American prisons are built on a broken system. The mantra of "profits over people" has made us the most incarcerated nation in the world, which we cultivated through centuries of unpaid labor and slavery.
Originating from the Quakers and their concept that imprisonment and hard labor should be the primary punishment for crimes, this laid the groundwork for our relationship between labor, incarceration, and capitalism. In 1816, New York took this idea and established the modern prison system with the Auburn Plan: promoting "industry, obedience, and silence," which led to the creation of Sing Sing — America’s first prison to turn a profit.
Although the 13th Amendment's loophole of enabling slavery as punishment of a crime has started to pick up in national conversation, a myriad of laws written in its wake (and ongoing practices like exorbitant warrants) have proven our criminal justice system is not designed for reform so much as it’s designed to increase revenue streams. From using prisoners for extinguishing forest fires to the absurd prices taxpayers shell out for privately-owned ICE detention camps, everything's driven to maximize financial opportunity, leading to unfavorable outcomes in courtrooms across the country.
Accelerated through the popular "tough on crime" narrative of the past six decades, the tendrils of our history of mass incarceration stretch all the way into factors affecting the 2020 presidential election. With that in mind, it's time to reexamine how we ended up with our prison industrial complex, and how we can repair one of our worst contributions to history.
The Development Of Mass Incarceration
From the end of the Civil War to President Lyndon B. Johnson’s call for a "War On Crime," America’s prison population was 184,901 among state and federal penitentiaries, as noted in Harvard Professor Elizabeth Hinton’s From The War On Poverty to The War On Crime: The Making Of Mass Incarceration In America. She goes on to state that in the two decades after, the prison population grew by 251,107, primarily due to Johnson’s War On Crime, as well as Ronald Reagan’s War On Drugs.
Hinton’s work also highlights the passing of the Law Enforcement Assistance Act, which "first established a direct role for the federal government in local police operations, court systems, and state prisons." This opened up the Justice Department's ability to help local law enforcement with not only grants, but military-grade equipment as well. The grant-making arm under the Justice Department was expanded into the Law Enforcement Assistance Administration under the Omnibus Crime Control and Safe Streets Act of 1968, which set the precedent of financially incentivizing increased arrests in exchange for more money… becoming the first spark for municipalities to encourage mass incarceration.
Not a year after Johnson’s passing of the Omnibus Crime Control bill was the election of Richard Nixon and his War On Drugs. Nixon’s Counsel John Ehrlichman stated that its intent was “to criminalize being 'against the war' or 'Black'...(where they) could arrest their leaders, raid their homes, break up their meetings, and vilify them on the evening news.”
Although Nixon coined the War On Drugs, it was Reagan who revived it and deemed illicit drugs as a national security threat. Continuing upon Nixon’s policies, Reagan signed the Anti-Drug Abuse Act of 1986, which brought mandatory minimum sentencing for certain drug offenses, including the infamous discrepancy between crack and powder cocaine at a rate of 100:1.
From 1980-2000, the number of inmates nationwide climbed from 474,368 in 1980 to 1,148,702 in 1990 to a staggering 1,965,667 by 2000. Not only were the anti-drug policies of Reagan and Bush continued by President Clinton, but he also signed The Violent Crime Control And Law Enforcement Act, aka: The 1994 Crime Bill.
The '94 Crime Bill was drafted by then-Senator Joe Biden. Written in collaboration with the National Association of Police Organizations (NAPO), Tom Scotto, the president of NAPO stated that “there wasn’t one thing (Biden) said ‘no’ to,” which not only brought about increased funding for 100,000 extra officers, but also billions for prisons… which meant from 1990 to 2005, the rate of adult correctional facilities rose 43 percent.
In addition to NAPO, another significant contributor to the 1994 Crime Bill’s impact was conservative think tank ALEC, who (as noted in an excellent article by The Nation) helped ghostwrite policy for states to adopt to the Truth in Sentencing Incentive Grant Program, mandatory minimums, and the "three-strikes policy."
Although the 1994 Crime Bill brought positive results against hate crimes, sex crimes, and domestic violence, its policies had a trickle-down effect on incentivizing and encouraging mass incarceration. And with ALEC's legislative arm representing the penal industry’s interests since the '80s, the prison industrial complex’s economic power was coming to full-force.
Modern Profit Machines
A monumental piece of legislation noted in The Nation’s article is The Prison Industries Act: allowing prison-made goods to be available across state lines, as well as for inmates to earn market wages in private sector jobs.
Although the PIE program (Prison Industries Enhancement Certification Program), was passed by Congress in 1979, ALEC began introducing state-level "Prison Industries Acts" in the mid-'90s to expand funding to not only state-run prison programs, but private industry as well.
Initially, PIE was used “to encourage states and local governments to establish employment opportunities for prisoners,” similar to that in the private sector. However, by implementing Prison Industries Acts on a state level, ALEC was able to expose a loophole in the program by inventing a "private sector prison industry expansion account," which took inmate wages to offset the costs of incarceration, including to expand prison industries. In other words, the money inmates earned that was supposed to go to "room and board" was actually being used to expand the prison industry, including to build private prisons.
Since the early 1980s, the pioneer of private prisons has been the Corrections Corporation of America (CCA), now renamed CoreCivic. Constructing the first privately-owned detention center as a renovated motel for immigrants, CoreCivic’s mission is that of any corporation: to turn a profit. In tandem with The GEO Group, the two compile a lion’s share of private prisons and immigration detention centers, housing nearly 8.2 percent of the state and federal prison population, and approximately 73 percent of immigrant detainees.
As publicly-traded companies currently structured as real estate trusts (until 2021 for CoreCivic), the reason why these companies are lucrative investments is simple: the more people put and kept in prison or detention centers, the more need for space. Considering the close history between CoreCivic, GEO Group, and ALEC, the exponential growth of these companies isn’t based on increased crime, but finding new ways to get and keep people in their facilities.
Although attention towards the private prison industry has grown unfriendly, it’s still thriving more than ever. Additionally, as we recently saw with the disturbing practice of immigrants receiving involuntary hysterectomies at a private facility owned by LaSalle Corrections in Georgia, these facilities are widely unregulated.
An investigation by USA Today found that during Trump’s presidency, at least 24 immigration detention centers and 17,000 beds have been added in the past three years; additionally noting that GEO Group and CoreCivic manage 41 facilities housing over half of ICE detainees. The report also states that private prisons set highs for federal campaign contributions in the 2016 Presidential election cycle, where the majority of the money went to Republican causes. And with profits showing no signs of slowing down, expect them to ramp up spending come this election… a time where the stakes are the highest they’ve ever been.
Where We're At Today
During the Covid-19 recession, over 4,100 corporations have been profiting from incarceration; not just in labor, but in mark-ups on products sold in the commissary as well. As prisoners have to pay more for soap and other sanitary products, the increased consumption due to coronavirus hit jails and prisons especially hard. Yes, even during a global pandemic, prisoners are still profit centers, proving how thoroughly profit is ingrained in the penal system.
To this day, Auburn Prison makes New York’s license plates at a rate of $0.65 per hour. For years, the military has used prison workers for equipment like helmets. Even in the past decade, companies like Starbucks, Whole Foods, and Victoria’s Secret have been accused of directly using prison labor (among many others). This begs the question: what progress has been made on reform?
Perhaps the most interesting thing about criminal justice reform is that it’s one policy issue both Republicans and Democrats have changed their approach on. While it used to be popular to say you were "tough on crime," the new goal is to be the frontrunner on reform.
The result of a years-long process, Trump actually passed one of the first ever reform efforts via The First Step Act, which:
- Retroactively applied the Fair Sentencing Act (reducing the disparity between crack and powdered cocaine) to those convicted before 2010, when Obama signed the bill into law. - Gave federal judges discretion to skirt mandatory minimum sentencing guidelines for nonviolent drug offenders with no prior criminal background. - Reduced the "three-strike" policy from a life sentence to 25 years and reduced drug felonies with automatic 20-year minimums to 15 (the shortened mandatory sentences will not apply retroactively). - Retroactively fixed "good behavior" credits owed to prisoners, gave credits towards halfway house or in-home supervision programs upon completion of rehabilitation. - Prohibited the shackling of pregnant prisoners.
In total, the estimated number of people affected by The First Step Act was 8,600 prisoners, or approximately 0.4 percent of the 2,153,600 incarcerated individuals reported by the BJS in 2018. For 2019, the DOJ announced the release of 3,100 inmates for good behavior under the new guidelines of The First Step Act.
Criminal justice reform is an issue with some of the longest-standing impact from the 2020 election. Although Trump was smart to arm himself with The First Step Act, he also still has the support of both private prisons and The Fraternal Order of Police, which will predominantly influence his policy.
Meanwhile, the slippery slope for Biden is maintaining enthusiasm from younger voters for his proposals while persuading suburbanites he’s not going to completely dismantle the police. All in all, Biden comes off as he has for much of his career, a "centrist aiming to meet in the middle," while Trump’s brash "law and order" approach wins over his base without being forced to be progressive for moderates.
However, the silver lining of both having an open ear means there are a few policy suggestions we can make to move the needle forward:
1. Provide A Channel For Accountability of State Grants and Diversion Programs
With both sides expressing the desire to increase diversion programs via state grants, having a channel to see where those funds go, the types of programs being run, and the recidivism rate will help determine better ways to spend our taxes on rehabilitation over incarceration.
2. Expanding Upon The First Step Act If Trump Wins
Trump’s expansion of The First Step Act he signed in 2018 could actually emulate many of the accomplishments Biden is vying for, including completely eliminating the disparity between crack and powdered cocaine and abolishing nonviolent mandatory minimums. While unlikely he'd shift more to the left on the subject, The First Step Act is one of the few pieces of bipartisan legislation Trump can point to as a success, which could influence his thinking on what legacy he'd like to leave if reelected.
3. If Biden Wins, Strategically Implementing His Plan With Checks and Balances In Place
If Biden wins, he can look towards the '94 Crime Bill as a blueprint on how to incentivize states to change. By reversing the thinking of rewarding the number of people in prison (or even rehabilitation), a focal point of his plan has to be rewarding states that reduce the number of people incarcerated, in rehabilitation, or recidividing. While we still need parameters to ensure law enforcement isn't neglecting crime in exchange for increased grant funding, the general idea is to incentivize "curing" symptoms of crime rather than "treating" them.
4. On A State-Level, Lobbying For Ending Private Prisons, Increasing Funding For Diversion Programs, and Reversing ALEC’s Legislative Work
As states independently hire private prisons, we can lobby them to end their contracts, as well as use those funds for diversion and treatment programs. Additionally, reversing ALEC's legislative work on a state-level by making it illegal to sell goods made by prisons across state lines closes the labor loophole put in place by The Prison Industries Act.
5. Voting With Our Dollars
Finally, the best way to protest the prison industrial complex is by not spending money with those who participate. Until we completely eliminate the profitable means for prison labor to be exploited, there will always be companies not only willing to use it, but go to great lengths to hide it. As we can’t always rely solely on politicians, it’s our job to hurt them where it counts: their bottom line.
