Published By eMail: [email protected] Web Page: www.texindbar.org Texas Independent Bar Association Austin, Texas 78767 Copyright © 2013 Texas Independent Bar Association and the following Commentators Alan Curry John G. Jasuta Doug O’Brien Helena Faulkner Charles Mallin Greg Sherwood Jeffrey S. Garon Gail Kikawa McConnell David A. Schulman Lee Haidusek Angela J. Moore Kevin P. Yeary Editor-in-Chief: John G. Jasuta Clicking a hyperlink (such as a judge’s name) will load the linked opinion It is TIBA’s policy that commentators do not summarize or comment on or document in your web browser. cases in which they were involved. Volume 21, Number 13 ~ Monday, April 1, 2013 (No. 954) Featured Article A Brief History of Prisons in America - Part II © 2013 - David A. Schulman RETURN TO TABLE OF CONTENTS Private Prisons Forty years ago, there were virtually no private prisons in the United States. In 1987, the number of inmates incarcerated in privately operated correctional facilities worldwide was 3,100; by 1998 the number had risen to 132,000. Today, there are approximately 130,000 people locked up in private prisons being run by for-profit companies. Although I have figures on which to rely, it seems to me that this trend parallels the trend towards privatization of governmental services which has occurred over the same period. In the period following the Jimmy Carter presidency, up to the present day, the list of government functions which have been converted to private ones (toll roads, anyone?) seems to be almost endless. As much as I might like to add my voice to those complaining about toll roads and the problems (and inconveniences) associated with them, this article will explore only the privatization of our jails and prisons. Today in America, private prisons operate as a large industry. The idea of incarceration for profit is, by no means, a new one. Privatization of our lock-ups has existed from the colonial era. Systems varied throughout the colonies then the several states, but, most often, local jails were operated by a contract jailer and his family. Early Privatization After the American colonies successfully completed separation from the British empire, the British found English Prison Ship David A. Schulman, one of the founders of TIBA, has been a co-author of this report for many years. He was a member of the Court of Criminal Appeals' staff in 1991-1993, and has been lead counsel in hundreds of direct appeals and habeas corpus proceedings. David reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a daily basis. He has been Board Certified in Criminal Law since 1991 and was the first lawyer to apply for certification in the Criminal Appellate specialization area. He was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. See his website at www.davidschulman.com. TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 1 themselves deprived of the ability to transport their undesirables to the Americas. The Crown had been placing convicts in hulks (the frame or hull of a ship, used as a storehouse, etc)1 moored in English ports and used as prisons.2 Historian Charles Campbell indicates that approximately 40 British Navy ships were converted for use as prisons. He also suggests that many of the ships used to transport convicts to Australia were privately owned. Not coincidentally, California's first prison, which opened in 1851, was a 268-ton wooden ship named the “Waban.” It was anchored in San Francisco Bay and outfitted to hold thirty to forty inmates.3 Eventually, there were 150 convicts living on the Waban.4 San Quentin prison, which opened in 1852, was built by inmates housed on the Waban. Even earlier than the Waban, however, was the “Euphemia,” a 136 ton brigantine, which the City of San Francisco used as a jail in 1850-1851, while a permanent jail was being completed. Probably due to the shortage of building materials in California, the use of ships in lieu of buildings was not uncommon at that time. To the left of the Euphemia, one can see the “Apollo Saloon,” itself a converted ship. During the “Reconstruction” following the American Civil War, state treasuries were mostly depleted. Additionally southern farmers and The “Euphemia” and the Apollo Saloon businessmen needed to find replacements for the labor force once their slaves had been freed. Beginning in 1868, convict leases were issued to private parties to supplement their workforce, and for profit ventures were widespread throughout the southern States. The State of Florida routinely leased most of its convicts to privately run prison "camps" for the mining of coal and phosphorus. In 1884 the Tennessee Coal and Iron Company leased 1 Collins English Dictionary - Complete & Unabridged 10th Edition 2009 © William Collins Sons & Co. Ltd. 1979, 1986 © Harper Collins 2 Charles F. Campbell, “The Intolerable Hulks - British Shipboard Confinement 1776-1857;” Heritage Books © 1994, 2001. 3 California Department of Justice. “California Criminal Justice Time Line 1822-2000;” see also Miranda Ewell: “San Quentin Sets Its History Free. Famed Prison To Detail Its Past In New Museum.” San Jose Mercury News. May 27, 1991. 4 “Micro-History of San Quentin;” © Susi Brooks 2010. TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 2 the Tennessee state penitentiary. By 1889, it was employing 60% of the inmates as miners and bad subleased the rest to other private employers. Texas "leased" its entire prison system from the middle of the 19th century until the early 20th century.5 According to the Texas Historical Society:6 The convict lease system in Texas functioned in much the same manner and for many of the same reasons as it did in the other states of the former Confederacy. In the years immediately after the Civil War a variety of factors associated with the Confederate defeat brought about substantially higher levels of lawlessness. At the same time, persistent shortages of funds in the state treasury effectively tied the hands of prison officials, who found they could not house and care for the larger number of individuals sentenced to the penitentiary. Leasing the prison and the inmates to private individuals appeared to offer the best and, in the view of many, the only solution to the problems. The first leases in Texas came about in 1867, when two railroad companies headquartered in the state hired prison inmates to help construct their roadbeds. The parties to these early agreements, despite the enthusiasm that greeted them, did not anticipate all of the problems inherent in such a contractual arrangement. The most difficult problem resulted from the conflict between the profit motive of the contractors, who wanted to get the most labor possible from the prisoners at the least cost, and the interests of the state, which wanted at least a minimal effort to provide adequate food, clothing, and shelter for the prisoners. Owing to the many difficulties encountered in the course of administering the early leases, state officials abrogated the contracts after only a few months, and the prison inmates were returned to the penitentiary. Prison problems intensified through the next few years, as chronic overcrowding and lack of adequate funding fostered a general breakdown of morale among prison employees and a concurrent decline in discipline and growth of resentment among the inmates. The findings and conclusions of several legislative investigations all pointed to the seemingly unresolvable nature of the problems, given the limited resources available to the state. By late March 1871 the governor and most legislators agreed that another lease of the penitentiary had to be undertaken. The ACLU has said that “Private prisons have a long and unsuccessful history in Texas.”7 Historians Steve Martin and Sheldon Ekland-Olson have written that, “Transferring total responsibility of prisoners to private interest decreased costs to the state. It also meant lessened security, increased brutality, and a deteriorization of physical facilities.”8 Modern Privatization Obviously there is a long history of contracting out specific services to private firms, including medical services, food preparation, vocational training, and inmate transportation. Since the 1980s, however, there has been a “re-birth” of prison privatization. 5 “Prison, Inc: A Convict Exposes Life Inside a Private Prison;” © 2006 K. C. Carceral and New York University Press. 6 Donald R. Walker, “Convict Lease System;” Texas State Historical Association; © 1988. 7 “Prison and Jail Accountability Project” report by Meredith Martin Rountree, Esq., March 31, 2003. 8 Steve J. Martin and Sheldon. Ekland-Olson, “Texas Prisons: The Walls Came Tumbling Down;” © 1987, Texas Monthly. TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 3 President Nixon’s “War on Drugs”and increased use of incarceration produced what seemed for a while to be an ever growing population. This, in turn, led to prison overcrowding. A dramatic increase in cost of confinement became increasingly problematic for local, state, and federal governments. In our capitalist system, this created an opportunity for expansion, and consequently, private-sector involvement in prisons, which moved from the simple contracting of services to contracting for the management and operation of entire prisons.9 “What happens if you privatize prisons is that you have a large industry with a vested interest in building ever-more prisons.” Molly Ivins10 The first private prison opened in Texas in 1984 when Corrections Corporation of America signed a contract with the federal government (INS) to open a 350-bed immigration “processing center” in Houston. Today there approximately sixty private lock-ups in Texas, operated by nine (9) different private entities: Avalon Correctional Services, Community Education Centers; Corrections Corporation of America; Emerald; CEO Group; LaSalle Southwest Correctional; LCS Corrections; Management & Training Corporation.