Seminar in Sexuality, Gender, Health and Human RightsDec. 19th 2011

Professor: Carole S.Vance, Ph.D., M.P.H.Student: Leila J. Lohman

Private Prisons vs. State Prisons: What Effect on Prisoners’ Rights?

On August 20th 1971, Dr. Philippe Zamboni ended his

Stanford Prison Experiment prematurely, in part because “guards

were escalating their abuse of prisoners.” Stanford

psychologist Zamboni, turned “Superintendent” during the time

of the six day experiment further describes how “boredom had

driven [the guards] to ever more pornographic and degrading

abuse of prisoners.”1 The question is if Ivy League students

can display brutal behavior and sexual misconduct within the

context of a psychological study, what have actual prisoners

been enduring in United States prisons? Recent reports by Human

Rights Watch (2001) and the Department of Justice (2008), have

confirmed that sexual abuse in U.S. prisons is a serious public

health issue. At a time when the United States is imprisoning

“more people — both per capita and in absolute terms — than any

1 Information found on the Stanford Prison Experiment Official Website: www.prisonexp.org

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other nation in the world, including Russia, China and Iran,”2

with 2,292,133 inmates,3 it appears necessary to assess and

analyze the situation regarding prisoners rights in U.S.

prisons. The fact that China for example, has 1,333,000,000

inhabitants and a total of 1,650,000 prisoners4 clearly

highlights the culture of excessive imprisonment in the United

States. Our assessment is also informed by the fact that during

1999 and 2009, private prisons increased by 1600%.5 Given the

total amount of prisoners in the United States, there is

concern about proportionate rates of sexual abuse in prisons.

By observing whether or not prisoners’ rights are impacted

differently or unequally in private or government prisons, one

of the aims of this paper is to move away from the mainstream

debate, the “cost-benefit approach” between private prisons and

state prisons. Therefore, this paper applies a human right-

based approach to prison management

Following an outline of current prison demographics in the

United States, this study proceeds as follows: the first part

2 ACLU3 Data provided by the International Center For Prison Studies, a partner of the University of Essex, UK. Collected on 31.12.2009 (U.S. Bureau of Justice Statistics): www.prisonstudies.org 4 Idem. 5 Ibidem.

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begins with a description of international and regional

standards of prisoners’ rights; I then assess what the

respective laws are in the United States, whilst comparing

their compatibility with international and regional standards.

The second part discusses the data provided by different bodies

(governmental and non-governmental), about the occurrence of

sexual abuse in prisons in the United States. Because male

inmates represent more than 90% of prisoners in the United

States, I have chosen to restrict my data collection to adult

male-inmate-on-male-inmate sexual victimization and staff-on-

male-inmate sexual misconduct. This analysis will focus on the

Prison Rape Elimination Act (PREA) passed in 2003 in order to

highlight recent positive developments by government officials

and prison authorities to reduce the gap between standards and

occurrence of sexual violence.

The third part assesses how Corrections Corporation of

America, the country’s largest private corrections company,

ranks in providing its prisoners with a safe environment.

Regarding questions of terminology I have decided to apply the

phrase “private prison,” for prisons that are managed and owned

by companies, and although in both cases the government plays a

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key regulatory role, the term “public prison,” is used,

according to common jargon, for prisons that are not-for-profit

and are managed by state agents.

Prison demographics in the United States: an Outline (2011)

The official capacity of prison beds in the United States

is 2,093,133, but as mentioned above, there are currently

2,292,133 prisoners in local jails, state and federal prisons

in the United States. In 1992, the United States counted

1,295,150 prisoners.6 Consequently, the level of occupancy in

federal prisons is 162%, of its official capacity.7

Overcrowding is a serious problem in United States’ federal and

state prisons and leads to the mixing of convicted and un-

convicted prisoners, which is contrary to international human

rights standards.8 Overcrowding has also proven to have

negative impacts on prisoners’ mental and physical health, such

as symptoms of mania, major depression, or psychotic disorder.6 Data provided by the International Center For Prison Studies, a partner of the University of Essex, UK.7 Idem. 8 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001.

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These health problems can be seen, as additional burdens on

inmates, since issues such as drug addiction or traumas, are

often the root causes of their imprisonment.9 Prisoners are

predominantly members of disadvantaged socio-economic class.

Many prisoners have reduced access to appropriate health care

because they are often socio-economically disadvantaged and

thus, once incarcerated, prisoners’ right to healthcare is

particularly crucial.

For many inmates, being incarcerated in over capacitated

prisons is a difficult experience involving violence (physical

and mental), and sexual abuse. This abuse can occur between

inmates, and sometimes between guards and inmates: “due to

overcrowding and space constraints, inmates [experience] a high

risk of sexual abuse.”10 These facts also point to the

potential humiliation that can be experienced by some

prisoners, which can be both “a struggle with the self and with

the other.”11

9 According to the Center for prisoner health and human rights, at Brown University,the “prevalence of HIV is five times higher in U.S. state and federal prisons than in the general population. »10 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001. 11 “Humiliation, Claims and Context.” Ed. by Gopal Guru, Oxford University Press, 2009.

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Research and statistics have demonstrated the dramatic

growth of incarceration in the United States: “[since] 2000,

the census of prisoners being detained in State and Federal

prisons has risen 13%. Since 1990, the census has grown 100%.

And since 1980, the census has grown a staggering 366%.”12

However, this increase was not paralleled with anti-sexual

abuse regulations until the Prison Elimination Act (2003). This

gross increase in the prison population in a rather condensed

time frame is symptomatic of the “get tough” sentencing

reforms, which started in 1980’s, indeed, “[much] of what

happens in the rest of the criminal justice system impacts

greatly on the prison system. A new law which introduces a

different sentencing structure may result in an increase in the

prison population over a short period of time.”13 The

“Indefinite Detention” Bill passed by the Senate in mid-

December 2011 has recently verified this culture of mass

incarceration: “[the] existence of an industry based on

incarceration for profit creates a commercial incentive in

12 Data found on the website of the Center for prisoner health and human rights at Brown University, New York: http://www.brown.edu/Research/Prisonerhealth/index.html 13 UNODC, “Handbook for prison leaders.” Criminal Justice Handbook Series, 2010.

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favor of government policies that keep more people behind bars

for longer periods of time.”14

In 2006, it was estimated that among the 2,292,133

prisoners in the United States, 40,9% were African-American,

20,9% were Hispanic/Latino,15 and 8.8% were female adults.

Thus, relative to their proportions in the United States’

population as a whole, “black males are more than twice as

likely to be incarcerated as Hispanic males and seven times as

likely as whites.”16 In 2004, a total of 53% of the African-

American prison population, accounts for known HIV/AIDS cases

25% of the known prison HIV/AIDS cases were related to

Hispanic/Latino inmates. These HIV positive rates are

significant considering the spread of sexual activity in

prisons (consensual or coerced), and absence of condom

distribution in most prisons. Indeed, in contradiction with

UNAIDS recommendations, condom supply and other harm-reduction

methods for HIV/AIDS or other sexually transmittable disease

prevention are still not mandatory in U.S. prisons.

14 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.15 Idem. 16 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001.

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The correctional system in the United States is under the

supervision of the Department of Justice and is composed of

5,069 establishments.17 For-profit correction companies, or

private prisons, currently administer 6% of state prisoners,

16% of federal prisoners and half of federally detained

immigrants.18 For comparison, in the mid-1980’s private prisons

were operating only two-dozen adult prisons.19 This major

market increase is not a coincidence; since private prisons

have openly expressed that their business model “depends on

high rates of incarceration.”20 This implies that private

prisons’ profitability essentially derives from tough

conviction, parole standards and robust sentencing standards.

For this purpose, Corrections Corporation of America has been

closely involved with the American Legislative Exchange Council

(ALEC), known for its conservative policies on sentencing

rules.21 Furthermore, in order to gain influence and market

17 (2000 - 3,365 local jails, 1,558 state facilities, 146 federal facilities) Data provided by the International Center For Prison Studies, a partner of the Universityof Essex, UK: www.prisonstudies.org 18 “Banking on Bondage: Private Prisons and and mass incarceration,” November 2nd, 2011. 19 E. S. Savas, “Privatization and Prisons.” In the Vanderbilt Law Review, vol. 40, no.4, 1987. 20 ACLU, “Banking on Bondage, Private Prisons and Mass Incarceration,” New York, 2011. 21 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

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shares, some correctional companies use ethically questionable

tactics such as, “extensive lobbying,” “lavish campaign

contributions,” and “efforts to control information.”22 What is

crucial to note in the context of this study, is that the for-

profit motive, has been said to deter correctional companies

from “changing behaviors,” “treating substance abuse,” and

“offer skills necessary for reintegration into the

community.”23

Expanding prison privatization, primarily done through

contracting, arose in the early 1980’s, from the contradiction

between the growing rate of incarceration, due to “get tough”24

sentencing reforms, the country’s “drug-war,”25 and taxpayers’

refusal to pay for the development of prison facilities. Prison

management was seen by the Reagan administration as one of the

11,000 governmental activities that could be privatized.26

Although initially perceived as “dramatic” and “thought-

22 Idem. 23 Catholic Bishops Resolution (2000). In ACLU, “Banking on Bondage, Private Prisonsand Mass Incarceration,” New York, 2011.24 Green, Judith A., “Entrepreneurial Corrections: Incarceration As A Business Opportunity.” Published in Invisible Punishement. Ed. By Marc Maurer and Meda Chesney-Lind. The New York Press, New York, 2002. 25 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001.26 Green, Judith A., “Entrepreneurial Corrections: Incarceration As A Business Opportunity.” Published in Invisible Punishement. Ed. By Marc Maurer and Meda Chesney-Lind. The New York Press, New York, 2002.

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provoking,”27 state governments soon found this solution highly

attractive, in part because it would allow them to “evade voter

approval of bond issues,” but also because it promised major

financial advantages. Early prison privatization opponents,

mostly comprised civil libertarians and correction officers,

who raised concerns about “a private individual’s right to

deprive others of their freedom.”28

Nowadays, the practice of prison privatization is most

prevalent in the United Kingdom and Australia.29 In fact,

Corrections Corporation of America is considered to have been

instrumental in the United Kingdom and Australia in persuading

the governments to privatize their prisons.30 However, in other

countries the privatization of prisons is seen as highly

problematic, and in 2009, Israel’s Supreme Court President

Dorit Beinish, wrote: “[the] very transfer of the powers to

administer a prison from the state, which acts in the name of

the public, to the hands of private businessmen who operate for

profit, causes harsh and grave damage to the basic human rights

27 E. S. Savas, “Privatization and Prisons.” In the Vanderbilt Law Review, vol. 40, no.4, 1987.28 Idem. 29 Human Rights Advocates, “Privatized Prisons and Human Rights.” Report to the 13th Session of the Human Rights Council, 2010. 30 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, WashingtonD.C) and Stephen, N., (Prison Privatization Report International, London,)“Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

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of prisoners and to their personal freedom and human

dignity.”31 Furthermore, in 2004, New Zealand became the first

country to abolish its prison privatization experiment,32 which

illustrates the extent to which prison privatization is

perceived as unethical in some regions of the world.

International human rights standards and prisoners’ rights: an

Overview

There are a number of international and regional treaties,

which deal with prisoners’ rights. For clarity’s sake I have

distinguished three groups of international human rights

treaties and documents regarding prisoners; the first group

comprises the Universal Declaration of Human Rights (1948), the

International Covenant on Civil and Political Rights (1976) and

the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (1987). Each one of these

treaties contains a reference to persons deprived of their

liberty. The United States has ratified all three of them and

is therefore legally bound as a State Party.

31 Human Rights Advocates, “Privatized Prisons and Human Rights.” Report to the 13th Session of the Human Rights Council, 2010.32 Idem.

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The second group is composed of international documents,

which deal specifically with prisoners and conditions of

detention; namely, the Standard Minimum Rules for the Treatment

of Prisoners (1957), the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment

(1988), the Basic Principles for the Treatment of Prisoners

(1990).

“All persons under any form of detention or imprisonment

shall be treated in a humane manner and with respect for

the inherent dignity of the human person.” (Body of

Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, Principle 1, adopted by the General

Assembly in 1988)33

The third group of international standards deal

specifically with staff working with prisoners and people who

have been deprived of their liberty and includes the Code of

Conduct for Law Enforcement Officials (1979), the Principles of

Medical Ethics relevant to the Role of Health Personnel,

particularly Physicians, in the Protection of Prisoners and

33 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988): http://www2.ohchr.org/english/law/bodyprinciples.htm

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Detainees against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (1982).

Conscious of the fact that a prison’s living conditions is

a key factor in prisoners’ self-esteem, self-respect, and

dignity and eventually his/her opportunity of reintegrating the

community as a “law-abiding citizen,”34 international standards

clearly mention that the sentence that has been imposed upon

prisoners should not exceed the loss of liberty. Furthermore,

international instruments have been developed “to ensure that

the human rights of prisoners are protected and that their

treatment aims to ensure their social reintegration, as a

priority.”35 Here, it is important to note that the

rehabilitation approach or “normalization”36 ideology, to

imprisonment does not appear compatible with private prisons’

business model, because, as mentioned above, its existence and

profit making is dependent upon high rates of incarceration. In

2010, Corrections Corporation of America affirmed the

following: “[the] demand for our facilities and services could

be adversely affected by (…) leniency in conviction or parole

34 UNODC, “Handbook for prison leaders.” Criminal Justice Handbook Series, 2010. 35 Idem. 36 Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons – A Comparison of Select Characteristics, 68 FED. PROBATION 27, 29 (2004).

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standards and sentencing practices (…).”37 Some authors have

said that far from sponsoring a rehabilitation approach to

imprisonment, private prisons’ business model essentially

limits incentives to curb recidivism and prison violence.

Furthermore, a study of prisons in Oklahoma demonstrated that

“private prison inmate groups had a greater hazard of

recidivism than did public inmate groups,”38 which demonstrates

that prisoners in private may prisons have a lower chance for

rehabilitation. In addition, the issue of providing prisoners a

safe environment alludes to prison officials’ responsibility to

protect society, but most importantly in our paper, to their

role of upholding the rights of prisoners.

In recent years, the United Nations has been developing

strategies to support prison authorities implement a human

rights-based approach to prison management. According to a

handbook developed by the United Nations Office on Drugs and

Crime (UNODC) in 2010, a human rights-based approach to prison

management is based on the following principle: “[punishment]

does not mean that all the prisoner’s rights are taken away.

Prison sentences are a form of punishment which deprives

37 Corrections Corporation of America, 2010 Annual Report On Form 10-K 19 (2010). 38 Andrew L. Spivak & Susan F. Sharp, Inmate Recidivism as a Measure of Private Prison Performance, 54 CRIME & DELINQUENCY 503 (2008).

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someone of their liberty but not their basic human rights to

life, integrity, freedom from torture, slavery, self-

development, health, freedom from discrimination or due process

of law to name only a few.”39 Although this description does

not explicitly mention sexual assault, we can conclude that

rape being inherently contrary to the self-development, health

and a person’s integrity, it is prohibited within this

framework.

Furthermore, in 2001, Human Rights Watch recalled, “no

international law provisions specifically pertain to rape in

prison, but international tribunals (…) have established that

rape is covered by international prohibitions on torture or

cruel, inhuman or degrading treatment.”40 In situations where

people have been deprived from the liberty, international human

rights law implicitly condemns the “state from tolerating rape

and perpetuating conditions conducive to its occurrence.”

However, the United States has limited its mandate as a duty-

bearer by making reservations to Article 7 of the ICCPR, by

which it states that the prohibition of cruel, inhuman or

degrading treatment provided by the treaty, applies “only to

39 UNODC, “Handbook for prison leaders.” Criminal Justice Handbook Series, 2010.40 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001

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the extent that the prohibition covers acts already barred

under the U.S. Constitution.”41 The United States government

has made a comparable reservation to Article 16 of the

Convention Against Torture. A critical viewpoint of the United

States’ reluctance in implementing international and regional

standards of prison management can be read as ideological

vestiges of prisons historically being a place where prisoners

were sent to “repent for their crimes through hard labor,

silence, studying the scriptures, and corporal punishment.”42

Regional instruments regarding prisoners’ rights: an

Overview

I now discuss the regional treaties and instruments

relevant to the United States regarding prisoners’ rights. The

American Convention on Human Rights (1978) contains several

references to persons deprived of their liberty. Article 5,

Paragraph 2 is particularly relevant to our study:

41 Idem. 42 Smith, Brenda V., “Rethinking Prison Sex: Self-Expression and Safety.” Columbia Journal ofGender & Law; Vol. 15 Issue 1, p185-234, 50p, 2006.

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“No one shall be subjected to torture or to cruel,

inhuman, or degrading punishment or treatment. All persons

deprived of their liberty shall be treated with respect

for the inherent dignity of the human person.”43 (Art. 2,

Par. 2)

The two treaty bodies responsible for overseeing the

implementation of the Convention are the Inter-American Court

of Human Rights and the Inter-American Commission on Human

Rights. In 2008, the latter issued a series of Principles and

Best Practices on The Protection of Persons Deprived of Liberty

in the Americas, which deals specifically with prisoners and

conditions of detention. Although the Unites States is a

founding member of the Organization of American States, it has

not ratified its Convention on Human Rights and therefore, to

this day, it is not legally bound to the American Convention on

Human Rights. Regional instruments and their subsequent bodies

often serve as useful references to oversee states’

implementation of international standards. The United States

has not prioritized inter-mediate, meaning regional-level

43 American Convention on Human Rights (1978): http://www.oas.org/juridico/english/treaties/b-32.html

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regulation processes, for overseeing implementation of its

prisoners’ rights.

Bypassing regional human rights instruments can lead to

flaws in a country’s prison accountability system. The

accountability process might include “regular reports on prison

incidents and conditions,” or “reports justifying certain

disciplinary actions” such as “use of force,” or “changing

prison conditions.”44 A proficient accountability system also

determines a prison’s level of transparency. United States’

reluctance to ratify regional instruments regarding prisoners’

rights in addition to making reservations on key international

human rights treaties, has significantly limited the

implementation of a human rights-based approach to prison

management in the country. At the very least, we might say the

United States has deliberately slowed the process of

implementing a human rights-based framework to its correctional

system. This relative “laisser-faire” approach is in part what

has enabled private prisons to develop questionable management

methods regarding prisons. For example, in contrast to

international and regional prison norms, Corrections

Corporation of America continues to oppose “proposals for

44 UNODC, “Handbook for prison leaders.” Criminal Justice Handbook Series, 2010.

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corporate transparency brought by religious groups that own

stock in the company.”45 Furthermore, in 2007, Congress

unsuccessfully introduced the Private Prison Information Act.

This Act would have “required federally contracted facilities

to make public the same information required of federally run

facilities.”46

Domestic legal protection for prisoners in the United

States

Prisoners in the United States are legally protected from

human rights abuses under domestic law. Since Wolff v. McDonnell

(1974) in which the Court stated: “[there] is no iron curtain

drawn between the Constitution and the prisons of this

country,”47among the domestic legal protection system are the

constitutional provisions. The Eighth Amendment has usually

been used as grounds for legal protection in lawsuits involving

sexual abuse against prisoners. In fact, in Farmer v. Brennan

(1994)48, which involved the rape of a transsexual inmate, the

45 ACLU, “Banking on Bondage, Private Prisons and Mass Incarceration,” New York, 2011.46 Human Rights Advocates, “Privatized Prisons and Human Rights.” Report to the 13th Session of the Human Rights Council, 2010.47 Wolff v. McDonnell, 418 U.S. 539 (1974). 48 Farmer v. Brennan, 511 U.S. 825 (1994).

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Supreme Court recalled that prison rape is unconstitutional by

stating that “a prison official violates the Eighth Amendment

if, acting with deliberate indifference, he exposes a prisoner

to a substantial risk of sexual assault.”49

There has been considerable progress more recently

regarding laws against rape and sexual assault in prisons.

Indeed, mounting pressure from Human Rights Watch and Stop

Prisoner Rape, an organization founded by prison rape

survivors, pushed for the enactment of the Prison Rape

Reduction Act (2002). The Prison Rape Reduction Act was

eventually called the Prison Rape Elimination Act, and would

comprise both inmate-on-inmate sexual victimization and staff-

on-inmate sexual victimization, forming a holistic approach to

sexual victimization in prison. In 2003, President Georges W.

Bush signed the Prison Rape Elimination Act (PREA) into

domestic law. The PREA is the United States’ first federal law

passed, which addresses the issue of sexual violence in

prisons; as such it is a milestone law that officially

proclaims a zero-tolerance policy against rape in prisons.

The PREA has also set into motion several new monitoring

and accountability processes for the Department of Justice,

49 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001

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which oversees all prisons in the United States. Among these

new mandates are the collection and analysis of “the incidence

and effects of prison rape,”50 by the Bureau of Justice

Statistics. The Department of Justice has also been required to

appoint a Review Panel On Prison Rape to “conduct hearings on

prison rape.”51 Furthermore, under the PREA, the National

Institute of Corrections (NIC) is required to “offer training

and technical assistance,”52 to prison authorities. Lastly, the

PREA authorizes the Attorney General to “award grants to States

to assist with the implementation of the PREA requirements.”53

The UNODC has previously stated, “[in] order for a prison

system to be managed in a fair and humane manner, national

legislation, policies and practices must be guided by

international standards developed to protect the human rights

of prisoners.”54 The PREA Act can be seen as one crucial step

toward enhancing prisoners’ human rights in the United States.

50 U.S. Department of Justice, National Institute of Corrections, Report to the Congress of the United States on the Activities of the Department of Justice in Relation to the Prison Rape Elimination Act (Public Law 108-79), May 2009. 51 Idem. 52 U.S. Department of Justice, National Institute of Corrections, Report to the Congress of the United States on the Activities of the Department of Justice in Relation to the Prison Rape Elimination Act (Public Law 108-79), May 2009.53 U.S. Department of Justice, National Institute of Corrections, Report to the Congress of the United States on the Activities of the Department of Justice in Relation to the Prison Rape Elimination Act (Public Law 108-79), May 2009.54 UNODC, “Handbook for prison leaders.” Criminal Justice Handbook Series, 2010.

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The challenge however, is making sure that domestic laws

are implemented and enforced in a manner that guarantees

prisoners’ safety. Indeed as seen above, private prisons often

lack transparency, by controlling information; also, they carry

out, extensive lobbying, and are major campaign contributors.

In fact, between 2003 and 2011, Corrections Corporation of

America hired 199 lobbyists in 32 states.55 And the government

being its only customer, in 2003, the company had given more

than $100,000 to the Republican Party.56 Fruitful campaigning

has led the state of Arizona to recently announce it is

planning to privatize all its state prisons.57 Given the fact

that other states might eventually equally decide to privatize

all their prisons, it appears even more necessary to address

the issue of implementation and enforcement of the PREA Act.

Prison: a place where bodies become playfields of

humiliation

55 ACLU, “Banking on Bondage, Private Prisons and Mass Incarceration,” New York, 2011.56 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.57 Jennifer Steinhauer, Arizona May Put State Prison in Private Hands, N.Y. Times, Oct. 23, 2009, available at http://www.nytimes.com/2009/10/24/us/24prison.html.

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Since prisons were institutionalized around the 1800’s,

facility authorities have officially condemned any form of

sexual expression by their inmates, “[sex] was seen as the

primary vector for sin, and the best way to address this issue

was to prohibit sex in these institutions — both for men and

women.”58 Nowadays, exceptions are made in some prisons for

conjugal visits among other extraordinary situations. In

reality, despite prohibition, sexual activity (coerced or

consensual) has always taken place in prisons.59 This is partly

due to the fact that for “many prisoners, the only item they

have to trade is themselves.”60 Where sex-for-food, shelter,

and/or protection are common occurrences during war, sex-for-

cigarettes, candy, street-food, and/or protection is common in

prisons. In both contexts, the body becomes a survival

commodity and the idea of consent is an integral part of the

coping-strategy. Regardless, the fact that PREA was enacted as

late as 2003 and the lack of comprehensive academic studies on

consensual sexual relations between staff and prisoners,

58 Smith, Brenda V., “Rethinking Prison Sex: Self-Expression and Safety.” Columbia Journal ofGender & Law; Vol. 15 Issue 1, p185-234, 50p, 2006. 59 In ““Rethinking Prison Sex: Self-Expression and Safety,” Brenda V., Smith speaks of the well known practice of women “pleading their bellies,” when women and men were still incarcerated in the same facilities. 60 Smith, Brenda V., “Rethinking Prison Sex: Self-Expression and Safety.” Columbia Journal of Gender & Law; Vol. 15 Issue 1, p185-234, 50p, 2006.

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reveals the extent to which any type of sexual activity in

prison is still considered taboo.

In 1996, a study of Nebraska’s prisons system found that

22% of male inmates had reported being “pressured or force to

have sexual contact against their will while incarcerated.”

Thereafter, in 2000, a study based on a survey of inmates in

seven men’s prison facilities in four states, was published by

the Prison Journal and showed that 21% of the inmates had

“experienced at least one episode of pressured or forced sexual

contact since being incarcerated, and at least 7% had been

raped in their facility.”61 However, prison authorities

continuously claim that sexual violence is less prevalent than

generally thought and that it is not a “systematic problem”.

Over the years, statistics on rape in prisons have varied

immensely between independent scholarly studies, internal

surveys by corrections authorities and on what definition of

“sexual victimization,” was used during surveys.

Since the PREA Act passed in 2003, reports of the Bureau

of Justice Statistics (BJS) have helped to centralize sexual

victimization data. The centralization of data should

eventually enable implementation of preventive strategies as

61 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001

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well as provide a better understanding of sexual dynamics in

prisons. In fact the 2008-2009 survey by BJS on sexual

victimization identified numerous subtleties about rape-culture

in prison. The report draws attention to the fact that “rates

of reported sexual victimization varied among inmates.”62 For

example, the authors mention that “after controlling for

multiple inmate characteristics,”63 they had found that black

inmates had reported higher rates of sexual misconduct by staff

(compared to white inmates). The rates of sexual victimization

by staff, the Panel found, were also higher among inmates with

college degrees, who were younger than twenty-five and who had

experienced sexual victimization before coming to the prison.64

An Indian scholar recently wrote, “[in] the West it is the

attitude of race that is at the base of humiliation.”65 In

2001, Human Rights Watch’s groundbreaking report “No Escape:

Male Rape in U.S. Prisons,”66 described how “racial

antagonisms” prevalent in American society are “significantly

62 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Report on “Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-2009.” National Inmate Survey, 2008-09. 63 Idem. 64 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Report on “Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-2009.” National Inmate Survey, 2008-09.65“Humiliation, Claims and Context.” Ed. by Gopal Guru, Oxford University Press, 2009.66 Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001

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magnified”67 in prisons. According to this report “prisoners

social relationships are largely determined by race.”68 This is

noteworthy if we take into account that a white male becomes

part of the social/racial minority once he enters prison.

Furthermore, the 2008-2009 survey by BJS implicitly alluded to

racial tensions in prisons by stating that “inmate-on-inmate

sexual victimization [were] significantly higher among white

inmates.” The causes of disproportionate black-on-white rape

and sexual assault have been theorized in the past. Some

scholars claim that white inmates represent surrogates for

whites generally, and that rape in this context is rather to be

considered as an expression of hate than sexual desire. In

turn, one could make the same analysis with the

disproportionate sexual abuse reported about staff-on-black

inmate, where African-American inmates could represent

surrogates for African-American generally for predominantly

white staff.

Another theory sees white inmates being disproportionately

sexually abused, due to a “rule” between African-American and

Hispanic/Latinos inmates. According to this “rule,” a prisoner

67 Idem. 68 Ibidem.

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from Texas explained to Human Rights Watch, “only a black can

turn out [rape] a black, and only a chicano can turn out a

chicano.”69 In his letter, the prisoner further describes how

breaking this “rule” would lead to inter-racial unrest, as the

other group would inevitably retaliate with further sexual

violence.

In 2008, the Review Panel On Prison Rape appointed by the

Department of Justice following the PREA ACT, released its

first report in which it had conducted hearings with inmates

based on the first report on sexual victimization by the Bureau

of Justice Statistics. In its report, the Panel found that

Torrance County Detention Facility (Torrance, NM) a jail run by

Corrections Corporation of America had the “highest rate of

inmate sexual victimization among the 282 jails surveyed; the

highest rate of nonconsensual sexual acts or abusive sexual

contacts; and the highest rate of staff-on-inmate sexual

victimization.”70

In its report, the Panel differentiated between

characteristics of victims of inmate-on-inmate sexual abuse and

69 Letter to Human Rights Watch from W.M., Texas, October 31, 1996. In Human rights Watch, “No Escape: Male Rape in U.S. Prisons.” 2001.70 The Review Panel On Prison Rape, “Report on rape in Jails in the U.S.” December 2008.

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victims of staff-on-sexual abuse. The Panel identified as

common characteristics of victims of inmate-on-inmate sexual

violence as: being young, being smaller or physically disabled,

having experienced sexual abuse in the past, lacking gang

affiliation, being homosexual or transgender, or having lower

I.Q.71 On the other hand, the Panel identified the following

characteristics for victims of staff-on-inmate sexual violence:

being confident, being a recidivist, and serving long-term

sentences. The Panel also identified common characteristics

among sexually abusive inmates (perpetrators), as being bigger

built, past victims of sexual assault, extremely self-

confident, and being desirous of power or control. Lastly, the

Panel recognized common traits of sexually abusive staff as

having low self-esteem, being insecure, having relational

personal problems, or being desirous of power or control.

Regardless, rape victims often develop chronic medical

conditions such as insomnia, eating disorders and/or other

manifestations of trauma. Furthermore, some victims are left

with severe physical injuries, and/or life-long diseases such

as HIV/AIDS. This reality is troubling considering the common

coexistence of reduced access to medical care and high rates of

71 Idem.

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violence found in private prisons: “CCA and other private

prison operators have been criticized for scrimping on medical

care in order to reduce their operating costs.”72

Corrections Corporation of America: under scrutiny

The Corrections Corporation of America (CCA) is the

country’s largest private corrections company, with more than

sixty facilities and 93,771 prisoners under its supervision.

The company started operating its first 350-bed federal prison

in 1984, in Houston Texas. The company’s shares went from $50

million when it first went public in 1986, to more than $3.5

billion in 1997.73 Around this time the CCA started its

unsuccessful “privatization crusade” abroad, notably in the

United Kingdom and Australia. Between 1995 and 1997, the CCA

was ranked among the top five companies on the NYSE. Shortly

thereafter, “(…) its facilities (…) were associated with

abuse, violence and escapes.”74 Consequently, in 2000, after72 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.73 Green, Judith A., “Entrepreneurial Corrections: Incarceration As A Business Opportunity.” Published in Invisible Punishement. Ed. By Marc Maurer and Meda Chesney-Lind. The New York Press, New York, 2002.74 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, WashingtonD.C) and Stephen, N., (Prison Privatization Report International, London,)“Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

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having “built new prisons on speculation,” with no contracts to

follow up, the CCA found itself with more than 9000 empty

prison beds and at the verge of bankruptcy. In her study on

private prisons, Judith Greene, mentions that Corrections

Corporation of America’s “speculative construction binge [had]

left the company under tremendous pressure to fill thousands of

empty prison beds (....).”75 However, through new contracts

with the Federal Bureau of Prisons (FBOP), the CCA was

eventually bailed out.76

Between 2001 and 2003, the CCA was involved in hundreds of

lawsuits, mostly brought by prisoners claiming civil rights

violations.77 These lawsuits eventually ended being settled

with the company agreeing to pay millions to the prisoners. One

important consequence of bad publicity earned by the company in

the late 1990’s is that it shifted its investment thesis from

“being more cost-effective” than public prisons, to claiming

public prisons’ overcrowding would inevitably lead to signing

contracts with the CCA. In essence, the CCA went from claiming

75 Green, Judith A., “Entrepreneurial Corrections: Incarceration As A Business Opportunity.” Published in Invisible Punishement. Ed. By Marc Maurer and Meda Chesney-Lind. The New York Press, New York, 2002.76 Idem. Edited by Marc Maurer and Meda Chesney-Lind. New York: The New Press. 200277 Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, WashingtonD.C) and Stephen, N., (Prison Privatization Report International, London,)“Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

30

it would offer better services than public prisons, to claiming

it could help the United States control prison overcrowding.

This ideological framework demonstrates the evolution of the

concept of prison privatization, which was initially claimed to

be better for prisoners’ safety and health, to being a concept

“just as good,” as public institutions.

In 2008 the Review Panel On Prison Rape identified

Overcrowding and high turnover among correctional officers as

“unique characteristics of jails with high prevalence of

rape.”78Although the level of occupancy in U.S. public prisons

is significantly over its official capacity, according to

Blakely, private prisons are operating at 18% below their

capacity.79 Furthermore, consistent with the absence of unions,

Blakely shows that “the private sector [pays] new officers

approximately $5,327 less than (…) the public sector (…).”80

Blakely found that with an average turnover rate of 43% “(…)

the private sector experienced officer turnover rates

approaching three times that of the public sector.”81 Turnover

78 Idem79 Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons – A Comparison of Select Characteristics, 68 FED. PROBATION 27, 29 (2004).80 Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons – A Comparison of Select Characteristics, 68 FED. PROBATION 27, 29 (2004).81 Idem.

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rates have been particularly high at the CCA, with annual rates

of more than 60% for its facilities in Tennessee, compared to

16% turnover rates among public correctional staff.82 In turn,

the higher rate of staff turnover in private prisons can be

interpreted as a factor contributing to higher levels of

violence seen in private prisons; “the private sector is a more

dangerous place to be.”83 Staff training issues have also been

associated with the CCA, “At the Hernando County Jail in

Florida, 44 percent of the guards did not have state

certification in 1999.”84 Other reports mention understaffing

is commonly found in private prisons, and could also be seen as

a cause for heightened violence in private prisons. In fact,

following the hearing at the Torrance County Jail, the Panel On

Prison Rape ordered the CCA to hire an additional fifteen

82 The Corrections Yearbook 2001: Adult Systems, Middletown, Conn.: Criminal JusticeInstitute, 2002, p.170. In Mattera P., Khan, M. (Corporate Research Project of GoodJobs First, Washington D.C) and Stephen, N., (Prison Privatization ReportInternational, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.”2003. 83 Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons – A Comparison of Select Characteristics, 68 FED. PROBATION 27, 29 (2004).84 Scott Calvert, “Past Officers Cite Warden for Turnover,” St. Petersburg Times, November 21, 1999, p.1. In Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

32

correctional officers in order to enhance the prisoners’

safety.85

In 2009, the National Prison Rape Elimination Commission

released its Report in which it states, “[the] sexual abuse of

prisoners undermines the very purpose of corrections in

America.”86 The Commission also acknowledged that changing the

status quo represents multiple challenges because progress

entails changing engrained processes in the country’s

correctional system, among which are “addressing insufficient

resources to sexual abuse,” the “challenges of training a vast

workforce,” as well as “enhancing safety (…) facilities.”87

Because private prisons, “are in business to make money, and

they’re going to take some shortcuts when they can,”88 it

appears that these challenges will take particular significance

within the private prison framework.

Conclusions

85 The Review Panel On Prison Rape, “Report on rape in Jails in the U.S.” December 2008.86 National Prison Rape Elimination Commission, “National Prison Rape Elimination Commission Report.” June 2009. 87 Idem. 88 “State Ends Experiment with Private Prisons,” Associated Press, October 1, 2000. In Mattera P., Khan, M. (Corporate Research Project of Good Jobs First, Washington D.C) and Stephen, N., (Prison Privatization Report International, London,) “Corrections Corporation of America: A Critical Look at its First Twenty Years.” 2003.

33

It appears that decisions to privatize have not been

motivated by addressing prisoners’ rights or social

rehabilitation, but rather by financial interests. This is

problematic considering prisoners generally have greater health

problems than the general population. Furthermore, the United

States lacks international and regional surveillance of its

correctional system, caused by low ratification rates and a

number of reservations made on key international treaties

regarding prisoners’ rights to be safe.

The close tie seen between private prison officials and

politicians also raises ethical questions, and reflects the

larger ideology behind campaign financing in the United States.

It appears that while politicians are “being bought,”

correctional staff in private prisons is earning lower salaries

than average than public prisons, which has been found to

directly impact safety within the institution. Consequently,

the private prison business model, with high turnover rates,

understaffing and higher rates of unqualified staff can lead to

heightened rates of sexual violence, both between inmates and

inmates and staff, as seen in the case of Torrance County

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Detention Facility, administered by Corrections Corporation of

America.

The passing of the PREA Act in 2003 can be seen as a

positive move toward a human rights approach to prison

management. The PREA serves both as an unprecedented document

in that it officially recognizes the prevalence of sexual abuse

in prisons; but also it is setting new standards for sexual

expression in prison by setting new norms for prison

management.

Bibliography:

ACLU, “Banking on Bondage, Private Prisons and MassIncarceration,” New York, 2011.

Andrew L. Spivak & Susan F. Sharp, Inmate Recidivism as aMeasure of Private Prison Performance, 54 CRIME & DELINQUENCY503 (2008).

Beck, Allen J., and Harrison, Paige M., (BJS Statisticians,) andBerzofsky, Marcus, Caspar, Rachel, and Krebs, Christopher (RTIinternational) “Sexual Victimization in Prisons an Jails Reported by Inmates, 2008-09,” US Department of Justice, Office of Justice Programs,Bureau of Justice Statistics, August 2010.

Curtis R. Blakely & Vic W. Bumphus, Private and Public SectorPrisons – A Comparison of Select Characteristics, 68 FED.PROBATION 27, 29 (2004).

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35

Green, Judith, “Entrepreneurial Corrections: Incarceration as a Business Opportunity” In Invisible Punishment, The New Press, New York, 2002.

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Farmer v. Brennan, 511 U.S. 825 (1994)

Wolff v. McDonnell, 418 U.S. 539 (1974)

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International Center For Prison Studies, a partner of the University of Essex, UK: www.prisonstudies.org

American Convention on Human Rights (1978): http://www.oas.org/juridico/english/treaties/b-32.html

Body of Principles for the Protection of All Persons under AnyForm of Detention or Imprisonment (1988):http://www2.ohchr.org/english/law/bodyprinciples.htm

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Stanford Prison Experiment Official Website: www.prisonexp.org

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