Marijuana as a Moneymaker in a Different Kind of Deal: Police, Private Prisons, Guards and the Infamous “War on Drugs”

By: Mehjabeen Rahman – Hofstra Law School – Law School Contributor

It’s probably not too shocking to know that police unions are among the top 5 interest groups lobbying against the legalization of marijuana, after all they are the foot soldiers of the governments ever-ongoing “war on drugs,” declared initially by the Nixon administration in the 70’s.[1] However what may important to know is how much state law enforcement agencies are funded by federal grants for the “war on drugs.” In conjunction with criminal forfeiture laws, which legally allow law enforcement to take ownership of any assets constituting a profit or instrumentality of a crime and use it to finance law enforcement activities, the federal government’s war on drugs is a big source of revenue for law enforcement agencies across the country.[2] In 2010, a police union lobbyist in California was part of a successful attempt to defeat Prop 19 the bill that would legalize recreational marijuana while also helping police department clients get tens of millions of dollars in federal “marijuana-eradication” grants.[3] Federal lobbying disclosures further reveal that police union lobbyists nation-wide have supported stiffer penalties for marijuana-related crimes.[4] If marijuana becomes legal, then there will no longer be a need to fund it’s policing. No marijuana (because it wont be illegal) means no money- ironically the same thing it means for the pot dealers from which police confiscate those same drugs. The fact is that mass incarceration for non-violent drug offenses has become a full-blown big business – which is why it makes sense that private prison corporations are the second biggest lobbyists against the legalization of marijuana right behind the police who are funded to “fight” against its distribution and use.[5]

The United States has become the leading incarcerator in the world with a 400% increase in prison populations between 1980 and 1998[6]– in 2013; an estimated 2.3 million prisoners were behind bars in this country.[7] By 1989 the federal prison system was operating at almost 200% capacity and a total of 24 states were operating well over 100%[8] To deal with the problems associated with extreme prison overcrowding while still addressing popular concerns to be more strict on crime, many states turned to the private sector to ease financial burdens on their governments.[9] What makes private prisons so attractive is the idea that higher quality services will be offered at a cheaper cost to the government, and in turn, the taxpayer however private prisons are unique since they represent private business entities, yet they are responsible for the administration of justice and the safety of American citizens vis-à-vis the incarceration of criminals.[10] As of now, two major private prison corporations control 75% of the private prison market[11] after acquiring a significant portion of it through mergers and acquisitions of various smaller private prison corporations.[12] These two companies are the Corrections Corporation of America (CCA) and the GEO Group (GEO) and both are publicly traded corporations on the New York Stock Exchange (NYSE).[13] Together, just these two companies that own and control 75% of the existing prison industry market.  And not surprisingly, both companies contribute heavily to lobbying efforts against measures to legalize marijuana.

When it comes to the business of private prisons, there is direct intersection with politicians, legislatures and the infamous “three-strikes” legislative scheme for prosecution of non-violent drug offenses.[14] Ex-federal prosecutor and author of the illuminating book Let’s Get Free Paul Butler insists that the war on drugs as the Nixon administration envisioned it is a failure.[15] Moreover, one of the underlying truths complicating the matter is that incarceration in this country is much more a business than people realize. There are mandatory bed-filling quotas contained in contracts with state DOCs.[16] What all this means is that there exists both political and financial incentive to keep people in prisons and financial incentive means the ends justify the means. In the last decade, the private prison industry has flourished- between 1990 and 2010, privately owned and operated prisons in the United States increased by 1,600%.[17] This is largely attributable to the expansion in “tough on crime” legislation for non-violent drug offenses[18] and the resulting dramatic increase in incarceration rates since the war on drugs was launched under the Nixon administration in the 1970’s.

To make the point more explicit, the CCA revealed that continuing the drug war is a central pillar of their business strategy.[19] In their public filings with the SEC, the Geo Group states that “any changes with respect to the decriminalization of drugs and controlled substances could affect the number of persons arrested, convicted, sentenced and incarcerated, thereby potentially reducing demand for correctional facilities to house them.”[20] Basically, legalizing marijuana is bad for business. Of course there are different sides to every story and one could consider this one by Bob Cooke, a former president of the California Narcotic Officers’ Association who says that ‘“losing money from asset forfeiture is not why we believe [pot] should be regulated.’ Instead, he argues, law enforcement agencies oppose the legalization of marijuana because its use is inherently dangerous: ‘One try and it can ruin your life.”’[21] If that’s the case, one has to wonder what his thoughts are on crack-cocaine, heroin, gambling or prostitution.

Now with the role of the private prison industry in the national battle to legalize marijuana in mind, it also makes sense that prison guard unions are another huge group lobbying hard against legislation to legalize marijuana.[22] Corrections officers and prison guards are the individuals working at these prisons. Some years ago, at the peak of private prison growth, the California Correctional Peace Officers Association spent $1 million in 2008 to oppose a legislative measure that purported to have “reduced sentences and parole times for nonviolent drug offenders while emphasizing drug treatment over prison.”[23] If one of the main objectives of the “war on drugs” is public safety and morals, this prerogative is especially curious. In 2013, one of the most politically active labor unions representing prison guards on a national level- the American Federation of State, Country and Municipal Employees (“AFSCME”)- spent nearly $3 million dollars on lobbying efforts alone.[24] An interesting article on the subject points out that the Obama administration has granted 46 inmates reduced sentences in an effort to fight against the harsh penalties legislatively imposed for nonviolent drug offenses, and though 46 is laughable compared to the tens of thousands currently incarcerated, it is indicative of the administration’s awareness about the issue of mass incarceration and the political machinery that drives “big prison business.”[25]

If it seems odd that state departments of corrections are contracting with private prison facilities to maintain mandatory population quotas and further employing state prison guards and corrections officers, your intuition is correct- private business and public justice administration are indeed strange bedfellows. It should be unsettling that a traditionally public function, like putting people in jail funded by tax-payer dollars is no longer subject to stricter standards of accountability and rather can operate as a profit-driven private business that are concerned only about the bottom line. However as it exists as a practical reality, it should not come as a shock that 3 of the top 5 interest groups lobbying against the legalization of marijuana are in fact police departments, private prisons and prison guard unions. When it is said that 2016 is “the marijuana election year,” these powerful, profit-driven actors are not only lobbying on the legislative front but moreover are making sizeable contributions to candidates whose political platforms endorse the idea of keeping marijuana illegal and continuing to wage the “war on drugs.” It’s expected that the targets tend to be the more conservative candidates, but what is surprising and somewhat startling is that campaigns of more progressive candidates, like Hilary Clinton, are on private prison lobbies’ Christmas lists.[26]

[1] Paul Butler, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE, 45 (The New Press, 2009).

[2] See Lee Fang, The Top Five Special Interest Groups Lobbying to Keep Marijuana Illegal, REPUBLICAN REPORT (Apr. 20, 2015, 9:04 AM), http://www.republicreport.org/2012/marijuana-lobby-illegal/.

[3] Id.

[4] http://www.republicreport.org/2012/marijuana-lobby-illegal/

[5] See Sara Dilley, The Top 5 Industries Lobbying Against Cannabis Legalization Will Infuriate You, LEAFLY (Jan. 21, 2015), https://www.leafly.com/news/headlines/the-top-5-industries-lobbying-against-cannabis-legalization-will.

[6] Leslie Taylor-Grover, Eric Horent, & Tiffany Wilkerson-Franklin, Private Prisons as Economic Development: Evidence and Implications for Public Policy, 166 PRIVATE PRISONS AND PRIVATE PROFIT (Byron Eugene Price & John Charles Morris, eds., 2012).

[7] Nicole Goodkind, Top 5 Secrets of the Private Prison Industry, YAHOO! FINANCE (Aug. 6, 2013, 12:30 PM).

[8] Benjamin R. Inman, Comparing Public and Private Prisons: The Trade-offs of Privatization, PRIVATE PRISONS AND PRIVATE PROFIT 181 (Byron Eugene Price & John Charles Morris, eds., 2012).

[9]Tiffiney Barfield-Cottledge,  Prison Privatization: Exporting and Importing Prisoners, PRIVATE PRISONS AND PRIVATE PROFIT 253 (Byron Eugene Price & John Charles Morris, eds., 2012); see also Katharine A. Neil & Matthew J. Gable, The Corrections- Commercial Complex: A High Stakes, Low Risk Business, PRIVATE PRISONS AND PRIVATE PROFIT 89, 92 (Byron Eugene Price & John Charles Morris, eds., 2012)(discussing how Governor Mario Cuomo of New York faced these types of problems after inheriting the “Rockefeller Drug Laws”. Cuomo needed more prison space but voters refused to allow bonds to be issued to build prison facilities, so he opted for a private development company to construct the prisons “because in this way state bonds could be issued without voter approval.”

[10] Brandi Blesset, Prison for Profit: The Political and Economic Implications of Private Prisons, PRIVATE PRISONS AND PRIVATE PROFIT 9, 9.

[11] Matt Stroud, Why Would A Prison Corporation Restructure as a Real Estate Company?, FORBES (Jan. 13, 2013 10:46 AM) available at http://www.forbes.com/sites/mattstroud/2013/01/31/why-would-a-prison-corporation-restructure-as-a-real-estate-company/ (offering an overview of CCA’s corporate restructuring as a “real estate investment trust” (henceforth REIT) to receive corporate tax benefits from the federal government because although CCA and GEO operate prisons as their primary form of business, the prison facilities themselves are technically “real estate”); see also Vicky Peleaz, The Prison Industry in the United States: Big Business or a New Form of Slavery?,  GLOBAL RESEARCH (Mar. 31, 2014) available at http://www.globaresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289.

[12] Eric Horent & Leslie Taylor-Grover, Private Prisons, Profits and Public Interest, 29 PRIVATE PRISONS AND PRIVATE PROFIT 181 (Byron Eugene Price & John Charles Morris, eds., 2012).

[13] Id.

[14] Katharine A. Neil & Matthew J. Gable, The Corrections- Commercial Complex: A High Stakes, Low Risk Business, PRIVATE PRISONS AND PRIVATE PROFIT 89, 92 (Byron Eugene Price & John Charles Morris, eds., 2012)(tracing the prison-industrial complex and high incarceration rates to 1973 “when politicians began capitalizing on citizen fears of crime and drug use to win elections…[o]ther states followed suit in an effort to appear tough on crime and soon three-strikes laws…were enacted.”); Benjamin R. Inman, Comparing Public and Private Prisons: The Trade-offs of Privatization, PRIVATE PRISONS AND PRIVATE PROFIT 181 (Byron Eugene Price & John Charles Morris, eds., 2012) “The increase in incarceration rates was primarily due to the surge in inmate populations from “tough on crime” legislation and the ubiquitous war on drugs.”

[15] Butler, supra note 1 at 46.

[16] Nicole Flatow, How Private Prison Firms Use Quotas To Fill Cells And Coffers, THINKPROGRESS.ORG (Sept. 20, 2013, 3:28 PM), http://thinkprogress.org/justice/2013/09/20/2658701/private-prison-firms-quotas-cells-coffers/.

[17] Nicole Goodkind, Top 5 Secrets of the Private Prison Industry, YAHOO! FINANCE (Aug. 6, 2013, 12:30 PM)

[18] For an understanding of the CCA’s ties to the American Legislative Exchange Council, see Corrections Corporation of America, SOURCEWATCH (last modified on Aug. 21, 2014), http://www.sourcewatch.org/index.php/Corrections_Corporation_of_America.  Noting that while the CCA was a member of the American Legislative Exchange Council (ALEC), ALEC advanced harsh sentencing rules such as “truth-in-sentencing” legislation proposing that all violent offenders be required to serve 85% of their sentences before eligibility for release and “three-strikes” legislation that would require a life sentence for a third felony conviction; many of these proposals were adopted in a majority of states in the last two decades.

[19] Dilley, supra note 5.

[20] Lee Fang, The Real Reason Pot Is Still Illegal, THE NATION (Jul. 2, 2014), http://www.thenation.com/article/anti-pot-lobbys-big-bankroll/.

[21] Id.

[22] Fang, supra note 2.

[23] Id.

[24] Marco, The biggest Lobbyists against Marijuana Legalization, INTERNATIONAL HIGHLIFE (Jan. 11, 2016), https://international-highlife.com/articles/activism/the-biggest-lobbyists-against-marijuana-legalization-today/.

[25] Id.

[26] Lee Fang, Private Prison Lobbyists Are Raising Cash for Hilary Clinton, THE INTERCEPT (Jul. 23, 2015, 1:49 PM), https://theintercept.com/2015/07/23/private-prison-lobbyists-raising-cash-hillary-clinton/. “Hillary Clinton has a complicated history with incarceration. As first lady, she championed efforts to get tough on crime. “We need more police, we need more and tougher prison sentences for repeat offenders,” Clinton said in 1994. “The ‘three strikes and you’re out’ for violent offenders has to be part of the plan. We need more prisons to keep violent offenders for as long as it takes to keep them off the streets,” she added. In recent months, Clinton has tacked left in some ways, and now calls for alternatives to incarceration and for greater police accountability.” Id.

 

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