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Private Prisons in America

UNIVERSITY OF ILLINOIS PRESS

Chapter One

Imagine what the results would be if the impact of mass incarceration on whites was comparable to its effects on blacks. If nearly 10 percent of all white people were placed under correctional control tomorrow, would there be a national outcry? Of course there would. But today's penal policies are not likely to produce this kind of nonracialized police state. Their character is instead to be found in America's intertwined histories of prisons, penal reform, and racism. -Alex Lichtenstein, "The Private and the Public in Penal History"

It is perhaps astonishing to realize that the Thirteenth Amendment to the U.S. Constitution-widely known for "abolishing" slavery-also authorized the "involuntary servitude" of prisoners as a punishment for crime: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." During the operation of the U.S. "Convict Lease" system from 1865 to the 1920s, the Thirteenth Amendment simultaneously enabled the continuation of racialized forced labor in the South at what was supposed to be the start of freedom for African American slaves. Upon release from their former owners' captivity, "emancipated" slaves often had nowhere to go-and found themselves designated "trespassers," "disturbers of the peace," "vagrants," or "loiterers" on their former owners' plantations (Shelden, 2001, p. 170). With white southern elites caught between the legal restrictions of abolition and the paramount need for cheap labor, Convict Leasing emerged as a uniquely southern solution for solving the postbellum labor shortage-and a powerful vehicle for the continuation of white supremacy. As W. E. B. Du Bois noted more than a century ago about Convict Leasing: "The South believed in slave labor, and was thoroughly convinced that free Negroes would not work steadily or effectively. The whites were determined after the war, therefore, to restore slavery in everything but name" (2002, p. 84).

Once imprisoned for petty crimes, former slaves, now inmates, were leased in large numbers to private vendors as a source of forced labor, to become the foundation of lucrative, profit-driven, white-owned businesses (Lichtenstein, 1996; Curtin, 2000; Mancini, 1996). As Randall Shelden writes about the Convict Lease system immediately after the Civil War, "One result of this practice was the shift in prison populations to predominantly African-American" (2001, p. 170). Shelden's data from Tennessee's Main Prison at Nashville indicate that blacks sent to prison increased dramatically after the Civil War, whereas the proportion of whites sent to prison decreased (see Table 1.1). After an initial service fee to the state for "lease" of the convicts, private vendors merely housed and fed laborers in their charge. Early industries utilizing convict labor included coal mining, logging, turpentine production, railroad construction, and farmwork (Mancini, 1996).

Developed in the context of the abolition of slavery, the Convict Lease system engendered a racialized but legal form of coercive labor practice, criminalizing the activities of newly freed slaves for being vagrants or paupers or migrants and sending them in large numbers to prison (Lichtenstein, 1996). As such, the Convict Lease system kept alive a racially disproportionate system of involuntary servitude-and a slavery-era understanding of captives as legally exploitable commodities. Not until organized free labor gained voice enough to remove rival convict laborers from the marketplace, in the early 1900s, was the Convict Lease system transformed into the strictly public works "chain gang" road crews of the "New South" (Oshinsky, 1996; Mancini, 1978, 1996; Hallett, 1996).

This book examines the reappearance of for-profit imprisonment in the United States and focuses specifically on the racial history of imprisonment for private profit. Although other forms of mercantile enterprise with prisoners existed prior to the Convict Lease system-for example, inmate labor contracts inside penitentiaries and short-term leasing of prisoners for work outside the prison-these arrangements were generally undertaken "with the expectation that the state would share in any surpluses" and were driven largely by prison administrators seeking to reduce costs (Feeley, 2002, p. 333). Modern private prison systems, like the Convict Lease system, however, reap profits for private owners and shareholders.

Prior to the Revolutionary War, private profit was also made by British, British colonial, Dutch, and other merchant shippers through the practice of transporting criminals, debtors, and eventually free indentured servants to the colonies for work on plantations. After the Revolution, the practice of transportation was stopped, however, exacerbating the colonies' reliance on slavery (Smith, 1965). After the Civil War, the Convict Lease system again reinscribed forced labor as a viable source of economic production. As W. E. B. Du Bois argued in 1901: "The Convict Lease system is the slavery in private hands of persons convicted of crimes and misdemeanors in the courts" (2002, p. 83).

The most striking thing about the reemergence of for-profit imprisonment in the United States, however, is not simply that it has reappeared, but that it should once again involve the disproportionate captivity of black men. During the two periods of U.S. history in which corrections policy facilitated private profit through imprisonment, first during the proprietary operation of the Convict Lease system and again today (since the mid-1980s), the incarceration of disproportionate numbers of African American males has been the industry's chief source of revenue. Although the nature of prisoners' commodity value has changed somewhat in modern times-prisoners are no longer profitable solely for their labor, but for their bodily ability to generate per diem payments for their private keepers-imprisonment for private profit is once again a viable economic industry in the United States.

According to the most recent data, 66 percent of inmates currently held in private prisons are racial minorities, with African Americans constituting the single largest group (43.9 percent) (Austin & Coventry, 2001, p. 41). For-profit prisons are predominantly located in the American South, with western private prison facilities in Texas constituting the single largest rival to southern dominance in this area (see Figure 1.6 below). It is only since the 1980s, however, that blacks began again to dominate U.S. prison populations, as the drug war reached full implementation (Wacquant, 1999, p. 215)-and only then that for-profit prisons reappeared. As discussed in more detail below, the incarceration rate for African American males in the United States is currently more than eight times that of white males and is largely a result of convictions for nonviolent drug and property offenders.

Race, Crime and Mass Imprisonment: Private Prisons Again in America?

As documented by Thorsten Sellin (1976), slavery and punishment have coexisted throughout history, in places as disparate as ancient Greece and Rome to nineteenth-century Russia and the United States. That the American Thirteenth Amendment simultaneously abolished slavery and initiated "involuntary servitude" in the United States speaks to the duality of slavery and punishment in the American context. As noted above, the Convict Lease system was wielded almost exclusively against people of African descent and was never extensively developed in the North (Colvin, 1997; Lichtenstein, 1996; Curtin, 2000; Ayers, 1984).

When certain segments of the population become the focus of such disproportionately high rates of imprisonment that incarceration becomes a common characteristic of their experience as a social group, David Garland suggests that a social phenomenon of "mass imprisonment" has emerged (2001b). Garland argues that "imprisonment becomes mass imprisonment when it ceases to be the incarceration of individual offenders and becomes the systematic imprisonment of whole groups of the population. [When] ... imprisonment ceases to be the fate of a few criminal individuals, and becomes a shaping institution for whole sectors of the population," more than just "crime control" is understood to be taking place (p. 2). In the midst of today's second era of mass incarceration of African American men, produced as a result of the recent "war on drugs," the renewed private commodification of black prisoners becomes all the more troublesome.

Whereas the private prison industry has reemerged today because of contemporary agendas in the U.S. criminal justice system-namely, the war on drugs-it is important to note that this drug war has focused on only a very narrow spectrum of drug use in the American population, specifically drugs used by African American men, namely, crack cocaine. As documented in Chapter 2, the aftermath of the Civil War also produced a period in which the most typical crimes of whites were overlooked while the criminal justice system focused on the most typical crimes of blacks. As contemporary self-report data indicate, for example, there is widespread drug use by white middle-class American teens-yet law enforcement raids by heavily armed SWAT-team drug-task force members storming through college dormitories seem ludicrous (Donziger, 1996, p. 115). As the Justice Policy Institute (2002) recently pointed out, there are far more African American men in prison than are currently attending universities in the United States. This is not to mention the ill effect the drug war has had on the problems of violence and family breakup in minority communities themselves (Rose & Clear, 1998). As Steven Donziger notes in his book The Real War on Crime: The Report of the National Criminal Justice Commission:

Given its impact on minorities, the drug war is a classic case where the treatment for the problem might be worse than the disease. After police raid a drug corner, drug dealers usually pick up and move their operation to another block to continue. Police could never really stop the drug trade, they could only displace it. In the process of that displacement, violence erupted as dealers jockeyed to control market share.... [T]he amount of trafficking, lawlessness, and violence in the United States increased along with the all-out attempt to capture, prosecute, and imprison traffickers and users of illicit drugs. (1996, p. 119)

Table 1.2 shows the disparities between white and black incarceration rates, particularly during the height of the drug war. As argued in more detail below, it was the hyperincarceration of black males in the early years of the drug war that resurrected the for-profit imprisonment industry in the 1980s. The events of September 11, 2001, as will be shown, are also enabling the industry to focus on newer "enemies," namely, illegal immigrants incarcerated through the federal detention process (Wacquant, 1999; see also especially Welch, 2005). In both cases, the imprisonment of darker-skinned "others" is used to sustain, expand, and rhetorically justify the profitable imprisonment of captives. As shown in Table 1.2, the incarceration rate for white males in the United States in 1997 was 990 per 100,000. The incarceration rate for black males in the United States for that same year, however, was 6,838 per 100,000.

That the historical pattern of racially distinct commerce in imprisoned human beings has returned in the United States, and that this commerce has been generated again by a crackdown on predominantly disfranchised minorities, reveals much about the operation and use of punishment in the United States. As the drug war got fully under way through the late 1980s and early 1990s, prisons became overcrowded with predominantly African American men. The disparity first appeared greatest in the South, and Corrections Corporation of America-headquartered in Tennessee-put forward its first contract proposal to capitalize on what became a classic supply-and-demand shortfall in prison space: high demand for imprisonment with low supply of prison cells. Figure 1.1 shows that by 2003 the incarceration rate was at an all-time high, with racial disparities among white, black, and Hispanic male incarceration rates in the United States profoundly high-and greatest for black males in the prime of life. "Mass imprisonment" indeed.

How can it be that in the United States of America prison is the predicted destination for whole classes of people-to the point where imprisonment has, once again, become a for-profit industry? As shown in Figure 1.2, during 2003, for every 100,000 black males in the United States aged twenty to forty-four, 36,932 of them were in prison. The numbers per 100,000 Hispanic and 100,000 white males the same age were 11,520 and 4,954, respectively. As shown in Figure 1.3, black males constitute the smallest numeric grouping of males in the population, whereas their rate of incarceration is nearly eight times higher than that of white males and more than three times higher than that of Hispanic males. Despite being the numeric minority, more black males than either white males or Hispanic males were state or federal prisoners in 2003 (Figure 1.4). A total of 2,085,620 prisoners were held in some form of confinement (state or federal prisons or in local jails) in 2003, which in this context is best viewed as a vast potential market opportunity.

The Argument Presented: A Race and Power Book

This book is about how race and power impact an important facet of the American criminal justice system, the reemergent for-profit imprisonment industry. Our discussion will of necessity examine the historical operation of the Convict Lease system after the Civil War. This is appropriate because the two times in U.S. history when black men have found themselves victims of hyperincarceration, during the operation of the Convict Lease system and again during the more contemporary war on drugs, private entrepreneurs emerged to capitalize on strong public sentiment against a "black crime problem."

The analysis of contemporary for-profit imprisonment offered here suggests private prisons are best understood not as the product of increasing crime rates (rates have been falling for many years), but instead as the latest chapter in a larger historical pattern of oppressive and legal discrimination aimed primarily at African American men. This history reveals a pattern of black offenders in particular being treated very differently than their white counterparts as both groups have coexisted in the matrix of capitalism, criminal justice, and American racial politics. By documenting that policy shifts focused on crimes committed disproportionately by African Americans preceded the rise of for-profit imprisonment both times it has emerged in U.S. history and that imprisonment of African American men has been the mainstay of for-profit imprisonment whenever it has emerged, this book explores how race continues to play a powerful role in the uses and forms of American imprisonment. This imprisonment-rather than being a force for justice-is today a mechanism for injustice and social stratification as powerful as any undemocratic state. As noted even by Alexis de Tocqueville: "While society in the United States gives the example of the most extended liberty, the prisons of the same country offer the spectacle of the most complete despotism" (Beaumont & Tocqueville, 1964, p. 47).

In short, this book offers a less than conventional view of how imprisonment operates in society-a view that questions the instrumentalist "crime control" version of incarceration by documenting historical and present-day discrepancies in the racial composition of inmates made profitable by the for-private-profit imprisonment industry. By showing how imprisonment serves numerous agendas other than crime control, this book also hopes to expand awareness about the expansion of imprisonment in the United States and to foster critical thinking about its use. That the for-profit imprisonment industry has so exclusively relied upon the confinement of minorities throughout its history reveals more about the social context of imprisonment than it does about the crime problem. The history of for-profit imprisonment arguably also reveals more about imprisonment's de facto social purpose: control of those who are different or labeled "dangerous," even for mostly nonviolent crimes.

Messages about punishment carry symbolic import for the social order. According to David Garland: "More than most legal phenomena, the practices of prohibiting and punishing are directed outwards, towards the public-towards 'society'-and claim to embody the sentiments and the moral vision not of lawyers or judges, but of 'the people'" (1991, p. 192).

(Continues...)

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Excerpted from Private Prisons in America by Michael A. Hallett Copyright © 2006 by Michael A. Hallett. Excerpted by permission.
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