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2013 Cases Shaping the Corrections Environment
By Robert Winters, JD, Professor, School of Criminal Justice, Kaplan University
Published: 11/18/2013

Thefuture The summer of 2013 saw activity in the courts that produced, or had the potential to produce, significant impacts on corrections in two major areas. The first was overcrowding, with California’s perennial overpopulation problems reaching the U.S. Supreme Court. The second was privatized prison operations.

On August 2 the U.S. Supreme Court refused to grant California a stay of an order from the three-judge panel that is overseeing the state’s efforts to reduce overcrowding. That oversight is the result of a 2009 ruling that ordered California to reduce its prison population to 137.5 percent of capacity. Concerned that California would not meet its goals since as of late July the system held approximately 119,300 inmates representing 146 percent of capacity, the oversight panel had directed the state to reach the goal by December 31, 2013.

California’s response was that it has already significantly reduced population levels, for example returning dayrooms and gyms formerly used for housing overflow population to their normal functions. Still, the system continues to experience protests over conditions, including three hunger strikes in two years over the state of its special housing units. (The third and latest, which also happens to be the largest, began in July.) California has used a number of tools to reduce populations, such as implementing a more generous system of good behavior credits to reduce sentences faster for compliant offenders. Another—one rather less popular with local authorities—diverted low-risk offenders from state facilities to local jails.

The state has butted heads with its oversight panel on more than one occasion, and in fact the population reduction directive (along with specific special oversight of California’s correctional medical and mental health systems) was upheld by the U.S. Supreme Court in 2011. California Governor Jerry Brown has been threatened twice with contempt of court charges by the oversight panel, which felt the state was not moving quickly enough to implement its directives.

DOC officials are now concerned that meeting the end-of-year deadline would require the early release of almost 10,000 inmates, something they have balked at doing. Despite the rejection of its request for a stay, the state is moving ahead with its preparation of a full-blown appeal. Only three justices went on record in favor of the stay, so how an appeal will play out is uncertain.

In the privatized corrections arena, in August documents were unsealed in litigation between Corrections Corporation of America (CCA) and its Idaho Correctional Center and inmates housed at the facility. The affidavits were originally filed as part of a 2010 lawsuit led by the American Civil Liberties Union (ACLU) that was settled with an oversight agreement in 2011. However, that agreement was scheduled to end in September 2013, and the ACLU returned to court asking both that the oversight be extended and that the judge find CCA in contempt of court for its failure to comply with the terms of the original settlement.

The dispute stems from extensive alleged issues with staffing shortages at the facility, which the litigants claimed resulted in a dangerously violent environment. For that reason, a key element of the settlement was increased staffing at the prison. However, three CCA employees (one former and two current) provided affidavits stating that staffing logs were routinely falsified. The company has admitted that some 4,800 security man-hours were left vacant but falsely reported to the state as staffed in 2012 alone. The litigants claim that the understaffing problems were much worse and also that they continue, hence the ACLU request to extend the oversight.

CCA employees also testified to other security problems. They alleged that pat-down and security inspection logs were falsified as well and that metal detector-equipped security checkpoints were often unmanned. The result, it is claimed, is that correctional officers were reduced to negotiating with inmates (particularly known gang members) who “ran” their housing units, exchanging extra privileges or the dismissal of disciplinary reports for compliance or at least a reduced level of violence. Inmates supposedly also had the final say regarding who lived in their units.

Earlier in the summer CCA had already come into the ACLU’s crosshairs at the other end of the country. In June the Vermont ACLU sued on behalf of Prison Legal News (PLN), which had requested records on any payments arising from litigation between Vermont inmates and CCA. PLN wanted the records because it says data on what CCA has spent to settle lawsuits by prisoners speaks to conditions inside the company’s facilities, and because those amounts must be factored into the overall cost of outsourcing corrections.

About 500 Vermont offenders are housed in CCA facilities, most in Kentucky and the remainder in Arizona, under a contract that began in 2004. That is where the complication arises. For inmates housed in Vermont the state’s public records law holds sway, even if a private company is providing the service. That standard was established in 2010 after the ACLU and PLN sued Prison Health Services, a private medical services provider for the Vermont DOC, asking for much the same information it requested from CCA. But CCA argues that state law does not apply when inmates are held outside the state.

The ACLU’s position is that since CCA is acting on behalf of the state and carrying out the duties of a government agency, it is subject to the law no matter where those activities take place. Exactly how the case will play out in court will depend on the specific language of the Vermont statutes. Similar cases filed elsewhere in the U.S. have usually, though not always, required disclosure by vendors of privatized government services.

It seems likely that as budgets at all levels of government shrink, privatized services will come under increased scrutiny. On one hand some observers are likely to ask whether privatization is truly cost-effective, which is one motivation for suits such as those filed by PLN. On the other, governments may be tempted to pursue increased privatization to cut costs, leading to debates over what is truly best for taxpayers.

About the author:

Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.

Other articles by Winters


  1. sheila.dickson on 11/27/2013:

    Excellent account of important cases that have the potential to affect every correctional worker. From previous information, it seems that any "savings" from privatizing Corrections, is illusory. Clear and concise writing that is a pleasure to read. I will look forward to more from this writer.

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