With Liberty and Justice for Some (29 page)

Like all private companies, the prison industry has an insatiable appetite for more business, and thus it agitates in favor of greater demand for its services—demand created through longer prison sentences, fewer opportunities for parole, and constant increases in the number of transgressions deemed prison-worthy. In other words, the private prison industry profits from precisely the draconian approach to penal policies implemented over the past several decades. This perverse dynamic was perfectly captured by the headline for a November 2008
Wall Street Journal
article: “Larger Inmate Population Is Boon to Private Prisons.” And the article itself made it clear that the prison companies don’t expect the tide to turn anytime soon.

Simply put, incarceration is now big business in the United States. According to the Pew, “Total national spending on corrections has jumped to more than $60 billion from just $9 billion in 1980, even as recidivism rates have barely changed.” Indeed, “prisons are the fourth-largest state budget item behind health, education and transportation.” Government at every level continues to spend more on incarceration and other phases of the correction process with every passing year. The DOJ’s own statistics are striking (see chart below).

Private prison corporations are receiving an increasing share of this spending, and the industry appears to be recession-proof. In early 2009, as most of the nation suffered from the financial crisis, CorpWatch noted that Geo Group “reported impressive quarterly earnings of $20 million…along with an annual income of $61 million for 2008—up from $38 million the year before.”

Like all profitable industries—especially those that rely on the government for business—private prison corporations dedicate substantial amounts of money to shaping laws that will maximize their revenue. Indeed, the increasing role played by these private corporations in performing what had traditionally been a government function is another manifestation of the /files/04/29/07/f042907/public/private merger: the for-profit prison companies have, in essence, established themselves as part of the government, and laws are written by them and for their benefit. In the case of the prison industry, that’s particularly perverse, as their interest is best served by ever-harsher punishment schemes for ordinary Americans. A 2004 report from the National Institute on Money in State Politics revealed that for the 2002 and 2004 election cycles, these companies and their directors, executives, and lobbyists donated $3.3 million to candidates and state political parties across forty-four states.

In a comprehensive article in
In These Times
documenting the success of the private prison industry in shaping America’s penal laws, Silja J. A. Talvi noted that “private prison companies strongly favor giving to states with the toughest sentencing laws—in essence, the ones that are more likely to come up with the bodies to fill prison beds.” And, of course, one finds countless instances of “revolving door” transfers, in which public criminal justice officials move seamlessly to the private prison industry while that industry in turn sends hordes of its executives into the very government positions that dole out prison contracts and implement penal policies.

A particularly repellent consequence of the /files/04/29/07/f042907/public/private prison industry merger was exposed in a December 2008 investigative report from the
Boston Phoenix
, which showed that the prison companies have been expending vast resources to combat drug policy reform. The corporations fear an end to their greatest source of income: the incarceration of hundreds of thousands of citizens for nonviolent drug offenses. Such reform strikes at the heart of the industry’s capacity for future growth, and private prison operators have thus made it a priority not only to preserve current punishment schemes but to advocate for even harsher ones. Accordingly, the
Phoenix
revealed, the industry “regularly lobb[ies] against criminal-punishment reforms, and for the creation of new criminal statutes and overly harsh prison sentences. While these efforts are cloaked as calls for public safety, they are essentially creating more business for themselves.”

The report noted that significant sums of money were at stake.

Since there is no well-funded lobby advocating for penal reform or promoting the interests of prisoners, the prison lobby goes virtually unchallenged and can buy the ability to shape pertinent laws at bargain basement prices.

Even worse than the corruption is the perverse incentive that these for-profit corporations have to operate increasingly inhumane facilities. By forcing prisoners into severely overcrowded quarters and depriving them of the supervision necessary to prevent rape and other forms of abuse, corporations can reduce costs and thus increase their profits. As Senator Webb put it, the levels of violence and sexual victimization in this country’s prisons are completely “off the charts.”

The American justice system has become a weapon to control, exploit, and profit off vast numbers of American citizens. That the victims of this exploitation are disproportionately the poor and the powerless makes it all the more repugnant.

Below the Second Tier

America’s war on drugs set in motion some of the most brazen, systematic attacks on equality under the law in the modern era. But the “war on terror” has taken those attacks to new depths of injustice.

As we have seen, President Obama has gone to extreme lengths to shield high-level Bush officials and Wall Street plunderers from the consequences of even the most egregious crimes, based on his oft-stated view that “it’s important to look forward and not backwards.” The American justice system relentlessly “looks backward,” however, to seek out and punish the crimes of ordinary Americans, and Obama has done nothing to retard the booming growth of America’s prison state.

Another remarkable disparity has been the wildly divergent treatment of elite criminals as opposed to “whistle-blowers”—those who reveal government and corporate secrets in order to expose high-level corruption and criminality. While immunizing high-level lawbreakers, the Obama administration not only has failed to extend the protective shield of immunity to America’s whistle-blowers but has pursued them with uncommon vigor. In other words, powerful criminals are protected, while those who expose their crimes are persecuted.

To be sure, protecting high-level criminals while prosecuting those who expose them is not entirely Obama’s invention; that approach certainly had currency during the Bush administration. In May 2006, for example, Attorney General Alberto Gonzales appeared on
ABC News
and declared it a “possibility” that the
New York Times
reporters who wrote about Bush’s illegal warrantless eavesdropping program would be prosecuted. (The government officials who had committed crimes by ordering the illegal eavesdropping, on the other hand, were of course in no such danger.)

But the Bush administration had merely suggested that it
might
prosecute whistle-blowers. The Obama administration, by contrast, has actually carried through on those threats, repeatedly and aggressively. In April 2010, the Obama DOJ announced it had obtained an indictment against the NSA whistle-blower Thomas Drake, who had exposed serious waste, abuse, and possible illegality at the agency. In May, the DOJ reissued an abandoned Bush-era subpoena to James Risen of the
New York Times
, demanding that he identify the source who had told him of the extremely inept CIA effort to infiltrate the Iranian nuclear program. (The DOJ has now indicted a former CIA official who it claims was the source in question.) The next month, the Obama DOJ targeted Shamai Leibowitz, an FBI linguist who had leaked what he believed to be evidence of lawbreaking, though what exactly it was has never been revealed. As
Politico
’s Josh Gerstein reported, Leibowitz’s sentence of twenty months in prison is “likely to become the longest ever served by a government employee accused of passing national security secrets to a member of the media,” and it was imposed even though the sentencing judge admitted that he had no knowledge of what the linguist had leaked or how it damaged national security.

In June 2010, the
New York Times
noted that “the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks.” Through such prosecutions, of course, the Obama DOJ also intimidates and deters potential future whistle-blowers, thus further blocking one of the very few remaining paths Americans have to breach the virtually impenetrable wall of secrecy surrounding the surveillance and national security state. As we saw in the previous chapter, the Obama administration has relentlessly fortified that wall, making promiscuous use of state secrets and immunity claims to ensure that high-level criminality and other forms of corruption can take place free of all accountability.

Perhaps nothing better illustrates the reprehensible double standard than the Obama administration’s actions against the whistle-blowing site WikiLeaks. Throughout 2010, WikiLeaks published thousands of documents relating to U.S. wars in Iraq and Afghanistan, which revealed shocking abuses and outright criminality on the part of the American occupiers. The files showed American soldiers firing on unarmed civilians and journalists, covering up multiple killings of civilians, and adopting a formal policy of turning a blind eye to systematic human rights abuses perpetrated by Iraqi forces right under the Americans’ noses. Needless to say, none of these revelations resulted in any criminal investigations from the Obama administration.

In December, WikiLeaks released another trove of information: numerous diplomatic cables that had been sent from U.S. embassies around the world. Like the war documents, these cables revealed numerous instances of wrongdoing. They made it clear, for example, that the U.S. government had lied about its involvement in Obama-approved civilian-killing air strikes in Yemen; that the Obama State Department had pressured Spain not to criminally investigate the torture of Spanish citizens by the United States; that the British government had secretly promised to protect Bush officials from “embarrassment” as part of its purported investigation into the Iraq war; and that U.S. and British officials had colluded to allow the United States to keep cluster bombs on British soil even though Britain had signed a treaty banning such weapons.

Obama’s administration, once again, showed no interest in holding the perpetrators of these outrages responsible. Instead, the administration did something else entirely: it launched an all-out war on WikiLeaks itself. Numerous reports quickly surfaced that the Obama DOJ was actively attempting to indict WikiLeaks founder Julian Assange, an Australian citizen, under the Espionage Act of 1917—which, if successful, would be the first time in U.S. history that a nongovernment employee was convicted of espionage for publishing classified material. Meanwhile, a very sophisticated cyberattack temporarily drove WikiLeaks offline. Overt pressure from American government officials resulted in Australia threatening to revoke Assange’s passport. Joe Lieberman, chairman of the Senate Homeland Security Committee, publicly warned companies not to associate with WikiLeaks in any way, after which the assets of WikiLeaks were frozen and the organization’s accounts with MasterCard, Visa, PayPal, and Bank of America were terminated, impeding the group’s ability to raise funds. What’s more, when a handful of teenage hackers targeted a few of these companies with some trivial “denial of service” attacks, Attorney General Holder announced that the DOJ was criminally investigating those attacks—but not the far more sophisticated and damaging cyber-attacks that had caused WikiLeaks to lose its Internet home.

To recap “Obama justice,” then: if you create a worldwide torture regime, illegally spy on Americans without warrants, abduct people with no legal authority, or invade and destroy another country based on false claims, then you are fully protected. But if you expose any of these lawless actions by publishing the truth about what was done, then you are a criminal who deserves the harshest possible prosecution.