The Flawed NRC Report: The “Prison-Industrial Complex” Part 1: Private Prisons

(This is Part 10 in my criticism of the recent National Research Council report on incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5, Part 6, Part 7, Part 8, and Part 9 look at the role of prosecutors.)

I want to turn my attention now from how the NRC report handles prosecutors to its discussions of the impact of interest group pressure on prison growth. As with prosecutors, it barely touches on this issues, despite its critical importance, and its brief analysis highlights effects that appear to be relatively unimportant and overlooks those that matter most.

In this post, I want to focus on one putative cause that receives outsized attention in the popular accounts of prison growth despite its relative irrelevance: the private prison.

When I tell people I study the causes of prison growth, I usually get one of two responses: “isn’t it just the war on drugs?” or “isn’t it just private prisons?” The former point I’ve belabored to death. Now I want to dispatch the latter.

To start, here is the NRC report’s entire discussion of the role of private-sector pressures that may drive prison growth:

Over time, however, the buildup created new economic interests and new political configurations. By the mid-1990s, the new economic interests—including private prison companies, prison guards’ unions, and the suppliers of everything from bonds for new prison construction to Taser stun guns—were playing an important role in maintaining and sustaining the incarceration increase. The influence of economic interests that profit from high rates of incarceration grew at all levels of government, due in part to a “revolving door” that emerged between the corrections industry and the public sector. Another factor was the establishment of powerful, effective, and well-funded lobbying groups to represent the interests of the growing corrections sector. The private prison industry and other companies that benefit from large prison populations have expended substantial effort and resources in lobbying for more punitive laws and for fewer restrictions on the use of prison labor and private prisons (Elk and Sloan, 2011; Thompson, 2010, 2012; Gilmore, 2007; Hallinan, 2001; Herival and Wright, 2007; Gopnik, 2012; Abramsky, 2007).*

First, a brief note on sources (an issue I will return to more fully in a later post). The report cites eight sources for this summary. Looking in the bibliography we find: an article from The Nation, an article from The New Yorker, an article from the partisan New Labor Forum, three non-academic trade books (by journalists, not academics), one academic-press book (by an author who was also a founding member of Critical Resistance, an anti-prison group), and one academic article (by the same person who published in New Labor Forum). 

These sources lack the sort of rigor and ideological diversity I would expect from an NRC report.

But partisanship is irrelevant if the facts are right. And here things fall apart as well.

It is easy to show why private prisons do not drive prison growth. And while the report only makes glancing reference to this possible causal factor, I think that is actually quite harmful: such a glib analysis could actually strengthen people’s conviction that private prisons matter by making it seem like the issue is so obvious it doesn't even merit extensive discussion.

So, how can we show that private prisons are not that critical?

First, the math simply doesn’t work: only about 6% to 8% of all state prisoners are in private prisons, and only about 15% of all federal prisoners are in state prisons (data from various years of these reports). Almost all prisoners are in public prisons.

Second, we can’t even attribute all of those 6% to 8% to private prisons. The relationship between private prisons and incarceration rates, such as it is, is at least somewhat endogenous. Perhaps private prisons firms lobby for more prisoners (more on that in a second), but to some extent states will turn to private prisons when their populations are growing anyway. So some of those 6% to 8% would have been incarcerated even if private prisons were impermissible; perhaps all of them would be.

Third, the lobbying efforts aren’t really all that large. A Justice Policy Institute report stated that private prison firms contributed over $6 million to state races over the past five election cycles. This number was presented on its own, apparently shocking on its own terms. 

But with campaigning, nothing is “on its own terms.” Looking at the same source as the JPI report, it is easy to see that during the same time the educational lobby gave over $35 million, and total political spending at the state level ran to almost $14.5 billion. So private prisons were outspent almost 6-to-1 by a single oppositional interest group, and their donations comprised less than 0.5% (the decimal place is correct there) of total spending.

And it is critical to keep in mind the zero-sum nature of state spending, in contrast to the much-more-widely-studied federal budgetary process. States are often subjected to (admittedly porous) balanced-budget requirements, they borrow money on less friendly terms than the feds, and they cannot print their own money. As a result, the standard “who is willing to be soft on crime?” argument for why prison spending grows “unchecked” is wrong (my next post will address this in more depth). The zero-sumness of state spending means that the education lobby is fighting for the same dollar as the private prisons. That 6-to-1 ratio is important.

So perhaps we should not be surprised that only a few years ago that the senate in one of the most conservative states in the country, Florida, still narrowly rejected the largest private-prison plan ever proposed (despite Florida having one of the largest concentrations of “private prisoners” in the country).

But maybe we are just at the beginning of a privatization spree (Florida aside), and as privatization grows so too will prison populations. A plausible hypothesis, but one with little to no empirical support. 

The next graph is simple, but it provides an important counter to the private-prisons-drive-up-incarceration story. The x-axis is the average percent of a state’s prisoners held in private prisons between 2000 and 2008, and the y-axis is the state’s rate of incarceration growth. If private prisons drive growth, we should see some sort of upward-sloping line: low private prison population states with low growth, high private-prison population states with high growth.

We just don’t see that at all. First, we see that a large percentage of states have zero or very few private prisoners. And among those who have more private prisoners, we see almost no relationship between prison growth and private prison size. The red dots are on the jurisdictions that, among them, hold over 50% of the nation’s private prisoners. Even in these states it is hard to see a relationship between privatization and growth.

There may be reasons to be concerned with privatization, whether conditions of confinement or moral problems. But as a causal factor of growth, the evidence simply isn’t there,** and the NRC report’s facile treatment of the issue represents yet another missed opportunity to confront a persistent, inaccurate myth.

 

* There is also a brief discussion of prison siting pressures: of rural towns lobbying for prisons to be built as a form of financial stimulus. The report notes that evidence about such beneficial effects is slight to non-existent, and that strikes me as a reasonable reading of the literature.

** Even if you are concerned that poor conditions of confinement lead to future offending—a valid concern—it still seems unlikely that enough prisoners pass through private prisons for that marginal effect to explain much of the subsequent growth. (After all, public prisons are not nice places either, so what matters for this argument is the effect of the additional unpleasantness of private prisons.)