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Are Private Prisons to Blame for Jeff Sessions? If only.

Our Attorney General, Jeff Sessions, wants to turn back the clock to an older approach of waging the Drug War and encourage aggressive prosecution at the federal level. Considering the data, and the bi-partisan consensus on criminal justice reform, this bizarre, retrograde move requires some explaining.

Cronyism is No Joke.

My friends on the left are quick to point to privately run public prisons as a perverse incentive at work, and they're not wrong to be suspicious. There's good evidence that private prison management companies DO lobby for harsher sentences because it benefits themselves (they are also notoriously scandal-prone). And while their share of normal prisons is quite low (9% or so), their share of immigration-related facilities is quite high (50%). Not only do I not deny cronyism when I see it, I positively expect it. It's not even obvious that privately managed prisons are any more efficient. But this doesn't appear to actually be the driving force behind Sessions' actions.

I'm no stranger, by the way, to having to adjust my ideological perspective in light of the facts. As a libertarian, I would LOVE to blame our crisis of mass incarceration on the drug war, a la Michelle Alexander, and while there may be a broader cultural sense in which this is true, in terms of direct solutions, the numbers just don't add up. 50% of all federal prisoners are in for drug-related crimes, but over 90% of American prisoners are held at the state-level, where only 16% of convictions are drug-related. The greater problem is definitely violent crime, at 53% of prisoners held by states (Bureau of Justice Statistics, for 2015). First, those violent crimes are getting longer and longer sentences, but perhaps more to the point, the sheer number of people in prison has simply sky-rocketed, quintupling in the last 40 years. That makes my job a lot harder, since somebody who got 80 years for 3 marijuana charges is a lot more emotionally compelling to people than somebody who robbed grandma at gunpoint. And yelling "The Drug War!" feels a whole lot more pithy than yelling "a demographic explosion in the 18-24 year old age group in the 70's, followed by a steady increase in the power and aggression of prosecutors!"

But justice is justice, and our incarceration rates are baldly unjust (and they make us more unsafe). So now it's time to go to work, just-the-facts-ma'am-style.

It's the unions.

Recent scholarship paints what may be a surprising picture - one which I'm afraid that our friends on the left (and many on the right!) - will find hard to swallow: to find the cronyism at the root of this backwards move, look to the unions of both corrections officers and police. This shouldn't surprise us that much, however, considering that the Black Lives Matter movement has shone the spotlight on the protection these unions offer bad actors among their ranks. As Ed Krayewski has calculated, the California prison guards union, ALONE, spent more in the past 28 years than both major private prison management companies (CCA and GEO) have combined. Consider the fact that the overwhelming majority of prisoners are held in publicly managed prisons, and note that public employee unions spend, on average, almost $7 million a year on lobbying (more than GEO has in its entire existence). Then, follow the money. I don't have any smoking guns tying Sessions himself to the unions, but prominent criminal justice reform experts like John Pfaff and Anthony Bradley are pointing in that direction. Trapped by the public employee unions and desperate to reduce incarceration numbers, Pfaff even suggests increasing the use of private prisons, but with a huge twist: "Imagine that instead of paying private prisons based on the number of prisoners they held each day, we paid them based on how those prisoners performed upon release."

Everybody's Out to Make a Buck.

This was the great insight of James Buchanan and Gordon Tullock, the fathers of Public Choice Theory in economics. (Buchanan won the Nobel Memorial Prize for this work in 1986.) The profit motive is alive and well, whether you're acting as a business-person, a public official, or something in-between, as we see with union leaders. Everybody sees public policy issues from their own perspective, and hopes to keep their jobs and expand their influence. As with humans in general, rare are the morally exceptional people, those who insist on a consistent set of principles and rise above their own petty benefits in obedience to them. Famously, Charles Koch of Koch Industries has lobbied against ethanol subsidies, although Koch is one of the top producers of ethanol in the country. And it's not as though anyone is thanking him for it. Rare indeed.

If we acknowledge that there's as much nefarious motivation among public officials and labor organizations as there is among private individuals and corporations, it makes our problems, and this problem in particular, a lot harder to solve. Sorry to be the bearer of bad news. (I mean that. I really wish I had something more encouraging to report.)

If we claim to care for the voiceless, and most of the people involved in the criminal justice system are voiceless indeed, now is the time to speak on their behalf. If I'm going to raise my voice, I want to raise it with good information about causes and therefore the most effective strategy, eschewing explanations that would conveniently fit my narrative, but would not contribute to a real solution.

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