The governor’s prison fix that isn’t

SHARON DOLOVICH is a professor at UCLA School of Law.

CALIFORNIA’S PRISONS are bursting at the seams, but Gov. Arnold Schwarzenegger’s latest strategy for easing the pressure has hit a snag. The nonpartisan Legislative Counsel, which provides legal advice to state lawmakers, has issued an opinion (concluding that the governor’s plan to ship thousands of prisoners to private prisons out of state violates California’s Constitution. This opinion buoyed the anti-privatization California Correctional Peace Officers Assn. (the state prison guards union), which has gone to court to try to stop the transfers.

Let’s hope the court sides with the union. Outsourcing the care of state prisoners to private, for-profit contractors, especially those located out of state, is a bad idea. Not only will the move do little to fix what is wrong with California’s prisons, it will create a whole new set of problems that will outlast any short-term benefit.

The most obvious problem is age-old: Who will watch the watchers? The contracts require contractors to comply with all California laws governing the treatment of prisoners, plus a host of other terms designed to ensure safe and secure facilities. But a signed contract is no guarantee of performance. Prison contractors make their money by spending less to run their prisons than the contract price. If they think no one is watching, they may well cut corners.

The usual answer to this problem is oversight. But meaningful oversight would require a team of full-time, on-site monitors with open access to all parts of the prison and a mandate to hold contractors accountable for violations. And at this point, it appears that all monitoring of these contracts is to be done long distance from Sacramento, making it anybody’s guess as to how the state will ensure contractual compliance -- and, more important, inmate safety.


There is another reason to be concerned about the potential for abuses in private prisons. The biggest item on any prison’s balance sheet is labor costs, and it’s no surprise that private prisons routinely underinvest in this area. But a qualified and well-trained staff is the sine qua non of a safe prison. Guarding inmates requires constant interaction in a tense atmosphere with people who are bored, frustrated, resentful and possibly dangerous. Guards who are overworked and undertrained, or who work in prisons that are understaffed, are at a disadvantage in such an environment -- and would thus be less effective at maintaining safe prison conditions.

As my research has suggested, underinvestment in labor is likely the reason that, when you compare populations at the same security level, private prisons tend to be more violent even than public prisons.

Schwarzenegger makes a good case that the system has reached a breaking point. Every one of the state’s 33 prisons is operating at or above its maximum operational capacity, and more than 15,000 prisoners are sleeping on floors in gyms, chapels, dayrooms and anywhere else prison officials can find space for a mattress. But shipping thousands of prisoners to private prisons in Indiana, Tennessee and elsewhere is not the answer. It may ease the pressure temporarily, but the space freed up by the transfers will soon fill up again.

What we need is not more prison beds but meaningful sentencing reform. Our prisons are so crowded for one reason: We have too many people behind bars -- more than 170,000 inmates. Many of these inmates are violent, but many more are not. The only way to resolve this penal crisis is to take a hard look at who is in prison and why, and ask ourselves whether everyone behind bars really needs to be there.

We could start by finding a more appropriate way to deal with those prisoners who are more mentally ill than criminal, who were re-incarcerated for technical parole violations that pose no public safety threat, whose offense is mere drug possession, or who are serving 25-year mandatory minimum sentences for non-serious, nonviolent third strikes. With even moderate success at these efforts, we wouldn’t need to ship any inmates out of state. We’d have cells enough right here at home.