Profits? O! the Humanity! or, High School Journalism Comes to the ACLU

So a Facebook friend of mine threw up a link to this article at the ACLU’s website, written in commemoration if not in honor of the 30th anniversary of Corrections Corporation of America. At the risk of understatement, the ACLU is not a fan of CCA or what it and its competitors do.

For those who don’t know, CCA is a corporation which runs prisons and jails, together with ancillary services. They’re a publicly traded corporation now, but they were founded by a couple of West Point grads and a few others. They’ve done rather well for themselves over the past decades. They’ve had their share of black eyes and stubbed toes – hardly surprising, given the industry they’re in and the nature of the players in it – but I’m not aware that the facilities they operate are predictably or measurably more brutally or cruelly or poorly run than those by any governmental entity or agency. Interestingly, the ACLU article doesn’t even allege that they’re measurably less properly operated than government facilities. Since the ACLU holds itself out as representing the Constitution and no other client, you’d think that systematic violation of prisoners’ rights under any provision of federal or state constitutions or statutes would not merely be mentioned but would be harped upon. 

What the ACLU does find objectionable, and goes into in considerable detail, is that horrors! CCA turns a profit and tries to do so. They quote from the corporation’s most recent Form 10-K, “filed with the Securities Exchange Commission” – ooooohhhhh!! capitalisssssstsssss! you can almost hear the author hiss, almost see the waves of fear and revulsion sweep over the author’s face – in which CCA points out, entirely correctly, that their business model relies for its continued viability upon relatively high levels of incarceration of criminals and that their continued profitability could be adversely affected by any governmental measure which changes that, from early release to general relaxing of sentencing practices to changes in prosecution patterns to underlying substantive changes in criminal law. 

The ACLU presents this statement in an SEC filing as if it were a business plan to crank up the incarceration of poor defenseless citizens. For starts the SEC is not the Trilateral Commission, or the Illuminati, or any other crypto-dictatorial operation. It enforces and administers those laws and regulations which relate to public transactions in securities, the operations of the exchanges where those securities are traded, and the companies whose securities are traded on them. That’s it. If your company’s securities are publicly traded you are required to file with the SEC certain periodic disclosures in which you describe specific things about your company, its operations, it finances, and the risks to which investors in its securities are exposed. That would necessarily include, to the extent knowable, a description of those things which could undermine the company’s viability. By way of example, Bobby Kennedy’s boy runs some “green” operation which has already lost well over a billion dollars, with no end in sight. Their most recent Form 10-K recites that their continued viability relies principally on keeping the government hand-out spigot wide open. Seriously, that’s their game plan. Well, of course. I haven’t read them, but I’d wager that Northrop Grumman’s filings will mention somewhere that any widely adopted program of disarmament would have disastrous consequences for their profitability. A corporation which is in the business of providing, for example, heating oil to a region of the country will be smacked hard by an unusually warm winter. A municipal water system’s revenue will be adversely affected by a wet summer. And so forth. All of which is to say that the observation that gives the ACLU such a delightful frisson of disgust merits a great big bowl of steaming “so what?” 

The ACLU then begins its entirely predictable screed about how we’ve been locking up so great a proportion of our population, in fact an increasing proportion of our population, blah blah blah. Notice the article traces this trend back to the 1970s . . . which the ordinary mathematician will pick up on was well before CCA was formed, and even longer before it became a major player. The author fails to mention that “get tough on Crime X” has been wildly popular as a policy position since the late 1960s. In fact it was precisely the opposite trend in penology – the pat ‘em on the hand and help them get in touch with their inner child school of criminal justice – which produced the enormous surge in crime and specifically violent crime during those years, and which sparked the lock ‘em up ‘til they rot school of thought. The ACLU also overlooks mentioning that at the same time we’ve been locking up criminals (and yes, Dorothy, illegal aliens are criminals by definition) at ever-increasing numbers the rates of almost all violent crime have plummeted. 

The not-quite-unspoken position of the author is that a great deal of the incarceration for drug-related offenses is a morally reprehensible thing. Maybe it is; maybe it’s not. I certainly can see a great deal of merit on both sides of that particular argument. But what is not at all subject to dispute is that it was precisely the draconian mandatory drug sentencing laws which allowed the federal government to break open the Italian organized criminal empires. The mafia goon who was looking at a seven-year hitch for extortion or arson or beating the living snot out of some shopkeeper was willing to sit that one out and tell the prosecutor to do his worst. Explain to him that he’s looking at 25-40 to be served at 85% for the pound of coke in his trunk and suddenly he begins to study really hard on whether omerta maybe doesn’t have its limits. I freely admit that the mandatory minimum sentencing wasn’t adopted to achieve that particular effect, but that’s lagniappe, so far as I’m concerned. And were the mandatory minimum sentences really so unreasonable at the time they were first adopted? Recall that inner cities were the fora for extraordinarily violent gang wars related precisely to drug dealings. What precisely were legislators supposed to do in the face of feel-good judges who took the position that it was all Just a Big Misunderstanding? You can’t “treat” someone who will line up an apartment full of people, including the neighbor kid who just happened to have stopped by to borrow his buddy’s new cassette of music, and blow 9mm holes in the base of their skulls. You can’t counsel someone like that into any condition fit for human society. 

The ACLU author points out that CCA spends a great deal of money on lobbying and supporting political candidates. Well, yes it does. So do those groups which oppose them for making a profit off of prison and jail operations. So do the prison workers unions. If what CCA were doing were uncontroversial and unopposed there would be no reason to try to convince anyone to let them have a crack at it. They’re no longer the only company in that business any more, either. Just by way of compare-and-contrast, Boeing spent monstrous sums of money pushing its aircraft as the replacement for the KC-135 tanker. They even had the competition re-opened when they initially lost out to Airbus. George Soros spends vast amounts of money to benefit his operations. Like when he poured millions into shutting down off-shore drilling in the Gulf of Mexico at the same time he was putting eye-popping bucks into the newly-discovered Petrobras offshore field in the South Atlantic, a field the economic viability of which will be much accelerated if competing deep-water operations are strangled.

 All of which is to say nothing more than that any large government contract or large government initiative is going to generate corresponding effort by those seeking to obtain or deny that contract for or to any particular operation or group, or to steer that initiative to its own benefit. It’s just in the nature of the beast, so long as the beast of government continues to look and act like the beast we currently have. 

In the end the ACLU article really can’t muster up much more against CCA than . . . well, ick! and how dare they take away our Government Jobs for the Boys. Mind you, I don’t carry a brief for CCA. Either they can do the job more cheaply than Brand X or the government itself, or they can’t. Either they can do the job in conformity within applicable constitutional and statutory constraints, or they cannot. If the answers to those are yes and yes, well big fat hairy deal, says I. If not, let someone else have a go at it. If no one can I suppose we’ll just have to bite the bullet and have the government in the business of warehousing people we’ve decided we don’t want among us, for whatever reasons. 

My Facebook friend, whom I’ve known for 24 years now, was just outraged at the thought of CCA making a profit off of jails. Why? I wanted to know. The very idea of making a profit from running a jail was “unacceptable, period.” That’s a pretty strong (and bald) statement, so I pushed back a little bit. Is it outrageous that civilian contractors make a profit from running military mess facilities overseas? Apparently it was; the military trains military cooks, after all. I wanted to point out that every training dollar diverted from training some guy to over-cook your bacon and under-cook your eggs, and instead put towards training the guy who’s going to provide you fire support as you clear a block house is a dollar better spent than it had been.  I decided to explore some other situations in which the government takes some task which is more or less intrinsically “governmental” and engages a civilian contractor to do it. Like transporting military stores, supplies, or personnel on civilian ships or aircraft. Or hiring a private contractor to do the landscaping around city hall, or a private company to pave the city streets. I cited him to the Princes of Turn und Taxis, who for generations ran – for their own profit – the postal system of the Holy Roman Empire. Closer to our own day, take a look at all those private contractors trucking the U.S. mail around; even the guy who stuffs the mailbox in front of your house with glossy coupon booklets is not a government worker, not outside the city limits. I pointed out to my buddy that in many countries the land line telephone systems are and have always been government-owned and operated, while ours never has been. Are those other countries inherently morally superior in that respect, and we irredeemably damned? Or how about other utilities: Is it inherently morally superior that the TVA belongs to the federal government and ConEd or Duke Power does not? If those arrangements are not morally reprehensible, what is so magic about administering a system of confinement, where it is the confinement itself which is the punishment? In other words, we no longer sentence people to the treadmill, or to hard labor busting rocks. You go to prison and that’s your punishment: you’re in prison as opposed to being on the street. End of story. 

More to the point, where is the constitutional defect in any of the above arrangements? Is getting locked up in a twelve-by-twenty cell with three other guys, a stainless steel toilet, and one’s own thoughts somehow more or less “cruel and unusual” depending on who signs the paycheck of the guy who toddles around to make sure the door’s locked tight? What due process right does a prisoner have to be superintended by some guy who’s in the state retirement system versus having a 401(k)? Is it a denial of equal protection of the laws that some prisoners are herded into and out of the showers by a guy who’s civil service and others by some guy who’s an at-will employee? I’m just not seeing it. 

My Facebook friend allowed that it was just . . . well, “unethical” for some company to “make a profit off human misery.” Errrmmmm . . . no one works for free; if you don’t believe me try cutting the wages of the government-employee prison guards. But to engage my friend more closely on his own argument’s terms, I’m not so sure he’s not looking at the horse from the wrong end. CCA is not “making a profit from human misery”; they’re making a profit providing me a profound relief from human oppression, in fact for promoting my own freedom. Those countries in which criminals run rampant and unpunished, or where the prison system – for them at least – is just a home-away-from-home, a place for them to continue plying their trades while someone else provides them three hots and a cot until they’re ready to go back out, are all uniformly miserable and poverty-ridden places. Read the descriptions of the blatnye in Solzhenitsyn or Dolgun or Bardach or Shalamov. Among the many, many oppressions of the ordinary Soviet citizen was the fact that the entire country was over-run with violent criminals who if anything received preferential treatment in the prison and camp systems. Since the Soviet Union’s collapse the same dynamic has played out as well. Among the many reasons why Sicily has always been poor as Job’s turkey is because it is so thoroughly dominated by the criminal clan system. Ditto the Balkan countries; the ordinary citizenry for centuries has been prey to well-organized and deeply-rooted criminal exploitation. In dear ol’ tolerant, drug-legalized Holland casual street crime is rampant. Oh sure, they might not knife you outright or just for fun, the way some of our street thugs will, but you’ve still lost your wallet and all its contents, and even if your mugger is caught, he’ll be back on the street and most likely have taken his next victim before you can even replace your driver’s license. Excuse me if I object to living in that sort of a society, and if I’m tickled pink that someone will come along and for a reasonable price stack these people behind stout walls and bars so I don’t have to worry about meeting up with them. The free-range criminal is the scourge of his fellow-men. Any system for removing them from our society for prolonged periods is not a system for inflicting human misery but rather a system to free the law-abiding from a pervasive system of terror. Moving that same argument one further step back, how about companies that specialize in disaster recovery? They don’t work for free. Aren’t they “profiting from human misery,” since without massive disaster there’s no work for them? I don’t, in short, think my friend’s “profiting from human misery” objection holds up to scrutiny. 

Well . . . so my buddy says, CCA is “not accountable”? To whom? Those contracts are extraordinarily detailed. The private operators are subject to state supervision and to state inspection, and last but not least they’re amenable to suit in federal or state court for neither more nor less the same causes of action as a governmental defendant would be. More to the point, who’s likely to be more sensitive to making sure his job is done right? Think it will be the guy who can get his entire company’s contract pulled, and maybe not just at that facility, if he screws up, or who can be fired at the drop of a hat and have to wonder how he’s going to make next month’s house payment? Or do we think it will be the guy protected by civil service rules and has to fear at most getting shuffled to some more out-of-the-way, even-scuzzier facility than the one he’s at? You can’t fire the government; you can’t even non-renew its contract. You can fire CCA; you can tell them that it was a nice experiment but you don’t really think it’s worked out as well as you had hoped. When was the last time a government got busted for not doing what it promised its people it would do? When do you think the last time CCA or some other private operator got sued for not doing what it promised? 

As mentioned, I am no advocate for CCA or anyone else. I’m also not thoroughly convinced that the core objection of the linked ACLU article – we lock up way too many people for way too penny-ante reasons – is not founded on some pretty compelling arguments. But none of those arguments have anything at all to do with whether it’s a good idea, a bad one, or indifferent, whether prisons are privately operated. The ACLU’s weighing in on this subject is indistinguishable from the ABA’s plumping for a frontal assault on the Second Amendment.


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