Move to Gain State OK for Privately Run Jails Falters

San Diego County’s effort to obtain state permission for private companies to run a jail or probation camp appears headed into a solid wall of opposition in the Legislature.

A powerful coalition of law enforcement authorities, civil liberties advocates and public employee labor unions has so far been able to block all such proposed legislation.

And recent interviews with legislators, lobbyists and others indicate that there is little prospect for change any time soon.

“There’s an issue of principle here,” said Andrew Baron, Sacramento lobbyist for the American Federation of State, County and Municipal Employees, which opposes the idea. “So far, we have been able to consistently defeat these measures, and my intention is to continue to do so.”

Still, San Diego officials say they are serious about seeking permission to, at the least, allow private enterprise to bid on a contract for building and managing a minimum-security probation or jail camp for prisoners convicted of misdemeanors.

Even if they get the authority to involve the private sector, county supervisors said they might use it only as an incentive to make county-run programs more efficient.

“I don’t think going private is essential,” said Supervisor Brian Bilbray. “I think having the option is essential for efficiency. Bureaucracies just work better when they’ve got somebody competing with them.”

Supervisor Susan Golding, who since taking office in 1985 has pushed for private contracts whenever possible in county government, said she sees no reason to exclude the criminal justice system from that trend.

“Government should bid against the private sector if we have the opportunity,” Golding said. “It creates a much more careful look at government operations.”

The supervisors, after holding an extensive conference on the issue last fall, voted to seek state approval for a pilot project to involve one San Diego facility, most likely a 285-bed camp planned for East Otay Mesa.

State Permission

The county believes it needs the state’s permission because of a provision in California law requiring county sheriffs to accept for confinement anyone committed to their custody. Although many convicted criminals are now released by the sheriff to the Probation Department and to privately operated work-furlough programs, local and state lawyers have ruled that counties are not free under current law to let private companies manage jails and locked probation camps.

That makes the counties the only criminal justice authority unable to deal freely with the private sector.

The federal government, for example, has hired private contractors to run detention facilities for the Immigration and Naturalization Service, which sends aliens to the privately run centers while deportation proceedings are pending.

The state also contracts out: A private firm has been retained to operate two centers, including one on East Otay Mesa, for ex-convicts who violate the conditions of their parole.

But before the county can do the same, it must run the gantlet of interests in the capital that have vowed to oppose private contracting at every turn.

In the past three years, at least three bills have been introduced to give counties the power to hire private companies to run minimum-security jails. Each has failed.

L.A. County Proposal Shelved

Just last week, Los Angeles County, which is usually considered the most powerful local government agency in the state, put on hold its latest effort to win permission to operate a pilot project. The Los Angeles-sponsored bill, which was defeated once last year, was scheduled to be reconsidered Tuesday by the Senate Judiciary Committee but was shelved without a vote.

That measure faltered despite provisions in it requiring that:

- Private contractors meet the same state standards for construction and services as county-owned facilities.

- Private facilities be paid no more per inmate than the cost of public custody.

- Private contractors agree to accept full legal liability for their programs.

- The chosen contractors have a demonstrated record of efficient management and fiscal solvency.

- Authority for placing inmates in a private facility remain with the sheriff or chief probation officer.

- Staff members be held to the same standards as peace officers in matters involving searches, seizures, confessions and treatment of individuals in their custody.

“The opposition comes from so many sectors and so many forces that we just weren’t able to put together anything that was acceptable,” said Mark S. Zehner, a lobbyist for Los Angeles County. “We thought that a pilot program was at least a reasonable approach to trying out the proposal, but even that was strongly resisted.”

Opposition to the bill came from the American Civil Liberties Union; the Los Angeles County Sheriff’s Assn.; the Service Employees International Union; the American Federation of State, County and Municipal Employees, and the California Probation, Parole and Correctional Assn.

Worry About Rights

The ACLU believes that contracting out might jeopardize the constitutional rights of prisoners because the courts may not hold private companies to the same standards as public agencies, said Marjorie Swartz, the group’s lobbyist.

“The difference between an employee and a contractee is that you’re responsible for an employee, but you’re not responsible for a contractee,” Swartz said.

“If they beat a confession out of someone, would the Miranda rule apply?” she asked, referring to the Supreme Court decision requiring peace officers to advise suspects of their constitutional rights before questioning.

“We just don’t think these problems can be resolved,” she said, adding that ACLU is equally unhappy with private jails on the state and federal level.

Alva Cooper, legislative advocate for the California State Sheriffs’ Assn., said his group believes that criminal justice programs would be less--not more--flexible under private enterprise.

“We believe that as long as the jails are run by elected officials, the response to problems can be quick,” Cooper said. “If you’ve got a problem in the county jail or the sheriff comes under the gun, the public has a right to ask for his recall or defeat him at the next election. If you’re under private enterprise, under contract, if there’s a bad situation it can be dragged out in court and exist forever.”

Despite such opposition from civil rights and law enforcement groups, who are rarely political allies in Sacramento, many observers believe that the public employee labor unions present the toughest obstacle to acceptance of the idea.

Since both sides of the debate can cite anecdotal evidence of privately run jails elsewhere either working well or causing problems, the question of trying the idea in California appears to come down to which side can muster the most political will.

Hurdle to Cross

“We need to get past the hurdle that organized labor presents,” said Assemblyman Dominic L. Cortese, a San Jose Democrat and chairman of the Assembly Local Government Committee. “Until we get past that, we’re going to have a real problem.”

But union representatives say they have no intention of giving up the fight. And they are confident that they still hold the advantage.

“Nothing is ever over,” said Baron of the American Federation of State, County and Municipal Employees, which opposes virtually all forms of contracting out government services. “If we have to continue to go to war on these things we’ll just have to go to war.”

Maura Kealey, legislative representative for the Service Employees International Union, said the concept of “privatizing” jails is “a trendy thing” that government officials are latching onto because of problems with the publicly run jail system.

“We believe very strongly in California’s civil service merit system, the good government approach,” Kealey said. “Public service should be done by public employees.”

But Susan Cohen, who represents the California Probation, Parole and Correctional Assn., a professional group, said the opposition is concerned about more than losing jobs to the private sector.

Ethical Issue?

“This is not a labor issue; it’s an ethical issue,” Cohen said. “Privatization is inappropriate because what you’re talking about are folks who are being deprived of their liberty. One shouldn’t be making money on that kind of misfortune.”

Even Assemblyman Larry Stirling (R-San Diego), who has agreed to carry a measure for San Diego County, said he is not sure the concept is a good one.

Stirling, chairman of the Assembly Public Safety Committee and an expert on criminal justice issues, said he fears private operators will take the best-behaved inmates and leave the publicly run jails with only the toughest and hardest to handle prisoners.

“It’s wise to keep the moderating prisoners in with the heavy-duty guys, because it helps us operate the prisons more efficiently,” he said.

But Stirling said he believes counties already have the authority to contract with private companies without the special legislation. If county officials don’t agree, he said, he is happy to carry the bill to give them permission.

“I don’t think it’s good policy, but I think they ought to have the discretion to do it,” Stirling said.

Hard Battle Ahead

San Diego County officials acknowledge that the battle before them will not be an easy one.

County lobbyist Pat Gayman conceded that past efforts have “not been a raging success, or even a marginal success.”

Supervisor Bilbray said the odds don’t look good.

“You’ve got the bureaucrats and the unions opposing it and the taxpayers be damned,” he said. “The special interests are blasting it right out of the saddle.”

But Supervisor Golding said the county, faced with a jail system that routinely holds hundreds more inmates than it was designed for, has little choice but to seek alternatives to traditional programs.

“I don’t know that we can win,” Golding said. “I believe in the old adage, try, try again.”

Even if San Diego’s bill fails, the county’s effort could send a message to legislators and keep discussion in the issue alive.

“It’s inappropriate for the state to bar local jurisdictions who are mandated to build jails from looking at all reasonable ways of doing it,” Golding said. “Otherwise, as far as I’m concerned, any murders and rapes that occur are on their heads.”