criminal justice

Selling Off the UK Government to the Lowest Bidder

Government outsourcing–contracting private companies to provide public services–can produce amazing results. The process links government revenue with business tools. When a government’s own in-house capacity is limited, contracting private companies can be an essential solution, whether it’s providing stationary or building bridges.

Outsourcing can also be a stressful exercise, as John Glenn, American astronaut and the fifth person to go into space, responded when asked how he felt sitting in a space capsule getting ready to launch and listening to the countdown: “I felt exactly how you would feel if you were getting ready to launch and knew you were sitting on top of two million parts — all built by the lowest bidder on a government contract.”

Shadow State by Alan White XX, pp.

Shadow State: Inside the Secret Companies that Run Britain
by Alan White
Oneworld, 320 pp.

Following the free-market philosophy of Margaret Thatcher, successive UK governments (whether Conservative or Labour, under Major, Blair, Brown and Cameron cabinets) have increasingly relied on massive private companies to provide essential services, like health care and prisons, previously handled by government departments. Research suggests the market for public service outsourcing has an annual turnover of £72 billion: about 24 percent of the spend on public services in the UK. Four companies dominate this landscape: G4S, Serco, Atos and Capita.

They also pay little in taxes. In November 2013 the National Audit Office (NAO) found that, despite holding government contracts worth around £4.5 billion, Atos and G4S paid no corporation tax at all in the UK in 2012. Capita only paid between £50 million and £56 million, while Serco paid £25 million.

In chapter after chapter, example after example, Alan White’s book Shadow State shines a light on the murky, highly lucrative world of government outsourcing and privatization in the United Kingdom. In addition to revealing the inner workings of the largest companies that perform public services, White examines the government’s responsibility to the public who use these services.

As Mark Fox of the British Service Association notes: “when you outsource or privatize…you don’t outsource political responsibility for things” (pp. 215). On the difficulty of holding the UK’s highly centralized government accountability, White notes: “sometimes things go wrong because of contractors, sometimes it’s almost entirely the government department’s fault, and most of the time it’s a combination of the two. But what’s most important is that if blame for poor performance often seems difficult to disentangle between state and private contractor, that’s hardly helped by the mechanisms we have in place to assess such projects” (pp. 151).

The state and the private contractors it hires wield incredible power in pursuit of profits and reduced budgets. Decisions are often tailored to the benefit of businesses and not citizens. White’s book shows why the private sector isn’t democratic, accountable or transparent. It doesn’t give the people who use the services a say. As shown in the cases below, these flaws lead to wasteful spending, injury and even death.

Outsourced Immigration: Dangerous and Unaccountable

In October 2010 Jimmy Mubenga died “a very public death on the last row of seats on a full British Airways flight that was sitting on the runway at Heathrow airport” (pp. 16). The flight was waiting to go to Luanda, Angola.

Handcuffed behind his back, Mubenga was saying “I don’t want to go” and “I can’t breathe” while three guards restrained him: two were sitting either side and held him down, pressing his head between his legs, while a third leaned over the passenger seat from the row in front and occasionally did the same when he managed to pushed back up. The three guards worked for G4S, which at the time had been contracted to oversee Home Office deportations.

Mubenga, who had fled Angola with his family in 1994 after the government killed his father-in-law and threatened him, was now crying for help. The technique used to restrain Mubenga, which is strictly prohibited because it could result in a form of suffocation known as positional asphyxia, was nicknamed “carpet karaoke” by G4S guards. According to one witness, Mubenga called for help around 50 times as he slowly suffocated. He soon lost consciousness and died of cardiac arrest.

In 2014, the G4S guards were acquitted of manslaughter, despite evidence of racism and denying pushing him down; they claimed that he put himself into that position, bent over in his seat.

Jimmy Mubenga is not the only person to have been restrained to death by guards from outsourcing companies. The use of force during deportations is now commonplace, as are serious injuries sustained by asylum seekers and other deportees. The 2008 Medical Justice report, Outsourcing Abuse, documented the numerous injuries sustained by asylum seekers in detention and during forcible deportations. G4S came out as the worst ‘offender’.

Physical harm, including death, has been reported in several sectors operated by outsourcing companies. Yarl’s Wood, an immigration removal detention centre operated by the outsourcing firm Serco, is a case in point. Located in Bedfordshire, this centre houses adult women and adult family groups awaiting immigration clearance. It also houses “a culture of abuse, racism and violence” according to a Daily Mirror undercover investigation. Women are subjected to sexual advances, abuse and assault by the male security guards, including a guard getting a woman pregnant. Guards use the threat of deportation to silence women forced to have inappropriate relations. One woman had been held for four years, which, when one considers the fact that none of these people have been charged with an offence, seems needlessly cruel. Despite these stories and investigations, Serco’s contract to run Yarl’s Wood was renewed in 2014 for eight more years, and it was paid £70 million for the job.

White notes that “there’s a clear need for our legal and political systems to improve the standards of accountability and it extends far beyond this case or other assaults.” As Clare Sambrook pointed out to White in 2013: “G4S [and other outsourcing companies] operate[s] in many countries where such matters don’t come to light” (pp.26).

The Guardian, which broke the story of Mubenga’s death, only realized there was something up because its reporters tracked posts from passengers on the plane who were using Twitter. Because private companies are accountable to their shareholders and not the taxpayers who fund their contracts, transparency is often lacking. In the aftermath of Mubenga’s death, shadow justice minister Sadiq Khan wrote to the four companies responsible for most of the outsourced work involving detaining and transporting suspects and criminals. He got mixed results (pp. 167):

“Serco responded in the most detail, closely followed by Sodexo. GEOAmey refused to divulge any information, instead directing my request to the Ministry of Justice. G4S did not provide any information directly, instead mentioning that the Ministry of Justice and Home Office would respond formally. Unfortunately, neither did.”

It needs to be said that government also has its role in these failures. As White notes, many problems are due to chaotic governance, not the agents of the state. An exchange from the “Atos Work Capability Assessments”, 17 January 2013, between Labour MP Kevan Jones and Conservative MP Robert Halfon is helpful in highlighting both the lack of accountability by government officials who sign outsourcing contracts and their inability to stop subsequent contracts to under-performing firms (pp. 54):

Mr. Jones: The hon. Gentleman is correct in saying that the first contract with Atos was introduced by the previous government, but why did the preset government renew and extend that contract even though they knew about all the problems that he and others have raised in the House?

Mr. Halfon: This is where I agree with the hon. Gentleman. I was very disturbed when Atos got the contract for the personal independence payments.

Mr. Jones: That happened under this government.

Mr. Halfon: Yes, that is what I am saying. The reasons that were given included the fact that the infrastructure was already in place, and the cost of changing the contractor.

The current system is clearly in a dysfunctional state.

Criminal Justice For Sale: Making Things Worse

The private sector’s role in delivering detention services, for adults and children, is growing but not leading to improved conditions, as Chapter 4 shows. Once people leave detention, they face a probation system that is flawed and seems to be working against them.

In April 2012, HMP Oakwood, in Wolverhampton, opened at a cost of £180 million. The G4S-run prison would house more than 1,600 inmates. The jail was soon branded “Jokewood” due to repeated negative news headlines. There was stories of prison gangs running the institution and protests, where inmates accessed the roof for more than five hours. One prisoner told the Guardian (pp. 83):

“I’ve been in jails all over the country. But this was the worst. It’s a shit-hole staffed by kids who should be stacking shelves.” He added that it was easy to get drugs and alcohol: “It’s easy to get hooch, even easier to get Black Mamba [synthetic cannabis]. The parcels are chucked over the fence.”

Of the 13 private prisons in England Wales, “Oakwood and Thameside in London received a rating of one out of four (‘overall performance is of serious concern’), who two others had a two rating (‘overall performance is of concern’)” (pp. 84). This amounts to 30 percent of private prisons being of concern. What is the figure for publicly run prisons? Nine percent. Of the 121 publicly run prisons, only one received a ranking of one (0.8 percent), and only ten achieved a rating of two (8 percent). “Violence is four times higher at Serco-run HMP Doncaster that at a comparable-sized state-run prison” (pp. 85).

The ratings come after private security companies G4S and Serco came under fire for overcharging the government by “tens of millions of pounds” for providing electronic tags for criminals. It triggered a government-wide review of all contracts held by the two firms.

Services within the courts have also been negatively affected by the injection of private companies. A 2013 statistical bulletin from the MoJ showed that courts weren’t being provided with interpreters nearly once every ten times. On each occasion this led to days being lost at crown court, it cost around £10,000–by December 2013 it had cost the Crown Prosecution Service around £17 million in total (pp. 93). These costs and delays were widespread following the government’s move away from the National Register for Public Service Interpreters, an independent voluntary regulator for the 2,200 qualified, largely self-employed, interpreters to private companies.

One such company was Applied Language Services (ALS), which was acquired by Capita before their £90 million, five-year contract was signed. ALS/Capita immediately started to cut pay to interpreters, resulting in a boycott. Staff shortages impaired the courts weekly: murder cases were delayed, friends had to interpret for each other and cases were adjourned due to lack of interpreter. The government eventually admitted its failure, as one Liberal Democrat MP said (pp. 92):

“The department did not have an adequate understanding of the needs of courts, it failed to heed warnings from the professionals concerned, and it did not put sufficient safeguards in place to prevent interruptions in the provision of quality interpreting services to courts. The MoJ’s handling of the outsourcing of court interpreting services has been nothing short of shambolic.”

In a similar vain, the Probation Service were being outsourced to a handful of private providers, without any meaningful piloting or testing, while also severing the working relationship with local authorities, the health service and the police. Shadow justice minister Sadiq Khan wrote about the dangers to public safety that privatization has brought to the Probation Service (pp. 105):

“I’ve heard some truly alarming reports on the chaos privatization is causing: staff shortages caused by rocketing sickness levels and dozens of unfilled vacancies are crippling the service.

“As a result, a backlog of cases is building up, including offenders who have committed serious, violent crimes like domestic violence. Oversight of sex offenders has been handed to staff without the right expertise. High-risk cases aren’t receiving sufficient supervision. Court reports are going unwritten. Senior management time has been sucked into restructuring, neglecting day-to-day duties rehabilitating offenders. New software designed to assess the risk that offenders pose to the public was rushed into service without adequate staff training. It is a shocking state of affairs, which could have catastrophic consequences for public safety.”

Regarding the justice system in the UK, White concludes (pp. 108):

“Whether it’s in the courts, prisons or probation, the Ministry of Justice has outsourced at a breakneck speed in recent years. In part, it’s been done to save money–but all three cases there’s an earnest belief that private companies can bring imagination and creativity to the sectors within which they operate. However, the problem is that the decisions to outsource appear not to have yielded any particularly impressive results yet, while the rush to impose this brave new vision has upset established workers within the justice sector.”

Private Health Care: Poor Value for Money

A final sector to examine is health care. Founded in 1948, the UK’s National Health Service (NHS) has seen a steady shift towards private firms in recent years, with a rise in the proportion of the NHS budget going to firms such as Virgin Care, Care UK and Bupa. Department of Health figures show that the amount of its funding that has gone to “independent sector providers” more than doubled from £4.1 billion in 2009-10 to £8.7 billion in 2015-16.

One rationale claimed by politicians for the privatization of essential services, like health care, is reducing cost. However, as White shows, private contractors use complicated accounting techniques, networks of corporate partnerships and debt-inducing loans to shift their financial risk from themselves onto taxpayers. Private contractors seek to maximize the number of transactions regardless of demand. Many NHS provider operate a loss-leader model where they take annual losses, surviving on funding secured from investors on the promise of more NHS work. “What would happens if this model failed before it succeeded?” White asks. And answers (pp. 124):

“In 2008 Circle took out a £42 million loan from Barclays to open a new independent sector treatment centre at Nottingham’s Queen’s Medical Centre. It was to be repaid through income from the local NHS buying its services. It seemed Circle couldn’t meet the five percent interest rate, so the NHS paid the bill in full, as apparently the firm had an ‘unconditional right’ to compel it to do so.”

Circle Health is owned by a parent company, Circle Holdings plc, which in turn is owned by a series of hedge funds. In just one year, their profits have gone up 160 percent (!), from £64.6 million in 2010/11 to £170.4 million in 2011/12. This type of corporate welfare has become commonplace. Private businesses profit when things go smooth and taxpayers pay the price when things fail.

Social care is another area the government has been outsourcing, with troubling results. There are around five thousand young people in residential care homes–and around three quarters of these homes are run by private companies. In 2011, the top five providers had turned a profit of £30 million. Companies, like Sovereign and 3i, make these high profits by buying up cheap housing stock around the country, to which vulnerable children can be shunted. By shifting childcare from charities to private equity firms, staffing has reduced and children have been abused. In a 2012 report, published by Social Enterprise UK, figures show “that children’s homes in England–caring for 3,040 boys and 1,800 girls–had reported 631 suspected cases of young residents being sold for sex in the past five years. These are just the reported cases: the true figure is likely to be far higher” (pp. 130). The private sector’s business model of moving vulnerable children around exacerbates some of the problems they’re already facing.

Final Thoughts

Beyond the normal discussions regarding conflicts of interest and inaccurate contract pricing, the public (in the UK and elsewhere) need to question the fundamental theory of government outsourcing and privatization. Unlike public infrastructure, essential services are a matter of life and death. Immigration, criminal justice and health care are fundamentally human endeavors. As Peter Holbrook, the CEO of Social Enterprise UK, notes: “most public services rely on human relationships, so upscaling leads to a huge degradation in the quality of service” (pp. 131).

The growing dominance of a few private contractors has lead the UK government to label them as “too big to fail”, meaning that their financial risk is ultimately held by taxpayers. As the world saw with the global financial crisis in 2008, companies were making record profits while the general public went unprotected from corporate greed. Ultimately, the outsourcing of a wide variety of public services to a few bodies is a risk we can not afford.

Increased accountability and transparency are fundamental to preventing the problems discussed above. One of the best ways to achieve these ends in by implementing local solutions on a smaller scale. The Paddington Development Trust (PDT) is a great example of this. The PDT runs youth services, health centres and academies, has refurbished community centres, and has been involved in many more projects, most of which are designed to create employment and business opportunities to residents. The fundamental decision for a government is whether to let money go to companies or inject it into local organizations.

Alan White closes by balancing the gloomy present with an optimistic future (pp. 249-250):

“The general public barely knows this industry exists. Yet it’s an industry that has been responsible for such poor quality service that lives have been lost, that the nation was embarrassed on a global stage in 2012, that the government has been defrauded, that vulnerable people, young and old, around the country, have been repeatedly let down by the state, and still it remains one of the things on which the political class pins its hope for the delivery of public services. Without true transparency, accountability and a market that allows a proper diversity of providers to flourish, the same horrifying stories will be generated, time and again. Until then, the shadow state continues to thrive.”

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The American Injustice System: Slave Labour and Prison Profits

As Huey Freeman quipped, “the prison-industrial complex is a system situated at the intersection of government and private interest. It uses prison as a solution to social, political and economic problems. It includes human rights violations, the death penalty, slave labour, policing, the courts, the media, political prisoners and the elimination of dissent.”

I want to explore two major economic elements within the U.S. prison system below. Firstly, slave labour within prisons and the connection to corporations, whose products are used by most Americans. Secondly, the privatization of prisons, detention centers and other services, which used to be managed by more accountable bodies. Both of these elements are closely tied to American treatment of minority groups, especially African Americans, and people in economic poverty. Both of these elements have also seen recent social action, by the government and the prisoners themselves.

Slave Labour in American Prisons

The American Civil War waged for four years before being won by the northern states. Largely fought over the issue of slavery, the end of the war resulted in the 13th amendment to the United States Constitution. Passed and ratified by Congress in 1865, it provides that:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The most revealing part of this proclamation is the exemption of slavery as a punishment for crime. This has meant that slavery has continued in the U.S. for 150 years! In the years after slavery, a formal prison system formed in the South. Some plantations were bought by the state and turned into prisons. In the short illustrated video below, the Equal Justice Initiative narrates the details around the fact that mass incarceration is a direct descendant from slavery.

As researcher Kevin Bales explains, slavery is composed of three factors:

  1. one person completely controlling another;
  2. violence being used to maintain that control; and
  3. that control being used to exploit people economically.

By their very nature, prisons control people. They control every aspect of prison life including where and when prisoners can move. They control access to basic services like health care and educational materials. They control what food prisoners receive. As these parts are given, they can also be taken away – a form of psychological control.

Human Rights Watch (HRW) has reported on staff brutality and degrading treatment of inmates the occurs across the country’s prisons. U.S. prison inmates have been beaten with fists and batons, stomped on, kicked, shot, stunned with electronic devices, doused with chemical sprays, choked, and slammed face first onto concrete floors by the officers whose job it is to guard them. Jail and prison staff throughout the United States have used unnecessary, excessive, and even malicious force against prisoners with mental disabilities, “even when, because of their illness, they cannot understand or comply with staff orders.” Inmates have ended up with broken jaws, smashed ribs, perforated eardrums, missing teeth, burn scars—not to mention psychological scars and emotional pain. Some have died. In many states, death penalties continue the history of race-based lynching.

Once violent control is established, slavery occurs through economic exploitation. This exploitation is accompanied by paying the individual nothing, or close enough to that. This is exactly what the 13th amendment has allowed the U.S. to do to prisoners for the past century and a half.

According to Alternet, prior to the 1970s, private corporations were prohibited from using prison labor as a result of the chain gang and convict leasing scandals. But in 1979, the US Department of Justice admits that congress began a process of deregulation to “restore private sector involvement in prison industries to its former status, provided certain conditions of the labor market were met.” Over the last 30 years, at least 37 states have enacted laws permitting the use of convict labor by private enterprise, with an average pay of $0.93 to $4.73 per day.

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Whole Foods has sold goods such as fish and cheese produced by Colorado prisoners. McDonald’s has purchased uniforms and plastic utensils made by Oregon inmates. Female inmates in South Carolina sew undergarments and casual-wear for Victoria’s Secret, while AT&T has consistently used inmates to work in their call centers since 1993. From agriculture to technology, the list of businesses – Wal-Mart, BP, Aramark included – that use prison labour in their pursuit of profit is lengthy. American capitalism is inextricably tied to American prison labour. This is, simply, corporate slavery.

The United States government also benefits from the cheap cost of forced prison labour. On average, federal prisoners work 8 hours a day, but they have no union representation and make between $0.23 and $1.15 per hour, over 6 times less than federal minimum wage. Federal prisoners are employed by Unicor, a wholly owned government corporation established by Congress in 1934. Its principal customer is the Department of Defense.

According to the Left Business Observer, “the federal prison industry produces 100 percent of all military helmets, ammunition belts, bullet-proof vests, ID tags, shirts, pants, tents, bags, and canteens. Along with war supplies, prison workers supply 98 percent of the entire market for equipment assembly services; 93 percent of paints and paintbrushes; 92 percent of stove assembly; 46 percent of body armor; 36 percent of home appliances; 30 percent of headphones/microphones/speakers; and 21 percent of office furniture. Airplane parts, medical supplies, and much more: prisoners are even raising seeing-eye dogs for blind people.”

prison-labor-2

Two weeks ago, on the 45th anniversary of the Attica Rebellion, prisoners across the United States decided to do something about this unjust system of slave labour. Just as others have done in the past to gain greater control of their own labour, prisoners protested and stopped all work on September 9th.

This day of action was organised by the Incarcerated Workers Organizing Committee (IWOC), the prison-organizing group of the Industrial Workers of the World labor union, which has been using work stoppages as a means to attack the economic incentive of prisons. On September 9th, more than 24,000 prisoners missed work, which affected at least 29 prisons. This was the largest prisoner protest in U.S. history. Solidarity protests in cities across America also occurred following this day of action.

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I’m hopeful that these types of protests will bring greater awareness to the issue of slave labour within the American prison system and the corporations who profit from this involuntary labour. In the meantime, citizens and consumers also have the power to act by supporting prison reform as well as boycotting products made from prison labour.

While prison labour for rehabilitation may be beneficial for re-entry to society if a decent wage was paid, some prisons exist to lock up people  for as long as possible and solely for profit. I’m speaking about private, for-profit prisons.

Prison Profits

The U.S. locks up more people than any other country on Earth. The country has about 5 percent of the world’s population but more than 20 percent of it’s prison population. To deal with that overcrowding, the US turned to private prisons. Those private companies make big money. Private companies make millions through the construction of new prisons, government contracts for prison management, and providing transportation and probation services to correctional departments. These components of the for-profit American criminal justice system are discussed below.

The two largest for profit prison companies, Corrections Corporation of America (CCA) and Geo Group, played significant roles in crafting criminal justice legislation in the United States, leading to increased mandatory minimums and incarceration rates. Indeed, stipulations are often written into the contracts of prison management companies to require 90 percent occupancy of the facilities. Concurrently, companies cut costs by reducing quality of life and basic care for inmates, leading to overcrowding and inhumane conditions.

This sector of the economy is difficult to investigate. However, in a special investigation of the private prison industry, Shane Bauer, a reporter for Mother Jones, spent four months working as a prison guard at Winn Correctional Center in Winnfield, Louisiana, one of the nation’s oldest private prisons. CCA, the company that runs this prison, takes in $1.9 billion a year and its stock is traded on Wall Street.

One way private prisons can make large profits is through low-wage staffing. At state run prisons, guards were making $12.50 an hour. At private prison, they were making $9 an hour. For this wage, guards like Shane witness stabbings, beatings and prisoners threatening to riot inside the prison on lockdown.

At his morning meetings, Shane recalls that “sometimes there would be 24 guards there for 1500 inmates. There often were not enough staff to keep the prison running the way it was supposed to.” This despite the company’s contract with Louisiana which states that they’re supposed to have 36 guards show up for work at 6:00 AM every day. While Winn is deficient in manpower, CCA’s CEO is making $3.4 million a year, nearly 19 times what the head of the Federal Bureau of Prisons makes. This is the corporatization, the “Wal-Martification”, of the U.S. prison system. In fact, CCA competes with Wal-Mart for employees in the area. Since almost everything that happens at the prison requires guards, fewer guards means fewer programs for prisoners.

To further maximize profits, services at privately-run prisons are kept to a minimum. The physical conditions are barely tolerable. Medical and mental health care are inadequate. Shane met a prisoner who contracted gangrene at Winn and lost his legs and fingers as a result. Shane also found that prisoners were getting an insufficient amount of calories in their meals. Rehabilitation courses, like welding classes, and recreation are absent. Instead, most inmates sit in the dorm all day long. Getting bored, frustrated, and angry.

Prisoners and guards both reported to Shane that Winn was more violent than other prisons they’d been to. For one inmate, “forced fighting and stabbings, it doesn’t surprise me no more, after you’ve seen it so long.” In the first 4 months of 2015, CCA reported 200 weapons found at Winn. That’s 23 times more than were found at Angola, which is a maximum security prison. In his first two months, Shane heard about 12 stabbing that had occurred. However, when he looked at data from the Department of Corrections, it showed that CCA had only reported 5 stabbings in a 10 month period. They weren’t reporting all the stabbings. Little was being done to prevent violence inside the prison.

These conditions are not isolated to Louisiana, either. The documentary Prisons for Profit, made by ACLU Ohio, examines the condition of the Lake Erie Correctional Institute, operated by CCA, in Ohio. In this “institute” violence increases, especially as CCA takes a “no touch” approach, whereby guards are not allowed to intervene when fighting breaks out. Shane was instructed that the protocol in Winn is to verbally tell them to stop and that’s it. Back out, lock the room, and as he told, “Let them cut each other up.” If fighting intensifies to a certain level, chemical weapons are released to maintain order: pepper spray for fighting or stabbings; tear gas if a riot breaks out. One of the classic means for preventing violence is to occupy prisoners time with rehabilitation services, such as schooling. Unfortunately, private prisons cut these programs from their budgets to ensure profits are maintained.

Following the release of Bauer’s expose, a number of changes have occurred related to the private prison industry. The U.S. Department of Justice (DOJ) announced on 13 August that they have decided to stop contracting with private prisons. This is a sign of progress, however, as the Washington Post notes, “The vast majority of the incarcerated in America are housed in state prisons — rather than federal ones — and Yates’ memo does not apply to any of those, even the ones that are privately run.”

On the same day as the DOJ announcement, CCA and GEO Group, the two largest private prison companies in the country, lost almost half of their share value, equivalent to $2.2 billion. Shareholders and former inmates are filing lawsuits against CCA and GEO Group. The prison Bauer worked at, Winn Correctional Center, is no longer run by CCA; unfortunately, the new company is facing budget cuts, which means fewer medical and rehabilitative programs will be offered.

Another area the DOJ directive leaves out is the detention of immigrants, detained by the Department of Immigration and Customs Enforcement (ICE) and U.S. Marshals Service detainees, who are technically in the federal system but not under the purview of the federal Bureau of Prisons. The share of beds in privately operated ICE facilities has risen in recent years, jumping from 49 percent in 2009 to 62 percent in 2015. Mega-corporations like CCA and Geo Group found another area of the American prison system to profit from. In August 2016, CCA was awarded a four-year, $1 billion contract “to build a massive detention facility for [Central American] women and children seeking asylum.” In what the Washington Post described as “an unusual agreement,” CCA will receive “the money regardless of how many people are detained at the facility.”

The Department of Homeland Security said it would reevaluate its use of private prisons. A DHS council will consider whether federal immigration detention facilities should follow the Justice Department’s lead and phase out privatized operations.

The corrections system in the US has also subcontracted services to companies that would normally fall under the scope of local police and sheriffs. The Marshall Project has investigated the case of private prison extradition industry in many states. Each year, tens of thousands of fugitives and suspects – many who have never been convicted of a crime – are entrusted to a handful of small private companies that specialize in transferring the men and women across the country. The Marshall Project uncovered cases of two prisoners dying of perforated ulcers, another woman who was sexually assaulted and a third who had to have both legs amputated from complications of untreated diabetes.

After complaining for more than a week of severe stomach pain and vomiting, William Weintraub was found dead in the back of a private prisoner transport van in Georgia. (GEORGIA BUREAU OF INVESTIGATION)

After complaining for more than a week of severe stomach pain and vomiting, William Weintraub was found dead in the back of a private prisoner transport van in Georgia. (GEORGIA BUREAU OF INVESTIGATION)

These types of services are bad for everyone involved. Prisoners face abuse and mistreatment. At least 14 women have alleged in criminal or civil court since 2000 that they were sexually assaulted by guards while being transported by these companies.

The workers are made to work long hours, to drive unsafe, as companies try to minimize wages paid. The companies are usually paid per prisoner per mile, giving them incentive to pack the vans and take as few breaks as possible. Crashes have killed a dozen prisoners and guards.

The public is at risk of both of these factors. At least 60 prisoners have escaped from private extradition vehicles since 2000, including one who later stabbed a police officer and another who was accused of sexual assault on a minor and is still missing. Prisoner escapes are difficult to investigate as vans constantly cross jurisdiction borders.

It’s difficult to reason that this system is benefiting anyone other that the companies who are profiting and largely unaccountable.

In certain states, private probation companies perform all of the work of an exhausted legal system – from levying fines to collecting payments for misdemeanors – without any need for a judicial authority. This has created modern-day “debtor prisons”. Laws are written that almost exclusively affect people living in poverty. In one extreme example, a woman in Arkansas wrote a check for $1.07 for a loaf of bread. The check bounced and her debt ballooned after fees and fines to nearly $400.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time. In their report, “Profiting from Probation: America’s ‘Offender-Funded’ Probation Industry”Human Rights Watch reports how minor traffic violations, like speeding, or misdemeanor crimes, like public drunkenness, put people in jail if they fail to make adequate payments towards fines and probation company fees.

The business of many private probation companies, such as Sentinel Offender Services, is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time. Thomas Barrett is one such example of this discrimination of the poor:

In Georgia, Thomas Barrett pled guilty to stealing a can of beer from a convenience store and was fined $200. He was ultimately jailed for failing to pay over a thousand dollars in fees to his probation company, even though his entire income—money he earned by selling his own blood plasma—was less than what he was being charged in monthly probation fees.

These examples of privatized criminal (in)justice in the U.S. – prisons, immigration detention, prisoner transport and probation – are just the tip of the iceberg of the current problems that exist within the prison-industrial complex. Until prisoners are treated with respect and given the most basic of human rights, the American justice system will never become just and will never solve the problems of crime that exist in and outside of prison wall.

Here’s hoping for change.

 

The American Injustice System: Manufacturing Criminals

Earlier this year, Netflix released Making a Murderer, a 10-episode series that examines the life of Steven Avery. Avery spent 18 years in prison for a rape he didn’t commit. Avery was exonerated with the aid of the Innocence Project and the actual perpetrator was found. To date, the work of the Innocence Project has led to the freeing of 343 wrongfully convicted people based on DNA, including 20 who spent time on death row and the finding of 147 Making_a_Murderer_titlecardreal perpetrators. The TV series then goes on to follow the prosecution of Avery for a second major crime – murder. I would like to focus on this first arrest and later exoneration.

Making a Murderer follows a long line of documentaries that question the results of the criminal justice system in the United States. From The Thin Blue Line to The Central Park Five, American police and prosecutors have been shown to get things wrong. These are not isolated mistakes but, rather, a trend. A trend of innocent people – mainly young, impoverished, African American males – arrested for crimes they didn’t commit and send to prison for long lengths of time. This trend has a long history. It dates back to the American civil war through the Jim Crow era and into modern day drug policy. The two books The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander and Just Mercy: A Story of Justice and Redemption by Bryan Stevenson document this history well. The result is staggering:

  • The United States has the highest rate of incarceration in the world.
  • In 1972, there were 300,000 people in jails and prisons. By 2012, there was 2.3 million.
  • Seven million people are on probation and parole.
  • One out of three black men, between the age of 18 and 30, are in jail, prison, probation or parole.
  • The United States imprisoned a larger percentage of its black population than South Africa did at the height of apartheid.

Racism and poverty are at the heart of this system. Poor communities and communities of colour receive different punishments than those found in rich, white neighborhoods. This inequality is mixed with a desire for maximum punishment. If there’s any hope at solving the massive problems within the American criminal justice system, the root causes need to be brought to light. The System attempts to do so.

The System is a series of eight documentaries, produced by Joe Berlinger on Al Jazeera English. Each episode examines a single element of the American criminal justice system and can be watched below.

Four of the films explain why so many men and women are imprisoned. The reason is that they’re innocent. An in the other documentaries noted above, if an innocent person goes to prison, a guilty person does not. This means that they can continue committing crimes while innocent parties take the fall. There are four films in The System that explain this and the connection to racial and class inequalities.

An additional four films discuss the harsh punishments that face people (again, many of whom are innocent) once they are locked up in prison and even after they are released. In this era of ‘War on Drugs’ and ‘Law and Order’, the U.S. has passed several extremely harsh punishments. Punishments that also affect children – the U.S. is the only country in the world that has allows sentencing of 13-year-old children to life imprisonment without parole (sentenced to die in prison). These are some of the reasons that America has become the world leader in jailing its own citizens.

The System-Tiles

Locking Up Innocent People

Of the first 250 cases of DNA exoneration in the U.S., 76 percent had eyewitness mis-identification and 36 percent had more than one witness. One reason for these errors, described by Jennifer E. Dysart of the John Jay College of Criminal Justice, is relative judgement – people narrow down their options and pick the one that seems the best. Relative to the others, you choose the one that’s the best.

Try it for yourself. Look at the 12 U.S. pennies below and select the one that you think is correct. (Continue reading for the correct answer.)

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The Penny Test: Which one is correct?

This simple test simulates a police lineup, where images of suspects are given to a witness for identification. Because memories are reconstructed, they are easily subject to contamination by post-event information, says Dysart whose research is profile in the episode ‘Eyewitness Identification’. There are many factors that cloud ones memory including uncontrollable factors (short exposure, lighting, distance) and controllable factors by police and investigators (911 call, crime scene control, witness interviews).

One of the interesting uncontrollable factors is the cross-race effect. In this episode, two innocent black men were misidentified by white witnesses. Even though the witnesses selected individuals who had inconsistent height and did not have the correct physical identifiers, the men were still convicted. In general, people are not very good at noticing differences among other ethnicity. A cross-age effect has also been found in eyewitness identification.

A controllable factor of note is identification procedures. And relates to the penny test above. Law enforcement are supposed to tell the witness: “The real perpetrator (or penny) may or may not be there.” None of the pennies above are correct. If you picked one, you picked the wrong one. The same is true with police lineups. The police pull together images of “suspects” and witnesses select one, whether or not the criminal is actually shown. Dysart and other researchers are working to improve the procedures of law enforcement so that miscarriages of justice like this stop.

Like an eyewitness identification, a confession of a crime is often taken by law enforcement and courts as absolute truth. However, in 27 percent of cases with DNA exoneration, the defendant gave a false confession. In two cases profiled in the episode ‘False Confessions’, convictions were reached largely on the defendant’s confession. One of these cases involve a Las Vegas woman who experienced a sexual assault, an attempted rape. When investigators came to her home to talk, she thought they were saw her as a victim. Instead, they saw her as a criminal. One month after her ordeal, a murder occurred on the opposite side of the city from where she was attacked. Police didn’t believe her story and instead pinned the murder on her.

Beyond disbelief of victims, law enforcement use all sorts of tactics to gain confessions. Police interrogations can be hours long and use lie detector machines, which are unscientific but great at inducing stress. In many documented cases, police have gained confessions from young people, some who do not understand what they are agreeing to. This is exactly what happened to Jeffrey Deskovic, the second case documented in this episode. After 16 years of imprisonment, post-conviction DNA testing both proved Deskovic’s innocence and identified the real perpetrator of a 1989 murder and rape. As a former FBI investigator notes, “confessions are useless without corroboration.”

In ‘Flawed Forensics’, Berlinger examines the recent history of the FBI Laboratory. According to the Washington Post, the Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000. Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project. The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison. This now discredited area of criminal forensics adds to the list of ways prosecutors and courts imprison innocent people in the U.S.

‘Prosecutorial Misconduct’ explores the culture of prosecutors whose goal is to gain convictions at any cost. In a two-part series (part 1 / part 2), ProPublica found several state and federal court rulings in New York in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions. In one such example, a prosecutor was later found, in one case, to have withheld critical evidence from a defendant’s attorney and, in another case, to have manipulated evidence. It wasn’t until a third case was overturned because the same prosecutor lied to a trial judge about the whereabouts of a key defense witness did they lose their job. In most cases, prosecutors who engaged in misconduct are rarely investigated or reprimanded. Disturbingly, several received promotions and raises soon after courts cited them for abuses. As Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association summarizes: “Prosecutors engage in misconduct because they know they can get away with it.”

These prosecutors were helped by police officers who cut corners and played by their own rules. Police officers have been found forcing witnesses to lie in order for them to make an arrest, often threatening charges in other crimes if they didn’t follow police instructions to lie. In other cases, police investigators pick and choose the evidence that fits their theory while ignoring defendant’s alibis or other evidence of their innocence. Together, prosecutors and police have left behind a long history of wrongful convictions in America. Men and women who have decades behind bars for crimes they didn’t commit, while actual criminals aren’t held accountable and, worse, are allowed to remain free.

Wider Injustice Issues

The episode ‘Geography of Punishment’ explores the intersection of wider social problems and criminal justice. In just one year, 50,000 people in New York were arrested under practices known as “stop and frisk”. Civil liberty groups have raise serious concerns over racial profiling since the vast majority of people stopped are black and Latino. There are also concerns over privacy rights. The Bronx Defenders Officer, after surveying six months of misdemeanor marijuana possession cases from a single court, found that in a huge number of instances, police were manufacturing crime. Police were conducting “improper stops, illegal searches [and making] false arrests”. To fight this misconduct by New York Police Department (NYPD), defendants would have to go to court. But their cases, which should have taken 60 days, were stretching to two years due to backlogs in the court system. Many become tired of fighting and having their lives disrupted by court dates, so they are forced to plead guilty. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent, according to the NYPD’s own reports.

The city of New Haven, Connecticut is featured. It embraced “stop and frisk” as well as the idea of drug-free zones. Drug-free zones meant that anyone arrested within certain areas of the city would receive an enhanced penalty: one year for using drug paraphernalia, two years for possession and three for drug sales. Because both policies worked to increase arrests, government official decided to increase the area of these zones. Drug-free school zones increased from 1,000 to 1,500 feet. They then added day care centers and all public housing. The maps below show the result in different communities of Connecticut.

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Drug-free zones in Hartford and Canaan: Schools (blue), day care centers (green) and public housing (red)

In New Haven, virtually all (around 95%) of the city is covered by drug-free zones; the one exception is the golf course at Yale University. Because of this enhanced penalty system, many innocent people feel pressured to plead guilty rather than risk such a harsh punishment. The system disproportionately affected minority population and impoverished people, who live in the inner city. In Connecticut, white people account for 70 percent of the population, but just 28 percent of arrests in drug-free zones. As seen above, suburbs, like Canaan, have far fewer drug-free zones than urban centers. They are also whiter and wealthier than urban centers. This is the unequal geography of punishment.

Worst of all, these zones effectively do nothing to prevent drug dealers from selling near schools, as all areas of the city are labeled “drug-free zones”. Reformers in New Haven are seeking to reduce the area of these zones from 1,500 to 200 feet so that they can actual act as a deterrent, rather than unnecessary additional punishment, as they do today. The problem is bigger than just New Haven, though. Over the past few decades, a report by Mic and Fractl shows, “drug-free zones” have taken over entire cities.

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Once arrested, many people face the additional burden of ‘Mandatory Sentencing’. This episode looks at the issue of mandatory minimum sentences related to gun crimes. In one case, an elderly Florida father fired a warning shot in self defense of his daughter’s boyfriend. Even though this was his first criminal charge, he was sent to prison for 20 years – a mandatory minimum sentence for aggravated assault with a firearm. This episode shines a light on the challenge of create fair sentencing. Law enforcement and legislators pushing these types of laws say they are protecting families and preventing future victims. However, this isn’t always the case as shown by the father protecting himself in his own home.

This episode also touches on the problem of plea deals and bargaining, which are becoming more frequent in U.S. criminal cases, rising from 84% of federal cases in 1984 to 94% by 2001. Because of mandatory sentencing, where judges are not given the option of leniency, prosecutors can persuade defendants, including those that are innocent, to plead guilty and receive a sentence less than the mandatory minimum sentence. Plea bargaining incentivizes innocent people to plead guilty and is another reason for the swell of incarcerated Americans.

In the 2012 decision of Miller v. Alabama, the U.S. Supreme Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. Sentences of life imprisonment with no parole also violate international law and the Convention on the Rights of the Child, which has been ratified by every country in the world except the United States and Somalia. However, there are still more than 2,000 juveniles imprisoned with mandatory life sentences. ‘Juvenile Justice’ follows the case of two young men: one arrested before the Supreme Court ruling, and one arrested after. Both cases involved juvenile males of colour connected to murder cases. Neither actually committed the act but were in the presence or connected to the individuals involved. In one of the cases, the prosecutor said that “he did an adult crime, he’s got to face an adult sentence”.

The notion of treating children like adults in criminal matters runs counter to research by social psychologists. In his book Just Mercy, Bryan Stevenson discusses how young children are developmentally incapable of exercising the judgment, maturity, and knowledge necessary to competently defend themselves against criminal prosecution in adult court. Courts could not give any consideration to the child’s age or life history. Many kids are then subjected to further victimization and abuse in the adult prisons.

Mandatory sentencing, especially against children, do not allow for rehabilitation or a second chance. Instead, they are death sentences which are cruel and inhumane.

Only five percent of prisoners will remain behind bars for life. For the majority who will be released, some will be let out early on parole. Parolees fulfill the remainder of their sentence in the community under parole supervision. ‘Parole: High Risks, High Stakes’ steps inside parole board hearings. The politics of appearing ‘tough on crime’ have meant that parole is granted less often than before – meaning prisoners stay in prisons longer. Parole boards have to evaluate the “threat” a person poses to a community if they were released. With the privatization of prisons and budget cuts, many prisoners are not given the chance to improve themselves. Other will have their past actions brought up again and again, despite any changes they made. For some, parole will be granted. But even this does not guarantee freedom.

After serving 19 years inside prison for burglary, Donald Perry was granted parole. He then spent the next 11 years forging a new life for himself by gaining a college degree and bettering the community by working as an advocate for the homeless. One day, while helping a homeless man, he was arrested due to the other man’s goods. The police claimed that the clothes and electronics were stolen. But the court found Perry not guilty. Unfortunately, the state parole board found that this series of events violated his earlier parole and sent him back to prison. After 30 years of not committing any crimes, Perry would have to fight again to be free. After months of appeals, he eventually was released. However, he was released on parole, again.

Parole is not a free pass. Millions of Americans are living with the fear of being sent back to prison. Even, as in the case of Donald Perry, when they are trying to do the right thing.

How to Solve All of This

The United States was founded on slavery. That economic model of oppression, especially against people of colour, continues to live on today. It lives on through all segments of society, including racial and class inequality within the American criminal justice system. Until the U.S. recognizes this history fully and the modern consequences, it will be difficult to change. Campaign Zero and other movements are proposing comprehensive solutions. But beyond police reforms and and other issues described above, people in the U.S. needs to see each other as equal human beings.

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Policy solutions by Campaign Zero

Today, many prisoners and parolees do not have the right to vote. Because this segment of the population is largely young black men, racial justice through political means is out of their reach. The move by President Obama to visit a prison – the first time in American history – was a brave start but needs to be matched with real reform. Giving prisoners and parolees the right to vote would help start the process of ending disenfranchisement.

Outside prisons, another social problem that must be addressed is mass poverty in the U.S. resulting from income inequality. Lack of jobs leads to financial insecurity. The lack of employment opportunities for prisoners after they are released leads to a vicious circle of recidivism. Three-quarters of released prisoners were rearrested within five years of release. Of those prisoners who were rearrested, more than half were arrested by the end of the first year. These statistics are even more shocking in light of the countless innocent men and women who go to prison under wrongful convictions.

It’s time for America to change.