By Howard Fischer
Capitol Media Services
PHOENIX -- A new lawsuit by the state NAACP claims privateprisons used by the state violate constitutional provisions including a prohibition against slavery.
In filings in federal court here, attorneys for the organization and some individuals locked up in private prisons are asking Magistrate John Z. Boyle to declare the use of private prisons in Arizona is unconstitutional. They also want Boyle to order the state to begin removing inmates from private facilities.
Dianne Post, the organization's legal counsel, said the system is built on the idea of maximizing the number of inmates sent to those facilities.
She said the private companies have a financial interest in maximizing the number of inmates, as any increase means increased profits for shareholders and increased earnings for company officials. Post said what makes that particularly offensive -- and she believes illegal -- is that these private prisons get to decide who has violated rules.
"That discipline can result in the person remaining in the prison longer because of disciplinary 'tickets,' '' Post said. "And we know from research that more tickets are given out in for-profit prisons, which results in inmates remaining longer than they would have if they didn't have said tickets.''
"These financial incentives create serious risks of erroneous deprivations of liberty for each prisoner in private prisons,'' the lawsuit states.
The other half of the problem, according to Charles Fanniel, president of the state NAACP conference, is the way the contracts between the state and the private facilities are written.
"You have to maintain so many beds, per the contract,'' he said. That's because the Department of Corrections, Rehabilitation and Reentry -- the new name the agency was given by Gov. Doug Ducey -- guarantees a minimum occupancy, meaning the state pays for a certain number of inmates whether they get sent their or not.
"Those people are monetized by the for-profit prisons, both for selling stock, for payments to shareholders, for their success rates, etc.,'' Post said.
"The value of The Geo Group and CoreCivic (two companies with contracts with the state) is materially affected by the number of prisoners they incarcerate, by projections of how may prisoners will be incarcerated and detained in their facilities, and by projections on further opportunities for growth,'' the lawsuit reads.
On top of that, Post said, these companies take positions against moves that would reduce the number of people sent to prisons, whether through sentencing reform or legalization of marijuana, in an effort to keep up the flow of cash-producing inmates. And she said that most of those inmates that end up at these private facilities have been convicted of non-violent crimes.
"They don't want the violent ones who require more supervision because they cost more,'' she said.
The bottom line, according to the lawsuit, is that inmates are "treated as a commodity, as property, or as a slave.''
"In this sense, ADCRR enables private prison corporations to commodify human beings just as private jails in the 19th century South commodified slaves,'' the legal papers state.
"Such private incarceration creates financial incentives to design and operate facilities that incarcerate more people for longer periods of time, provide fewer rehabilitative programs for successful re-entry to society, and discourage release of prisons,'' according to the lawsuit. The result, it says, is "never-ending cycles of incarceration, parole, and re-incarceration that profit the private jailer and are contrary to the public interests in health people, families and communities, lower taxes, and less crime.''
A representative of the state agency said it does not comment on pending litigation.
The lawsuit seeks to represent all inmates who are now in private prisons or may be sent there.
The most recent report from the agency shows there are 7,861 inmates in private facilities out of more than 41,000 who are in the legal custody of the agency.
Post acknowledged that the legal theory being presented equating these private prisons with slavery is unique, with no court in this country ever having issued such a ruling. But she said a court in Israel has found such private prison arrangements to be unconstitutional.