Readers of this blog are likely aware that laws structure markets, that debts transcribe an array of legal, social, and power relations, and that assumptions about how the “economy” works often form a hidden backdrop behind legal reasoning. But how can we think about America’s prisons in these terms? In forthcoming work, out soon in the Georgetown Law Journal, I take these ideas as starting points in my examination of the carceral services industry.
This post focuses in particular on the growing entanglement between U.S. prisons and private equity firms. These firms, cloaked under protective securities laws, have increasingly acquired companies that provide essential goods and services in prisons. But it is the legal construction of prisoners’ rights that enables this market to take the particular form that it does, turning community ties into steady payment streams, adding to the financial pressure prisoners and their families face. Understanding how the Eighth Amendment structures this market is key to this analysis. Decisions affirming the constitutionality of pay-to-stay fees under the Eighth Amendment, I argue, have transformed the prohibition against cruel and unusual punishment into a (subordinating) right to credit.
The Rise of the Carceral Services Market
In 2004, Securus Technologies emerged from the combination of two prison telecom companies. The business model, generating revenue from jail and prison phone calls, was narrow and straightforward. Today, by contrast, the enterprise has become vast, complex, and sprawling. Providing for video visitation, GPS monitoring, voice biometric analysis, medical recordkeeping, electronic payments, gate money, government agency payment processing, email, e-tablets, entertainment apps, and more, Securus has developed into a nationally dominant, multi-capacity carceral service provider—indispensable infrastructure for the administration of the criminal system.
This dramatic transformation was urged along through a series of leveraged buyouts, orchestrated by a network of private equity firms. The first, in 2004, came at an acquisition price of $75 million. Securus was then sold to a second PE firm in 2011 for $350 million, a third firm two years later for $700 million, and eventually a fourth in 2017 for $1.6 billion.
Debt facilitated both the entry and exit such firms needed to realize value, as securities laws created an opaque space within which this chain of acquisitions could more easily occur. Because they deal only with “sophisticated” investors, PE firms have limited public disclosure requirements. And because the PE space has exploded since the Great Financial Crisis, more transactions can occur among such firms in an expansive, yet insulated ecosystem where excessive leverage is the norm. Importantly, questions of legitimacy—whether, for example, participation in mass incarceration is an appropriate investment strategy—can be worked out within these networks, a cordoned off sphere where the moral judgments of asset managers, who mainly think and see in terms of financial risk and return, dominate. As I describe in my fuller piece, the sales of carceral service providers from one PE firm to another—coordination that enables the exits necessary to make such investment strategies viable—have become commonplace.
Communities experience this layering of debt (and fees) onto these companies as intense financial pressure of their own. In prisons, jails, and detention centers across the United States, PE-backed private companies sell food and hygiene products, facilitate communication and payments, and provide medical care to “customers” who cannot avoid their services, and who are also targets of their surveillance and data extraction. Though prisoners may work for pay, their meager salaries aren’t enough to pay for these essential goods and services. Family and friends show solidarity and express affinity by chipping in (only to have a private company siphon off a chunk of those transfers), often at the cost of falling deeper into debt of their own.
Many rightly note law’s absence here as a reason this market takes the form it does. There is an absence of robust consumer protection, for example. This leaves prisoners and their families vulnerable to coercive pressure and exploitation.
But it’s also important to think about the ways in which law is present. One instructive approach, inspired by Legal Realism, is to ask how “baseline” legal entitlements structure economic relations. Indeed, one of the key legal foundations to this carceral services market, allowing it to take the coercive form that it does, turning family and community ties into steady payment streams, is the Eighth Amendment.
The Eighth Amendment as Right to Credit
The Eighth Amendment prohibits cruel and unusual punishment. Deprivation of basic needs violates this prohibition. The flipside, then, is a state obligation to provide for a prisoner’s basic needs. Much turns on judicial interpretation of this right. If expansively interpreted, it places demands on the state. If narrowly interpreted, it accommodates state neglect. The Eighth Amendment thus gives us a preliminary boundary line, a constitutional floor for provisioning in prisons. Where the government’s direct obligations end, the potential for private companies to profit, from the redistribution of financial pressure onto vulnerable communities, begins.
No one reading this, as jails and prisons across the country remain in a state of humanitarian crisis, should be surprised to learn that a prisoner’s baseline entitlements, and the state’s corresponding obligations, are minimal. Many scholars have rightly criticized Eighth Amendment jurisprudence for its complicity in sustaining horrific conditions of confinement. Under these circumstances, supplementing state provisioning with funds from friends and family on the outside is often critical for survival in prison. But the challenge runs deeper than this.
Today, almost every state has some form of a pay-to-stay law. Under such laws, prisoners are financially responsible for some or all the basic costs of their incarceration. Consider Tillman v. Lebanon County Correctional Facility, among the most instructive pay-to-stay cases. In Tillman, the Third Circuit acknowledged that “when the government takes a person into custody against his or her will, it assumes responsibility for satisfying basic human needs such as food, clothing, shelter, medical care, and reasonable safety.” Yet the court also concluded that it was lawful to impose a debt obligation on a prisoner who received those services, and that such an obligation did not run afoul of the Eighth Amendment’s prohibition on cruel and unusual punishment. Leonard Tillman, the prisoner who brought suit, had accumulated more than $4,000 in debt from pay-to-stay fees. The sociologist Brittany Friedman’s recent work shows that Tillman’s story is not an outlier, and that these fees often translate to “civil death” upon a prisoner’s reentry into society.
Some scholars have described pay-to-stay fees as a way of not running afoul of the Eighth Amendment. They represent just one strategy to make the funding work within a state’s budgetary constraints. There’s a helpful lesson here. This conception of the “right” maintains analytical separation between the “stuff” that must legally be provisioned (goods and services) and their attendant monetary social relations. This separation suggests the former is the more appropriate object of legal inquiry and criticism, and that the latter are severable from the right itself. Such reasoning follows from the basic notion that “rights have costs,” which obscures as much as it reveals. As I encounter more students each year interested in abolition, thinking about the role of law in social transformation, it’s important to continually challenge these analytical boundaries and surface the less obvious ways in which law actively structures economic relations, rather than simply operating within their constraints. Those relations and constraints are more malleable than we think.
The prevalence of pay-to-stay fees isn’t just a sideshow. Their ubiquity and constitutionality tell us what the Eighth Amendment minimally requires, which is the provisioning of basic needs as credit. If a prisoner can’t afford pay-to-stay fees, they accrue a negative account balance, similar to a bank overdraft. That debt then hangs over them both inside and outside prison walls. The “right” here is to the provisioning of basic needs, together with its attendant monetary social relations, the creditor-debtor relationship that forms between state and prisoner. At least, that’s the baseline courts have said the Constitution guarantees. It’s left to other forms of political struggle to achieve more generous provisioning.
It’s important to insist on thinking about the right in this way. Scholars sometimes point out that, paradoxically, prison law (in particular, the Eighth Amendment) seems to guarantee, or at least facilitate claims to, new affirmative social and economic rights (such as access to food and healthcare), even as it strips away fundamental freedoms through criminal punishment. The above re-conception of the Eighth Amendment allows us to see the new “rights” of prisoners as entailing the introduction of a distinct creditor-debtor relation into the race-making institution that is the prison. Viewed as part of a broader social hierarchy, where credit occupies a central role as social provision, how this new “right” actually subordinates becomes clear. Especially for those at the bottom of the hierarchy, access to credit tends to reproduce or even amplify one’s subordinated status. What’s more, the distinct credit relations facilitated by decisions like Tillman become an additional constitutional layer (beyond the Thirteenth Amendment) that accommodates carceral labor, as prisoners are forced to work to pay their fees.
The managers of private equity firms obviously do not experience indebtedness in this way. In fact, it’s difficult to imagine a starker contrast. Yet it’s important that we hold that combined image together, to reckon with the ways in which financial capital profitably moves through human caging and into communities, and how law provides the architecture that gives such movement its basic shape.
