Jailhouse Crock

It has all the trappings of a late night, futuristic action movie: A prison facility tucked away somewhere in Mexico, thousands of inmates, and of course, the prison’s private operators, which run the place in a legal and international netherworld. For Arizona officials, however, that scenario is more than just a bad cable TV movie. If some members of the state legislature have their way, it could all become quite real.

Facing severe and costly prison overcrowding and a growing population of undocumented immigrant prisoners, state lawmakers are considering controversial legislation which would set the stage for a prison located in Mexico, built and operated by a private corrections company, to house Mexican nationals arrested in Arizona.

Specifically, the bill calls for the establishment of a “foreign private prison commission” to hire a contractor and oversee the building and administration of a private prison, which would be under the purview of the state despite its location across the border. The bill also stipulates that the entire process would not begin until the existing U.S. prison-transfer treaty with Mexico is changed; the bill sets a deadline of 2010 for the legal path to be cleared.

Supporters of the measure say it would save Arizona taxpayers up to $100 million a year — money which pays for the approximately 4,000 Mexican nationals currently in Arizona prisons — because it’s cheaper to build and operate a prison in Mexico than in the U.S. “We’re getting stuck with a high volume of illegal felons and having to pay for it,” says Republican State Rep. Russell Jones, the bill’s sponsor. “If the federal government is not going to reimburse us, then they should at least put us in a position where we can mitigate some of the costs to Arizona taxpayers.”

Jones also believes the bill will ultimately create a healthier situation for Mexican nationals because, he says, a prison in Mexico would be more sensitive to the language and cultural needs of Mexican inmates, and it would be easier for their families to visit. Currently, Mexican nationals are segregated from the general population in many Arizona correctional facilities because of a variety of factors, including the potential for violence.

Prison reform advocates and immigrant rights groups, however, counter that Jones’ bill is a dangerous legal and jurisdictional nightmare and that the state has enough trouble overseeing prisons within its borders, let alone a private facility in another country. They also worry it could further stoke anti-immigrant tensions in a state which recently voted for Proposition 200, a new law which denies basic government services to undocumented immigrants and punishes state employees who don’t report them to the authorities.

“This is about the state legislature wanting to send people to another country to save money,” says Caroline Isaacs, criminal justice coordinator for the Tucson chapter of the American Friends Service Committee (AFSC). “If you want to deal with prison overcrowding and costs, we need to take a look at our sentencing policies and modify those.”

Arizona’s Republican-dominated legislature has a “tough on crime” reputation which some say has created draconian sentencing policies, like the state’s mandate that criminals serve out 85 percent of their sentences, regardless of the charge or of their progress in rehabilitation.

As a result, says the AFSC, Arizona’s prison population has exploded over the past 25 years — from 4,360 in 1980, to 35,000. The group also says Arizona incarcerates Latinos at a considerably higher rate than other border states. Arizona Department of Corrections (ADC) numbers show that Mexican nationals make up nearly 12 percent of its prison population, more than any other state except California and New York, which both incarcerate approximately the same percentage of foreign nationals.

“These are people who have committed very low-level crimes for economic reasons and are not very threatening,” says Jennifer Allen, executive director for Border Action Network, a local immigrant rights group which opposes the bill. “This is only a piecemeal band-aid which attempts to cover the inherent problems in this country’s immigration laws. Once they finish serving time in Mexico, they’ll just cross the border again.”

The issue of adequate oversight also worries the bill’s critics. Although the legislation stipulates that any private prison contractor would be subject to at least the same standards which apply to the ADC, the idea of trying to enforce regulations on a facility in a different country is “preposterous,” says Judy Greene, director of Justice Strategies, a prison reform consulting group.

“It seems unworkable. Being able to closely monitor and control conditions and contract performance is paramount to avoiding serious human rights violations and riots and escapes,” Greene says. “How they would manage to maintain sufficient control and constant, careful monitoring is beyond me.”

Historically, Arizona has struggled with overseeing its own facilities. In 1997, the Department of Justice sued the ADC for failing to protect its female inmates from sexually abusive guards. The ADC also came under fire in 2004, after a hostage situation in which prisoners took over a guard tower and raped a female guard. While the state has contracted out some of its facilities to private companies in an effort to save money and gain space – ADC is currently 2,500 beds short and is forced to ship prisoners out of state – it’s unclear whether those efforts have helped. A new report published by Justice Strategies, AFSC and the Private Corrections Institute, a non-profit group which advocates against privatizing prisons, questions whether privatizing in Arizona has actually shifted more of the financial burden onto the ADC.

Prison reform and oversight issues notwithstanding, the enormous legal hurdles the legislation would have to clear first appear to be its heaviest albatross. Similar bills have surfaced in Arizona since the mid-90's but have been shot down because of legal concerns. If passed, this latest version allows five years to hammer out logistics, but it still does not specifically address the legal and jurisdictional tangle likely to ensue among various U.S. and Mexican government agencies. Further, the prospect of amending the current federal prisoner transfer treaty between the U.S. and Mexico is clearly a daunting undertaking.

Since 1977, the U.S. and 63 other countries, including Mexico, have abided by an international agreement to allows prison transfers, but only if the inmate requests the transfer and only after it clears a potentially time-consuming approval process by the Justice Department, the appropriate state correctional system and the receiving country.

“There’s still a lot of homework that needs to be done because we’re dealing with international and treaty issues. We don’t know if this can legally occur,” says ADC spokeswoman Cam Hunter, who says ADC, at this point, is not supporting the legislation. “We also want to find a solution for what is a desperate problem, but we have to live within the guidelines of our treaty with Mexico.”

Indeed, Jones’ bill is not the only local effort to tackle the issue of undocumented immigrants who commit crimes and are subsequently imprisoned.

On Feb. 3, Gov. Janet Napolitano sent a letter to U.S Attorney General Alberto Gonzales demanding approximately $118 million owed to the state for incarcerating undocumented immigrants over the past fiscal year and a half. Under the State Criminal Alien Assistance Program (SCAAP), the federal government is supposed to help states pay for locking up immigrants who commit crimes after entering the country illegally. The idea is that the federal government should have prevented undocumented immigrants from entering the country in the first place and should thus house them in federal facilities if they’re criminals. But federal prisons are overcrowded, and states are rarely fully reimbursed for their services because there simply isn’t enough cash to go around. In 2004, for example, Arizona was only reimbursed $6.8 million for what Napolitano claims was a $71 million price-tag.

Napolitano’s spokeswoman, Jeanine L’Ecuyer, says the governor had yet to receive a response. Justice Department spokesman Charles Miller says the Justice Department does not comment publicly on such requests.

Ironically, the Bush administration is seeking to eliminate SCAAP from the federal budget, although a new bill introduced by Sens. Dianne Feinstein (D-Calif.) and John Kyl (R-Ariz.) hopes to keep the program breathing. For the last few years, officials in both Arizona and California have voiced concern that their states unfairly bear the burden of the federal government’s inefficient immigration laws and enforcement policies.

Given that it’s highly unlikely the Justice Department will acquiesce to Napolitano’s request, however, state Republicans see this legislation as a more viable answer, or at least a way to force the federal government’s hand. Indeed, regardless of the powerful legal and ethical concerns, the bill has managed to clear two committees. Some Democrats have openly opposed it. Rep. Ted Downing voted in vain against the bill on Feb. 9 while it was debated in the Government Reform and Finance Accountability committee. But they’re outnumbered by 22 seats in an increasingly conservative state body.

Napolitano, also a Democrat, does not weigh in on pending legislation, says spokeswoman L’Ecuyer, and is focusing on getting reimbursed from the Justice Department. She’ll be in Washington next week for a meeting of the National Association of Governors and is hoping to meet with the attorney general at that time, L’Ecuyer says.

Still, with the bill slated for debate by the full legislature early next week, the reimbursement approach might end up taking a back seat, at least for now.

“We’d rather be reimbursed, but the federal government won’t reimburse us and won’t let us deport the inmates,” says Republican Rep. Bill Konopnicki, a co-sponsor of the bill. “This has the potential to save us quite a bit of money.”

Meanwhile, opponents are lining up for a battle.

Says Caroline Isaacs: “Our state legislature wants to bury their heads in the sand and continue to incarcerate everyone for minor offenses without having to pay the bill. If they manage to find a way around the international law barriers, I think they’ll pass it in a heartbeat.”

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