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Hawaii’s dependency on for-profit prisons on the mainland shows no signs of waning.

Within weeks, if not days, the is expected to award a new contract to continue housing hundreds of the state’s excess prisoners on the mainland — for up to five more years.

By all accounts, the department is now down to a final step in the process: hammering out the terms of the contract with Nashville, Tennessee-based — the sole bidder.

With overcrowded prisons, Hawaii has little choice but to ink the contract with CCA, despite a long history of problems at the company’s in Eloy, Arizona — including the murders of three Hawaii prisoners and other legal troubles.

But some experts caution against rushing into the deal. Instead, they say, the state should take this golden opportunity to negotiate for new conditions — not only to better guard against contract violations, but also to guarantee the safety of prisoners.

Shahrzad Habibi, research and policy director at , a Washington, D.C., think tank, says having a strong contract is crucial when dealing with for-profit prison companies.

“When you introduce private interests and profit motives into a public service that directly deals with people’s lives, you’re opening a door to neglect, abuse, companies cutting corners to reduce their cost,” Habibi said. “So, when you have a weak contract, you’re leaving yourself completely vulnerable to all of that.”

Michele Deitch, senior lecturer at the Lyndon B. Johnson School of Public Affairs at the University of Texas, concurs.

“The bottom line is that, if it’s not in the contract, they are free to do whatever they want,” said Deitch, a national expert on prison oversight.

Caroline Isaacs, program director of the in Tucson, Arizona, says the stakes are even higher for Hawaii, given its dependence on mainland prisons.

“This gets to the heart of one of the problems you have in Hawaii: They have nowhere else to go,” said Isaacs, who has long opposed prison privatization in Arizona. “If you want to incarcerate people at the same rate that you have been, you’re stuck. So you get in this very dependent relationship with these corporations. That’s a very dangerous place to be.”

Marc Yamamoto, the Department of Public Safety’s point man for the bidding process, declined to comment for this story.

Putting In The Fine Print

To be sure, the state’s current contract, signed in 2011, isn’t entirely toothless.

For one thing, the state managed to avoid one common misstep: agreeing to have occupancy guarantees built into the contract — in the form of either a minimum quota of prisoners or a payment of monetary penalties for empty prison cells.

This means that the state only pays CCA a per-diem rate — currently at $70.49 — for each of about 1,400 prisoners who are actually housed at Saguaro, instead of covering for 80 percent or more of the prison’s cell space, as commonly dictated under occupancy guarantees.

The contract also follows best practices by spelling out the “scope of services” that CCA is required to provide, including the following:

• Provide prisoners with access to legal material, including the Hawaii Revised Statutes, as well as teleconferencing equipment for remote court hearings. CCA also has to accommodate parole hearings at Saguaro.
• Establish a procedure to allow prisoners to file grievances, have them considered by “an impartial party,” and provide avenues for appeal.
• Abide by CCA’s own use-of-force policy, which is referenced but not attached to the contract. (The Department of Public Safety has denied Civil Beat’s request for a copy of the policy.)
• Offer educational programs, such as classes on basic literary skills, GED and anger management, as well as vocational courses and training.
• Provide a range of “routine” medical, mental health and dental services that are detailed in six pages of the contract, as well as personnel required to meet the National Commission on Correctional Health Care Standards.
• Make available non-“routine” medical services, including emergency care and those requiring hospitalizations — at the state’s expense.
• Offer both outpatient and residential substance abuse treatment programs, with a staff-to-participant ratio not exceeding 1 to 30.
• Provide guards and other personnel according to the approved staffing pattern. (The Department of Public Safety has denied Civil Beat’s request for the copy of the staffing pattern.) CCA also has to give each guard 160 hours of basic training within three months of employment and perform criminal background checks and random drug testing.

But it is clear from Civil Beat’s interviews with a number of experts, as well as prison-reform advocates, that the contract has plenty of room for improvement.

One area in particular is singled out by many: It’s important to have a strong provision for “liquidated damages” that lays out monetary penalties, should CCA fail to abide by the contract.

Isaacs says the provision comes in handy in deterring understaffing — something that for-profit prison companies to do, she says.

“When you have a weak contract, you’re leaving yourself completely vulnerable.” — Shahrzad Habibi, research and policy director at In the Public Interest

“These companies are responsible for care and feeding of thousands of people everyday. It’s a small city that you have to maintain; that’s not cheap. And they have to make a profit on top of that, after they promised to do it for less than the state,” Isaacs said. “So the main place they cut corners is staffing.”

As it happens, Hawaii’s current contract does contain a liquidated damages provision, which is triggered when CCA fails to man the mandatory posts; it penalizes the company for a prorated amount equal to the salary and benefits of missing employees.

But Justin Jones, a former director of the , says the provision would be much stronger if it were applied to an array of other situations, such as security breaches and prisoners’ injuries or deaths.

Jones adds that Oklahoma’s contracts, which served as the model for Hawaii’s in 2011, also have “a matrix of liquidated damages” that increases the damages based on repeated cases of noncompliance.

Deitch says liquidated damages can serve as the main source of leverage for states like Hawaii, where contract cancellation isn’t a realistic option.

“If the only thing that’s in there is the nuclear option of pulling out the inmate altogether, CCA knows you’re not going to do that because you have nowhere to put them,” Deitch said.

Watching The Watchers — Closely

Carrie Ann Shirota, a Maui lawyer who once examined Hawaii’s mainland prison operation as a fellow at the , says none of this is of any use unless the state has a robust system of monitoring in place.

“You can make the contracts more stringent, but the issue always comes back to who will enforce it,” Shirota said. “The history over the past two decades has shown that, even when people are murdered, it hasn’t changed the conditions that led to it.”

Shirota says the state can ramp up the system by allowing unannounced inspections to take place.

The state’s current contract doesn’t explicitly call for such inspections; it only notes that the Department of Public Safety can inspect Saguaro “at all reasonable times” and provides it with an option to place an on-site monitor.

Jones says the system could be further improved by getting an independent monitor to conduct additional inspections.

“Monitoring is critical, and it behooves Hawaii to look at some kind of ombudsman or an independent auditor to compliment what the state is already doing,” Jones said.

In Ohio, such a system has been in place since 1977, when a legislative oversight body called the was created.

Made up of a bipartisan group of seven legislators and six full-time staffers, the committee is technically part of , tasked to be the “public eye” into the state’s correctional facilities.

By statute, the committee is authorized to conduct unannounced inspections at all 27 adult prisons — including those owned or operated by for-profit companies — as well as three juvenile facilities. And it’s mandated to visit each facility at least once every fiscal biennium and post the findings from each inspection on .

“Monitoring is critical, and it behooves Hawaii to look at some kind of ombudsman or an independent auditor to compliment what the state is already doing.” — Justin Jones, a former director of the Oklahoma Department of Corrections

The committee also puts together a biannual report for the Legislature that rates each facility in areas such as security, health, rehabilitation and fair treatment of inmates using a four-grade system: exceptional, good, acceptable and “in need of improvement.” In the latest report, many facilities received the “in need of improvement” rating for one or more of the inspection areas.

Daniel Gluck, legal director of the , says a similar system should be installed in Hawaii.

“We definitely support having an additional independent audit, whether it by the state auditor or outside agency,” Gluck said. “I don’t think the Legislature now has all the information it needs to make accurate decisions about how to best manage our criminal justice system.”

In 2010, Hawaii came close to adopting such system under , which directed then-Hawaii State Auditor Marion Higa to play the role of an independent monitor.

The Legislature passed the bill, but it was vetoed by then-Gov. Linda Lingle. Since then, no similar bill has been introduced at the Legislature.

But state Rep. Gregg Takayama, chair of the , says he’s open to considering such bill.

“I do know it’s difficult to monitor even the facilities here in Hawaii, much less a facility thousands of miles away. So I’m interested in looking at a bill like that,” said Takayama, who was first elected in 2012. “But it hasn’t surfaced in the time I’ve been here. I should do a better job of keeping an eye out for it. It falls on me as the chairman on the House side.”

Ultimately, Deitch says, the Department of Public Safety is also likely to see upsides from extra oversight; the goal, after all, isn’t about embarrassing the agency — or playing “the game of gotcha,” as she puts it.

“A lot of times, they are the ones asking the Legislature for more money — for more staff, for a new roof that doesn’t leak or more money for programs — and the Legislature doesn’t necessarily listen to them,” Deitch said. “But, if you’ve got an independent entity that is saying the same thing, it gives more credibility to those requests. So a lot of agencies come to realize the benefit that comes with oversight.”