In his campaign platform for President of the United States, Joe Biden proposed to “stop corporations from profiteering off of incarceration [and] end the federal government’s use of private prisons.” The stance was in direct contrast to the Trump administration, which reversed an Obama era policy to phase out the use of private prisons. The relationship is mutual, as the private prison industry has been a generous donor to Republican politicians. In 2018, the mega-corporation GEO donated more than four hundred thousand dollars to the GOP, according to the Center for Responsive Politics. In 2020, the CEO of the GEO Group donated more than half a million dollars to Republicans. Today, the debate over private prisons has two clear positions. On one hand, those in favor of continuing the current system claim that privatization leads to a type of efficiency that a government bureaucracy cannot achieve. On the other hand, private prison opponents argue that private prisons have been shown to have worse conditions for prisoners—including higher brutality rates, that they incentivize longer sentences for prisoners, and that the justice system by its very nature must be publicly run. Historically, however, the private prison debate has been dominated less so by moral or academic arguments and more so by the social and economic concerns of the groups pushing for prison creation and reform.
The story of private prisons in the United States can be traced back to California just two years after it was accepted into the Union in 1850, where private prisons offered a hopeful solution to rampant crime and instability. Ronald C. Woolsey writes that in the midst of the Gold Rush, California experienced a period of widespread instability such that,
“Crime and Punishment” fittingly describes Los Angeles Country in the early 1850s. Lawlessness was an important concern of the community during the formative years of statehood. More importantly, crime represented a loss of local control, ineffective government, and the inability of the community to establish a stable social order.
While Los Angeles saw some of the highest homicides rates in the country, with 31 homicides recorded in the pueblo of 2,500 residents between 1850 and 1851, it was not unique. Across California crime and lawlessness prevailed, with San Francisco’s annual homicide rate five times greater than what it is today. The new state of California created the now infamous San Quentin prison during this time period as a state prison to be privately run by a contracted manager. Ward M. McAfee explains that this decision was largely economic, since California—unlike other states—was declared a state without first going through a “territorial stage,” and as such found itself lost and in “deplorable financial condition” during this time period. To compare the early San Quentin to modern private prisons, however, is somewhat of a misrepresentation. The California government adopted what was known as the “lessee system,” a method in which the government awarded “contracts to private individuals to run prisons or use prison labor.” It is a system that has since been called “slavery by another name.” Not only were early conditions at San Quentin horrid with brutal corporal punishment of prisoners and cells that measured 5 feet 11 inches by 9 feet 10 inches with “no windows, poor ventilation and light, and inadequate sanitation facilities,” the prison was also ineffective. Following a massive prison escape in 1854 and ensuing prison investigation which according to McAfee revealed “the guards’ use of female prisoners as prostitutes and easy access to liquor in and about the prison,” the prison was ultimately handed over to state control. The new state-appointed warden, John S. Love, was committed to halting the wave of prison escapes that had marked San Quentin’s early years. In a set of “Rules and Regulations of the California State Prison,” Love wrote that “in case of an insurrection the Guard must…when necessary to fire, shout at the prisoners to lay down, and shoot to kill if possible.”[1] In fact, San Quentin remained infamous for its abhorrent prison conditions for decades to come. More than a century later, Chol Soo Lee, who was wrongfully convicted of murder, described in his memoir his time at San Quentin, writing that “if a normal person could experiment with trying to live like a convict, he wouldn’t last a day in a state prison like San Quentin…where each convict does not view other convicts as human beings but cares only about his personal safety. Normal links to our humanity are lost in the daily focus on survival.”
The “lessee system” became especially prevalent in the postbellum South, where it was one of the many tactics used by Southerners to perpetuate white supremacy after the abolition of slavery. As the bloodiest war in US history, the cost of the American Civil War is incalculable in terms of human life, but even looking at property destruction alone, the numbers are massive. The Economic History Association estimates almost $1.5 billion (in 1860 dollars) of physical destruction in the South, largely a result of General Sherman’s “scorched earth” policy. One victim of this destruction was the South’s pre-war prison system. In consequence, the South turned primarily to the convict leasing system, in which a lessee would pay the government to take control of a given number of inmates, who could then be put to work at the lessee’s discretion. For many modern scholars, this shift represented a poorly guised attempt to preserve slavery after it had been legally abolished. After all, prisons in the antebellum South were overwhelmingly white to such a degree that the census did not record the race of prisoners until 1870. But by 1890, over five thousand of the 6,466 prisoners in the South Atlantic Division were “colored,” which included “2 Indians,” with the rest presumed to be Black. Since then, the overrepresentation of non-white individuals in prison populations has pervaded even as incarceration rates skyrocket, leading activists like Angela Davis to posit that,
In the immediate aftermath of slavery, the southern states hastened to develop a criminal justice system that could legally restrict the possibilities of freedom for newly released slaves. Black people became the prime targets of a developing convict lease system, referred to by many as a reincarnation of slavery.
Other scholars, however, warn against so quickly equating the convict leasing system and slavery. Christopher Muller argues that “in postbellum Georgia, the relationship between slavery and imprisonment was characterized by contention more than by functional succession.” Muller’s argument relies on two clear differences between slavery and this new system, (1) slaves made up almost half of Georgia’s population, whereas leased convicts made up less than 0.1 percent, and (2) convict labor was focused on the industrial sector, as opposed to slave labor which was almost exclusively agricultural. As a result, he finds that racialized prison labor was not a replacement of slavery, but rather a response to the new threat that African Americans posed to White Southerners both in the economics and sociopolitical sectors. Peonage was a more widespread tactic used to accommodate the new demand for agricultural laborers, and is described in a contemporary Washington Post article titled “Negro Still A Slave,” that states, “peonage, or an involuntary servitude, always of black men to white masters, is actually common, not only in Southwestern Georgia and Southeastern Alabama, but in almost every strictly agricultural country throughout the real cotton belt.” Newly liberated freedmen were more often than not forced into accepting unfair sharecropping agreements that ultimately sucked them into a cycle of debt that had to be repaid through involuntary servitude.
While sharecropping was practiced until the 1940s, the convict lease system began to lose popularity much earlier due in part to labor unions’ efforts to protest unpaid labor. A debate over the ethics and effectiveness of prison labor had actually emerged in the early nineteenth century between reformers in Pennsylvania and New York, both of whom were united in their opposition to the cruel corporal punishment that had been previously commonplace but disagreed on whether a reformed prison system would emphasize solitary confinement or silent labor. In an 1828 exchange with Thomas J. Wharton, an advocate of solitary confinement, James Madison concluded that the most ideal solution involved “combining a discriminating proportion of the solitary arrangements with joint and silent labor,” arguing that if a combination of solitary confinement and silent labor “can be enforced with the success anticipated, [this plan] seems to involve all the desiderata, better than any yet suggested.” In the late 1800s, however, a much more compelling voice rose in opposition to prison labor — unions. Although the labor movement can trace its origins to the early nineteenth century, the creation of the National Labor Union and the Knights of Labor in the 1860s strengthened the power of workers to impose change. For these workers’ unions, unpaid labor in the form of the convict lease system posed a real threat to workers; it created an unmatchable source of competition for wages, reducing union’s power to fight for higher salaries. As John P. Frey, a contemporary labor activist, explained, “one result of prison labor is the displacement of free labor by convict labor either by throwing free workmen out of employment or by doing work which free workmen would otherwise have performed.” Frey’s argument, however, was not in favor of eliminating prison labor—which he believed would lead to “idleness”—but rather in opposition to private prison labor, which “places the product of the convicts’ labor on the market and thereby forces reduction in wages upon large numbers of free workmen thereby lowering their standard of living.” By the late 1920s, convict leasing was practically extinct. A New York Times article written in Alabama announced the decision to end convict leasing in 1928, writing that, “condemned as a ‘relic of barbarism,’ the convict leasing system ends at midnight after a fight which lasted for thirteen years.”
While this form of private prisons was on the decline, another form eventually emerged when one man from Tennessee decided to reimagine the privatization of the penitentiary as a source of corporate profit. Terrell Don Hutto along with two wealthy investors, Thomas W. Beasley and Robert Crants, founded the Corrections Corporation of America (CCA) in 1983 under the promise that “the private sector can achieve economic efficiencies impossible to achieve working through the government bureaucracies,” as stated by a company spokesman to the New York Times in 1985. Their business model was different than earlier lessee prisons. Rather than profit from prisoners’ labor, CCA received funding from the government; any amount that was left over after taking care of administrative costs was kept by the corporation as profit. For the next several decades, this system thrived. Between then and its peak in the late 1990s, the company’s stock rose by five hundred percent, as one of the 20 private prison companies generating a total of $250 million in 1998 dollars. At the same time, CCA began to face public scrutiny. In 1985, just two years after CCA opened, the New York Times published an article titled “Jails Run by Private Company Force It to Face Question of Accountability” that raised questions of whether private prisons are ethical and whether they uphold “prisoner’s constitutional rights.” By the turn of the century, the movement against CCA was growing. In 2003, Grassroots Leadership, the Corporate Research Project of Good and the Prison Privatization Report International published a report slamming CCA for,
Failure to provide adequate medical care to prisoners; failure to control violence in its prisons;
Substandard conditions that have resulted in prisoner protests and uprisings;
Criminal activity on the part of some CCA employees, including the sale of illegal drugs to prisoners;
And escapes, which in the case of at least two facilities include inadvertent releases of prisoners who were supposed to remain in custody.
This backlash ultimately led to a massive drop in CCA’s stock price which persisted even after the company rebranded under the name CoreCivic in 2016. Despite this, CoreCivic’s CEO made over five million dollars in 2019 and the company operates 77 correctional facilities as of 2018.
The various implementations of private prison systems over the course of American history demonstrate the role of social and economic pressures on the types of carceral institutions in existence. Early prisons in California relied on privatization because the state lacked the infrastructure to protect its citizens. Southern lessee prisons supplemented the widespread effort amongst former Confederate states to preserve the racial power dynamics of the antebellum era. Even the failure of the private prison industry in the early twentieth century was largely caused by the economic concerns of unionized wage laborers, and in turn the re-emergence of private prisons with companies like CoreCivic or the GEO Group was motivated by the incentive to earn profit from the carceral industry. The poignant similarity between all of these developments, each of which significantly shifted the prison system in the United States, is that they demonstrate little to no effort to consider the moral, ethical implications of private prisons, nor the impacts that certain systems have on the people living in them. CoreCivic attempts to market itself as an ethical business in its mission, which claims to be “committed to providing high quality, compassionate treatment to all those in our care,” but the data stands in stark contrast to this conclusion. A report by the US Bureau of Justice showed that assaults on inmates occurred almost 40% more frequently in private prisons than public prisons, whereas some experts in the same report claimed that private prisons are 5-15% less expensive than public prisons and other argued that there was no significant price difference between the two. While the private prison debate continues to be moderated by those with most influence, money and power, it is uncertain whether any ethical, data-driven and thoughtful reform will be possible.
Written by Veronica Backer-Peral; Class of 2022; History, Computer Science and Applied math triple major.
For Further Reading:
Albertson, Kevin, Mary Corcoran, and Jake Phillips, eds. Marketisation and Privatisation in Criminal Justice, 1st ed., xvii–xviii. Bristol University Press, 2020.
Baines, Lawrence. Privatization of America’s Public Institutions: The Story of the American Sellout. New York: Peter Lang Publishing, Inc, 2019.
Blakely, Curtis R, and Vic W. Bumphus. “Private and Public Sector Prisons—A Comparison of Select Characteristics.” Federal Probation: A Journal of Correctional Philosophy and Practice 68, no.1 (n.d.): 11.
Bookspan, Shelley. A Germ of Goodness: The California State Prison System, 1851-1944. U of Nebraska Press, 1991.
Davis, Angela Y. “Slavery, Coil Rights, and Abolitionist Perspectives Toward Prison.” In Are Prisons Obsolete? New York: Seven Stories Press: An Open Media Book, 2003.
Frey, John P. “The Trade-Union Attitude Towards Prison Labor.” The Annals of the American Academy of Political and Social Science 46 (1913): 132.
Eisen, Lauren-Brooke. Inside Private Prisons, vii–xii. An American Dilemma in the Age of Mass Incarceration. Columbia University Press, 2018.
Lee, Chol Soo. “San Quentin.” In Freedom without Justice, edited by Richard S. Kim, 215–318. The Prison Memoirs of Chol Soo Lee. University of Hawai’i Press, 2017.
Logan, Charles H. Private Prisons : Cons and Pros. New York: Oxford University Press, 1990.
Mattera, Philip, Mafruza Khan, and Stephen Nathan. “Corrections Corporation of America: A Critical Look at Its First Twenty Years.” Corporate Research Project of Good Jobs First, Prison Privatisation Report International, 2003.
McAfee, Ward M. “San Quentin: The Forgotten Issue of California’s Political History in the 1850s.” Southern California Quarterly 72, no. 3 (1990): 235–54.
McKanna, Clare V. “The Origins of San Quentin, 1851-1880.” California History 66, no. 1 (1987).
Muller, Christopher. “Freedom and Convict Leasing in the Postbellum South.” American Journal of Sociology 124, no. 2 (September 2018): 371.
Musick, David, and Kristine Gunsaulus-Musick. American Prisons: Their Past, Present and Future. London ; New York, NY: Routledge, an imprint of the Taylor & Francis Group, 2017.
Pollard, Samuel D. Slavery by Another Name. PBS, 2012.
Woolsey, Ronald C. “Crime and Punishment: Los Angeles County, 1850-1856.” Southern California Quarterly 61, no. 1 (April 1, 1979): 79–98.
[1] Cited in Bookspan, Shelley. A Germ of Goodness: The California State Prison System, 1851-1944. U of Nebraska Press, 1991.
