Sooner Conflicts of Interest. Build it. We'll fill it.

published Spring 2003 by &

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In suit with a mass of jurisdictions across the United States, from the Federal level to individual counties, Oklahoma has experienced a rapid expansion of its prison capacity in the last decade. A majority of that new capacity came on-line in only the last few years and unlike most states' expansion programs, all the Sooner State's freshly available beds are built by, owned and operated by private industry. It has been nearly two decades since Corrections Corporation of America was granted that first contract to run a county jail. And the expansion of this new niche of the security market has not coincided with a simplification of the complex problems which lead the country from roughly 65,000 inmates to two million in about the same span of time. One particular problem evident in the cornucopia of press and politics surrounding prisons has been inflamed by privatization: conflict of interest.

A visit in 1999 to my home state of Oklahoma was more than just a trip to talk about the wind speeds of the previous week and a chance to eat Watonga cheese. This was the first time I had visited Watonga since Corrections Corporation of America had built the Diamondback Correctional Facility, which now kept my grandma's backyard well lit throughout the night. This was also the first time I had ever heard of a private prison.

My immediate response after confusion was outrage. It seemed obscene a private entity could profit off the imprisonment of fellow citizens. I had to agree with the charge of the Fraternal Order of Police that "recognizes the delivery of quality criminal justice service to the public as the exclusive and direct fundamental responsibility of government."(1) After putting it off for twenty-four years, I finally saw Gone with the Wind and the section where Scarlet O'Hara purchases sickly prison labor raised another good question: Didn't we privatize the prison system once before only to abolish it because it was exploitative? Wasn't the Convict Lease System an institution determined to be as disgusting and inhumane as slavery?

Amendment XIII: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.(2) This add-on to our constitution raised for me, as it probably did for a number of people, the primary ethical and legal questions about a private entity taking charge of our incarcerated citizens. Does a private institution own the free labor of incarcerated people? Can they develop prison industry to build and sell modular furniture to state agencies and prison blue jeans to ship off to China? After reading up on the subject however, the question of legality becomes apparent. Contracting is absolutely legal and does have a number of well-educated arguments to support it. If privatization is legal under our current system, then the focus can be sharpened on the conflicts between obligation to the public good and the self-interest of office holders leading us to questions of: Should privatization be legal? Should there be more regulation if it does exist? How does privatization actually save money?

Tax dollars for prison is not a typical ratings booster for a politician so private capital for prison construction is politically expedient. But the incarceration of our citizens by corporations for profit has resulted in heated opposition from state employees that must compete with the corporations and watchdog organizations such as Prison Moratorium Project. However, the United States' prison population has tripled in less than two decades. The prison population expansion began ballooning with the development of a tough-on-crime political platform in the 1960's by politicians such as Barry Goldwater and Richard Nixon, and then exploding with the subsequent war on drugs of the Reagan years. There simply must be more space under the current system. Former University of Florida Criminology Professor Charles Thomas helps put that reality into an unsettling perspective when he states that, "Our criminal justice system is not a system and to call it one is an absolute absurdity." A massive prison construction program did not compliment the enactment of the legislation responsible for this exponential inmate expansion and thus resulted in, among other things, prisoner lawsuits for overcrowded conditions, federal oversight of state prison systems and the demand for more prison beds. "If you had a criminal justice system with integrated parts it could anticipate growth but it's not a system. It has never been a system…it will continue to trip over its own ding-a-ling…and from time to time you will get something silly like prison overcrowding."(3) This is where privatization steps up to the plate. The private sector can move faster, cheaper and answers to stockholders instead of taxpayers.

After years of Federal oversight in Oklahoma's Department of Corrections for conditions of prison overcrowding, in the mid-1990's a situation was coming to a head. Either Oklahoma must seriously increase its prison capacity or reevaluate and restructure the system that lead the state to its current state of affairs. In steps the Edna McConnell Clark Foundation. A wealthy New York organization that had pushed for alternatives to incarceration in Delaware, Alabama and Pennsylvania began to focus on Oklahoma in 1993.

Edna, as it was known to those familiar with the foundation, pumped large sums of money into educational seminars. These were typically all-expenses paid trips to nice places for, "corrections department employees, legislators, judges, district attorneys and other officials key to the fight over truth in sentencing."(10) Truth in sentencing was/is the key to revamp Oklahoma's criminal-justice system. Edna also found a key person who agreed with the belief that, "a stiff version of truth in sentencing would divert millions from education and other programs," the Director of the Department of Corrections, Larry Fields.(10) A push began to find more alternatives to incarceration and as an extra incentive for public officials, a 1994 survey, "revealed that 'by lopsided margins,' Oklahomans support alternatives to prison for nonviolent criminals."(10)

For a while, it appeared that Oklahoma would take a progressive step. The state would not simply continue with the same criminal-justice system that had brought Oklahoma to an over-expanded prison population in a state where the general population was not undergoing serious expansion. The state would pay attention to what a number of leading criminology academics had argued that prison populations are not indicators of crime. It appeared that Edna's education had swayed enough of the right people in its direction. But in 1995, with a new Governor in office and a little mishap at the Alfred P. Murrah Building by the hands of Timothy McVeigh, the relationship between Edna and some top state officials began to turn sour.

Director Larry Fields still believed that alternatives to incarceration for non-violent criminals was key. However, some such as Corrections Board Member Mike Roark accused Edna of, "trying to brainwash Oklahoma" and questioned the Director's loyalty. But the most influential figure to oppose the foundation, its supporters and its endeavors was Governor Frank Keating.(10) Keating insisted that, "the foundation was advocating lenient punishment for the wrong criminals."(10) Political head butting was to be expected to continue on this topic, but then, for those that supported reform of the criminal-justice system, the roof caved in.

In August of 1996, amid the Oklahoma Governor's protests against the state cap law, overcrowded conditions required the early-release of prisoners. The guidelines for the early-release selection had been in place for years and were then reemphasized and tightened by Governor Keating before the Department of Corrections assembled their list of names to be approved by the Governor. All early-release inmates were to have been convicted for non-violent crimes and shown good behavior in the previous months. In spite of precautious screening, a 20-year old LaMonte Fields went to his ex-girlfriend's place where he shot and killed Kenya Scott along with her mother and stepfather while LaMonte and Kenya's two children stood by and watched less than a week after his early release.

Keating immediately blamed the Department of Corrections and demanded that Director Fields be fired, "because his agency told a 'lie' that led to the early release of an inmate who then killed three people."(11) For a month Director Fields fostered support from colleagues, but ultimately resigned. Senator Cal Hobson remarked that Keating had played "the blame game," to overlook his own responsibility in the slayings. Once the inevitable political turmoil had subsided, Governor Keating decided that an outside, objective evaluation of Oklahoma's antiquated penal system was needed. That outside, objective opinion was enlisted from a friend of Keating's who had worked with him at the Federal Bureau of Prisons, J. Michael Quinlan. Quinlan agreed to make a free evaluation and report on Oklahoma's penal system, which contained suggestions for modification and improvement. Among those suggestions was to expand the state's medium- and maximum-security prison beds by 1,351.

Keating stood by his friend's report and named its recommendations as a top priority for Oklahoma in his subsequent State of the State address. This time, the money to construct the new prisons would not come from Oklahoma taxpayers but from private industry. In fact, Oklahoma's expansion went far beyond what Quinlan's plan had called for. Within two years of his report in 1996, which called for the construction of 1,351 new beds, Oklahoma had contracted with private prison corporations to construct a total of 4,232 new beds (5,672 if you count the 1,440 Wisconsin citizens the Sayre facility holds for that state). The brow-raising element in the equation is that when Quinlan offered his help and the Governor enlisted that help to write his objective report, he was Chief Operating Officer and Executive Vice President of the biggest private prison corporation in the world, Corrections Corporation of America. Two years after his report, Quinlan's corporation had built and was receiving money for 3,240 new prison beds in Oklahoma.

Unsubstantiated gossip that the Governor's wife owns stock in CCA aside, Senator Ron Kirby claims he courted Wackenhut Corporation to build a prison in Lawton, Oklahoma to prevent CCA from holding a monopoly on Oklahoma's new capacity. "I thought, wait a minute. You're gonna have one corporation with all the private prison systems and no one competing. In other words, we got a lock on it. We got your prisoners. You need us. Here's our price and the price would obviously go up."(5) Regardless of any fear that one private prison corporation might hold a monopoly on the state's new prison capacity, the primary impetus for contracting these facilities in the first place is now a moot point. All of the facilities built since the Quinlan report are at least 93% capacity making the necessity of a cap law still very real.

Dr. Charles Thomas argues that a bloated state agency such as the Department of Corrections is a monopoly itself, a "lethargic beast" that needs competition.(3) Thomas's convincing, well-written arguments for privatization do cause one to reconsider the non-privatization arguments by organizations such as the Fraternal Order of Police. But the whole picture then becomes even more confusing in light of Thomas's conviction for violating three Florida ethics laws and being forced to leave his position as Professor of Criminology at the University of Florida after receiving over three million dollars in consulting fees from private prison corporations. A suspicion that Dr. Thomas' arguments for privatization are slanted might be grounded.
Oklahoma serves as an excellent case study to evaluate the nation's prison systems' relentless population rise, "seemingly unrelated to crime rates or any rational calculation of its benefits to society."(6) In Keating's 2001 State of the State address he claimed that "we have targeted violent and career criminals, those who are walking crime waves, those who prey upon our brothers and our sisters, our neighbors and our friends, and we've said that if you are violent and if you are chronic, we will use, for the first time, private prisons and we will use public prisons for the purpose of keeping you out of circulation. At no great surprise, over the course of the last three years, crime rate has collapsed across the board. That is good for Oklahoma and we did it together."(7) This statement is perplexing when the Department of Corrections' report shows overall crime rates did drop from 1996 to 2000 but 1996 is also the year that Oklahoma's incarceration rate exceeded the crime rate. Since 1996, total arrests have increased and drug receptions have also increased significantly. When a problem as complex and multi-layered as our penal system is framed by the economic conflicts of interest between the public and private sectors, it permits for consideration that perhaps the prison in the capacity that the United States uses it might be the wrong answer to crime. As Nils Christie states, "The belief in prison populations as indicators of crime, and the resistance this belief shows to the facts are in harmony with the old perspectives based on natural law, and with reactive thinking." If a criminal faults and all authority is capable to do is react, "then, naturally, the volume of prisoners is caused by crime and reflects the crime situation. It becomes destiny, not choice."(8)

The most recent trip to Oklahoma involved a random interview with a young man on the streets of Watonga. He said something which put an interesting perspective on the type of crime that has packed America's prisons to bursting and fostered the birth and expansion of privatization. He had just moved down from St. Louis to live with his Lutheran minister father because he had been arrested for possession of crack and proceeded to tell us about the meth labs that operated there in town. "There's a couple of 'em just down the street from the police station."

"Do you think the police know about them?"
"Oh, yeah. Well, you know there's not a lot of jobs to go around here. And these labs, they give people a means of income you know."
"Like the prison?"

In this new industry, the conflicts of interest should raise more debate than they have. People are the raw material and the ultimate responsibility of the corporations is to increase their stock value. The irony is that there is an endless list of acts that can be defined as criminal and those crimes for which imprisonment has been assigned as proper punishment has expanded the prison population threefold in two decades. The concept of what is a criminal, what they deserve and the continuing social and economic stratification of American society perpetuate the current tough on crime discourse heard from political figures like Governor Keating. But, as I pack up my truck to head back to Oklahoma several pondering questions stick in my mind along with wondering what's the intertextual meaning to be drawn from the back to back anti-marijuana add and PSA that states, "Freedom. Cherish it. Appreciate it. Protect it." on the TV. What will finally spur a change in American attitudes towards what actions merit prison time? Will Oklahoma officials reconsider the direction Director Larry Fields and Edna tried to steer the Department of Corrections before 1996? What will it take for the trend towards continuous prison expansion to be reevaluated?
•Travis Marriott


2. /exhall/charters/constitution/amendments.html
3. Thomas, Charles W. Interview for film Crime Pays. 5/22/02
5. Kirby, Ron. Interview for film Crime Pays. 6/20/02
6. Mauer, Marc. "The causes and consequences of prison growth in the United States."
Mass Imprisonment: Social Causes and Consequences. Ed. David Garland.
London: Sage Publications, 2001. 10.
8. Christie, Nils. Crime Control as Industry: Towards Gulags, Western Style. New
York: Routledge, 2000.
9. Chris. Interview for film Crime Pays. 8/12/02
10. Thornton, Anthony. "Foundation's Role in Prison Decisions Questioned."
The Oklahoman 14 March 1999: on-line archives.
11. English, Paul and Penny Owen. " Keating Calls For Corrections Chief's Firing."
The Oklahoman 9 August 1996: on-line archives.