Private Prisons And The 13th Amendment

If I was compiling a list of policies the next administration needs to change, it would be  truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.

Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense.  Often, however, it has simply been a new form of patronage.

Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.

Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.

The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.

What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.

The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…

Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”

This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.

Criminals should be jailed. Government clearly has the right  and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.

Put this reform on our very extensive list.

 

24 thoughts on “Private Prisons And The 13th Amendment

  1. If one considers redeploying all detention for alcohol and drug related offenders to rehab centers with programs designed for re-entry into society, would the remaining “man days” be sufficient for incentive profit to privatization? What wolf are we really feeding at the gate?

  2. Attached to the issue of private prisons, let us NEVER FORGET the children Trump has locked away in his cages. Racists love to vilify the BLM movement by arrogantly quoting the “all” lives matter catch-phrase. I would ask the Trumpanzees if that quote also includes children ripped from their parents’ arms and imprisoned. (ASKING FOR A KID IN A CAGE…..)

  3. I am a member of Indiana Public Employees Retirement Fund (PERF), the Indiana Public Retirement System (INPRS). In November 2017, we received notification to re-enroll by November 22nd in order to receive our January 2018 retirement benefit. “This means payment of your monthly pension benefit will now be handled by State Street.” I Googled State Street Retirement Services; “State Street Corporation is an American financial service and bank holding company. Second oldest U.S. Bank, on the list of banks ‘too big to fail’. INPRS is the state retirement for public employees, teachers, judges, police officers, firemen, excise, gaming & conservation officers, prosecutors and Legislators. We were REQUIRED by State Street Retiree Services to re-enroll our membership with them to continue receiving our retirement checks.

    I contacted my State Representative Dan Forestal, regarding what I termed “privatization”, who knew nothing about this (he said) and that he would have someone in his office research this and let me know. The person who contacted me stated this action was not privatization; they were simply changing from the private company who had been disbursing our checks for three years. We had not been notified of that earlier change and did not have to re-enroll to continue receiving our retirement benefits. Possibly Forestal knew nothing about this change due to his alcohol problem; after his 2nd DUI he resigned is Representative position to seek rehabilitation for his alcoholism and other problems.

    “Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.”

    I copied and pasted the comments above due to the issue of trash removal services in many areas of Indianapolis being carried out by Republic who issued their required much smaller trash bin be used. When my son contacted them for a much needed 2nd trash bin, he was told it would cost $68. Residents use their old version of trash cans which must be emptied as it is paid for by their property taxes. The city issued required trash bins a few years earlier and many residents still must use their older trash cans which are emptied so what did the City of Indianapolis accomplish? Who made money selling the city the trash bins required for our trash removal prior to Republic?

    Do the private prisons charge the state more per prisoner to house them than state operated prisons? Exactly what form of slavery is required by prisoners; this may have been true years ago when “chain gangs” were used by private companies who paid prison authorities for their labor.

    “…there are few governmental tasks less suited to “privatization” and the pursuit of profit.”

    Both trash removal and housing of prisoners are vital issues regarding health and safety of all citizens. As usual it is FOLLOW THE MONEY!

  4. i was in a ferderal prison,camp. the place was a restored college,every nut and bolt and piece of wood was restored to better than its original state.all by the prisoners..many had these tallents,and being a camp, first timers,non violent status, they actully wore their days down by being the working class we were.. not to intend to make that,it wasnt slavery,we were the workforce,by agreement with said institution now owned by the state, to gain a lease to use this place as a open prison..40% white,40% black,20% mixed races..i was able to meet with inmates who wore their years down,and get the last few years in this camp. some had come from private prisons..the years were 92/94. i spent my off time typing appeals for the ones who had nothing..we had 6 lawyers there,for various drug possessions..they corrected my work,and we traded our $.25 an hour for a ice cream at a commisary,open one day a week..this was the wage for any work by a inmate..looking back, ive been amazed that 2 corps house bodies for societies fear of what they have produced.. many of the inmates were sentanced from the manditory minimums as myself,for growing a roomfull of pot@39 years old..first time offense.. working class,no priors,got 5 years..as i was incarcerated,i met many,and seen how,small crimes,got people impacted for life,because society decided to warehouse people,so,they can sit and read about it in the newspaper,and like many,feel their safe and rewarded for having allowed a goverment to warehouse liives,over a simple task of expanding a economy and giving the working class a living wage,and equal treatment under the law..how many here know how much such a warehousing costs per person? in a private prison..that for profit goes into some investors pocket,and hes gleefully greatful that they can be assued,that income will always be there..instead of developing a living wage,whereas many,where i grew up, could be living the American dream,and working a job,to support themselves,and a community,instead of wall street.. i see private prisons,the actual buisness,as the lowest form of investment. its nothing but a buisness to screw people,for gain..and many a investment scheme has this as a binder to induce more,via, contracts by these asswipes,to influence the local/state courts to sign in and demand that they keep a capacity for thier services.. slavery,how about common decency? those border warehousings,costs about $400 a day per person,child,infant,and all,we hear is,how trumps gang secures borders..no one says,hey,im making a profit,while degrading human life,for my own needs,said whitey… we have as a society failed to recognise the value of life,and allowed people who have no moral code,to warehouse people,when we could have a vibrant society,by just having living wage jobs,and the dignity that becomes from that. private prisons,like ALECs idea, privatise it all,for profit,and watch our taxes we pay,go into some private investors pocket..as they gleefully fly a American flag..

  5. The courts are the only practical way to eliminate private prisons. Constitutionally, Congress can’t pass an act that would require states to operate their own prisons. That being said, it doesn’t seem likely that the current SCOTUS would ever move in that direction, regardless of the logic or the citations.

  6. And there are related issues….how much inmates have to pay private companies to make phone calls to their families….

  7. Ain’t capitalism grand?

    Pence knows how these programs work as well as the lotteries which were outsourced to the Italian mob. Kickbacks come in the form of cash, so they can’t be traced. The Irish mob runs the casinos – also cash kickbacks.

    Obama/Biden was actually cutting down the usage of private prisons, but then Trump got elected with donations from GEO and CoreCivic. Not only did Sessions (DOJ) reversed their course, they started using private prisons for immigrants. Once again, in some instances, Trump profited directly in his business entities.

    What they are doing in Washington with private companies and dark money is criminal, but if banks can launder drug money and stolen international monies, who’s going to hold someone accountable? It’s a cesspool!!

    If our Attorney Generals use their position to enrich people and corporations without negative consequences, why would they stop? Nothing is deterring them from abusing their positional power. When those donating (bribing public officials) also benefit financially, and the highest court in the land basically gives them a seal of approval, what do we expect will happen?

    What kills me is investigative journalists can uncover all these shenanigans, but if nothing happens to the guilty parties and voters elect a bunch of new crooks into office, greasing other corporations, what’s the point?

    And when journalists do point out the actual crimes, the journalist and their sources are harassed and jailed. Please read Julian Assange’s case.

    It’s probably one of the most corrupt institutions I’ve ever seen. Whoever coined the word “kakistocracy” was accurate.

    https://www.americanprogress.org/issues/democracy/reports/2019/08/30/473966/private-prisons-profiting-trump-administration/

  8. All the Indiana State Prisons, whether they are the ones classified as privatized or the ones that are not, use privatized medical services (Wexford Health), phone services (GTL), and inmate ordering of food and supplies (like Aramark and Union Supply). Families and friends are not permitted to send food, supplies, or medical supplies purchased at more reasonable prices, even though the former breadwinners in their families are unemployed.

  9. I have personal experience with a privatized prison in my own neighborhood. It was a work release center for non-violent offenders called Riverside Corrections. They were housed in a former hotel a few blocks from the house. It was run by a private company that got the contract through personal connections with the sheriff’s department. The had room for maybe 100 inmates. These people were required to go to a job and then return after work and stay in the facility.

    When it first started, it was a nuisance almost right away for the immediate neighbors. First of all petty crime and car break ins immediately increased in the area. But the worst part was the place had little slit windows, and drug dealers would show up in various places round the building and then the “inmates” would lower down baskets on strings doing drug deal in plain sight. This would go on all night, with shouting and hollering.

    There were numerous police runs from the Indianapolis Police department (not the Sherifs’s department, so they didn’t care), but there was no incentive for the operator to provide more security, nor did they care. Over time, the operator crammed more and more people into the building. The more people he could fit into the place the more money he made. It eventually got to the point where they have some 300 people in the place and nuisance factor must have increased by 4 fold.

    I will mention again, there was every incentive to cram as many people in there as possible. There was no incentive to make sure these people were really getting any kind of rehabilitation or counseling. There was no effort made to curb the drug dealing. I am sure the guys running this place had a big fat cash cow and there were going to make it last as long as they could.

    What finally made it unravel was the zoning variance on the property limited the occupancy of the building to 100 people. The operators were not willing to see the cash cow go on a diet and so they finally shut down, but it took 3 or 4 years effort by neighbors and the neighborhood. I don’t know what replaced it, or where, but it just might be too much to hope that a mess like that never popped up again.

    Perverse incentives can damage peoples lives. I hope the law suit is successful.

  10. Well, this is the way I see it IMHO.

    There is a fine line between for-profit and slavery!

    The average middle-class American is basically a commodity, used for tax dollars until there is no more use for those individuals through illness, death, or financial disaster!

    I do believe there should be 2 tax pools, one from the average American, and the other from corporations foreign and domestic.

    The tax pool that’s been contributed to by average Americans should be used for all things social. Healthcare, housing, nutrition, education, Social Security and a portion for community public works like local roads and bridges and waste management including but not limited to sewage treatment and trash pickup. Local law enforcement, judiciary, political infrastructure, And most importantly, politicians paychecks! The flow of tax money would be increased by eliminating the cut off point for the wealthy contributing to Social Security.

    The tax pool for corporations in which all loopholes have been eliminated, would go towards major infrastructure, nonprofit and for-profit. Healthcare, national law enforcement, military, disaster relief, all research and development (including health-related R&D, energy production, and the elimination of corporations to be involved in supporting politicians (Citizens United), because claiming corporations are people is ridiculous!

    Corporations need to be responsible for their own R&D and not living at the public trough, not looking for corporate welfare supported by the average citizen. If corporations expect the full weight and protection of the government behind them on the world stage, they need to contribute to the cohesiveness and health of the society in which they function. corporations tax rates are at a historic low, thus, allowing corporations to meddle in social affairs. From 71% in the 20s to practically nothing now. Hundreds of billions of dollars of wealth are being shifted from the middle class to the 1% every year!

    https://www.epi.org/publication/ib364-corporate-tax-rates-and-economic-growth/

    As of now, the average American is a slave to government, subservient to government, subservient to politicians, this is exactly the definition of slavery, the average citizen is nothing but a commodity, and, like I mentioned above, when the commodity is used up, it’s Remnants Are tossed in the trash bin.

    The priority should always be and should always have been the health of society and the average American citizen, “that includes the poorest of us.” With the wellness of society intact, that rising tide will lift all boats including corporations.

  11. You’re right about the worker being a commodity, John. However, it’s a commodity that produces profits for its employer. After paying himself for his wage, what happens to the excess productivity?

    Every study and statistic on this subject points to CEO salaries and the stock market.

    Who has benefited directly from the increased productivity of the wage-slave?

    There is a massive theft occurring in this country and others—all on the backs of the working class who so far seems to be fine with it. In the USA, only 10-12% of workers have a union to protect the workers from being taken advantage of; they might as well be 0% because the remaining unions are thieves.

    Therefore, to counter the prevailing Fascistic winds running our country, what form of socio-economic government would the working-class turn to once they recognize how much power they possess? 😉

  12. Boss Tweed in NYC and others had their patronage workers. Competence on the job was not a requirement – Getting out the Vote was the primary job. The sponsor or person who doled out the patronage jobs expected absolute loyalty.

    Privatization was a way to create monopolies for particular services and a cash cow for the owners, think of the parking meter deal our ex-mayor here in Indianapolis set-up.

  13. Privatization of prisons has been a disaster. As an attorney, I’ve dealt with the privatization of prisons and jails in Indiana. The companies get long-term contracts and there is virtually no oversight over how they run the prisons/jails. And it is hard to get people to care about what happens to the people in those facilities.

    I tried so hard to get our council to look into what was going on with the privatized Jail #2 in Marion County. I got one Republican somewhat interested and zero Democrats. Of course, a Democratic Sheriff at the time was, supposedly, responsible for overseeing the jail contract and was not doing his job.

    What I would like to see ended during a Biden presidency is federal civil forfeiture. (I’d like state civil forfeiture ended as well but the feds probably can’t stop that on their own.) No questions were asked about civil forfeiture during the D’s primary. Frankly, I’m not sure Biden and Harris would oppose its elimination…though if pressured from the party ‘s left flank I think they might take that position. I’ve worked to stop, or at least reform, civil forfeiture in Indiana and I always got more interest from Republicans than Democrats, which I always thought was weird since it’s a civil rights issue. Perhaps that’s b/c Republicans are by nature more anti-government.

  14. Julie brings up a good point. While Indiana thankfully doesn’t have much in the way of privatized prisons, thank God, many of the services in those prisons have been privatized. Food service, medical service, etc. are privatized.

    That may not be a bad thing if there is oversight and the providers get short-term contracts. But that’s rarely the case. Prison medical care is atrocious. If you have HIV for example, they might opt to give you cheaper drugs rather than a more expensive and more effective cocktail of drugs. I saw that all the time.

    I’ve always wondered about this issue…how can private food service companies like Aramark use prisoners for labor w/o paying them at least the minimum wage? Why are they allowed to profit from prison labor? That might be a 13th Amendment issue.

  15. One concept that we have all heard about but most people don’t think about is that socialism and capitalism differ only in terms of who owns the means of production. In markets served by socialism we all do, meaning all tax payers. In markets served by capitalism some of us do, some meaning a single person for many small businesses up to a large corporation with many thousands of stock holders. BTW, the management of those stockholders is somewhat funky too. When new shares of stocks are sold it’s a means of corporations to borrow money (which they never have to repay) for capital expenditures which are up front investments for creating the means of production. As soon as those shares hit the stock market over time the original lenders of capital sell their rights to be repaid to others who gamble on whether the price will go up or down. Profitable corporations manage stock prices by paying out some of their profit in dividends which “sweeten” the value of the stock. Why do they care? Nowadays they care because some bright MBA sold corporations on paying the executives with stock options which allows them bargain gambling only if the price of shares goes up. Of course the less they can get away with paying workers the more profits there are and the executives clean up on their stock price betting.

    The reason for detailing all of this is that over my career the corporation that I worked for by far the majority of my career went from rewarding workers with profit sharing through very significant annual bonuses to instead paying executives only with huge stock options. That is probably more than any other change, even the Trump tax plan, the biggest contributor to wealth redistribution up over the last few decades.

    Why do we choose to use socialism in some markets and capitalism in other markets? Capitalism only is viable in markets rife with competition, otherwise it’s a license to steal from customers. Socialism is managed by those we as residents here choose to govern us. We as customers of socialized businesses control what those businesses charge us by who we vote in and who we vote out.

    Bottom line is that election day also determines if we as customer/tax payers are happy with the financial management of our citizen owned businesses or not. Trump of course ran by creating the illusion that he was successful business man when in fact he was a total failure at it but offset that by his use of his personal brand as a celebrity, being paid for his celebrity based on his creation of it.

  16. From my understanding, Paul, the Deep South red states use private prisoners for many manual labor jobs. People of color are locked up for drug charges and other low-level offenses to provide cheap labor for surrounding companies. I believe AZ private prisons use immigrants primarily for cheap labor. It’s an actual worker-slave pipeline — lock them up for use as cheap laborers.

    I would say the wardens and guards may be getting kickbacks galore on that racket. 😉

  17. “Government clearly has the right and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people.” –From Sheila’s summarizing paragraph.

    Seems clear and correct to me, but unfortunately a lot of Americans disagree with the concept and the practice being the clear, right or duty of government.

    Be that as it may, I am drawn to the phrase, “otherwise sidelining dangerous people”. It seems to me that private prisons would be permissable within the broadest meaning of this phrase…unless the phrase and its concept is meant legally to bear the narrowing assumption that otherwise sidelining dangerous people is limited to only the bounds of government administration.

  18. Paul:
    “I’ve worked to stop, or at least reform, civil forfeiture in Indiana and I always got more interest from Republicans than Democrats, which I always thought was weird since it’s a civil rights issue.”

    You may see it as a civil rights issue, but Republicans see it as a property issue–and property to Republicans is more valued than civil rights.

  19. Todd,

    You are absolutely right. I would urge people to watch the documentary “Slavery By Another Name” on this very subject.

    http://www.pbs.org/tpt/slavery-by-another-name/home/

    In terms of documentaries, it is one of the best I have ever seen. I learned so much about how slavery was not really stamped out by the 15th Amendment…it continued on via peonage until FDR finally ended the practice.

    I’m sure the book of the same name is excellent as well.

  20. Todd and paul,

    I can’t disagree with any of your comments whatsoever. That’s one reason why I said that there should be two tax pools. Corporations need to be taxed at a much higher rate than American citizens!

    Instead of letting corporations suborn society, they must be forced through tax laws to support civil society human rights and human dignity! With the 1% already having the social security limits removed, they would have to pay social security on all of their earnings no matter how high they went. This would add a tremendous amount of money into social services.

    After a certain amount, corporations would have to inact profit sharing protocols! This would PAY the employees FOR longer hours and their production quotas that go above and beyond.

    Look, I’m all for a socialized form of government, because that doesn’t mean something nefarious, it means dignity for the workers. The dignity to be able to provide for themselves and those that they care for and are under their purview. And, I would like to know why so many conservatives Roil about socialism, heck, Jesus Christ was a socialist, Christianity is socialism! So for Christians to Roil against socialism, is just laughable hypocrisy at the highest level. One would have to make sure though, that fascist religious right-wing nationalism would not creep in to the social construct as it did in Nazi germany, and as being attempted here!

    Corporations have a responsibility to civil society, because that civil society is the entity that purchases those corporations goods and services! Civil society is government, not the other way around!

  21. Prisons are part of the justice system. I wonder whether that word appears anywhere in the contract between the government and the private prison companies?

    The interests of the public are served when rehabilitation efforts are made by the incarcerating institution/company. Do they have a responsibility to make any efforts in that direction?

    The concept of tying profit to incarceration, and all the abuses that might entail, is so outrageous as to place it outside the realm of reasonable people’s thinking.

    How are private prisons overseen and evaluated by the government? That process sounds difficult and costly. Is that factored in when determining whether the practice saves tax payer money?

    Much power (responsibility) has migrated from Congress to the president to avoid congress persons from having to answer for their actions to their constituents. Are private prisons just a government tactic for shifting a key responsibility elsewhere?

  22. Within John’s clever idea of a separate tax pool for corporations there could be a graduated tax employed, its various fluctuations depending on such factors that Congress would determine. Thus, startup corporations would not be burdened with untenable taxes, while all other corporations pay their fair share.

    Also, John, in reference to: “Corporations have a responsibility to civil society, because that civil society is the entity that purchases those corporations goods and services!”

    I would add: “and because civil society provides goods, services, infrastructure, legal system, labor, and a protective military that enable those corporations to function.”

    I used that argument in a coffeeshop debate and found much opposition from Republicans. What I followed with was…

    Civil society–with its government–has the power to deny natural resources (goods) to corporations, so what would happen to corporations if natural resources were denied?

    So, what would happen to corporations if the services of the US Postal Service were denied?

    So, what would happen to corporations if infrastructure (roads, bridges, deep water ports) were denied?

    …if legal functions(ability to enforce contracts, etc.) were denied?

    …if the military’s ability to protect shipping lanes and air routes were denied?

    And if labor were denied to corporations, where would corporations get their CEOs, lawyers, drivers, pilots, yacht captains, secretaries, and bean counters?

  23. Very excellent comments Larry!

    I appreciate the shout, of course, I have no authority or power to promote any of this, my soapbox is a might on the short side, 😱

    And I absolutely agree, it’s time for the corporations to step up to the plate and take the burden off our civil societal citizens.

    They benefit from this government’s protection, the people’s governments protection! There needs to be some sort of reciprocal relationship.

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