This timely book is a must-read for anyone, lawyer and non-lawyer alike, interested in the moral and practical implications of how our private prison infrastructure profits from the incarceration of human beings.  Inside Private Prisons analyzes whether the goals of incarceration—punishment, community safety and rehabilitation– traditionally the province of governments, should be relinquished to private sector businesses pursuing financial gain.


Lauren-Brooke “LB” Eisen, a senior fellow at the Brennan Center for Justice at NYU Law School, discusses how the economic, moral and political aspects of this “American Dilemma” are intertwined. Eisen explains how decisions by presidential administrations over the last 30 years have helped entrench this system in some state economies and discusses the quieter but growing resistance from those morally opposed to the idea of profiting from the warehousing of human beings. She addresses the political challenges, options and realities that private prisons represent today.  Eisen, who does not argue either for the continuation or the abandonment of private prisons, takes an academic and objective approach, part investigative reporter, part historical researcher.


The book begins with an introduction to the “The Prison Buildup and the Birth of Private Prisons” followed by four chapters covering the nuts and bolts of governmental privatization and the developing view of prisoners as commodities. The middle of the book discusses the increase in the number of private prisons, the “heartland” of states employing them, as well as the current political movement in some quarters urging businesses to divest from holdings in companies that operate private prisons. The final four chapters examine private immigration detention centers (as opposed to Bureau of Prisons and U.S. Marshals private contract facilities), modern public prisons compared with private counterparts, the moral objections to the concept of private prisons and suggested areas of reform.


Throughout the book Eisen invites the reader to question whether the private prison phenomena is an economic solution to a political problem (prison overpopulation); or a political solution to an economic problem (financing the increasing need for more prisons). One of the questions the book tries to answer is why private prisons have sprung up now in our history (suggesting the 1994 Clinton crime bill as one factor) and what a plan for moving forward should involve.


The book succeeds in effectively explaining both the macro and micro aspects of the prison industry, also keeping in mind the perspective of the individual locked behind bars. The author first takes a close look at the proverbial trees in the political landscape—the operations side of private prisons, their organizational structure, the faces behind the companies that own them, whether they are, as advertised, a cost-savings option, and the distinct prison populations that are most affected by them. Later in the book Eisen pulls back to illuminate the complicated interrelatedness of our modern criminal justice system and the divisive social and racial environment in which this system of private prisons operates. Her 360-degree perspective helps the reader come to the inescapable conclusion, whether of the opinion privatization is a good or bad thing, that it has become dug in with far reaching roots and will be difficult to hack out.


In an interview with the National Book Reviewjust before the publication of her book last year, Eisen described it as examining:


“[T]he broader prison-industrial complex that relies on a vast infrastructure of financial incentives that create significant hurdles to dismantling a mass incarceration system on which the nation has come to rely. An entire industry exists with a financial stake in keeping prisons filled or ensuring that the numbers of people who become enmeshed in the criminal justice system is maintained, if not greatly increased. . .”


Eisen cites the fact politicians and presidential candidates are weighing in on the debate. Senator Bernie Sanders introduced the Justice Is Not For Sale Act in 2015 which would ban all federal government contracts with private prison companies at the state, federal and local level. He has called taking campaign contributions from prison company lobbyists “immoral”.

Under the Obama Administration there was a movement away from private prisons which coincided with the formation of groups seeking to abolish the practice. Such groups focused on the asserted unconstitutionality of private prisons under the non-delegation doctrine; ie. the theory being the delegation of an essential governmental function is a violation of the due process clause and, by injecting financial bias into the system, prisoners are turned into property “in violation of the Thirteenth Amendment’s abolition of slavery and the Eighth Amendment’s prohibition of cruel and unusual punishment.”


In the summer of 2016, Deputy Assistant Attorney General Sally Yates announced that the Justice Department would slowly work toward not renewing its contracts with private prison companies. However, in February 2017, President Trump’s new Attorney General Jeff Sessions issued a prophetic memo to the BOP ordering a return to the previous approach since not using private prisons would “impair the Bureau’s ability to meet the future needs of the federal correctional system”. President Trump has benefitted from thousands of dollars in campaign/PAC contributions from private prison companies seeking to influence public debate and administration policies toward mass incarceration.  Ironically, earlier this year, the Trump administration’s First Step Act was heralded by some politicians who promoted it as a victory in the battle toward reducing the federal prison population. There is a political undertow, however, of conservative interests and private companies aligned with them, who are reaping the political and economic benefits of continuing and encouraging a culture of mass incarceration.


Currently, the two largest private prison firms are CoreCivic (f/k/a Corrections Corporation of America or “CCA”) and GEO Group (f/k/a Wackenhut Corporation). “Although for-profit prison corporations publicly claim that they don’t lobby for changes in criminal justice policy, they spend large amounts of money every year on lobbying firms that advocate for their financial interests in Congress and in state legislatures. From 2002- 2012 CoreCivic spent more than $17 million in lobbying expenditures; GEO Group spent $2.5 million from 2004-2012. Since 1989, GEO Group, CoreCivic and their associates have spent almost $25 million on lobbying efforts and more than $10 million on campaign donations” Both companies have political and business contacts extending deep into the criminal justice system which will make it difficult to excise them later.


Since 2007, CoreCivic and GEO Group have been awarded $8 billion in federal contracts. GEO Group and CoreCivic earned a combined $4.3 billion dollars in 2016, with $382 million in profits.  However, BOP contracts with private contractors do not necessarily equate to them having the same transparency, same responsiveness, or goals. Frustrated by a lack of accountability, the ACLU, the Southern Poverty Law Center, the Sentencing Project and the Center for Constitutional Rights have all argued that private prisons should be subject to the same standards of transparency as government agencies.


The United States Marshal and Bureau of Prisons now frequently use facilities run by private contractors.[1]For years in the Western District of New York federal pretrial detainees were housed in a variety of county jails under contracts with the USMS. However, there is now a trend toward housing clients awaiting trial in private facilities in Northeast OH and Virginia. Convicted clients, especially non-U.S. citizens, end up in facilities which contract with BOP to house illegal immigrant inmate populations serving criminal sentences.  As Eisen points out, it is unclear yet how these facilities are being supervised and evaluated by BOP and Justice Department officials. Courts have also been complicit; by holding that certain convicted inmate populations may be detained in facilities that do not provide comparable access to programs during the service of criminal sentences, they have helped prop up this hybrid public/private system.


I read Inside Private Prisons when a former client’s family contacted me about conditions in a federal contract prison in Texas run by GEO Group. The client, Hugh Stevens, is not a U.S. Citizen; he is a native of Scotland who lived for the past 50 years in the United States. Currently age 70, with a limited formal education, no history of violence, and a good institutional record, he is serving the remainder of a 20-year federal drug sentence. He had initially been designated to the federal correctional institution at Ft. Dix, New Jersey and then was transferred to another BOP facility in Louisiana. Several years ago he was sent to a private BOP contract facility in Big Springs, Texas. Since it is expected he will be deported once he completes his sentence, Mr. Stevens is being denied the programs he was entitled to during the years he was incarcerated at prior BOP facilities since his conviction in 2010.


Similar to how Eisen recounts her experience, and consistent with reports that private prisons lack transparency, I had difficulty obtaining information from the staff and counselors. Some of the information I did manage to get was inconsistent and letters and calls often went unanswered. Contact with the BOP district counsel’s office was not helpful. When I finally received a substantive response, I was told Mr. Stevens was not entitled to be transferred to a different BOP facility since he was a “deportable alien”, although no order of deportation has been entered and Mr. Stevens plans to fight deportation. All of his immediate family, siblings, children and grandchildren reside in Buffalo, New York or in parts of Canada and have been financially unable to afford to visit him in the-middle-of-nowhere, Texas.[2]


In this respect it would have been helpful if Inside Private Prisonscontained a chapter summarizing legal challenges to the federal government’s use of private prisons. Most of the inmate populations housed in these facilities are serving sentences and have limited access to lawyers. Harnessing decisions relating to conditions in private prisons from the various federal circuits would be a complement to the other chapters in this book. Understanding what aspects of the private prison system have been brought to the attention of courts would give further context to the author’s definition of the “American Dilemma” and elucidate the nature and degree of differences between public and private prisons.


The conclusion of the book in a larger sense has not been written. However, Eisen outlines 10 initial steps that she believes will be needed in coming years for private prisons to continue to be accepted as a viable option to public prisons:  contract monitors, termination clauses in contracts, “no guaranteed bed payments” (contracts which pay for a guaranteed capacity/number of beds even if unoccupied), eliminating disciplinary sanctions that lengthen sentences, plans to remedy inadequate performance, fines, access & transparency, process measures and outcome measures (eg. reduced recidivism, physical/sexual assaults, etc).


Inside Private Prisonsmakes the point that as long as private prisons exist it will be necessary to have sufficient oversight to ensure their drive to profit from policies of mass incarceration does not obliterate the need to make conditions more humane. Eisen quotes Fyodor Dostoyevshky in the last chapter of the book: “The degree of civilization in a society can be judged by entering its prisons”.


On April 16, 2019, the USMS issued a memorandum of anticipated funding shortfall for Federal Prisoner Detention during fiscal year 2019.  The USMS, working with DOJ, is planning to address rising prisoner populations which, over the past two years, have resulted in a $2 million deficit. In addition to maximizing all existing BOP space and shifting prisoners awaiting sentencing to lower cost detention facilities, districts are being asked to “Actively leverage tiered pricing models at private detention facilities to ensure economies of scale are maximized, if applicable. Neighboring districts may be required to move prisoners into these facilities to ensure cost efficiencies. POD will assist district management in identifying specific detention populations that will accomplish this action.”


[2]The habeas petition filed on March 18, 2019 seeking to have Mr. Stevens transferred to within 500 miles of his residence is available on PACER from the U.S. District Court Northern District of Texas at docket 19-cv-00034-C