February 3, 2023

Washington, DC – As first reported by Fox News this weekend, the Day 1 Alliance (D1A) has filed an Amicus Curiae Brief with the U.S. Court of Appeals for the Ninth Circuit in support of the role of private sector contractors in the U.S. and Arizona criminal justice systems. The brief addresses several factually inaccurate assertions made by plaintiffs in a lawsuit appealed to the Ninth Circuit by the Arizona NAACP and other groups against former Director of the Arizona Department of Corrections, Rehabilitation & Reentry David Shinn.

The lawsuit, originally filed in June 2020 in U.S. District Court for the District of Arizona, was dismissed “with prejudice” in January 2022 by U.S. District Judge Douglas Rayes.

D1A is a trade association representing private sector contractors helping address corrections and detention challenges in the United States. Its members are CoreCivic, The GEO Group, LaSalle Corrections, and Management & Training Corporation (MTC).

The purpose of D1A’s Amicus Curiae Brief (available here) is to inform the Court about the rationale supporting the continued use of contractor-operated correctional facilities. It details how private sector contractors, which have been involved in corrections throughout America’s history and are subject to tremendous oversight, provide cost-effective solutions, innovative reentry programs, and operational efficiencies, and serve a critical and effective role in our criminal justice system.

As stated in the brief:

“Day 1 submits this Amicus Curiae Brief to inform the Court about the small but extremely important role that the private sector plays in addressing corrections challenges in the United States. As set forth herein, private sector contractors – which have been involved in corrections throughout our nation’s history and which are subject to tremendous oversight – provide cost-effective solutions, innovative programs, and operational efficiencies and play a critical and effective role in our criminal justice system.”

Key highlights from D1A’s brief:

The History of Private Sector Contractors in Corrections:

• The first major push to utilize private sector contractors in the U.S. correctional system came in the 1980s, when governments faced serious challenges posed by unsafe and overcrowded prisons. This overpopulation led to understaffing, unconstitutionally poor living conditions, a decrease in rehabilitative programming, and an increase in violent incidents and disease in facilities.
• In response, the private sector stepped forward with innovative solutions to help government address these critical problems.
• Even so, private sector contractors house just 8.1 percent of the country’s incarcerated population, making them a small, but valued part of our nation’s corrections systems.

Private Sector Contractors are Subject to Tremendous Oversight:

• Contrary to plaintiffs’ allegations, corrections contractors are subject to multiple levels of oversight.
• Many states have statutory requirements that private sector contractors must meet to be considered for and ultimately awarded a contract. For example, Arizona state law sets forth a wide range of requirements that contractors must meet, and further states that no proposal will be accepted unless it offers cost savings to the state and has a level of quality that are at least equal to those provided by the state.
• Additional oversight is imposed from the contracts themselves, which include government contract monitors assigned to work within the facilities to oversee the contract and ensure that contractors are meeting their performance requirements.
• These contract monitors, who have unfettered access to staff and the individuals in their care, are unique to private sector operated facilities – no similar mechanism exists to hold federal and state-run facilities accountable for overseeing their performance.
• Noncompliance with statutory and contractual requirements can result in penalties, and in many cases, cancellation or nonrenewal of the contract.
• Independent organizations, including the American Correctional Association (ACA), audits and accredits facilities, staff, and services. ACA accreditation requires facilities to meet all mandatory standards and 90% of applicable non-mandatory standards.

Private Sector Contractors Operate Efficiently and Effectively, Allowing Them to Provide Quality Programs to Incarcerated Individuals at Reduced Costs:

• Plaintiffs’ argument that corrections contractors care only about the “bottom line” is inaccurate; the facts show that unique advantages of the private sector provide quality programs and services to incarcerated individuals at a reduced cost.
• Private sector contractors develop innovative programming that is geared toward reducing recidivism rates, such as drug and alcohol counseling, educational programs, and vocational training.
• Private sector contractors can maintain lower costs because their size and experience enable them to achieve economies of scale for essentials such as clothing, food, healthcare services, hygiene items, and various other services and supplies. Governments often pay more for these materials and services on a pro rata basis because they are not acquiring them in such large quantities.
• Private sector contractors are also able to design, construct, and operate facilities that are newer and more updated in terms of design and technology, allowing them to operate facilities more efficiently while still providing an incredibly high level of safety and security. The advantages of contractors’ more modern facilities include housing units designed to provide for 360-degree views for correctional officers and video cameras installed at multiple points throughout facilities, among other things.

Private Sector Facilities Provide Taxpayer Benefits Without Sacrificing Quality:

• Arizona state law requires that private sector facilities offer cost savings, which cannot come at the expense of services for incarcerated individuals.
• Federal Bureau of Prisons (BOP) budget data show that in FY 2018, the average daily cost to house an incarcerated individual in a low-security BOP facility was $92.46, compared to $66.63 for a private sector facility – a difference of approximately 28 percent or $25.83 per day.
• The U.S. taxpayer thus saves approximately $413,000 per day, or $150 million per year, by housing 16,000 federally incarcerated individuals in contractor-operated facilities rather than those operated by the BOP.

Private Sector Contractors Efficiently Build Tailored Correctional Facilities:

• Another advantage of private sector contractors is that they often build their own facilities more quickly and efficiently than their public counterparts.
• A private company can build a correctional facility within 12 to 18 months, compared to 48 to 60 months for a state government.
• Contractors can more readily construct facilities for specific needs of diverse prison populations and have greater flexibility in choosing sites, personnel, design, and materials.

Private Sector Contractors Potentially are Subject to Lawsuits and Large Judgments if They are Not Operating Properly:

• The legal system is yet another mechanism for accountability for private sector contractors in corrections.
• While public correctional officers and government officials enjoy qualified immunity from civil lawsuits, effectively shielding them from personal liability in all but the most egregious cases, employees of private sector contractors are vulnerable to suits from individuals seeking monetary judgments.
• These dynamics incentivize private sector contractors to responsibly carry out their government-delegated responsibilities.

Housing Incarcerated Individuals in Private Sector Facilities Does Not Drive Incarceration Rates:

• Plaintiffs’ claim that private sector contractors’ purported “profit motive” drives increased incarceration rates is contradicted by a comparison of the number of individuals housed in private sector facilities to the number housed in public sector facilities.
• Only approximately 8 percent of incarcerated individuals are housed in private sector facilities, compared to approximately 92 percent in public sector facilities. In fact, half of all people housed in private sector facilities are housed in just five states, and there is no evidence that prison populations have grown any faster in those states than in those states that relied less on private sector facilities or did not use them at all.
• Private sector contractors play no role in charging or convicting individuals of crimes or determining sentences. Those responsibilities are solely carried out by the government based on federal, state and local laws and statutes.
• Private sector contractors also do not lobby for or against legislation, policies, or regulations that impact the basis for or duration of an individual’s detention or incarceration.

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