The generally horrible state of the world entices people to blow small pieces of good news entirely out of proportion. Such was the case last week, when the Department of Justice announced that it would phase out the use of private prisons to hold federal inmates. Contrary to popular belief, however, private prisons play a very small role in American mass incarceration, as Vox’s Dara Lind explained in a corrective tweet.
Most prisons aren't private.
Most private prisons aren't federal.
Most fed private prisons are run by DHS.
New memo affects 13 prisons.
— Dara Lind (@DLind) August 18, 2016
As of December 2015, just 12 percent of federal prisoners were in private facilities, most of them immigrants convicted of offenses like illegal reentry. What’s more, immigrants detained in private facilities pending deportation are in Immigration and Customs Enforcement custody, and won’t be affected by the DOJ announcement. Those detention centers can be a deadly nightmare for the hundreds of thousands held in the majority-private system each year, according to a July Human Rights Watch report.
It would be a good thing if other federal agencies like the Department of Homeland Security, under which ICE operates, followed Justice’s lead, as Human Rights Watch and The New York Times have proposed. But even if they did, the core problem is that our society incarcerates too many people, not the details of who incarcerates them or how. Roughly 193,299 people are still imprisoned in federal facilities (including 16,262 convicted of immigration crimes), the vast majority of which are public rather than private. Another 1.2-odd million people are incarcerated in overwhelmingly public state prisons, plus hundreds of thousands more held in local jails.
As of the end of 2014, just 8.4 percent of federal and state prisoners were incarcerated in private prisons. It’s revolting that private business turns a profit from mass incarceration. But the carceral state — meaning a government that in recent decades has been fundamentally organized to police and punish en masse — is a political problem, a disaster created and perpetuated by the state. Cutting private companies out of the deal won’t make things that much better.
Libertarians certainly shouldn’t gloat over this public-sector disaster: Economics has played a key role in the rise and persistence of mass incarceration, which is a problem not of too much government, but the wrong kind of government. As Marie Gottschalk notes in her book “Caught: The Prison State and the Lockdown of American Politics,” “the prison boom created and empowered new political and economic interests that have a large stake in maintaining the carceral state,” including “guards’ unions, private prison companies, public bond dealers, and the suppliers of everything from telephone services to Taser stun guns.”
More generally, mass incarceration arose to discipline and control a disproportionately black economic underclass largely excluded from the post-war economic boom and negatively affected by the transition to a post-industrial service economy that has followed. Mass incarceration took root because we have a government that invests in policing and prisons to deal with problems — economic marginalization, addiction, mental illness, domestic and gun violence — instead of social services and decent jobs to prevent and ameliorate them. It’s not just a budgetary tradeoff: the government’s role in perpetuating inequality and segregation produces criminality and the criminals for the government to lock up.
The idea that mass incarceration is driven by a conspiratorial pact between government and business, or a prison-industrial complex, is undeniably seductive. To borrow a seminal phrase from anthropologist Claude Lévi-Strauss, it is “good to think" with: the relationship between a rampantly exploitative private sector and a complicit state ruled by oligarchs makes sense of a carceral status quo that feeds off and enforces dispossession and exploitation. It also jibes with the ideology of leftists, who were willing to criticize policies of mass incarceration long before that became politically trendy. After all, so much wrong with our society, from worker exploitation to environmental degradation, derives in significant part from the insatiable corporate appetite for profits. It’s not a bad hunch. Private prisons appear to be the apotheosis of a political and economic system that values certain human lives at almost nothing.
But emphasizing private malfeasance is also appealing because it pins the blame for mass incarceration on a diabolical force external to our body politic. It conceives of Americans as the victims of mass incarceration instead of its perpetrators. In reality, government actions can be plenty horrible without privatization. It is the federal Bureau of Prisons, after all, that runs a supermax prison in Colorado where inmates are kept in solitary confinement for 23 hours each day, an institution where one prisoner “cut off both earlobes, chewed off a finger, sliced through his Achilles tendon, pushed staples into his face and forehead, swallowed a toothbrush and then tried to cut open his abdomen to retrieve it and injected what he considered ‘a pretty fair amount of bacteria-laden fluid’ into his brain cavity after smashing a hole in his forehead.”
The roots of mass incarceration lie in a systematically corrupt system managed by a tangled web of opportunistic politicians, some of them sincere and some utterly cynical. Elected officials have used the prison system to mollify real public fears about crime — which can be considerably exaggerated, especially in an era when rates of violent crime have precipitously declined — and also to exploit racist paranoia and anti-civil rights backlash politics. Ending mass incarceration requires much more than rejecting shady contracts with private operators. It requires transforming a social contract that has never included poor people, especially those who are black.
Michelle Alexander, criticizing the notion that there is a quick technical fix to American policing, wrote that a real solution requires that we “get honest with ourselves about who our democracy actually serves and protects." The same holds true for our bloated prison system, which is filled by police and prosecutors enforcing democratically approved criminal statutes as ordered by the elected officials who ultimately supervise them.
Black Lives Matter, Occupy Wall Street and a broader youthful revolt against a status quo of mass immiseration have forced some progress. The rate at which people are being incarcerated has already declined; it’s just not declining fast enough, given the huge number of people serving incredibly long sentences, to render this country’s prison population less outrageous anytime soon.
The bad news is that the state made mass incarceration, and fighting privatization and profiteering aren’t enough to undo it. The good news is that we live in a democracy, however flawed, and through the hard work of organizing a transformative political movement, critics can take the state over. It won’t be easy. But the past few years of mass mobilizations in the streets and at the ballot box suggest that it can be done.