Elizabeth Warren’s plan for private prisons, explained

Private, for-profit prisons, and immigration detention facilities would be banned through administrative action if Sen. Elizabeth Warren (D-MA) is elected president, she pledged Friday.

Warren distributed her latest big-idea plan in the same manner she’s released her other policy promises.

This time, the blog post on her campaign’s Medium account builds to three concrete bullet points — and leaves much of the prison-industrial complex completely untouched.

The plan’s core involves reviving a policy initiated late in Barack Obama’s presidency and giving it significantly greater force. Warren would use executive authority to bar federal agencies from contracting with any private firm to run detention facilities — hence all the coverage noting that The Plan-Haver has logged on to ban private prisons.

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Obama’s Department of Justice had begun a similar undertaking in his final year in office, with then-Attorney General Loretta Lynch pledging to end such contracts. Rather than seeking grounds to rescind them — and court lawsuits the government would not necessarily have won — Lynch’s team simply did not renew deals that expired. It was a gradualist maneuver, running on the rails of normal contract-law procedure, with the potential to ratchet down and eventually end one of the great injustices of U.S. criminal policy.

Warren’s ban proposal does sketch out a more aggressive vision than the Obama administration’s bending of the policy curve. She’d also make federal justice grants to state and local carceral outfits conditional on their rejection of private jail, prison, and detention operators, she wrote in the Friday post.

So far, so fair. Warren’s presidential bid has chopped out significant territory for itself as a serious, specific, and aggressive policy-oriented shop. That’s been her personal brand, in terms of both political maneuver and hard legislative craftsmanship, since before she even won her Senate seat.

But the latter two bullet points in Friday’s private-prisons plan are also consistent with a quite different aspect of Warren’s political identity.

Warren’s plan on carceral profiteering would target the thousands of firms that cling onto both public and private prisons, jails, and detention centers, bleeding cash out of the imprisoned and their families in conscience-shocking fashion.

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The telecoms companies that price basic auditory contact with loved ones at roughly $100 an hour, the health care companies that gouge the public treasury while providing disgracefully bad care inside jailhouse walls, the food vendors that sicken prisoners in meal halls and leech cash from their families at the commissary window — all of these are in for a rude awakening should Warren take the White House, she wrote.

That’s right, folks getting rich by compounding the justice system’s punishment of crimes by stapling fees, billings, and malnourishment onto the sentence, you’d better buckle up. Because you’re about to be regulated significantly more tightly!

Warren doesn’t mind your existence, or begrudge your right to trade. She’ll “keep contractors from imposing exploitative price markups” on jailhouse services, and “hold contractors accountable by expanding oversight, transparency and enforcement.”

The contractors, and the contracts, will proceed apace. The terms of their deals will be altered, in the public interest.

This would all be good change. It would also all be an immensely far cry from reverting the basic care and feeding responsibilities for the incarcerated back onto the public. Warren’s plan stands apart from the status quo, but that does not make it radical.

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She does not wish to reverse the privatization of these services, to move the largest lever available to policymakers here back to a setting where profit motive isn’t part of the bargain at all. She wants to leave that big switch in its current position, and attach a sophisticated set of new bureaucratic circuitry to the machine that will inject sunlight, prohibit the most abusive current practices, and keep the whole thing humming along in meaningfully different, improved fashion.

Warren’s plan also specifically calls out post-release profiteering from the firms to which governments outsource probation monitoring. The profit motive that corrupts supervised release — by making a person’s success in complying with probation terms in part contingent on their wealth – is indeed a massive problem.

But here, too, Warren’s plan contains a damning omission. The First STEP Act, signed into law by President Donald Trump in December, is controversial among prison reform advocates, many of whom warn its upsides are far too limited. But even those upsides will rely upon the private monitoring firms Warren mentions in her new plan. Regulating them more tightly is a good step. Requiring them to charge their fees to governments and not to individuals is another. But Warren doesn’t appear – in this blog post at least – to grapple with how the First STEP Act’s implementation might go haywire under such incremental shifts in federal policy. She does not propose to bring these post-carceral services back into the public treasury either.

Again, none of this makes it a bad plan. It just makes it a limited one — or, if the ambition behind it aims higher, an incomplete first draft of one. Warren is a diligent and thoughtful policymaker with a years-long record of consultative and iterative tinkering in the key details of things. She’s also shown herself willing — even on the campaign trail — to re-draft her schematics when someone persuades her she should. Just a few months ago, she updated her sweeping plan for housing equity to reflect some critiques levied from her left.

What makes Warren such a remarkable candidate — and one now apparently on the rise with primary voters in some polling snapshots — is her ability to identify the right issues to fight on, identify the right enemies in those fights, and put forth detailed strategic visions for defeating those enemies. She deserves credit for identifying the absurd, immoral linkage of capitalist shareholder-service to the public’s need to punish and rehabilitate those who do it harm as one such venue for progressives to battle.

Her primary opponents may feel they have to match her here too, thus making the Aramarks, Corizons, JPays, and Securuses of the world into reviled household names. If popular attention were directed against them, such firms would doubtless find it harder to get away with the exploitation they’ve engineered over the years.

But what Warren’s proposing to do is, by her own language, designed to preserve some amount of profit-seeking corporate activity inside the American justice system. The new top federal regulator she’d create in this space “will keep contractors from cutting corners to make a quick buck,” she wrote.

The bucks can still be made; just slow ‘em on down.


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