On the Commodification of Human Beings

For-Profit Prisons and the Social Production of Criminality

INTRODUCTION
Although the overall crime rate in the U.S. has fallen since 1980 (Western, Beckett, 1999, p. 1033), the rate of incarceration and the length of sentences has increased. Along with this, the prosecution of such “victimless crimes” as drug offenses, also has increased. Also on the rise is the rate of recidivism. The only substantive decrease has been in rehabilitation.
This paper argues there is a correlation between the development of a penal system that has a profit motive and the subsequent rise in rates of incarceration. Under the guise of “getting tough on crime,” prisons are expected to defray their own costs, even turn a profit. Private entrepreneurs warehouse prisoners from other districts, as well as hire out prison labor for industries such as telephone operations, demolition, and manufacture.
Social institutions have the understood purpose of benefiting and protecting the individual members of society, as well as society itself. To such ends, prison reform through most of the twentieth century has focused on the rehabilitation of criminals. Having served their time in a rehabilitating fashion, ex-convicts were expected to be reincorporated into society as productive members. However, the introduction of a profit motive for the incarceration of people has greatly reduced the role of rehabilitation. Furthermore, incarceration produces long-term difficulties to reentry into the workforce (Western and Beckett, 1999, p.1041).
Not only ethically questionable (Anderson, 2000, p.12), for-profit prisons are contrary to the objective of reducing the public burden of supporting prison populations. Instead, for-profit prisons reduce the population of potential workers, change them from tax-payers to tax-consumers, contribute to a decline in wages for free workers, and shrink the overall economy.
Society must create new members to propagate itself. To the extent that society produces criminals instead of productive citizens, society fails to adequately reproduce itself. It could be argued that society also fails the criminals, who have somehow not been properly enculturated into becoming productive citizens.
Reformation of criminals long has been a tenet of American penology (Conley, 1980, p. 257). This notion presupposes that criminals are rational actors. If then, crime is a choice and not a pathology, it is arguable that the social mechanisms that inculcate positive or non-criminal choices in “good” citizens have failed to work that same magic on criminals. Society has failed to provide the means by which criminals can rationally choose to act in non-criminal ways. Therefore, it is more practical to socialize prisoners in a manner that will allow them to participate in productive society rather than to punish them for crimes against it.
Revenge is costly. Supplanting rehabilitation with punishment prevents real restitution. Worse, punitive measures have not been demonstrated to effectively deter crime nor lessen recidivism (Harvard Law Review, 1996, p.876).
Unscrupulous entrepreneurs have “absolutely hoodwinked” (Hallinan, 2001, p.176) society into thinking that the privatization of prisons or the introduction of a profit incentive reduces the cost of imprisonment to society. It has not been proven that private prisons are less costly than publicly managed ones (Perrone and Pratt, 2003, passim). Most importantly, the fact that profits can be generated by incarceration shifts the economic objective from producing good citizens to producing bad ones.
Sociology is a powerful tool for understanding the human condition. Yet its full benefit cannot be felt unless this understanding is applied to the construction of society and its social institutions. The purpose of this paper, therefore, is not to present new data, but to advocate the use of existing data to guide social change. Sociologists are privy to the science of society; implicit in this is the charge to improve it.

REVIEW OF THE LITERATURE
Obtaining information relevant to this topic has been difficult. No literature reviews or meta-analyses on the specific topic were discovered. The difficulty may be partly due to the nature of the topic of for-profit prisons, to which there is an ethical as well as an economic component. While the field of sociology is ideally suited to the convergence of these two aspects, a wider-ranging search of scholarly work may be necessary to service such a topic. Journals of ethics and works on criminal justice theory might enhance further research.
Though a survey of the literature has failed to turn up a scholarly review of prisons for profit and the prison-building spree occurring since 1980, useful material does exist. Of this, the preeminent work is the book Going Up the River: Travels in a Prison Nation by the journalist Joseph T. Hallinan. This work has been the primary source for this paper’s background in the history of U.S. prisons, as well as their current social and economic settings.
Hallinan mixes history in with his interviews of wardens, prison guards, and locals from the towns that are home to some notable U.S. prisons he visits. This strange travelogue describes the “prison-industrial complex” at local, state and federal levels, as Hallinan peppers the work with attention-grabbing statistics.
For instance, in 1939, the U.S. incarcerated 137 out of every 100,000 of its citizens. Sixty years later, that ratio had increased to 476 out of every 100,000 (Hallinan, 2001 p.xiii). Hallinan (2001) goes on to cite a federal government prediction that one man in eleven will do time in prison (p.xiii).
Much of the work follows the rise of the Corrections Corporation of America, or CCA, “which controls 55 percent of the private penal facilities in the U.S.” (Hallinan, 2001, p.164) and more abroad. In 1995, it housed a little better than two percent of the incarcerated population (Hallinan, 2001, p.165), which sounds trivial, but it was better than thirty-seven thousand people.
The thrust of Hallinan’s work reconstructs the social world of the prison boom. There is complex interplay between rural poverty, political insiders, and the big business of private prisons.
Poor rural towns are homes to most of the prisons built today. Building prisons means jobs for their depressed local economies, and so “powerful state legislators had wanted them in their districts” (Hallinan 2001, p.84). One of Hallinan’s sources in this area comes from Daniel L. Feldman’s Twenty Years of Prison Expansion: A Failing National Strategy. The article develops the relationship between party politics and the siting of prison facilities, drawing on Mr. Feldman’s experience as a New York state legislator. Feldman noted that nearly ninety percent of his state’s prison inmates were in rural, Republican districts. These districts also received nearly ninety percent of Department of Corrections expenditures (Feldman, 1993, p.561-562).
This coincided with the Republican ideology of getting tough on crime, especially drug offenders. Feldman (1993) faults the war on drugs for much of the population explosion in U.S. prisons. Drug offenders in New York state prisons swelled from 12,000 to 63,000 in twenty years (562).
Prisons for Profit was the title to no less than three separate articles by three different authors, a fact that in itself shows the lack of literature review on the subject. The first was published in the spring 1992 Journal of Human Rights. It draws attention to the questionable practices of CCA, citing political land pandering as well as human rights violations.
The second article, from the UNESCO Courier, shows the plain conflict of interest that for-profit prisons have. It predicts that a “criminal justice industrial complex” could, as a political force, “affect incarceration rates, length of term, and conditions of confinement based not upon societal interest but the profit motive.” (Cavise, 1998, p.21)
The last article of this name also questions the ethics, but goes further, attacking the very premise that the private firms are cheaper. Underbidding is a foreseeable danger, “when the contract came up for renewal, the firm might raise its per diem fees for the inmates by 20 or 30 percent.” (Anderson, 2000, p.12) Not having its prison space to house the inmates, the state has no choice but to pay the higher fees.
Once entrenched, the for-profit prison is difficult to remove. The article quotes Oklahoma State Senator Cal Hobson, pointing out that for-profit prisons are politically protected by being sited in poor rural areas, whose communities decry their closing: “The local chamber of commerce and the mayor complain, then the local legislator says to the government, ‘You can’t do that.’ So the private prison becomes the equivalent of the community’s junior college, and you’re stuck with it because of the jobs.” (Anderson, 2000, p.13)
But more germane to this paper is another aspect of political lobbying. Anderson (2000) writes, that in addition “to seeking a greater flow of prisoners to the beds of private prisons, lobbyists also work to increase the level of inmates classification . . . because the higher the classification, the greater the level of the state’s payment.” (p.13) The growth in spending is staggering—Oklahoma’s annual spending on corrections went from three million dollars to one-hundred million in just five years (Anderson, 2000, p.13).
Perhaps most insightful to the aspect of for-profit prisons as “bastions of cheap labor” is Nicholas Stein’s Fortune magazine article, “Business Behind Bars,” which draws on Reagan-appointed former Attorney General Edwin Meese. For years, Meese lobbied to utilize prison labor for more than “stamping license plates or building courthouse furniture.” (Stein, 2003, p.161)
Prison labor is proposed as an alternative to overseas labor exportation. Stein (2003) notes that labor-intensive work such as computer recycling or the manufacture of hardwood floors can be performed by prison labor (p.161-162), instead of foreign labor.
Stein rightly points out there are rehabilitative as well as economic benefits to the use of prison labor. Theoretically, businesses “get cheap, reliable workers; inmates receive valuable job training.” (Stein, 2003, p.161) But the marketability of such training is questionable. Stein (2003) himself mentions that the hardwood floors “would be prohibitively expensive to make outside the prison fence.” (p.162)
Another advocate of prison labor is Jeremy Travis, director of the National Institute of Justice, research branch of the U.S. Department of Justice. Though it does not “necessarily represent official positions or policies of the U.S. Department of Justice (Travis, 1999, p.106),” his article in Corrections Today proposes measures to increase participation in prison work programs that are fraught with barriers (passim).
Among the barriers Travis proposes to surmount are issues of prison design, management policies, and work programs. Travis (1999) first recommends that prisons be redesigned “to accommodate factory, workshop and office-like areas.” (p.103)
Travis also suggests that the mind-sets of wardens and staff be re-oriented away from “population control and housing.” To accomplish this, he suggests building “profit-sharing and promotional opportunities for correctional staff engaged in prison industries.” (Travis, 1999, p.103) This topic is treated in greater detail by Hallinan (pp.173-176).
Yet the most chilling of Travis’s (1993) proposals is centered on a single conjunction in this quote: “[Proposed] grants would require prisons to demonstrate new production methods, target new portions of their inmate populations, support some new part of their prison needs through internal production, develop restorative justice enterprises for nearby communities or try new marketing approaches (p.104, italics added).”
Marxist theory is borne out with the first “moral and economic viewpoint” that Travis (1993) cites as rationale for prison labor: “In a full-employment economy, America must invest in bringing all of its human capital to market (p.102).”
Full employment is challenged in Bruce Western’s and Katherine Beckett’s (1999) article for The American Journal of Sociology, entitled “How Unregulated Is the U.S. Labor Market? The Penal System as a Labor Market Institution.” Western and Beckett (1999) construct a statistical model that shows U.S. unemployment rates are kept artificially lower through incarceration (p.1041).
The folly of U.S. penal policy is characterized by its comparison to Europe’s. By concentrating funds on incarceration, the U.S. “deepens market inequalities,” while the European model of welfare “lifted about half the nonelderly poor out of poverty (Western and Beckett, 1999, p.1042).”
Faulty economics continue to bear out Marx’s notion of the upward spiral of investment in human capital. Western and Beckett (1999) conclude that for the U.S., sustained “low unemployment depends, in part, not just on large stage intervention through incarceration but on a continuous increase in the magnitude of this intervention (p.1042).”
Passing use was made of “Comparing the Quality of Confinement and Cost-Effectiveness of Public Versus Private Prisons: What We Know, Why We Do Not Know More, and Where to Go from Here” by Dina Perrone and Travis C. Pratt (2003). Their research illustrates the difficulties in comparing the actual costs of privatization.
The major flaw Perrone and Pratt discovered in their review of cost assessments is the mismatch of compared institutions. The authors note that some studies compare private facilities to public ones of a greater security level (Perrone and Pratt, 2003, p.306). Three studies compared real costs to hypothetical ones (Perrone and Pratt, 2003, p.313). Other methodological problems included hidden costs, incomplete lists of expenditure, and lack of control for differences in managerial style (passim).
In the best light, their research showed a savings of $3.40 per diem over public facilities. This savings is meager even when multiplied by the 2.1 million inmates (Stein, 2003, p.161) incarcerated in the U.S.—which yields $7,140,000 in savings, a mere 0.238 percent of the $3 billion (Stein, 2003, p.161) expended twenty years ago. But when taken with a grain of methodological salt, as Perrone and Pratt suggest, this savings is questionable.
Contrasting views on the issue of privatization were found in Privatizing Correctional Institutions, a compilation of essays edited by Gary W. Bowman, Simon Hakim, and Paul Seidensat.
This work offers a comprehensive view of the issues raised by the aforementioned articles. It can be said that some of the noblest intentions pave the road to privatization—indeed as former Supreme Court Chief Justice Warren Burger states in his forward to the book, no person “should leave a correctional institution without . . . vocational training that will be salable in the employment market (Bowman, 1993, p.ix).”
But to believe in the power of profit to redeem or rehabilitate is naïve. Indeed, the jeopardy to an inmate’s Constitutional rights is pointed out by Harold J. Sullivan. Private prisons cannot be legally accountable in the way that public institutions are, because they are not subject to the U.S. Constitution, which “restrains state power not private conduct. The liberties protected by the Bill of Rights and the Fourteenth Amendment are protected only from infringement attributable to government action (Bowman, 1993, p.140).” Case law requires proof that any deprivation result from “state action (Bowman, 1993, p.140).”
Other background was obtained from the Harvard Law Review, and “Prisons, Production, and Profit: Reconsidering the Importance of Prison Industries” by John A. Conley, which appeared in the Journal of Social History.

THEORY
All private prisons currently seek a profit. Most of this is obtained by the per diem fees the facility charges for housing inmates. This is perfectly fitted to Marx’s ideas on the commodification of human beings. But it is more insidious than even Marx imagined, because some 94 percent of the incarcerated are not engaged in commercially rewarding labor (Travis, 1999, p.103). To allow profit to be obtained through mere incarceration, though makes space the commodity being sold, not the human inmate that is being warehoused within it.
To more accurately apply a Marxist perspective to the for-profit prison, attention must be focused on labor. Specifically, Marxist sociology concentrates on the relationship between labor and capital. In respect to the private for-profit prison the variables translate into the relationship between inmates and taxes.
Marxism reduces the cost of production to its lowest common denominator, the “cost of existence and reproduction of the worker” (Marx, 1831, p.176). Within the for-profit prison, the cost of the worker’s existence is borne not by the company that employs this labor, but by the taxpayer. It is tax money that provides the prisoner’s food, housing, and clothing, whether the inmate serves time in a public facility or a private one. The costs of the worker are distributed amongst society. Furthermore, the reproduction of the worker is no longer a biological process, it has become a social one.
Marxist economics shows that a capitalist must replace the wages of a worker “out of the price at which he sells the product produced by the worker . . . at a surplus over the cost of production (Marx, 1831, p.182).” By reducing wages, therefore, profit can be increased. “Profit,” Marx (1831) emphasized, “rises to the extent that wages fall (p.182).”
The for-profit prison in the U.S. gains an economic advantage in the marketplace because of its lower compensation for labor. Competing with companies that must compensate workers at the lowest level of the federal minimum wage, the producer who employs prison labor can cut costs without sacrificing the advantages of expensive machinery or high-quality materials. Such reduction in the costs of labor, allows the producer to sell products at lower prices. Lower prices enable the for-profit prison to outcompete their free market competitors. This is why labor movements lobbied against them early in the twentieth century (Conley, 1980, p.263).
But privatization has begun to erode trade barriers against prison-manufactured goods. Prominent retail companies such as The Home Depot and Lowe’s rank among the some two-hundred-fifty companies that employ U.S. prison labor (Stein, 2003, p.161). Thus, for-profit prisons have an economic incentive for increasing their populations.
However, industriousness is not a quality that is shared equally by prisoners. Therefore, the for-profit prison that employs its inmates in the manufacture of saleable commodities has a vested interest in the conviction of tractable, diligent workers. Violent offenders can detract from the production of those commodities by enacting violence on the other workers. Any disruption can also increase the costs of production by removing workers from their occupations, whether from injury or insurrection. The for-profit prison then, also has an economic incentive to expel the violent and disruptive prisoners.
If these forces influence U.S. jurisprudence, some particular trends may be visible. First, longer sentences are assigned to nonviolent crimes. Second, more acts become criminalized. Lastly, violent criminals will be removed from the penal system. Of special concern is that a profile may be developed for a certain type of offender—one that resembles very much that of the most profitable prison worker—and that this profile may influence society to devalue the cultural practices attached to the offender’s social group.

METHODS
To test these ideas one might best start with a survey that asks the following questions:
1. With what offenses have current prison workers been convicted?
2. Has the prosecution of these charges increased since correctional facilities have begun to employ prison workers?
3. What is the level of employment for violent offenders vs. non-violent offenders? Has this ratio changed since the advent of employment, and if so, in what way?
4. What are the social profiles of the workers? Are some represented in greater numbers than others? If so, has that profile grown in representation, and is it a continuing trend?
5. What percentage of the revenues generated by prison labor is reinvested in the rehabilitation of the inmate?
6. Do recidivists return to the labor in which they had been engaged prior to release? If so, in what percentage? If not, do they return to labor at all?
7. Are revenues derived from prison labor used to reduce the costs of incarceration to the tax-payer?
Furthermore, a review of for-profit prison tax records should be included in the research. This should include records on stock transactions, for the publicly traded companies, political campaign contributions, and a list of assets for both parent and spin-off companies. Employee and consultant lists should be reviewed along with lists of contractors and sub-contractors. And finally, reviewing the lists of customers engaged in convict labor leases should be compared on the basis of post-release employment of former prison workers.
All but the tax records would be matters of public record, and a case could be made that the taxes should be as well, as the private companies are engaged in the public’s business. However, such an investigation would require legal specialists along with economic and social ones. This kind of study would best be conducted by a multi-disciplinary panel.

DISCUSSION
There should be no doubt that work is a primary component of criminal rehabilitation. Indeed, it is one of habilitation among the free. We all must learn skills which we can employ to sustain ourselves. Reform teaches the criminal to rely on socially acceptable skills instead of criminal ones. This paper finds no fault with the idea that prisoners should work.
The objection is to the introduction of a social system that allows and perpetuates private individuals to profit from the incarceration of others. The very notion of prison labor is akin to forced labor, to slavery. American political ideology is predicated on and dedicated to individual liberty. This must be reflected in not only our penal policies, but our economic ones as well.
The material collected for this paper reveals one indisputable fact: prisons breed more prisoners. Public monies are better spent on education. Hallinan (2001) quotes a study by the Rand Corporation estimated that for every million dollars “spent on incarcerating repeat felons prevented sixty-one serious crimes,” while spending it on “high school graduation incentives prevented 258 serious crimes (p.105).”
Since 1983, state spending on incarceration has increased by $37 billion, and rather than reducing the number of inmates, the number has increased from 300,000 to 2.1 million (Stein, 2003, p.161). The U.S. incarcerates more of its population than any other nation in the world (Feldman, 1993, p.562). This is quite contrary to any notion of liberty.
Reviewing the literature showed that the prosecution of victimless crimes such as prostitution and drug possession was rising (May, 1999, p.337; Feldman, 1993, passim). It is difficult to imagine how acts that create no victims could impinge the rights of another, which is a legal test common to theories of ethics. Difficult unless one uses a Marxist imagination.
FUTURE RESEARCH
The most telling sign of Marxist exploitation in the prison would be the passage of legislation that allows prison-manufactured goods to compete on the open market. Such a proposition was advanced by Travis (199, p.103). Coupled with relaxation of the Prison Industry Enhancement guaranties of equal wages, there would be an indication of deliberate and concerted efforts to exploit inmates for their labor, rather than to rehabilitate them through work program incentives.


REFERENCES
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