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Tucson Police

On May 29 in Tucson, Ariz., a policeman questions a man in the city’s predominately Latino south side. The Tucson Police Department is gearing up to train its officers on how to implement the state’s new immigration law, S.B. 1070. (Photo by: Scott Olson/Getty Images)

Corporate Con Game

How the private prison industry helped shape Arizona’s anti-immigrant law.

BY Beau Hodai

Members of the American Legislative Exchange Council (ALEC) include Corrections Corporation of America (CCA), Geo Group and 36 Arizona state legislators.

For a detailed schematic of the connections between Arizona politicians and the private prison industry, see this story's sidebar, "Ties That Bind."

Meet the Old War, Same as the New War

The war on undocumented immigrants initiated by Arizona State Sen. Russell Pearce (R-Mesa) is not the first time legislation sponsored by the American Legislative Exchange Council (ALEC) has filled the nets and bank accounts of the private prison industry.

In the early '90s, the ALEC's Criminal Justice Task Force was co-chaired by Corrections Corporation of America (CCA), the country's largest private prison company. During those years, the National Rifle Association (NRA), another task force member (and the current task force co-chair), initiated a campaign to introduce two pieces of ALEC-inspired legislation at the state and federal level: the so-called "truth-in-sentencing" and "three-strikes-you're-out" laws. Truth-in-sentencing called for all violent offenders to serve 85 percent of their sentences before being eligible for release. Three strikes called for mandatory life imprisonment for a third felony conviction.

The NRA campaign, dubbed "CrimeStrike," was seen by many as a reaction to the Clinton administration's efforts to pass gun control. CrimeStrike set forth the precept that "guns don't kill people, people kill people" and derided any legislator backing gun control as being "soft on crime." With memories of the Willie Horton disaster of the failed 1988 Michael Dukakis presidential campaign still on the minds of lawmakers, this accusation hit a nerve and elicited knee-jerk support of the laws by Democrats.

By 1996, CrimeStrike claimed credit for the passage of three strikes laws in Washington, California, Georgia, Delaware and North Carolina, as well as truth-in-sentencing laws in Arizona, Mississippi and Virginia. Subsequently, prison populations surged.

While the NRA was busy peddling these laws through CrimeStrike, ALEC was pushing its agenda in Pennsylvania with the help of former George H.W. Bush Attorney General William Barr and then-Pennsylvania governor and ALEC member Tom Ridge, a future director of the Department of Homeland Security.

In 1995, the Pennsylvania Legislature passed several pieces of tough-on-crime laws based on ALEC model legislation. ALEC member and State Rep. John Perzel (R-Philadelphia) was the Pennsylvania House majority leader from 1995 to 2003, when he was elected House speaker. In 2005, he joined the board of directors of ALEC member Geo Group, the nation's second largest private prison corporation. Perzel resigned from the corporation's board In November 2009, following an indictment handed down that same month for his alleged role in a scandal. His staffers and other lawmakers were charged with using taxpayer dollars to fund their campaign activities.

In May, Pennsylvania legislators introduced the "Support Our Law Enforcement and Safe Neighborhoods Act," making Pennsylvania one of the first states to consider legislation modeled on ALEC's Sanctuary Cities Act.

Beside my brothers and my sisters, I’ll proudly take a stand. When liberty’s in jeopardy, I’ll always do what’s right. I’m out here on the frontline, sleep in peace tonight. American soldier, I’m an American soldier…”

So goes the ringtone of Arizona State Sen. Russell Pearce’s (R-Mesa) phone–as performed by Toby “we put a boot up your ass, it’s the American way” Keith. Seconds into any conversation with Pearce about illegal immigration, you’ll discover that the song fits. In his mind, Pearce is an “American soldier” fighting a war that he believes threatens the very fiber of the nation.

“There’s been 133 nations identified crossing that border. Not just Mexicans, not just Hondurans, not just El Salvadorians, but 133 nations. Many of those are nations of interest, which means that they either harbor, aid and abet, or are somehow connected to terrorist activities,” says Pearce. “And yet they continue to cross that border. We’ve got prayer rugs that have been found down there, other things that have been found down there–and yet they [the federal government] continue to do nothing.”

So Pearce decided to do something. He became the proud and primary sponsor of S.B. 1070–the Support Our Law Enforcement and Safe Neighborhoods Act–signed into law by Arizona Gov. Jan Brewer in April and set to take effect on July 29.

Yet the fact is, some backers of S.B. 1070 are wrapping themselves in the flag all the way to the bank.

An In These Times investigation shows that the bill’s promoters are as equally dedicated to border politics as they are to promoting the fortunes of private prison companies, like Corrections Corporation of America (CCA) and Geo Group, which stand to reap substantial profits as more undocumented residents end up in jail.

Pearce and the policy pushers

In early December 2009–a full month and a half before S.B. 1070 was introduced to the Arizona Senate and nearly two months before its counterpart was first read in the House–Pearce formally submitted a version of his drafted legislation to the American Legislative Exchange Council (ALEC), an organization to which he and 35 other Arizona legislators belong.

A 501(c)(3) nonprofit organization, ALEC bills itself as “the nation’s largest bipartisan, individual membership association of state legislators” and as a public-private legislative partnership. As such, ALEC claims as members more than 2,000 state lawmakers (one-third of the nation’s total legislators) and more than 200 corporations and special-interest groups.

The organization’s current corporate roster includes the Corrections Corporation of America (CCA, the nation’s largest private jailer), the Geo Group (the nation’s second largest private jailer), Sodexho Marriott (the nation’s leading food services provider to private correctional institutions), the Koch Foundation, Exxon Mobil, Blue Cross and Blue Shield, Boeing, Wal-Mart and Rupert Murdoch’s News Corporation, to name just a few.

ALEC is comprised of 10 task forces, each responsible for developing “model legislation,” which ALEC member lawmakers then sponsor and introduce in their home states. This occurs despite the fact that federal tax law explicitly forbids 501(c)(3) organizations such as ALEC from taking part in the formation of legislation. ALEC promotional material boasts that each year member legislators typically carry 1,000 pieces of legislation back to their home states, 20 percent of which is passed into law.

As a testament to ALEC’s efficacy as a pipeline for corporate-backed legislation, since the passage of the federal healthcare overhaul package in late March, legislators in at least 38 states have introduced the ALEC-crafted Freedom of Choice Health Care Act (Health Care Act). Ironically, given the fetish Pearce and other ALEC lawmakers have for adherence to federal immigration laws, the Health Care Act is marketed as an assertion of the states’ sovereignty under the Tenth Amendment. Interestingly, ALEC claims that the Health Care Act is based on an Arizona proposition that was defeated on the ballot in 2008.

Pearce is an executive member of ALEC’s Public Safety and Elections Task Force. The private-sector executive members of this task force include CCA, the American Bail Coalition (which is comprised of nine of the nation’s top bail bond insurer/bounty hunter associations), the National Beer Wholesalers Association, the Wine and Spirit Wholesalers Association, the National Pawn Brokers Association and Prison Fellowship Ministries. The private-sector chair of the Public Safety Task Force is the National Rifle Association (NRA).

Although ALEC’s legislative members far outnumber corporate members, a look at the group’s finances illustrates not only the price corporations are willing to pay for a seat at the table with state lawmakers, but where the group’s loyalties likely lie. According to ALEC’s most recent tax records, in 2008 the group reported a total of $6.9 million in revenue–$93,387 of which was brought in through legislative membership dues (a two-year membership is available to lawmakers for $100, or four years at $200). On the other hand, ALEC received $5.6 million (all but $1.3 million of the group’s annual budget) in contributions from its corporate and special-interest members.

According to Michael Hough, director of ALEC’s Public Safety and Elections Task Force, every bill introduced by any member legislator or corporation must go through a 30-day review process of approval by both public and private sector ALEC members before it can become model legislation. This process, Hough says, was set in motion for Pearce’s immigration bill when he submitted it to the Public Safety and Elections Task Force during the group’s December 2009 meeting in Washington, D.C.

Pearce denies that he submitted the bill to ALEC for any purpose other than to gain its endorsement and strengthen the legislation’s ability to weather legal challenges both in Arizona and other states.

However, ALEC does not issue endorsements, says Hough, but rather works with lawmakers in the formation and dissemination of model legislation. And, according to Hough, the model legislation that emerged from Pearce’s ALEC task force in early January is virtually identical to the bill introduced by Pearce in the Arizona Legislature later that month.

Sanctuary city ‘anarchists’

All Arizona is seeking to do, says Pearce, is enforce current federal immigration laws–laws that liberal lawmakers and “loudmouth anarchist” groups in so-called “sanctuary cites” flagrantly violate.

“It’s illegal to have sanctuary policies in this state under federal law, but we have them all over this country. I mean, L.A. and San Francisco being–if you will–the poster cities of what’s wrong with America,” says Pearce.

To remedy this situation, the ALEC model legislation (“No Sanctuary Cities for Illegal Immigrants Act”) and Pearce’s Arizona bill both feature anti-sanctuary cities provisions that prohibit any municipal, county or state policy from hampering the ability of any government agency to comply with federal immigration law. The ALEC model legislation and the Arizona law also both include sanctions aimed at those who employ illegal immigrants and tougher penalties for human smugglers.

The Arizona law has drawn the most fire for its so-called “Breathing While Brown” provision that allows law enforcement officers to arrest anyone whom they have probable cause to believe may have committed a crime–such as being in Arizona without proper documentation. When the law goes into effect on July 29, any person in Arizona found to be without legal papers will be charged with the new state crime of “willful failure to complete or carry an alien registration document,” under Arizona’s criminal trespass statutes.

These new criminal offences carry a maximum fine of $100, up to 20 days in jail (30 days for a second offense) and restitution of jail costs. By creating these state level offenses–and by forbidding localities from ignoring them–Pearce’s Arizona law and ALEC’s model legislation effectively convert every state, county and municipal police officer into an enforcer of federal immigration law.

According to Hough, the main difference between the final version of the Support Our Law Enforcement Act as signed into law in Arizona and the Sanctuary Cities Act that ALEC is promoting across the country is that the ALEC legislation carries more stringent penalties under the criminal trespass section than the Arizona law.

Under the Sanctuary Cities Act’s criminal trespassing provision, first offences are still Class 1 misdemeanors, but there is no 20- to 30-day cap on incarceration as the final version of Arizona’s S.B. 1070 provides. Additionally, the Arizona legislation classifies subsequent offenses as misdemeanors and the Sanctuary Cities Act classifies repeat offenses as felonies, which carry lengthier terms of incarceration.

‘Enhanced opportunities’

Questions of justice aside, the immigration dragnet created by S.B. 1070 in Arizona and the Sanctuary Cities Act, will greatly increase the numbers of undocumented residents who are arrested and jailed. And that bodes well for the bottom lines of private detention corporations such as CCA and Geo Group. (Neither Geo Group nor CCA responded to repeated requests for comment.)

Over the past decade, the private-prison industry has increasingly shifted its attention to the burgeoning fields of undocumented and criminal alien detention. From January 2008 to April 2010, CCA spent $4.4 million lobbying the Department of Homeland Security, Immigrations and Customs Enforcement (ICE), the Office of the Federal Detention Trustee, the Office of Budget Management, the Bureau of Prisons, and both houses of Congress. Of the 43 lobbying disclosure reports CCA filed during this period, only five do not expressly state intent to monitor or influence immigration reform policy or gain Homeland Security or ICE appropriations.

Looking at the numbers, it is easy to see why the private-prison industry is eager to expand into immigrant detentions. According to ICE Public Affairs Officer Gillian Brigham, in fiscal year 2009, ICE detained 383,524 individuals, with an average daily prisoner population of 32,098 spread across the nation’s 270 immigrant detention centers.

Due to the rising numbers of immigrant detentions in recent years, coupled with the rising tide of economic shortfalls at both the state and federal level (ICE reported a $140 million budget deficit for fiscal year 2010), ICE has farmed out the operations of many of these facilities to either county operators under inter-government service agreements (IGSAs) or to private-prison contractors who operate the facilities on a per diem, per inmate basis.

Currently, seven of these facilities are “contract detention facilities” (CDFs) owned and operated by either CCA or Geo Group. However, according to Brigham, ICE uses several types of facilities for immigrant detention, including county or state-owned jails and prisons contracted out by ICE under IGSAs, and “service processing centers,” which are facilities operated by both federal and private detention staff.

An example of one of these IGSA enterprises would be the nation’s largest immigrant detention facility, the Willacy County Processing Center in Raymondville, Texas. This jail, though owned by the county, is operated by Management and Training Corporation, a Utah-based private prison manager. Consisting of several massive dome-like structures, the Willacy “Tent City” can warehouse more than 3,000 immigrant detainees awaiting deportation at any given time.

However, according to Brigham, ICE does not keep tabs on who is operating these detention centers at the state or county level through IGSAs, so it is difficult to assess how many of these facilities are run by private firms. In addition, ICE is not the only federal agency to contract out immigrant detention beds to these corporations. The detention of undocumented aliens, who are convicted of a crime and must serve a sentence before deportation, is also farmed out to private-prison contractors through the Bureau of Prisons and the U.S. Marshals Service.

Understandably, Geo Group and CCA are optimistic about their industry’s future. They plan to expand operations or fill thousands of detention bed “inventory surpluses” around the country (including in Arizona) in response to what these corporations refer to as “organic growth opportunities.” The drivers of this growth include the increase of immigrant detentions and the inability of the federal and state governments to meet detention needs due to budgetary constraints.

In May, during the Geo Group’s first-quarter investor conference call, a prospective investor asked Geo CEO George Zoley what impact Arizona’s immigration law might have on business. Zoley responded with levity: “What? They have some new legislation? I never heard about it. I think I’m increasingly convinced of their need for 5,000 new beds.”

Wayne Calabrese, Geo Group’s chief operating officer, offered a more straightforward appraisal.

“I can only believe that the opportunities at the federal level are going to continue at pace as a result of what’s happening. I think people understand there is still a relatively low threshold of tolerance for people coming across the border and those laws not being enforced,” Calabrese said. “And that to me at least suggests there are going to be enhanced opportunities for what we do.”

Beau Hodai, a former In These Times Staff Writer, is the founder of DBA Press (dbapress.com), an online news publication and source materials archive.

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