Federal judges should not simply defer to the Legislative decisions to privatize prison but instead should strike down privatization laws or government actions that strip prisoners of their individual, constitutional right to be free from cruel and unusual punishment while in prison. Private prisons in the US, over 50% of which are managed by Corrections Corporation of America (CCA) are most concerned with generating profit. Rehabilitation programs are costly and decrease profits. Prison officials have an incentive to extend the amount of time convicts will remain in prison, whether through lobbying and campaign contributions or exerting influence at parole hearings. Relying on private prison officials in parole hearings presents a serious threat to justice and due process rights. Further, private prisons tend to have fewer guards with less experience than comparable state run prisons, which presents a threat to the safety of prisoners as well as prison staff and the public at large.

DC inmates, who are relocated to private prisons across the country, are particularly subject to the ills of prison privatization. Removed from home and forced into a distant prison environment, DC inmates frequently lose family ties, have little access to social programs, and are subject to increased abuse by prison guards hired from faraway jurisdictions. Despite these hardships, federal judges, politicians and voters have consistently supported privatization and harsher sentencing measures that create a demand for more private prisons.

Instead of discouraging the building of private prison systems, federal courts have been a catalyst for prison privatization in DC. For decades, DC prison facilities of various sizes and security levels were poorly maintained. The DC Department of Corrections was under pressure from intervening federal courts to improve its facilities. Instead of providing a comprehensive solution for poorly maintained facilities and operational difficulties, or allowing the local DC government to improve state run prisons, Congress invented its own self-serving plan for DC prisons, a law that mandated closure of DC’s largest city run prison facility.

Prison privatization in Washington DC represents a noteworthy departure from democratic processes that protect individuals from cruel and unusual punishment in light of the fact that the Constitution grants Congress authority to make laws governing the DC. DC citizens have no voting representatives in Congress and thus have little bargaining power to influence federal decisions that affect the city’s prison system. In 1997, Congress passed the Balanced Budget Act, which contained the measure to shut down Lorton, DC’s 81 year old public prison complex, located 25 miles south of DC in Fairfax County Virginia. Prior to the Congressional intervention, voters, mainly Fairfax Country residents, lobbied for closing the prison. Although the law did not provide an alternative location or plan to house the Lorton prison population, Senator John Warner of Virginia commented that "D.C. can now provide a more humane, more sophisticated facility for its prisoners."

It is disingenuous to say that forcing DC to close its only large prison complex without a plan for what to do with thousands of inmates was humane or sophisticated. Rather than build a new government run prison, the DC Department of Corrections turned to private companies in distant areas to take its prisoners under contract. One of those companies, Corrections Corporation of America, built the Northeast Ohio Correctional Center to house more than 1,500 DC inmates from Lorton, approximately 99% of whom were black. Holding prisoners so far from home that their families can probably never visit seems unduly harsh. Mandating closure of Lorton was grossly unfair to DC inmates, given that DC had no place to send them other than to a private facility hundreds of miles away.

Rehabilitation, incapacitation, retribution, and deterrence represent intersecting and antithetical views on why and to what degree criminals should be punished. Whatever the goal of punishment by confinement to prisons, prisoners have unique, unpredictable experiences. The reality of what each prisoner experiences - their daily pain and suffering inside prison – are not completely captured in government reports or academic studies. A true measure of punishment is not simply the quantity of time in prison. Instead of mainly focusing on the length of confinement time for various crimes, decision makers, including federal judges, should account for the hardships individual and geographic groups of prisoners face while incarcerated in private prisons.

Federal judges have an obligation to ensure that Congressional laws and government actions affecting DC prisoners are rational ones that protect prisoners from arbitrary decisions made by federal government officials. In light of the fact that DC has no voting members in Congress, and all laws passed by the local DC government are subject to Congressional veto, DC citizens cannot rely on principles of democracy and accountability to preserve their constitutional rights.

-- JosephWilliams - 07 Apr 2008

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