Inside Private Prisons: New Book Examines the Industry Around Mass Incarceration

By the end of 1980, the nation held what was then a record total of 329,122 people behind bars. Twenty-eight states and the District of Columbia were under court orders to reduce overcrowding, while 16 states reported a backlog of sentenced prisoners merely waiting in local jails for space in state prisons. The Justice Department noted that since 1969, the number of prisoners held in the United States had increased by 61 percent.

Today’s startling numbers – 1.51 million people in state and federal prisons – would have seemed unbelievable in 1980.

In the early 1980s, state policymakers faced a choice: to either reduce prison populations or build additional, expensive facilities. It turned out that taxpayers were unwilling to foot the bill to pay for more prisons, and legislators would lose reelection if they appeared soft on crime. As Donna Selman and Paul Leighton wrote in their 2010 book Punishment for Sale, any “discussion of alternatives to incarceration was the kiss of death.”

Enter a group of shrewd entrepreneurs who would become the main players in the privatization of American prisons. The biggest players in the game in the early 1980s – and those poised to notice the tremendous financial potential of America’s penchant for metal bars – were the founders of Corrections Corporation of America. CCA was formed in 1983 by Thomas Beasley, formerly head of the Republican Party of Tennessee; Robert Crants, a businessman; and T. Don Hutto, who served as the president of the American Correctional Association and as the director of corrections in Virginia and Arkansas. No stranger to profit motives, Hutto, as director of corrections in Arkansas in 1978, was found by the US Supreme Court to have “evidently tried to operate their prisons at a profit” as incarcerated people were ordered to work on prison farms ten hours a day, six days a week, without appropriate clothing and footwear.

In November 1984, CBS’ 60 Minutes profiled CCA as part of a segment on prison privatization. “Just a few years ago, the very idea of prison for profit would have seemed ludicrous,” reporter Morley Safer narrated, “given the escalating costs and problems of running prisons, given that it’s an area of public service that only brings blame and rarely praise.” Beasley, then CCA president, referred to prisons as a “growth industry.” Beasley told Safer, “the prison population in this country has never gone down but twice—during World War I and World War II—and those operations are self-explanatory, I think.”

In acknowledgement of the profit opportunity the next few decades would bring, CCA’s 1994 annual report to shareholders said, “There are powerful market forces driving our industry, and its potential has barely been touched.” Today about 9 percent of those behind bars in 28 states and in federal prisons – more than 128,000 people – are in prisons run by the private sector. More than half of all private prison beds are owned by CoreCivic, the new name for CCA.

After more than thirty years of intense debate, my book Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration (Columbia University Press) explores an industry that raises profound questions about state responsibility, economic development, morality, and the nature of punishment. What do private prisons mean for Americans? What does it mean for a for-profit company to manage jails and prisons? Is it legal to delegate such a core government duty? Is it moral to do so? Do private prisons save money? And if so, does that validate the industry? Perhaps the most important question is how we got to the point where such an important public policy is delegated to a major corporation.

Private prisons have been criticized for as long as they’ve existed. Some argue they create perverse incentives that drive overcrowding by cutting costs and reducing prisoners’ quality of life. Or that the corporations that run private prisons earn additional revenue when incarcerated individuals serve more of their sentence, encouraging private prison officials to hand out extra infractions that extend their sentences.

Others take issue with the concept of a corporation profiting off the nation’s predilection for incarceration, rewarded for the sheer number of people they can house rather than for successfully rehabilitating and reintegrating prisoners into society. For decades, some legal scholars and policymakers have contended that there are certain state functions that simply shouldn’t be delegated – and that one of those is punishment.

The stories and voices in my book offer a glimpse into the privatization of corrections through the eyes of those who are incarcerated, their families, local government, directors of state departments of corrections, private prison officials, legislators, and criminal justice experts. This story comes at a time in the American narrative when correctional populations have begun, finally, to flatten out. The number of people incarcerated in state and federal prisons decreased by 18,700 (around one percent) from 2015 to 2016 (the most recent period where data is available), yet the U.S. still has a higher percentage of its population behind bars than almost any other country on the planet. And while the overall number has gone down, the number of people in private prisons has increased around two percent over the same period. Today, five states house at least 25 percent of their prison populations in private facilities.

The U.S. and the rest of the world could surely benefit from far less prisons. Too many people and their families suffer needlessly because of the psychological, economic, and physical toll that even the shortest stay behind bars inflicts on people. In fact, my organization, the Brennan Center for Justice at NYU Law, recently issued a report finding that 40 percent of people in state and federal prisons don’t need to be there for public safety reasons.

This book does not endorse the use of private prisons. Given the political reality that private prisons are not going to be abolished soon, it seeks practical ways to improve them. It explores the impact of the for-profit prison industry and asks what the industry’s flaws are, and whether they can be fixed. It seeks to change the incentives of private prisons that reward more incarceration so that they instead reward better conditions of confinement, better rehabilitative opportunities, and ultimately lower recidivism rates.

I recognize that even asking whether the industry can be improved has worrying moral ramifications. If as a matter of principle it is wrong, as some say, to profit from punishment, anything short of abolition – including proposing reforms – risks complicity in an indefensible industry. But in the meantime, tens of thousands of people pass through the doors of private prisons and private immigration detention centers. How the institutions function matters a great deal to people in those facilities and to us, and it is the concern that drives this book’s inquiry. As the broader debate rages, are there ways to improve these institutions, to shift the incentives that shape them?

For-profit prisons and the broader prison-industrial complex that surrounds corrections today are not the engine behind the growth of prison populations. To be sure, eliminating private prisons entirely would only shrink the state prison population by 7 percent. Yet private prisons have become ground zero of the anti-mass incarceration movement, since the closure of these prisons is a concrete step to reducing the number of people behind bars in America.

Private immigration detention centers have also come under increased scrutiny under the Trump administration, which has focused on detaining more undocumented immigrants, as evident by the number of people detained by ICE. ICE data indicates that the agency held an average of more than 42,000 people in custody each day throughout fiscal year 2018, compared to a 2017 high of just over 38,000. GEO Group, another private prison operator, as well as CoreCivic both donated $250,000 to the Trump inaugural committee, and shortly thereafter, the current administration requested more than $1.2 billion in the 2018 federal budget to expand detention capacity to more than 48,000 beds a day, which would likely result in a boon for the private prison corporations. And since private prisons operate under a veil of secrecy by claiming exemption from public records laws that apply to government-operated facilities, federally funded private prisons and immigration detention centers remain a black box.

In late 1984, Congress held hearings to learn more about the private prison industry. At the close of the November hearings, Congressman Robert Kastenmeier thanked the witnesses for testifying and said about the industry: “It is something which in year 2000 we may look at in terms of failure or it may have disappeared from the scene or, indeed, it may have become something very significant in terms of this country.” Eighteen years later, the nation is party to a prison industrial complex that relies on a vast infrastructure of financial incentives that create significant hurdles in dismantling a mass incarceration system.

Lauren-Brooke Eisen is a senior fellow at the Brennan Center for Justice at the N.Y.U. School of Law and author of Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration (Columbia University Press).

Holding the Trump Administration Accountable for Paying Workers during Government Shutdown

*Kalijarvi, Chuzi, Newman & Fitch, P.C. represents the plaintiffs in this litigation.

The federal government has been shut down for more than two weeks, and just last Friday, President Donald Trump declared that he could keep parts of the government shut down for “months or even years.” Federal workers and many contractors are not getting paid during the shutdown, even those who are deemed essential and forced to work. To hold the government accountable for paying workers, the union representing government employees is suing the federal government.

Federal law requires that the government pay employees in full and on time

The ongoing government shutdown is unconscionable, leaving hundreds of thousands of dedicated public servants and contract employees wondering when theywill get their next paychecks.  As the shutdown continues, many people will be forced to forego medical treatment, miss a rent payment, or wonder whether they can afford groceries.

In 1938, Congress found this kind of problem to be unacceptable, and to protect workers, it passed the Fair Labor Standards Act (“FLSA”), which governs minimum wage and overtime compensation.  In 1974, Congress specifically extended the reach of the FLSA to federal employees.  In the following years, courts have unanimously held that the FLSA requires that employees be paid in full and on time.  When an employer schedules a regular payday, it must honor that payday.

To remind employers that they will be responsible if they fail to pay wages on time, workers may recover not only the amount of their unpaid wages, but they also are entitled to “an additional equal amount as liquidated damages” to compensate them for the harm caused when their payments are delayed.  As the government has taken no steps, legally or otherwise, to ensure its employees are timely paid, it is engaging in a bad faith violation of the FLSA, which requires employers, including the government, to pay covered employees at least minimum wage and overtime on the correct payday.

Sadly, this is not new to the government.  Following the October 2013 shutdown, approximately 25,000 essential federal employees, represented by Heidi Burakiewicz, now a partner at Kalijarvi Chuzi Newman and Fitch (“KCNF”), sued the government for failing to pay them on their regularly scheduled pay date.  In July 2014, the U.S. Court of Federal Claims ruled that the government violated the FLSA when it failed to pay on their regularly scheduled payday the employees who worked during the shutdown, and in February 2017, the Court ruled even further that the government was liable for liquidated damages because it did not act in good faith.  The government is currently calculating the damages it will have to pay to those employees.

No structure exists to ensure that federal employees are paid during shutdowns

Despite repeated threatened and actual shutdowns since the one in 2013, the government has failed to implement any kind of structure to ensure that employees who work are properly paid.  Specifically, it has not required that essential federal employees be paid on time during the current shutdown.  That is why the American Federation of Government Employees and KCNF filed a collective action in the Court of Federal Claims against the U.S. Government on December 31, 2018, with named plaintiffs, who work for the Bureau of Prisons.

AFGE lawsuit highlights burden faced by federal prison employees

While the lawsuit applies to all affected federal employees, the problem is highlighted by the named plaintiffs who work at high-security penitentiaries, USP Hazelton and USP Canaan, which are egregiously understaffed.  Employees at these prisons are often required to work large amounts of overtime in some of the most dangerous prisons in the country, where their lives are often at risk.  As one of many examples, on Friday, January 4, 2019, at least eight BOP staff were assaulted and injured at various prisons around the country while trying to protect other inmates and do their jobs.  At a minimum, they deserve to be paid on time.

Fight for Federal Right to Education Takes a New Turn

Advocates have spent four decades searching for a theory that forces the Court to sidestep or rethink its holding in San Antonio v. Rodriguez that education is not a fundamental right.  A new lawsuit in Rhode Island does just that.  Whether it is the right time to try is now the more difficult question.  Today’s cultural zeitgeist says yes, but the Court’s composition suggests no.

A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.

In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.

The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.

When plaintiffs filed the first two cases in Detroit and Connecticut in 2016, the Supreme Court was set to shift significantly to the left. Hillary Clinton was a strong favorite to win the presidency and fill the vacancy created by the death of Justice Antonin Scalia. What looked like perfect timing for plaintiffs in mid-2016 turned awful a few months later when Clinton lost. The questions now are why plaintiffs, including new ones, continue to press forward and whether they have any chance of winning. The answers lie in a strange and tangled confluence of events that include school funding shifts, new legal theories and evolving cultural challenges.

Steep declines in school funding

Schools’ real-world problems are first and foremost driving the litigation. Detroit’s schools, for instance, are among the most segregated, lowest performing and most financially strapped in the country. The net result, plaintiffs allege, are schools where “illiteracy is the norm.” Detroit’s problems, while severe, are not entirely unique. Public schools nationwide are suffering from increasing segregation and a decade of steep funding cuts.

State tax revenues have been up since 2012, but most states continue to fund education at a lower level than they did before the 2008 recession.

While many state supreme courts allow students to challenge educational inequality and inadequacy, about 20 do not. The courts that bar such challenges say that educational opportunity involves issues beyond their authority to tackle. So children’s right to challenge educational deprivations sadly depends on where they live. Michigan, Mississippi and Rhode Island are three of the states where kids have no recourse in state court. This explains why three of the four new lawsuits are in these states.

A novel approach

Whether these cases succeed, however, depends far more on the legal theories behind them than egregious facts. The Rodriguez ruling rejected the fundamental right to “equal” education. Plaintiffs in Michigan and Connecticut assert a fundamental right to “adequate” education, not equal education. More specifically, the plaintiffs call it minimally adequate education in Connecticut and literacy in Michigan. Earlier this year, the lower courts in those cases rejected the notion that this nuance was significant and held that kids do not have a federal right to those things either.

The case just filed in Rhode Island seeks to avoid that trap by doing something completely new. It focuses on the civics knowledge and skills that our democratic form of government demands of citizens – a topic with deep historical roots. My recent research demonstrated that our founders intended public education to be a core aspect of the “republican form of government” that our federal Constitution demands.

The nation’s founders encouraged public education. 

Our republican form of government began as an experiment in the idea that everyday citizens could govern themselves. But our founders – people like George Washington, John Adams and Thomas Jefferson – emphasized that public education was necessary for those governments to work. In legislation that would dictate how the western territory would be divided up and later become states, Congress in the Northwest Ordinances of 1785 and 1787 mandated that each township reserve a central lot for public schools and that the states use their public resources to “forever encourage” those schools.

The most explicit evidence of education’s necessity comes from Southern states’ readmission to the Union following the Civil War. Congress forced all the Southern states to provide for education in their state constitutions and explicitly conditioned the readmission of the last three states’ on those states never depriving students of the education rights they had just extended to citizens.

Congress was not acting arbitrarily. The Constitution requires Congress to “guarantee” a republican form of government in the states. The South’s criminalization of literacy among blacks, refusal to create school systems for middle-class whites, and general failure to operate a government that looked anything like democracy only reinforced the wisdom of the nation’s founding ideas. Following the war, Congress took decisive steps to correct the South’s failures in education and give full meaning to the constitutional idea of a republican form of government.

Prospects for federal right to education

Whether this history will serve as the key to unlock the right to education for today’s generation is uncertain. Regardless of the merits of these cases, Donald Trump’s nominations have made the Supreme Court more conservative. Yet, recent political cycles have also exposed weaknesses in America’s democracy and the need for a better-informed electorate, as everyday citizens struggle to make sense of highly polarized political debates, fake news and conflicting media accounts.

Public education cannot solve democracy’s challenges by itself, much less do so in a short period of time. The challenges are far too large. But if the nation is to secure a meaningful long-term solution, it will be through the same strategy as the founders.

They long ago warned in letters, presidential addresses to Congress and other official acts that the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them. Put that way, the federal right to education may be a moonshot, but it is one the plaintiffs in these cases cannot afford to miss.

Pro-Obamacare Litigators Will Crush Texas’ Bogus Lawsuit

Late Sunday afternoon, December 30, U.S. District Judge Reed O’Connor from the Northern District of Texas issued an arcane, though consequential, order following up on his blockbuster December 14 decision invalidating the entire Affordable Care Act (ACA). Evidently ingesting the widespread condemnation of that decision, O’Connor granted the request of pro-ACA state attorneys general led by California’s Xavier Becerra, that he stay his ruling until the appellate process finishes. Hence, the law will remain in effect for a good while – quite likely, permanently, as far as this lawsuit is concerned.

In response, progressives need to leave the battle to nullify O’Connor’s potentially catastrophic December 14 decision in the hands of Becerra’s litigators, and the bipartisan array of friend-of-the-court brief-writers supporting them. Some prominent ACA-friendly academics, and even some congressional Republicans, are proposing legislative “fixes” to moot the case. But ACA advocates and, especially, congressional Democrats should avoid touting such ideas – for three reasons.

First, O’Connor’s edict so egregiously flouts applicable law and societal exigencies, that, as the Wall Street Journal acknowledged, while “No one opposes Obamacare more than we do,” the decision “is likely to be overturned on appeal and may boomerang politically on Republicans.”  Indeed, Chief Justice John Roberts’ pertinent opinions nearly ensure, with his four progressive colleagues, a 5-4 Supreme Court majority to reverse O’Connor. Moreover, prior writings by Justice Brett Kavanaugh augur, albeit less certainly, for a larger majority.

Second, even if fix legislation that does not weaken the ACA could pass the Democrat-controlled House of Representatives, any acceptable bill would fail in the Senate, let alone the White House, and would risk enactment of provisions detrimental to the law.

Third, any ripples of interest in legislation would be spotlighted by the Republican attorneys general who filed the suit, led by Texas’ aggressive Kenneth Paxton, as evidence legitimating their claim that only legislation can “cure” the ACA of its allegedly fatal constitutional defect.

What Judge O’Connor’s Opinion in Texas v. Azar Means

The Paxton-O’Connor claim, and its jaw-dropping infirmities have been widely detailed, so only a brief summary is needed here.

In 2012, per the controlling opinion of Chief Justice Roberts, the Supreme Court held that the ACA individual mandate exceeded Congress’ authority to regulate interstate commerce, but nevertheless upheld the provision as an exercise of Congress’ power to tax. In December 2017, after multiple failures to repeal Obamacare, Republican congressional majorities settled for a provision in the Tax Cut and Jobs Act that set at zero the tax penalty for failing to buy ACA-compliant insurance, while leaving other provisions of the mandate and the law intact. Paxton then came up with a theory that zeroing out the penalty rendered the mandate provisions no longer an exercise of the tax power, hence, unconstitutional. Further, he made the quantum leap of asserting that, if the mandate provision is unconstitutional, the entire statute must be invalidated – 2300 pages of provisions integral to every sector of the nation’s health system and vital to protections relied upon by literally all of its more than 300 million patients. In February 2018, Paxton’s coalition of Republican states filed a complaint embodying these claims with District Judge O’Connor, a "favorite of Republican leaders in Texas, [for] reliably tossing out Democratic policies they have challenged.”

On December 14, O’Connor embraced Paxton’s theory. While highly debatable, this portion of his ruling was, in and of itself, of no practical consequence. With the penalty now zero, declaring the mandate itself void should not meaningfully shrink ACA-insured ranks. What made the decision a potential real-world catastrophe – for the ACA and the countless health providers and patients that – as even the Wall Street Journal acknowledged – now rely on it, is that O’Connor also bought the Republican states’ claim that striking the mandate meant that the entire ACA had to be tossed along with it.

Even ACA opponents have decried O’Connor’s ruling

Experts, including prominent anti-ACA conservatives, have blistered this result, as, among other things: "an assault on the rule of law;"  "legally indefensible from start to finish;'" and "an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within."

Given such show-stopping legal inadequacies, Judge O’Connor’s decision seems unlikely to survive review even in the right-leaning Fifth Circuit. Certainly, even a hostile reviewing panel will not lift his stay pending Supreme Court review. And, as noted above, Supreme Court reversal is an odds-on bet.

Reasons to believe the Supreme Court would reverse O’Connor

To begin with, the Court is likely to dismiss the suit on standing grounds. The state plaintiffs, lacking any legally cognizable injury, recruited two individual plaintiffs, who complain that, even with no enforcement sanction, the mandate imposes a legal obligation to buy insurance that they would feel uncomfortable to ignore. But Chief Justice Roberts, in his 2012 NFIB v. Sebelius decision, expressly ruled that, if a person did not buy insurance, but did pay the penalty, he or she would not be in violation of the law. It makes no sense to cast such a non-purchaser as suddenly in violation of the law, simply because Congress reduced (to zero) the financial incentive to buy insurance.

In a similar vein, were the Court to reach the merits of the case, a majority, especially including the Chief, plausibly, could conclude that, with a zero penalty, the still-intact mandate provision remains a valid exercise of the tax power.

On the issue that counts – whether the mandate, if unconstitutional, is “inseverable” from the rest of the statute – Supreme Court reversal of O’Connor’s decision looks close to a sure thing. Repeatedly, Chief Justice Roberts has vigorously applied the established rule that “[W]hen confronting a constitutional flaw in a statute, we . . . limit the solution, . . . severing any problematic portions while leaving the remainder intact.”  Specifically, In NFIB v. Sebelius, Roberts rejected the very approach to severability on which Texas and O’Connor expressly rely. “The question here,” he wrote, “is whether Congress would have wanted the rest of the Act to stand [without the Medicaid expansion fund cut-off mechanism the Court found unconstitutionally coercive] . . . . We are confident that Congress would have wanted to preserve the rest of the Act.”

Further, there is a substantial basis for expecting Justice Brett Kavanaugh to join the Chief Justice and the four progressive justices to sever the rest of the ACA from the mandate if the latter is held unconstitutional. While on the D.C. Circuit, Justice Kavanaugh applied reasoning that closely parallels– indeed, foreshadows – Roberts’ decisions in both the above cases. In another (important)  case he similarly stressed that “Supreme Court precedent requires us to impose the narrower remedy of simply severing the [defective] provision.”

Pelosi showed that letting the appeals process play out is the smart move.

In sum, by far the surest path to defeating Texas’ bogus suit is right where it now stands – in the courts. Nancy Pelosi showed that she gets that, as one of her first acts as Speaker of the House of Representatives. On January 3, she authorized former Solicitor General Don Verrilli and Brianne Gorod of the Constitutional Accountability Center to intervene in the litigation on behalf of the House of Representatives, urging reversal of O’Connor’s decision. Thereby, Pelosi showed her caucus the smart way to demonstrate their zeal to save the ACA – by directly making their collective voice heard before the judges and justices who will decide the case, not by backing purported legislative “fix” bills that in practice amount to mere gestures, cannot succeed, and could cause damaging mischief.

Simon Lazarus, a former member of President Jimmy Carter’s White House Domestic Policy Staff, is a lawyer and writer who contributes to this blog and other media on legal and constitutional issues affecting health care and other fields.

Zinke’s Legacy of Legal Risk and Litigation for the Department of the Interior

In the days surrounding former Interior Secretary Ryan Zinke’s departure from the Trump Administration, the media has documented his extensive ethical lapses. He leaves the U.S. Department of the Interior scarred by his pursuit of private interest rather than the public good and diminished by his disregard for the Department’s talented and dedicated career civil servants—recall that he once accused 30 percent of his staff as being “not loyal to the flag.”

An equally important and long-lasting aspect of his legacy has received less attention: his legally risky and ill-advised policies, which will likely lead to years of litigation to come.

For years, both Democratic and Republican administrations have relied on compensatory mitigation to require those who profit from public lands to offset the environmental harms they cause.  Under Secretary Zinke, the Department reinterpreted the Federal Land Policy and Management Act--the law that undergirds federal public lands management—to find this important conservation tool outside the Department’s authority.

Zinke’s solicitor’s office issued a legal opinion that concluded that the Bureau of Land Management (BLM) must reissue a lease in the Boundary Waters area of Minnesota—paving the way for a copper-nickel mine. This opinion reverses an earlier one that had found that BLM had discretion not to renew the lease when the company had not extracted any metals for decades.

Another legal opinion reinterpreted the Migratory Bird Treaty Act to allow the “incidental take” of birds like indigo buntings and snowy egrets. Under that opinion, oil and gas developers and other industrial actors no longer need to take steps to avoid killing migratory birds.

While federal law requires the BLM to balance the competing uses of public lands, Zinke has pursued “energy dominance.” In its haste to remove purported “burdens” to energy development, such as a rule designed to prevent waste of natural gas, the Department has ignored notice and comment requirements.

Internal Memoranda have instructed Agency staff to cut every available corner, shorten public comment periods, limit analysis under the National Environmental Policy Act, and conduct lease sales more quickly. This rushed process has caused the BLM to overlook obligations to consult with Tribes under the National Historic Preservation Act.

The Department has also opened up more than 10 million acres of vital habitat for the greater sage grouse to mining and oil and gas development and intends to ease the way for oil and gas development on more than 60 million acres, eviscerating carefully crafted conservation plans—which resulted from an extensive process of collaboration with states, the private sector, and the public. The now-junked plans were designed to avoid the need to list the bird under the Endangered Species Act, and through this action, the Department has created substantial uncertainty for the greater sage grouse and for economic interests relying on public lands, which will face much more significant constraints should the bird need to be listed in the future.

Many legally “high risk” moves are already in litigation. States challenged the Department’s repeal of a rule designed to improve valuation of federal mineral resources; they won the first challenge and the second is fully briefed and awaiting a ruling from the Northern District of California. Plaintiffs’ motions for Summary Judgment in the Boundary Waters consolidated cases are due next month.

In leasing cases in Montana, New Mexico, and Colorado, courts have instructed BLM to consider uses of public lands other than energy development, and to analyze downstream greenhouse gas emissions; similar challenges to oil and gas lease sales in Nevada are awaiting a summary judgment ruling. Yet the Department continues the leasing process without building in these steps that are increasingly recognized by Courts as a necessary part of compliance with the law.

So, while it may be more fun to focus on six-figure office doors, let us not lose sight of the fact that Zinke has left the Department mired in litigation—much of it losing litigation—all in the name of benefiting private companies at the expense of future generations.

Justin Pidot is a Professor of Law at the University of Denver Sturm College of Law. He previously served as the Deputy Solicitor for Land Resources at the U.S. Department of the Interior during the Obama Administration and as an appellate lawyer in the Environmental and Natural Resources Division of the U.S. Department of Justice

Kavanaugh’s Confirmation and the Legal Underpinnings of Rape Culture

The recent confirmation of Brett Kavanaugh to the U.S. Supreme Court was a quick and deeply embattled process. Although Republican senators moved to confirm Kavanaugh in a few short months, several accusers would come forward to proclaim that Kavanaugh had engaged in sexual misconduct with them. The testimony of Dr. Christine Blasey Ford was perhaps the most serious, namely, that he attempted to rape her. Despite these serious allegations, a limited investigation was conducted by the FBI, which did not interview her and was kept hidden from the public. The following day he was confirmed by the Senate. This confirmation, however, confirmed something else as well. For those familiar with the origins of modern rape culture, there is nothing shocking about the short shrift that was made of these claims.

Broadly speaking, the origins of rape culture in America have their roots in the law. One major aspect was the British common law’s definition of the crime of rape. For centuries, rape had always required that the forcible act be committed by a man against a woman, not his wife. This common law framing of rape came to American shores in the cultural baggage of British colonists. Hence, in American law, as Pierre Bourdieu’s Logic of Practice might put it, this construct of rape went without saying because it came without saying. In this scheme, rape was possible against a woman only, and anyone but a female spouse. This was the dominant view until the last quarter of the country’s existence.

Another major historical marker was slave law in the new colonies. In some jurisdictions, laws operated in tandem to make the rape of female slaves financially lucrative. This was so because in slave states, the birth status of an individual took the mother’s legal status. So, any child born from a slave mother was automatically a slave. Hence, compared to paying premium prices for imported slaves, slave owners had a vested interest in keeping females reproducing, similar to cattle. Hence, the term chattel slavery underscores slaves as inviolable property.

It is against this historical backdrop of American rape culture that the modern forms exist. Perhaps most prominently is the raw number of rape and sexual assaults across the country. On college campuses, the problem is endemic. In fact, the #MeToo movement arises from the sheer number of women and girls who have experienced sexual assault.

Another area where rape is normalized is American prisons. Although behind bars, the question of gender violence is complicated, in some prison systems sexual violence is systemic. The exact degree is uncertain largely because of underreporting among victims. However, some estimates suggest that tens of thousands of individuals are forced to engage in unwanted sex behind bars each year. More importantly, these numbers speak little as to how many times in a year that a person is forced to have sex. In addition to forcible sexual assault, behind bars individuals can be made prostitutes, sex-slaves, or other types of sexual subservient. Because a slave may be forced to perform several times in a day, there is no real sense of what this means in a year, or more importantly, how it impacts culture on the outside.

To be sure, on the outside, there is widespread sex trafficking, including the trafficking of sex-slaves. In states like California, New York, and Texas, there is concentrated trafficking of both foreign born and domestic sex slaves. In addition to providing real-time sexual acts against women and children, they regularly engage in prostituting children. As these three states operate some of the largest prison systems in the world, there is some degree to which sex traffic rings feed off returning prisoners, who are often penniless and with few housing options.

As current history attests, American culture is still steeped in ways that treat rape as something of a normative concept. This fact works to the benefit of Kavanaugh because it makes even less of his mere attempted rape. Perhaps more than anything, the trivial FBI investigation into the matter suggests the ongoing vitality of rape culture in America.

As the law has held, the privilege to rape has been the monopoly of white males in America. This was shared only when male slaves were allowed to rape female slaves. Otherwise, white men were the only ones free to rape. In Kavanaugh’s nomination process, there has been comparison to Justice Clarence Thomas’ confirmation, which was momentarily derailed by accusations of sexual harassment. However, these comparisons are inaccurate to the extent that Thomas was accused of making explicit sexual comments, while Kavanaugh was accused of full blown attempted rape. It is hard to imagine the same outcome if Clarence Thomas would have faced the same accusation—what to speak if the accusation were by a white woman?

Rape culture in America is the ultimate expression of gender oppression. The sexual economy in this country has been controlled by those who control the law, and Kavanaugh’s confirmation is confirmation of the very rape culture that helped mitigate his actions.