Despite Receiving Millions in Public Money, Private Prisons are Impenetrable "Bastions of Secrecy"

A new study shows that federal law still allows private prisons to shroud much of their activity in mystery, despite receiving public money.

Photo Credit: Citizens for Responsibility and Ethics in Washington

The private correctional industry in America is a massive complex funded by billions of dollars in taxpayer money. Yet, despite performing a public function and receiving public funds, current federal laws allow prison businesses to operate under an impenetrable cloak of secrecy, says a report released this week by Citizens for Responsibility and Ethics in Washington.

Basic analyses of state’s expenditures for contracted prison services reveal that the cost to outsource has risen in some states over the last five years (sometimes after prison corporations threatened state governments with lawsuits). However, it is difficult to analyze the cost differentials because “there are no laws or regulations mandating the maintenance of such data,” as the authors of the study note by citing a review by the Federal Bureau of Prisons.

Public prisons are beholden to a dizzying array of record-keeping programs under the Bureau of Justice Statistics. By contrast, the only data released by private facilities about their prisoners and facilities is that which is mandated by business contracts or particular state laws. Even then, the information provided by prison corporations is often falsified -- or even “all the time,” in the words of one high-ranking GEO Group executive. Thus while some advocacy groups have challenged the prison industry’s claims of cost-saving and providing high-quality services, the critiques are disparate and incomplete, because the public does not have access to the sort of broad expanse of information that would allow them to mount an effective campaign against the industry as a whole.

The biggest obstacle to greater transparency within private prisons, the study asserts, is the limited reach of FOIA laws. Because private prisons are entities independent of the executive branch of government, the public cannot access the sort of information most critical for evaluating the facilities, which “reside exclusively within the custody and control of those prisons and the corporations that run them.”

Some states have succeeded in goading Correctional Corporation of America (the largest prison business) to produce guarded documents under state law—but federal FOIA laws completely exempt CCA and its peers from such disclosures. The result is an industry that is funded by public money but has absolutely no obligation to be transparent to the public. Although legislators have proposed measures to extend FOIA’s authority to include private prisons, the industry has successfully kept politicians at bay through millions in lobbying and campaign financing.

The report recommends the following four solutions:

1. The enactment of legislation such as the Private Prison Information Act, which has been killed and resurrected in Congress a number of times over the last decade.

2. Convene Congressional committees to investigate and reveal aspects of the prison industry that are still shrouded in secrecy.

3. Continued and enhanced investigations of private prison facilities by the U.S. Government Accountability Office and the Offices of Inspector General at the DOJ and DHS. These agencies have jurisdiction in probing and releasing data related to how prison corporations are implementing their terms of of contract.

4. Grassroots groups continue to utilize FOIA access to shed light on the limited information that the federal Bureau of Prisons and U.S. Immigrations and Customs Enforcements have concerning private prisons. Also, the report recommends that activist groups within particular states explore and use state laws to gather as much data as possible on all parts of private prison facilities. 

If we as a society want to truly challenge the legitimacy of the private prisons as an institution, we must be able to access the information that will help us undermine the industry. 

Aaron Cantú is an investigator for the Marijuana Arrest Research Project and an independent journalist based in Brooklyn. Follow him on Twitter @aaronmiguel_