A new study by a UC-Berkeley graduate student has surprised a number of experts in the criminology field. Its main finding: Private prisons are packed with young people of color.
The concept of racial disparities behind bars is not exactly a new one. Study after report after working group has found a version of the same conclusion. The Sentencing Project estimates 1 in 3 black men will spend time behind bars during their lifetime, compared with 1 in 6 Latino men and 1 in 17 white men. Arrest rates for marijuana possession are four times as high for black Americans as for white. Black men spend an average of 20 percent longer behind bars in federal prisons than their white peers for the same crimes.
These reports and thousands of others have the cumulative effect of portraying a criminal justice system that disproportionately incarcerates black Americans and people of color in general.
African-American studies Ph.D. student Christopher Petrella's finding in "The Color of Corporate Corrections," however, tackles a different beast.
Beyond the historical overrepresentation of people of color in county jails and federal and state prisons, Petrella found, people of color "are further overrepresented in private prisons contracted by departments of correction in Arizona, California and Texas."
This would mean that the racial disparities in private prisons housing state inmates are even greater than in publicly run prisons. His paper sets out to explain why — a question that starts with race but that takes him down a surprising path.
Age, Race And Money
First, a bit of background. Private prisons house 128,195 inmates on behalf of the federal government and state governments (or at least they did as of 2010). There's a continual debate among legislators and administrators as to which is more cost-effective: running a government-operated prison, with its government workers (and unions); or hiring a private company (like GEO or Corrections Corp. of America) to house your prisoners for you. States like California, Arizona and Texas use a combination of both.
In the nine states Petrella examined, private facilities housed higher percentages of people of color than public facilities did. Looking back at the contracts the private companies signed with the states, Petrella figured out the reason behind the racial disparity: private prisons deliberately exclude people with high medical care costs from their contracts.
Younger, healthier inmates, he found — who've come into the system since the war on drugs went into effect — are disproportionately people of color. Older inmates, who generally come with a slew of health problems, skew more white.
Steve Owens, senior director of public affairs for Corrections Corp. of America, one of the largest private prison companies in the nation, calls the study "deeply flawed."
In an email, Owens says, "CCA's government partners determine which inmates are sent to our facilities; our company has no role in their selection."
Furthermore, he says, "the contracts we have with our government partners are mutually agreed upon, and as the customer, our government partners have significant leverage regarding provisions." It's up to the contracting agency, he says, to decide how it wants to distribute inmates and manage health care costs.
Owens does not, however, dispute Petrella's numbers.
Gloria Browne-Marshall, an associate professor of constitutional law at John Jay College of Criminal Justice and a former civil rights attorney, says it's a "very interesting" study.
"What I take away from it is how prisoners are looked at as commodities," she says. "It's all about how the private prisons can make the most money."
Petrella says he used data compiled by state correctional departments, which are divided by census-designated categories and included African-Americans, Asian-Americans and Pacific Islanders, nonwhite Hispanics and Latinos, and essentially anyone except those defined by the census as white.
"I know these categories are fungible, but this is the data we have to work with," Petrella says.
Browne-Marshall points out that Petrella's findings don't necessarily point to a racial motivation on behalf of private prison companies, and Petrella agrees. "Profit is the clear motivation," he says. The racial component is more incidental.
However, he says, "the study shows that policies that omit race continue to have negative impacts." He says there's a larger dialogue to be had about what contemporary racial discrimination actually looks like.
Barry Krisberg, senior fellow at the Chief Justice Earl Warren Institute at the University of California, Berkeley, says the findings surprised him. "I had assumed private prisons were taking a lot of low-risk inmates," he says, "that if you went to a private prison, you'd find a lot of old, Anglo prisoners. That's not the case."
This raises questions about prison conditions for different kinds of prisoners. "The rate of violence is higher at private prisons, and recidivism is either worse or the same than in public prisons," says Alex Friedmann, the managing editor of Prison Legal News and the associate director of the Human Rights Defense Center, a group that opposes private prisons. Friedmann says part of the trouble is attributable to lower-paid, lesser-trained staff used in private prisons. But some of it, he adds, may be due to this higher-risk, younger population in private prisons.
So, Browne-Marshall asks, what are private prisons doing for their age-specific populations?
"Public prisons are devoting a lot of resources to the age-specific needs of their prisoners," she says, such as building medical facilities, bringing in highly paid medical staff, and providing expensive mental health care services. "What about the specific needs of the private prison population?"
Younger, higher-risk private prisoners need different kinds of services — especially since they're likely to get out of prison, back into society. And historically, younger prisoners are more likely to reoffend, which Browne-Marshall suggests addressing with education, drug counseling, anger management and other social services.
The trouble: While courts have intervened to require prisons to have good medical and mental health care as constitutional necessities — things that benefit older and sicker prisoners — programs that mainly benefit younger prisoners aren't usually required. (Another reason why they're cheaper to house.)
"How do we get corporations to do what the incarcerated person needs when the government's not dictating it?" Browne-Marshall asks.
That, she says, is the next question for study.
Owens says CCA offers "safe, secure housing and quality rehabilitation and re-entry programming at a cost savings to taxpayers. Our programming includes education, vocational, faith-based and substance abuse treatment opportunities." Each year, he says, CCA inmates acquire "more than 3,000" GEDs.
In compiling his data, Petrelle deliberately excludes private prisons with federal contracts from the study. He does so because a large portion of federal prisoners in private facilities are there as immigration detainees, not sentenced criminals. Were he to include federally contracted prisons, the disparities would surely be greater.
Federally contracted facilities also come with their own baggage and civil rights questions.
Federal prisoners in public facilities, as well as state prisoners in private and public facilities, have the right to bring lawsuits based on alleged civil rights violations. This means state inmates in California could sue the state prison system for providing inadequate health care. Arizona inmates in a private facility could do the same against the private corporation that owns their prison and against the state of Arizona.
However, federal prisoners in private prisons cannot bring such lawsuits, according to a recent U.S. Supreme Court ruling.
A prisoner of this status could sue for actual damages but could not bring a civil rights suit against a private prison — the kind of suit that usually forces major changes in how prisons operate in the public sphere.
"We've gotten to the point where courts intervene in public prisons, but only under extraordinary circumstances," Krisberg says. For federal prisoners in private facilities, there's even less legal recourse, he says.