Corporate Boards and Private Prison Corporations
This month, I’ve posted about the moral dilemma that I see facing the Board members and Executives of Private Prison Corporations. As Board members are duty bound to increase profits for shareholders, I’ve suggested that one of the primary ways that Board members can increase profits for shareholders is to engage in planning for, lobbying for and affirmatively making efforts to imprison more American citizens (and increasingly, illegal immigrants). In comments to these posts, I’ve been queried as to whether this practice is illegal or why I believe that the profit maximization duty would necessarily lead private prison executives to engage in this kind of planning.
I want to be clear that I do not believe that a duty exists for private prison executives and Board members to aggressively seek to imprison more human beings, I am simply suggesting that the duty to increase profits requires executives to consider growth as one way to maximize profits. Growth in companies that manufacture products or deliver most services, does not implicate locking people up and increasingly locking up people of color. I am perfectly willing to believe that private prison Board meetings consist of discussions about cutting costs and running more efficiently to increase profits. I also believe that private prison Board meetings involve long and intense discussions about how to convince state legislatures and federal politicians to privatize more prison facilities. Still, I remain convinced that the duty to increase profits leads private prison Boards to discuss growth which necessarily includes increasing prison sentences for those already locked up and seeking new avenues to criminalize and imprison those that are currently free. That said, the business judgment rule likely protects any and all of the above considerations. Moral or not, these are business decisions.
To the commentator that states: “There is nothing unlawful about convincing politicians seeking to be “tough on crime” to lock more people up for longer,” Professor Annette Gordon-Reed captures my thinking and states it eloquently (per her comment):
“As is often the case, what is “legal”/“lawful” is the real scandal. The end of slavery in this country brought new methods to “deal with” the black population that was not to be truly assimilated into society and was, in fact, despised. Legislators, former slave owners and their kids and grandkids, used law–being “tough on crime”– to round up black men and women whose labor was then hired out. Whether it was for profit or just to get them out of sight, law was used as a direct tool for social oppression. It was all legal, and all morally reprehensible.
The US locks up more people than any nation in the world, certainly any other industrialized nation. There is no question that blacks and people of color are disproportionately represented in the prison population. The policy of targeting those communities in the war on drugs helped to drive the rise in the jail and prison population over the past few decades. History’s fingerprints are all over this. So, I see a difference between being tough on crime because you want to raise profits and being tough on crime out of a desire to protect the public. If it’s about profits, there will be an incentive to criminalize behavior whether it harms society or not. You can do that more easily with disfavored members of society, blacks and Hispanics, for example.”