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Volume 21, Number 13 ~ Monday, April 1, 2013 (No. 954) Featured Article

A Brief History of Prisons in America - Part II

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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

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.

7 “Prison and Jail Accountability Project” report by Meredith Martin Rountree, Esq., March 31, 2003.

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.

The Texas trend may be changing. Members of the Texas Legislature are figuring out that, in many cases, private prisons don’t offer a cheaper, safer alternative to the publicly-run facilities currently operated by TDCJ. We now have more beds than inmates, yet we’re still paying for beds under contract to private prison groups.

Earlier this year, citing a surplus of cells in a declining incarceration market, the Texas Senate Finance Committee voted to close a 2,100-bed, for-profit prison in Mineral Wells, operated by Corrections Corporation of America since 1995. According to the Fort Worth Star Telegram, Sen. John Whitmire, who chairs the Senate Criminal Justice Committee and serves on the Finance Committee, said “it is no longer needed.”11

More than one town is stuck with overbuilt facilities. Typical of Texas scenarios is that experienced by the City of Littlefield, located in Lamb County, northwest of Lubbock.

10 Molly Ivins; May 26, 2003; AlterNet (on-line news magazine)

TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 4 In 2000, the City built the Bill Clayton Detention Center for $11 million.12 Taxpayers were sold on the project by their elected officials and led to believe other states would pay to store their prisoners in the privately run jail.13 GEO Group was hired to run the jail and find prisoners. That worked for a while, but the facility’s largest client, the State of Idaho, pulled out all of its inmates, citing its own budget crunch. Soon thereafter, GEO Group announced it was leaving. Now, the city cannot find any inmates to fill the cells, and it still owes $9 million on the property -- and the property is for sale for $5 Bill Clayton Detention Center million.14

According to NPR’s John Burnett:15

It seemed like a good idea at the time when the west Texas farming town of Littlefield borrowed $10 million and built the Bill Clayton Detention Center in a cotton field south of town in 2000. The charmless steel-and-cement-block buildings ringed with razor wire would provide jobs to keep young people from moving to Lubbock or Dallas.

For eight years, the prison was a good employer. Idaho and Wyoming paid for prisoners to serve time there. But two years ago, Idaho pulled out all of its contract inmates because of a budget crunch at home. There was also a scandal surrounding the suicide of an inmate.

Shortly afterward, the for-profit operator, GEO Group, gave notice that it was leaving, too. One hundred prison jobs disappeared. The facility has been empty ever since.

13 Both Hawai’i and Montana shipped inmates to facilities in Texas. Bad experiences changed minds in both states. See: “A History of Trouble at Mainland Prisons Holding Hawai'i Inmates;” © 2005 Honolulu Advertiser.

TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 5 The prison has been empty for nearly four years. Littlefield is currently paying $65,000 a month against the debt, and, to avoid default, the City has raised property taxes, increased water and sewer fees, laid off employees and even held off buying a new police car.16

The 2010 U.S. Census listed the population of Littlefield at just less that 7,000 people. If the City ever sells the property for $5 million, it will be left with a debt of a little less than $600 per person (or “every man woman and child,” as the politicians love to say).

Montgomery County is facing a similar situation. It’s trying to unload the Joe Corley Detention Center.17 The jail, which cost $44.8 million, opened in 2008 on projections of growth in the inmate population in Montgomery County. Like the experience in Lamb County, the County’s projections about increased prisoner revenue simply haven’t panned out. County commissioners have advertised the property for sale for a minimum bid $55 million. This is designed to cover the jail’s $38 million outstanding debt and expenses related to the loss of tax-exempt status of the bonds issued to pay for the jail.

The opinions expressed here are those of the author alone. They do not represent the opinions of Texas Independent Bar Association, nor do they necessarily represent the opinion of any of TIBA’s members.

While Montgomery County might not end up in the red, like the City of Littlefield, I doubt there is anyone who still thinks this was a good idea. It shouldn’t be a surprise to anyone, but I don’t like privatization.

It seems to me that all that happens with privatization is that some fat-cats are unjustly enriched and the taxpayers never get what they think they’re going to get. There have been more privatization schemes than I can remember which have reduced the level of service to the public -- yet increased the costs of that service. “Vita-Pro”18 anyone?

The truth is that those who don’t learn from history are bound to repeat it. Let’s not. Let’s dump this prison privatization stuff in the trash. That’s my two cents.

TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 6 Private Prisons in Texas:

Avalon Correctional Services, operating: Austin Transitional Center - West Location; Dallas Transitional Center; El Paso Multi-Use Facility; El Paso Transitional Center; Fort Worth Transitional Center and Travis County Residential Center. Community Education Centers; operating: Bi-State Detention Center; Bowie County Correctional Center; Dickens County Jail (formerly Dickens County Correctional Center); Ector County Correctional Center; Fannin County Detention Center; IAH (Polk) Secure Adult Detention Facility; Jack Harwell Detention Center; Kinney County Detention Center; Liberty County Jail; Limestone County Detention Center; Lufkin Detention Center; McLennan County Detention Center; Newton County Correctional Facility; Odessa Detention Center; and Parker County Detention Center. Corrections Corporation of America; operating: Bartlett State Jail; Bradshaw State Jail; Bridgeport Pre-Parole Transfer Facility; Dawson State Jail; Eden Detention Center; Houston Processing Center; Laredo Processing Center; Lindsey State Jail; Mineral Wells Pre-Parole Transfer Facility; T. Don Hutto Residential Center; Webb County Detention Center; Willacy County State Jail. Emerald; operating: Hudspeth County Regional Correctional Facility; LaSalle County Regional Detention Center; and Rolling Plains Regional Jail and Detention Center. CEO Group; operating: Beaumont Transitional Treatment Center; Big Spring Correctional Facility; Central Texas Detention Facility; Cleveland Correctional Center; Dallas County Judicial Treatment Center; Frio County Detention Center; Hector Garza Center; Jefferson County Downtown Jail; Karnes Correctional Center; Karnes County Civil Detention Center; Leidel Comprehensive Sanction Center; Lockhart Secure Work Program Facilities; Maverick County Detention Center; McCabe Center; Mid Valley House; Montgomery County Mental Health Treatment Facility; Newton County Correctional Center; North Texas Intermediate Sanction Facility - closed; Reality House; Reeves County Detention Complex R1 and R2; Reeves County Detention Complex R3; Rio Grande Detention Center; South Texas Detention Center; Southeast Texas Transitional Center (formerly Reid Community Residential Facility); Texas Adolescent Treatment Center (TATC); Val Verde Correctional Facility and County Jail. LaSalle Southwest Correctional; operating: Burnet County Jail; Crystal City Correctional Center. LCS Corrections; operating: Brooks County Detention Center; Coastal Bend Detention Center; East Hildago Detention Center. Management & Training Corporation; operating: ; Facilities Operated in Texas; Billy M. Moore Correctional Center; Bridgeport Correctional Center; Diboll Correctional Center; East Texas Treatment Facility; Giles W. Dalby Correctional Facility; Kyle Correctional Center; Sanders Estes Correctional Center; South Texas Intermediate Sanction Facility; West Texas Intermediate Sanction Facility; Willacy County Correctional Center (formerly Processing Center); Willacy County Regional Detention Facility.

TIBA’s Texas Law Reporter - Vol. 21, No. 13 - April 1, 2013 - Page 7