Locked Up, Locked Out: How Consolidation in Private Prisons Locks Out Reform

Writer: Kyla Hickcox

Editor: Ana Molina

Mass incarceration has become a billion-dollar industry in the past fifty years. The United States has the highest incarceration rate of any independent democracy on the planet.¹ The U.S. prison industry has increased significantly, becoming so overpopulated that “today, there are more people serving life sentences alone than the entire prison population in 1970.”² America makes a profit from imprisoning bodies unlike any other nation of its kind, and supporters of the industry justify doing so in order to maintain law and order and protect the innocent. While certainly a noble idea, the industry’s success seems precarious, and the measure of such success is even further corrupted from a utopic idea of sustaining a healthy criminal justice system. For both private and public prisons, the recidivism rate is around 40%, meaning 40% of inmates return to prison after incarceration.³ If the measure of a prison’s quality is the ability to rehabilitate inmates into contributing members of society, the U.S. prison system is failing. 

This inadequate performance is especially concerning for the private prison sector, where consolidation of the industry has led to oligarchical control over the sector and the imprisoned. Consolidation in this industry refers to the process where nearly a dozen competitive private prison corporations in 1999 were bought out and absorbed by three dominant corporations.⁴ CoreCivic, The GEO Group, and MTC maintain ninety-six percent of all private prison beds in the country today.⁵ Mergers and acquisitions in this industry have led to a lack of competition and subsequent lack of pressure for reform in contracting measures for new prisons or prison groups. Instead of advocating for absolute elimination of the industry or insisting on deconsolidation—which would interfere with the business models of these companies—there should be a shift in the way “success” is measured to provide more effective rehabilitation of inmates while still economically incentivizing companies. Essentially, change should come from the industry itself, such as reforming contracts to be achieved based on the humane treatment of inmates, decreasing recidivism rates, and increasing the amount of resources made available to inmates upon release. 

The status quo of the American incarceration industry is inadequate by any scale; inmates are not treated as humanely as possible, inmates are not rehabilitated into society after release, and the industry provides numerous barriers to entry for new progressive prison corporations aiming to reform the industry from within. Prisons are experiencing increased violence and interfacility abuse that leads to a culture of brutality and fear.⁶ Inhumane treatment seems to be an even more prominent issue in private facilities, as “private prison guards are 49 percent more likely to experience a violent incident, and inmate-on-inmate violence is 65 percent more prevalent in private prisons when compared to government-run prisons.”⁷ One of the most alarming concerns facing both private and public prisons is the inability of inmates to successfully reintegrate back into society after release. Instead of prison being a catalyst that reforms inmates so they do not recommit, it frequently has the opposite effect, leading to at least 50% of those released from prisons recidivating.⁸ Inmates often experience unjust living conditions in prisons and still reoffend once released, so the argument that being harsh to inmates results in lowered crime rates or rehabilitation falls flat. One major factor contributing to recidivism rates is a lack of resources for released inmate reintegration.⁹ When an inmate is released, if they do not have family supporting them, they may likely find themselves without money, a home, a method of transportation, or a job. Inmates do certainly learn skills within prison, but those skills are sometimes not translatable to everyday life, and resources aimed at preparing those released on parole for reentry prove to be inadequate in most facilities.¹⁰ The limited rehabilitative training programs in prisons are outdated and not individualized, and they frequently leave prisoners lacking in daily structure and counting the days until release. When inmates feel that their days are wasted, crime is often deeply woven into the culture of inmate relations in prisons, and inmates can be released with nothing to their name; it is not surprising that many released inmates find themselves back in prisons, some even returning to the exact facilities they left. 

For the private prison sector, these systemic obstacles for inmates are magnified in the public eye by those who desire criminal justice reform. A corporation that profits off of the incarceration of human bodies and then facilitates reincarceration for continued profit is a controversial business model to sell. The primary selling point of private prisons is that they claim to provide fairer conditions and more efficient results.¹¹ But what kind of efficiency do private prisons seek? One can assume efficiency would be measured in terms of how effectively facilities can rehabilitate inmates or how equitably facilities can treat inmates. However, private prisons are not paid based on outcomes; contracts are instead based on the number of beds within a facility and the number of inmates that occupy them.¹² This leads to private prisons prioritizing occupancy maximization and neglecting the care and rehabilitation of inmates. 

Barriers for improvement come both from the design of facility contracts and the field of corrections management itself. State procurement laws are designed to shield top corporations from any new competition, making it nearly impossible to satisfy the experience requirements to open a new prison.¹³ CoreCivic and the GEO Group both spend money on lobbying to maintain this open field, unobstructed by the possible introduction of competition. Private prisons currently house around 8% of the imprisoned population in the United States, resulting in a four-billion-dollar industry.¹⁴ Because private prisons can, to some extent, operate under their own business models separate from government facilities, they hold the power to influence the entire system. The current law and contracting system resists reform because it challenges the government’s criminal justice system. The public perception of private prisons is low, and corporations understand that progressive movements directed at reforming the justice system pose an enormous public relations problem.¹⁵ Private and public prisons essentially operate the same way, but private prisons imprint the image of corporations owning bodies of imprisoned citizens, and contracting based on bed occupancy is a direct corroboration of that image. 

Some advocates oppose private prisons to the point of arguing for total absolution.¹⁶ However, this perspective fails to understand that the cardinal flaws of private prisons are translated to public prisons, if not to an even greater extent. While private prisons spent thirteen million dollars on lobbying from 1986–2014, public prisons spent $132 million in the same time frame.¹⁷ Additionally, the private industry has more flexibility to stray from the current model and innovate. Public prisons, which are owned by the federal system, are restricted in many ways, which makes reforming them a larger-scale operation. Private prisons, on the other hand, could be a catalyst for reforming the contracting system, which would greatly heal their public image, potentially influence progress for public prisons, and adjust their business model to reward lowering inmate rates of recidivism instead of bed occupancy. Although America has not experimented with outcome-based contracts, New Zealand has, and their contract structure provides bonuses if the private facilities have lower recidivism rates than the government facilities.¹⁸ Government leaders in New Zealand are optimistic about lowering recidivism rates through contracting reform, and because they can test their efforts at a few facilities at a time, it provides a clear example for reforming American institutions. It would be unrealistic to expect merged firms that have monopolized an industry to suddenly relinquish their control, but policies that appeal to their economics by promoting reform might be an appeal they are more sympathetic to. 

To facilitate reform in the industry, necessary steps include removing the currently indestructible barriers for independent incarceration management firms to join the industry. New companies should challenge the status quo and inspire heads of the industry to innovate. They should think beyond profit margin and shareholder approval alone, and instead act as instruments of positive change. An example of this forced innovation is Social Purpose Corrections, a nonprofit prison company that desires to reform the system from within and has been unable to actually open a facility because of legal barriers.¹⁹ Restructuring contracts is a predominant aspect private prisons could utilize to promote reform. In order to incentivize private corporations to seek improved conditions for inmates, the contracts must stop being centered around occupancy and must instead be valued on the actual results and recidivism rates of inmates. Doing so would incentivize private prisons to “confine the offenders safely and rehabilitate them effectively.”²⁰ The private prison industry is infallibly more flexible in reforming the justice system because individual facilities and companies have more consolidated control over setting the rules and signing contracts. If private prison companies economically benefit from successfully lowering recidivism rates, they will reform for the sake of their bottom line, and public prisons will be pushed to follow the adopted model by money, competition, and advocate interests.  

Despite the negative press and public support for reform, unless there is economic incentive to do so, corporations will not exert effort to improve prison conditions. As a result of the sector’s mergers and acquisitions, they face no pressure from competition and therefore make no concrete improvements. Contracts measure success by how many beds are filled and have no financial obligation for housing inmates that can successfully reintegrate into society, which would lead to overall lower inmate recidivism. To incentivize corporations to reform the system, outside actors must illustrate that the economic benefits of reform—increased public appeal, increased business, and improved inmate conditions—outweigh the costs of improving them. Consolidation has led to a select few corporations having control, but if even one of those companies makes genuine movements towards reform, the rest of the industry would have to follow their lead or risk being left behind.

1. Emily Wildra, States of Incarceration: The Global Context 2024, Prison Policy Initiative (June 2024), prison
   policy.org/global/2024.html. ↩︎
2. Ashley Nellis & Breanna Bishop, A New Lease on Life, Sentencing Project (June 2021), sentencingproject.org/reports/a-new-lease-on-life. ↩︎
3. Lauren-Brooke Eisen, How to Create More Humane Private Prisons, Brennan Ctr. (Nov. 2018), brennancenter.org/our-work/analysis-opinion/how-create-more-humane-private-prisons. ↩︎
4. Jakob Dupuis & Christopher Sharp, Aligning Profit with Outcomes in Private Prison Procurement 3 (2024). ↩︎
5. Id. ↩︎
6. Equal Just. Initiative, Prison Conditions, eji.org/issues/prison-conditions. ↩︎
7. Dupuis & Sharp, supra note 4, at 6. ↩︎
8. Mariel Alper et al., 2018 Update on Prisoner Recidivism: A 9-Year Follow-Up Period (2005–2014), U.S. Dep’t Just., Office Just. Programs, Bureau Just. Stat. 1 (2018).  ↩︎
9. Nellis & Bishop, supra note 2. ↩︎
10. Jeffery Shockley, Why Prisons Fail to Rehabilitate People, Prison Journalism Project (June 2023), prisonjournalismproject.org/2023/06/22/why-prisons-fail-to-rehabilitate-people. ↩︎
11. Dupuis & Sharp, supra note 4. ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Equal Just. Initiative, supra note 6. ↩︎
15. Joshua Holland, Private Prison Companies Are Embracing Alternatives to Incarceration, Nation (Aug. 2016), thenation.com/article/archive/private-prison-companies-are-embracing-alternatives-to-incarceration. ↩︎
16. Dupuis & Sharp, supra note 4. ↩︎
17. Id at 7. ↩︎
18. Eisen, supra note 3. ↩︎
19. Dupuis & Sharp, supra note 4. ↩︎
20. Id at 9. ↩︎

Featured image courtesy of: John Moore, Photograph of a prison inmate being walked down stairs by a guard, in CalMatters, Ending private prisons in California will harm prisoners and detained immigrants (Sept. 2019), calmatters.org/commentary/2019/09/private-prison.