Some measure of justice in an injustice system?

August 25, 2016

Critics of the criminal injustice system have reason to cheer two announcements from the Justice Department--but as Nicole Colson reports, there's a long way still to go.

TWO STEPS taken by the Obama administration's Justice Department are raising questions about the possibility of winning reforms to the U.S. prison system.

Earlier this month, the Justice Department instructed the Bureau of Prisons (BOP) to begin phasing out the use of for-profit detention facilities for federal inmates. In addition to citing the cost, department officials said that such facilities often lack services for inmates and have a poor safety record.

"The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource--and these services are essential to reducing recidivism and improving public safety," Deputy Attorney General Sally Yates wrote in a memo to the BOP.

In 2014, the Bureau of Prisons spent $639 million on prison contracts at with three corporations--Corrections Corporation of America, GEO Group and Management and Training Corporation--at a total of 14 facilities. Currently, some 22,000 federal prisoners are housed in for-profit prisons.

A for-profit prison run by Corrections Corporation of America
A for-profit prison run by Corrections Corporation of America (Student World Report)

Yates' memo directs the BOP to either not renew contracts with private prison operators or substantially reduce the number of beds contracted for, with the aim of phasing them out altogether.

THE PROBLEMS with for-profit prisons are well known. In a report released earlier in August, the Justice Department's Inspector General Michael E. Horowitz found that private prisons had higher rates of assaults, both by inmates on other inmates and by inmates on staff; a higher rate of lockdowns; and a higher rate of incidents of disciplining inmates.

Among three private prisons inspected for the report, all were "cited by the BOP for one or more safety and security deficiencies, including administrative infractions such as improper storage of use-of-force video footage," the report said.

Horowitz's researchers also found that two of the three prisons were improperly housing new inmates in "Special Housing Units"--essentially solitary confinement units that are designed to be used as punishment and which, when used long-term, amount to torture, according the to the United Nations.

Activist groups and prisoners themselves have been attempting to shed light on conditions in for-profit prisons for years, including protests within the prisons themselves.

In August 2014, for example, 140 prisoners at the Northeast Ohio Corrections Center in Youngstown--which housed federal prisoners until the BOP cancelled its contract last year--held a 14-hour protest, refusing to come inside from the yard. According to the ACLU, "The protesters objected to unsanitary food conditions, lack of medical care, inadequate programming, and the unfair use of solitary confinement."

It's no wonder that private prison operators have such a dubious record when it comes to safety and treatment of prisoners. As a "business," their priority is to keep costs down--which translates into cutting corners at every step.

As investigative journalist Shane Bauer--who went undercover as a corrections officer in a CCA-run prison in Louisiana--reported in a feature article for Mother Jones, the human resources person who contacted him after he filled out an application online didn't ask about his qualifications.

The job paid only $9 an hour, but there was an upside, the human relations person said: "[T]hey say you can go from a [corrections officer] to a warden in just seven years!"

ANY REDUCTION in the use of for-profit prisons should be welcomed. As Lichi D'Amelio wrote in an article for Jacobin:

For this undeniable victory, we have countless activists--sung and unsung, from myriad organizations--to thank. For decades, they've organized in various capacities to unearth the stories buried behind prison walls, helping effect a shift in public consciousness about prisons and the tortuous conditions in which they hold inmates. Bravest of all have been those organizing and resisting on the inside.

The Justice Department's decision may provide opportunities for activists to build on going forward. For one thing, it has to be asked why, if the Obama administration considers for-profit prison operators to be too dangerous and inhumane for federal prisoners, it has embraced the use of them for undocumented immigrants?

In fact, as it has escalated the rate of deportations, the Obama administration has dramatically expanded the use of for-profit facilities for undocumented immigrants under the auspices of Immigrations and Customs Enforcement. This includes awarding CCA a recent $1 billion contract for a new detention facility for undocumented women and children.

Unfortunately, though, the Justice Department change of policy is unlikely to have far-reaching consequences for the criminal injustice system as a whole. The vast bulk of prisoners incarcerated in for-profit prisons are at the state, not the federal level--and states are continuing to turn to private prison operators as part of the general drive toward privatization and cost-cutting.

As a result, the private prison industry isn't worried about its bottom line. Following the Justice Department's announcement, stocks of private prison companies initially dipped, but then rebounded. Not only federal prisoners a small percentage of their business, but "the companies had expanded into other services, including rehabilitation," a securities analyst told Reuters.

JUST DAYS after announcing it was phasing out contracts with private prisons, the Justice Department caught the attention of prison reform and abolition advocates a second time.

In a brief filed as part of a Georgia lawsuit, the Justice Department argued that holding people in jail because they can't afford a "fixed bail amount"--meaning the amount of bail is fixed in advance based on the offense, instead of an evaluation of a defendant's flight risk--is unconstitutional. This is the first time the Justice Department has submitted a legal opinion in a federal court on the question of bail in state and local courts.

"Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for their ability to pay, unlawfully discriminates based on indigence," resulting in "the unnecessary incarceration of numerous individuals who are presumed innocent," the department's "friend of the court" brief concluded.

In the case that sparked the court challenge, a man named Maurice Walker filed a class-action suit against the city of Calhoun, Georgia, after spending six days behind bars because he couldn't afford to pay a preset bail amount of $160 for a misdemeanor charge of "walking while intoxicated." Walker lives on just $540 a month in disability benefits, so he had to wait until he could go before a judge to be released.

According to Walker's complaint:

In the City of Calhoun, many people arrested for minor traffic or misdemeanor offenses are released from custody almost immediately upon payment of money to the City. Those arrestees who are too poor to purchase their release remain in jail because of their poverty for up to seven days before a first court appearance.

A U.S. District Court judge sided with Walker in January, but the city of Calhoun is appealing.

Such bail practices are common. On any given day in the U.S, some 500,000 people languish in jail because they cannot make bail, according to a report last year in the New York Times.

In fact, many cities rely on bail as a revenue-generator. Following the killing of Mike Brown in Ferguson, Missouri, for example, it came to light that city officials used legal fines and fees--targeted disproportionately against those who are poor and Black--to keep the city running.

Calling such fees and fines the " criminalization of poverty," Attorney General Loretta Lynch said in March that such policies "are not only harmful--they are far-reaching. They not only affect an individual's ability to support their family, but also contribute to an erosion of our faith in government."

In a letter sent in March from the Justice Department's Civil Rights Division to state chief justices and state court administrators across the U.S., the Justice Department informed courts that they "must consider alternatives to incarceration for indigent defendants unable to pay fines and fees," "must not condition access to a judicial hearing on the prepayment of fines or fees," and "must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release."

PROSECUTORS OFTEN deliberately seek high bail amounts against impoverished defendants as a way of leveraging them into taking plea agreements--this practice has been documented by the New York Times and other media outlets.

So, for example, after the protests in Baltimore that followed Freddie Gray's death at the hands of police in 2015, some protesters were given bail amounts of $250,000 or more for charges of "disorderly conduct" and "rioting." Ironically, $250,000 was the same bail amount set for at least two of the officers charged in Gray's death.

In theory, bail isn't meant to be a punishment. It is supposed to guarantee a defendant's presence at their trial. But in a class-divided society it doesn't work that way--bail becomes a punishing trap for the poor, a modern-day version of a debtors' prison.

Frequently, it's necessary for poor defendants to accept a guilty or no contest plea to a lesser charge than linger in jail waiting for their day in court. Prosecutors count on this leverage, as the Times explained:

Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent records.

Another chilling fact to consider from the Huffington Post: "Many of the more than 800 jail deaths logged by The Huffington Post between July 2015 and July 2016 involved individuals who were incarcerated after being arrested for minor offenses and who were unable to afford their bail."

As with the phasing out of for-profit prisons at the federal level, the Justice Department directive against fixed bail amounts is welcome news--and comes after years of protest.

But it is still fair to ask: Why did the Obama administration leave these important, though limited, policy changes to the end of the president's second term? Maybe more importantly, why should we count on Hillary Clinton, who counts private prison lobbyists among her major donors and helped craft the policies that expanded mass incarceration in the 1990s--to push for further reform?

State and local authorities--not to mention the bail bond industry--won't let go of this source of revenue without a fight. In addition to legal challenges, they will be look for and exploit whatever loopholes they can to keep the wheels of the American injustice system rolling over the backs of the poor.

It will be up to anti-racists and opponents of the criminal injustice system to keep the pressure on--until the day when no one is stuck in jail because they are poor.

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