This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). In my last post, I wrote:
In brief, there is a lot of hard evidence of pro-incarceration advocacy by public corrections officers' unions (though a small part of union advocacy also cuts the other way). (There is also hard evidence that most Departments of Corrections advocate the other way—in favor of alternatives to incarceration.) But there is virtually no hard evidence of private-sector pro-incarceration advocacy. This may simply mean that the private sector advocates secretly. But, in light of the theory, it is more plausible that the private sector simply free-rides, saving its political advocacy for policy areas where the public good aspect is less severe—pro-privatization advocacy.
This post documents that assertion. For a more footnoted version—there's a limit to how much I can link to here—consult the paper.
* * *
In 1987, E.S. Savas, a supporter of privatization, dismissed the claim that private firms advocate incarceration by noting that "[i]f this argument was sound . . . prison officials, guards, and their unions presumably would act in the same manner for the same reasons. This, however, is not the case."
Whether this was true even back then is questionable. At one time, corrections officials were politically aligned with liberal groups, but by the 1970s correctional unions were already advocating incarceration.
This activism continues today. The most active public corrections officers' union in advocating incarceration is the California Correctional Peace Officers Association (CCPOA). It gives twice as much in political contributions as the California Teachers Association, though it's only one-tenth the size; only the California Medical Association gives more in the state. CCPOA spends over $7.5 million per year on political activities. It contributes to political parties, political events, and debates; it gives money directly to candidates; it hires lobbyists, public relations firms, and polling groups.
Many of its contributions are impossible to trace back to any particular agenda item: Since the union also opposes privatization, favors higher wages, and has positions on other issues, it's just as plausible that the contributions were made for those other purposes.
But many of its contributions are directly pro-incarceration. It gave over $100,000 to California's Three Strikes initiative, Proposition 184 in 1994, making it the second-largest contributor. It gave at least $75,000 to the opponents of Proposition 36, the 2000 initiative that replaced incarceration with substance abuse treatment for certain nonviolent offenders. From 1998 to 2000 it gave over $120,000 to crime victims' groups, who present a more sympathetic face to the public in their pro-incarceration advocacy. It spent over $1 million to help defeat Proposition 66, the 2004 initiative that would have limited the crimes that triggered a life sentence under the Three Strikes law. And in 2005, it killed Gov. Schwarzenegger's plan to "reduce the prison population by as much as 20,000, mainly through a program that diverted parole violators into rehabilitation efforts: drug programs, halfway houses and home detention."
CCPOA doesn't always favor increasing incarceration, but the bulk of its advocacy has been in this direction. Dan Pens has quoted CCPOA member Lt. Kevin Peters as saying:
You can get a job anywhere. This is a career. And with the upward mobility and rapid expansion of the department, there are opportunities for the people who are [already] correction staff, and opportunities for the general public to become correctional officers. We've gone from 12 institutions to 28 in 12 years, and with "Three Strikes" and the overcrowding we're going to experience with that, we're going to need to build at least three prisons a year for the next five years. Each one of those institutions will take approximately 1,000 employees.
This isn't just a story about California. Though corrections officers' unions outside of California are nowhere near as active as the CCPOA, many of them do advocate incarceration. (As I note below, everything is bigger in California: While private prison firms make political contributions nationwide, they, too, spend more in California.) The correctional wing of Florida's police-and-corrections union has endorsed candidates for being tough on crime. The Michigan corrections officers' union has opposed boot camp proposals. The New York City corrections officers' union endorsed Gov. Pataki because he ended parole for violent felons. The New York State corrections officers' union is said to have stymied efforts to overhaul mandatory minimum sentences. And the Rhode Island corrections officers' union endorsed a candidate for his prosecutorial record and position in favor of tougher criminal penalties. (I am not considering the more usual demands for tougher penalties for criminals who commit crimes while in prison—a particularly salient issue for corrections officers, who are often victims of such crimes.)
Some corrections officers' unions are combined with police unions, for instance in Florida or New Jersey. So except where (as in Florida) the corrections officers' wing has been independently politically involved, any of these unions' advocacy can't be traced directly to corrections officers.
In some states, corrections officers are also affiliated with AFSCME, the general public employees' union; AFSCME Corrections United represents 60,000 corrections officers and 23,000 corrections employees nationwide. It's plausible that corrections officers' concerns would be swamped by the potentially contrary concerns of public employees as a whole (who tend to be fairly liberal). And, indeed, the evidence that AFSCME has advocated incarceration is weak. AFSCME has advocated alternatives to incarceration, and the national organization has advocated legalizing medical marijuana (though of course this would only account for a tiny proportion of crime). The Oklahoma public employees' union—also a general union—has also advocated alternatives to incarceration.
So much for public corrections officers' unions. Now let's go on to private prison firms.
Private prison firms depend, for their livelihood, on two policies: privatization and incarceration. Indeed, they admit as much to the world, in their annual reports filed with the SEC. As to privatization, The GEO Group, the second largest private prison firm, explains that "[p]ublic resistance to privatization of correctional and detention facilities could result in our inability to obtain new contracts or the loss of existing contracts, which could have a material adverse effect on our business." As to incarceration, GEO candidly remarks:
[A]ny changes with respect to the decriminalization of drugs and controlled substances or a loosening of immigration laws could affect the number of persons arrested, convicted, sentenced and incarcerated, thereby potentially reducing demand for correctional facilities to house them. Similarly, reductions in crime rates could lead to reductions in arrests, convictions and sentences requiring incarceration at correctional facilities.
Similar statements are easily available in prison firms' public filings. It is thus natural to suspect that prison firms may advocate both privatization and incarceration in the public square. Their political advocacy—which is extensive—mainly takes the forms of contributions to politicians and participation in the American Legislative Exchange Council (a conservative organization that drafts modern legislation), though they also testify before Congress and present arguments in the popular press. But, while it is clear that these firms advocate privatization, it is unclear that they advocate incarceration to any significant extent.
Most of the evidence of advocacy specifically in favor of incarceration has been speculative. Some writers state that it doesn't happen, while others who are concerned about the prospect hedge their statements with terms like "may" or "are likely to."
I noted above that the general contributions of corrections officers' unions can't be traced back to any specific goal, like pro-incarceration advocacy. Similarly, some commentators note private prison firms' advocacy but don't distinguish between pro-privatization and pro-incarceration advocacy. This blanket approach is a mistake, unless one is attacking all political involvement by prison firms. Generalized contributions to candidates, unlike targeted activities like contributions to single-issue voter initiative campaigns, are mute. Some of the industry's contributions to politicians may be multi-purpose, for privatization as well as for incarceration. Merely advocating increased privatization raises quite different concerns than advocating changes in the criminal law itself, and certainly does not implicate the same sorts of "legitimacy" values.
Since the industry's public statements virtually all relate to favoring privatization, there is little hard evidence on the basis of which to attribute part of their political contributions to a pro-incarceration motive. Indeed, the Association of Private Correctional and Treatment Organizations (APCTO), the industry's trade group, speaking for its member firms, denies that the industry lobbies for increased penalties:
Individually and as an Association, we do not lobby in favor of longer sentences, so-called "three-strikes" laws, or other legislation which could result in an increase in the jail or prison population. To the contrary, the Association and its member companies encourage the use of appropriate alternatives to incarceration; provide inmates with treatment, education and rehabilitative services designed to positively impact and reduce recidivism rates; and encourage effective transitional programs for offenders upon release.
APCTO frequently endorses alternatives to incarceration, treatment programs, and other measures to reduce recidivism. Its executive director recently suggested in the Denver Post that to alleviate prison overcrowding, Colorado should "[l]ook to alternatives to incarceration that can provide treatment and rehabilitative programs to first-time, nonviolent drug and alcohol offenders," "[r]educe recidivism by investing in the treatment, education and rehabilitation that offenders need to be successful when they leave prison," and "[i]ncrease the likelihood that released inmates will not re-offend by providing substantive transitional programs to help released inmates adjust to the community outside the walls of prison." (He made similar recommendations to Ohio in the Cincinnati Post.) He also suggested in the Fort Pierce Tribune and the Palm Beach Post that Florida should invest more in juvenile justice services in order to reduce the adult prison population in the long run. (He noted that APCTO's member companies mostly provide adult incarceration services, though some would like to expand their juvenile programs.)
Even if one ignores the industry association's official statement as self-serving and dismisses their anti-incarceration positions as PR, at most political contributions are "soft evidence" of pro-incarceration advocacy. The most we can say empirically based on such evidence is that maybe pro-incarceration lobbying happens and maybe it doesn't. Perhaps the hard evidence is missing because the industry covers its tracks; or perhaps the hard evidence is missing because there is nothing to cover up.
Prison firms also participate in the American Legislative Exchange Council, an influential conservative organization that drafts model legislation. Both CCA and the former Wackenhut Corp. (now called the GEO Group) have been members of ALEC (and they and Sodexho Marriott, a major CCA stockholder, are prominent corporate funders of ALEC), and, over the years, at least CCA has participated in (and two of its executives have chaired) ALEC's Criminal Justice Task Force, which drafted, among other things, a "Truth in Sentencing Act" and a "Habitual Violent Offender Incarceration Act."
The inner workings of ALEC are hazy, and indeed, some commentators argue that the private prison industry expressly seeks out channels that are "conveniently out of public view" and "behind closed doors" to promote its pro-incarceration agenda. Presumably, prison firms work within ALEC on privatization issues: Prison privatization is one of the "major issues" of ALEC's Criminal Justice Task Force; the Task Force has a Subcommittee on Private Prisons and has a model "Housing Out-of-State Prisoners in a Private Prison Act"; and CCA is known to have talked to the Task Force on the subject.
But this, too, is "soft" evidence; we do not know that they also work on sentencing or incarceration issues. Indeed, CCA asserts that it has not participated in, voted on, or endorsed any stand on model legislation for sentencing or crime policies within ALEC. Apparently, the only CCA official to have ever publicly taken a stand on sentencing is J. Michael Quinlan, formerly Director of the Federal Bureau of Prisons and now a CCA Senior Vice President, who, after he joined CCA in 1993, told a House subcommittee that mandatory minimum sentences "are unnecessary for non-violent, non-serious offenses" and "pose[] a severe threat to prison discipline and management."
So far, I have found a single piece of evidence of arguable pro-incarceration advocacy by a private firm. In 1995, Wackenhut chairman Timothy P. Cole testified in favor of certain amendments to the Violent Crime Control and Law Enforcement Act of 1994. The main point of his testimony was to propose additional provisions (1) making clear that prison grants under the 1994 Act would "help pay for the entire range of correctional services states can provide in-house or under contract" (not merely for "alternative correctional facilities"), (2) requiring states to "show that they have all the necessary legislative authority to embark upon a comprehensive, integrated program and that they will employ the best technology at the lowest cost" (presumably to boost privatization), (3) directing the Attorney General to "give top priority to the construction of larger, 'harder' [i.e., higher-level security] facilities," and (4) directing the Attorney General to give priority to states with "an executive body dedicated to the review and consideration of privatization." During this testimony, he said the following:
"Our proposed amendment . . . would help to assure that these grants will help the states incarcerate more violent criminals and not make the state governments more dependent on federal tax dollars in the long term."
"By passing 'truth-in-sentencing' laws, states have begun to restore a fundamental sense of justice and fairness to our system of crime and punishment."
"The new grant program [under the 1994 Act, without the proposed amendments] is available for 'alternative correctional facilities' and does not recognize the urgent need for more cells in secure facilities."
"Current law encourages billions to be spent on new or retrofitted facilities that are not large enough, secure enough or efficient enough to keep the maximum number of violent criminals in prison for the least cost."
This isn't great evidence—Cole was really only advocating funding priorities and privatization-friendly decisionmaking. Cole's request to divert money from alternative facilities, his kind words for truth-in-sentencing laws, and his positive attitude toward locking up violent criminals are hardly a pro-incarceration smoking gun. But this is the best I've found. Private prison firms may have made other statements and taken other public positions that are arguably pro-incarceration, but I haven't found any, and to my knowledge, privatization critics have not brought them to light.