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Can private jails come to Canada?
By Donalee Moulton

January 20 2012 issue

Toronto criminal defence lawyer Adam Goodman says the constitution should form a barrier to any thought of bringing private prisons to Canada. [Photo by Paul Lawrence for The Lawyers Weekly] 
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A controversial report from the American Civil Liberties Union (ACLU) slams private prisons and mass incarceration in the U.S. for harming imprisoned individuals and the government’s bottom line while making companies extremely wealthy.

Legal experts in Canada say that the same jailhouse problems — ​escalating violence, increased costs, and overcrowding — ​exist in this country, and the federal government’s new omnibus crime bill may sow the seeds for private prisons here. There is, however, a constitutional issue that may make this impossible. The federal government is also saying private prisons are not coming to Canada.

Key issues raised in the ACLU report, Banking on Bondage: Private Prisons and Mass Incarceration, are also issues in Canada today, despite the lack of private prisons, said Constance Backhouse, a law professor at the University of Ottawa. “We know that the cost of keeping individuals in prisons is exorbitant, and hugely wasteful.  We know that putting distressed convicts into close confines with other distressed convicts is not rehabilitative. We know that prisons are relatively lawless, and becoming more so.”

“The Tories talk about law and order, but they care little about whether law is observed inside prisons,” she said. “Instead, they abandon prisoners and guards to their fates inside violent, sick, disturbed institutions.”

There is concern that Ottawa’s tough new crime bill, the Safe Streets and Communities Act, will put greater pressure on the prison system by putting even more people behind bars. “Given the Harper government’s hard-line approach to incarceration, one wonders what on earth they will do when they are inundated with the huge increase in prisoners that is bound to result.  They may just be foolish enough — ​or desperate enough — ​to resort to private prisons,” Backhouse said.

That’s not going to happen, at least anytime soon. “The government of Canada is not considering the privatization of federal prisons,” Jessica Slack, spokeswoman for Public Safety Canada in Ottawa, told The Lawyers Weekly.

Adam Goodman, a criminal defence lawyer in Toronto, believes there is another barrier to private prisons in this country: the constitution. “Prisoners still have their Charter rights, which only [apply] to people’s relationship with government. Would it then be the responsibility of individual companies to uphold Charter rights? This is a worrisome question,” he said.

Implicit in that question is the value Canadians place on constitutional rights, and why private prisons might well be anathema in this country. “This is an area where Charter rights are paramount,” Goodman said. “It’s a fair implication that these rights aren’t that important if we pass them off to someone else.”

In 2001, Ontario did just that. The provincial government, under the leadership of Correctional Services Minister Robert Sampson, opened the first private prison in the country, a 1,200-inmate superjail in Penetanguishene. Five years later it was shut down in the wake of allegations that prisoners’ health was worse, their recidivism rates were higher and security was worse.

A year after the Central North Correctional Centre locked its doors for good, Sampson was appointed chair of an independent panel to review the operations of Correctional Service Canada. According to the panel’s final report in 2007, it was “not mandated to consider the introduction of privately-run penitentiaries into the federal correctional system.”

The five-member panel did conclude that, “the picture of who is arriving at penitentiary doors is an alarming one.” One in six, they found, have known gang and/or organized crime affiliations; about four out of every five offenders arrive with a serious substance abuse problem; and 12 per cent of male offenders and 26 per cent of female offenders have a very serious mental health problem.

Given the increasing numbers of inmates and the aging infrastructure, private prisons may look attractive. That appears to be the situation in the United States. At present, the U.S. puts more people in jail — ​both per capita and in absolute terms — ​than any other nation in the world.

“Between 1970 and 2005, the number of people incarcerated in the United States grew by 700 per cent. Today, the United States incarcerates approximately 2.3 million people,” David Shapiro, ACLU staff attorney and author of Banking on Bondage, stated in the 55-page report. “According to the Congressional Research Service, the United States has only five per cent of the world’s population but a full 25 per cent of its prisoners.

“Leading private prison companies essentially admit that their business model depends on high rates of incarceration,” he added. “For example, in a 2010 annual report filed with the Securities and Exchange Commission, Corrections Corporation of America (CCA), the largest private prison company, stated: ‘The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices…’ ”

“I don’t find that surprising,” Goodman said. “[Private prisons] are going to want to keep people in jail. These are not companies really concerned with service and branding.”

Private prisons are relatively new to modern America. Virtually non-existent until the early 1980s, they are now a common part of the legal landscape in the U.S. having increased by approximately 1,600 per cent between 1990 and 2009, the Bondage report stated. “Today, for-profit companies are responsible for approximately 6 per cent of state prisoners, 16 per cent of federal prisoners, and, according to one report, nearly half of all immigrants detained by the federal government. In 2010, the two largest private prison companies alone received nearly $3-billion [U.S.] in revenue.”

Shapiro told The Lawyers Weekly there are also concerns about the quality of care incarcerated individuals receive in private prisons, but as he documented in his report, the data is less conclusive in this area. Private facilities have also been linked to “atrocious conditions,” Shapiro wrote. “In a juvenile facility in Texas, for example, auditors reported that cells ‘were filthy, smelled of feces and urine.’ ”

Again, Goodman is not surprised. “The role of these companies is to make money. It seems logical to assume they would cut corners to make that money.”

A senior executive at Community Education Centers (CEC), a private prison operator based in West Caldwell, N.J., dismissed the findings in the ACLU report, calling it “pretty poorly researched” and “shoddy work.”

“Over the past decade, New Jersey’s prison population has declined by more than 20 per cent…and the state’s recidivism rate reduction…is the best in the northeast and top five in the nation,” William Palatucci, senior vice-president and general counsel, told The Lawyers Weekly

“CEC is very proud of its contribution to those numbers, of which none find their way into the ACLU report.”

Shapiro would like to see the U.S. address the concerns raised in his report. “Stop building private prisons, close existing ones, and pursue serious criminal justice reform that reduces the number of people behind bars,” he said.

That solution seems an unlikely one, at least with respect to the first two recommendations. Privatization of the prison system continues to grow in the United States. Recently, for example, Arizona announced plans to award 5,000 additional prison beds to private contractors despite a statement by the state’s auditor general that for-profit imprisonment may cost more than incarceration in publicly operated facilities.

For now, the movement to build private prisons has stalled at the Canada-U.S. border. However, when the Safe Streets and Communities Act becomes firmly entrenched in the legal landscape, the thinking may change as demand for prison facilities spirals. According to Correctional Service Canada, an additional 2,700 inmate spaces were needed at an estimated cost of $2 billion before Bill C-10 was passed in December. Now, those figures are expected to rise to an estimated 4,200 and $5 billion, respectively.

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