory, for most individuals, incarceration is only temporary.
And when a

corporation has incentives to skimp on personnel, infrastructure,
and training,
it necessarily raises questions as to the effectiveness of criminal
isolation
and may increase the likelihood of recidivism. Prisons will
never be “safe”
places. But they also need not be excessively dangerous or
uninhabitable.
(E) Restorative justice
Referring to the 2008 recession, the President and Chief
Operations Of-
ficer of Corrections Corporation stated that “[t]here is going to
be a larger
opportunity for us in the future.”165 Just as with rehabilitation,
one must
question how much of an incentive privatized prisons have to
follow a theory
of restorative justice.166 Restorative justice, or restitution, is
in many ways
a blend of civil and criminal law. Instead of focusing on the
perpetrator
himself, a restorative justice approach seeks to mend the harm
of criminal

activity by making the victim whole.167 Not surprisingly,
punishment and
incarceration are not always the principle aims of restitution.
Accordingly, critics have noted that there are several problems
with
a restorative justice approach. First, a criminal justice scheme
based on
restorative principles grants elevated roles to victims and victim
advocacy
groups.168 And while it is important for society and juries to
see the harm
caused by criminal behavior, it must be weighed with the
understanding that
victims are rarely objective. Second, restitution is not
applicable for every
crime.169 By placing monetary value on criminal behavior, we
risk a society
where all losses can be compensated. Moreover, such a system
would favor
the wealthy, and create incentives for calculated criminal
behavior in situ-
ations where the rewards outweighed the risks. In light of this,
many feel
that values should take precedence over value, and restorative
justice should
play only a limited role in the criminal justice system.170
Nevertheless, there are times when restitution may play a more
effective
role in the criminal justice system than incarceration.171 For
instance, with
juvenile offenders it may be more advantageous to society for
the young of-
fenders to learn the true value of crime, by working to
compensate the victim.

Furthermore, some argue that drug crimes, in particular, should
be analyzed
under restorative approach rather than a retributive model.172
In addition, some commentators have noted that restorative
justice mod-
els actually aid in the rehabilitation process.173 For example,
certain Native
American communities use peacemaking circles to confront
criminal behav-
ior.174 These peacemaking circles “[do] not treat the criminal
act as an isolated
incident that demands merely retributive action. Rather, any
resolution must
take an inclusive approach, considering the impact of the crime
and possible
redress on all parties and the community as a whole.”175
Common sense argues that any restorative approach that does
not require
incarceration would be inapposite to a business oriented
approach to criminal
justice. Victim compensation creates competition. And
although the inmate
population rate is growing in the United States,176 it seems
reasonable to
conclude that the private prison industry would be careful to
monitor its only
resource, and necessarily oppose restitution and alternative
sanctions.
IV. Conclusion

The economic benefits of prison privatization may or may not
exist. To
the extent they do, they are fleeting. Regardless, focusing only
upon the
bottom line oversimplifies the subject. Social acceptance of
prisons requires
moral legitimacy within the criminal justice system. A scheme
that shifts
responsibility to the private sector necessarily raises questions
regarding the
importance of criminal law and the rationales for punishment.
The true value
of any criminal justice system must be measured in terms of the
benefits
accrued by society. Accordingly, when we look at private
prisons we must
ask if the alleged but highly disputed benefits of efficiency
outweigh the
burdens, dangers, and doubts that are known to accompany the
privatized
prison industry.
________________
NOTES
1. See Geoffrey f. SeGal, reaSon Public Policy inStitute, the
extent,
hiStory, and role of Private comPanieS in the delivery of
correctional
ServiceS in the united StateS 3 (2002), available at
http://reason.org/ps302.
pdf (The author divides private prison services into three
categories: design and
construction; ancillary services such as food and medical care;
and contract man-
agement or ownership of prison facilities).

2. Ahmed A. White, Rule of Law and the Limits of Sovereignty:
The Private Prison
in Jurisprudential Perspective, 38 am. crim. l. rev. 111, 121
(2001).
3. Id. at 120 (“Neither the term ‘prison’ nor ‘private prison’ has
a self-evident meaning.
. . . At various points it has contemplated everything from
facilities for detaining
juveniles and undocumented immigrants, to ‘halfway’ houses, to
city and county
jails housing misdemeanants and those awaiting trial, to the
quintessential ‘big
houses,’ huge self-contained edifices brimming over with
hardened felons, that
continue to dominate the prison landscape.”).
4. See JameS auStin & Garry coventry, national council on
crime and
delinquency, dePartment of JuStice, emerGinG iSSueS on
Privatized
PriSonS 19 (2001),
http://www.ncjrs.gov/pdffiles1/bja/181249.pdf (The authors
argue that the history of privatization in the criminal justice
system within U.S.
territory can be traced back to the early colonial period, where
low-level felons
were granted amnesty in return for their indentured servitude);
see also Sharon
Dolovich, State Punishment and Private Prisons, 55 duke l.J.
437, 450 (2005)
(“In colonial America, the meting out of criminal punishment
was purely a local

matter and could include any of a range of sanctions, among
them fines, flogging,
the stockade, banishment, and the gallows—but not
imprisonment. As in eigh-
teenth-century England, jails were merely holding chambers for
debtors or for those
individuals awaiting trial or punishment.”).
5. auStin & coventry, supra note 4, at 19; see, e.g., StePhen
raher, colorado
criminal JuStice reform coalition, Private PriSonS and Public
money
(2002), http://www.ccjrc.org/pdf/CostDataReport2002.pdf (“The
operation of pris-
ons for private gain first surfaced in the United States shortly
after the Civil War,
when prison populations in southern states skyrocketed and a
system of ‘convict
leasing’ was devised in order to relieve over crowded prisons
and enrich private
manufacturing concerns.”).
6. White, supra note 2, at 124 (arguing that extra-legal
punishments and labor short-
ages largely prevented the establishment of formal institutions).
7. See auStin & coventry, supra note 4, at 9.
8. Id.at 9.
9. Id. at 10 (citing clair criPe, leGal aSPectS of correctional
manaGement
378 (1997)) (“Payments were extracted for special services,
such as better meals or

other privileges. Some money was given to the jailer (often the
sheriff) for basic
services. But it was widely accepted that jailers could charge
additional money
for virtually any type of special benefit.”).
10. White, supra note 2, at 124.
11. See alex lichtenStein, twice the work of free labor 60 (1995)
(demon-
strating that the number of convicts in the Georgia Penitentiary
grew from 385 in
1871 to 2558 in 1909, nearly a seven-fold increase).
12. raher, supra note 5, at 4; see Dolovich, supra note 4, at 450-
51 (arguing that the
first prison labor programs were designed to be rehabilitating).
13. auStin & coventry, supra note 4, at 10; see, e.g., White,
supra note 2, at 127
(“Every southern state after the Civil War, except Virginia,
eventually instituted
the widespread leasing of state inmates to private individuals or
firms.”).
14. auStin & coventry, supra note 4, at 10-11 (“For most of the
correctional history
of the United States, prison labor was expected to generate a
profit for the institu-
tion. If generating a profit was not feasible, it was incumbent
upon the prisoner to
pay the costs of incarceration and become self-supporting.”).
15. White, supra note 2, at 127-30.
16. Id. at 129.
17. Id. at FN64.

18. White, supra note 2, at 128 (“On average, leasing generated
revenues several times
the costs. At one point, for example, Alabama derived six to
ten percent of its total
state revenues from leasing—and this in contrast to the prospect
of actually paying
for incarceration.”).
19. Ida b. wellS & frederick douGlaSS et. al., the reaSon why
the
colored american iS not in the world’S columbian exPoSition,
chapter iii (1893), available at
http://digital.library.upenn.edu/women/wells/
exposition/exposition.html.
20. Id.; see Dolovich, supra note 4, at 451-52 (illustrating
Mississippi’s “Pig Law”
which provided a five year sentence for theft of a farm animal, a
law aimed at newly
freed slaves).
21. auStin & coventry, supra note 4, at 11.
22. Id.at 11.
23. Id. at 11.
24. Id.at 11.
25. Gilder lehrman center, forced labor in the 19th century
South, the
Story of Parchman farm 2, avaiable at
http://www.yale.edu/glc/events/cbss/
Oshinsky.pdf (last visited Sept. 25, 2009).

26. See id. (“At a prison camp of the Greenwood and August
Railroad, convicts were
used up faster than South Carolina authorities could supply
them. Between 1877 and
1879, the G & A ‘lost’ 128 of their 285 prisoners to gunshots,
accidents, and disease
(a death rate of 45 percent) and another thirty-nine to
escapes.”); matthew zito,
international foundation for Protection officerS, PriSon
Privatization:
PaSt and PreSent (2003),
http://www.ifpo.org/articlebank/prison_privatization.
html (“In one camp the reported mortality rate of convicts was
10% per month,
and at other camps it was even higher.”).
28. Id. at 11.
29. Id.; see wellS & douGlaSS et al., supra note 18, Chapter III;
see zito, supra
note 26 (noting that “women and children as young as twelve
years old . . . were
housed together with hardened criminals, and it was not
uncommon for babies to
be born inside the camps.”).
30. matthew J. mancini, one dieS, Get another, convict leaSinG
in the
american South, 1866-1928, at 219 (1996).
31. auStin & coventry, supra note 4, at 11; see also mancini,
(The author notes that some historians have argued that rise of
the Democratic party

may have played a contributing factor. This explanation places
a heavy emphasis
on a political rationale, rather than ethical or humanitarian
justifications.).
33. Id. at 11.
34. Id.; Whitfield v. Ohio, 297 U.S. 431, 434 (1936) (citing the
Hawes-Cooper Act,
49 U.S.C. § 60 (1929) (no longer in force)) (“All goods, wares,
and merchandise
manufactured, produced, or mined, wholly or in part, by
convicts or prisoners, except
convicts or prisoners on parole or probation, or in any penal
and/or reformatory
institutions, except commodities manufactured in Federal penal
and correctional in-
stitutions for use by the Federal Government, transported into
any State or Territory
of the United States and remaining therein for use,
consumption, sale, or storage,
shall upon arrival and delivery in such State or Territory be
subject to the operation
and effect of the laws of such State or Territory to the same
extent and in the same
manner as though such goods, wares, and merchandise had been
manufactured,
produced, or mined in such State or Territory, and shall not be
exempt therefrom
by reason of being introduced in the original package or
otherwise.”).

35. White, supra note 2, at 133 (The author notes, however, that
convict leasing re-
mained at the county level until well into the civil rights era).
36. mancini, supra note 30, at 222 (noting that Alabama,
Arkansas, and Mississippi
continued to allow convict leasing decades after legally
prohibiting the practice).
37. auStin & coventry, supra note 4, at 11. But see
lichtenStein, supra note
11, at 185 (arguing that in many instances the public chain gang
replaced convict
leasing, not necessarily, the more modern public penitentiary).
38. auStin & coventry, supra note 4, at 11 (noting such services
as food preparation,
vocational training, inmate transportation, medical care, dental
care, and mental
health care).
39. Nicole B. Casarez, Furthering the Accountability Principle
in Privatized Federal
Corrections: The Need for Access to Private Prison Records, 28
u. michiGan
J.l. reform 249, 253-54 (1995) (describing juvenile homes,
halfway houses, and
federal pre-release community treatment centers).
41. Id. at 12.
42. Juvenile and Delinquency Prevention Act of 1974, Pub. L.
No. 93-415, 88 Stat.
1109.

43. Id. § 102(B)(2).
44. Patrick bayer & david e. Pozen, economic Growth center,
the
effectiveneSS of Juvenile correctional facilitieS: Public verSuS
Private
manaGement 4 (2003), available at
http://www.econ.yale.edu/growth_pdf/
cdp863.pdf.
46. Id. at 12; see charleS h. loGan, Private PriSonS 18 (1990)
(stating that the
facility housed 15-18 year old males who had committed crimes
such as “burglary,
robbery, assault, sex offenses, weapons offenses, arson,
vandalism, and theft”).
47. auStin & coventry, supra note 4, at 12; loGan, supra note
41, at 18 (the
author notes that the Okeechobee school housed 400 to 450
boys, far more than
Weaversville’s 22 inmates).
48. See loGan, supra note 46, at 21.
49. Id. at 21.
50. Id.at 21.
52. Id. at 12; loGan, supra note 46, at 31; see also Judith
Greene, Comparing Private
and Public Prison Services and Programs in Minnesota:
Findings from Prisoner
Interviews 1 (1999), available at
http://archive.epinet.org/real_media/010111/ma-

terials/greene.pdf (stating that CCA unsuccessfully attempted to
contract for the
entire Tennessee system for 250 million dollars).
53. loGan, supra note 46, at 24-25 (CCA did officially gain title
to the jail until 1986).
From 1987 to 1997, CCA’s revenue stream increased thirty fold,
while its beds
grew from 1,715 to 52,890. See auStin & coventry, supra note
4, at 12.
55. See office of JuStice ProGramS, united State dePartment of
JuStice,
bureau of JuStice StatiSticS, PriSonerS in 2006, at 5 (Dec.
2006), available
at http://www.ojp.usdoj.gov/bjs/pub/pdf/p06.pdf.
56. Judith Greene, Banking on the Prison Boom, PriSon
ProfiteerS 3 (2007), 4 (Tara
Herivel & Paul Wright ed., 2007).
57. Gary Hunter & Peter Wagner, Prisons, Politics, and the
Census, PriSon ProfiteerS
80 (2007), 81 (Tara Herivel & Paul Wright ed., 2007).
58. Jfa inStitute, unlockinG america, why and how to reduce
america’S
PriSon PoPulation 8 (2007), available at http://www.jfa-
associates.com/pub-
lications/srs/UnlockingAmerica.pdf; see also franklin e.

zimrinG, Gordon
hawkinS, & Sam kamin, PuniShment and democracy 6 (2003)
(analyzing
California’s three strike rule for habitual offenders, a ballot
initiative).
59. Casarez, supra note 39, at 254.
60. Jfa inStitute, supra note 58, at 6; see also Public Safety
Performance
ProJect, Pew charitable truSt, Public Safety, Public SPendinG,
forecaStinG america’S PriSon PoPulation 2007-2011, at 4-5
(2007), available
at
http://www.pewcenteronthestates.org/uploadedFiles/Public%20S
afety%20Pub
lic%20Spending.pdf (The organization predicts a prison rate
increase of 192,000
people over the next five years, nearly matching the total
population in 1970. The
organization further forecasts that western states such as
Colorado, Montana, and
Wyoming will see total rate increases of more than 25 percent.).
61. Eric Schlosser, The Prison-Industrial Complex, the atlantic,
Dec. 1998, http://
www.theatlantic.com/doc/print/199812/prisons.
62. Gail Russell Chaddock, US Notches World’s Highest
Incarceration Rate, chriStian
Science monitor, Aug. 18, 2003,
http://www.csmonitor.com/2003/0818/p02s01-
usju.html.
63. Id.; see human riGhtS watch, backGrounder: incarcerated
america (April,

2003), http://www.hrw.org/backgrounder/usa/incarceration/
(Noting that in twenty
states, the percentage of blacks within the prison population
was at least five times
greater than the total percentage of their state resident
population. Strangely, the
majority of these states, including Colorado, were in upper West
and Midwest.
South Dakota, Vermont, and West Virginia lead the nation with
ratios over ten.).
64. See william wilbankS, the myth of a raciSt criminal JuStice
SyStem
(1987), available at
http://www.radford.edu/~tburke/Burke/The%20myth%20of
%20a%20racist%20criminal%20justice%20system.pdf.
65. See PriSonerS in 2006, supra note 55, at 7 (The study notes
that while the total
number of black prisoners has increased from 2000 to 2006, the
actual rate has
dropped. Both the white and Hispanic rates increased).
66. Id. at 1 & 14 (Federal incarceration rates experienced an
average annual growth
rate of 5.8% from 2000 to 2005, and 2.9% from 2005 to 2006).
For the purpose
of this article, it is also important to note that roughly 4.3
million former prisoners
live outside the criminal justice system. And whether our focus
is upon theory or
hard evidence, such as recidivism rates, it is important that we
note the thousands
of individuals existing in private prisons every year. Chaddock,
supra note 62.

67. See SeGal, supra note 1, at 2.
68. Id. (needs to be more clear, need to find page to reference, I
can’t find it)
69. See PriSonerS in 2006, supra note 55, at 5.
70. See SeGal, supra note 1, at 6-10.
71. Id. (citing keon chi and cindy JaSPer, council of State
GovernmentS,
Private PracticeS: a review of Privatization in State Government
8
(1998) (noting that the rationales were rated as reasons for
privatization in about
20% of the agencies surveyed)).
72. See SeGal, supra note 1, at 2.
74. Id. at 39.
75. Id. at 40. A 1999 report by the American Federation of
State, County and
Municipal Employees puts the number of private corporations at
twelve. afScme,
PublicationS, the induStry (2008),
http://www.afscme.org/publications/2558.
cfm.
76. Kelly Patricia O’Meara, Prison Labor is a Growth Industry,
inSiGht on
the newS, May 24, 1999, available at
http://findarticles.com/p/articles/mi
_m1571/is_19_15/ai_54736555.

77. AFSCME, supra note 75.
78. auStin & coventry, supra note 4, at ix (these prisons were
housed in the United
Kingdom, Australia, and South Africa).
79. Schlosser, supra note 61.
80. See AFSCME, supra note 75.
81. See id.at 75.
82. Id.at 75.
83. See JuStice Policy inStitute, violent crime fell in 2007;
PriSon and
JailS exPerienced leSS Growth than PreviouS yearS: areaS with
lower
incarceration rateS exPerienced Greater crime reductionS,
http://www.
justicepolicy.org/images/upload/08-09_FAC_FBIUCR2007_AC-
PS.pdf (last vis-
ited Sept. 26, 2009).
84. federal bureau of inveStiGation, ProPerty crime, crime in
the united
StateS 2007, available at
http://www.fbi.gov/ucr/cius2007/offenses/property_
crime/index.html.
85. federal bureau of inveStiGation, crime in the united StateS
2007, Table
1, available at
http://www.fbi.gov/ucr/cius2007/data/table_01.html.
86. John w. SutherS, no hiGher callinG, no Greater
reSPonSibility, a
ProSecutor makeS hiS caSe 43 (2008) (“Arguments about the
purpose of pun-
ishment are as old as civilization.”).

87. Sanford h. kadiSh et al., criminal law and itS ProceSSeS 79
(8th ed. 2007);
cyndi bankS, criminal JuStice ethicS 105 (2004).
88. kadiSh, supra note 87, at 79.
89. bankS, supra note 87, at 104-05; SutherS, supra note 86, at
43-54.
90. See bankS, supra note 84, at 104.
91. Id. at 104.
92. See id. at 105.
95. Id.at 104.
96. richard quinney & a. Javier trevino, the Social reality of
crime 115
(2001).
97. Id.at 115.
99. Peter Arenella, Convicting the Morally Blameless:
Reassessing the Relationship
between Legal and Moral Accountability, 39 ucla l. rev. 1511,
1528 (1992).
100. See federal bureau of PriSonS, budGetary Summary,
available at http://
www.usdoj.gov/jmd/2009summary/pdf/bop-bud-summary.pdf
(requesting just
over $12 billion for the 2009 year); colorado dePartment of

correctionS,
fy 2009-10 budGet cycle 8, available at
http://www.colorado.gov/cs/Satellite
?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id
&blobtable=Mu
ngoBlobs&blobwhere=1227051791486&ssbinary=true
(requesting $824 million
dollars for the 2009-2010 fiscal year, up from $761 million).
101. See generally, Associate Attorney General Daniel Marcus,
Building Trust and
Confidence in the Criminal Justice System, Remarks to the
203rd Federal Bureau
of Investigation Academy Class (Oct. 17, 2000),
http://www.usdoj.gov/archive//
aag/speeches/2000/cp_fbi_marcus_remarks.htm.
102. Jeremy bentham, an introduction to the PrinciPleS of
moralS and
leGiSlation 189 (A New Ed., 1907).
103. Id. at 193.
104. Mark C. Stafford & Mark Warr, A Reconceptualization of
General and Specific
Deterrence, in contemPorary criminoloGical theory 26, 26
(Peter Cordella
& Larry J. Siegel ed., 1996).
105. See id.at 26.
106. See bentham, supra note 102.
107. See id. at 102.
108. See generally auStralian inStitute of criminoloGy,
ProblemS aSSociated
with meaSurinG recidiviSm, available at

http://www.aic.gov.au/publications/
rpp/17/problems.pdf (last visited Dec. 13, 2008).
110. Sarah Posner, Security for Sale, the american ProSPect,
Dec. 18, 2005, avail-
able at http://www.prospect.org/cs/articles?articleId=10750.
111. Id.
112. Lauren Reinlie, Lax Oversight Plagues Private Prisons in
Texas, 1.9 watch your
aSSetS 5, Feb. 6, 2008,
http://www.tpj.org/watchyourassets/prisons/prisons.pdf.
113. Schlosser, supra note 61.
114. zimrinG, hawkinS, & kamin, supra note 58, at 85 (noting
that California’s three-
strike rule seems to deter felonious crime by only 0-2%).
115. See generally Paul Gendreau et al., Solicitor General
canada, the
effectS of PriSon SentenceS on recidiviSm (1999), available at
http://www.
prisonpolicy.org/scans/gendreau.pdf.
116. See milton friedman & Steven medema, Price theory 280
(new ed.,
2007).
117. robert cryer et al., an introduction to international criminal
law

and Procedure 19 (2007).
119. See id. at 109.
120. See id. at 110.
121. h. l. a. hart, PuniShment and reSPonSibility 234-35 (1968),
available at
http://www.stephankinsella.com/texts/hart_punishment-
responsibility.pdf.
122. See kadiSh, supra note 87, at 85.
123. See Developments in Law, III. A Tale of Two Systems:
Cost, Quality, and
Accountability in Private Prisons, 115 harv. l. rev. 1868, 1871-
72 (2002) (not-
ing that space constraints preclude the moral debate).
124. bankS, supra note 87, at 110; see andrew von hirSch,
cenSure and SanctionS
9 (2003).
125. bankS, supra note 87, at 110-11.
126. See auStin & coventry, supra note 4, at 16 (“As a policy
matter, opponents
to privatization . . . claim it is inappropriate to operate prisons
based on a profit
motive.”); Jody Freeman, The Contracting State, 28 fla. St. u. l.
rev. 155, 188
(2000) (““the private interest in maximizing profits may
conflict with the public
interest in sound correctional policies”).
127. Dan Markel, Are Shaming Punishments Beautifully
Retributive? Retribution and

the Implications for the Alternative Sanctions Debate, 54 vand.
l. rev. 2157,
2234 (2001).
128. Id. (quoting Sharon dolovich, the ethicS of Private PriSonS
(1999) (an
unpublished document)).
129. See hunter & waGner, supra note 57, at 82. The authors
present an interesting
argument regarding the usage of inmates to expand rural census
counts. Regarding
the 2000 U.S. census, they state “there are twenty-one counties
where a least 21 per-
cent of the reported census population is actually incarcerated
people from outside
the county. In 173 counties, more than half of the African
American population
reported in the census is incarcerated.”
130. See clarence darrow, crime and criminalS, an addreSS to
the PriSonerS
in the chicaGo Jail (1919).
131. Schlosser, supra note 61 (“Prison jobs have slowed the
exodus from small towns,
by allowing young people to remain in the area. . . . The job
brings health benefits
and a pension.”).
132. However, as Schlosser notes, the economic transference is
typically geographical
as well across sector. Id.

133. Markel, supra note 127, at 2234.
134. bankS, supra note 87, at 109.
135. Williams v. New York, 337 U.S. 241, 248 (1949).
137. Id. at 117; kadiSh, supra note 87, at 99.
138. See generally StePhan hurwitz & karl o. chriStianSen,
criminoloGy 1
(1983).
139. katri k. SieberG, criminal dilemmaS 45 (2001).
141. See generally SieberG, supra note 138, at 10.
142. Id. at 10; see also Freeman, supra note 126, at 188
(“Private prison officials and
private guards exercise discretion over every aspect of the
prisoners’ daily experi-
ence: meals, health care, recreation, cell conditions,
transportation, work assign-
ments, visitation, and parole. Private prison officials determine
when infractions
occur, impose punishments and, perhaps most significantly,
make recommendations
to parole boards. Their discretion affects prisoners’ most
fundamental liberty and
security interests.”). But see auStin & coventry, supra note 1,
at 55 (noting
that inmates in private facilities had greater degrees of
participation in educational
programs, vocational programs, drug and alcohol counseling
courses).
143. See SieberG, supra note 139, at 10 (using the terms
“positive” and “negative”

influences).
144. Id. at 10.
145. Id. at 10.
146. Id. at 12.
147. See John J. Dilulio, Jr., Prisons are a Bargain, by Any
Measure, N.Y. timeS, Jan.
16, 1996, in kadiSh, supra note 87, at 102.
148. SutherS, supra note 86, at 52.
149. Reinlie, supra note 112, at 4; auStin & coventry, supra note
1, at 16 (“Labor
costs are controlled by reducing one of more of the following
personnel cost fac-
tors: (1) number of staff, (2) wages, or (3) fringe benefits. . . .
Prisons are extremely
labor intensive, with approximately 65 to 70 percent of the costs
of operating a
prison going to staff salaries, fringe benefits, and overtime.
Controlling these costs
is more difficult to achieve with unionized government
workers.”).
150. SieberG, supra note 103, at 38.
152. Scott d. camP & Gerald G. GaeS, federal bureau of
PriSonS,
Growth and quality of u.S. Private PriSonS: evidence from a
national Survey 435 (2006), available at
http://www3.interscience.wiley.
com/cgi-bin/fulltext/118964088/PDFSTART.
154. camP & GaeS, supra note 153, at 430.

155. auStin & coventry, supra note 4, at 49; camP & GaeS,
(finding problems in “inadequate numbers of staff,
inexperienced staff, insufficiently
trained staff . . . and physical plant deficiencies”).
156. See Freeman, supra note 126, at 188 (“the relative
invisibility and low moral status
of the prison population makes prisoners especially vulnerable
and heightens the
need for accountability”).
157. ACLU Signs Off on Otay Mesa Detainee Overcrowding
Deal, San dieGo 6,
http://www.sandiego6.com/news/local/story.aspx?content_id=c4
ca75a4-e665-
4535-8cb0-44070322f2e3&gsa=true (last visited Sept. 26,
2009).
158. Associated Press, Idaho Private Prison has Triple Assault
Rate, ktvb.com, nov.
10, 2008, http://www.ktvb.com/news/crime/stories/ktvbn-
nov1008-private_pris-
on_assaults.19d675fe6.html.
159. dimitria d. PoPe, texaS youth commiSSion, coke county
Juvenile
JuStice center audit 7 (2007), available at
http://privateci.org/private_pics/
tyc_CokeCounty_AuditReport[1].pdf.

160. Id.
161. auStin & coventry, supra note 4, at 36 (“The U.S. District
Court . . . granted
preliminary approval of a $1.6 million settlement on behalf of
the District inmates
who claimed that they were abused, denied adequate medical
care, and not properly
separated from other inmates.”).
162. th e Se n t e n c i n G Pr o J e c t, Pr i S o n Pr i v a t i z a t
i o n a n d t h e uS e o f
incarceration 3 (2004),
http://www.sentencingproject.org/Admin/Documents/
publications/inc_prisonprivatization.pdf.
163. Id.
165. Interview with Damon Hininger, in Stephanie Chen, Larger
Inmate Population is
Boon to Private Prisons, wall St. J., Nov. 18, 2008, available at
http://online.
wsj.com/article/SB122705334657739263.html.
166. It should be noted that many states have restorative
schemes whereby inmates
“pay” back their victims from work performed within the
penitentiary. Certainly
a private prison corporation would have an incentive to see such
legislation passed.
However, for the purposes of this section, I am discussing only
those restorative
justice schemes that exist as alternatives to prison terms.
167. bankS, supra note 87, at 118.

168. Id. at 119.
169. SutherS, supra note 86, at 46 (“Restitution should play a
very important role in
sentencing in many cases and virtually none in others.”).
170. See id. at 46.
171. See id.at 46.
172. eleanor hannon Judah & michael bryant, criminal JuStice:
retribution
v. reStoration 58 (2004). And see Corrections Corporation of
America 2005
Annual Report, reprinted in Greene, supra note 56, at 1
(“[P]ossible growth de-
pends on a number of factors we cannot control. . . . [A]ny
changes with respect to
drugs and controlled substances or illegal immigration could
affect the number of
persons arrested, convicted, and sentenced, thereby potentially
reducing demand
for correctional facilities to house them.”).
173. Jessica Metoui, Returning to the Circle: The Reemergence
of Traditional Dispute
Resolution in Native American Communities, 2007 J. diSP.
reSol. 517, 526
(2007).
174. Id. at 527.
175. Id.at 527.
176. See supra text accompanying note 66.

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CRIME AND PUNISHMENT IN PRIVATE PRISONS.
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