Oversight Of Private Juvenile Facilities

Oversight of Private Juvenile Facilities

Michele Deitch Presentation to NJJN Forum, July 28, 2011

Introduction to Privatization

I should be clear at the outset that most of my experience in the privatization arena has been in the adult context. Texas, my home state, is the undisputed national leader when it comes to prison privatization. I have had the opportunity to have a front row seat to see how this practice has evolved over the last 20+ years, both in Texas and around the country. And I have been a consumer of all the research that’s come out on this topic.

While I do plenty of work on juvenile justice reform, my privatization research has mostly been with regard to adult corrections. So I will be extrapolating some of that research for purposes of this presentation, but some of it may not always be directly applicable. I will be using terms like prison throughout the talk, but this term is meant generically, and includes juvenile corrections facilities and local juvenile detention centers.

One of the great myths out there is that private prison companies can provide services better and cheaper.

When governments are cash-strapped—and sometimes even when they aren’t—there is often a clamoring to look for ways to privatize services. When it comes to corrections, private prison vendors are at the ready to provide these services, insisting that they can do it better, faster, and cheaper. But is it true?

Let’s start out by making sure we are all on the same page when we talk about privatization. What do we mean by when we use that term? Privatization could mean anything from privatizing a particular aspect of operations (e.g., medical, transportation, or food services), to private

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11 2 vendors operating a state-owned facility, to private vendor construction, ownership, and operation of a facility under a contract with the state.

It is important to distinguish private prison industry programs, which raise entirely separate issues—paying inmates for private labor is NOT what we are talking about here.

For today’s talk, I am mostly concerned about situations where the private vendor is running all aspects of correctional operations—the state’s role is limited to contracting, oversight, and funding, and sometimes ownership of the physical building.

Privatization of Juvenile Facilities

Privatization looks very different in the juvenile context than it does on the adult side. First of all, it is already widespread.

According to a report issued in July 2011 by OJJDP—“Juvenile Residential Facility Census 2008: Selected Findings”—53% of juvenile facilities in this country-–more than half—are privately operated. There are 1300 private juvenile facilities in the US.

BUT, only 31% of juvenile offenders are held in private beds (roughly 25,000). That doesn’t include youth in adult facilities, or facilities used exclusively for mental health, substance abuse treatment or for dependent children.

The reason for this discrepancy is that most private juvenile facilities are very small. 78% of group homes are private, and most hold 10 or fewer residents. We also see a lot of privatization in the context of shelters (69%), wilderness camps (48%), Residential Treatment centers (71%), and Reception/Diagnostic centers (33%).

There is relatively little privatization in the form of the large training schools (11%) or local juvenile detention centers (13%).

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11 3

This is both good news and bad news.

On the one hand, privatization doesn’t seem to have yet made significant in-roads into the large juvenile correctional facilities, in the way that these companies have done in the adult context. Most of the facilities where privatization exists tend to be the relatively benign and more treatment- oriented facilities.

HOWEVER, there remains plenty of reason for concern. First of all, programs around the edge of juvenile corrections such as group homes and treatment centers are increasing in number, especially as more and more states are adopting reforms to deinstitutionalize youth and keep them in small, community-oriented settings. So opportunities for expanding privatization abound, in ways that are apparently consistent with the goals of most advocates. Policy-makers may find it difficult to reconcile your desire for small, community-based group homes with opposition to privatization, since they appear to be complementary.

And secondly, these small private facilities can ride under the radar screen for long periods of time, with little oversight or regulation from government officials, and little scrutiny from concerned citizens, advocates, or the media. Abuses or lack of services can go undetected for years.

As your states increasingly turn to privatization, it is worth keeping these twin challenges in mind. Privatizing large facilities may be more troubling at many levels, but it is far from a safe alternative to simply spread privatization out into smaller, essentially invisible facilities, even if they are well-intended in purpose.

Problems with Privatization

The fact is that prison privatization is NOT a panacea for any state’s prison or juvenile detention woes. In fact, it can make those problems worse and more engrained. Let’s explore this further.

One of the reasons why so many problems have arisen in the prison privatization context is that public officials have tended to see the issue of privatization in terms of dollars and cents. To many policy-makers, it is a matter of cost savings, of quick construction, of the desperate need for prison beds, of the failure to get public approval for prison construction bond proposals. We hear them talk about “the bottom line,” about speed, about procurement, and targets, and deliverables.

But privatizing prisons isn’t exactly like privatizing garbage services or data entry. Prisoners may be talked about as “commodities” by private prison operators and stockholders in these companies, but we can’t ignore the human considerations presented by privatization in this context. Most services to be privatized don’t raise the specter of human rights violations or constitutional rights. That is not the case with privatization of prisons or juvenile facilities.

The facts are that private vendors compromise safety and security to keep down costs. They save money by hiring inexperienced staff at the low-end of the wage scale—comparable to local fast food restaurants. This leads to very high turnover rates. One study found a turnover rate in private prisons of 52% vs. 16% in public prisons.

What’s more, private vendors skimp on training programs—they’ve got a very limited budget for this. That same study found 35% fewer training hours in private facilities compared to public prisons.

When you’ve got inexperienced, poorly trained staff, with limited training, you’ve got a recipe for security and safety problems in a prison.

Combine that with a problem of understaffing. Private vendors often keep staff positions unfilled, so the position is on the books but there are no costs associated with it.

Making things even worse is that many private facilities are built on the cheap, with designs and lack of maintenance contributing to escapes and other security problems.

Perhaps it’s no surprise then that the performance records of private and public correctional institutions are not comparable. Private facilities have 49% more assaults on staff and 65% more inmate-on-inmate assaults than public prisons. They’ve also been found to have higher levels of escapes, disturbances, and drug use. One study did an apples-to-apples comparison of a private prison and a similar public facility, and found that the private facility had higher levels of operational problems and a comparative lack of inmate programs, such as educational, vocational, and counseling programs, which led to inmate idleness and a lack of preparation for re-entry.

We don’t have much information on the juvenile side, but here are some troubling statistics:

 there were more than 13,000 claims of abuse filed between 2004- 2007 in privatized juvenile centers  a 2004 BJA study of 194 private facilities discovered nearly 3000 allegations of sexual abuse by staffers  group homes (which are overwhelmingly private) are most likely to report unauthorized departures (i.e., escapes)  the death rate (while still very low and therefore perhaps not significant) is generally higher for private facilities than for public (2.8 vs. 1.2 per 10,000)

One other interesting fact: while public juvenile facilities are more likely to be crowded than privates, private facilities tend to operate AT 100% capacity. In other words, private vendors won’t be your friend if you are looking to deinstitutionalize these youth. They have every incentive to keep these facilities full to capacity.

Some of the horrific problems that have arisen in private facilities will not be news to this group. Some of the more scandalous and tragic events that have occurred took place in privatized juvenile facilities. The record is replete with accounts of sexual assaults, suicides, beatings, escapes, and more. I will mention just a few of them:

--The infamous Coke County GEO-operated facility in Texas, was the site of THREE major scandals. The first, in 1995, involved group sexual assaults of young girls by staff, and staff manipulation of a demotion/graduation system to coerce girls into providing sexual favors. The second, in 1999, involved sexual and physical assault of several girls by staff, including one with a prior conviction for sexual assault of a child, resulting in a settlement of a lawsuit for $1.5 million, after which the lead plaintiff killed herself. This facility finally was forced to close its doors in 2008 when the OIO found evidence of and reported on horrific conditions there.

--The Walnut Grove Youth Correctional Facility in Mississippi, subject of an NPR investigative story earlier this year and subject of a lawsuit by the Southern Poverty Law Center. The nation’s largest juvenile prison, operated by GEO, is charged with having an environment so violent that it became a form of entertainment. Complaints about the facility include: rampant contraband, sex between female staff and male inmates, inadequate medical care, isolation of juveniles, and extreme brutality.

--Luzern County, Pennsylvania, where two judges took bribes to “sell” kids (and probably their souls, too) to private juvenile centers.

The list could go on and on. Now, I will be the first to tell you that these are NOT typical incidents. Nor do I think that every private facility has a horrific environment. And plenty of tragic incidents of sexual assault, suicide, and brutality take place daily in public juvenile facilities as well.

The question, though, is whether there is something structural—systemic— about privatization that makes it more likely for such incidents to occur in privatized settings. The problems that have arisen in private facilities seem to arise disproportionately often, and the root of the problem always seems to come back to the ways in which they cut corners to save money.

Cost Issues

Performance issues like these aren’t just a matter of concern because of human rights—they also have implications for the bottom line cost savings, and that’s an issue that should matter to most lawmakers. These kinds of problems become hidden costs for the state. Long-term hidden costs—in the forms of increased liability, increased worker comp costs, increased law enforcement costs (due to escapes), for example—have been estimated to be 20-30% above per diem costs.

So when policy makers just compare public and private per diems and think they are saving money by going with the privates, you need to remind them that there are other costs to consider and that they have to factor in the costs associated with the poor performance record of the private companies. It’s something for you to keep in mind as a powerful argument when you do your advocacy work.

What’s more, those per diem comparisons are misleading, because vendors’ per diems usually exclude costs that the public system needs to absorb for the private vendor, such as transportation, classification, health care, and monitoring.

Private vendors are also notorious for taking on “cheap” inmates—the ones without medical problems or disciplinary records. Not only does this keep their costs down, but it drives up the relative cost of the public prisons, since they have to absorb a higher percentage of “expensive” prisoners. This makes apples-to-apples comparison of costs very difficult to accomplish.

The government research that has been done on private prisons has found that the cost savings associated with privatization are at best negligible, and, in fact, in some cases, they end up being more costly to the state than public prisons.

When Texas looked into expanding its use of private prisons a few years ago, a working group of budget officials examined the cost savings issue

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11 8 and found that the real savings were less than $1/day before hidden and other long-term costs were taken into account.

And contrary to public perception—and the assumptions of many law makers—the state’s ultimate liability for constitutional violations in private facilities cannot be waived through contracting. The state is still on the hook for ensuring that conditions in those facilities meet constitutional standards, or the state can be sued.

Advocacy Strategies to Protect the Interests of Youth in Private Facilities

So far, we’ve talked about how the realities of privatization do not live up to the myths—private correctional facilities, whether adult or juvenile, are neither cheaper nor better performing than their public counterparts. And indeed, there is much reason for concern that their performance is worse as a result of their efforts to cut corners to raise profits.

The kinds of information I’ve shared can be a very powerful tool in your advocacy efforts against expanded privatization. While some legislators are firmly in the pockets of private companies and will not be swayed, others will respond appropriately to this information. They simply need to be educated.

One technique that has been very effective in Texas was the creation of a “Scandal Sheet”, which highlighted the wide range of incidents that took place at TX private facilities in recent years. This document was distributed widely (and is updated every couple of years), and showed that every private company had been connected with these scandalous events. No legislator wants to be associated with such headline-grabbing scandals.

But assuming that privatization is expanding in your state, despite your best efforts, what can be done to protect the interests of youth who are to be housed in these facilities?

There are actually a number of barriers that exist when it comes to ensuring that private prisons and jails protect the human rights of prisoners:

 there is a lack of transparency when dealing with private institutions  private companies are not subject to the Administrative Procedures Act  -there are few opportunities for public input  sometimes the inmates are housed out-of-state and therefore are not very visible, or they may be in small group homes or other residential facilities that fly under the radar screen  there is a lack of monitoring and oversight  there is a lack of knowledge on the part of local officials who contract with private vendors  scattered inmates contracted from various jurisdictions means diffused responsibilities for protecting rights  officials can only monitor against contract, and contract may not say anything about treatment of prisoners

Let’s talk about the ways in which these barriers can best be overcome in order to provide more transparency and accountability in the operation of private facilities.

Transparency Issues

If prisons generally are a closed world, those operated by private companies take this to an extreme level. They are not subject to open records requests; they can deny access to reporters and others who wish to tour facilities; they don’t need to hold public hearings or provide notice when they want to change policies or procedures; they are not required to submit data to government agencies for statistical purposes.

One example is that when expert Lindsay Hayes prepared his OJJDP report on juvenile suicides in detention, he found that more than 1/3 of the deaths in custody between 1995 and 1999 were not known to supervisory or state licensing agencies. And 2/3 of private facilities did not respond to survey requests for more information about these deaths.

Private companies have also stopped submitting aggregate data on benchmarks like number of assaults, escapes, etc., thus limiting the ability to update comparisons between public and private facilities on these measures.

Advocates should definitely push proactively for legislation to subject these companies to Open Records laws, and to have them subjected to Administrative Procedure Act obligations. This would greatly improve transparency, which in turn helps protect the youth held in these facilities. Any state legislature considering increased privatization should include such requirements as part of the package.

But make no mistake—this won’t be easy. In 2009, private corrections companies lobbied against and ultimately killed a piece of federal legislation—the Private Prison Information Act of 2009—which would have made publicly available some information about private facilities holding federal prisoners.

Contracting and Oversight

One thing that has been learned from our history with private prisons and jails, in Texas and in the US, is that success depends heavily on two factors: the quality of the initial contract, and the continuing form of oversight and contract monitoring.

Private vendors are only required to do what is in their contract. If the contract doesn’t specify that they have to follow a particular set of standards, or have to provide a set amount of recreation time or calories per day, or have to handle discipline in a certain way, then they don’t have to do it. There cannot be assumptions made about what constitutes good juvenile corrections management and assumptions that the vendor will do these things.

But amazingly, many counties (more so than states) don’t think about such issues when they sign a contract. Oftentimes, these counties are unsophisticated players in a serious game, in which the other side is a

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11 11 repeat player and understands the stakes in including or not including certain provisions in a contract. In the meantime, the government agency is oftentimes more concerned with details like the number of beds and the cost per day, not with conditions.

I have seen an example of an 11-page document used by ICE to contract with private vendors at the county level vs. 300-page documents used to contract by the Texas prison agency. That tells you something about the level of detail in those contracts.

I want to talk about 5 strategies for making these contracts more protective of human rights.

First, it is ABSOLUTELY CRITICAL that contracts spell out the standards that need to be met, whether those are ACA standards or state requirements for public institutions. And they should go beyond that, because the standards themselves may not be detailed enough.

They should spell out details such as the size of housing units, the amount of recreation and visitation, food quantities, disciplinary procedures, the kinds of programs offered and the number of hours youth should have access to such programs and classes, that isolation should not be permitted as a punishment, the types of force that can be used… to name just a few. There is no detail that is too small to be included.

Two, there have to be provisions included for breach of those contractual obligations. Ideally, they should include graduated sanctions, such as fines, increased monitoring requirements, etc., up to and including termination of the contract and permission for the state to take over the facility. There were examples of such takeovers in Coke County and Travis County in Texas. (This is one reason why it is so dangerous to have the private vendor actually own the facility, because the government loses the ability to kick the private operator out under such circumstances). Having the ability to impose intermediate sanctions is really important—if closure is the only option, officials will be so reluctant to invoke this sanction that they may have no way to really enforce the changes they want to see.

It is important for advocates to work with agency officials to be sure that details like these—and other human rights protections you want to see— get included as a matter of course in any contract with a private provider. Otherwise, you are leaving decisions about the proper treatment of these youth in the hands of agency officials, who may not even think to make such provisions a priority in the contract., or worse yet, in the hands of the private vendors themselves.

Three, the contract should also clarify exactly which juveniles can or cannot be held there. There can—and probably should be—clear restrictions based on age, offenses, risk levels, etc. Otherwise, there could be classification issues, violence, escapes, etc.

Four, it is also very important that the contract terms not be for too long—3 – 5 years is ideal. Otherwise, it is too difficult to keep pressure on a private vendor to perform properly, and there are few opportunities to review how that performance is going or to allow for healthy competition with other vendors. Some vendors push for 20 year contracts, which is very disadvantageous to the interests of those housed in the facilities. It would also be good to allow the parties to reconsider the contract after one year, to make sure that no problems have arisen that can be addressed through additional contractual provisions.

Four, this may be more a legislative issue than a contractual issue, but it is also very important to tightly limit the percentage of beds that are privatized. This is about to present a significant concern in some states. Florida, for example, just ordered the privatization of 30,000 prison beds, and there have been efforts in other states to privatize ALL prison beds.

But the greater the percentage of beds that are privatized, the less leverage the state has to demand improved conditions in facilities, to pull out its prisoners when conditions deteriorate, or to step in and take back a contracted facility. There is simply nowhere to put them and no trained staff to take over. The state is losing its capacity for providing this service, and the implications are truly troubling for the protection of human rights.

Five, the last issue that a contract needs to address—and an absolutely essential one—is that the contract needs to set forth a monitoring plan, a system for determining whether the private facility is adhering to the terms of the contract and for holding them accountable for failures to meet those requirements. This is known as contract monitoring.

It is a form of oversight, though it is not “oversight” in the grand sense that I have written about elsewhere since it does not involve human rights monitoring but simply monitoring of compliance with the terms of the contract. The better the contract, and the more human rights provisions it includes, the more effective this monitoring can be. But most states and counties do not subject providers to enough oversight to ensure accountability for human rights protection.

Monitoring is typically provided by the corrections agency that contracted with the private vendor, at least in the state-level contexts. At the county level, monitoring is much rarer, simply because there may not be a corrections agency to do the contracting, but rather the county commissioners or executive branch body, who have no expertise in such matters.

Compliance monitoring of private contracts can involve either or both on- site and off-site monitors who do regular inspections of facilities.

On-site monitors offer the advantage of being onsite and able to provide constant monitoring, but still only to the extent the contract provides meaningful requirements about the treatment of prisoners. But the downside risk is the danger of co-optation, as the on-site monitor comes to think of the facility staff as colleagues and friends in the same small town. And what’s more, the on-site monitor loses the distance needed to question assumptions and to see things with a fresh eye. In Coke County, for example, there were four on-site monitors who gave the facility glowing reviews before the terrible conditions were uncovered by the Independent Ombudsman.

Let’s be realistic, too. Most privatized facilities are simply too tiny to warrant their own on-site monitor.

What about having an independent oversight body simply handle both public and private monitoring? An independent body, such as an Ombudsman, should monitor both public and private facilities, but it doesn’t eliminate the separate need for effective monitoring by the prison or jail agency. Ultimately, those entities still retain liability and need to make sure operations are adequate.

But there is also a critical need for independent oversight of conditions in all correctional facilities, not just privatized ones. This is a form of oversight that goes well beyond contract monitoring, and it could be a supplement to it. There need to be independent government entities set up with the authority and the duty to routinely inspect and report publicly on conditions in correctional facilities. The oversight body needs to have golden key access—the ability to enter a facility, and any part of a facility—at any time without prior notice, to talk confidentially with any prisoner or staff member, and to review any file. Inspectors should be able to register and look into the complaints of juveniles. That is NOT the nature of compliance monitoring, but there is no reason this kind of oversight can’t be added to the mix. It can go a long way towards enhancing human rights protections for juveniles.

Perhaps the greatest value of external oversight is that it provides an independent voice that questions the way things are. Often times, those who work in an institution become so used to the facility’s culture or way of doing things that it never occurs to them to ask “why?” External oversight allows an agency to see itself through a fresh set of eyes, forces an organization to question its assumptions of normalcy. And by reporting publicly about conditions in these facilities—unlike contract monitoring— oversight bodies contribute to the transparency of these closed institutions.

Conclusion

I will leave you with three cautions with regard to privatization:

One, watch out for expanded opportunities for privatization in your deincarceration efforts. Make sure you are not becoming an enabler of

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11 15 privatization practices that could ultimately cut against your long-term objectives for reform.

Don’t be lulled into complacency by thinking that privatized group homes and other tiny facilities won’t raise the same concerns as privatizing large facilities. In some ways they are more benign, but they are also much harder to keep tabs on and much more challenging when it comes to providing oversight.

If privatization seems inevitable, or if it has already begun to make inroads in your jurisdiction, work with your legislators and with agency officials to (1) educate them on the real costs of privatization, the performance problems, and the hidden costs that can deplete any apparent savings; (2) put in place measures to ensure transparency (which should also protect the interests of government); and (3) ensure that they will draft contracts that contain provisions that protect the interests of those housed in the facilities and that provide for effective oversight.

Contact Information:

Michele Deitch, Senior Lecturer Lyndon B. Johnson School of Public Affairs The University of Texas (512) 328-8330 [email protected]

Michele Deitch, “Oversight of Private Juvenile Facilities” Presentation at NJJN Forum—7-28-11