Private prisons bill unlikely to promote significant change

Last week California lawmakers passed Assembly Bill 32, a bill aiming to divest from the private prison industry. Hailed by newspapers as a dramatic move that might upend the private prison industry, it reflects the overall understandable perception that private profit is an unhealthy motive in incarceration. The novelty of AB 32 lies in that it forbids the state to contract with private entities not only for the incarceration of domestic prisoners, but also for the detention of undocumented immigrants. The bill defines "detention facility" as, "any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding." But is such divestment possible, and even if so, will it put a dent in California's massive criminal justice apparatus?

First, the facts. There are no private state prisons, as such, on California soil. The Guardian reported last week that, as recently as 2016, California held approximately 7,000 domestic prisoners in out-of-state private facilities as part of the Plata effort to alleviate prison overcrowding within the state, but in recent years, thanks to state efforts, that number shrank to 2,222 as of June 2019. Brown v. Plata, 563 U.S. 493, 510 (2011)

To the extent that this number can be eliminated from the rolls, divestment is realistic. But it is important to keep in mind that the public/private divide is largely an oversimplified fiction, which ignores market realities. So-called public prisons require a variety of services: from transportation to healthcare to food -- many of which must be subcontracted with private providers to even be possible, let alone profitable. Literature on these providers (often the same industry giants that operate private prisons elsewhere, such as CoreCivic and the Geo Group) finds multiple problems and deprivations within these private "pockets," despite the fact that the prison is, ostensibly, public. In the context of the competitive market that has governed the criminal justice industry, private providers of health care, transportation, food, and infrastructure are not an alternative to a public prison economy: they are the economy. Divesting from those requires steps that go far beyond the symbolic effect of AB 32.

Moreover, as public choice economists often point out, emphasizing the public/private divide obscures the fact that cost/benefit considerations matter as much to public actors as they do to private ones: everyone has to balance a budget, and whenever corners are cut, it's at the expense of the people housed in the facility. The decades-long litigation war in California over health services in prisons (and now in jails), which revealed neglect, ineptitude, iatrogenic illnesses, and a staggering number of unnecessary deaths, was waged against public officials running public prisons.

In addition, AB 32 raises the question whether California can effectively execute a divestment from private detention of undocumented immigrants at the state level when Congress has plenary power over immigration and the Department of Homeland Security (in particular, ICE) is the enforcement authority. ICE provides for the detention of undocumented immigrants through a web of contracts with states (including California) and municipalities. This means that some undocumented immigrants, specifically minors, end up in county facilities, and some are held in private facilities, managed by subcontractors working with California municipalities.

As a recent report from the attorney general's office found, the state has done a poor job supervising the conditions in both kinds of facilities, partly due to state ineptitude and partly due to restrictions and hurdles placed by ICE. Serious violations of basic rights and failure to provide basic services have been reported for both types of institutions. Specifically, a serious problem in the detention of undocumented minors has to do with their confinement in jails that also hold people convicted of domestic offenses, and municipalities have failed to appropriately distinguish between the two populations for purposes of administration and privileges.

In short, the well-intended effort to divest from private providers reflects our ideological disgust with the classic bogeyman of incarceration, but is unlikely to promote significant change in our bloated incarceration apparatus. Alleviating the evils of incarceration at this scale has one (albeit difficult) remedy: whether in public or private facilities, we must incarcerate far less people than we do, and we have to tackle this task with courage, because shrinking our prison population to a manageable size will require compromises and policies that go far beyond cosmetic reforms for nonviolent crimes. 