Private Prisons, Hucksters, and Civil Rights Violations: Deja Vu All Over Again

by contactus on October 14, 2013

This is an editorial by Darwin Overson, a Salt Lake criminal defense attorney who has represented clients in matters of wrongful imprisonment and appeal.  You can read more on Darwin’s blog at

On March 6, 2013, Peg McEntee reported for the Salt Lake Tribune that the Utah Legislature was going to attempt once again to sling shot a bill through the House and Senate that would pave the way for Utah to add to its two correctional facilities a private prison.  In my opinion, she was unduly critical of the proposal.  I mean we have been debating this thing for over a decade now.  Certainly we must have learned something over the years.

For good or bad, the Utah Legislature passed the bill and Governor Herbert signed it into law.  In line with the opinion piece from Frank D. Myler printed in the Deseret News in February of 1999, I think that maybe it is time to just do it!  “Utah Should Give Private Prisons A Chance,” said Myler.  Go free enterprise!  With eight years of representing the Utah State Department of Corrections under his belt, and as an adjunct professor of correctional law at the University of Utah,  Myler’s argument for private prisons could be boiled down to “it’s fast, free and safer.”  Here he is,

If Utah wants safe streets without raising taxes, it must rely upon the private sector to manage an increasing share of its jail and prison populations. When one considers that every aspect of the legal system (i.e. therapy and counseling, medical services, mental health services, probation supervision, arbitration and even attorneys) is currently privatized to some degree with excellent results, there is no reason to fail to take advantage of what private enterprise has to offer for incarceration services.


By 2010, the editorial board at the Deseret News was of a different mind than Myler, and wrote a piece that pointed out that private did not mean safer.  Naysayers.


I for one welcome the passage of SB72 recently signed into law by Governor Herbert.  It provides for removing the existing Draper prison and replacing it with a private prison system.   After much consideration, I am convinced that the new law is going to be good for business–my business that is.

See, whenever a prison is built that exceeds the capacity actually needed in a state, such as is the case here in Utah, pressure builds to fill those beds by increased law enforcement efforts, stricter sentencing and even importing prisoners from other states to take up the excess capacity.

The pressure builds because it can be frustrating for a state to have a facility with lots of empty beds.  Just ask Mississippi about their experience with the private prison built by our very own Centerville company MTC (and no, it is not the facility where you trained for your mission).  In 2002, the Wall Street Journal reported that Mississippi paid MTC to house 900 prisoners that did not exist.

Could that happen here?  Yes but it probably won’t.  Yes because if we believe the Utah State Department of Corrections, we don’t really need another prison yet-maybe another women’s facility but that’s a small facility.  There are some really nice and telling graphs on the Utah State Department of Corrections website that show a maximum prison capacity of 7,270 inmates and we currently have 6,935.


Maybe we need another prison.  Maybe not.  Either way, if they build it, I am confident they will soon fill it.  I am also confident that if Utah does agree to pay for a private prison, my criminal defense business will be positively impacted.

I am not the only one that would benefit.  Part of the new law authorizes moving the existing prison in Draper to another location under a Prison Land Management Authority.  Let’s just face it, developers and other interested parties have been salivating over that property for at least a decade.  Mike Leavitt, former Utah governor and Administer of the EPA, Secretary of Health and Human Services, now reincarnated as lobbyist, is pushing the plan hard and has been for a long time now.  It has got to be a good idea with Mike behind it.

But not everyone agrees.  Jesse Fruhwirth of the Salt Lake Prison Divestment Group certainly does not like the plan.  He says, “This is a bunch of money being spent by the taxpayers up front for a bunch of promises.  You know what that sounds like? That sounds like an Obama stimulus plan.”  He clearly isn’t impressed.

So how much would it cost to move the Draper prison so that the land could be privately developed?  Just to move the prison will cost the state $550 million.  Add another million just to pay for the Prison Land Management Authority.  (With typical sleight of hand, the legislature’s budget impact statement states that the law would have no costs).

Fully developed, how much is the Draper property worth?  A mere $140 million and that is after full development.  Proponents of the bill, many of whom are part of the private prison industry, say that number underestimates the value of the project because it doesn’t take into account the windfall to the economy from all the jobs it would create.  I wonder if those jobs will pay as well as the state jobs that will be lost.

One job it would create, or at least make more lucrative is mine.  I am pretty certain that my civil rights litigation business will experience a positive impact since private prisons, such as Correctional Corporation of America are notorious for violating prisoners’ civil rights.

For instance, Correctional Corporation of America got in hot water with the FBI when video of inside of an Idaho private prison showed guards standing (and sitting) idly by as prisoners assaulted other inmates.  The practice there was found to be to let the inmates establish order inside the facility.

That instance started when inmate Hanni Elabed identified a number of inmates as being involved in peddling contraband with a prison staff member.  Shortly after, prison staff reassigned him to the cell block of the inmates who had had previously identified as being involved.  The assault left him with brain damage and prompted his medical release from the prison.

I had a client that was sexually and physically assaulted in his first week there under very similar circumstances.  I also have visited that facility on many occasion and found the staff highly inept and dangerously disrespectful of the safety of prisoners and non-prisoners alike.

Elsewhere, MTC was sued in Arizona after three of its inmates escaped and killed two campers.  The victims’ families sued for $40 million.  Arizona moved 150 of its high risk inmates out of that facility because its investigation found that the escapes were made possible by the absence of a functional perimeter security system.  The three escaped by cutting a hole in the fence–seriously.

Closer to home, MTC managed Promontory minimum security prison in Draper lost three inmates in 1999 when they used a file to cut a hole in the fence.  Two others had escaped earlier that year.

The track record is not so good and I haven’t even mentioned the suicides and medical maltreatment at some of these facilities.  Even Idaho had to recall prisoners from a private prison in Texas because conditions were so bad there.  And that’s Idaho.

So on balance, what are the advantages of going with privatized prisons?  There are none.  In 2007, a University of Utah study concluded that there were no clear, proven advantages or disadvantages to hiring companies to run prisons.

I still say go ahead and do it again and maybe this time it will actually happen.  See, this is not the first time Utah has attempted this transition to a privatized prison system.  In 2001, if you will recall, the state paid Cornell Corrections $1.5 million for construction plans that were abandoned after the prison population dropped that year by 5.2%.

Utah’s new private prisons law is, unfortunately, just déjà vu all over again.  Sorry Peg McEntee.

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