The Treatment-Industrial Complex - Alternative Corrections, Private Prison Companies, and Criminal Justice Debt 2020
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\\jciprod01\productn\H\HLC\55-1\HLC101.txt unknown Seq: 1 2-SEP-20 10:34 The Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and Criminal Justice Debt Laura I Appleman* Out of the 6.7 million adults caught up in the criminal legal system, approximately 4.5 million are under correctional control outside of prisons and jails. Within this hidden world of “alternative corrections,” people who are arrested, detained, imprisoned, put on probation or diversion, and even released are forced to pay a growing amount of money to various for-profit “criminal justice” actors. Alternatives to incarceration are conditioned on fines, fees, and other forms of wealth extraction, causing a vicious cycle of poverty and indebtedness that is virtually impossible to escape. This Article explores and analyzes the little-researched area of criminal justice debt arising from alternative corrections: how private corrections companies profit from supervising those individuals released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment. These under-examined forms of for-profit correctional supervision—the treatment-industrial complex—have turned supposedly progressive alternatives to incarceration into cash-register justice. TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. WHERE CASH IS KING: HOW PRIVATE ALTERNATIVE CORRECTIONS BEGGARS THE POOR . . . . . . . . . . . . . . . . . . . . . . . . A. The Growth of Alternative Corrections . . . . . . . . . . . . . . . . B. Private Probation Companies . . . . . . . . . . . . . . . . . . . . . . . . 1. Pay-Only Probation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Drug and Alcohol Testing . . . . . . . . . . . . . . . . . . . . . . . . 3. Long-term Private Monitoring . . . . . . . . . . . . . . . . . . . . C. Drug Rehabilitation and Halfway Houses . . . . . . . . . . . . . 1. Drug and Alcohol Rehabilitation . . . . . . . . . . . . . . . . . 2. Rehabilitation in Free Labor: Forced Labor as Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Mental Illness and Forensic Mental Healthcare . . . . . . . . E. For-Profit Diversion Programs . . . . . . . . . . . . . . . . . . . . . . . 2 R 3 4 6 8 9 10 12 13 R R R R R R R R 18 23 28 R R R * Associate Dean of Faculty Research and Van Winkle Melton Professor of Law, Willamette University. J.D., Yale University; B.A., M.A., Univ. of Pennsylvania. Thank you to David Friedman, Cynthia Godsoe, Brian Highsmith, Alexis Karterton, Lauren Ouizel, Jocelyn Simonson, Kate Weisburd, and the exemplary editors of the Harvard Civil Rights-Civil Liberties Law Review for your thoughtful comments and edits. Thanks also to Willamette for its research support. Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2 unknown Seq: 2 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 F. Sex Offender Post-Release Treatment and Civil Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Costs of Civil Registration . . . . . . . . . . . . . . . . . . . . . . . 2. Post-release Civil Commitment . . . . . . . . . . . . . . . . . . . II. THE PROFIT MOTIVE: THE CORRECTIONS INDUSTRY, TAXATION & PRIVATE EQUITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. REIT Structuring: Geo Group and CoreCivic . . . . . . . . . . B. Pension Investments and Stock Holdings . . . . . . . . . . . . . . C. Federal Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. SOLUTIONS AND SAFEGUARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Controlling Criminal Justice Debt . . . . . . . . . . . . . . . . . . . . B. Divestment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 33 37 R R R 40 41 44 46 48 49 50 61 R R R R R R R R INTRODUCTION Alternatives to incarceration, including probation, work camps, electronic monitoring, required rehabilitation, diversion, civil commitment, and therapy, are largely unregulated in many states. Limited oversight enables for-profit alternative corrections companies to profit from the millions of people who must interact with the criminal legal system after they are released. These alternatives to incarceration add up to a cash-register justice system that extracts a growing stream of money from poor people and communities of color, contributing to a pernicious cycle of poverty, indebtedness, control, and supervision.1 Individuals under privatized correctional supervision are all too frequently trapped in a chaotic treatment-industrial complex.2 The majority of people caught up in the criminal legal system are not currently incarcerated, but are instead supervised by a form of alternative corrections.3 Of the 6.7 million adults involved in the criminal legal system, approximately 4.5 million people—almost two-thirds—are under correctional control outside of jails or prisons.4 Within this largely hidden world of alternative corrections, people who are arrested, detained, imprisoned, put on probation or diversion, or even released must make steep payments to various for-profit “criminal justice” actors. 1 See Alex Kornya et al., Crimsumerism, Combating Consumer Abuses in the Criminal Legal System, 54 HARV. C.R.-C.L. L. REV. 108, 110 (2019). 2 See generally CAROLINE ISAACS, AMERICAN FRIENDS SERVICE COMM., THE TREATMENTINDUSTRIAL COMPLEX: HOW FOR-PROFIT PRISON CORPORATIONS ARE UNDERMINING EFFORTS TO TREAT AND REHABILITATE PRISONERS FOR CORPORATE GAIN (Nov. 2014), https://www.afsc .org/sites/default/files/documents/TIC_report_online.pdf, archived at https://perma.cc/5ZMP585A. 3 See WENDY SAWYER & PETER WAGNER, Prison Policy Initiative, Mass Incarceration: The Whole Pie 2019 (Mar. 19, 2019), https://www.prisonpolicy.org/reports/pie2019.html, archived at https://perma.cc/E3GR-8E56. 4 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 3 2-SEP-20 10:34 The Treatment-Industrial Complex 3 Today, for-profit corrections companies oversee under-examined parts of the criminal legal system, including electronic monitoring, diversion programs, work camps, rehabilitation and treatment curriculums, civil commitment, and forensic mental hospitals. Non-prison sentencing and treatment are a financial growth opportunity for private corrections companies, which are developing ways to monetize this type of correctional control.5 This Article explores and analyzes the under-researched area of alternative corrections: how private corrections companies profit off of, and impose harsh criminal legal debts on, people who are released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment. Part I investigates the ways that alternatives to incarceration impose high levels of criminal justice debt on people directly impacted by the criminal legal system. Part II examines the various policy choices that have allowed for-profit companies to thrive and expand. Part III explores potential solutions to the twinned issue of alternative corrections debt and the for-profit corrections industry that drives it. I. WHERE CASH IS KING: HOW PRIVATE ALTERNATIVE CORRECTIONS BEGGARS THE POOR Alternative corrections—correctional control imposed outside of jails and prisons—are increasingly popular.6 Approximately 3.6 million people are on probation7 and 840,000 more are on parole, compared to the roughly 2.3 million who are incarcerated in prisons and jails.8 Mass incarceration may appear to be on the decline.9 But the array of alternative corrections sanctions is increasing,10 thereby frustrating recent progressive attempts to end widespread imprisonment, surveillance, and control.11 Alternatives to incarceration are not cheap. As a result, states and counties often try to shift the costs onto the defendants themselves, either by 5 See, e.g., Campbell Robertson, Crime is Down, Yet U.S. Incarceration Rates Are Still Among the Highest in the World, N.Y. TIMES (Apr. 25, 2019), https://www.nytimes.com/2019/ 04/25/us/us-mass-incarceration-rate.html, archived at https://perma.cc/JY64-TD2S. 6 See Greg Berman, Alternatives to Incarceration Are Cutting Prison Numbers, Costs, and Crimes, THE GUARDIAN (July 4, 2013), https://www.theguardian.com/commentisfree/2013/jul/ 04/alternatives-incarceration-prison-numbers, archived at https://perma.cc/2TMN-DQGC. 7 ALEXI JONES, PRISON POLICY INITIATIVE, CORRECTIONAL CONTROL 2018: INCARCERATION AND SUPERVISION BY STATE (Dec. 2018), https://www.prisonpolicy.org/reports/correctionalcontrol2018.html, archived at https://perma.cc/9M89-JTUN. 8 SAWYER & WAGNER, supra note 3. 9 See Mark Berman, Prison Populations Decline Again, Justice Department Report Shows, WASH. POST (Apr. 25, 2019), https://www.washingtonpost.com/national/prison-andjail-populations-declined-again-justice-dept-report-shows/2019/04/25/7a678c7a-6779-11e98985-4cf30147bdca_story.html, archived at https://perma.cc/3JXC-KHCA. 10 See SAWYER & WAGNER, supra note 3. 11 Cf. Emily Verdugo, Corporations Are Cashing in on the Movement to End Mass Incarceration, AMERICAN FRIENDS SERVICE COMM. BLOG (Oct. 21, 2016), https://www.afsc.org/ blogs/news-and-commentary/how-private-prison-corporations-are-cashing-movement-to-endmass, archived at https://perma.cc/TQH2-AV9F. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 4 unknown Seq: 4 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 charging them directly or outsourcing the provision of such services. Some defendants are thus required to foot the bill for their own government-imposed alternative punishment. Furthermore, defendants can rarely modify or eliminate criminal justice debt, even when they cannot pay the debt for reasons beyond their control.12 A defendant cannot discharge a criminal justice debt through bankruptcy or avoid the potential interest or collection fees imposed for overdue payments.13 Criminal justice debt can last a lifetime, resulting in property takings, wage garnishment, or even arrest and imprisonment for failure to pay. Debt imposed by alternatives to incarceration can thus cycle defendants back into the criminal legal system.14 When states and counties outsource alternative corrections, defendants can owe criminal legal debt not only to the government, but also to a vast network of private companies. Numerous transitional and treatment services are now outsourced to for-profit residential and outpatient facilities managed by privately held companies.15 Public and private companies are taking advantage of defendants sentenced to correctional alternatives and are thus “profiteering from the criminalization of poverty and communities of color.”16 Finally, a remarkably high number of individuals with mental health and substance use disorders reside in or interact with the criminal legal system.17 Approximately 50% of individuals in correctional facilities experience both mental health and substance use disorders (compared to 1–3% in the general United States population).18 For-profit corrections companies impose harsh additional debt burdens on incarcerated people with substance use disorders. A. The Growth of Alternative Corrections The recent growth of alternative incarceration is both a reaction to and a symptom of mass incarceration. As crime rates fall, public attention has turned to the “astronomical financial and human costs of mass incarcera- 12 Travis Stearns, Legal Financial Obligations: Fulfilling the Promise of Gideon by Reducing the Burden, 11 SEATTLE J. FOR SOC. JUST. 963, 965 (2013). 13 See id. 14 See Laura I Appleman, Nickel and Dimed into Incarceration: Cash Register Justice in the Criminal System, 57 B.C. L. REV. 1483, 1485 (2016). 15 See Michael Ostermann & Jordan Hyatt, When Frontloading Backfires: Exploring the Impact of Outsourcing Correctional Interventions on Mechanisms of Social Control, 43 L. & SOC. INQUIRY 1308, 1308–09 (2018). 16 Kornya et al., supra note 1, at 111. 17 See CATE GRAZIANI & ESHE COLE, GRASSROOTS LEADERSHIP, INCORRECT CARE: A PRISON PROFITEER TURNS CARE INTO CONFINEMENT 5 (Feb. 2016), http://grassrootsleadership .org/sites/default/files/reports/incorrect_care_grassrootsleadership_2016.pdf, archived at https://perma.cc/QQZ9-6UEZ. 18 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 5 2-SEP-20 The Treatment-Industrial Complex 10:34 5 tion.”19 Alternatives to incarceration may seem appealing to criminal justice reformers seeking to reduce lengthy prison sentences and divert people away from jail and prison time. States have also explored alternatives to traditional incarceration as a cost-saving measure,20 as the cost of incarcerating individuals in jails and prisons rose to a staggering $87 billion in 2015.21 Sentencing reform is unquestionably an overdue response to mass incarceration. But reliance on alternative corrections can still harm the people caught in the criminal legal system, including through surveillance, accrual of criminal justice debt, and abuse by private corrections companies. Alternatives to incarceration are frequently both exploitative and costly for defendants. The alternative corrections market imposes harsh costs on individual criminal defendants, including many who are in poverty.22 In addition, alternative corrections still function as punishment, imposing serious demands on individuals’ time, money, and communities.23 Alternative sentencing allows policymakers and politicians to pay lip service to disrupting mass incarceration, but may widen the criminal legal net by “bringing more people into the system, even if they’re not behind bars.”24 Thus, the expansion of the alternative corrections realm, through probation, parole, diversion, electronic monitoring, and work camps, actually ends up keeping more people under some form of control by the criminal justice system as a whole.25 Alternative corrections also impose myriad fees, fines, and costs on people caught in the criminal legal system. As this Article will explain, criminal legal debt has life-altering consequences for individuals who cannot afford to pay. Someone who fails to pay criminal justice debt could face the loss of liberty: their probation could be revoked; suspended sentences could be imposed; or the failure to pay high costs of probation and other treatment programs (including required residential or out-patient treatment) could land them in jail. People on probation and parole who fail to make payments on criminal legal debt can also face harsh collateral consequences, including 19 See Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 VAND. L. REV. 71, 86 (2016). 20 See INCORRECT CARE, supra note 17, at 5, 8. 21 See Ava Kofman, Digital Jail: How Electronic Monitoring Drives Defendants into Debt, N.Y. TIMES (July 3, 2019), https://www.nytimes.com/2019/07/03/magazine/digital-jailsurveillance.html, archived at https://perma.cc/7ZQP-6X3X. 22 See id. 23 See FAMILIES AGAINST MANDATORY MINIMUMS, ALTERNATIVES TO INCARCERATION IN A NUTSHELL 1, https://famm.org/wp-content/uploads/FS-Alternatives-in-a-Nutshell.pdf, archived at https://perma.cc/SSL5-3KXX. 24 Joshua Holland, Private Prison Companies Are Embracing Alternatives to Incarceration, THE NATION (Aug. 23, 2016), https://www.thenation.com/article/private-prison-companies-are-embracing-alternatives-to-incarceration/, archived at https://perma.cc/AMK5-TQ6V. 25 See id. (“Instead of moving people into the community, with some form of accountability,” the alternative corrections system may place “more and more people [ ]on ankle monitors” or similar forms of state control “who would otherwise just be left alone.”) Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 6 unknown Seq: 6 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 losing benefits such as Social Security, Electronic Benefit Transfer, Temporary Assistance for Needy Families, and Section 8 housing.26 The following sections detail some of the worst abuses arising from the treatment-industrial complex, including private probation companies, rehabilitation and halfway houses, work camps, diversion programs, and longterm civil commitment. B. Private Probation Companies Probation is a common alternative to incarceration, particularly for minor crimes and nonviolent offenses.27 The major goals of probation supervision are to provide rehabilitative services while ensuring that no further offenses are committed.28 Misdemeanor probation, affecting a great number of citizens, is frequently perceived as a kinder, gentler sentence than jail or prison.29 The major goals of probation supervision are to provide rehabilitative services while ensuring that no further offenses are committed.30 Though numbers vary by state, growing numbers of people are on some version of probation.31 One in fifty-five U.S. adults, or nearly 2%, was on probation or parole in 2016—a population increase of 239% since 1980.32 Ironically, probation has become a key driver of mass incarceration by funneling many people under supervision back into prisons and jails.33 With its long supervision terms, strict conditions, and intense surveillance, probation is neither as easy nor as beneficial as some legislators and policy makers make it seem.34 Only about half of people who exit parole or probation do so after successfully completing their supervision terms; the rest might be sen- 26 See Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CAL. L. REV. 277, 293 (2014). 27 See HUMAN RIGHTS WATCH, SET UP TO FAIL: THE IMPACT OF OFFENDER-FUNDED PRIVATE PROBATION FOR THE POOR 35 (Feb. 20, 2018), https://www.hrw.org/report/2018/02/20/ set-fail/impact-offender-funded-private-probation-poor, archived at https://perma.cc/S7JUQ9V5. 28 See id. at 2. 29 See Lewis Wallace, Welcome to Georgia, The Epicenter of the Private Probation Racket, THE OUTLINE (Aug. 17, 2017), https://theoutline.com/post/2103/welcome-to-georgiathe-epicenter-of-the-private-probation-racket, archived at https://perma.cc/75TY-78FY. 30 See HUMAN RIGHTS WATCH, supra note 27, at 2. 31 See WENDY SAWYER, PRISON POLICY INITIATIVE, PUNISHING POVERTY: THE HIGH COST OF PROBATION FEES IN MASSACHUSETTS (Dec. 8, 2016), https://www.prisonpolicy.org/probation/ma_report.html, archived at https://perma.cc/Z42G-HSZ3. In 2015, one out of every fiftythree people was on probation or parole. See Too Big to Succeed: The Impact of the Growth of Community Corrections and What Should Be Done About It, COLUMBIA JUSTICE LAB. 2 (Jan. 29, 2018), https://justicelab.columbia.edu/sites/default/files/content/Too_Big_to_Succeed_Re port_FINAL.pdf, archived at https://perma.cc/QC8M-5QVY. 32 PEW TRUST, PROBATION AND PAROLE SYSTEMS MARKED BY HIGH STAKES, MISSED OPPORTUNITIES (Sept. 25, 2018), https://www.pewtrusts.org/en/research-and-analysis/issuebriefs/2018/09/probation-and-parole-systems-marked-by-high-stakes-missed-opportunities, archived at https://perma.cc/QSF2-XC97. 33 See Too Big to Succeed, supra note 31, at 7. 34 See JONES, supra note 7. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 7 2-SEP-20 The Treatment-Industrial Complex 10:34 7 tenced to jail or prison because their probation is revoked, or subject to continued supervision.35 A large percentage of misdemeanor probation sentences transform into prolonged, expensive payment plans for those living around the poverty line.36 Probation companies overtly characterize many of their supervision programs as “offender-funded”: in other words, states shift costs to people on probation and parole in the form of fees.37 As a result, people who are sentenced to probation instead of jail time—as most misdemeanor defendants are—must pay heavily for the privilege.38 Many individuals convicted of minor crimes, most of whom live at or under the poverty level, spend the rest of their lives trying to pay off their criminal justice debt.39 Numerous courts have granted for-profit companies the right to supervise and collect fees from misdemeanor defendants.40 State and local governments contract out probation programs to private probation companies that claim to inexpensively treat and rehabilitate defendants, while simultaneously keeping defendants out of costly state and local correctional facilities.41 Today, for-profit companies offer services such as drug testing, addiction services, and behavioral-therapy courses42 to people who have been released, all at little to no cost to local governments and courts.43 Forprofit companies have instead transferred the financial burden of probation directly to people impacted by the criminal legal system, all while taking their monetary cut.44 Local governments that use private probation services essentially turn courts into debt-collection machines, with the profits going to the private companies.45 States rarely regulate the fees charged by private probation 35 See id. See Wallace, supra note 29. 37 See Sarah Stillman, Get Out of Jail, Inc., THE NEW YORKER (June 16, 2014), http://www .newyorker.com/magazine/2014/06/23/get-out-of-jail-inc, archived at https://perma.cc/27ARGZMK; Too Big to Succeed, supra note 31, at 4. 38 See Tierney Sneed, Private Misdemeanor Probation Industry Faces New Scrutiny, U.S. NEWS (Feb. 6, 2015), https://www.usnews.com/news/articles/2015/02/06/private-misdemeanor-probation-industry-faces-new-scrutiny, archived at https://perma.cc/9TPH-RSQE. 39 See generally Appleman, Nickel and Dimed into Incarceration, supra note 14. 40 See Sharon Cohen, Poor Offenders Pay High Price When Probation Turns on Profit, THE SPOKESMAN-REVIEW (Mar. 12, 2016), http://www.spokesman.com/stories/2016/mar/12/ poor-offenders-pay-high-price-when-probation-turns/, archived at https://perma.cc/YYQ9SZVJ. 41 See Stillman, supra note 37. 42 For example, one private probation company in Alabama required offenders to attend a course in “Moral Reconation Therapy,” which cost offenders $240. See Hannah Rappleye & Lisa Riordan Seville, The Town That Turned Poverty into a Prison Sentence, THE NATION (Mar. 14, 2014), https://www.thenation.com/article/town-turned-poverty-prison-sentence/, archived at https://perma.cc/74P3-B5L8. 43 See Stillman, supra note 37. 44 See Laura I Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 UTAH L. REV. 579, 589–90 (2017). 45 See id. 36 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 8 unknown Seq: 8 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 companies, allowing them to charge whatever amount they desire.46 User charges for every aspect of probation, from required courses and treatment programs to monitoring devices and drug testing, are private probation companies’ primary source of revenue.47 The companies go to disturbing lengths to collect these fees—even requesting arrest warrants for those probationers who cannot pay.48 For-profit companies thus prioritize their bottom line over the best interest of the defendant.49 1. Pay-Only Probation “Pay-only probation” similarly benefits private probation companies and harms the people convicted of a crime.50 When someone on probation cannot pay their fine in full, courts will sometimes place them on a probation “term,” outsourcing the supervision and payment to a private probation company.51 People on pay-only probation must pay the company the fine owed to the state, plus interest and a supervision fee.52 The longer it takes to pay off criminal debts, the longer the probation lasts. The longer someone is on probation, the more they pay in supervision fees and the greater the threat of imprisonment if they default on their payments.53 In the end, people on probation often end up paying more in fees than the original fine amount—and may face incarceration on top of their fine.54 Every year, courts grant numerous arrest warrants on behalf of corrections companies, to track down poor people who have not fully paid their private probation fees. These warrants bring probationers back to court for a probation revocation hearing, serving as a pressure tactic to force payment of the debt.55 In Bearden v. Georgia, the Supreme Court held that imprisoning a probationer who was unable to pay off his legal debts violated the Fourteenth Amendment.56 However, the Bearden ruling was quite narrow, concluding that an individual could be sentenced to imprisonment if they had the money and were “willfully” refusing to pay.57 Bearden left the determination of an individual’s financial ability to pay in the hands of judges, with fairly arbi46 See MIKAYLA COX, MARCUS HARRIS FOUND., MONETIZING FREEDOM THROUGH PRIPROBATION (Aug. 11, 2018), https://marcusharrisfoundation.org/blog/f/monetizing-freedom-through-private-probation, archived at https://perma.cc/Q5AF-347K. 47 See HUMAN RIGHTS WATCH, supra note 27, at 55. 48 See id. 49 See Stillman, supra note 37. 50 See HUMAN RIGHTS WATCH, supra note 27, at 3. 51 See Jessica Pishko, Locked Up for Being Poor, THE ATLANTIC (Feb. 25, 2015), http:// www.theatlantic.com/national/archive/2015/02/locked-up-for-being-poor/386069/, archived at https://perma.cc/K7SE-5JC7; HUMAN RIGHTS WATCH, supra note 27, at 3. 52 See Pishko, supra note 51. 53 See HUMAN RIGHTS WATCH, supra note 27, at 4, 17. 54 See id. at 32–33. 55 See id. at 2–4. 56 See Bearden v. Georgia, 461 U.S. 660, 668–69, 672–73 (1983). 57 See id. at 668. VATE Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 9 2-SEP-20 The Treatment-Industrial Complex 10:34 9 trary results.58 Few courts even inquire into an individual’s ability to pay.59 Bearden has thus failed to protect impoverished individuals on probation from abusive criminal legal debt collection. 2. Drug and Alcohol Testing Many courts require that defendants sentenced to probation and treatment pay for the full costs of required services such as drug testing and alcohol monitoring.60 Most private probation companies offer courses, treatment, and monitoring device services as a package, and profit when courts mandate these services as conditions of probation.61 Even the cost of a single drug test, usually around $20,62 can be too much for impoverished defendants—let alone long-term monitoring and treatment.63 And it is almost never just a single drug test. Consider this illustrative example of how the drug testing business sets up misdemeanor defendants to fail: In Tennessee, Cindy Rodriguez pled guilty to shoplifting and received a sentence of private probation for eleven months and twentynine days.64 She had to pay a $35–45 monthly supervision fee to her private probation company, Providence Community Corrections—which also conducted random drug tests at $20 per test, even though she was not charged with a drug-related offense.65 Every time Rodriguez met with her probation officer, she was pressured to pay off her criminal justice debts.66 She ultimately returned to jail for inability to pay, losing her van and her apartment as a result of the debt.67 In several states, many probationers are frequently and routinely tested for drugs for the entire probationary term, even if their offense had nothing to do with narcotics.68 In Alameda County, California, for example, commit- 58 See Joseph Shapiro, As Court Fees Rise, the Poor Are Paying the Price, NPR (May 19, 2014) https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor, archived at https://perma.cc/GW6G-9NY2. 59 See HUMAN RIGHTS WATCH, supra note 27, at 81. 60 See HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S “OFFENDERFUNDED” PROBATION INDUSTRY 33 (2014), https://www.hrw.org/sites/default/files/reports/ us0214_ForUpload_0.pdf, archived at https://perma.cc/FKR8-WPUF. 61 See HUMAN RIGHTS WATCH, supra note 27, at 3. 62 Fees can vary widely among states and counties. In California, for example, drug and alcohol tests costs range from $5 to $50 among different counties; the average cost is $20. See TARA GAMBOA-EASTMAN, WESTERN CENT. ON LAW & POVERTY, THE PROBLEM WITH PROBATION: A STUDY OF THE ECONOMIC AND RACIAL IMPACT OF PROBATION FEES IN CALIFORNIA 9 (June 26, 2018), https://wclp.org/wp-content/uploads/2018/06/TheProblemWithProbation_GamboaEastman_ForWCLP_Final.pdf, archived at https://perma.cc/4TUY-XDD5. 63 See Cohen, supra note 40. 64 See HUMAN RIGHTS WATCH, supra note 27, at 1–3. 65 See id. 66 See id. 67 See id. 68 See GAMBOA-EASTMAN, supra note 62, at 13. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 10 unknown Seq: 10 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 ting a crime in a “drug neighborhood” is often enough for drug testing to be required during probation.69 When a defendant’s probation terms require participation in drug or alcohol treatment, the defendant is largely responsible for the cost.70 For example, someone convicted of a DUI in Florida is likely to see their license revoked.71 To have their driver’s license reinstated after a DUI conviction, they must complete a costly course called “DUI school.” Sometimes DUI school is even a condition of probation.72 In one Florida county, DUI school costs $284 for a first offense and $430 for a second.73 Some DUI defendants also need to take a Victim Impact Panel course, which costs an additional $49.99.74 In Missouri, DUI defendants may be required to take a Substance Abuse Traffic Offender Program (“SATOP”) to regain their licenses.75 The SATOP initial assessment is $375, and is a precursor to other required programs such as the basic education program, which costs $130, or the intensive program, which costs $1500.76 When someone on probation tests positive for drugs, private probation companies can benefit even further. In Missouri, for example, Private Correctional Services requires probationers who have previously tested positive to enroll in an intensive drug testing program, which entails calling a hotline each morning to check whether they were selected to be tested.77 Probationers are tested anywhere from several times a month to several times a week at $20–$50 per test, depending on the testing facility.78 3. Long-term Private Monitoring Longer-term private monitoring, in which an impacted person is electronically tracked for months at a time, is also expensive. According to Human Rights Watch, fees for devices like ankle monitors and other electronic tracking tools can range from $400 to $500 per month, plus an initial start-up fee of $50 to $150, varying by location.79 These costs usually fall on the system-involved individual, as states and municipalities are unlikely to foot the bill themselves. These costs add up, making it even more difficult for low-income probationers to routinely pay the fees and remain on the 69 See See 71 See 72 Id. 73 Id. 74 See 75 See 76 See 77 See 78 See 79 See 70 id. Colgan, supra note 26, at 288. HUMAN RIGHTS WATCH, supra note 27, at 23. id. at 43. id. id. HUMAN RIGHTS WATCH, supra note 27, at 42. id. HUMAN RIGHTS WATCH, supra note 27, at 44. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 11 2-SEP-20 The Treatment-Industrial Complex 10:34 11 outside.80 Moreover, the electronic monitors are uncomfortable, and make many aspects of everyday life difficult.81 Georgia, for example, requires some people on probation to wear an ankle bracelet known as the Secure Continuous Remote Alcohol Monitor (“SCRAMX”).82 The monitors, which measure sweat for evidence of alcohol, are very costly for individuals required to wear them. To use a SCRAMX monitor, private probation companies demand a $50 setup fee, a $39 per month supervision fee, and setting up a landline in the defendant’s home—costs that can total over $400 a month.83 One of the worst offenders in the private probation world was Sentinel Offender Services.84 Fred Slider, a former Sentinel client, illustrates the abuses he faced under the supervision of this private probation company. Slider was assigned to Sentinel’s private probation after being charged with three offenses over the course of two years: failure to stop at a stop sign, driving without a license, and a DUI.85 At the outset, Slider’s fines totaled $3,385, and Sentinel was simply supposed to ensure that the fines were paid.86 Instead, Sentinel hobbled Slider with a bulky ankle bracelet to check his sweat for alcohol every half hour, even though his probation didn’t forbid him from drinking.87 The cost for the device was $330 a month, which was added to the $708 per month required to pay his fines.88 Ultimately, unable to pay his fees, Slider ended up back in court in late 2015 over non-payment and a monitoring violation, which sent him back to jail.89 Sentinel was ultimately driven out of business after Georgia prohibited for-profit probation companies from charging “more than three months of fees to people who were only on probation because they could not pay a fine.”90 However, there are still plenty of other private probation companies to take its place.91 Twenty-nine separate private probation companies still 80 See id. See Shannon Heffernan, Bill Would Drastically Reduce Use of Electronic Monitors in Illinois, NPR (Apr. 29, 2019), https://www.npr.org/local/309/2019/04/29/717555796/billwould-drastically-reduce-the-use-of-electronic-monitors-in-illinois, archived at https://perma .cc/JK88-7QDN. 82 See Joseph Shapiro, Measures Aimed at Keeping People Out of Jail Punish the Poor, NPR (May 24, 2014), http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keepingpeople-out-ofjail-punish-the-poor, archived at https://perma.cc/C8SL-HEXH. 83 See id. 84 See Wallace, supra note 29. 85 See id. 86 See id. 87 See id. 88 See id. 89 See id. 90 See Beth Schwartzapfel, Probation-for-Profit Just Got Less Profitable, THE MARSHALL PROJECT (Apr. 13, 2017), https://www.themarshallproject.org/2017/04/13/probation-for-profitjust-got-less-profitable, archived at https://perma.cc/74N2-HSLK. 91 See id. 81 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 12 unknown Seq: 12 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 operate in the state of Georgia alone,92 attesting to the profitability of such services. Private corrections companies are investing heavily in probation. GEO Group currently provides both treatment programs and community reentry services.93 In 2011, GEO Group purchased a large electronic-monitoring firm, BI Incorporated, for $415 million.94 Similarly, Correctional Healthcare Companies acquired Judicial Correction Services in 2011, providing precustody, in custody, and post-custody services.95 Private probation companies offer a wide array of “services” to the courts, including drug treatment courses, probation monitoring, electronic ankle monitors,96 behavior classes and even domestic violence classes.97 These for-profit companies also help oversee community service requirements and halfway houses.98 Halfway houses, which are frequently a mandatory part of a defendant’s post-release sentence, often require that the resident purchase an insurance policy from a private actor for the duration of their stay.99 C. Drug Rehabilitation and Halfway Houses For-profit corrections companies have aggressively expanded into the world of alternate corrections, including halfway houses and rehabilitation programs.100 The private companies running alternative corrections are often the same entities that oversee private prisons, have similar profit motives, and frequently use the same business models.101 Both transitional and treatment service obligations have been increasingly farmed out to nongovernmental residential facilities run by privately held, for-profit companies.102 Agencies such as state parole and probation 92 See id. See Stillman, supra note 37. 94 See id. 95 See id. 96 Private corrections companies have rapidly expanded into all aspects of probation regulation. In 2015, GEO Group purchased Soberlink, Inc., which describes its services as “accountability for sobriety through a comprehensive alcohol system.” About Soberlink, SOBERLINK, https://www.soberlink.com/about-us/, archived at https://perma.cc/Y5RW-GPUA. Soberlink makes smartphone breathalyzer tests complete with facial recognition and wireless connectivity. All of this technology just makes it easier for for-profit companies to control the entire probation process—often at a substantial cost to the offender. 97 See Wallace, supra note 29. 98 See Appleman, Nickel and Dimed into Incarceration, supra note 14, at 1497. 99 See id. See also Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U. ILL. L. REV. 1175, 1193 (2014) (noting that private insurance may be required under community service sentences as well). 100 See Verdugo, supra note 11. 101 See Joshua Holland, Private Prison Companies Are Embracing Alternatives to Incarceration, The Nation (Aug. 23, 2016), https://www.thenation.com/article/private-prison-companies-are-embracing-alternatives-to-incarceration/, archived at https://perma.cc/UV3WBTM2. 102 See Ostermann & Hyatt, supra note 15, at 1308–09. 93 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 13 2-SEP-20 The Treatment-Industrial Complex 10:34 13 boards, unable to provide a full range of reentry assistance or therapeutic programming, look to these external service providers to fill in the gap.103 1. Drug and Alcohol Rehabilitation Drug and alcohol rehabilitation are big business. In recent years, private equity investors have invested heavily in companies that provide treatment and rehabilitation.104 For-profit drug and alcohol rehabilitation companies seek to take advantage of the opioid epidemic, shrinking jail and prison populations,105 and progressive advocacy for treatment over incarceration.106 Some states, like California, now divert people convicted in drug court to treatment programs rather than sending them to prison.107 Lawmakers and advocates may intend for diversion programs to be progressive and anticarceral.108 However, these reforms fall short of progressive goals: because of the treatment-industrial complex, people sentenced to treatment rather than incarceration still remain hostage to the state. Residents of court-mandated treatment facilities face daily medical bills, covering everything from detoxification monitoring to psychological counseling.109 The bills from for-profit addiction rehabilitation centers can run into the hundreds of thousands of dollars per patient.110 People sentenced to treatment centers are often forced to declare bankruptcy; parents report taking out second and third mortgages to finance their child’s court-mandated treatment.111 Moreover, these largely unregulated recovery centers have a pattern of financial abuse that ends up costing millions, coming from both public and private pockets.112 103 See id. at 1310. See Deborah Becker, The Opioid Treatment Business is Booming, WBUR (Mar. 1, 2016), https://www.wbur.org/commonhealth/2016/03/01/opioid-treatment-business, archived at https://perma.cc/76ZV-K5ZD. 105 See Nicole Lewis, The U.S. Prison Population is Shrinking, THE MARSHALL PROJECT (Apr. 24, 2019), https://www.themarshallproject.org/2019/04/24/the-us-prison-population-isshrinking, archived at https://perma.cc/RDV5-B7E7. 106 See Teri Sforza et al., How Some Southern California Drug Rehab Centers Exploit Addiction, ORANGE CTY. REGISTER (Nov. 5, 2018), https://www.ocregister.com/2017/05/21/ how-some-southern-california-drug-rehab-centers-exploit-addiction/, archived at https://perma .cc/E6CJ-6YY2. 107 See, e.g., Cal. Penal Code §§ 1210(a)—(d); 3063.1 (establishing alternative form of sentencing for persons found guilty of drug crime offense, calling for qualifying drug defendants to have criminal charges or convictions dismissed if they can successfully complete courtapproved drug treatment programs). 108 See Don Thompson, California Lawmakers Continue Shift from Mass Incarceration, U.S. NEWS (Sept. 9, 2018), https://www.usnews.com/news/best-states/California/articles/201809-09/California-lawmakers-continue-shift-from-mass-incarceration, archived at https://perma .cc/5VJY-NGCB. 109 See Sforza et al., supra note 106. 110 See id. 111 See id. 112 See Sforza et al., supra note 106. 104 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 14 unknown Seq: 14 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 The private corrections industry has begun investing in rehabilitation and treatment services, recognizing a relatively unregulated growth area. In New England, for-profit treatment centers create hundreds of new treatment beds every year.113 Recovery Centers of America, among other for-profit companies, is investing in addiction treatment and recovery centers.114 American Addiction Centers, one of the largest treatment and recovery companies, was the first business focused solely on addiction to go public, raising $75 million in an IPO in 2015.115 Since 2005, private corrections companies have also collectively spent over $680 million buying halfway houses and residential re-entry services.116 These private companies have little to no government oversight, and are required to seek profit by their very organizational structure.117 For example, in 2013, CCA (now CoreCivic) purchased Correctional Alternatives, a company specializing in prisoner re-entry programs such as treatment programs, work furloughs, and home confinement.118 GEO Group now owns a variety of “community re-entry services” and treatment programs, having purchased the country’s largest electronic-monitoring firm, BI Incorporated, in 2011.119 CoreCivic has recently acquired halfway houses in Georgia, North Carolina, and Colorado for nearly $22 million.120 Although sometimes state governments will foot the bill for defendants’ often-mandatory addiction treatment program, states increasingly require defendants to pay at least part of the cost themselves. In Tennessee, the list of approved transitional or halfway houses all require either a deposit, a weekly or monthly fee, or both.121 Likewise, in Florida, approximately 20% of all residents pay for some of their treatment in halfway houses or other community corrections institutions.122 Georgia requires all residents in its transi- 113 See Becker, supra note 104. See id. 115 See id. 116 See Jeremy Mohler, Keep Private Industry Out of Prison Reform, USA TODAY (Jan. 4, 2017), https://www.usatoday.com/story/opinion/policing/spotlight/2017/01/04/keep-private-industry-out-prisoner-reform-column/96118228/, archived at https://perma.cc/6J6L-M6JR. 117 See Steve Coll, The Jail Health-Care Crisis, THE NEW YORKER (Feb. 25, 2019), https:// www.newyorker.com/magazine/2019/03/04/the-jail-health-care-crisis, archived at https://per ma.cc/9RR4-53T4. 118 See David Seagal, Prison Vendors See Continued Signs of a Captive Market, N.Y. TIMES (Aug. 29, 2015), http://www.nytimes.com/2015/08/30/business/prison-vendors-see-continued-signs-of-a-captive-market.html, archived at https://perma.cc/P7SK-XEC6. 119 See Stillman, supra note 37. 120 See Geert de Lombaerde, CoreCivic Buys Halfway Houses in Three States, NASHVILLE POST (Nov. 9, 2017), https://www.nashvillepost.com/business/area-stocks/article/20982163/ corecivic-buys-halfway-houses-in-three-states, archived at https://perma.cc/GGQ2-CKNE. 121 See TENN. DEP’T OF CORR., APPROVED TRANSITIONAL HOUSING PROVIDER LIST (May 10, 2019), https://www.tn.gov/content/dam/tn/correction/documents/TransitionalHousingList .pdf, archived at https://perma.cc/EF7F-MMAB. 122 See Karol Lucken, Privatizing Discretion: “Rehabilitating” Treatment in Community Corrections, 43 CRIME & DELINQUENCY 243, 250 (1997). R 114 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 15 2-SEP-20 The Treatment-Industrial Complex 10:34 15 tional centers to pay a portion of their wages for room and board.123 The federal system requires a defendant to pay a halfway house fee that is 25% of the defendant’s gross income.124 When a court orders more intensive treatment—such as residential treatment—the defendant is usually financially responsible.125 Often state and local regulations are very vague and do not define when a court should order intensive rehabilitation treatment.126 For example, one Missouri defendant was ordered to undergo inpatient alcohol treatment, even though his monitor showed minimal alcohol consumption over the previous sixteen months: because his monitor results did not show that he abused alcohol, no treatment center would accept the probationer, thus causing him to violate his probation order.127 Proponents of such outsourcing tout cost effectiveness, net capacity, and efficiency of such private, for-profit facilities. But in reality, these supposed benefits come at great human cost.128 Private treatment facilities use different techniques than the public sector in order to maintain profitability.129 As a result, “[i]ndividual-level reductions in recidivism or behavioral change, which are notoriously difficult to measure consistently, are replaced with market-based factors (such as price, location, capacity, and pseudo-outcomes like discharges and escapes), as the primary outcomes of interest.”130 In addition, private, for-profit halfway houses and treatment facilities do a poorer job of reinforcing the stricter standards of behavior fostered by more traditional, treatment-based approaches, because more rigorous treatment programs simply cost more money to implement.131 Further, halfway houses and other addiction treatment centers are plagued by systemic fraud and abuse.132 Practices such as extremely high billing for simple urine tests, combined with fraudulent practices that extract millions of dollars from both individuals and insurance companies, have led to a virtual Wild West of unregulated treatment.133 123 See Transitional Centers, GA. DEP’T OF CORR., http://www.dcor.state.ga.us/Divisions/ Facilities/Transitional, archived at https://perma.cc/7FBC-CLE4. 124 See FAMILIES AGAINST MANDATORY MINIMUMS, FREQUENTLY ASKED QUESTIONS ABOUT FEDERAL HALFWAY HOUSES & HOME CONFINEMENT 5 (Apr. 24, 2012), https://famm .org/wp-content/uploads/FAQ-Halfway-House-4.24.pdf, archived at https://perma.cc/Y77M9EL5. 125 See id. See also MO. STAT. § 478.005 (1)—(3) (2018) (“Each treatment court within a treatment court division shall establish criteria upon which a person is deemed eligible for that specific treatment court and for determining successful completion of the treatment court program.”). 126 See HUMAN RIGHTS WATCH, supra note 27 at 43. 127 See id. at 23. 128 Ostermann & Hyatt, supra note 15, at 1310. 129 See id. 130 Id. at 1312. 131 Id. at 1313. 132 See Zachary Rothenberg, Trends in Combating Fraud and Abuse in Substance Use Disorder Treatment, 20 J. HEALTH CARE COMPLIANCE 13, 14 (2018). 133 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 16 unknown Seq: 16 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 One infamous private, for-profit company, Community Education Centers (“CEC”), runs 30% of all halfway houses nationwide.134 The recidivism rate for inmates graduating from their halfway houses hovers around 67%.135 At least eight residents of CEC’s halfway houses died from drug overdoses from 2016 to 2017.136 New Jersey’s experience with CEC is an illuminating example. In the 1990s, CEC took over New Jersey’s prisoner re-entry and halfway houses.137 The result was client neglect, abuse, and outright chaos.138 About 10,000 people leaving prison or on parole in New Jersey were assigned to halfway houses, and CEC controlled most of those facilities.139 Conditions were abysmal—far worse than those in halfway houses run by the state. Life within the centers was dangerous and unregulated; gang activity and assaults often went unchecked.140 Within just two years, 185 people ran away from the residences.141 CEC halfway houses across the country still have inhumane conditions today. In 2011, an Indiana CEC resident died from untreated pregnancy complications.142 CEC-run halfway house residents in Colorado described assaults, gang violence and rampant drug use.143 Administrators in Colorado’s largest halfway house also staged fake classes during inspections, bribing residents with candy bars if they would fake participation in counseling and job placement sessions.144 In 2015, California hired CEC to oversee the expansion of the state’s halfway houses to accommodate an increase in people newly released from prison.145 CEC halfway houses are supposed to provide secure housing, job placement, and other social services for people on parole as they prepare to 134 LAUREN SUKIN, THE CENTURY FOUND., WHEN JAIL IS THE BETTER OPTION: THE FAILHALFWAY HOUSES (June 23, 2015), https://tcf.org/content/commentary/when-jail-isthe-better-option-the-failure-of-halfway-houses/, archived at HTTPS://PERMA.CC/KGK4-SJ2C. 135 See id. 136 See Lydia O’Neal, As the Criminal Justice System Changes, So Does a Private Prison Giant, INTER’L BUS. TIMES (Dec. 5, 2017), https://www.ibtimes.com/political-capital/criminaljustice-system-changes-so-does-private-prison-giant-2623569, archived at HTTPS://PERMA.CC/ X4VK-NLE2. 137 See Sam Dolnick, As Escapees Stream Out, a Penal Business Thrives, N.Y. TIMES (June 16, 2012), http://www.nytimes.com/2012/06/17/nyregion/in-new-jersey-halfway-housesescapees-stream-out-as-a-penal-business-thrives.html, archived at HTTPS://PERMA.CC/7G6386RE. 138 Id. 139 Id. 140 Id. 141 Id. 142 Id. 143 Anat Rubin, A Record of Trouble, THE MARSHALL PROJECT (Apr. 11, 2015), https:// www.themarshallproject.org/2015/04/11/a-record-of-trouble, archived at https://perma.cc/ QU3Q-ZV5S. 144 Id. 145 Anat Rubin, California Relies on Halfway House Operator with Troubled Past, SFGATE (Apr. 11, 2015), https://www.sfgate.com/crime/article/California-relies-on-halfwayhouse-operator-with-6193752.php, archived at HTTPS://PERMA.CC/Q7AX-674J. URE OF Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 17 2-SEP-20 The Treatment-Industrial Complex 10:34 17 return to society.146 The state signed a contract despite the fact that, shortly beforehand, CEC had lost a preexisting contract to supervise halfway houses in Long Beach, California.147 Long Beach cited systemic failures, including inadequate clinical programs, persistent violence, and drug and alcohol abuse by residents.148 Even when residents failed drug testing, CEC did not discharge them in order to keep beds full.149 Nonetheless, California rehired CEC on a $30 million contract to arrange housing, substance abuse treatment, and mental health services for people returning from incarceration to Los Angeles County.150 CEC is one of many private, for-profit halfway houses with abysmal track records in safety and rehabilitation. For example, at Avalon Correctional Services, one of the country’s largest for-profit halfway house companies, guards notoriously staged fights in which halfway house residents were forced to brawl until blood was shed.151 The fights were allegedly driven by the company’s bottom line: instead of punishing residents by returning them to state corrections, which would cost Avalon money, facility administrators relied on “informal discipline” to ensure that defendants remained at the halfway house, making more money for the company.152 Several female inmates have also sued Avalon for sexual abuse during work-release, alleging that their complaints were ignored by administrators.153 The for-profit addiction treatment industry (of which halfway houses are simply one lucrative part) has exploded in the last ten years, expanding to include residential rehabilitation programs, outpatient facilities, drug and alcohol counseling, and sober living housing.154 The growth in the addiction treatment industry has been driven by the increase in opioid-based substance abuse disorders.155 As opioid use has continued to grow, an influx of addiction treatment programs have opened their doors in response.156 Further, there are many people in need of drug treatment and rehabilitation once they have been released—incarcerated people receive little treatment while imprisoned, and often revert back to drug use upon release.157 Approximately 58% of state prisoners and 63% of sentenced jail inmates have a substance use disorder, compared to 5% of the general population.158 Of these individu146 Id. See id. 148 See id. 149 See id. 150 Id. 151 Stillman, supra note 37, at 16. 152 Id. 153 Id. 154 See Rothenberg, supra note 132, at 13. 155 Id. 156 See Danielle L. Liberman, Not Too Sunny in the Sunshine State: The Need to Improve Florida’s Opioid Abuse Treatment Centers to Combat the National Public Health Crisis, 31 GEO. J. LEGAL ETHICS 723, 732 (2018). 157 See O’Neal, supra note 136. 158 Id. 147 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 18 unknown Seq: 18 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 als, 25% reported repeatedly using heroin or opiates.159 Today, substance abuse treatment is a vastly profitable business, with profits of approximately $34 billion per year, which is likely to increase over time.160 The criminal legal system as a whole treats drug and alcohol addiction as a problem that requires treatment as a measure of social control, with little focus on an defendant’s rehabilitation or well-being.161 This emphasis has consequences for the kind of rehabilitative treatment that defendants receive.162 “Balanced against medical constructs of addictive illness, addictions treatment emerges, much like the criminal justice system, as a fragmented approach to status and conduct, rehabilitation and retribution, and, finally, compassion and punishment.”163 Defendants are invariably blamed if addiction treatment fails, then may face drastic consequences in the form of probation violation, re-arrest, and even imprisonment.164 The criminal legal system views relapse not as a medical problem but as a refusal to follow the law, so typically addresses it with increased criminal sanctions.165 The privatization and profit motives of residential treatment centers and halfway houses thus harms people with substance use disorders. The companies’ incentives are to control both costs and people as much as possible, while spending as little as feasible.166 Their primary concerns are executive salaries, shareholder returns, lobbying expenditures, and campaign expenditures, but not the residents themselves.167 Thus, for-profit corrections companies waste an important opportunity to help people with substance use disorders recover, while imposing punitive costs on other people involved in the criminal legal system. 2. Rehabilitation in Free Labor: Forced Labor as Treatment As an alternative to incarceration, some drug courts direct defendants to serve as unpaid labor in rehabilitation centers that are “little more than lucrative work camps for private industry.”168 These faux rehabilitation centers, which are located all over the country, force people to labor for a wide 159 Id. Id. Cf. Sarah Lustbader, Should Relapse Be Treated Like A Crime?, THE APPEAL (Oct. 25, 2019), https://theappeal.org/should-relapse-be-treated-like-a-crime/, archived at https://perma .cc/2VGW-KE45. 162 See id. 163 Id. at 310. 164 Id. at 337—38. 165 Marsha Weissman, The Criminal-Involved Drug Addict: Public Policy and Sentencing Advocacy, in NAT’L CONFERENCE OF SENTENCING ADVOCACY 179, 185—86 (1991).? 166 See O’Neal, supra note 136. 167 See id. 168 Amy Julia Harris & Shoshana Walter, They Thought They Were Going to Rehab. They Ended Up in Chicken Plants, CTR. FOR INVESTIGATIVE REPORTING (Oct. 4, 2017), https://www .revealnews.org/article/they-thought-they-were-going-to-rehab-they-ended-up-in-chickenplants/, archived at https://perma.cc/NL7Z-P9WG. 160 161 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 19 2-SEP-20 The Treatment-Industrial Complex 10:34 19 range of companies, from local businesses to Fortune 500 companies.169 Many of these rehabilitation work camps do not pay people serving their sentences at the camps, forcing them to work for free to ensure they stay out of jail or prison.170 Christian Alcoholics & Addicts in Recovery (“CAAIR”), an Oklahoma-based rehabilitation program, provides just one disturbing example. Defendants are sent to CAAIR’s so-called rehabilitation program in lieu of jail time.171 CAAIR’s model is quite simple: it requires participating defendants to work full-time in chicken plants for no pay.172 Approximately 200 men live at a northeastern Oklahoma CAAIR campus, many working full time at Simmons Foods Inc. slaughtering and processing chickens for some of America’s largest retailers and restaurants.173 Other chicken plants that use CAAIR labor include Tyson and Crystal Lake Foods.174 Work at the Simmons chicken plant is dangerous, with long hours and brutal conditions.175 Workers commonly suffer acid burns, machine injuries, and bacterial infections.176 If workers get hurt or work too slowly, CAAIR supervisors threaten them with prison—a threat they have not hesitated to carry out numerous times in the past.177 Rather than providing effective substance abuse treatment, CAAIR “treats” people sentenced to its work camps with “work and prayer.”178 Drug courts in Oklahoma, Arkansas, Texas, and Missouri send defendants to the CAAIR work camps, where the men receive a bed, meals, Alcoholics Anonymous or Narcotics Anonymous meetings, and the occasional meeting with a counselor or class on anger management or parenting.179 Church attendance is required the first four months of residence.180 Probationers are forbidden to have a cellphone or any money.181 CAAIR only has one properly licensed counselor per work camp, has no trained medical staff, and forbids psychiatric medicine.182 Many probationers experienced withdrawal 169 See id. As the authors note, offenders have worked everywhere from a Coca-Cola bottling plant in Oklahoma, to a construction firm in Alabama, to a nursing home in North Carolina. See id. 170 See id. 171 See id. 172 See id. 173 See id. 174 See Oklahoma Rehab Facility as Alternative for Prison is a Slave Labor Camp for Poultry Industry, DAILY KOS (Oct. 4, 2017), https://www.dailykos.com/stories/2017/10/4/ 1704119/-Oklahoma-Rehab-Facility-As-Alternative-For-Prison-Is-Just-A-Slave-Labor-CampFor-Poultry-Indust, archived at https://perma.cc/9RLB-BP8T. 175 See Harris & Walter, Chicken Plants, supra note 168. 176 See id. 177 See id. 178 See Cory Doctorow, Prisoners Sent to Christian “Rehab” Diversion Programs Find Themselves in Forced-Labor Camps, BOING BOING (Oct. 5, 2017), https://boingboing.net/ 2017/10/05/exactly-what-jesus-would-do.html, archived at https://perma.cc/7MCW-T5B3. 179 See Harris & Walter, Chicken Plants, supra note 168. 180 See id. 181 See Oklahoma Rehab Facility, supra note 174. 182 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 20 unknown Seq: 20 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 symptoms and other serious health issues after being unable to access prescribed treatment and needed medical care.183 Under these harsh conditions, few people sentenced to the work camp successfully complete their so-called rehabilitation. In 2014, only 26% completed CAAIR’s recovery program.184 If people forced to work at CAAIR do manage to make it through their term—and without any problems or “bad behavior”—the only compensation these workers receive is a $1,000 payment.185 Even when workers get injured, CAAIR files their workers-comp claims—but keeps the money for itself.186 Although former participants have filed two federal lawsuits against CAAIR for violations of labor law, human trafficking, and racketeering, CAAIR is still in operation.187 Along with CAAIR, there are at least four other work camps/recovery programs that accept defendants from drug courts and require them to work in dangerous chicken processing factories without recompense.188 North Carolina’s Recovery Connections Community, a drug recovery program, uses a scheme similar to CAAIR’s indentured servitude program. Recovery Connections Community is an unlicensed, non-profit rehabilitation program for people who need drug rehabilitation, including many defendants sentenced from drug courts as part of their plea agreements.189 Clients were promised counseling and drug addiction recovery, but were instead sent to work at various adult care homes for the elderly and disabled for sixteen hour shifts.190 Clients working as personal care aides were almost completely untrained and were not licensed to dispense medication.191 Some were tasked with dispensing the very prescription drugs which they were addicted to, and ended up stealing the patients’ medicine.192 None were paid 183 See id. See Amy Julia Harris & Shoshana Walter, Rehab or Work Camp? Addicts Labor for Business, COLUMBUS DISPATCH (Oct. 7, 2017), https://www.dispatch.com/news/20171007/ rehab-or-work-camp-addicts-labor-for-businesses, archived at https://perma.cc/3YG4-HHHY. 185 See Harris & Walter, supra note 168. 186 See id. 187 See Amy Julia Harris & Shoshana Walter, Rehab Work Camps in Oklahoma Were About to be Regulated. Then a Friend at the Capitol Stepped In, TULSA WORLD (Oct. 17, 2017), https://www.tulsaworld.com/news/state-and-regional/rehab-work-camps-in-oklahomawere-about-to-be-regulated/article_74bc3885-baf9-5317-b05c-220747f5583f.html, archived at https://perma.cc/2M9Y-92KW. 188 See Amy Julia Harris & Shoshana Walter, These Are the Rehabs That Make People Work in Chicken Plants, CTR. FOR INVESTIGATIVE REPORTING (Oct. 5, 2017), https://www .revealnews.org/blog/these-are-the-rehabs-that-make-people-work-in-chicken-plants/, archived at https://perma.cc/KCZ7-UZYJ. 189 See Amy Julia Harris & Shoshana Walter, All Work. No Pay: She Said She’d Free Them from Addiction. She Turned Them into Her Personal Servants, CTR. FOR INVESTIGATIVE REPORTING (May 21, 2018), https://www.revealnews.org/article/drug-users-got-exploited-disabled-patients-got-hurt-one-woman-benefited-from-it-all/, archived at https://perma.cc/E75DMR48. 190 See id. 191 See id. 192 See id. 184 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 21 2-SEP-20 The Treatment-Industrial Complex 10:34 21 for their work.193 The only therapy provided were sessions in which the program’s founder would assemble participants and have each client take a turn being screamed at by the other participants.194 After numerous allegations and investigations, the North Carolina Department of Public Safety finally banned its probation officers from sending probationers to Recovery Connections Community in May of 2018.195 Several investigations into Recovery Connections are now pending in the state of North Carolina.196 Another work camp, the Drug and Alcohol Recovery Program (“DARP”), sends drug defendants and probationers to work at a plastics factory owned by Arkansas State Senate Majority Leader Jim Hendren.197 Working in the plastics factory can be dangerous; workers routinely risk serious burns from molten plastic.198 Because DARP has continually refused to pay its workers minimum wage, the Arkansas Department of Community Correction revoked the program’s license to house people on parole.199 Nonetheless, DARP is still in operation and Arkansas courts continue to sentence people to the program.200 In October 2017, the Oklahoma ACLU filed a class action lawsuit against DARP, alleging a human trafficking scheme and various labor violations.201 The suit claims that the DARP participants were minimally fed, were denied payment for their work, were housed in unsuitable conditions, and received no drug or alcohol treatment.202 Another exploitative rehabilitation work camp is owned by a retired drug court judge. For the past ten years, retired Oklahoma Judge Thomas Landrith has volunteered on the drug court while running his own rehabilitative work camp, Southern Oklahoma Addiction Recovery (“SOAR”).203 SOAR claims to provide a “therapeutic work program for men who have 193 See id. See id. See Amy Julia Harris & Shoshana Walter, Response to NC Rehab Investigation: ‘This Is a Horrific Scheme That Preys on People at Their Lowest’, CTR. FOR INVESTIGATIVE REPORTING (May 21, 2018), https://www.revealnews.org/blog/impact-officials-take-action-on-rehabwork-camp-in-response-to-reveal-investigation/, archived at https://perma.cc/RX35-2QMV. 196 See id. 197 See Amy Julia Harris, Top Arkansas Politician Uses Labor from Rehab Work Camp, KGOU (Oct. 31, 2017), https://www.kgou.org/post/top-arkansas-politician-uses-labor-rehabwork-camp, archived at https://perma.cc/K53Q-Q8SB. 198 See id. 199 See id. 200 See id. 201 See Norrid v. D.A.R.P., No. 17-CIV-401-RAW, 2018 WL 2977384, at *1 (E.D. Okla. June 13, 2018). See also Fochtman v. CAAIR, Inc., No. 5:17-CV-5228, 2018 WL 1092345, at *3 (W.D. Ark. Feb. 27, 2018); Jessica Remer, ACLU Files Suit Against Oklahoma, Arkansas Rehab Program Calling It Slave Labor, KTUL (Nov. 1, 2017), https://ktul.com/news/local/ aclu-files-suit-against-oklahoma-arkansas-rehab-program-calling-it-an-unpaid-labor-camp, archived at https://perma.cc/WVJ8-6WW7. 202 See Remer, supra note 201. 203 See Amy Julia Harris & Shoshana Walter, Inside a Judge’s Rehab: Unpaid Work at a Local Coca-Cola Plant, CENT. FOR INVESTIGATIVE REPORTING (Dec. 4, 2017), https://www .revealnews.org/article/inside-a-judges-rehab-unpaid-work-at-a-local-coca-cola-plant/, archived at https://perma.cc/43S9-EZ4F. 194 195 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 22 unknown Seq: 22 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 been convicted of drug and alcohol offenses,” working with drug courts “to place people in jobs rather than in jail or prison.”204 In reality, defendants assigned to SOAR work without pay for factories,205 including the local Coca-Cola bottling plant and a local car wash—and if they refuse, incarceration is the only alternative.206 Like the work programs detailed above, the only rehabilitative aspects of SOAR are weekly group counseling sessions and twice-weekly church services.207 Clients are eligible for a mere $500 stipend at the end of the six-month course if they do not break any rules.208 In addition, SOAR applied for food stamp cards on behalf of each participant, and then confiscated the benefits to buy food for the entire rehabilitative program.209 The Oklahoma Department of Human Services considers this kind of food stamp use fraudulent.210 After the media revealed SOAR’s practices, Coca-Cola suspended its use of SOAR workers, and the program’s alleged food stamp theft is currently being investigated; otherwise, SOAR is still operating as a recovery/rehabilitation program in the state of Oklahoma.211 The Cenikor Foundation, a nationally known drug rehabilitation center based in Texas and Louisiana, has sent thousands of people to grueling work sites such as oil refineries, oil platforms, and Walmart warehouses without air-conditioning.212 A variety of subcontractors dispatch Cenikor rehabilitation clients to major companies with minimal training, protective equipment, or job preparation.213 On the job, many workers lack proper supervision, resulting in routine injuries; nearly two dozen men have suffered serious injuries on site.214 Many of the workers labor eighty hours a week, leaving minimal time for required therapy, and counselors falsify their therapy records.215 204 See The Program, SOUTHERN OKLA. ADDICTION RECOVERY, http://www.soarrehab.org/ theprogram, archived at https://perma.cc/7HBE-6XGT. 205 The women assigned to SOAR are paid for their work, but the men are not. See Harris & Walter, Inside a Judge’s Rehab, supra note 203. 206 See id. 207 See id. 208 See id. 209 See id. 210 See When Forced Labor Masquerades as Rehab, OMAHA WORLD HERALD (Dec. 31, 2017), https://www.omaha.com/eedition/sunrise/articles/when-forced-labor-masquerades-asrehab/article_5d896d34-baf7-54ac-8464-d5890444346a.html, archived at https://perma.cc/ 2TY4-D9P7. 211 See Amy Julia Harris & Shoshana Walter, Response to Work Camp Investigation: ‘Nothing Short of Slavery’, CTR. FOR INVESTIGATIVE REPORTING (Oct. 4, 2017), https://www .revealnews.org/blog/response-to-labor-camp-investigation-i-cant-imagine-how-this-is-legal/, archived at https://perma.cc/WE4M-D49P. 212 See Amy Julia Harris & Shoshana Walter, They Worked in Sweltering Heat for Exxon, Shell and Walmart. They Didn’t Get Paid a Dime, CTR. FOR INVESTIGATIVE REPORTING (Apr. 24, 2019), https://www.revealnews.org/article/they-worked-in-sweltering-heat-for-exxonshell-and-walmart-they-didnt-get-paid-a-dime/, archived at https://perma.cc/4GQT-G6ZB. 213 See id. 214 See id. 215 See id Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 23 2-SEP-20 The Treatment-Industrial Complex 10:34 23 In theory, Cenikor’s program may seem better than prison; after 18 months participation, clients can begin receiving wages and can graduate with employment, a car and the ability to restart their lives.216 But fewer than 8% of Cenikor’s clients graduate the program.217 Like other for-profit rehabilitation programs, workers received no payment for their grueling hours of labor.218 In part, drug courts send defendants to work camp rehabilitation and recovery centers, like CAAIR and Recovery Connections, due to the lack of beds in other, more reputable alternatives.219 States and counties could limit these egregious abuses by providing more spaces in legitimate rehabilitation and recovery services for those who need them. D. Mental Illness and Forensic Mental Healthcare The need for so-called “forensic health services”—mental health treatment within the criminal legal system—is growing.220 Forensic mental healthcare formally refers to criminal court-ordered mental health treatment or commitment, and includes those individuals found incompetent to stand trial or not guilty by reason of insanity.221 As the number of individuals with mental illnesses in the criminal justice system has increased, so too has the need for various treatment centers and hospitals for defendants. Private prison companies are exploiting this need by rebranding themselves as “humane treatment providers,”222 including by expanding into mental health and civil commitment centers.223 As investor-owned enterprises, for-profit medical companies prioritize maximizing profits and stock prices, often advancing shareholder interests even at the expense of patient needs.224 In 2019, approximately 22,000 forensic patients were civilly detained through involuntary commitment.225 Many people held in involuntary commitment had not yet been convicted: approximately 9,000 were being evaluated pre-trial or treated for incompetency to stand trial.226 Six thousand people detained in involuntary commitment were found not guilty by reason of insanity, or guilty but mentally ill.227 Some will be detained indefi216 See id. See id. 218 See Harris & Walter, Exxon, Shell and Walmart, supra note 212. 219 See Harris & Walter, Chicken Plants, supra note 168. 220 See Graziani & Cole, Incorrect Care, supra note 17, at 2. 221 See id. 222 See id. at 3. 223 See id. 224 See E. FULLER TORREY ET AL., MENTAL ILLNESS POLICY ORG, FRAUD, WASTE AND EXCESS PROFITS: THE FATE OF MONEY INTENDED TO TREAT PEOPLE WITH SERIOUS MENTAL ILLNESS 29 (Nov. 18, 2015), https://mentalillnesspolicy.org/wp-content/uploads/wastereport .pdf, archived at https://perma.cc/E634-26JN. 225 See Sawyer & Wagner, supra note 3. 226 See id. 227 See id. 217 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 24 unknown Seq: 24 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 nitely.228 In 2019, 6,000 people convicted of sex crimes were either involuntarily committed or detained after completing their prison sentences.229 Despite being involuntarily committed, people detained in forensic mental healthcare centers must sometimes pay for some of the cost of their (civil) incarceration. In Oregon, for example, the state looks at an involuntarily committed individual’s income, property, and resources to determine whether and how much they are able to pay for hospital care.230 If the state decides that an involuntarily detained individual should be able to pay for some or all of their hospital care, the state issues an ability to pay order— imposing a harsh financial burden on the individual.231 Utah,232 Florida,233 and Nevada234 have similar laws. For-profit prison companies are capitalizing off of involuntary civil detention.235 As the number of people involuntarily committed to forensic psychiatric facilities grows, states have privatized the programs to cut costs.236 In particular, psychiatric facilities are extremely profitable for private prison companies.237 Advocates argue that for-profit prison companies see forensic psychiatric facilities or civil commitment centers as profitable investments because people can be detained there for life—guaranteeing revenue to the for-profit prison companies expanding into civil detention.238 Just as for-profit prisons have a financial interest in mass incarceration, private 228 See id. See id. 230 See DISABILITY RIGHTS OREGON, MENTAL HEALTH LAW IN OREGON 55 (4th ed. 2012), http://droregon.org/wp-content/uploads/Mental-Health-Law-in-Oregon-Fourth-Edition.pdf, archived at https://perma.cc/U745-F66U. 231 See id. 232 See UTAH CODE ANN. § 62A-15-607 (2008) (“The division shall estimate and determine, as nearly as possible, the actual expense per annum of caring for and maintaining a patient in the state hospital, and that amount or portion of that amount shall be assessed to and paid by the applicant, patient, spouse, parents, child or children who are of sufficient financial ability to do so.”). 233 See FLA. STAT. § 916.107(2)(a) (2019) (“[E]very reasonable effort to collect appropriate reimbursement for the cost of providing services to clients able to pay for the services, including reimbursement from insurance or other third-party payments, shall be made.”). 234 See NEV. REV. STAT. § 433A.600 (2013) (“A person who is admitted to a division facility or to a program of community-based or outpatient services operated by the Division and not determined to be indigent and every responsible relative . . . of the person shall be charged for the cost of treatment and is liable for that cost.”). 235 See Lisa Cromwell, Why Privatizing Mental Health Services Won’t Help Patients in State Care, Bangor Daily News (Jan. 4, 2017), https://bangordailynews.com/2017/01/04/opinion/contributors/why-privatizing-mental-health-services-wont-help-patients-in-state-care/, archived at https://perma.cc/2VA9-S6MD. 236 See CATE GRAZIANI, A STATE MENTAL HEALTH SYSTEM IN CRISIS: RECOMMENDATIONS TO REDUCE THE FORENSIC MENTAL HEALTH POPULATION IN TEXAS 18 (Aug. 2014) (unpublished Masters report, University of Texas at Austin), https://repositories.lib.utexas.edu/ handle/2152/26497, archived at https://perma.cc/PP5W-KWJU. 237 See Erin Fuchs, For-Profit Prison Companies Have a Worrying Plan for Boosting Profits, Bus. Insider (Nov. 20, 2014), https://www.businessinsider.com/for-profit-psych-facilities-2014-11, archived at https://perma.cc/8MRK-X2HX. 238 See id. 229 Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 25 2-SEP-20 The Treatment-Industrial Complex 10:34 25 corrections companies may be similarly motivated to keep patients committed in psychiatric wards for the long term.239 GEO Group, a private prison company,240 has already expanded into civil psychiatric commitment through its subsidiary Correct Care.241 Correct Care is a privately held company owned by two private equity funds with annual revenues estimated at $1.2 billion.242 Private health-management companies like Correct Care oversee many hospitals and healthcare providers for people who are currently incarcerated in prisons, jails, or immigrant detention centers, and for people who have been civilly committed.243 Companies such as Correct Care have a perverse incentive to cut costs to pad profit margins.244 Correct Care, which has won government contracts in thirty-four states, provides dangerously substandard services to individuals under its care, leading to preventable deaths.245 In 2018, Correct Care merged with Correctional Medical Group Company and rebranded as Wellpath Recovery Solutions.246 Wellpath is now the biggest player in the U.S. correctional health care sector247 and plans to grow its presence in for-profit behavioral health programs, including services to treat mental illness and substance use disorders.248 At least fourteen additional, smaller companies have contracts to provide for-profit correctional medical and health care.249 Wellpath recently began taking over state psychiatric hospitals in order to run them privately, with the support of state funds.250 Massachusetts al239 240 See id. GEO GRP., INC., https://www.geogroup.com/, archived at https://perma.cc/A43N- CLJV. 241 See Eshe Cole, GEO Group Subsidiary, Correct Care Solutions, Bids to Re-purpose the Bill Clayton Detention Center as a New Civil Commitment Facility, GRASSROOTS LEADERSHIP: BLOG (Oct. 2, 2014), https://grassrootsleadership.org/blog/2014/10/geo-group-subsidiary-correct-care-solutions-bids-re-purpose-bill-clayton-detention, archived at https://perma.cc/ B3QY-AWH2. 242 See Ken Silverstein, Leading For-Profit Prison and Immigration Detention Medical Company Sued At Least 1,395 Times, HUFFPOST (Oct. 29, 2018), https://www.huffpost.com/ entry/correct-care-solutions-detention-center-lawsuits_n_5bd755fce4b07427610a0ccf, archived at https://perma.cc/N5RY-WXK6. 243 Blake Ellis & Melanie Hicken, ‘PLEASE HELP ME before it’s too late’, CNN (June 25, 2019), https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs/, archived at https://perma.cc/48SJ-PWY7. 244 See id. 245 See id. 246 WELLPATH, https://wellpathcare.com/, archived at https://perma.cc/6YD3-LURK. 247 See Davide Scigliuzzo et al., Bad Press and Lawsuits Are No Obstacle to a $610 Million Prison Loan, BLOOMBERG (Sept. 21, 2018), https://www.bloomberg.com/news/articles/2018-09-21/bad-press-and-lawsuits-no-obstacle-to-a-610-million-prison-loan, archived at https://perma.cc/NGY8-TMQN. 248 See id. 249 See PRISON LEGAL NEWS, U.S. For-Profit Privatized Correctional Services (Jan. 2017), https://www.prisonlegalnews.org/media/publications/Other%20privatized_1.pdf, archived at https://perma.cc/2HXB-Z5GK (listing medical/mental health care services). 250 See Kevin Baird, No-bid Contract for Psychiatric Institute Raises Questions, PENINSULA CLARION (Feb. 9, 2019), https://www.peninsulaclarion.com/news/no-bid-contract-forpsychiatric-institute-raises-questions/, archived at https://perma.cc/Z55S-X3Y2. Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 26 unknown Seq: 26 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 lowed Wellpath to assume control of one of its mental health hospitals, which had previously been overseen by the federal Department of Health and Human Services, and paid the company to run it with state funds.251 Over the past 10 years, Wellpath has fought over 1,351 federal lawsuits over its provision of substandard care in various correctional health settings.252 Lawsuits accuse Wellpath of committing malpractice, causing injury and even death to people housed at facilities where the company is contracted to provide health care.253 In 2015, a Florida state paper exposed serious violence and neglect at three Florida state psychiatric hospitals overseen by Correct Care.254 Approximately 60% of the residents at Correct Care’s psychiatric hospitals were sent there by the criminal legal system because they were deemed mentally unfit to stand trial.255 These “forensic” patients are committed until they are deemed competent and are able to return to court to face charges.256 Conditions became so bad at Florida’s Treasure Coast Forensic Treatment Center that one resident was killed and several staff maimed, allegedly due to insufficient staffing for the facility.257 The hospital failed to report assaults and employee misconduct.258 It also lacked sufficient staff, training, licensing, and funding.259 Over an eleven-year period, there were eightyseven reported batteries; according to former staff, assaults were underreported and many more took place.260 The Center’s dangerously low staffing level was good for its bottom line: over eighteen months, Correct Care saved an estimated $546,000 by understaffing and paying token fines, which functioned at best as a slap on the wrist.261 Moreover, the Center did not comply with Florida fire and build251 See id. See Sandy Hodson, Medical Care Company for Augusta Jail Settles Lawsuit on Eve of Trial, AUGUSTA CHRON. (Feb. 11, 2019), https://www.augustachronicle.com/news/20190211/ medical-care-company-for-augusta-jail-settles-lawsuit-on-eve-of-trial, archived at https://per ma.cc/9KSN-NZUX. 253 See id. 254 See Leonora LaPeter Anton et al., Insane. Invisible. In Danger., TAMPA BAY TIMES & SARASOTA HERALD TRIBUNE (Oct. 9, 2015), http://www.tampabay.com/projects/2015/investigations/florida-mental-health-hospitals/cuts/, archived at https://perma.cc/KKZ4-G6GT. 255 See id. 256 See id. 257 See Editorial, State Must Fix Perverse System That Led to Abuses at Mental Hospital, TREASURE COAST PALM (Feb. 8, 2018), https://www.tcpalm.com/story/opinion/editorials/2018/ 02/08/state-and-private-owners-must-fix-perverse-system-allows-dangerous-conditionsmental-hospital-our-vi/311510002/, archived at https://perma.cc/34FB-L4CN. 258 See id. 259 See id. 260 See Lucas Daprile, Dangerous Detention: Treasure Coast Mental Hospital Lacks Staff, Training, Licensing, Funding, TREASURE COAST PALM (Jan. 21, 2018), https://www.tcpalm .com/story/news/investigations/2018/01/21/treasure-coast-mental-hospital-not-enough-stafftraining-equipment-funding-tcpalm-investigation-find/921183001/, archived at https://perma .cc/3Q8T-52JC. 261 Correct Care made this savings over a seventeen-month period, from July 2015 to December 2016. See Lucas Daprile, Correct Care Solutions Profited $546,000 by Understaffing in Violation of State Contract, TREASURE COAST PALM (Jan. 21, 2018), https://www 252 Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 27 2-SEP-20 The Treatment-Industrial Complex 10:34 27 ing codes, which would also cost the company money.262 Cost savings were thus purchased at the expense of patient wellbeing. Texas provides another example of how Correct Care/Wellpath mismanaged a forensic mental health facility using state funds.263 In its first year of operating the Montgomery County Mental Health Facility, GEO Care (the parent company) was fined $53,000 for serious violations to its operating contract, including “unauthorized restraint and seclusion of patients, incomplete medical records, failure to show patient consent for medications, and failure to report serious injuries to the state.”264 In Maine, Correct Care operated the Columbia Regional Care Center from 2014–18; in January 2019, newly elected Democratic Governor Janet Mills blocked the renewal of Correct Care’s $5.4 million contract to run the Bangor Psychiatric Facility.265 Mills ended the contract largely thanks to the objections of a judicial watchdog tasked with overseeing the state’s mental health care system which exposed disturbing abuses at Correct Care’s facility.266 As the head of the Maine Prisoner Advocacy Program observed, “Correct Care Solutions has been under fire from advocates for many years because we have received so many complaints from prisoners about medical treatment.”267 In March 2018, for example, the Maine ACLU sued Correct Care in federal court under the Fourteenth Amendment for its “deliberate indifference” to the medical needs of an eleven-year-old held in juvenile detention.268 Despite Correct Care/Wellpath’s long history of denying patients adequate care, Alaska recently signed a contract giving the company control over the only state-run psychiatric institution.269 Beginning on July 1, 2019, Alaska began paying Wellpath approximately $43 million per year to run the .tcpalm.com/story/news/investigations/2018/01/21/dangerous-detention-treasure-coast-mentalhospital-profits-understaffing-despite-fines-workers-comp/922682001/, archived at https://per ma.cc/7EN2-TED5. 262 See State Must Fix Perverse System, supra note 257. 263 See Graziani & Cole, Incorrect Care, supra note 17, at 6–7. 264 See id. at 7. 265 See Charles Eichacker, Tennessee Company Didn’t Sign Contract to Run Bangor Psychiatric Facility at Mills’ Request, BANGOR DAILY NEWS (Jan. 7, 2019), https:// bangordailynews.com/2019/01/07/news/bangor/at-mills-request-firm-lepage-recruited-to-runbangor-psychiatric-facility-didnt-sign-contract/, archived at https://perma.cc/A7FH-RJVT. 266 See id. 267 See Jake Bleiberg, Youth Prison Watchdog Calls for Audit of Medical Contractor, WGME (May 28, 2018), https://wgme.com/news/local/youth-prison-watchdog-calls-for-auditof-medical-contractor-05-28-2018, archived at https://perma.cc/6AP5-QWC9. 268 See Amanda Curcio, New Provider of Medical Services at Arkansas Youth Lockups Named in Past Lawsuits, ARK. DEMOCRAT GAZETTE (July 2, 2018), https://www.arkansasonline.com/news/2018/jul/02/firm-takes-over-youths-jail-care-201807/, archived at https://perma .cc/5KVJ-FFYR. See also Sadiya Ali v. Long Creek Development Center, Complaint and Demand for Jury Trial, No. 2:18-cv-00109-JAW, (D. Me. Mar. 14, 2018). 269 See Daniella Rivera, State Paying Contractor One Million a Month to Avoid ‘Catastrophic’ API Closure, KTVA (Feb. 14, 2019), https://www.ktva.com/story/39967577/statepaying-private-contractor-dollar1-million-monthly-to-avoid-catastrophic-closure-of-api, archived at https://perma.cc/TP68-L9U9. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 28 unknown Seq: 28 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 state hospital.270 Some Alaska state legislators have raised concerns that a for-profit company like Wellpath will “profitize [sic] people[ ] who have mental illness, and desperately need help and are being forced into an institution where a company is going to be making profits, and incentivized to be making profits off treating these individuals.”271 These legislators fear that neither the state nor its citizens’ best interests will be served by hiring a health-care company that stands to profit off of Alaska residents with severe mental illnesses.272 Mental health experts have discouraged privatization of forensic psychiatric treatment, given the persistent understaffing and overall poor quality of care.273 While public forensic hospitals sometimes also provide poor care, they are at least generally subject to stronger oversight.274 The privatized, punitive approach that for-profit corrections companies bring to forensic mental health treatment has had disastrous consequences.275 E. For-Profit Diversion Programs Diversion and probation can be a critical alternative to incarceration for misdemeanor defendants. First gaining popularity in the 1970s, diversion programs have made a resurgence as states search for alternatives to prison time and have begun reducing various nonviolent felonies to misdemeanors.276 In lieu of jail or prison time, diversion programs send defendants to treatment that addresses the root causes of their conduct, such as substance abuse or mental illness.277 Successfully completing the diversion program permits people to ultimately avoid conviction.278 However, for-profit corrections companies have undermined these programs’ anti-carceral promise by operating diversion programs for profit that extract wealth from people caught in the criminal legal system—and sometimes incarcerate people who are unable to pay their criminal legal debt. Corrective Solutions is a for-profit diversion company operating in seventeen states and 140 districts nationwide.279 Many district attorney’s offices 270 See id. See Baird, supra note 250. 272 See Rivera, Catastrophic API Closure, supra note 272. 273 See Graziani, A State Mental Health System in Crisis, supra note 236, at 5–6. 274 See id. at 5–6, 9–10. 275 See CAROLINE ISAACS, GRASSROOTS LEADERSHIP, THE TREATMENT-INDUSTRIAL COMPLEX: HOW FOR-PROFIT PRISON CORPORATIONS ARE UNDERMINING EFFORTS TO TREAT AND REHABILITATE PEOPLE FOR CORPORATE GAIN 17 (Nov. 2014), https://grassrootsleadership.org/ sites/default/files/reports/TIC_report_online.pdf, archived at https://perma.cc/WYU2-LJXY. 276 See Lee Romney, Diversion Programs Are Failing Those Who Need Help the Most, REVEAL NEWS (May 31, 2017), https://www.revealnews.org/article/private-diversion-programs-are-failing-those-who-need-help-the-most/, archived at https://perma.cc/7M8C-ZAKE. 277 See id. 278 See id. 279 Prosecutors in approximately twenty-two states use Corrective Solutions and BounceBack, another for-profit diversion program. See Rebecca Burns, Diversion Programs Say They Offer a Path Away from Court, but Critics Say the Tolls Are Hefty, PROPUBLICA ILL. 271 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 29 2-SEP-20 The Treatment-Industrial Complex 10:34 29 divert complaints of bounced checks to Corrective Solutions, which then pressures defendants into paying for the company’s “voluntary” programs.280 For example, the company charges defendants who write bad checks $175 for a “financial accountability” class.281 Corrective Solutions’ primary focus is extracting money from probationers, not rehabilitation or community services.282 As a report by the Center for Investigative Reporting revealed, the Corrective Solutions diversion programs layered on “extra fees for drug tests, class rescheduling, payment plans, late payments, underpayments and even overpayments,” all extorted from people with so little wealth that their checks bounced.283 There is little to no oversight of such diversion programs by the prosecutors and courts that send them criminal justice defendants.284 Corrective Solutions and similar companies may themselves send out letters insinuating that unless defendants—who have not yet been sentenced—pay for and take their courses, they could end up in jail.285 Prosecutors allow debt-collection companies to send these letters on local district attorney’s office letterhead, knowing the company will try to collect both the check and high fees, “some of which go[ ] back to the district attorney’s offices.”286 The company routinely fails to assess the defendants directed to its programs for ability to pay, though it has promised to do so in several jurisdictions.287 Instead, Corrective Solutions just threatens indigent defendants to pay or go to jail.288 Despite Corrective Solutions’ claims,289 it provides little proof that participation in its programs reduces recidivism.290 Simply enrolling in a Corrective Solutions diversion program costs probationers money that they often do not have.291 With enrollment fees ranging (Nov. 13, 2018), https://www.propublica.org/article/diversion-programs-illinois-criminal-justice-system-bounceback-correctivesolutions, archived at https://perma.cc/9YT7-EBP8; see also Denise Grollmus, Corrective Solutions Will Make You Pay, CITY PAGES (Jan. 23, 2013), http://www.citypages.com/news/corrective-solutions-will-make-you-pay-6765186, archived at https://perma.cc/J9E4-KM6V; Romney, supra note 276. 280 See Grollmus, supra note 279. 281 See id. 282 See Romney, supra note 276. 283 See id. 284 See id. 285 See Jessica Silver-Greenberg, In Prosecutors, Debt Collectors Find a Partner, N.Y. TIMES (Sept. 15, 2012), http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html, archived at https://perma.cc/6P34-ZZH4. 286 See id. 287 See Kimberly King, News 13 Investigates: Questions Raised About For-Profit Company Running Indigent Fund, NEWS 13 WLOS (Oct. 11, 2016), https://wlos.com/news/local/ news-13-investigates-questions-raised-about-for-profit-company-running-indigent-fun, archived at https://perma.cc/K333-3RTY. 288 See id. 289 See Diversion/Deferred Prosecution Programs, CORRECTIVE SOLUTIONS, http://correctivesolutions.org/diversion-programs, archived at https://perma.cc/J2HW-NJDE. 290 See Romney, supra note 276. 291 See Burns, supra note 279. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 30 unknown Seq: 30 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 from $200 to $500 just to enter diversion,292 these types of entry barriers already put a large number of misdemeanor defendants, who are largely poor or working class,293 at a disadvantage. Such diversion programs privilege wealthier probationers, who receive diversion and a clean record, over more financially distressed ones, who must accept a conviction and often jail time.294 Defendants who can scrape together the money to pay for a diversion program may then face a long series of costly fees. Corrective Solutions requires people sentenced to probation to pay a multitude of fees and to pay for classes related to their criminal charges.295 Prosecutors sometimes also add conditions like community service or drug or alcohol testing, all of which Corrective Solutions provides for a price.296 The collected money is typically split between the diversion program and the prosecutor’s office, with the bulk of the fees going to the company.297 People must pay their criminal legal debt in full before their misdemeanor can be expunged from their record.298 If a defendant agrees to participate by paying into the program, then they must sign an agreement that usually includes a guilty plea.299 If the defendant then defaults at a later time because they are unable to continue to pay the required fees, the waiver of their right to trial still stands.300 These conditional guilty pleas require the impoverished defendant to go to jail, simply because they cannot afford the price.301 In Maryland, for example, state prosecutors allowed private companies like Corrective Solutions to issue official threats of prosecution, using prosecutors’ official letterhead.302 Corrective Solutions, among other diversion programs, was permitted to make such allegations even when prosecutors had not meaningfully reviewed the claim.303 The letters told defendants they could avoid prosecution for charges such as “bad check passing” by paying 292 See Kimberly King, Corrective Solutions: News 13 Investigation Leads to Program Termination, NEWS 13 WLOS (Sept. 5, 2017), https://wlos.com/news/local/buncombe-countyto-end-use-of-crime-diversion-program-corrective-solutions, archived at https://perma.cc/ K8L4-LR2E. 293 See Burns, supra note 279. 294 See id. 295 See id. 296 See id. 297 See id. 298 See King, Corrective Solutions, supra note 292. 299 See Roman Gressier, Who Profits from Pay-for-Treatment Diversion, THE CRIME REP. (Mar. 11, 2019), https://thecrimereport.org/2019/03/11/who-profits-from-pay-for-treatment-diversion-programs, archived at https://perma.cc/4YQW-T33A. 300 See id. 301 See id. 302 See ACLU Questions State’s Attorneys About Authorizing Private Companies to Threaten Prosecution for Profit, ACLU MD. (Jan. 14, 2013), https://www.aclu-md.org/en/ press-releases/aclu-questions-states-attorneys-about-authorizing-private-companies-threaten, archived at https://perma.cc/547M-2KN9. 303 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 31 2-SEP-20 The Treatment-Industrial Complex 10:34 31 fees to attend the company’s “financial accountability” classes.304 For their part, the prosecutor’s office received a small part of the fees, though the diversion programs collected the majority of the money.305 Companies like Corrective Solutions provide diversion programs for a variety of other charges, including trespassing, theft, driving under the influence (DUI), drug and alcohol offenses, and domestic violence.306 Advocates and experts have raised concerns that allowing private, for-profit companies to run these diversion programs results in the possibility of prosecution for profit.307 These abuses are made possible by a loophole in the Fair Debt Collection Practices Act (FDCPA), which bars collection agencies from threatening jail time and deceiving consumers.308 The Fair Debt Collection Practices Act was passed to eliminate abusive, deceptive, and unfair debt collection practices committed by third-party debt collectors.309 But Congress carved out an exception for state officials and collectors of state and local debt, believing they had less incentive to use unscrupulous tactics.310 In reality, this loophole provides legal cover for abusive practices committed by collection agencies working on behalf of law enforcement.311 In other words, a third-party, private debt collector such as Corrective Solutions can ignore the mandates of the FDCPA simply because it intermittently collects debts on behalf of a state entity.312 Therefore, collection agencies such as Corrective Solutions, BounceBack, American Corrective Group, and Check Diversion Program can send out legal notices on local district attorney letterhead, threatening people with jail time for non-payment of their debts, all while collecting approximately $200 in fines per person.313 Moreover, district attorneys are helping these companies collect their fines.314 Many diversion companies split the collected administrative fees with district attorneys to make themselves a more valuable partner.315 This arrangement can provide some serious revenue to prosecutors. Los Angeles 304 See id. See id. 306 See Burns, supra note 279. 307 See id. 308 See Grollmus, supra note 279. 309 15 U.S.C. § 1692 (2012). 310 15 U.S.C. § 1692a(6)(C) (2012). 311 See Mosi Secret, District Attorneys Can Keep on Cashing In on Check Fees, PROPUBLICA (Apr. 7, 2009), https://www.propublica.org/article/district-attorneys-can-keep-cashing-inon-debt-collection-fees-0407, archived at https://perma.cc/PB7B-EGGN. 312 See Brief Amici Curiae of 5 Consumer Law Professors in Support of Respondents, Sheriff v. Gillie, 136 S. Ct. 1594 (2016) (No. 15-338), at 7, https://www.scotusblog.com/wpcontent/uploads/2016/03/15-338_amicus_resp_ConsumerLawProfessors.authcheckdam.pdf, archived at https://perma.cc/ZY7Q-Y2GG. 313 See Grollmus, supra note 279. 314 See id. 315 See Secret, supra note 311. 305 Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 32 unknown Seq: 32 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 County, for example, received two million dollars in 2008.316 Likewise, in Maricopa County, Arizona, the prosecutor’s office received fifteen million dollars over ten years from its marijuana diversion program, operated jointly with a for-profit diversion company.317 District attorney’s offices may find these private diversion programs too remunerative to give up.318 Kickbacks to prosecutors raise a serious conflict of interest when criminal misdemeanor investigations are outsourced to for-profit diversion companies that have financial stakes in the ultimate outcome.319 Equally disturbing, this system allows unaccountable companies to administer critical aspects of the criminal legal system.320 When private debt collectors use a law enforcement agency’s letterhead, they create a false impression about who the sender of the letter is, potentially violating the FDCPA.321 The FDCPA has been interpreted to forbid a “range of implications” beyond the direct representation that the debt collector is a government agent.322 Similarly, the FDCPA should be construed to prohibit the misleading impression created by a private collection company’s use of a district attorney’s letterhead on an official notice sent to the debtor. Private third-party debt collectors should not be allowed to pass as exempt state collectors. As a whole, for-profit diversion and treatment programs exist largely on revenue from fines and fees imposed on defendants by the criminal legal system.323 These programs are a “net widener of mass incarceration, and a pipeline to debtors’ prison that most adversely affects poor communities of color.”324 For-profit diversion programs thus primarily benefit their holding companies and local prosecutors, undermining the goal of ending mass incarceration. F. Sex Offender Post-Release Treatment and Civil Commitment The for-profit corrections industry has also begun expanding its reach into civil commitment facilities and post-offense treatment for sex offenders. People convicted of sex offenses are sometimes subject to nearly indefinite detention: even when they are not technically serving prison sentences, they 316 See Drew Griffin & David Fitzpatrick, Bounced-Check Collection Deals Draw Fire, CNN (Mar. 2, 2009), http://www.cnn.com/2009/US/03/02/siu.bad.checks/index.html, archived at https://perma.cc/29HA-VLTT. 317 See Gressier, supra note 299. 318 See id. 319 See ACLU MD., supra note 302. 320 See Burns, supra note 279. 321 See 15 U.S.C. §1692e(1) (2012); Gammon v. GC Services, 27 F.3d 1254, 1257 (7th Cir. 1994). 322 Gammon, 27 F.3d at 1257 (“[T]he FDCPA forbids a range of implications wider than merely the direct representation that the debt collector is or is a part of state or federal government.”). 323 See Gressier, supra note 299. 324 Id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 33 2-SEP-20 The Treatment-Industrial Complex 10:34 33 are still subject to strict control by the criminal legal system. The criminal justice debt imposed on those convicted of sex offenses is another troubling facet of the treatment-industrial complex. 1. Costs of Civil Registration The state generally requires people convicted of sex offenses to register for a public sex-offender registry. Registry requirements can impose a great deal of criminal justice debt on sex offenders. States repeatedly require sex offenders to pay to be listed on the sex offender registry,325 and failing to register is a criminal offense in itself. Sex offenders may be required to remain on the registry for fifteen years or even for life, depending on the conviction.326 Caught between accumulating fees, additional fines, and the risk of re-incarceration if they cannot make payments related to sex offender registration, many people become trapped in a vicious cycle of treatment, prison, and criminal justice debt. The treatment-industrial complex is fatally easy to enter, but can be almost impossible to leave. Individuals convicted of sex offenses frequently must also pay for staterequired treatment, polygraphs, and GPS monitoring.327 For people convicted of Level Three sex offenses, GPS monitoring can be life-long and entail fees to private providers.328 Moreover, many states do not provide a waiver of the monitoring fee for low-income individuals convicted of sex offenses.329 Even convictions for minor sex offenses can result in extremely expensive treatment. Seattle, Washington requires a $900, ten-week course on toxic masculinity for men convicted of soliciting prostitution.330 The class, “Stopping Sexual Exploitation,” is run by the Organization for Prostitution Survivors, a Seattle-based non-profit.331 The ten-week course tries to teach men about “the . . . roots of prostitution: patriarchy, male privilege, and the 325 See Wright & Logan, supra note 99, at 1191. See Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 HASTINGS L.J. 1071, 1087 (2012). 327 See Another Reason Why Sex Offender Registration Fees are a Bad Idea, FLA. ACTION COMM. (Jan. 17, 2018), https://floridaactioncommittee.org/another-reason-why-sex-offenderregistration-fees-are-a-bad-idea/, archived at https://perma.cc/HZJ5-Z7L6. 328 See Rhonda Cook, Sex Offender Argues Mandatory Ankle Monitors are Unconstitutional, ATLANTA J.-CONST. (Dec. 5, 2016), https://www.ajc.com/news/local/sex-offender-argues-mandatory-ankle-monitors-are-unconstitutional/SaXCToWMJ3wgmFm2mvMuzN/, archived at https://perma.cc/L83C-TDBP. The Georgia Supreme Court recently held that lifetime ankle monitoring for sex offenders is unconstitutional. See Bill Rankin, Court Strikes Down Lifetime Electronic Monitoring of Sex Offenders, ATLANTA J.-CONST. (Mar. 4, 2019), https://www.ajc.com/news/local/court-strikes-down-lifetime-electronic-monitoring-sex-offenders/FiuHbWK5Nf0pOTcgqD8IMO/, archived at https://perma.cc/J5QF-3NSK. 329 See id. 330 See Elizabeth Nolan Brown, The Truth About the Biggest U.S. Sex Trafficking Story of the Year, REASON, (Oct. 5, 2017), https://reason.com/2016/09/09/the-truth-about-us-sex-trafficking/, archived at https://perma.cc/REN3-HE9P. 331 See ORG. FOR PROSTITUTION SURVIVORS, http://seattleops.org/what-we-do/mens-accountability/, archived at https://perma.cc/25ZS-W8C9. 326 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 34 unknown Seq: 34 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 barriers to healthy relationships.”332 Similar men’s accountability classes, required by the courts, are used in other Washington State cities such as Tacoma and Everett.333 Colorado requires people convicted of sex offenses to pay a whole host of fees and fines. First, everyone who is convicted of a sex offense must pay for a psychosexual evaluation, which costs approximately $1,000 to $2,000.334 Next, people required to undergo treatment for committing sex offenses typically must attend five treatment sessions per month.335 Four of the treatments consist of group therapy, costing $50 a session, and one is individual therapy, at $75 a session.336 Therefore, just attending treatment will cost a defendant $275 per month.337 Treatment plans can go on for months or even years, depending on the severity of the sex offense.338 Nationally, the average sex offender treatment program lasts about eighteen months, according to Elizabeth Letourneau, the president of the Association for the Treatment of Sexual Abusers.339 Although the Colorado Department of Probation does provide treatment financial assistance to some individuals convicted of sex offenses, every person must sign a contract agreeing to pay the costs in full.340 If they default on the payments, the individuals are not just in violation of the treatment contract but have violated their probation as well.341 Treatment is just the beginning of fees for individuals convicted of sex offenses. In Colorado, some individuals also must pay a private “tracker,” usually an off-duty police officer, who ensures that the person is where she claims she is going when she leaves the house.342 These private services charge $15 to $30 an hour, paid by the defendant.343 In addition, some individuals convicted of sex offenses in Colorado must pay for two or more polygraphs per year, which cost approximately $250 per test.344 Defendants considered sexually violent must register every quarter.345 Colorado also im332 See Brooke Jarvis, Can We “Cure” the Men Who Pay For Sex?, GQ (Feb. 2, 2017), https://www.gq.com/story/cure-men-who-pay-for-sex-end-prostitution, archived at https://per ma.cc/GJ3P-NUBM. 333 See Sara Lerner, Seattle “John School” Educates Men Who Pay for Sex, KUOW (June 4, 2013), http://archive.kuow.org/post/seattle-john-school-educates-men-who-pay-sex, archived at https://perma.cc/4647-B3UX. 334 See FREAKONOMICS, Making Sex Offenders Pay—and Pay and Pay and Pay (Ep. 208): Full Transcript (June 10, 2015), http://freakonomics.com/2015/06/10/making-sex-offenderspay-and-pay-and-pay-and-pay-full-transcript/, archived at https://perma.cc/T6Z8-UBUH. 335 See id. 336 See id. 337 See id. 338 See id. 339 See id. 340 See FREAKONOMICS, Making Sex Offenders Pay, supra note 334. 341 See id. 342 See id. 343 See id. 344 See id. Wisconsin and Minnesota have similar requirements. See Wis. Stat. § 51.375(2)(a) (2019); Minn. Stat. Ann. §609.3456(a)(2019). 345 See Colo. Rev. Stat. § 16-22-108(1)(d)(I) (2019). Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 35 2-SEP-20 The Treatment-Industrial Complex 10:34 35 poses a general surcharge ranging in cost from $500 to $3,000, depending on the class of felony.346 Sometimes, people convicted of sex offenses are also required to pay for room and board at a group home where they are ordered to live.347 In total, a Colorado resident convicted of a sex offense will likely pay approximately $10,000 the first year they are charged and convicted, according to one treatment provider’s estimate.348 In 2018, Kentucky proposed a bill requiring all individuals convicted of sex offenses to pay for the cost of keeping a sex offender registry, roughly $100 per person per year.349 Anyone failing to pay would be fined up to $250 for the first offense, and for the second offense, would be charged with a misdemeanor.350 Illinois has a similar fee structure, charging a $100 initial fee and a $100 annual fee, and West Virginia charges $40 annually.351 Residents of Jackson County, Indiana who have been convicted of sex offenses must pay $50 annually and a $5 fee every time they change address.352 Georgia charges $250 annually, a substantial expense for those living at or below the poverty line.353 In Wyoming, someone convicted of a sex offense must pay $150 to initially register for the sex-offender registry and, if they leave town, pay $31.25 to “de-register.”354 Each time a defendant enters a new town, she must pay the $31.25 to re-register.355 Individuals must also report every “life change,” such as new cars, new tattoos, or new employers, and pay to have each of these changes recorded.356 If people convicted of sex offenses fail to pay registration fees, they can face a misdemeanor charge punishable by up to $750 and six months’ jail time.357 Failing to report changes within three days is a felony, punishable by up to $1,000 and five years in prison.358 Likewise, Louisiana imposes a complex set of requirements and fees on every newly released individual convicted of a sex offense, which can total up to $1,300 in the first thirty days after release from prison.359 Along with a 346 See Colo. Rev. Stat. § 18-21-103(1) (2019). See Philip Cherner, Felony Sex Offender Sentencing, 33 COLO. LAW. 11, 16 (2004). 348 See FREAKONOMICS, Making Sex Offenders Pay, supra note 334. 349 See James Mayse, Bill Would Create Annual Fee for State’s Sex Offender Registry, KY. NEW ERA (Feb. 3, 2018), http://www.kentuckynewera.com/news/ap/article_f8e9bc4e-089311e8-9a93-cf1483aaf333.html, archived at https://perma.cc/CCP8-F2EA. 350 See id. 351 See id. 352 See Maira Ansari, Sex Offenders Will Soon Have to Pay to Be on Registry, WAVE 3 NEWS (Apr. 23, 2019), http://www.wave3.com/2019/04/23/sex-offenders-will-soon-have-paybe-registry/, archived at https://perma.cc/PK4K-4Z6M. 353 See Justin DiCharia, The Plight of the Unpopular Poor: Sex Offender Registration and Notification Costs to Indigent Offenders in Louisiana, 79 LA. L. REV. 519, 533 (2018). 354 See Emily Mieure, Sex Offenders Now Pay the Cost of Supervision, JACKSON HOLE NEWS & GUIDE (July 26, 2017), https://www.jhnewsandguide.com/news/cops_courts/article_67079980-6c69-5cbc-ad2a-5604c5f955d3.html, archived at https://perma.cc/5QGK-8SRS. 355 See id. 356 See id. 357 See id. 358 See id. 359 See DiCharia, supra note 353, at 531. 347 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 36 unknown Seq: 36 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 $60 initial registration fee, defendants must obtain a new driver’s license ($32.25 to $38.25) and state identification card ($18 to $24) within the first three days of their release.360 Louisiana’s short timeline, complicated list of requirements, and associated fees make compliance extremely difficult for those individuals who are homeless, indigent, or near the poverty line.361 In addition, individuals convicted of sex offenses in Louisiana must notify every residence within the legally required radius around their home by post; in urban areas, this can cost up to $1,000.362 They must also pay for two days of newspaper advertisements delineating their new address, which typically costs about $200.363 Failure to comply with either the registration or notification requirements can result in prosecution for failure to properly register.364 All states have laws requiring sex offenders to update their registration after a change of residence.365 Failure to register in a timely manner can carry steep penalties.366 Under federal law, an individual convicted of a sex offense is supposed to register a change of address before a move.367 But people convicted of sex offenses often have great difficulty finding legal housing and thus experience severe housing instability.368 This is made worse by the restrictive housing laws some states impose on people on the registry. In Georgia, for example, a registered sex offender may not “reside, be employed, or linger within 1000 feet of a school; child care facility; church; public or private park, recreation facility or playground; skating rink; neighborhood center; gymnasium; community swimming pool; or school bus stop.”369 Any violation of these restrictions is a felony punishable by ten to thirty years in prison.370 These types of restrictions “effectively bar registered sex offenders from residing in some high-density areas,” such as large towns or cities.371 When people convicted of sex offenses are evicted, they may be in violation of federal law unless they manage to register a change of address before an eviction occurs.372 Many states subject homeless 360 See id. See id. at 545. 362 See id. at 532. 363 See id. 364 See id. 365 See Catherine Wagner, Note, The Good Left Undone: How to Stop Sex Offender Laws from Causing Unnecessary Harm at the Expense of Effectiveness, 38 AM. J. CRIM. L. 263, 281 (2011). 366 See id. 367 See 34 U.S.C.A. § 20913 (West 2017); see also OFF. OF THE ATT’Y GEN., U.S. DEP’T OF JUST., THE NATIONAL GUIDELINES FOR SEX OFFENDER REGISTRATION AND NOTIFICATION (2007), at 30. 368 See Wagner, supra note 365, at 286. 369 Richard Tewksbury, Exile at Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 HARV. C.R.-C.L. L. REV. 531, 531 (2007). 370 See id. 371 Abigail E. Horn, Note, Wrongful Collateral Consequences, 87 GEO. WASH. L. REV. 315, 333 (2019). 372 See Wagner, supra note 365, at 282. 361 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 37 2-SEP-20 The Treatment-Industrial Complex 10:34 37 people on the registry to even more stringent reporting requirements, increasing the attendant risk of prosecution and incarceration.373 Some states also have extremely rigid vacation reporting requirements, mandating that sex offenders re-register after they have been gone from their home state for as few as five days.374 Each registration or re-registration costs money. In addition to registration and notification fees, other states require sex offenders to pay to submit DNA samples to state and federal databases.375 For example, Arkansas charges $250 for DNA processing, in addition to the $250 initial registration fee.376 On top of this, people who become eligible to remove their name from the sex offender registry may have to pay to do so. Utah, for example, imposes a fee to apply for the certificate permitting the removal of one’s name from the registry, and then a separate fee to actually issue the certificate.377 There is little reliable empirical evidence supporting claims that state sex offender registration laws are effective at reducing recidivism.378 In fact, the emerging consensus among experts is that registration laws may ultimately increase recidivism by “exacerbating the risk factors” of those subject to such constant regulation.379 All of these fees, either piecemeal or in total, can make it impossible for people who have been convicted of sex offenses and served their sentences to support themselves and stay out of jail or prison.380 To successfully rehabilitate people who have been convicted of sex offenses, states should try to limit the type and number of fees imposed on sex offenders after their release. 2. Post-Release Civil Commitment Approximately twenty states have civil commitment laws and facilities.381 People convicted of sex offenses in those states can sometimes be civilly confined even after completing their prison sentences, sometimes in- 373 See Elizabeth Esser-Stuart, The Irons Are Always in the Background: The Unconstitutionality of Sex Offender Post-Release Laws as Applied to the Homeless, 96 TEX. L. REV. 811, 816 (2018). 374 See Wagner, supra note 365, at 282. 375 See David A. Makin, Andrea M. Walker, & Christopher M. Campbell, Paying to Be Punished: A Statutory Analysis of Sex Offender Registration Fees, 37 CRIM. JUST. ETHICS 215, 227 (2018). 376 See id. 377 See Petition to Remove Name from Sex Offender and Kidnap Offender Registry (May 31, 2019), UTAH COURTS, https://www.utcourts.gov/howto/criminallaw/petition_registry_re moval.html, archived at https://perma.cc/455G-CDPT. 378 See J. J. Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism, 48 CONN. L. REV. 1035, 1039–40 (2016). 379 Id. at 1040. 380 See DiCharia, supra note 353, at 520, 522. 381 See A Profile of Civil Commitment Around the Country, N.Y. TIMES (Mar. 3, 2007), https://archive.nytimes.com/www.nytimes.com/imagepages/2007/03/03/us/20070304_CIVIL_ GRAPHIC.html?action=click&contentCollection=U.S.&module=RelatedCoverage&pgtype =article®ion=EndOfArticle, archived at https://perma.cc/69SH-Q2GQ. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 38 unknown Seq: 38 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 definitely, if they are deemed likely to recidivate.382 Although it is a form of long-term incarceration, the government classifies civil commitment as a “therapeutic,” rather than punitive, intervention.383 People confined in civil commitment tend to have indefinite sentences until state officials decide they have been rehabilitated.384 In theory, civil commitment aims to ensure sex offenders have access to treatment and are prepared for release.385 Civil commitment can cost the state almost four times more than confining someone in state prison.386 Accordingly, states have begun shifting the costs of detention onto the very people who are detained. Texas and Florida, for example, confiscate part of civilly committed people’s incomes.387 States have also begun using private corrections companies to help save money on the operation of civil commitment facilities and the provision of sex offender treatment. Private, for-profit prison companies have taken over publicly funded facilities that lie “somewhere at the intersection of incarceration and therapy.”388 In Texas, where individuals sentenced to civil commitment must shoulder some of the costs, their money is given directly to the privately run detention centers.389 For example, in 2015, Correct Care Solutions was awarded the management of the Texas-based Bill Clayton Detention Facility, which houses approximately 200 people civilly committed for sex offenses who have already served their prison sentences.390 The state gave Correct Care a $24 million contract to run the facility.391 Since the facility’s opening, only five men have been released, and four of them were instead sent to hospitals directly preceding their death.392 Although the purported function of the Civil Commitment Center is to rehabilitate individuals convicted of sex offenses, the residents receive few services in what is a for-profit prison in all but name, exiled to a remote location on the state’s outskirts, far away from most of their families.393 Like other facilities run by Correct Care, staff turnover is high and medical care is frequently delayed.394 Individual counseling sessions (re382 See Fuchs, supra note 237. Toshio Meronek & Erica R. Meiners, Beyond the Carceral Logic of Civil Commitment, THE NEXT SYSTEM (Nov. 10, 2017), https://thenextsystem.org/learn/stories/beyond-carcerallogic-civil-commitment, archived at https://perma.cc/T8GX-HA4Q. 384 See id. (Introduction). 385 See id. (Rushville). 386 See id. (Rushville). 387 See TEX. HEALTH AND SAFETY CODE ANN. art 11, § 841.047 (West 2017); FLA. STAT. § 394.928 (1999). 388 See Michael Barajas, A Prison by Any Other Name, TEX. OBSERVER (Feb. 12, 2018), https://www.texasobserver.org/a-prison-by-any-other-name/, archived at https://perma.cc/ SFR2-NRKK 389 See id. 390 See Graziani & Cole, supra note 17, at 10. 391 See Barajas, supra note 388. 392 See id. 393 See id. 394 See id. R 383 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 39 2-SEP-20 The Treatment-Industrial Complex 10:34 39 quired by the state) have been reduced from every two weeks to once every three months.395 The constant staff rotation means that it is very difficult to “graduate” from the program; the patient must start over from scratch with each new therapist.396 The facility does everything it can to extract extra cash from the residents. For example, any packages sent to residents must contain a receipt, so the facility may charge the sender one-third of its worth.397 Many residents must pay part of the cost of their ankle monitors, despite being held in a secure facility.398 Florida and South Carolina also have civil commitment centers run by Correct Care.399 Florida’s civil commitment center has been plagued by many of the same problems as Texas, with insufficient staffing, undertrained workers, and minimal treatment.400 Only about 15% of the residents complete the therapy treatment by the time they are released, obviating much of the point of the civil commitment, which is to provide therapy to prevent recidivism.401 Florida is the only state to have a private, for-profit company entirely in charge of their Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act.402 The full contract between Florida and Correct Care, which ran until 2014, paid the company a total of $272 million.403 Private, for-profit companies do not have a good track record in running civil commitment centers.404 In 2004, the safety director of a Florida civil commitment center managed by Liberty Healthcare Company erased video evidence after a resident jumped off the roof.405 The entire center was dramatically mismanaged, with high staff turnover, abusive behavior from staff and residents, crumbling facilities, and little rehabilitative treatment.406 All of this created a “cesspool of despair and depression and drug abuse.”407 395 See Weekend Read: They Served Their Prison Sentences, But They’re Still Locked Up, SOUTHERN POVERTY LAW CENTER (Feb. 16, 2018), https://www.splcenter.org/news/2018/02/ 16/weekend-read-they-served-their-prison-sentences-theyre-still-locked, archived at https://per ma.cc/8E6G-SZ6P. 396 See Barajas, supra note 388. 397 See id. 398 See id. 399 See id. 400 See Violent Sexual Predators Held Indefinitely - For a Profit, NBC2, (June 9, 2015), https://www.nbc-2.com/story/29230766/violent-sexual-predators-held-indefinitely-for-a-profit, archived at https://perma.cc/8XH9-Q45L. 401 See id. 402 See id. 403 See id. 404 See Barajas, supra note 388. 405 See David Sherfinski, Virginia Considers Two Jail Firms with Sketchy Pasts, WASH. TIMES (Apr. 30, 2012), https://www.washingtontimes.com/news/2012/apr/30/virginia-considers-2-jail-firms-with-sketchy-pasts/, archived at https://perma.cc/JK7Z-LUVR. 406 See Abby Goodnough and Monica Davey, A Record of Failure at Center for Sex Offenders, N.Y. TIMES (Mar. 5, 2007), https://www.nytimes.com/2007/03/05/us/05civil.html, archived at https://perma.cc/884W-G58A. 407 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 40 unknown Seq: 40 2-SEP-20 Harvard Civil Rights-Civil Liberties Law Review 10:34 [Vol. 55 Despite the myriad problems it had in Florida, Liberty Healthcare Company currently runs an Illinois civil commitment center called Rushville.408 As of May 2016, only eighty-three residents out of hundreds had been released from the program.409 The for-profit corrections industry also offers a variety of services to civil commitment centers. Massachusetts uses a private company, MHM Correctional Services, to run release evaluations for those incarcerated in its civil commitment center.410 Although these examiners are supposed to be appointed by the court, there is little oversight or transparency, and most evaluations are done by MHM.411 Like all other aspects of the treatment-industrial complex, criminal justice debt arising from civil commitment is most frequently levied by private corrections companies.412 The result is to further impoverish those individuals who are most vulnerable, imposing often unpayable amounts on them and their families. This relatively unexplored corner of alternative corrections can no longer be ignored. II. THE PROFIT MOTIVE: THE CORRECTIONS INDUSTRY, TAXATION & PRIVATE EQUITY The treatment-industrial complex, and the criminal legal debt it creates, are the result of public policy choices. States imposed fees and fines before the arrival of private corrections companies.413 Nonetheless, the astronomical increase of criminal justice debt in alternative corrections is linked to the parallel rise of for-profit prison behemoths. Thus, to fully understand how and why alternative corrections debt has grown, it is important to investigate the financial underpinnings of the companies that foster it. Throughout the criminal justice system, a handful of privately held companies—most notably GEO Group and CoreCivic—dominate the correctional-services market.414 These for-profit corrections companies are themselves funded by private-equity firms.415 There are almost 4,000 compa408 See Meronek & Meiners, supra note 383 (discussing Rushville Treatment and Detention Center). 409 See id. 410 See Christian M. Wade, Sex Offenders Examiners’ Oversight Questioned, THE SALEM NEWS (June 14, 2018), https://www.salemnews.com/news/local_news/sex-offender-examinersoversight-questioned/article_4b142ae8-8b65-5439-b967-cabbd3951fe8.html, archived at https://perma.cc/7CPU-AAKJ?type=image (explaining the role of the private company MHM Correctional Services Inc. in Massachusetts). 411 See id. 412 See Barajas, supra note 388. 413 See Appleman, Nickel and Dimed into Incarceration, supra note 14, at 1492–98, 1506–13. 414 See Tim Requarth, How Private Companies Are Turning Public Prisons into Big Profits, THE NATION, (Apr. 30, 2019), https://www.thenation.com/article/prison-privatization-private-equity-hig/, archived at https://perma.cc/8M7U-QCQX. 415 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 41 2-SEP-20 The Treatment-Industrial Complex 10:34 41 nies with a financial stake in the corrections industrial complex.416 Within the alternative corrections universe, the list includes well-known names like Amazon, Microsoft, and Hewlett-Packard.417 Many high-profile companies have their fingers in the alternative corrections pie.418 Some private corrections companies profit off the real estate used in the alternative corrections and treatment-industrial complex, as it is far easier to build and locate halfway houses, substance abuse treatment centers, and other alternative corrections facilities than private prisons and jails.419 Private corrections companies may also view alternative corrections as a way to maintain earnings if activists succeed in reducing mass incarceration, which may undercut profits from private prisons. Private corrections companies are thus repositioning themselves as providers of “evidence-based” re-entry services.420 The more people that are released from mass incarceration, the more private corrections companies can profit from their alternative corrections programs. Private equity enables the growth of private corrections companies. HIG Capital, for example, which manages over $30 billion in assets, has helped consolidate small corrections-industry companies into behemoths that dominate their markets, including alternative corrections.421 The role of private equity firms in helping broker “rollups”—i.e., bundling fragmented smaller corrections companies into national corrections behemoths—has transformed the correctional-services industry.422 A. REIT Structuring: Geo Group and CoreCivic Wall Street banks finance CoreCivic and GEO Group, the two primary multibillion-dollar private prison companies that dominate the alternative 416 See The Prison Industrial Complex: Mapping Private Sector Players, WORTH RISES 1 (Apr. 2019), https://static1.squarespace.com/static/58e127cb1b10e31ed45b20f4/t/5cc7c27b9e 3a8d00018649c5/1556595324791/The+Prison+Industrial+Complex+-+Mapping+Private +Sector+Players+-+2019.pdf, archived at https://perma.cc/39HB-VS3Z. 417 See id. at 4. 418 The list of companies includes Amazon, Equivant, Hexagon Safety, Microsoft, Northrop Grumman, Palantir, Tyler Technologies, Berkshire Hathaway, Bob Barker, Hewlett Packard, Ingersoll Rand, Stanley Black & Decker, Vista Outdoors, VF Corp., Keefe/Access Corrections, Citigroup, Securus/JPay, NIC, Global Tel Link/TouchPay, Western Union, WEX, 3M, Dauphin, Corrective Education Co., Houghton Mifflin Harcourt, Milliken & Co., MTC, and Pearson/Certiport. See id. at 4–6. 419 See, e.g., CoreCivic, Inc., Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (FORM 10-K), at 14 (Dec. 31, 2016), https://www.sec.gov/Archives/ edgar/data/1070985/000119312517053982/d310578d10k.htm#toc, archived at https://perma .cc/VCU9-ZUWK [hereinafter CoreCivic, Inc., FORM 10-K (2016)] (noting that CoreCivic has three categories of facilities: correctional, detention, and community corrections). 420 See Liliana Segura, The First Step Act Could Be a Gift to CoreCivic and the Private Prison Industry, THE INTERCEPT (Dec. 22, 2018), https://theintercept.com/2018/12/22/firststep-act-corecivic-private-prisons/, archived at https://perma.cc/E4UL-4Y8P. 421 See Requarth, supra note 414. 422 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 42 unknown Seq: 42 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 corrections arena.423 These multinational banks424 grant loans and extend other financing agreements that are key components in expanding the private alternative corrections industry.425 GEO Group and CoreCivic require debt financing both to fund their daily business and to expand.426 Each of these companies achieve debt financing through a combination of credit, loans, and bonds.427 GEO Group and CoreCivic both have agreements with multiple banks for revolving lines of credit, which allow them to borrow and repay funds at will, up to their credit limit.428 Private corrections companies also enter into term loan agreements, which permit them to borrow a certain amount from a combination of banks, to be repaid according to a determined schedule.429 Finally, banks underwrite the corporate bonds issued by private corrections companies, which are then purchased by private banks and resold on the secondary market.430 The banks receive millions of dollars in interest and fees in return.431 This kind of debt financing enables the private corrections industry’s continued growth.432 The for-profit corrections industry relies heavily on debt financing because the corrections companies are structured as real estate investment trusts (REITs).433 The REIT structure requires the companies to pass on income to investors, limiting available cash and forcing a reliance on borrowing.434 REITs are an investment vehicle created for companies investing in and obtaining revenue from real estate holdings, like hotel chains, and are traded on the stock market.435 To qualify as REITs, private corrections companies contend that renting cells and rooms to the government is similar to 423 See Shahrzad Habibi et al., 2019 Data Brief: The Wall Street Banks Still Financing Private Prisons, IN THE PUBLIC INTEREST (Apr. 5, 2019), http://www.inthepublicinterest.org/ wp-content/uploads/Updated-2019-Data-Brief-The-Wall-Street-Banks-Still-Financing-PrivatePrisons-FINAL-EMBARGOED-UNTIL-4-8-19-1030am.pdf, archived at https://perma.cc/ 9SWS-8C39. 424 Banks such as Fifth Third, Citizens, PNC, Pinnacle Bank, First Tennessee Bank, Synovus Bank, and NOUS Bank. See id. at 2. 425 See id. at 1. 426 See id. 427 See id. 428 See id. 429 See Habibi et al., supra note 423, at 3 430 See id. 431 See id. 432 See id. at 5. 433 See id. at 2. 434 See id. 435 See Matt Stroud, Why Would a Prison Corporation Restructure as a Real Estate Company?, FORBES (Jan. 31, 2013), https://www.forbes.com/sites/mattstroud/2013/01/31/whywould-a-prison-corporation-restructure-as-a-real-estate-company/#214bb67b6caa, archived at https://perma.cc/FBK8-TCBL. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 43 2-SEP-20 The Treatment-Industrial Complex 10:34 43 charging tenants rent, thus making the private corrections industry a real estate venture.436 By transforming their companies into entities called Taxable REIT Subsidiaries, the companies can separate the operational aspect of their corrections business from the real estate side of owning and generating income from buildings, such as correctional facilities, re-entry facilities, day-reporting centers, and halfway houses.437 When private prison and alternative corrections companies restructure as REITs, they can take advantage of significant REIT tax benefits.438 REITs generally pay no income tax and must distribute at least 90% of their income as shareholder dividends.439 The dividends can be distributed as a combination of cash and stock.440 For example, CoreCivic was subject to a 36% corporate tax rate before its conversion to an REIT in 2013. After the reorganization, it paid an effective tax rate of 3% in the first quarter of 2015.441 For-profit corrections companies structured as REITs have benefitted tremendously from the 2017 Trump tax law.442 The law cut taxes on investments in REITs by 25%, from 39.6% to 29.6%.443 Tax laws also encourage private corrections companies to build and lease their own facilities, rather than manage state or county facilities.444 This incentive aligns with the private corrections industry’s new interest in halfway houses, substance abuse treatment centers, and other alternative corrections facilities,445 which can be developed more easily than private prisons or jails. There is far less regulation and bureaucratic paperwork in building and running a single halfway house or treatment center than in building and managing a jail or prison.446 436 See Jamiles Lartey, Private Prison Investors Set for Giant Windfall from Trump Bill, GUARDIAN (Dec. 28, 2017), https://www.theguardian.com/us-news/2017/dec/28/private-prisons-investors-trump-tax-bill, archived at https://perma.cc/P4KN-KHFV. 437 See Stroud, supra note 435. REITs are complicated investment vehicles; “at least 95 percent of a REIT’s income ‘must be derived from “passive” financial investments . . . as opposed to “active” income from business activities,’ and ‘at least 75 percent of a REIT’s income must be derived from real estate sources . . .’ according to the IRS. Further, a REIT cannot have over 25 percent of its assets invested in non-qualifying securities or stock of taxable REIT subsidiaries.” Id. 438 See Lartey, supra note 436. 439 See id. 440 See id. 441 See LAUREN-BROOKE EISEN, INSIDE PRIVATE PRISONS: AN AMERICAN DILEMMA IN THE AGE OF MASS INCARCERATION 132 (2017). 442 See Lartey, supra note 436. 443 See id. 444 See Rob Urban & Kristy Westgard, It’s a Great Time to Be a Prison Landlord, Thanks to the IRS, BLOOMBERG (Aug. 9, 2018), https://www.bloomberg.com/news/articles/2018-0809/private-prison-companies-expand-empires-thanks-to-tax-advantages, archived at https://per ma.cc/3ZRB-XB88. 445 See, e.g., CoreCivic, Inc., FORM 10-K (2016), supra note 419, at 14. 446 See, e.g., Three-Quarter Houses: The View From the Inside, PRISONER REENTRY INSTITUTE (Oct. 2013), at v, vi, http://johnjaypri.org/wp-content/uploads/2016/04/PRI-TQH-Report .pdf, archived at https://perma.cc/9KZS-CQLW (pointing out how “no government agency oversees or regulates the programs”); Susan Martin, Felons, Drug Dealers Run Halfway Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 44 unknown Seq: 44 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 In 2018, CoreCivic realized earnings of $1.84 billion, an increase of $7 million from 2017.447 More than 90% of CoreCivic’s 2018 revenue resulted from its “safety” business—that is, its facilities for incarceration, detention, and alternative corrections.448 As of December 31, 2018, CoreCivic had an $800 million line of credit from a syndicate of major banks, and had borrowed $201 million under that line of credit.449 Similarly, as of December 31, 2018, GEO Group had a $900 million line of credit with a syndicate of banks, borrowing $490.8 million under this line of credit.450 Some politicians have criticized the ability of the private corrections industry to operate as REITs; both Senator Ron Wyden (D-Or.) and Representative Gregory Meeks (D-N.Y.) have introduced legislation to prevent private corrections companies from receiving REIT tax subsidies, but these bills have not yet passed either chamber of Congress.451 B. Pension Investments and Stock Holdings Private corrections companies are deeply involved in alternative corrections, and the industry has expanded its focus to cover all aspects of the criminal system. These companies often brand alternative corrections divisions differently, disguising their links to controversial for-profit prison conglomerates like GEO Group.452 Many investment and pension funds are invested in private corrections REITS, placing millions of dollars in holdings in these vehicles. Vanguard and Fidelity, the two leading investment companies in the United States, own significant stock in CoreCivic and GEO Group.453 Additionally, many Houses for Addicts, TAMPA BAY TIMES (Nov. 18, 2012), https://www.tampabay.com/news/ publicsafety/felons-drug-dealers-run-halfway-houses-for-addicts/1261881/, archived at https:// perma.cc/ED22-CSK6?type=image (noting that “[a]lmost anyone can open a halfway house in Florida because there’s almost no regulation or accountability”); Jenny Wagner, Recovery Road: The Road for Many Begins in Recovery Houses, BURLINGTON TIMES (Apr. 17, 2016), https://www.burlingtoncountytimes.com/article/20160417/NEWS/304179641, archived at https://perma.cc/8Z22-ZT7E (reporting that in New Jersey, there is no training, certification, third party oversight, or standards required to run recovery houses). 447 See John Egan, How One Private Prison REIT Is Trying to Diversify, NAT’L REAL ESTATE INVESTOR (Mar. 22, 2019), https://www.nreionline.com/reits/how-one-private-prisonreit-trying-diversify, archived at https://perma.cc/U4NC-22WV. 448 See id. 449 See Habibi et al., supra note 423, at 3. 450 See id. at 4. 451 See Urban & Westgard, supra note 444. 452 For example, GEO Group’s treatment and rehabilitation facility in Lancaster, California, is called “Antelope Valley Day Reporting Center”—the Geo Group connection is not advertised. See GEO GROUP, INC., ANTELOPE VALLEY DAY REPORTING CENTER, https://www .geogroup.com/FacilityDetail/FacilityID/252, archived at https://perma.cc/Y6DF-UPU4. Likewise, the “Aurora Day Reporting Center and Electronic Monitoring”, in Aurora, California has little to indicate to the outsider that Geo Group is the parent company. See GEO GROUP, INC., AURORA DAY REPORTING CENTER, https://www.geogroup.com/FacilityDetail/FacilityID/130, archived at https://perma.cc/5MYU-PXWJ. 453 See Morgan Simon, What Do Big Banks Have to Do with Family Detention? #FamiliesBelongTogether Explains, FORBES (Sept. 18, 2018), https://www.forbes.com/sites/ Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 45 2-SEP-20 The Treatment-Industrial Complex 10:34 45 passively-managed index funds, often incorporated into mutual funds or 401Ks, own stock in private corrections companies as well.454 On top of private investment, twenty-four states owned over $75 million in stock in private prison companies as of February 2019.455 The investors include state pension funds, teacher retirement funds, and public employee funds in states such as New York, Ohio, and California.456 Many universities hold stock in private corrections companies as well.457 Advocacy groups, including the American Federation of Teachers (AFT), have begun demanding that public pension funds divest from any holdings in private corrections companies.458 Specifically, AFT argues that investing in private prisons creates moral and political risks.459 AFT also argues that investment in private corrections companies carries financial risks, including the multiple lawsuits against major private prison companies filed every year and potential changes in state and federal law that would reduce mass incarceration.460 As a result of such pressure, the New Jersey Pension Fund, the Chicago Teachers Fund, and the California State Teachers’ Retirement System have all gotten rid of their direct holdings in private prisons.461 As of publication, Canada’s pension fund, the Canadian Pension Plan Investment Board, is under pressure to drop the private corrections companies from their investment portfolio, given the size of the investment ($6.1 morgansimon/2018/09/25/what-do-big-banks-have-to-do-with-family-detention-familiesbelongtogether-explains/#538e5bec2b6a, archived at https://perma.cc/PT9T-Z5Q8. 454 The top ten mutual funds holding CoreCivic stock include Vanguard REIT Index Fund, Vanguard Small Cap Index Fund, Vanguard Total Stock Market Index, Vanguard Small Cap Value Index Fund, Fidelity Japan Fidelity US REIT, Vanguard Extended Market Index Fund, the SPDR S&P Mid Cap 400 ETF Trust, and Fidelity Low Priced Stock Fund. See id. 455 See Liz Farmer, These Pension Funds Invest Millions in Private Prisons, GOVERNING (Feb. 8, 2019), https://www.governing.com/week-in-finance/gov-pension-funds-investing-millions-private-prisons.html, archived at https://perma.cc/RQB4-MERL. 456 See id. 457 See Sarah Brodsky, Investors Question Private Prison Holdings, IMPACT INVESTIGATING EXCHANGE (Apr. 11, 2019), https://www.impactinvestingexchange.com/investors-question-private-prison-holdings/, archived at https://perma.cc/32LK-8EZW. 458 See Private Prisons and Investment Risks, Part II: How Private Prisons Fuel Mass Incarceration, and How Public Pension Funds Are at Risk 3, AMERICAN FEDERATION OF TEACHERS (2019), https://www.aft.org/sites/default/files/private-prisons-invest-2019-part2.pdf, archived at https://perma.cc/LBG5-ZUDQ. 459 See id. at 8–9. 460 See id. at 9; Evie Fordham, $229 Billion California Teacher Retirement Program Cites ‘Human Rights’ Violations When Divesting from Private Prisons but Lists None, DAILY CALLER (Nov. 8, 2018), https://dailycaller.com/2018/11/08/california-state-teachers-retirement-system-divest/, archived at https://perma.cc/KFE4-3V82. 461 See Farmer, supra note 455. Various holders of state pensions argue that a pension fund’s foremost duty is to maximize wealth for its holders, not get caught up in political battles. Pension fund managers have a fiduciary responsibility to grow assets, something particularly important for underfunded state pension funds, which are often the only source of income for retirees. See Christopher Burnham, Politicization of CalSTRS Hurts Returns, Harms Retirees, San Francisco Chronicle (Nov. 6, 2018), https://www.sfchronicle.com/opinion/openforum/ article/Politicization-of-CalSTRS-hurts-returns-harms-13368391.php?psid=NCqn, archived at https://perma.cc/JDW5-NP84. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 46 unknown Seq: 46 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 million dollars in GEO Group and $1.65 million in CoreCivic).462 A few universities have also followed suit, divesting their stock holdings. In 2015, Columbia University sold its shares in CoreCivic and G4S after student outcry.463 But most universities, including Harvard and Princeton, have held onto their private corrections stock, resisting student pressure to divest.464 C. Federal Funds Approximately 19% of all federal prisoners are incarcerated in private prisons, run predominantly by GEO Group and CoreCivic.465 These two companies are also in the market of private federal alternative corrections, private federal probation supervision, and federal post-prison release, along with companies like Management & Training Corporation, Emerald Correctional Management, LCS Corrections Services, and Community Education Centers/CiviGenics.466 Moreover, approximately 70% of federal immigration detention camps are also run by private corrections companies; the most recent estimate was that private prison companies receive $800 million from the federal government for immigrant detention centers alone.467 But federal contracts are not the only way the federal government has encouraged the growth of the for-profit corrections industry. First, private corrections companies are exempt from taxpayer oversight because Congress has failed to pass legislation requiring federal disclosure of their processes.468 For example, since the Freedom of Information Act (FOIA) does not apply to private corrections companies, the public is unable to access any of their operations records.469 Without access to operational and personnel information, it is difficult to discover misconduct at private 462 See Leyland Cecco, Canada Pension Fund Investment into US Detention Firm Larger Than Reported, THE GUARDIAN (Dec. 3, 2018), https://www.theguardian.com/world/2018/dec/ 03/canada-pension-fund-investment-into-us-detention-firm-larger-than-reported, archived at https://perma.cc/CQW5-VU6X. 463 See Brodsky, supra note 457. 464 See id. 465 See The Private Prison Industry, Explained, THE WEEK (Aug. 6, 2018), https://theweek .com/articles/788226/private-prison-industry-explained, archived at https://perma.cc/S7Q4874F. 466 See CHRISTOPHER HARTLEY & CAROLINE GLESMANN, Nat’l Council on Crime & Delinquency, Prison Bed Profiteers: HOW CORPORATIONS ARE RESHAPING CRIMINAL JUSTICE IN THE U.S. 5 (May 2012). 467 See Spencer Ackerman & Adam Rawnsley, $800 Million of Taxpayer Money Went to Private Prisons Where Migrants Work for Pennies, THE DAILY BEAST (Dec. 27, 2018), https:// www.thedailybeast.com/dollar800-million-in-taxpayer-money-went-to-private-prisons-wheremigrants-work-for-pennies, archived at https://perma.cc/6LR3-42JF. 468 See Christina Fialho and Grisel Ruiz, Costly, Inefficient, and Unaccountable: The Case for Outlawing Private Prisons, FORBES (Sept. 19, 2016), https://www.forbes.com/sites/ashoka/ 2016/09/19/the-case-for-outlawing-for-profit-prisons/#3db2d6f31dad, archived at https://per ma.cc/MT6J-7A9R. 469 See id. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 47 2-SEP-20 The Treatment-Industrial Complex 10:34 47 corrections companies.470 Indeed, “the private prison industry operates in secrecy while being funded almost entirely with public taxpayer money.”471 Privatized alternative corrections facilities operate with an almost complete lack of transparency, as they are not subject to the kind of oversight required of state and federal prisons.472 No transparency means little, if any, accountability. The federal government’s limited regulation of money in politics allows private corrections companies to buy influence over policymaking. Through campaign contributions and lobbying, private corrections companies can distort criminal justice policy to blunt activist attacks on mass incarceration.473 For example, in 2015 and 2016, private corrections companies donated $2.75 million to lobby against President Obama’s effort to withdraw from private federal prisons.474 Like the private prison industry, the for-profit alternative corrections industry also makes major political contributions to federal lawmakers. Campaign contributions allow these companies to wield considerable power in Congress, developing and maintaining relationships that help in obtaining the contracts for federal prisons, probation programs, and halfway houses.475 In the 2018 election cycle, private corrections companies donated almost $1.2 million to members of Congress alone.476 The private corrections industry also spent $3.8 million on federal lobbying and $1.9 million on campaign contributions in the 2018 campaign cycle.477 This monetary support has policy consequences. For example, the First Step Act, which became law on December 21, 2018,478 garnered strong support from both GEO Group and CoreCivic.479 The First Step Act enacted 470 See Mike Tartaglia, Private Prisons, Private Records, 94 B.U. L. REV. 1689, 1694 (2014). 471 See Liliana Segura, With 2.3 Million People Incarcerated in the US, Prisons Are Big Business, THE NATION (Oct. 1, 2013), https://www.thenation.com/article/prison-profiteers/, archived at https://perma.cc/5G9C-J75L. 472 See id. 473 See HARTLEY & GLESMANN, supra note 466, at 13–14. 474 See Sara Swann, For-Profit Prisons: Background, OPEN SECRETS (May 2017), https:// www.opensecrets.org/industries/background.php?cycle=2018&ind=G7000, archived at https://perma.cc/2T6K-WX2K. 475 See Hartley & Glesmann, supra note 466, at 13. 476 For Profit Prisons: Long Term Contribution Trends, OPEN SECRETS (Feb. 1, 2019), https://www.opensecrets.org/industries/totals.php?cycle=All&ind=G7000, archived at https:// perma.cc/R4BY-3WF8. 477 See Sue Sturgis, As Bankers Back Away, For-Profit Prison Companies Step Up Political Spending, FACING SOUTH (Mar. 8, 2019), https://www.facingsouth.org/2019/03/bankersback-away-profit-prison-companies-step-political-spending, archived at https://perma.cc/ WD6U-RL5U. 478 See Van Jones & Jessica Jackson, Ten Reasons to Celebrate the First Step Act, CNN (Dec. 21, 2018), https://www.cnn.com/2018/12/21/opinions/ten-reasons-to-celebrate-first-stepact-jones-and-jackson/index.html, archived at https://perma.cc/U6C9-G7L2. 479 See Karl Evers-Hillstrom, For-Profit Prisons Strongly Approve of Bipartisan Criminal Justice Reform Bill, Open Secrets, December 20, 2018, https://www.opensecrets.org/news/ 2018/12/for-profit-prisons-approve-of-bipartisan-criminal-justice-reform/, archived at https:// perma.cc/WC3T-JVDY. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 48 unknown Seq: 48 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 several sentencing reforms, including retroactively reducing the federal crack-cocaine disparity, permitting federal judges more discretion at sentencing, and eliminating the “three strike rule.”480 The Act’s stated purpose is to “to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison.”481 Putting the First Step Act into motion, however, will require quite a bit of infrastructure.482 This provides a new business opportunity for private corrections companies, which have been rapidly expanding into alternative corrections and re-entry services.483 For example, the First Step Act encourages contracting with for-profit companies for post-prison services,484 in part by making way for both privatized in-prison programming and electronic monitoring.485 Additionally, the First Step Act requires a $375 million expansion of post-prison services for convicted individuals re-entering society, something upon which companies like CoreCivic and GEO Group are ready to capitalize.486 Nimble private corrections companies such as CoreCivic and GEO Group can and do adapt easily to changes in the legal, tax, and regulatory landscape. Using private-sector corrections companies might “pervert prison reform into a neoliberal variation of convict leasing, in which industry and state collude to ‘redeem’ society’s undesirables.”487 III. SOLUTIONS AND SAFEGUARDS Private, for-profit companies are deeply embedded in the American criminal legal system. Accordingly, this Article identifies short-term ways to regulate, control, and limit the work of private corrections companies in the alternative corrections sphere, particularly in their imposition of criminal justice debt. This Part provides an overview of potential solutions and strategies to safeguard defendants caught in the web of criminal justice debt and for-profit corrections, including controlling criminal justice debt, divesting from the private corrections industry, increasing transparency, promoting public watchdogs, improving media access to alterative corrections sites, en480 See id. H.R. Cong. Res. 5682, 115th Cong. (2018). See Segura, supra note 420. 483 See id. 484 See Steve Cortorno, Why is a Florida For-Profit Prison Company Backing Bipartisan Criminal Justice Reform?, TAMPA BAY TIMES (Dec. 7, 2018), https://www.tampabay.com/florida-politics/buzz/2018/12/07/why-is-a-florida-for-profit-prison-company-backing-bipartisancriminal-justice-reform, archived at https://perma.cc/VR97-HELJ. 485 See Peniel Ibe, The Problems with the First Step Act, AM. FRIENDS SERV. COMM. (Dec. 14, 2018), https://www.afsc.org/blogs/news-and-commentary/first-step, archived at https://per ma.cc/J3GD-9X4F. 486 See Cortorno, supra note 484. 487 Michelle Chen, How Prison Reform Could Turn the Prison-Industrial Complex into the Treatment-Industrial Complex, THE NATION (Nov. 20, 2015), https://www.thenation.com/article/how-prison-reform-could-turn-the-prison-industrial-complex-into-the-treatment-industrialcomplex, archived at https://perma.cc/F6YK-MY3L. 481 482 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 49 2-SEP-20 The Treatment-Industrial Complex 10:34 49 forcing punitive fines on companies that break the law, returning decisions about probation violations to courts, and reforming tax structures to prevent corrections companies from organizing as REITs. Although these short- and medium-term reforms are important, the ultimate solution is to fully abolish for-profit actors in the criminal legal system. This type of exploitative industry, driven primarily by profit, should have no place in our justice system. A. Controlling Criminal Justice Debt People caught in the criminal legal system may face fines, fees, and surcharges at every stage of the criminal process.488 Debt from alternative corrections is most frequently imposed on people of color who are disproportionately criminalized, and people with low incomes who often struggle to make payments.489 To reduce the harms of the criminal legal system, states should take a number of steps to limit the criminal justice debt imposed on low-income communities of color. First, states should exempt indigent individuals from alternative corrections fees,490 including probation, drug and alcohol testing, electronic monitoring, and any other payments commonly exacted from defendants, whether collected by the state or private companies. In addition, municipalities, counties, and states should adopt specific written standards for judging a defendant’s ability to pay and should grant waivers to those who receive public benefits or have incomes below the federal poverty line.491 Second, individuals should no longer be forced to work in “rehabilitative” labor camps that require labor in dangerous factories or work conditions for no pay. Third, all states and counties should ensure that no diversion programs are run for profit. As discussed in Part I, diversion programs risk becoming an alternative to incarceration only for people with the wealth to pay the excessive fees imposed by for-profit diversion programs, while defendants who cannot afford the fees must accept a conviction and often jail time. We cannot have a system in which only people with money can afford a second chance.492 For-profit diversion programs are especially unfair because fees are hardly ever waived for indigent defendants.493 488 See ALICIA BANNON, MITALI NAGRECHA, & REBEKAH DILLER, BRENNAN CTR., CRIMIJUSTICE DEBT: A BARRIER TO REENTRY 4 (2010), http://www.brennancenter.org/sites/ default/files/legacy/Fees%20and%20Fines%20FINAL.pdf, archived at https://perma.cc/ RTW7-H396. 489 Id. at 9. 490 See id. at 32. 491 See id. 492 See Shaila Dewan & Andrew W. Lehran, After a Crime, the Price of a Second Chance, N.Y. TIMES (Dec. 12, 2016), https://www.nytimes.com/2016/12/12/us/crime-criminal-justicereform-diversion.html, archived at https://perma.cc/5Y5R-J4T6. 493 See id. NAL Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 50 unknown Seq: 50 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 Additionally, states should pay the costs of complicated civil registration and treatment requirements for defendants convicted of sex offenses. Placing the burden of an endless array of registration fees, treatment fees, polygraph fees, monitoring fees, and other repeated, required payments on individuals who may not have the ability to pay achieves little in either community safety or general deterrence. Rather than promoting community safety in the long term, debt from alternative corrections and aggressive collection practices creates barriers to successful community reintegration after any formal punishment has ceased.494 Indeed, “the widespread practice in American law is to impose economic penalties with uncertain chances of collection and with insufficient concern for their long-term impact on defendant reintegration, recidivism, and public safety.”495 The burden of alternative corrections debt is compounded by the seemingly never-ending statute of limitations. In many places, a court’s jurisdiction to collect and enforce nonpayment of the debt may last for decades or even a lifetime, long after the person was last charged, convicted of an offense, or completed her rehabilitation or probation.496 To truly reintegrate individuals back into the community after conviction and release, we must free them from the shackles of alternative corrections debt. B. Divestment One way to limit the role of private alternative corrections is to pressure financial entities to divest from the private corrections industry. Protesters have already successfully pushed lenders and pension holders to abandon private prison companies and refuse to provide financing for new facilities.497 Recently, several major banks have divested from the private corrections industry, including JPMorgan Chase, Wells Fargo, PNC, Barclays,498 U.S. Bank,499 SunTrust Banks/BBT,500 BNP Paribas,501 and Bank of 494 See Jessica M. Eaglin, Improving Economic Sanctions in the States, 99 MINN. L. REV. 1837, 1838 (2015). 495 Kevin R. Reitz, The Economic Rehabilitation of Offenders: Recommendations of the Model Penal Code (Second), 99 MINN. L. REV. 1735, 1739 (2015). 496 See Nick Allen, Alex Kornya & Rhona Taylor, Tackling Criminal Justice Debt, CLEARINGHOUSE COMMUNITY (May 2017), https://www.povertylaw.org/clearinghouse/article/ tacklingdebt, archived at https://perma.cc/B4R4-YX4S. 497 See id. 498 See Renae Merle, Wall Street pulled its financing. Stocks have plummeted. But private prisons still thrive., WASH. POST (Oct. 3, 2019), https://www.washingtonpost.com/business/ 2019/10/03/wall-street-pulled-its-financing-stocks-have-plummeted-private-prisons-stillthrive/, archived at https://perma.cc/R4Z2-FWXM. 499 See Private Prison Companies on the Ropes Following Banks’ Withdrawal Announcements, PRISON INDUSTRY DIVESTMENT MOVEMENT (Mar. 14, 2019), https://prisondivest.com/ 2019/03/14/private-prison-companies-on-the-ropes-following-banks-withdrawal-announcements, archived at https://perma.cc/74DV-NAV8. Electronic copy available at: https://ssrn.com/abstract=3719390 \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 51 2-SEP-20 The Treatment-Industrial Complex 10:34 51 America.502 As a result of such scrutiny, GEO Group and CoreCivic shares have come under immense pressure.503 CoreCivic’s stock price dropped approximately 8% and GEO Group’s declined about 15%.504 Each stock plunged more than 10% in July 2019 alone.505 Pressure to divest from GEO Group and CoreCivic intensified last year after activists targeted the companies for running immigrant detention centers.506 Outrage over President Trump’s immigration policy has increased pressure on Wall Street to drop financial support for private companies working with ICE to detain noncitizens.507 Divestment is especially effective in combatting the private corrections industry because these companies are organized as REITs and therefore depend heavily on debt structuring.508 The way REITs are structured means they generally have very little cash on hand, and the companies must go to the banks any time they wish to grow their businesses.509 As fewer banks are willing to provide loans, borrowing has become more expensive, and the REIT structure will be more difficult to maintain.510 New York State has been on the front lines of private prison divestment. Not only has New York forbidden private prisons from operating within the state, it has also divested state pension funds away from GEO Group and CoreCivic. In addition, the New York State Senate passed Bill S5433 in June 2019,511 prohibiting New York State-chartered banks from 500 See Paul R. La Monica, Suntrust Is the Latest Bank to Stop Lending to Detention Centers, CNN BUSINESS (July 8, 2019), https://www.cnn.com/2019/07/08/investing/suntrustbanks-migrant-detention-centers/index.html, archived at https://perma.cc/7LB8-9JBM. 501 See Phil Serafino, BNP Paribas Plans to End Financing of Private Prisons, BLOOMBERG (July 13, 2019), https://www.bloomberg.com/news/articles/2019-07-13/bnp-paribasplans-to-end-financing-of-private-prison-operators, archived at https://perma.cc/W7R6VNAN. 502 See Lananh Nguyen, Bank of America Will Stop Lending to Private Prison Firms, BLOOMBERG (June 26, 2019), https://www.bloomberg.com/news/articles/2019-06-26/bank-ofamerica-will-stop-lending-to-private-prison-companies, archived at https://perma.cc/P3QFAA9L. 503 See La Monica, supra note 500. 504 See Private Prison Companies on the Ropes, supra note 499. 505 See La Monica, supra note 500. 506 See Arvind Dilawar, Anti-ICE Activists Target PNC Bank for Funding Private Detention Centers, PAC. STANDARD MAG. (July 17, 2019), https://psmag.com/social-justice/anti-iceactivists-target-pnc-bank-for-funding-private-detention-centers, archived at https://perma.cc/ HCU9-3RDW; see also Jeremy Redmon, Georgia’s Largest Bank to Sever Ties With Private Prison Industry, ATL. J. CONST. (July 8, 2019), https://www.ajc.com/news/breaking-news/ georgia-largest-bank-sever-ties-with-private-prison-industry/iPYNleDfLy7vM1qWq5lpoK, archived at https://perma.cc/VB2Z-AJPT. 507 See Redmon, supra note 506. 508 See Private Prison Companies on the Ropes, supra note 499. 509 See Madison Pauly, The Private Prison Industry Just Suffered a Major Blow. And It Could Just Be the Beginning, MOTHER JONES (Mar. 7, 2019), https://www.motherjones.com/ crime-justice/2019/03/jp-morgan-chase-divestment-private-prisons-lauren-brooke-eisen, archived at https://perma.cc/2YF2-JAWJ. 510 See Private Prison Companies on the Ropes, supra note 499. 511 See Morgan Simon, New York Could Become First State to Be Completely Done with Private Prisons, FORBES (June 18, 2019), https://www.forbes.com/sites/morgansimon/2019/06/ Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 52 unknown Seq: 52 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 “investing in and providing financing for private prisons.”512 This prohibition would also apply to foreign banks.513 If this bill becomes law, it could have a significant impact on private correction company financing, starving the companies of capital.514 Because the companies running private prisons and private alternative corrections are frequently one and the same, this should significantly chill the work of private alternative corrections in New York State. There has also been recent movement in Congress to scrutinize the role of major banks investing in the private prison industry, with calls for oversight hearings515 and discussions of divesting altogether from private corrections companies.516 Additionally, Representative Alexandria OcasioCortez (D-N.Y.) has vowed to use her seat on the Financial Services Committee to oversee private corrections companies.517 Because the private corrections companies running the alternative corrections industry are the very same ones maintaining private prisons and detention centers, divesting from these companies kills two birds with one stone. American citizens have collectively invested millions of dollars in private corrections companies.518 Public worker funds have invested at least $67 million in GEO Group and CoreCivic, according to filings from the first quarter of 2019.519 Divestment could thus have a big impact. Nonetheless, these companies are in little danger of going out of business any time soon.520 Several banks facing pressure to divest from private prison companies, including Regions, Citizens, Pinnacle, First Tennessee, and Synovus, have not publicly committed to divestment.521 Even with the abovementioned banks’ divestment, Wall Street banks still provide a total of $2.692 billion in credit arrangements.522 In addition, banks that have publicly said they would no longer finance private prison firms are not keeping their commitments equally: Bank of America extended an additional $90 million 18/new-york-to-become-first-state-to-be-completely-done-with-private-prisons, archived at https://perma.cc/WHQ7-TXX. 512 S. 5433A, 2019–20 Leg., Reg. Sess. (N.Y. 2019). 513 See Simon, First State, supra note 511. 514 See id. 515 See Pauly, supra note 509. 516 See Austin Weinstein, Maxine Waters Has a Plan to Get What She Wants from Wall Street, BLOOMBERG (May 6, 2019), https://www.bloomberg.com/news/articles/2019-05-06/ maxine-waters-has-a-plan-to-get-what-she-wants-from-wall-street, archived at https://perma .cc/TV8C-U2W4. 517 See Colin Wilhelm, Waters, Ocasio-Cortez, and Democrats Prepare to Push Financial Services Committee into Social Issues, WASH. EXAMINER (Jan. 17, 2019), https://www.washingtonexaminer.com/policy/economy/waters-ocasio-cortez-and-democrats-prepare-to-push-financial-services-committee-into-social-issues, archived at https://perma.cc/6GZH-9QXR. 518 See Max Siegelbaum, Millions in U.S. Taxpayers’ Money Invested in Private Prison Firms, THE GUARDIAN (July 11, 2019), https://www.theguardian.com/us-news/2019/jul/11/private-prison-firms-profiting-trump-immigration-policy, archived at https://perma.cc/4H4AJV6D. 519 See id. 520 See Merle, supra note 498. 521 Id. 522 See Habibi et al., supra note 423, at 2. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 53 2-SEP-20 The Treatment-Industrial Complex 10:34 53 revolving credit line to GEO Group shortly before announcing that it would stop offering new financing.523 Likewise, university pension funds and general retirement account holders may not even be aware of their funds’ investment in private corrections companies.524 The majority of U.S. universities have resisted calls from students to divest from private corrections holdings, and the universities that have divested only held a small amount of private corrections company stock.525 Although a few universities have divested approximately $10 million in holdings, this is a minor amount for a $5 billion industry.526 The highest-impact blow to the for-profit corrections industry would be if money management funds such as the Vanguard Group, the country’s second-largest management firm, renounced their interests.527 Today, Vanguard owns approximately 12% of GEO Group stocks and 9% of CoreCivic.528 The best outcome to hope for is that the current divestment by banks and universities has a domino effect, spurring a wholesale condemnation of the private corrections industry.529 C. Transparency For the most part, private, for-profit companies can continue to run alternative corrections with little oversight and accountability. All fifty states, as well as the District of Columbia, have open records laws.530 However, unless private contractors are specifically included in the statutory language, entities run by private corrections companies are generally not subject to state open access records laws.531 Aside from a few states, such as Connecti- 523 See Rachel Ensign, Bank of America Cut Off Private Prisons Weeks After Lending to One, WALL ST. JOURNAL (July 2, 2019), https://www.wsj.com/articles/bank-of-america-cutoff-private-prisons-weeks-after-lending-to-one-11562059804, archived at https://perma.cc/ Y4JY-DJKH. 524 Rich Duprey, Are There Private Prison Stocks in Your Portfolio You Don’t Know About?, MOTLEY FOOL (Oct. 16, 2016, 10:01 AM), https://www.fool.com/investing/2016/10/ 16/are-there-private-prison-stocks-in-your-portfolio.aspx, archived at https://perma.cc/SD7BQUBS. 525 See Haimy Assefa, An Uphill Battle’: Harvard Students Urge School to Pull Investments That Support Prisons, NBC NEWS (Sep. 3, 2019), https://www.nbcnews.com/news/usnews/uphill-battle-harvard-students-urge-school-pull-investments-support-prisons-n1038686, archived at https://perma.cc/P4YQ-ME9X. 526 See Lauren-Brooke Eisen, What’s the Best Way to Hold Private Prisons to Account?, BRENNAN CTR., (Dec. 13, 2017), https://www.brennancenter.org/blog/what-best-way-hold-private-prisons-account, archived at https://perma.cc/B5C2-9FLR. 527 See id. 528 Id. 529 See Pauly, supra note 509. 530 See CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PRIVATE PRISONS: BASTIONS OF SECRECY 19 (2012). 531 See Chung Kao, Transparency Lacking in Private Prisons, SAN QUENTIN NEWS (Oct. 29, 2014), https://sanquentinnews.com/transparency-lacking-private-prisons, archived at https://perma.cc/M5PP-U3HX. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 54 unknown Seq: 54 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 cut,532 Florida,533 Tennessee,534 and South Carolina,535 where legislation extends public records disclosures to private corporations taking government money, FOIA requests are largely inapplicable to private corrections companies and their operations.536 Indeed, in 2006, Georgia passed a state statute making “all reports, files, records, and papers of whatever kind relative to the supervision of probationers by a private corporation” a confidential state secret.537 In response to the lack of transparency in private corrections, Representative Sheila Jackson (D-Tex.) introduced H.R. 1980, the Private Prison Information Act of 2017 (PPIA).538 PPIA would require greater transparency and FOIA access to the dealings of private prison companies.539 Under PPIA, a record relating to any prison, correctional, or detention facility that incarcerates federal prisoners would be subject to FOIA.540 The bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, where it remained as of the end of 2019.541 In 2017, Senator Ben Cardin (D-Md.) introduced S. 1728, which would likewise require federal for-profit prisons to hew to the same disclosure requirements as publicly run federal facilities.542 Specifically, S. 1728 would apply Freedom of Information statutes to private companies that manage prisons,543 opening the door to records of all sorts of alternative corrections practices. This bill was referred to the Senate Committee on the Judiciary, and then failed on December 31, 2018.544 Several lawsuits have attempted to force private corrections companies to disclose records. In Vermont, Tennessee, and Texas, the ACLU and Prison Legal News brought lawsuits against CCA (now a part of CoreCivic) to 532 CONN. GEN. STAT. § 1-200(1)(C) (2018) (defining agency, for the purpose of public records disclosure, as “any implementing agency”); CONN. GEN. STAT. § 32-222(k) (2015) (defining an implementing agency as any entity “designated and authorized by a municipality to undertake a project”). 533 FLA. STAT. § 119.011(2) (2013) (covering any “public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency”). 534 TENN. CODE § 10-7-503(6) (2015) (“A governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity.”). 535 S.C. CODE ANN. § 30-4-20(a) (1976) (stating that a body “supported in whole or in part by public funds or expending public funds” is subject to the Act). 536 See Lauren-Brooke Eisen, Private Prisons Lock Up Thousands of Americans With Almost No Oversight, BRENNAN CTR. (Nov. 8, 2017), https://www.brennancenter.org/our-work/ analysis-opinion/private-prisons-lock-thousands-americans-almost-no-oversight, archived at https://perma.cc/HCK6-DBLF [hereinafter Eisen, No Oversight]. 537 GA. CODE ANN. § 42-8-109.2 (2010). 538 See H.R. 1980, PRIVATE PRISON INFORMATION ACT OF 2017, 115th Congress. 539 See id. 540 See id. 541 See id; Eisen, No Oversight, supra note 536. 542 See Beryl Lipton, Senate Bill 1728 Would Make Private Prisons Subject to Freedom of Information Act, MUCKROCK (Aug. 7, 2017), https://www.muckrock.com/news/archives/2017/ aug/07/senate-bill-1728-private-prison-foia/, archived at https://perma.cc/TP5M-LW5J. 543 S. 1728, PRIVATE PRISON INFORMATION ACT OF 2017, 115th Congress. 544 Id. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 55 2-SEP-20 The Treatment-Industrial Complex 10:34 55 force it to release its records under the states’ open records laws. The Vermont case settled, with CCA agreeing to release records of lawsuits filed against it by the state’s inmates.545 Tennessee’s Court of Appeals ultimately ruled that CCA was required to produce documents under the state records law because it was the functional equivalent of a government agency.546 Lawsuits reached similar results in Texas547 and Louisiana.548 Private corrections companies’ widespread refusal to share information creates barriers to justice for those caught up in the system of privatized alternative corrections. Defendants, public defenders, and civil rights attorneys rarely have a right to information about the for-profit operations.549 This lack of transparency continues to bolster the frequent mismanagement, neglect, and other types of abuse in private, for-profit alternative corrections facilities.550 Moreover, the privatizing of the vast alternative corrections industry has negated any public accountability. The need for more transparency also applies to state alternative corrections, where most of the business for private corrections companies lies.551 Only a few states, such as California, require for-profit corrections companies to hand over their operational data. California enacted the Public Records Act in 1968 to support transparency and accountability and to proclaim that secrecy and democracy were incompatible.552 California takes the public right to access records so seriously that in 2004, the right was incorporated into California’s state constitution.553 California courts have interpreted this provision to require broad disclosure, allowing only narrow privacy exemptions.554 545 See Elizabeth Hewitt, Legal settlement extends public records laws to out-of-state prison contractor, VT. DIGGER, Nov. 5, 2015, https://vtdigger.org/2015/11/05/legal-settlementextends-public-records-laws-to-out-of-state-prison-contractor/, archived at https://perma.cc/ G62V-8KAH. 546 See CITIZENS FOR RESPONSIBILITY AND ETHICS, supra note 530, at 17. 547 See Private Prison Must Provide Information, COURTHOUSE NEWS SERVICE (Mar. 20, 2014), https://www.courthousenews.com/Private-Prison-Must-Provide-Information/, archived at https://perma.cc/W8HR-5U3U. 548 See Fritz Esker, MacArthur Justice Center Settles Public Records Lawsuit with Private Prison, LA. WKLY. (Aug. 17, 2017), http://www.louisianaweekly.com/macarthur-justicecenter-settles-public-records-lawsuit-with-private-prison/, archived at https://perma.cc/6D5YDGFJ. 549 See Eisen, No Oversight, supra note 536. 550 See id. 551 See Caroline Isaacs, Community Cages: Profitizing Community Corrections and Alternatives to Incarceration, AMERICAN FRIENDS SERVICE COMMITTEE 5 (Aug. 2016), https://afscarizona.files.wordpress.com/2016/08/communitycages.pdf, archived at https://perma.cc/ KA4C-KC9H. 552 See Zoe Loftus-Farren, A Battle Over California’s Public Records Law, Undark (Apr. 15, 2019), https://undark.org/article/battle-public-records-california/, archived at https://perma .cc/87T4-FFFE. 553 See CAL. CONST. art. I, § 3. 554 See LEAGUE OF CALIFORNIA CITIES, THE PEOPLE’S BUSINESS: A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT 6 (2017), https://www.cacities.org/Resources/Open-Government/THE-PEOPLE%E2%80%99S-BUSINESS-A-Guide-to-the-California-Pu.aspx, archived at https://perma.cc/NF8J-7PE6. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 56 unknown Seq: 56 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 In Florida, similarly, citizens have a statutory right to request and view Florida’s public records using the state’s Public Records Act: “All state, county, and municipal records are open for personal inspection and copying by any person.”555 Florida residents are entitled to review the records of all state, county, or municipal units of government, as well as any other public or private entity acting on behalf of one of these agencies.556 This means that any private, for-profit corrections company running an alternative corrections program or entity is subject to Florida’s public records act.557 States should be encouraged to interpret their current open records laws to require any private corrections entities to provide records since they are functional equivalents of a state or local agency. Private prison corporations should have to abide by the same disclosure requirements as government-run prisons, detention centers, and alternative corrections.558 Alternatively, separate legislation should require any private criminal justice entities, for-profit or non-profit, to provide any records requested under an open access policy. D. Public Watchdogs Both state and federal governments should require outside, independent monitors to drop in unannounced at all privately-run corrections facilities, including prisons, jails, private probation firms, halfway houses, work camps, detention facilities for sex offenders, and forensic mental health hospitals.559 An oversight corrections commission could help regulate and safeguard private prisons, jails, and private alternative corrections.560 By granting an independent entity broad and unhindered access to private facilities and programs, correctional personnel, defendants, and any data about these conditions and procedures, a more accurate view may emerge about their operations. Public watchdogs have received increasing attention in recent years. The American Bar Association (ABA) endorsed oversight corrections commissions in 2010, urging states, the federal government, and counties to “establish public entities that are independent of any correctional agency to regularly monitor and report publicly on the conditions in all prisons, jails, and other adult and juvenile correctional and detention facilities operating 555 FLA. STAT. § 119.01(1) (2005). See id. § 119.011(2). 557 Georgia has an Open Records Act very similar to Florida’s, allowing access to the records of state, county, and municipal government entities, private entities that are performing a service for public agencies, and nonprofit organizations that receive more than one-third of their funding from tax funds. See GA. CODE ANN. §§ 50-18-70, 50-14-1 (2012). 558 See Eisen, No Oversight, supra note 536. 559 See id. 560 For an in-depth discussion of an oversight corrections commission, see Appleman, Cashing in on Convicts, supra note 44, at 612–20. 556 Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 57 2-SEP-20 The Treatment-Industrial Complex 10:34 57 within their jurisdiction.”561 In addition, the ABA Section on Criminal Justice recently called for independent public entities to monitor and publicly report on conditions in both public and private prisons, jails, and other correctional and detention facilities for both adults and juveniles in their jurisdictions.562 Senator Elizabeth Warren, while seeking the Democratic nomination for president, called for an independent monitor for private corrections, including privatized alternative corrections, in a campaign platform.563 Senator Warren proposed appointing an independent Prison Conditions Monitor inside the Department of Justice, whose job would be to ensure enforceable quality standards, regularly audit and investigate contractors, and terminate their contracts if they fall short.564 Public watchdogs, whether independent or government-based, should be combined with random, surprise assessments of conditions by either independent watchdogs or a state Attorney General’s civil rights division, to ensure accurate observations from these for-profit corrections entities. Public watchdog investigations would help provide both transparency and accountability from the alternative corrections branch of the private corrections industry. E. Media Access Media should have automatic access to all private corrections entities, including alternative corrections.565 Journalists should be able to take tours, speak to incarcerated people, people on probation, and people detained by the treatment industrial complex, and observe the conditions of confinement.566 By their very nature, alternative corrections entities are almost entirely closed to the media.567 Federal, state, and local policies and practices generally make it difficult for journalists to report on prisons, jails, and other 561 See Criminal Justice Section, Report to the House of Delegates, AMERICAN BAR ASSO(Aug. 2008), http://www.americanbar.org/content/dam/aba/publishing/criminal_jus tice_section_newsletter/crimjust_policy_am08104b.authcheckdam.pdf, archived at https://per ma.cc/K5RW-CZ3D. 562 See Criminal Justice Section, Standards on Treatment of Prisoners, 23-11.2, External Regulation and Investigation, AMERICAN BAR ASSOCIATION (Dec. 5, 2018), https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/ crimjust_standards_treatmentprisoners/#23-11.3, archived at https://perma.cc/YZM6-3GEB. 563 See Elizabeth Warren, Ending Private Prisons and Exploitation for Profit, MEDIUM (June 21, 2019) https://medium.com/@teamwarren/ending-private-prisons-and-exploitationfor-profit-cb6dea67e913, archived at https://perma.cc/THL7-UPTU. 564 See id. 565 However, people incarcerated in such entities must still be able to maintain their privacy. 566 See Eisen, No Oversight, supra note 536. 567 See Jessica Pupovac, FOI Toolbox, QUILL (Aug. 7, 2012), https://www.quillmag.com/ 2012/08/07/foi-toolbox-31/, archived at https://perma.cc/MD7N-XQL6. CIATION Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 58 unknown Seq: 58 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 criminal justice facilities.568 As a result, press access to correctional facilities is a chronic problem. Media access rules vary from state to state, and can be based on such varied sources as legislation, administrative regulation, individual cases, or some combination.569 Different states have different baselines for journalist entry, with some states generally allowing access and other states having a baseline of media denial.570 California, for example, has one of the most restrictive media access policies of any state.571 Spurious security concerns or fear of negative publicity often ends up blocking media access.572 This is doubly true for private corrections companies, which have even less incentive to allow media access than government-run facilities. Although some private prison companies have press-access policies similar to government-run prisons, or simply follow state or federal regulations, several have tried to avoid media scrutiny by arguing that, as private entities, they need not allow access to journalists.573 This attitude is unacceptable. Journalists, watchdogs, and any other concerned members of the public must be allowed access to private alternative corrections, at a time of the media’s choosing. “Access is a responsibility even if it has yet to be a guaranteed right.”574 F. Enforcement of Punitive Fines Against Private Corrections Companies Private corrections companies face, at best, limited sanctions for abuses in their facilities. Low fines are a small price to pay for companies that otherwise profit from illegal practices and inhumane conditions. State and federal governments must ensure that the fines charged to private, for-profit corrections entities are high enough that the industry “finds it cheaper to comply with a contract than to pay for noncompliance.”575 568 See Jonathan Peters, For Journalists Covering Prisons, the First Amendment is Little Help, Colum. Journalism Rev. (July 3, 2018), https://www.cjr.org/united_states_project/firstamendment-reporters-jail.php, archived at https://perma.cc/Q5H3-GYAM. 569 See id; see also Jessica Pupovac, Prison Access Policies: Transparency in Progress, SOC. PROF. JOURNALISTS, https://www.spj.org/prisonaccess.asp#3, archived at https://perma .cc/QSR3-G8AH. 570 See Pupovac, supra note 569. 571 See Helene Vosters, Media Lockout: Prisons and Journalists, MEDIA ALLIANCE (May 13, 2016), https://media-alliance.org/media-lockout-prisons-and-journalists-by-helene-vosters/, archived at https://perma.cc/XF68-LRQP. 572 See Caitlin Curley, Shut Out: How Our Prison System Restricts Media Access, GENFKD (May 23, 2016), http://www.genfkd.org/shut-prison-system-restricts-media-access, archived at https://perma.cc/23R2-U56J. 573 See Peters, supra note 568. 574 Heather Ann Thompson, What’s Hidden Behind the Walls of America’s Prisons, THE CONVERSATION (June 4, 2017), http://theconversation.com/whats-hidden-behind-the-walls-ofamericas-prisons-77282, archived at https://perma.cc/VD9R-46VQ. 575 Eisen, No Oversight, supra note 536. Electronic copy available at: https://ssrn.com/abstract=3719390 R R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 59 2-SEP-20 The Treatment-Industrial Complex 10:34 59 In New Mexico, for example, the private corrections healthcare company Centurion was first fined for providing poor medical care and then later fined over $2.1 million for continued staffing shortages.576 New Mexico also contracted with MHM577 to provide behavioral healthcare for incarcerated defendants, but then ended up fining MHM almost $500,000 for poor services.578 Yet both companies, Centurion and MHM, are part of the same larger company, Centurion Managed Care.579 A corrections company such as Centurion, which trades under the name Centene Corporation,580 is so large than these fines have little impact; for 2018, Centene’s total revenues were over $60 million.581 Similarly, in Tennessee, CoreCivic was fined almost $2 million in 2018 for poor management and significant staffing shortages issues.582 This major fine, however, did not hinder the company’s profit. Total revenue for CoreCivic for the fourth quarter of 2018 was $482 million, up 9.4% from the year before.583 Until and unless these punitive fines really affect the bottom line of private corrections companies, there is little chance that imposing monetary punishments will work to change their practices. G. Returning Probation Violation Decisions to Courts For-profit corrections companies have privatized enforcement and usurped the local courts’ role in monitoring probationer behavior. As discussed in Part II.A, in some jurisdictions, private corrections companies ask local courts to send defendants to jail or prison if they are unable to pay the weekly fee to the company. In some courts, employees of private corrections companies even prepare arrest warrants and give them to the court to sign without any review.584 As Human Rights Watch documented, some courts 576 See Marisa DeMarco, State Fines Prison Health Care Companies Millions, KUNM (Sept. 5, 2018), https://www.kunm.org/post/state-fines-prison-health-care-companies-millions, archived at https://perma.cc/7JVK-NXXB. 577 MHM is a provider of healthcare services to government agencies, including correctional facilities, state hospitals, and juvenile facilities. See Our Services, MHM SERVICES, INC., http://www.mhm-services.com/about.html, archived at https://perma.cc/RU3H-RNQR. 578 See DeMarco, supra note 576. 579 See MHM SERVICES, supra note 577. 580 See Centene Corporation Reports 2018 Results and Increases 2019 Annual Guidance, CENTENE CORPORATION (Feb. 5, 2019), https://investors.centene.com/news-releases/news-release-details/centene-corporation-reports-2018-results-and-increases-2019, archived at https:// perma.cc/KHH8-RWSW. 581 See id. 582 See Dave Boucher, Lawmakers Delay Tennessee Prison Authorization; CoreCivic Acknowledges $2 Million in Fines in 2018, THE TENNESSEAN (Apr. 10, 2018), https://www.tennessean.com/story/news/politics/2018/04/10/lawmakers-delay-tennessee-prison-authorizationcorecivic-acknowledges-2-million-fines-2018/501102002/, archived at https://perma.cc/ 9DQW-Z7VN. 583 CoreCivic Reports Fourth Quarter and Full Year 2018 Financial Results, CORECIVIC (Feb. 19, 2019), http://ir.corecivic.com/news-releases/news-release-details/corecivic-reportsfourth-quarter-and-full-year-2018-financial, archived at https://perma.cc/55U7-8A74. 584 Id. Electronic copy available at: https://ssrn.com/abstract=3719390 R R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 60 unknown Seq: 60 Harvard Civil Rights-Civil Liberties Law Review 2-SEP-20 10:34 [Vol. 55 are so keen to delegate responsibility to private probation companies that they allow company employees to routinely threaten people on probation with jail time for failing to make payments or falling into arrears.585 In addition, some private probation companies determine employees’ bonuses by considering how many probationers pay their fines in a timely manner.586 This structure creates an obvious conflict of interest, because these very employees determine whether a probationer is able to pay a weekly fee in the first place.587 Ability to pay determinations should only be made by a court, not a for-profit company. H. Tax Reform In 2016, Senator Ron Wyden (D-OR) introduced the “Ending Tax Breaks for Private Prisons Act.”588 The bill would prevent private corrections companies from taking advantage of various IRS tax breaks and exclusions, specifically the REIT status of the private corrections companies discussed in Part II.589 Unfortunately, as of December 2019, the bill has languished in committee for three years. REIT status was not intended to benefit private prison companies who claim to be “renting” space to people they incarcerate.590 Instead, REITs evolved during the 1960s to allow small investors to create real estate income, spurring community development.591 REIT status has otherwise been used for senior living homes and community healthcare centers, allowing such real estate to receive tax advantages, such as paying no income tax.592 Most of a company’s profits from property-related operations—approximately 90%—must be distributed to shareholders through dividends.593 As long as this continues, the company continues to qualify for REIT status.594 585 See HUMAN RIGHTS WATCH, PROFITING FROM PROBATION, supra note 60, at 49. Id. at 43. 587 See id. at 44. 588 See Ending Tax Breaks for Private Prisons Act, S.B. 3247, 114th Congress (2015–16). 589 See id. S.B. 3247 “amends the Internal Revenue Code to exclude from the definition of ‘taxable REIT (Real Estate Investment Trust) subsidiary’ any corporation which directly or indirectly: (1) operates or manages a prison facility or provides services at or in connection with a prison facility; or (2) provides to any other person (under a franchise, license, or otherwise) rights to any brand name under which any prison facility is operated, subject to specified exceptions.” Id. 590 See Gregory Meeks, Congress Must Stop Private Prisons from Receiving Tax Breaks, THE HILL, (Dec. 1, 2017), https://thehill.com/blogs/congress-blog/economy-budget/362658congress-must-stop-private-prisons-from-receiving-tax, archived at https://perma.cc/639RRD8Q. 591 Id. 592 Id. 593 Morgan Simon, In Wake of Wells Fargo Hearing, Private Prison Stocks Take Big Hit, FORBES (Mar. 15, 2019), https://www.forbes.com/sites/morgansimon/2019/03/15/in-wake-ofwells-fargo-hearing-private-prison-stocks-take-big-hit/#379ca55d1a3b, archived at https://per ma.cc/X7E4-QRZS. 594 See Rob Urban & Kristy Westgard, It’s a Great Time to Be a Prison Landlord, Thanks to the IRS, BLOOMBERG (Aug. 9, 2018), https://www.bloomberg.com/news/articles/2018-08586 Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt 2020] unknown Seq: 61 2-SEP-20 The Treatment-Industrial Complex 10:34 61 Although CoreCivic and GEO Group have taken steps to mimic traditional REITs, including by leasing facilities instead of buying them,595 their core business is very far from what REIT status was intended to protect. REIT status should thus be prohibited for private corrections companies. CONCLUSION Criminal legal debt is a disturbingly common feature of alternatives to incarceration. To save money, many state and local governments have imposed the cost of alternative corrections on the very people whom alternatives to incarceration purport to benefit. As for-profit corrections companies, including GEO Group and CCA, expand into the alternative corrections arena, they have transformed many diversion and treatment programs into sources of revenue by imposing burdensome costs and fees on individuals caught in the criminal legal system. This criminal legal debt perpetuates poverty, hinders re-entry, and can even lead to re-incarceration. Our ultimate goal should be to eradicate the criminal legal debt arising from alternative corrections. Until this happens, however, we must take as many steps as possible to control and monitor the actions of such privatized corrections companies, large or small. By demanding increased transparency, creating external watchdogs, insisting on more media access, pressuring the IRS to remove REIT status, increasing punitive fines on private companies, returning control to courts, and requiring means testing for all alternative corrections fees, the approximately 4.3 million Americans who undergo correctional control outside of imprisonment can have a fairer, safer, and actually rehabilitative experience post-conviction, free from the shackles of criminal legal debt. 09/private-prison-companies-expand-empires-thanks-to-tax-advantages, archived at https://per ma.cc/RUW6-A3UT. 595 See Meeks, supra note 590. Electronic copy available at: https://ssrn.com/abstract=3719390 R \\jciprod01\productn\H\HLC\55-1\HLC101.txt unknown Seq: 62 2-SEP-20 Electronic copy available at: https://ssrn.com/abstract=3719390 10:34