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Prison Contracts, Health Exemptions and Race

HIV-Positive Inmates Too Expensive for Private Prison Operators?

by CHRISTOPHER PETRELLA

Defenders of the for-profit prison industry reflexively insist that privatization—or the process of subjecting “correctional services” to market pressures—will naturally generate efficiencies as companies respond to competitive forces. They claim that the “market incentives” will generate the types of efficiencies that lay beyond the scope and capacity of public corrections agencies. Despite flimsy empirical support, this argument serves as the bedrock for claims of the so-called “cost-effectiveness” of private prisons.

Efficiency-based criteria for evaluating the performance of private prisons are valid if and only if qualitatively different and unequal outcomes can be generated from equal inputs. That is, the legitimacy of efficiency-based arguments hinges on producing demonstrably better results with similar ingredients. The private prison industry, however, is in no position to make such bold claims. The industry is ethically and empirically bankrupt.

Such pronouncements are virtually impossible precisely because public and private prison operators interface with vastly different “inmate portfolios.” For instance, Corrections Corporation of America (CCA)—the  nation’s largest publicly-traded, for-profit prison company—has long been known for “cherry picking” prisoners to house that are low cost, specifically excluding prisoners with chronic medical conditions, the elderly, maximum-security prisoners, death row inmates, juveniles sentenced to adult prisons, and female prisoners. Inconsistent selection criteria make reasonable, empirical cost comparisons—the very types of equivalencies upon which arguments of efficiency are based— extraordinarily difficult.

Strategically selecting the least costly inmates to incarcerate implicitly suggests a certain “deliberate indifference to the serious medical needs” of prisoners, a rather obvious Eighth Amendment violation that Corrections Corporation of America circumvents through exemptions stipulated in contracts with various state departments of corrections.

Though prison officials are obligated under the Eighth Amendment to provide prisoners with adequate medical care irrespective of cost, Corrections Corporation of America’s latest contract with the State of California explicitly exempts the company from paying for “all HIV or AIDS related inpatient and outpatient medical costs and the costs of providing AZT or other medications therapeutically indicated and medically necessary for the treatment of offenders with HIV or AIDS.” Similar language, in fact, appears in a recent contract between CCA and the state of Vermont: “the contractor shall not be responsible for inpatient hospitalization costs, including any surgery and specialty services, associated with the treatment of persons with known AIDS, as defined by the Center for Disease Control…”

Such an exemption—one produced through the collusion of private prison firms and state departments of corrections—is both ethically and economically disgraceful.

How efficient is a privatized system of corrections that willfully omits inmates for whom medical care—especially treatments associated with HIV/AIDS—will be most costly? Effectively requiring state departments of corrections to provide reasonable medical care to vulnerable populations represents a significant externality that private prison companies regularly refuse to absorb. Not only is contractually pre-selecting inmates worthy of HIV-care privatized facilities morally opprobrious, but it’s also a tacit admission that arguments of efficiency advanced by the for-profit corrections industry fail to account for externalities assumed by the public. Drawing equal linkages between unequal circumstances is an exercise in magical thinking.

CCA’s intransigent refusal to cover costs associated with “all HIV or AIDS related impatient and outpatient medical costs and the costs of providing AZT or other medications therapeutically indicated and medically necessary for the treatment of offenders with HIV or AIDS” disproportionately disadvantages populations in which HIV/AIDS has become asymmetrically concentrated: low-income, communities of color. CCA’s exemption for “all HIV or AIDS related impatient and outpatient medical costs” is particularly problematic in light of a recent study highlighting the overrepresentation of people of color in private prisons relative to public counterpart facilities.

According to the National Minority AIDS Council’s most recent publication entitled “Mass Incarceration, Housing Instability, and HIV/AIDS” the overlapping epidemics of mass incarceration and HIV/AIDS have become disproportionately concentrated among economically marginalized persons of color over the past three decades in the United States. As a result, a substantial proportion of people living with HIV in the U.S. have spent time in prison or jail. The report indicates that each year “155,000 Americans living with HIV/AIDS are released from a correctional facility” and that “people of color represent the majority of new AIDS diagnoses, new HIV infections, those living with HIV/AIDS, and AIDS deaths.” More specifically, although Blacks represent only 13 percent of the U.S. population, they have accounted for 46 percent of new HIV infections, 44 percent of people living with HIV disease, almost half of new AIDS diagnoses in recent years, and nearly 40 percent of the U.S. carcarel population.  Latinos, likewise, bear a disproportionately heavy burden of the epidemic. Despite comprising only 16 percent of the U.S. population, Latinos now account for approximately 20 percent of new HIV infections and over 40 percent of the federal prison population.

Though access to HIV care in correctional settings is legally protected under the U.S. Constitution, the financial burden for providing these services is decidedly retained by the state, a strategic maneuver that simultaneously deflates the per diem rate for private prisons and skews upward the cost for public prisons. While private prison companies can craft exemption-saturated contracts, state departments of corrections cannot (nor should not!) exempt themselves from the Constitutional obligation of providing adequate medical coverage to incarcerated populations irrespective of cost. In the end, the private prison industry’s appeal to efficiency, in part, is made possible by circumventing Constitutional requirements through contractual exemptions, a ruse that continues to marginalize already vulnerable populations.

Christopher Petrella is a prisoners’ rights activist, a doctoral student at U.C. Berkeley, and a political journalist.