Thursday, April 20, 2017
Lies are the mortar that bind the savage individual man into the social masonry.
— Herbert George Wells, Love and Mr. Lewisham
It was nothing more than a coincidence, that on the same day last week’s column on the use of private prisons appeared, an important announcement dealing with those institutions was reported on by the national media. The announcement was that a new $100 million immigrant detention center is going to be built in Conroe, Texas, and it will be built by none other than one of the champions of private prisons described in last week’s column, GEO Group.
DJT’s and Attorney General Jeff Session’s enthusiasm for finding and incarcerating illegal immigrants, has brought joy to the fiscal hearts of both private for-profit prison companies and many Texas counties. The counties are excited because a number of them overbuilt prisons and were suffering from lack of occupants and no way to pay for their construction and upkeep. The happy turn of events gives them the opportunity to rent out unused space to federal or private prison companies thus helping them pay for their facilities. The private prison companies are excited because following the election of DJT the value of their stock has soared.
The new Conoroe facility will be in addition to an existing 1,200 bed facility already located there, and two other prisons in Houston and Livingston. The Conroe detention center is slated to open in 2018 and to generate $44 million in revenue. In addition, it will provide employment to Conroe residents involved in its construction. It is a win-win situation for all but the immigrants.
A number of perceptive readers have asked how the prisons will be able to find suitable employees to staff all the newly available facilities. The question was answered by a headline in the Guardian. It announced that: “Border Patrol may loosen lie-detector use in hiring to meet Trump’s jobs order.”
According to the Guardian, the U.S. Border Patrol has been having difficulty filling its ranks for the past several years. That is not because it lacks applicants. It is because the applicants are unable to pass routine lie detector tests that are part of the employment process. According to the Guardian, more than 60% of the applicants taking the lie detector test fail, and having failed, cannot be hired. In a conference on border security conducted in San Antonio in mid-April, Border Patrol Chief, Ronald Vitellio, addressed the hiring problems confronting the agency and was quoted in the Wall Street Journal as saying: “The polygraph has given us a difficult time. Not a lot of people are passing.” Although Chief Vitellio’s explanation would seem to place the blame for the problem on the lie detector test, a complete reading of reports on hiring difficulties suffered by the agency discloses that the problem lies not with the test, but with the persons taking the test. Their responses to questions posed are often not truthful.
The acting Customs and Border Protection (CBP) commissioner, Kevin McAleenan, prepared a memorandum in which he observes that lie detector tests pose a “significant deterrent and point of failure” for applicants. He says that puts the board patrol at a hiring disadvantage with the Immigration and Customs Enforcement (ICE) people with which his agency competes for employees, since ICE doesn’t require that new hires pass a lie detector test. Implicit in the memorandum, is the suggestion that the test be eliminated or made less difficult, although it is not explained how a lie detector test can be simplified.
The McAleenan suggestion has not met with universal approval. John Kelly, the Homeland Security Secretary, who oversees both ICE and CBP, says that notwithstanding its adverse effect on the number of people CBP is able to hire, administering the lie detector test remains a “good idea.” James Tomsheck, CBP’s Internal Affair Chief from 2006 to 2014, said that McAleenan was “attempting to degrade the vetting to accommodate a political mandate. Ultimately this data deprived decision will greatly reduce security at our borders.”
CBP has not enjoyed a good reputation for how its agents treat those with whom it comes into contact. A Kino Border Initiative report issued in 2015, states that incarcerated immigrants suffer a variety of abuses and the hands of CBP agents. Mr. Tomsheck observed that: “the failure to adequately vet and screen new agents and officers” was one of the main reasons for the problems confronting the agency. Gil Kerlikowsek, CBP’s present commissioner, observed that two out of three applicants fail the lie detector test, and attributed the failure to the kinds of applicants being attracted to the agency.
In view of the foregoing, it is no wonder that those hoping for vastly increased number of hires at the CBP, want to eliminate or simplify the lie detector tests. The arrested immigrants who are ruled by the CBP employees while incarcerated may have a different view of it. So should the rest of us.
Wednesday, April 12, 2017
Under a government which imprisons any unjustly, the true place for a just man is also a prison.
— Henry David Thoreau, Civil Disobedience
It turns out that the immigration crackdown that DJT’s ICE is pursuing, though hard on illegals and their families by producing terrible uncertainty for them, is not without its bright side. The light that provides a bright side is shining on the shares of stock in the Geo Group and CoreCivic, and on jails in a number of Texas counties.
Geo Group and CoreCivic operate private, for-profit prisons. Before DJT became president, they were on hard times. For good reason. In August 2016, the U.S. Department of Justice Office of the Inspector General issued a report that was highly critical of the way those companies treated prisoners entrusted with their care. The report found that inmates in facilities run by those corporations “were nine times more likely to be placed on lockdown than inmates at other federal prisons and were frequently subjected to arbitrary solitary confinement simply because there was not space for them among the general population.” Although placing them in solitary confinement so they would not add to overcrowding in the general prison population had the desired effect, solitary confinement is generally acknowledged to be equivalent to torture and has been repeatedly criticized for its excessive use in United States prisons. According to the report, the Bureau of Prisons was using the private prisons on a large scale to “confine federal inmates who are primarily low security, criminal alien adult males with 90 months or less remaining to serve on their sentences.” The report stated that “in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable Bureau of Prisons institutions.” It said that the contract prisons “do not provide comparable services [to those operated by the Federal Bureau of Prisons] do not save substantially on costs, and do not maintain ‘the same level of safety and security.’”
At almost the same time that that report was issued, Deputy Attorney General Sally Yates, issued instructions to federal officials to reduce the use of private prisons because of the falling prison population throughout the country. The result was that stock in CoreCivic and GEO, the two largest private prison companies in the United States, fell precipitously. The election of DJT reversed their fortunes.
The day after the election shares in CoreCivic rose 43 percent and share in GEO rose 21 percent. The investors’ optimism was rewarded when on February 21, 2017, Attorney General Sessions, rescinded the order that the private prisons be phased out. Following the announcement, the prison companies enjoyed another jump in share prices. The order should not have been a surprise. Notwithstanding the Justice Department report that was highly critical of the private prisons, DJT, for whom facts are notoriously unimportant, said: “I do think we can do a lot of privatizations and private prisons. It seems to work a lot better.” Of course, private prisons are not the only ones rejoicing in the prospect of more inmates, thanks to the increased attention being paid to illegal immigrants and their incarceration. Jailers in small Texas counties are also excited.
Because of reforms to the criminal justice system, a number of Texas counties are having a tough time making ends meet because their jails are underperforming. An underperforming jail is one located in a community in which the residents do not engage in sufficient criminal activity to provide residents for the local jails. According to a report by the Associated Press, the current problem traces its beginning to the 1990s and the early 2000s. Counties that were losing employment prospects for their citizens, addressed the problem by building new jails with lots of beds. The plan was that, in addition to housing their residents, the jails could be rented out to other counties and the federal government when those entities found themselves short of space. It was a great idea and worked until criminal justice reform took place and alternative sentencing provisions were adopted. Now many of the counties that eagerly built new jails, find themselves trying to pay off the cost of construction without adequate occupants to pay the debt that was incurred to build them. The good news for them is that since DJT has encouraged ICE to round up and jail illegal immigrants, the glut of jail space will soon vanish. Cells that were empty and non-income producing, will once again be fully occupied with illegal immigrants and their families. (In a speech delivered to Police Chiefs Association on April 11, 2017, Attorney General Sessions announced a number of increased enforcement policies including a provision that those who get married to avoid immigration laws, will be charged with offenses that carry a two-year mandatory minimum prison sentence.) If, notwithstanding the prospect of new occupants, counties no longer want to maintain their facilities, they may be able to sell them to private prison companies that will use the space for housing illegal immigrants. It’s a win-win situation for private prisons and Texas counties. The only loser is the pre-DJT United States we knew and loved. The only loser is the pre-DJT United States we knew and loved.
Thursday, March 23, 2017
When at last this little instrument appeared, consisting, as it does, of parts every one of which is familiar to us, and capable of being put together by an amateur, the disappointment arising from its humble appearance was only partially relieved on finding that it was really able to talk.
— James Clerk Maxwell, The Telephone 
Who knew they could be profit centers. Thanks to action emanating from the white House of Horrors or, as it was formerly more simply known, the White House, there’s good news for phone companies and private prisons. This week the phone companies.
October 22, 2015, was the date on which the Federal Communications Commission (FCC), proved itself to be the prisoners’ friend. It announced that it was taking a big step to reduce what it called “excessive rates and egregious fees” of up to $14 a minute that were being charged by phone companies providing phone service to inmates in state and federal prisons. In announcing the change, the commission observed that “high inmate call rates have made [phone] contact unaffordable for many families, who often live in poverty.” As Tom Wheeler, the chairman of the FCC, said in a statement accompanying the rule revision, “[F]ew issues have a more direct and meaningful impact on the lives of millions of Americans than inmate calling reform. With today’s action we will provide material relief to nearly two million families with loved ones behind bars. . . . Inmate calling reform is not only the right thing to do, it is also good policy. . . .By adopting tiered rate caps that apply to all interstate and intrastate Integrated Communication Services (ICS) calls, and limiting and capping runaway ancillary service charges, this item addresses unaffordable ICS rates . . . . Today’s actions . . . address a prime example of a market failure. Where, as here, market forces have not been able to discipline costs to consumers, we must shoulder the responsibility of promoting communications services that do not leave the most vulnerable of our population behind.” (Whether inmates qualify as “the most vulnerable of our population” others can decide.) As a result of the FCC’s action, the price for prison calls went down to as low as $.11 a minute.
Phone companies providing prison service were, of course, upset with the ruling since prisoners were, at up to $14 a minute for in state calls, a profit center that the companies hated to lose. Depriving phone companies of the opportunity to charge exorbitant rates to prisoners was just as bad as if some court had suddenly decided to shorten all the prisoners’ sentences, thus depriving phone companies of their highly desirable prison customers. Not wanting to sit quietly by as this important source of revenue was taken from them, the companies filed suit in the D.C. Court of Appeals claiming that the FCC lacked the authority to put caps on what they were charging the inmates, and, even if it had the authority, it had abused its authority by setting caps that were too low. (An intriguing argument in favor of higher rates, was put forth by Mithun Mansinghani, a deputy solicitor general from Oklahoma who got involved in the suit on behalf of Oklahoma. His argument suggests he must have been one of the top students in his law school class. He said phone companies should be able to charge higher rates than those that had been set by the FCC, because of the risk they assumed by furnishing phones to prisons. The prisoners might, he suggested, use the phone to further criminal activity, and should that happen, the phone company might incur liability. The creativity of his theory cannot be overstated. The possibility that any time a phone is used in furtherance of any criminal activity, whether a ransom demand, or a plan to rob a bank, the bad results flowing from the phone call may be charged to the phone company, is an intriguing one for lawyers and presents the creative lawyer with a whole new arena in which to conduct litigation
In 2017, a funny thing happened on the way to the phone booth. Republicans became a majority in, among other places, the FCC. The Democrats, the authors of the cap when in the majority in the FCC, had left the FCC, and Republicans were then in the majority. Among their early activities was to roll back the rules that capped the cost of prison phone calls. The attorneys who had been representing the FCC in upholding the FCC’s 2015 actions, notified the court that they would no longer defend the lower rates that had been set by the democratic majority in 2015. Since the Court had already set the matter for argument, and declined to postpone the argument, it is not clear as of this writing, where the case is headed. Where phone rates for prisoners are headed is clear-they are going back up. The off spring of the white House of Horrors know how to make prisons profit centers. Phones are one. Prisons another. Prisons, however, are a matter for another day.