Open record laws should apply to private prisons, too

Sen. Ben Cardin (D-Md.) introduced legislation  that would make the Freedom of Information statutes that usually apply only to public agencies also apply to private companies that manage prisons. Senator Cardin hopes that increased transparency in private prisons will result in more accountability for them.

Even though many Freedom of Information Act (FOIA) requests served on private prisons have been blocked by courts, we still have all the information we need make decisions about private prison management. The fact that we have these data and still don’t take more action against these businesses shows that Senator Cardin’s Private Prison Information Act probably won’t deliver the accountability it promises.  

{mosads}It’s not as if we do anything meaningful with the records we manage to collect despite the protections provided to private prisons. In 2015, researchers from the University of Wisconsin School of Business secured inmate disciplinary report records from a private prison in Mississippi. Using the reports as proxy for rehabilitation (reformed prisoners, presumably, wouldn’t misbehave while incarcerated) revealed that private prisons issue more disciplinary “tickets” — twice as many, in fact — than their public counterparts.

If anything, private facilities should have lower rates of violence and disciplinary reports since private prison expert and Emory Law Professor Alexander Volokh found that private prisons engage in cream-skimming, meaning they accept into their facilities the inmates more likely to behave or avoid trouble.

The University of Wisconsin study authors postulated that because these reports or tickets were written by employees of a profit-motivated company, they were issued in an attempt to dash inmates’ chances at parole — by making them look like bad risks for discretionary release — so that they would remain in the facility longer, thus earning more money for the parent corporation. Inmates stay 4 to 7 percent longer in private facilities and undercut the projected cost savings of privatization.

It’s not just academic studies that have exposed private prisons’ perfidy. We know from government inquiries that what’s happening inside these facilities is unacceptable. Just last year, the Office of the Inspector General of the Department of Justice found that inmates in private facilities are nine times more likely to be locked down or arbitrarily thrown in solitary confinement, conditions which even the United Nations calls torture.

Violence is 28 percent higher in private facilities. A private facility in Idaho was dubbed Gladiator School for the number of fights within, so many that the FBI commenced an investigation. Reports of maggot-infested food and sexual abuse abound in private facilities.

It should surprise no one that prisoners take the lessons they learn on the inside to the outside. A study released last year by In the Public Interest found that people released from private prisons were more likely to reoffend, and attributed this increased recidivism to the increased violence in private facilities.

But even all of this information, including studies from his own agency, hasn’t stopped Attorney General Jeff Sessions from rolling back an Obama administration directive to reduce the federal government’s use of private prisons.

Given what we already know about private facilities, it’s unlikely anyone will unearth anything drastically worse under Senator Cardin’s proposed law. It’s possible that the Private Prison Information Act will even backfire and provide justification for contracting with companies that treat their wards like animals as long as they adopt an open records policy. History shows that little consequence follows when investigators discover what happens inside.

The question, then, when it comes to accountability for private prisons is not securing data and records, but acting appropriately and decisively when the truth is revealed.

It’s not as if the federal government doesn’t know how to do this; it’s done so in the past. Just two years ago, the Bureau of Prisons cancelled a contract with Management and Training Corporation for allowing the Willacy County Correctional Center to keep its inmates in deplorable conditions like overflowing sewage and subject to staff-on-inmate sexual violence.

Of course, the federal government may not know about other facilities that are neglecting and abusing the people they confine, so more information that would come from the Private Prison Information Act won’t hurt it’s mission to protect prisoners.

But the bill that needs to be introduced somewhere in Congress if we want pure accountability is a bill that sets standards for private facilities and details the consequences for violating them. How we hold private prisons accountable is to shut them down when they mistreat people.

Relying on private prisons almost always proves to be a bad decision,particularly for ‘law and order’ administrations that claim to keep the safety and security of the people in mind. The only way to hold these companies accountable is to put them out of business when they fail to honor their contracts to treat inmates appropriately and safely – something we already know they fail to do.

Chandra Bozelko served more than six years in the maximum-security York Correctional Institution, Connecticut’s only women’s prison for nonviolent crimes that remain on appeal. She is the author of Up The River: An Anthology. Her writing has appeared in the Wall Street Journal and the National Review. She is a 2017 John Jay – Harry Frank Guggenheim Criminal Justice Reporting Fellow, focusing on indigent defense under the Trump administration.

The views expressed by contributors are their own and are not the views of The Hill.