Private Prisons and the Shift in Marketplace From the War on Drugs to the War on Terror

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This paper outlines the emergence of a new marketplace in the United States, immigration detention, especially after September 11th. This phenomenon is not limited to the United States, but is also observable in other countries as the result of the globalized economy. This paper first explains how the private prison industry adapted from shaping harsh drug law sentencing during the War on Drugs to now sponsoring legislative bills that target immigrants, the new “cash crop” for the private prison industry. Because of the securitization of immigration governance, politics of fear are easily used to justify and build public support for a tough stance on immigration. The end result is that immigrant detention is a highly lucrative and record-breaking profitable enterprise for private prison corporations, with little accountability in its treatment of immigrants and with more and more power in sponsoring and shaping legislation beneficial to their bottom line. Implications now that Trump, who ran a very xenophobic presidential campaign especially hostile to Mexicans and Muslims, are discussed.

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This article contributes to scholarship that conceptualizes an 'immigration industrial complex', but argues against assertions that the complex represents a 'confluence of interests' or an unintended consequence of immigration policy enforcement. Instead, law regulates immigration and constructs 'illegality' in the interests of global (US) capital. This analysis has two implications. First, private government contractors are only one segment within a broader complex. Second, enforcement through policing, detention, and deportation may not appear to serve the short-term interests of businesses that depend on undocumented workers, but these practices reflect state investment in the expansion and accumulation of capital. The article refocuses attention toward our collective 'race to the bottom'.
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Contracting with private corporations to construct and/or operate prisons has become a commonly proffered response to problems of prison overcrowding and limited corrections resources. The involvement of private for-profit corporations in corrections has implications for who participates, how they participate, and where participants influence corrections policy making, as well as for the dynamics of that process. Or, in the language of political science, the participation of private corporations in corrections has consequences for the corrections subgovernment and for monitoring and accountability within that subgovernment. This article describes likely changes in the corrections subgovernment as a consequence of the privatization of prisons. The article is primarily theoretical, with the expectation that this subgovernment model will subsequently be tested empirically. Suggesting issues of monitoring and accountability that may arise with changes in subgovernment politics, it recommends that the National Institute of Justice convene interested parties to address these concerns.
This Article argues that the U.S. immigration detention system, the largest law enforcement operation in the country, operates with structural impunity resulting in the perpetual abuse of the detained population. There are no enforceable regulations and no accountability mechanisms to protect the nearly thirty thousand individuals held in the Department of Homeland Security's ("DHS") custody every day. A culture of abuse and "othering" of immigrant detainees has resulted in numerous reports of dehumanizing physical, sexual, and medical abuse. This structural impunity is exacerbated by the near total privatization of the detention system and corresponding restrictive Supreme Court decisions absolving private-prison companies of liability. This Article argues that the reform of the New Orleans Police Department in the aftermath of Hurricane Katrina can be used as a model to transform the immigration detention system by providing accountability for abuse and oversight for civil rights violations.
In recent decades, the criminalization of immigration and the use of private prisons have increased in popularity. The criminalization of immigration and the privatization of prisons work hand in hand in shaping the American criminal justice response to immigration. Privatization creates a powerful opportunity for the social construction of the undocumented immigrant into a powerful potential source of revenue for for-profit corporations. Private prison corporations, such as Corrections Corporation of American and The GEO Group, stand to profit significantly from the private immigration detention center. Several investigative reports have focused on how these companies stand to profit, but little attention has been given to the psychosocial consequences that impact immigrant detainees and their families.
The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private contracting.Public-private contracts are subject to systematic biases that cause the parties to impose a cost on service recipients in the form of low quality service. Because there is essentially no competitive market for these services, the contracting parties are not forced to internalize these costs. As a result, contracts tend to be underpriced. Thus, what appears to be a cost-saving mechanism is often, in fact, a systematic market failure.This Article proposes two unconventional and counterintuitive solutions to force the parties to internalize the cost of poor service provision. First, it suggests reading into public-private contracts a mandatory duty to act in furtherance of the public interest. Although efficiency theory assumes that mandatory restrictions on contracting parties are inefficient, a mandatory rule is justified, here, because the law must protect non-parties to the contract who cannot adequately protect themselves. Second, this Article argues, based on, behavioral economics studies, that these contracts should be less detailed. Although agency theory suggests that detailed tasks, performance incentives, and monitoring mitigate agency costs, those mechanisms do not work with public-private contracts. Studies indicate that less detailed contracts that rely on social norms such as reciprocity may better align incentives.
he publication of Samuel Huntington's Who Are We? The Challenges to America's National Identity provides an opportunity to consider several distinct underlying assumptions about American national iden- tity, and to evaluate the claim that this identity is threat- ened by growth among native-born and immigrant populations of Latin American origin, particularly—but not exclusively—Mexicans. It is certainly the case that Latin American migrants and their descendents make up a large and growing share of the nation's population, and that Mexicans and Mexican- Americans are the overwhelming majority of this group. The timeliness of Huntington's work is apparent when one considers that the 2002 Current Population Survey conducted by the U.S. Census Bureau estimated that Lat- inos 1 surpassed African Americans as the nation's largest identifiable ethnic/racial group 2 comprising 13.5 percent of the national population. This growth is fueled by both higher fertility rates and continued immigration. And while others would debate this (see Alba in this symposium), we are inclined to accept Huntington's characterization of this migrant flow as unlikely to stop or even slow anytime in the immediate future. As a result, population projections of the Census Bureau estimate that Latinos may comprise as much as 25 percent of the national population in 2050, when people of primarily European ancestry are estimated to comprise only 52 percent. 3
More than a decade ago, Jonathan Simon warned of an expanding interest in locking up refugees. According to Simon, asylum seekers were to provide a new population for mass incarceration. The border was to become the new criminal justice frontier. In 2010, Simon‘s view appears to have been borne out, though perhaps not entirely as he predicted. While the imprisonment of immigrants has indeed boomed in recent years, it is not refugees but a rather more varied population of non-citizens — undocumented workers, "criminal aliens," and, "enemy combatants," which has filled American penal institutions. This article considers these foreigners behind bars.
Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly a decade were abruptly thrown into reverse.Major shifts in policy generated by federal immigration reform legislation have likewise created a sense of crisis that pervades the practice of immigration law. The uncertainty produced by sweeping reform legislation enacted at a rapid pace has confounded attorneys and judges alike as they struggle to discern applicable legal standards and procedures with a backlog of cases requiring their urgent attention.As immigration reforms increasingly enhance the role of law enforcement and incorporate criminal penalties, the regulation of non-U.S. citizens - particularly those with criminal convictions in their pasts - has become intimately involved in crime control. Immigration control is increasingly adopting the practices and priorities of the criminal justice system. Many scholars and commentators are describing this unprecedented intimacy as the “criminalization of immigration law.” It has motivated immigration scholars to document harsh, law enforcement-focused reforms in the treatment of non-U.S. citizens and the impact of these reforms on immigration procedures and practices. This scholarship largely documents the reforms and their consequences in much the same way as crime scholars initially focused on documenting the fact that a shift in the balance of crime legislation of great significance had occurred. Although the horrific events of September 11, 2001 immediately produced an urgent new agenda for controlling crime within immigration law, the reasons underlying such heavy reliance upon punitiveness within immigration reforms of the 198''0s and 199''0s are hardly self-evident.This paper seeks to clarify why these reforms are taking place, why they are taking place at this historical juncture, and why they rely heavily on criminal punitiveness by drawing upon the new penological literature that seeks to explain the broader significance of changes in crime control strategies and practices over the past three decades. In doing so, this paper will clarify the relationship between recent, harsh immigration reforms adopted both pre- and post-9 11 and the severity revolution within crime control that has been documented by crime scholars.
In this paper I trace the changing practice and politics of North American border controls and analyze the implications of these changes for cross-border relations and continental integration. More than ever, I suggest, North American relations are driven by the politics of border control. I first examine U.S. border control initiatives before 9-11, and argue that these were politically successful policy failures: they succeeded in terms of their symbolic and image effects even while largely failing in terms of their deterrent effects. I then highlight the border-related economic, bureaucratic, and political repercussions of 9/11. I show why the task of border control has become significantly more difficult, cumbersome, and disruptive in the post-9-11 era, with significant ramifications for the North American integration project. I conclude by outlining three possible future border trajectories.
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