Smoke and Mirrors is a new series that dives into the details of "bipartisan prison reform" to reveal the right-wing, neoliberal carceral sleight of hand that's really at work. It asks hard questions about the content and consequences of various proposals and explores ways in which commitments to unregulated free markets, privatization and states' rights drive the agenda for a new generation of reforms that will reinforce structural racism, intensify economic violence and contribute to the normalization of a surveillance society. Just as this week's Smoke & Mirrors article was going to press, an essential new resource was announced:"The Treatment Industrial Complex: How For-Profit Prison Corporations are Undermining Efforts to Treat andRehabilitate Prisoners for Corporate Gain," is a groundbreaking report that exposes the ways in which for-profit prison corporations are adapting to historic reductions in prison populations by seeking out new markets previously served by non-profit behavioral health and treatment-oriented agencies. The report highlights the expansion of the incarceration industry away from warehousing people and into areas that traditionally were focused on treatment and care of individuals involved in the criminal justice system -prison medical care, forensic mental hospitals, civil commitment centers, and 'community corrections' programs such as halfway houses and home arrest.
How did Marissa Alexander – a domestic abuse survivor who attempted to defend herself against her abusive (by his own admission), estranged husband without hurting him or anyone else – end up in home detention, awaiting a new trial when her original conviction on charges of aggravated assault was overturned, having to pay $105 each week for the use of an ankle monitor and $1000 per month for the cost of her bond?
How is it that a person placed on "probation" for a minor traffic offense – having an expired driver's license or license plate, for example – ends up owing hundreds, perhaps even thousands of dollars, and, in new iterations of debtors prisons, may end up in jail?
How is it that promises to make the safety and educational well-being of school children a priority could so easily, if we are not vigilant and fail to be relentlessly persistent advocates, morph into spending on more armed police officers in schools [PDF] and approaches to "truancy prevention" that rely upon electronic monitoring?
How is it that promises to help prisoners and former prisoners successfully transition back into their communities turn into frenzies of profiteering fraught with corruption and abuse?
How is it that, as a society, we have endorsed the idea that persons in prison or under the control of "community corrections" should be seen as commodities, [PDF] and that private, for-profit services – prisons, immigrant detention centers, and "community corrections" – often rely upon quotas guaranteed by federal or state law or written into contracts?
And how is it that so-called "reform" measures, marketed as reducing prison populations, will ultimately widen the net – that is, place more people, disproportionately poor and of color (especially black people), under "correctional" control in the United States?
To grasp the "how," we can turn to illusionists, hucksters, and carnival pitchmen for insight. Like all forms of sleight of hand, the "how" springs from, plays to, and manipulates a variety of public perceptions, hopes, and expectations bound up in the alluring phrase "criminal justice reform."
Most of us want to believe the promises to reduce the prison population, reduce public spending on incarceration, end the injustices of the so-called War on Drugs (especially for those convicted of minor offenses), and interrupt the wrongs of overzealous prosecution. And we want to believe so badly that we tend to fall for the PR talking points without asking the hard questions about the reforms. But when we don't, in the long run, the results will not be what we thought we were getting.
Much of this sleight of hand is powered by the reassuring rubric of "community corrections" and "alternatives to incarceration." The implied promise is that even as thousands upon thousands of people imprisoned for minor offenses are released, hundreds of millions of dollars saved will flow seamlessly into public schools, excellent community mental health centers, and other essential forms of civic infrastructure. This is a classic example of misdirection, an art long practiced by magicians, con artists, grifters, and publicists:
"People tend to think of misdirection as the art of making someone look to the left while some fast move is being pulled on the right. But really, it is more often about force-focusing your spotlight of attention to a particular place at a particular time." –Neuroscientists Stephen L. Macknik and Susana Martinez-Conde, Sleights of Mind: What the Neuroscience of Magic Reveals About Our Everyday Deceptions
At the heart of misdirection is the con artist's attempt to localize our attention, to point it in a particular direction, toward a particular conceptual path, or "frame." Once focused in that direction, we have a tendency to fail to look beyond that frame.
What's happening outside the frame?
And that's where we should turn our attention – to the shadow side of the street. Because that's where we'll see the realities the talking points and "bipartisan" PR blitz leave out. That's where we'll begin to answer the "why" that misdirection obscures.
We want reforms to be relatively easy. We don't want to have to think about them too much. "We have to start somewhere," we say. "Then we can build on that." And, for reform measures that do not in some way enable expansion of the prison industrial complex or support the fiction that neutrality in legal language erases structural racism this might be true. But for reforms to move incrementally in the direction of dismantling mass incarceration and the prison industrial complex, there would have to be clear strategies for dismantling structural racial, gender, economic, and disability-related violence.
The voices of the communities most harmed by structural forms of violence, including mass incarceration, must be represented centrally in discussion, debate, and decision making. Otherwise, there will be changes, but long-entrenched forms of exploitation, violence, and criminalization will remain intact.
To see the future of this new generation of reforms driven by the agendas of the Texas Public Policy Foundation, Right on Crime, ALEC, and the Council of State Governments, and uncritically embraced by many moderates, liberals, and progressives, we can look at what's already happening: in the words of Paul Krugman, part of "a nationwide drive on the part of America's [R]ight to privatize government functions." And it is a juggernaut.
The focus here is on just two of the major elements of community corrections reform. "Community corrections" is an imprecise but infinitely elastic term referring to placement of people convicted of or cited for offenses under some form of community supervision: halfway houses, work-release programs, "community-based correctional facilities," home detention and electronic monitoring, drug courts and mandated drug treatment programs, and "offender-funded probation." Some people are directly sentenced to community corrections; others are released from prison into "re-entry" programs. In the United States in 2013, almost five million people were on probation or parole. But community corrections are also thriving because there is a relatively new flow of people who have been cited for various "low-level," misdemeanor offenses.
What's being built should give us pause because it challenges none of the foundational elements of mass incarceration even as it fuels the expansion of the prison industrial complex. Here is a brief look at just two of the major elements of "community corrections" reform.
Re-Entry Halfway Houses
People coming out of prison and returning to their communities should have ready access to the kind of transitional supports designed to help them with successful community re-entry: decent housing, job counseling and employment at liveable wages, appropriate health care, treatment for addictions when needed, and other social supports for low-income individuals and families. Under the rubric of "community-based corrections," halfway houses, treatment centers, and other transitional programs, publicly funded but increasingly operated by for-profit companies and corporations, purport to provide these supports. Some are operated independently; many more are owned by corporations created to cash in on the trend; still others operate as arms of private corrections giants CCA and The GEO Group. But deceptively worded promises seldom match reality.
Federal prison data reported a drop in the New Jersey prison population from 30,000 in 2002 to 25,000 in 2012. State officials claimed that the success was due to the creation of large halfway houses – renamed "treatment centers" – intended to serve offenders nearing the end of their sentences, an initiative launched in 1990. In these centers, inmates are assessed in order to receive appropriate treatment from a spectrum of services intended to help them with successful community re-entry and to avoid recidivism. The concept, created to reduce the cost per inmate, was embraced by Republican and Democratic state officials and touted as the wave of the future – and an opportunity for private business interests to stake direct claim to hundreds of millions of dollars. Such purported savings, however, have their own costs. In 2001, the federal government reported [PDF] that "cost efficiencies" in prison privatization, to the extent that they exist at all, are achieved primarily by reducing labor costs:
"This point of containing labor costs is the crux of the privatization movement. Prisons are extremely labor intensive, with approximately 65 to 70 percent of the costs of operating a prison going to staff salaries, fringe benefits, and overtime. Controlling these costs is more difficult to achieve with unionized government workers. Private firms typically use nonunion labor, allowing for the lowest benefit packages." – U.S. Department of Justice
Even so, the same federal report and this 2010 report from Arizona, suggest that privatization is not the fiscal savior it is purported to be. The enormous magnitude of savings envisioned "simply hasn't materialized."
Nonetheless, seeking to reassure residents that the profit motive wouldn't be at the forefront of this reform, New Jersey law mandated that only nonprofit organizations be permitted to contract with the government to provide community correctional services. It's instructive to take a quick look at the two largest "nonprofit organizations" providing most of New Jersey Department of Corrections (DOC) treatment center beds. The dominant vendor is Education and Health Center of America, a nonprofit organization created to legally receive government contracts. It provides no services itself, but contracts with the for-profit Community Education Centers (CEC). While this appears to violate the spirit, if not the letter, of the "nonprofits only" law on contracts for community corrections, and despite the fact that the same man heads both groups, New Jersey officials say it is all quite legal. John J. Clancy serves as the CEO of EHCA and chairman of CEC. Between 1997 and 2011, EHCA received about $400 million from the state; $390 flowed to CEC.
When services are contracted out to private entities by any government, there is potential that political influence and money will corrupt the process. In order to create the illusion of greater transparency, New Jersey's "pay to play" laws require that a business with more than $50,000 in government contracts disclose, on an annual basis, its political contributions. But wait. There is a loophole: since 2008, nonprofits have been exempt from these laws. But how much difference could that make? After all, federal law prohibits nonprofits from contributing directly to political candidates and campaigns.
There's always a way around such prohibitions. John Clancy, a Democrat, enjoys a close association with NJ Governor Chris Christie, a Republican with a strong interest in running for the presidency. Both Clancy and CEC have donated generously to Christie and his inauguration festivities. CEC also donates to both Republican and Democratic governors associations – but primarily to the Republican group. William J. Palatucci, once a registered lobbyist for CEC, and former senior vice president, and counsel for operations is a former law partner and longtime close friend and political associate of Christie's. He helped run the governor's election campaign and today is a trusted political advisor. In 2012, amid controversy that ensued following a New York Times series exposing the problems that plague New Jersey's halfway houses, Palatucci stepped down from CEC.
CEC, in fact, is an expanding presence in for-profit community corrections beyond New Jersey. It now provides services in 18 states, including California, Pennsylvania, Florida, Texas, and potentially Mississippi – and so might be something of a poster child for how the growing push for community corrections in a number of states might play out. The Kintock Group, operating almost exclusively in New Jersey, is the second-largest nonprofit vendor for community treatment centers in New Jersey, receiving almost all of its revenue from government contracts. New Jersey's for-profit community corrections industry has always had a very special champion in Gov. Chris Christie, a former lobbyist for Community Education Centers who today not only enjoys close relationships with (and large campaign contributions from) the profiteers, but touts New Jersey's privatized re-entry centers as "representing the very best of the human spirit." As a new governor in 2010, he insisted on significant budget cuts in many areas (especially social spending), but sought increased funding for privatized treatment centers.
And what's happening inside those centers? Sam Dolnick's multipart series "UNLOCKED: Inside New Jersey's Halfway Houses," exposes horrendous problems in New Jersey's privatized community corrections system.
To begin with, that system relies on a work force that is poorly paid, inadequately skilled, and expected to cope with inadequate resources. The centers are understaffed; night shifts are particularly problematic. There's large turnover in the work force for these reasons and also because staff find themselves facing situations they are not equipped to deal with and that they feel are dangerous both to themselves and inmates. Documented abuses include sexual and other forms of physical violence and rampant drug trafficking and use (staff are implicated). There are no consistent, effective accountability mechanisms. Dolnick noted, for example, that when a female inmate at New Jersey's "Bo" Robinson Assessment and Treatment Center, assigned to a cleaning crew, was sexually assaulted by the janitor supervising her, she was simply transferred to another facility. A police detective interviewed her, but there was no followup. The janitor was fired, and that's as far as it went.
In 2009, officials in Mercer County officials grew concerned about drug use at the purportedly drug-free Bo Robinson facility; their surprise drug tests revealed that 73% of inmates tested positive for drugs. Staff members, inmates, and state records confirmed the widespread availability of a wide variety of drugs. Even as the evidence mounted, New Jersey corrections commissioner, appointed by Gov. Christie, continued to insist that policy enforcement of drug-free environments is "vigilant." What happened to those who tested positive in the Mercer County surprise test? They were transferred back to jail. What happened to the Bo Robins halfway house? Nothing. In fact, CEC reports stellar drug testing results. There is evidence that treatment records are falsified. Required to prove to state and county officials that inmates were being rehabilitated, officials and workers at Bo Robinson reported various forms of identical counseling/treatment reports for as many as 30 different inmates. Counselors sometimes copied colleague's progress reports and submitted them as their own. Documents were altered to say inmates who had taken no drug tests had passed them.
In many respects, the shoddy-to-nonexistent provision of many treatment services resembles the nightmare of prison health care and its privatization, a topic explored in "Prison Health Care as Punishment." We are permitting a horrific aspect of prisons and jails, whether publicly or privately administered, to be replicated in the world of community corrections. Recognizing the yawning accountability gap in New Jersey, and wanting to be on the right side of the issue, the Democratic-controlled state legislature passed a tepid measure requiring the state's Department of Corrections to provide more information about treatment center operations to the legislature. Citing the too-burdensome nature of these reporting requirements, Gov. Christie weakened them through use of a line-item veto. Business continues as usual.
The problems are not specific to New Jersey; they are endemic in privately-operated halfway houses, with corruption and abuse scandals ranging from Georgia to Ohio to Colorado to Oregon to Alaska and all points in between.
We tend to hear familiar words and presume they mean the same thing they always did. That's a dangerous assumption.
Take the word "probation," for example. Many of us think of the model in which the government provides community supervision for individuals on probation for both felony and misdemeanor offenses. Typically, a person is entrusted to receive community supervision so long a she or he keeps appointments with a probation officer and meets certain behavioral conditions for a set period of time. If the person was successful in meeting these requirements, she or he no longer faces the possibility of jail and was no longer under correctional control. Probation was publicly funded, and tended to be reserved primarily for non-violent felonies and/or first time offenders.
That began to change in the 1970s with the introduction of private probation services. The first seems to have been created in Florida, where the state contracted with the Salvation Army to run misdemeanor probation services. Later, other state governments began to contract with secular private probation companies. The industry is thriving now in at least a dozen states, and probably more. The relief to law enforcement and correctional budgets is enormous because it shifts the costs of administration from courts, counties, and municipalities to the "offender." Some states, like Alabama, rely on this income rather than taxes to support municipal courts. (We should note, however, that this practice does levy a severe and discriminatory, though undeclared, tax on poor and low-income people.) Others, like Montana, statutorily require contracting with private organizations for "offender-funded" probation at the local level.
But a much higher cost is being exacted – not only from the nameless "offenders," whom we are encouraged to regard with indifference if not outright contempt, but also from society. This industry is built upon disdain for poor and low-income people, and a determination that their wretchedly limited resources should not only support the illusion of administration of justice but simultaneously provide private business owners and courts with new revenue. Moreover, it is a system that, presuming guilt, exerts greater punishment – escalating fees and sanctions, including incarceration – as time goes on. This is the meaning of "widening the net."
In order to understand the nature of privatized probation, documented extensively by Human Rights Watch in its landmark report Profiting from Probation: America's 'Offender-Funded' Probation Industry, we have to understand its target demographic, poor and low-income, nonviolent, "low-level" offenders:
"Every year US courts sentence several hundred thousand misdemeanor offenders to probation and place them under the supervision of for-profit probation companies. These companies charge courts nothing for their services. Instead, they charge those they supervise a range of fees that sometimes become exorbitant – often with minimal judicial or government supervision of how they treat probationers or how much money they collect from them in fees....Many of those affected are guilty only of minor traffic offenses and would not be on probation at all if they had the money to pay their fines immediately." – Human Rights Watch
It's an ethically bankrupt business model, marketed as an "alternative to incarceration," that feeds on demonizing poor people, disproportionately people of color, and then making them pay and pay and pay. In reality, the model most resembles the predatory payday loan industry. The New Yorker calls it "Get Out of Jail, Inc." There is little oversight of the private companies, and even less accountability for their abuses and strong-arm debt collection tactics, which are often also directed against family members and friends of those under supervision.
But there is a safety valve for the incarceration industry, too. Despite a U.S. Supreme Court ruling – Bearden v. Georgia, 461 U.S. 660 (1983) – that courts cannot imprison a person for failure to pay a criminal fine unless the failure to pay is "willful." But the ruling is generally ignored. The result: people who can't pay and pay and pay can be sent to jail; it's the contemporary version of debtors prisons and symbolic of the continuing debasement and degradation of the American justice system.
What do people actually owe to these companies in fines and supervision fees? Harriet Cleveland, an Alabama mother of three, was ticketed for traffic offenses. She could not pay her fines in full and so was sentenced to two years of probation with a for-profit company, Judicial Correction Services (JCS), one of the industry behemoths. The only job she'd been able to find was as a part-time custodian, for which she was paid $7.25 per hour. JCS required her to pay $200 per month, $40 of that amount going to supervision fees, to settle fines amounting to several hundred dollars. She scraped to find the money, and even turned over a $2,000 tax rebate to JCS, only to discover, over time, that she now owed almost $5,000 in fines and fees. As she fell behind on payments, JCS employees dunned a number of her relatives, threatening to send her to jail if the debt wasn't paid. Eventually, she did go to jail. She was among the few people whose dilemma comes to the attention of attorneys fighting such injustice. The lawsuit filed on her behalf – alleging denial of Cleveland's right to counsel, due process, and equal protection – not only got her released from jail, but has exposed negligent court handling of fines she had paid and JCS financial practices that sometimes steered most or all of a payment into their own coffers without applying funds to reduction of her court costs.
Human Rights Watch describes basic supervision fees, ranging from $35 to $100 per month, as the financial cornerstone of the private probation business. Supervision generally equals debt collection; no other probationary service is provided, except at additional fees. A court may mandate drug testing or a private probation company may offer additional courses, provided the person being supervised pays for them. For the people on low and limited incomes who have to pay over time because they cannot afford to pay the full amount of their fines all at once, supervision fees are a mechanism that escalates the penalty.
These arrangements also place those who are supervised under the thumb of private companies that are granted enormous discretionary powers. Some are given the authority to prepare arrest warrants or to insist on electronic monitoring devices not originally ordered by the court. Other litigation challenges the right of another private probation behemoth, Sentinel Offender Services, or any other private probation company, to impose requirements that were not ordered by the courts
In the end, this system keeps poor and low-income people trapped in a hydraulic of injustice. What are the long-term implications for sentencing reforms that emphasize community corrections for low-level offenders?
What Kind of Reform?
These travesties of injustice reinforce and expand structural violence, but they go forward in the name of reform. They are happening not only because politicians lack the political integrity and will to challenge privatization and stop corruption abuses in their tracks, but because some of them are deeply and personally invested in the business. They are happening because more and more public revenue, services, and resources are being transferred to private interests who, at present, are not being held accountable in any significant way. They are happening because we don't really want to be bothered. They are happening because we want to believe that the problems are a result of "a few bad apples" instead of foundational and systemic.
And they are happening because, along with the politicians, we haven't been asking harder questions or inquiring too deeply into what actually happens to human beings caught up in an increasingly for-profit corrections system. And they are happening because beyond the politicians and the profiteers, there are not yet enough of us saying that most of these people should never be in jail in the first place and that prisons are no solution at all to the problems of violence and injustice. There are not enough of us challenging the broad discretionary authority of law enforcement officials – and increasingly, their private counterparts – to determine who will and will not be policed and punished, too often in ways that are Kafkaesque.
We want more people released from the American gulag, of course. But what is there for them upon their release? A community in which they are embraced, welcomed, and provided basic social and economic supports – or only more profit-based ventures controlling their bodies and curtailing their life chances?
Mariame Kaba, director of Project NIA, a grassroots organization that seeks to end youth incarceration, says that for her, "a test of whether a reform is worth pursuing depends on if it is strengthening and reinforcing the prison or if it is helping to ultimately dismantle it."
It's a good test, but one that the major foundations and large nonprofit advocacy groups interested in criminal justice reform aren't yet embracing.
That leaves the task to truly progressive, cross-constituency social movements and advocates who aren't afraid to ask the hard questions – and do so with courage, creativity, and radical imagination – in order to find better answers.