By Elizabeth Wong, Associate Director

The Washington Times recently reported that Virginia is considering privatizing its only facility housing individuals civilly committed for sexual offenses.  Discussion of privatizing state functions and facilities often comes from a desire to cut costs, particularly in tough economic times.  But is privatizing a facility intended to rehabilitate sex offenders a good idea?
Before addressing that question, let’s start with some basics.
The U.S. Supreme Court in 1997 affirmed the state’s authority to civilly commit sexually violent offenders even after they have served out their criminal sentences.
The ACLU opposes civil commitment because it becomes an indeterminate sentence of confinement, but we are bound by the court’s decision and therefore have put our energy into minimizing the number of persons deprived of their freedom in this way and working to ensure the due process rights and fair treatment of those individuals who may be held by the state beyond their criminal sentences.
In 2003, Virginia civilly committed its first sexually violent predator, and by fall 2011 that number grew to 270, outpacing funding and space for the program.  News outlets were abuzz last year about the rapid growth of Virginia’s civil commitment program for sex offenders.  So did Virginia suddenly have a boom in its population of sexually violent predators?
Not exactly.  According to the Joint Legislative Audit and Review Commission’s (JLARC) 2011 report (pdf), Virginia in 2006 changed its program in two ways that led to an exponential rise in civil commitments.  First, it increased the number of sex offenses for which an offender could be reviewed for civil commitment from four to 28.  Second, the state switched to the Static-99 assessment instrument, which JLARC notes, “may overestimate the risk of future re-offense.”
The ostensible goal in running the civil commitment program is to confine those sexually violent predators who pose the greatest threat to society in hopes of rehabilitating them.  If the assessment tool greatly overestimates the risk an offender might pose, then the state is unnecessarily depriving too many people of their freedoms.
Fortunately, state legislators seem to have taken JLARC’s recommendation, and this past session amended the law to provide for a new assessment tool granting more discretion to professionals to determine who is likely to recidivate.  No predictive assessment can be wholly accurate, but this change should be a step in the right direction.
In addition to cutting costs for the program by reducing the number of individuals being committed, the state is looking into privatizing the facility.  According to the Washington Times, two companies, The GEO Group and Liberty Healthcare Corp., have already submitted proposals.
Cutting costs by doing a better job of evaluating prisoners is a good idea.  Cutting costs by privatizing facilities is not.  First and foremost, punishment for a crime in which someone is deprived of his or her freedom is a quintessential state function, and only the government should be in charge of that.  No one other than the state can imprison you, and no one other than the state should be overseeing imprisonment.
Second, unlike state-run facilities, the bottom line for for-profit prisons is to make money, and the best way to do that is to cut costs.  Studies show that private facilities, for example, have higher staff turnover, less experienced staff, and often fewer staff than state facilities.
As a result, for-profit prisons may be associated with higher levels of violence toward prisoners.  In Mississippi, for example, the ACLU and the Southern Poverty Law Center filed a lawsuit against GEO and others for “a pattern of horrendous physical and sexual abuse by security staff, use of prolonged solitary confinement, abuse and neglect of mentally ill youth, and failure to provide basic mental health care.”
Liberty Healthcare Corp. also has a checkered past.  At a Florida Civil Commitment Center run by the private company, “the facility’s safety director and safety manager erased or destroyed video evidence after a resident – placed in solitary confinement after threatening to burn a female worker – was then inexplicably allowed to roam the building, after which he climbed on to the roof and jumped off.”
Neither company’s offer sounds like a good decision for Virginia.  Privatization is a bad idea in principle, and the practical results are typically bad, too.  Let’s hope that in the end our legislators are as wise in rejecting privately run facilities as they were in accepting better tools for making more accurate assessments of prisoner’s future dangerousness.
Read the ACLU's Report, "Banking on Bondage: Private Prisons and Mass Incarceration."
ACLU Infographic on Mass Incarceration: