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Why focusing on private prisons won't end mass incarceration

Attacking private prisons is easy for Democrats. That's exactly the problem.

Hillary Clinton has announced that, under pressure from both immigration and racial-justice activists, she's no longer accepting direct donations from private prison companies. The money she's already gotten from them — $133,000 — is a drop in the bucket of a campaign that's raised $28 million in the past three months alone. But in the Democratic primary, the private prison industry has emerged, by consensus, as the villain of the mass-incarceration story.

Both Bernie Sanders and Martin O'Malley called to stop giving contracts to private prison corporations in their criminal justice platforms. Sanders went further: He's introduced a bill in the Senate that would ban them entirely (by also prohibiting state and local governments from signing contracts with prison companies). And after Hillary Clinton met with activists from the Black Lives Matter movement and Campaign Zero in October, the first report out of the meeting — from Ari Melber on Twitter — was this:

It's easy to see why the candidates are gravitating toward "end private prisons": Most criminal justice issues require them (both as Democrats in general, and as individual politicians) to acknowledge that the "tough-on-crime" policies they've supported in the past were a bad idea, but this one just allows them to add the Corrections Corporation of America to their existing stump speech attacks on the Koch brothers. But if ending private prisons turns out to be the main promise that Democrats make to Black Lives Matter, it will be a much bigger victory for a lot of other people than it will be for the movement itself.

It makes sense for immigration activists to pressure candidates on private prisons

At least some of the credit for bringing the issue of private prisons into the Democratic presidential debate goes to immigration activists. Last week, an activist interrupted Hillary Clinton during her speech at the Congressional Hispanic Caucus Institute gala to challenge her on the campaign donations she's received from the prison industry.

On immigration, ending private prisons really would have a substantial impact. Privately operated prisons have always been a big share of immigration detention centers. Right now, they account for a majority of all immigration detention capacity: 62 percent of the beds in immigration detention are in private facilities.

More importantly, though, the executive branch has a lot of leeway when it comes to immigration detention. A President Clinton or President O'Malley, through the Department of Homeland Security, would have the power to say that no immigrant should be held in detention — private or otherwise — unless he or she was a clear risk to public safety. That wouldn't immediately end the private contracts, but it would certainly prohibit the government from inking new ones — and it would allow them not to renew the ones they already had.

Many Black Lives Matter activists see immigration detention as one of the mass incarceration issues they need to address. But it's not at the centerpiece of their platform. And, more importantly, ending private prisons isn't just being presented as a reform to immigration detention — it's being presented as a reform to mass incarceration itself.

Private prisons just aren't a big factor in mass incarceration

There are a lot of people and institutions to blame for the rise of mass incarceration in America. But as my colleague German Lopez has pointed out, private prison companies just weren't one of them. Mass incarceration created the prison industry, not the other way around.

Even today, private prisons (as opposed to immigration detention centers) just aren't holding very many American prisoners. Only 16 percent of federal prisoners are in private facilities. Only 6 percent of state prisoners are.

Prison Policy Initiative

There are legitimate and serious policy concerns about the operation of private prisons. Some prison contracts (particularly in states) require the prison to be at least 95 percent full at all times — which makes it difficult for state legislatures to save money by passing laws to put fewer people in prison. And as Lopez has written, because private companies have an incentive to keep costs low, they're likely to skimp on proper security or living conditions for inmates. (No one should think that not taking care of inmates is something unique to privately run facilities, though; Sandra Bland died in a government-run jail.)

But while they almost certainly wouldn't mind better conditions in prisons and jails, Black Lives Matter and Campaign Zero are more preoccupied with how so many people are being put in prisons and jails to begin with (or being killed by law enforcement officers without ever seeing the inside of a cell). And it's just not clear that ending private prisons will do much to help.

Can the president really end private prisons?

Unlike with immigration detention, it's not clear how much President Clinton or President Sanders could even do to eliminate private prisons in America. Yes, private prisons hold a bigger share of federal prisoners than state ones — but because most prisoners in America are in state prisons, there are still more people in private prisons in the states than there are in private federal prisons. And if the Department of Justice stopped inking new contracts with private operators and moved aggressively to break existing ones, it seems possible that private prison companies would simply turn to the states and offer them cheaper contracts to use whatever prisons the feds abandoned.

It is hypothetically possible that the Department of Justice could use DOJ grants to incentivize states to drop private prisons — making it a condition of the Byrne JAG grant program for police departments, for example. But that goes back to the question of importance. There are so many things the federal government could start requiring cities and states applying for Byrne JAG grants to do — especially regarding policing — that would be in line with the policy platform Campaign Zero has laid out. Does it really make the most sense to use that capital not to improve policing at the state and local level, but to encourage states to run their own prisons?

Black Lives Matter's success has been reminding Democrats that they share some of the blame

Of course, ending private prisons isn't the first thing that criminal justice and racial justice activists are asking for from Hillary Clinton, or from anyone else. The reason it's become so prominent is that it's the request the Democratic candidates are most eager to agree to.

The reason that "end private prisons" has become Democratic candidates' leading criminal justice reform proposal isn't about its policy efficacy. It's because it appeals to a progressive view of politics: that private corporations are in control of politics, and are using their influence to make policies that are good for their profit margins but bad for human beings.

People with that view of politics might think that mass incarceration is inherently bad, sure. But what is most outrageous to them is that people could make a profit off it. So it's easy for them to add "end private prisons" to a list of demands about curbing the influence of money in politics — as three progressive groups pointed out in a letter to the Democratic candidates before the first debate, it's "a priority that connects racial justice and economic populism." In other words, it's totally in line with how progressives and Democratic politicians think about the world.

But the entire role of the Black Lives Matter movement (broadly construed) in the Democratic primary so far has been to challenge Democrats to think about the world differently. They've confronted Democrats with their own complicity in getting America to where it is today, rather than allowing them to point the finger elsewhere. Using a confrontational approach isn't necessary when you're just looking to convince people that something they already thought was a big problem is a really big problem. It's needed when people need to be reminded that they share a role in the problem, too.

Activist Tia Oso takes the stage during a town hall with Martin O'Malley and moderator Jose Antonio Vargas at Netroots Nation 2015.
(Charlie Leight/Getty)

If the next Democratic president adopted a broadly aggressive criminal justice reform platform, she wouldn't just face pushback from the private corrections industry. She'd face pushback from the other established interests that are already more vocally opposed to reform: prosecutors' groups, law enforcement unions, towns and counties where prison is the biggest source of jobs or revenue. Profit isn't the only incentive to lock people up — plenty of people working for the government believe this is their duty to the public. Those aren't arguments that Democrats are used to countering, or interest groups they're used to fighting. And ending private prisons doesn't make it any easier to fight the tough battles, or even to demonstrate why broader reform is necessary.

There's an ongoing debate among criminal justice activists — as there is among all activists, everywhere — about whether incremental reforms make it easier to do more down the road because politicians have already committed themselves to the issue, or whether they make it harder because politicians think they've "done something" about the problem. It's an open question. But one case in which it's particularly unlikely that one reform will lead to others is when politicians are presented with a list of problems that they share some of the blame for, and solutions that will require them to anger people they're not used to angering, and pick the one problem and solution that comfortably fit into their preexisting views.