PPPs in the penitentiary system

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By Laurindo Dias Minhoto*

The debate on public-private partnerships (PPPs) in the penitentiary system, which is not new, is back to the surface due to the most recent proposal by the government of São Paulo to delegate four new prison units to the management of the private sector. This proposal constitutes an exemplary case of a political strategy that, in the name of apparently technical, efficient and apolitical decision-making, tramples the facts to sell a pig for a poke.

From a legal point of view, the legality of transferring aspects of prison administration to private agents has long been questioned. The litigation ranges from the intrinsically legal nature of the execution of the custodial sentence, through the state monopoly on the legitimate use of violence and the regulation of the prisoner's work, to the statute of civil and criminal liability of the State and companies in processes involving overpopulation. , mistreatment and rebellions [1].

In this regard, it is worth mentioning the well-known statement by a correctional officer in a private prison in the USA: “in my establishment, I am the Supreme Court”. As is known, the investigation of infractions and the application of disciplinary punishments to detainees directly influences the process of granting benefits stipulated by law. Also consider that the boundary between discretion and discretion in prison is always opaque and shifting.

In times of mass incarceration, reducing the costs of prison administration is one of the main reasons given by governments to justify privatization. In Brazil, however, the few existing studies on the subject indicate that the prisoner in custody in a private establishment costs significantly more (up to 60%) than the prisoner in the public establishment [2]. The promise of reducing costs for the taxpayer is undone by the mere reading of the bidding notices and the real purpose of promoting the prison market in the country becomes evident.

In the light of international experience, it can be empirically verified that private prisons have not provided more efficient services, reproducing structural problems that characterize public sector establishments. The North American case – the oldest, most comprehensive and representative and, to that extent, the one that has most influenced policy makers around the world – is emblematic [3]. A long list of inept management practices marks the US private correctional experience, encompassing violence by officials against inmates, corruption, the presence of drugs in establishments and repeated escapes.

It is also well documented in the specialized literature the evident conflict of interests that exists between the private objective of profit and the public objectives of penitentiary policy. Overcrowded prisons provide more generous rates of return to their administrators. In the USA, the main companies involved in the prison business run extortion schemes (racketeering), disguised as LOBBY, by financing the election of political sponsors so that ever tougher laws guarantee the expansion of its “clientele” and the return on investments [4].

On the other hand, within private penitentiaries, the race towards cost cutting has led to the hiring and high turnover of personnel without the minimum preparation, increasing the possibility of conflicts between detainees and between detainees and security agents. Another point concerns prison work, carried out in extremely precarious and exploitative conditions; due to the pressure it exerts on the general mass of wages, it has run into challenges from the organized movement of free workers.

The most important aspect of the debate is the reinforcement that the privatization of prisons confers on the policy of mass incarceration, whose main effects are the following: the worsening of the public deficit (in the USA, there was a 248% increase in public spending on prisons only in the first decade of private experiment); the reallocation of public funds from the social area to the criminal justice system; the rooting of the suffering associated with the prison experience in the lives of families and communities; the relative increase in crime, given the high rates of recidivism produced by mass incarceration; the removal of the right to vote of a significant portion of the population; the deepening of social cleavages (given the tremendous disparity in the incarceration of blacks and Latinos compared to whites). In Brazil, in addition to this evident disparity of class and race in the criminal justice system, it should be noted that the female prison population increased by 567% between 2000 and 2016 [5].

For these and other reasons, a significant part of the financial sector involved with the privatization policy in the US has made a public commitment, in recent pronouncements, to extinguish funding programs for the prison industry [6]. In part, the decision results from the activism of groups such as #FamiliesBelongTogether, which advocates for the end of mass incarceration. In the same direction, the governor of California, Gavin Newsom, has just passed a law that aims to close prison units and immigration detention centers run by the private sector precisely in the state that has the largest penitentiary population in the USA [7].

place of the homeless

One of the places par excellence of those who have no place in global capitalism is the prison. Prison is presented as a privileged means of forced inclusion, in the criminal justice system, of those excluded from economic, legal, educational, health systems, etc. Structural unemployed, illegal migrants, workers in the informal drug market, “failed consumers” configure the preferential clientele of prisons, the new “structural rabble” produced by contemporary society [8].

The production of precariousness and exclusion on a large scale constitutes a window of opportunity. The policy of privatization of penitentiary systems feeds, to a large extent, on the conversion of detainees into captive consumers of the products of the crime control and punishment industry [9]. Civil construction, food and clothing, health and telephony services, state-of-the-art security equipment are some of the frontiers of the big business that is taking shape around increasingly degraded and lucrative prisons, in which there is no trace of the old ideal of reform and social reintegration of convicts, except as a farcical formula.

If the penitentiary emerged in the modern world as a forced labor factory, and historically legitimized by the promise of producing useful and docile bodies (although this promise was never fully realized), the structural crisis of work in contemporary society tends to redefine the nature of the nexus between the world of work and prison.

As the compulsory character of work remains, at the same time, the systemic capacity for profitable absorption of the workforce is retracted – with the corresponding normalization of precarious work and the blurring of boundaries between legal and illegal, formal and informal work, etc. – the arrest of gig economy reaffirms its link with the world of work as a machine for monitoring, containment and, at the limit, extinction of bodies produced as increasingly unusable by the economic system. If I am not mistaken, this situation configures a kind of market necropolitics, in which “forms of subjugation of life to the power of death” impose subhuman living conditions on populations and individuals who are attributed the status of living dead [10]. That is, the same economic system that produces these bodies as undead turns the gears of the prison industry for the violent extraction of value from these bodies [11].

A necropolitics of the market because, without ceasing to activate mechanisms of disciplinary and security management of bodies, what seems to predominantly affect them are sovereign modes of disposition associated with the disintegration of the world of work: exclusion from the formal labor market; routine of the thousand and one survival expedients related to the expansion of the informal market; forced inclusion in the mass incarceration industry; violent extraction of value; and, ultimately, extermination.

A necropolitics of the market in some way analogous to the margin of discretion that is very characteristic of a certain labile pattern of conduct of our dominant classes. Judgment unraveled by literary critic Roberto Schwarz as constitutive of Machado's narrative focus, in which the contradictory coexistence between capitalism and slavery is formalized in literature as the caprice of a subjectivity capable of erratically triggering bourgeois norms, the logic of favor and sovereign violence [12].

rule and exception

It should be noted that this redefinition of the prison has not occurred without decisive transformations in the legal system. In countries considered advanced, the selectively minimal criminal law of the previous era tends to increasingly take the form of a maximum criminal “counter-law”, which triggers punitive practices incompatible with elementary principles of the rule of law. In the logic of an enemy's criminal law, they are expressed in the legalization of torture, in the introduction of indeterminate legal categories in legal systems and in the loosening of procedural guarantees, all in the name of an ideal of punitive efficiency that barely disguises the purpose of managed containment of the exclusion.

Inserted in this framework of far-reaching changes, the policy of privatization of the penitentiary system reveals itself as a decisive figure in the contemporary state of non-law, in which the old punitive barbarism on the periphery of capitalism seems to be increasingly realized in the brand new penal regression from the center.

In short, here is the historical crossroads we are at: in the wake of the globalized rise of the Penal State, what could be seen and criticized until recently as a peripheral exception, today tends to confirm itself as a standard of functioning of the criminal justice system.

Seen from this angle, the public security packages that Brazil increasingly imports and consumes – which include private prisons, zero tolerance, situational crime prevention, militarization of police practices, mass incarceration, etc. –, paradoxically reactivate practices of crime control and punishment that for better or for worse have always circulated among us.

*Laurindo Dias Minhoto is a professor in the Department of Sociology at USP and author of Privatization of prisons and crime. The management of violence in global capitalism (Max Lemonad).

Notes

[1] In Brazil, there is an express recommendation, established in a resolution of the National Council of Criminal and Penitentiary Policy (CNPCP, Resolution N. 8/2002), an agency of the Ministry of Justice, in the sense of rejecting “any proposals tending to the privatization of the criminal Brazilian penitentiary. Available in http://www.criminal.mppr.mp.br/arquivos/File/ExecucaoPenal/CNPCP/n8de9dez2002.pdf.

[2] Available at https://www.otempo.com.br/brasil/custo-por-preso-e-60-maior-em-penitenciarias-privatizadas-1.1420625

[3] One of the most complete reports on this can be found at https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/

[4] See an excerpt from a report produced in 2010 by Corrections Corporations of America (now renamed CoreCivic): “Our growth generally depends on our ability to obtain new contracts to develop and manage new correctional and detention facilities (…) conviction or probation, lenient sentences or the decriminalization of certain activities currently prohibited by our criminal laws.”

Available in https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/#III.%20Challenges%20of%20Private%20Prisons

[5] Available at http://agenciabrasil.ebc.com.br/geral/noticia/2018-11/populacao-carceraria-feminina-no-brasil-e-uma-das-maiores-do-mundo

[6] Banks include JPMorgan Chase, Wells Fargo, Bank of America, BNP Paribas, SunTrust and Barclays. The measure represents an 87% retraction in credit lines available to the prison industry.

Available in https://www.forbes.com/sites/morgansimon/2019/09/30/geo-group-runs-out-of-banks-as-100-of-banking-partners-say-no-to-the-private-prison-sector/#3fb6149d3298

[7] Under the new law, California will stop using detention facilities for profit through 2028. The state is prohibited from renewing contracts or signing new contracts with a prison company after January 1, 2020. Available at: https://edition.cnn.com/2019/10/12/politics/california-law-ban-private-for-profit-prisons/index.html

[8] According to the original formulation by Maria Sylvia de Carvalho Franco in Free Men in the Slave Order (Ed. Unesp), it is a rabble that grew and wandered over four centuries of Brazilian history, “men strictly expendable, disconnected from the essential processes of society”.

[9] On this, see the reference study by Nils Christie, Crime control as industry: towards gulag, Western style.

[10] On necropolitics, see the well-known essay by Achille Mbembe (2003), available at https://muse.jhu.edu/article/39984

[11] As Paulo Arantes once observed, “this is how you win at both ends of the current race to cut costs, unemployment on the one hand and incarceration on the other.” Available in https://docs.wixstatic.com/ugd/2d96d9_d3f4c7184dad467fa44880be7f0e12cc.pdf

[12] On this, see the book A Master on the Periphery of Capitalism – Machado de Assis (Publisher 34).

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