Privatized Justice: Ankle Monitors Are the New Private Prison.

• Author: Cochran, Rebekah M.

I.INTRODUCTION 797 II.BACKGROUND 799 A. Privatizing Imprisonment 799 B. Private Prisons 800 1. The Corporate Duopoly 801 C. Diversifying Interests 803 1. The Prison Industrial Complex 803 2. Electronic Monitoring Technology 803 III. ANALYSIS 804 A. Consequences of Market-Driven Criminal Justice 805 1. Unclear Benefits 805 2. Disinterested Partners 807 3. Lobbying Efforts 808 B. Expansion of Electronic Monitoring 809 1. Lessons from Bail Legislation and COVID-19 809 2. The New Debtor's Prison 810 3. Lagging Legislation 811 C. The Unintended Consequences of Mass Decarceration 812 IV. RECOMMENDATION 812 A. Recognize Mutual Interests 813 B. Incentivize Positive Outcomes 813 C. Contract in Anticipation of Future Market Growth 815 V. CONCLUSION 815 I. INTRODUCTION

The United States has the largest imprisoned population in the world, despite having less than 5% of the world's population. (1) COVID-19 has forced this issue to the forefront, as incarcerated facilities easily became a hotbed of viral transmission. (2) But despite the significant increase in prisoner releases since 2020, incarceration rates in the United States are staggering--one out of every five prisoners in the world is incarcerated in the United States. (3) Moreover, the U.S. Department of Justice (DOJ) estimates that 6,344,000 people were supervised by the U.S. adult correctional system at the end of 2019. (4) The COVID-19 pandemic has presented the United States with a limited case study in mass release and crime rates. (5) Critics of decarceration often raise concerns about the danger that incarcerated individuals pose to society if and when released. (6) Although more study is necessary, there are early indications that alarmists were just that--unduly concerned. (7)

This Note will argue that the real cause for concern is the prevalence of for-profit corporate actors in the criminal justice system. Part II traces the historical roots of prison privatization up to the current major market players and discusses the increasing diversification and resilience these corporations have demonstrated in response to changing public attitudes surrounding criminal justice. Part III explores the issue of government contracting with for-profit corporations, focusing on new opportunities for exploitation in the business of Electronic Monitoring (EM). (8)

If efforts to address mass incarceration continue, (9) legislators should act proactively, anticipating the next steps of private corporations. This Note argues that corporations wishing to stay in the for-profit prison game will increasingly push EM services. Despite claims that EM offers a safe alternative to incarceration, there is already significant data showing how corporations exploit both governments and individuals when marketing these devices. (10) Part IV proposes a solution to the growing push for EM in the event of mass decarceration: an incentive-based model that aligns corporate and public interests.

2. BACKGROUND

   1. Privatizing Imprisonment (11)

      To understand the current criminal justice system and the for-profit corporations which play a central role, it is necessary to understand how and why incarceration became profitable. In the years following the American Civil War, the issue of slavery proved to have been as much a battle for morality and humanity as a battle for cheap labor and profit. (12) The Reconstruction-era South was faced with a pressing economic problem of how to maintain profits in the absence of an uncompensated workforce.

      One of the early examples of a state's response to the labor shortage of the late 1800s is the Mississippi "Pig Law" of 1876. (13) This infamous law made the theft of a farm animal or any property (valued at or above ten dollars) grand larceny, punishable by five years in prison. (14) This law, like many at the time, increased the number of incarcerated individuals and created an opportunity for states to lease prison labor out to private businesses. (15) By the 1930s, unions and prison activists had pushed federal legislation that prohibited the exploitation of prison labor, (16) but the damage was already done. The legislation and policing strategies that effectuated the increased prison population were entrenched. Prisons continued to be filled and by the 1970s, "prison overcrowding emerged as the new rationale for contracting with private companies." (17)

      The exploding prison population was undeniable--the DOJ reported 240,000 state and federal prisoners nationwide in 1975. (18) In 2008, the U.S. prison and jail population peaked at 2.3 million. (19) The upward trend has slowed, with just over 2 million at the end of 2019, (20) but a March 2020 report estimates 2.3 million people are incarcerated across the United States. (21) Unfortunately, even the releases triggered by COVID-19 are already proving to be short-lived--state prison and jail populations are "ticking back up" to pre-pandemic levels. (22)

   2. Private Prisons

      Problems of prison overcrowding were widely known in the 1980s, with two-thirds of states under court order to improve conditions that violated the Constitution. (23) But as the prison population grew, (24) states struggled to balance the need for more facilities and the political pressure to be "tough on crime." (25) Needing a solution to housing the growing inmate population--while still facing the politically unpopular issue of funding incarceration--the war on drugs of the 1980s and 1990s created a perfect storm for corporate actors to enter the marketplace. (26) Private corporations offered a solution to governments overwhelmed by the number of inmates, and privatized incarceration was touted as a logical extension of the free market. There was a belief that corporations--unhindered by government bureaucracy--could offer the same if not better public services and at a reduced price. (27)

      1. The Corporate Duopoly

      Filling that need in the market, CoreCivic (28) and GEO Group (29) became the two largest players in the private prison industry. Since its founding in 1983, CoreCivic has become "the nation's largest owner of partnership correctional, detention, and residential reentry facilities and one of the largest private prison operators in the United States." (30) CoreCivic reported an annual revenue of $1.9 billion in 2020 and $1.86 billion in 2021, (31) operating 113 facilities across 22 states. (32) The corporation is also a major contractor in the temporary detention facility business (specifically immigration detention) and holds the longest-running federal contract in the industry. (33) In 2016, CoreCivic was awarded a $1 billion no-contest bill by the U.S. Administration to build and operate a detention facility for immigrants from Central America. (34) In 2019, it was awarded a five-year contract worth $2.1 billion to provide guard services at a private San Diego immigrant detention center. (35) GEO Group, considered the second-largest private prison corporation in the United States, was given the first federal government contract for a privately operated prison in 1997. (36) Although traditionally showing a smaller profit margin than CoreCivic, (37) GEO Group had an annual revenue of $2.35 billion for 2020 and $2.25 billion for 2021--an over $1 billion revenue increase since 2010. (38) Worldwide, GEO operates and/or manages "approximately 86,000 beds at 106 secure and community-based facilities . . . and electronic monitoring and supervision services for more than 250,000 individuals." (39) Like CoreCivic, Geo Group recently signed large government contracts for immigration detention facilities with U.S. Immigration and Customs Enforcement (ICE) in California--the two 15-year contracts, awarded in 2019, are worth $3.7 million combined. (40)

   3. Diversifying Interests

      1. The Prison Industrial Complex (41)

         For all the public outrage over private prisons, it is important to remember that privately owned and/or managed prisons account for only 8% of facilities nationwide. (42) Private corporations, however, are involved at almost every level of the criminal justice system. A 2017 study by the Prison Policy Initiative followed the money of mass incarceration--a $182 billion industry. (43) While private prisons account for $3.9 billion of that industry, that does not even touch on the number of for-profit interests involved in everything from bail fees to commissary, telephone calls, and video visitation. (44) A 2020 report lists over 4,100 corporations that profit from mass incarceration in the United States. (45) Central to the success of the private prison industry has been its ability to offer diverse product offerings while maintaining ongoing profit margins.

         CoreCivic and GEO Group have expanded their portfolios to include for-profit privatized correctional services, such as ankle monitoring, transportation, and residential re-entry centers (half-way houses). (46) Since 2005, GEO Group and CoreCivic have spent $2.2 billion acquiring smaller companies. (47) CoreCivic seems to have solidified its interest in residential reentry centers, (48) and GEO Group now has a strong foothold in the EM arena. It acquired BI, Inc.--the nation's largest manufacturer of EM devices--for $415 million in 2011. (49)

      2. Electronic Monitoring Technology EM is widely used in the private prison industry. A 2016 PEW report found that its use had more than doubled in ten years. (50) This expansive growth, since first being patented in 1983, (51) can be largely credited to technological improvements in GPS. In the most recent comprehensive study, active GPS and radio frequency device manufacturers reported a nearly 140% increase in the use of monitoring technology--from 53,000 in 2005 to over 125,000 in 2015. (52) While the exact number is unknown, EM is a lucrative business. At any time, there are almost 4.5 million Americans paroled or on probation. (53) That number has only increased with COVID-19 as many have been released to home...