Most Americans probably know that we incarcerate more people in this country—both per capita and in sheer numbers—than any other country in the world. The Pew Research Center reported in 2008 that one out of every hundred Americans was behind bars.1 The Sentencing Project sets the total number at 2.2 million. Many times that number live under state supervision through parole, probation, and furlough. Vermont, where I serve as a state representative, has a population of roughly 625,000, with 2,000 people in prison (including almost 500 out of state) and roughly 10,000 people under supervision. In some urban centers in the U.S., a majority of young African American men live under the supervision of the Department of Corrections.
This mass incarceration and accompanying surveillance of citizens is not an accident. It is the result of specific policies established by state legislatures and Congress, most notoriously the War on Drugs, with its plea bargains and harsh sentencing rules. According to U.S. Department of Justice statistics, over half of federal prisoners in 2010 were incarcerated for drug crimes and more than half of these are African American.
Fortunately, the War on Drugs has been increasingly recognized as a dismal failure. Michelle Alexander’s recent book, The New Jim Crow, has made an extraordinary contribution to the country’s conversation about race and the criminal justice system, arguing that the War on Drugs has purposely created a black underclass as a result of widespread targeting of minority communities. Others have noted that if the goal of this war was to imprison more people—to the benefit of private prison companies, for example—then it’s been a wild success.
Setting aside questions of intentionality and goals, the results are indisputable. A large percentage of Americans, a gross disproportion African American and Hispanic, have had encounters with the criminal justice system that leave them unable to vote, live in public housing (which includes staying with a relative or friend), get a college loan, or work in a great number of jobs. Vermont has over 300 such restrictions, known as “collateral consequences of conviction.” No one knows exactly how many collateral consequences exist in each state because no state has yet compiled an official list. (The American Bar Association has compiled partial lists by state.2) What’s clear is that having a felony conviction makes successful reentry into the community extremely difficult.
Alongside Alexander’s recent book, many others have neatly described how we got to this shameful place in history. The graphic-novel-style reissue of Marc Mauer’s Race to Incarcerate, illustrated by Sabrina Jones, offers a quick and comprehensive overview of the various forces—political, social, and economic—that have guided us here. Although they all interlock with and reinforce each other, I want to focus on the economics, the force that I’ve found distresses (and energizes) many people who otherwise have not engaged with this issue. Specifically, I want to talk about the for-profit prison industry.
Aside from the strong moral case that profiting off of incarceration is unconscionable, what’s wrong with private prisons?
First, they offer few or no programs or services to inmates, which is one reason they appear cheaper on the surface. The fact that they seem to cost less is, of course, the primary justification for state governments to contract with private prisons. However, compelling argument can be made for the fact that contracting with private prisons costs the state more in the long run. If you simply warehouse people without offering opportunities for education, job training, or treatment for mental health and substance abuse issues, you’re not likely to have a positive impact on their lives. And yet we will all be better off if those coming out of prison—and almost everyone in prison will be released—have support for their mental health or their recovery from addiction; if they have the tools to get a decent job with a livable wage, so they can contribute more productively to their communities. Anyone who commits another crime instead of becoming a contributing citizen simply costs the state more money. Even those who may not care about the social and humanitarian costs of mass incarceration can see that the economics don’t work.
A second problem with private prisons is that the staff are typically underpaid and undertrained, sometimes receiving no training at all. This results in much higher turnover than in public prisons. Prisons with a higher rate of staff turnover also have higher rates of violence of all kinds—staff-on-inmate, inmate-on-staff, and inmate-on-inmate. Statistically, private prisons, with more staff turnover and less oversight and monitoring, also have more escapes. As part of a national campaign to shine light on the industry, the nonprofit group Grassroots Leadership has compiled an excellent report documenting years of abuse in private prisons, some even resulting in prisoner death, as well as court cases lost and fines levied against the largest for-profit prison outfit, Corrections Corporation of America (CCA). The report, called The Dirty Thirty, provides a valuable counter to CCA’s celebration of 30 years of business this year.3
Third, private prisons by definition receive no public oversight. Even in Vermont, where we have monitors who regularly travel to Kentucky, most citizens have no idea that the state contracts with a for-profit corporation to house inmates out of state. Private prisons are not subject to state regulations, though states can insist on some things contractually, nor are they subject to inquiry through the federal Freedom of Information Act. What happens in a private prison—whether it makes money, loses money to lawsuits, etc.—may be of concern to shareholders, but the well-being of its residents is not the point. (Of course, CCA’s annual report contains photos of handsome, smiling inmates to allay shareholder fears about inmates’ welfare.)
Finally, the basic engine that underlies a profit-making prison industry is, to put it mildly, problematic. The industry depends on increasing numbers of inmates in order to increase profits. The role of its lobbyists in drafting Arizona’s anti-immigrant legislation with an eye toward profit has been well documented, as has the industry’s financial backing of politicians who support legislation that sends more people to prison and holds them there longer. Having economic incentives to lock up more people makes sense if you’re the CEO of a private prison company focused on the bottom line. It makes no sense in an even moderately enlightened society.
And that, at heart, is part of the problem: the private prison industry benefits from mass incarceration. So, then, what’s the solution?
Quite simply, every state needs to stop using private prisons.
Vermont has no private prison on its soil. But most of the 500 out-of-state prisoners I mentioned above are held in a CCA facility in Kentucky. We also have 10–20 men in a CCA prison in Arizona. For the last two legislative sessions, I have introduced a bill to prohibit our use of private prisons, to no avail—yet.
Interestingly, in the past few years, several other arguably less progressive states have had successes in this area. Activists in New Hampshire were able to stave off an attempt by the state to build a private prison that would have served Maine, New Hampshire, and Vermont. Thanks to vocal citizen opposition, the plans never got off the ground. Last year, Florida succeeded in rejecting the privatization of two dozen of its prisons, thanks to a strong activist movement. Even the state of Kentucky recently ended its contracts with CCA facilities inside the state because of a legacy of problems. Thus the only inmates in CCA’s Kentucky facilities come from out of state.
So what’s with Vermont? Why do we, in this progressive state, send nearly $14 million a year to the Corrections Corporation of America?4
Let me be the first to acknowledge that these are complicated problems. We have 500 men out of state because we don’t have room in state. We don’t have room in state because we’ve been locking up too many people for the past couple of decades, a result of the policies outlined above. But when we dive deeper into the numbers, we can find a clearer course toward solutions.
At any given point, we have about 100 people eligible for release who remain in jail for lack of “appropriate” housing—a delicate challenge when you think of a man serving time for domestic assault whose only available housing (since he has no job and no money) is with his ex-wife who doesn’t want him anywhere near her. The solution in these cases is to create more transitional housing, something that the state is working on supporting through several public requests-for-proposal.
A significant number of people in our prisons are detainees—that is, people who are arrested and are either refused bail or unable to post bail. The Council of State Governments Justice Center is currently investigating Vermont’s detainee population. Anecdotally, it appears that while the number of male detainees for both violent and nonviolent crimes has been decreasing, the number of female detainees for nonviolent crimes has increased. We hope that the researchers will be able to tease out both gender and race to shed more light on who’s being detained and why.5 In the end, we want judges to use pretrial detention only where necessary for reasons of public safety, and without bias.
A third way to reduce the numbers in prison is to increase parole eligibility for inmates 55 and older who have not reached their minimum sentences. Though many judges oppose this policy, the risk of recidivism decreases dramatically with age, and it’s critical to remember that severity of offense and risk of reoffending are not the same thing. Someone who has snapped and killed an abusive spouse or boss, for example, is extremely unlikely to do the same again. If we could approach such cases rationally and avoid the emotional reactions that lead to long-term imprisonment, we could make progress here. One way to do this is by informing parole through the Ohio Risk Assessment System, which helps to measure a prisoner’s likelihood to reoffend. This is a concept supported by the American Civil Liberties Union and one that inspired me to introduce a bill to this effect two sessions in a row. Though the bill has not yet been successful, we have a two-year session; it’s not dead yet.
We also need to stop targeting communities of color in the War on Drugs. In fact, we need to stop the War on Drugs altogether, and Attorney General Eric Holder took a small step in that direction with his August announcement that the Justice Department will no longer pursue mandatory minimum sentences for non-violent drug offenders. But with fears increasing around addiction to opiates—heroin and prescription drugs like oxycodone, for example—things may have to get worse before, out of desperation, we take the full step Portugal took and legalize all drugs. Until then, we need, as a matter of simple fairness, to stop the racial profiling that defines current drug control efforts. In Vermont, we have required that every law enforcement agency have bias-free policing policies, but we were unable to require that every agency collect data, and we need data to ensure accountability. Having had success two years ago with my bias-free policing bill, I will introduce a follow-up bill to require data collection this coming year.
Probation, too, requires overhaul. One of the biggest funnels into prison is the violation of a condition of probation, including “technical violations” like a missed appointment or a “dirty” urine sample. We need to ensure that conditions of probation are directly related to the underlying offense, as they’re supposed to be, and eliminate the practice of automatic reincarceration for technical violations.
Finally, we need to keep working on alternatives to incarceration. Vermont has a strong community justice network (pre-arraignment) and court diversion program (post-arraignment). (Community justice programs allow someone who has been arrested for a crime to meet with a restorative justice panel of citizens to work out restitution, apology, or whatever else is needed. If this is completed successfully, the charge is dropped. Court diversion programs allow judges to sentence someone with a low-level misdemeanor, for instance, to community service—that is, to divert him or her from the criminal justice system into the community; if you complete the diversion, the charge gets wiped out.) In recent years we, like other states, have also instituted drug courts and mental health courts, though not in all counties. And one of our progressive state’s attorneys has recently been hired by the state to develop courts for those accused of driving under the influence. In the past few years, several creative approaches have taken hold in Burlington, our largest city: rapid-referral programs and a rapid-intervention community court. All of these programs can keep people out of prison, and we need more of them, particularly diversion options for those charged with nonviolent drug offenses.
This, of course, is only a partial list of actions we ought to take to reduce the prison population. We also need job training programs for incarcerated women and more treatment slots for people with addictions who seek treatment. We need to stop criminalizing new behaviors every year. We need to look at our country’s demonization of sex offenders. We need to reduce the collateral consequences of conviction. And on and on.
All these are part of the solution to the larger problem of mass incarceration. They all make sense, both from an economic and a human-suffering perspective. So why have I continued to fight for a bill to end the state’s use of private prisons? Why this focus?
Because the greatest obstacle to criminal justice reform in Vermont is lack of awareness. Most people affected by the criminal justice system are poor and lack a strong political voice. Most middle-class Vermonters have little experience with the system’s injustices. At the same time, virtually everyone I meet seems to chafe at the idea of private prisons. Raising awareness of our use of private prisons and trying to prohibit their use helps us build support for the many efforts listed above that are necessary to accomplish the larger goal of reducing the prison population by 25 percent. We need that reduction in order to bring home the 500 out-of-state prisoners.
Andy Pallito, our Commissioner of Corrections, believes with me that we could accomplish this within three years if we put our minds to it. We need public support to generate the political will. In Vermont we have a new nonprofit dedicated to building this public support, Vermonters for Criminal Justice Reform (which, full disclosure, I founded last spring).6 With grassroots movements around the country achieving more and more success, and recent books, TV series, and national figures drawing attention to these issues—along with a healthy dose of persistence—I believe we can see the decline of private prisons and an end to mass incarceration in this country.
