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HRDC letter re VT anti private prison bill Feb 2013

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Human Rights Defense Center

February 13, 2013


Rep. Alice Emmons, Chair
House Committee on Corrections and Institutions
Vermont State House
Montpelier, VT 05633-5301
Re: H.28 – Prohibiting Contracts with Private Prison Companies
Dear Chairperson Emmons:
I serve as associate director of the Human Rights Defense Center (HRDC), a Brattleboro-based
non-profit dedicated to the protection of human rights of people incarcerated in U.S. detention
facilities. I am contacting you in reference to H.28, which, among other provisions, would bar
the State of Vermont from housing prisoners in privately-operated facilities.
The Human Rights Defense Center supports H.28.
I am recognized as a national expert on private prison-related issues. I have testified before the
U.S. House Committee on the Judiciary’s Subcommittee on Crime, Terrorism and Homeland
Security concerning federal legislation related to private prisons; contributed chapters to three
books about prison privatization; and spoken at numerous conferences and panel discussions
about the private prison industry – including a Congressional briefing, Congressional Caucus
meeting and a Pennsylvania joint legislative committee hearing. In addition to my position
with HRDC, I also serve in a voluntary, non-compensated capacity as president of the Private
Corrections Institute (PCI), a non-profit citizen watchdog organization that informs policy
makers and the public about the significant dangers of privately-operated prisons.
HRDC is aware that Vermont has long utilized the services of private prison companies, and
that 510 Vermont prisoners are currently housed in facilities in Kentucky and Arizona operated
by Corrections Corporation of America (CCA). This means that 25% of all Vermont prisoners
in secure facilities are held in private prisons, far from their homes and families.

P.O. Box 2420
West Brattleboro, VT 05303
Office: 802.257.1342 – Cell: 615.495.6568 – Fax: 866.735.7136

Rep. Alice Emmons, Chair
February 13, 2013
Page 2

We are supportive of H.28 because we oppose the privatization of correctional services based
on a number of public policy reasons; foremost, that depriving citizens of their liberty through
incarceration is an inherently governmental function that should not be contracted out to the
lowest private-sector bidder for the purpose of generating corporate profit. As you are aware,
“liberty” is one of the three fundamental rights enshrined in the Declaration of Independence,
and we believe that prison privatization is thus fundamentally different from the privatization
of other government functions and services.
Additionally, we have serious concerns related to transparency and public accountability with
privatized prisons. Public prisons are operated by public officials with the goal of ensuring
public safety, and are accountable to members of the public. Private prisons, on the other hand,
are operated by for-profit companies with the goal of generating profit, and are accountable to
their shareholders and executives. A demonstration of the difference between the public and
private sectors in the corrections context is the applicability of public records laws.
On the federal level, privately-operated prisons are not subject to the Freedom of Information
Act; similarly, many states do not extend their public records laws to privatized prisons. Thus,
while members of the public can file records requests to learn about conditions and problems
related to government-operated prisons, in many cases they are unable to file similar records
requests when prisoners are housed in privately-managed facilities.
In 2008, I filed a public records act lawsuit against CCA in Tennessee, where the company is
headquartered. CCA argued that although it performed the governmental function of housing
state prisoners, it should not have to comply with the public records act. The Tennessee Court
of Appeals held otherwise in Friedmann v. CCA, 310 S.W.3d 366 (Tenn.Ct.App. 2009); upon
remand, CCA continued to argue that it should not have to produce certain documents that
public agencies would have to produce, and filed another appeal. The case remains pending
after four years, with CCA arguing against compliance with the public records law.
More locally, in August 2010, Prison Legal News, a project of the HRDC, filed suit against
Prison Health Services (PHS) – a for-profit prison medical services company – in Vermont
Superior Court, Washington Unit, Case No. 622-8-10. We had submitted a records request
to PHS seeking records related to litigation involving the company’s prison-related operations
in Vermont – including the tragic death of Ashley Ellis at the Northwest State Correctional
Facility after PHS staff failed to give her the medication she needed. PHS (now known as
Corizon) refused to produce the records, claiming that as a private corporation it “does not
qualify as a ‘public agency’” under Vermont’s public records law. PHS settled the case in
February 2012 and produced the requested records; however, this was only after we filed
a lawsuit, as PHS was unwilling to comply with Vermont’s public records statute.
States that have decided to utilize private prisons have done so due to a variety of reasons,
often related to the cost savings that private prison companies claim can be achieved. There is
extensive research on the cost effectiveness of prison privatization, and most credible studies
– those not financed by the private prison industry or allies such as the Reason Foundation –
have concluded that cost savings are at best equivocal. This is due to several factors.

Rep. Alice Emmons, Chair
February 13, 2013
Page 3

A common mistake is to compare per diem rates between public and private prisons. Private
prisons do generally have lower average per diem rates, which lead some to conclude they are
less expensive to operate. Comparing average per diem rates is misleading, however, because
state prison systems typically hold prisoners who are more expensive to incarcerate than those
housed in privately-managed facilities; the result is an apples-to-oranges comparison.
For example, state prisons frequently hold maximum-security prisoners, female prisoners,
juveniles convicted as adults, and prisoners with serious medical and mental health needs, all
of whom are more costly to incarcerate, while privatized prisons usually do not have similar
populations. Thus, the average per diem costs at state-run facilities are skewed upwards while
the per diem costs for private prisons are artificially lowered. Other expenses that should be
taken into consideration include DOC administrative expenses – such as prisoner classification,
contract monitoring, sentence calculation, and review of disciplinary and grievance decisions.
According to a 2010 report by the State Auditor’s office in Arizona, when all relevant costs
were considered, private prisons were actually more expensive to operate in that state. Whether
private prisons achieve savings is addressed in more detail in the attached PCI policy brief.
Another factor that should be considered with respect to prison privatization is public safety.
This is because the business model of the private prison industry, which has to cut costs (and
thus corners) in order to generate profit, results in security deficiencies that lead to incidents
such as escapes, riots, violence and assorted other problems. Private prisons tend to pay lower
wages than in the public sector and provide fewer benefits and less training, which results in
higher staff turnover – and, consequently, less experienced staff, understaffing and institutional
instability, which contribute to adverse incidents.
Vermont has housed its prisoners in out-of-state privately-operated facilities for many years,
and has had its share of problems. Vermont prisoners protested and vandalized their housing
unit at the CCA-run West Tennessee Detention Facility on May 12, 2010, leading employees
to use chemical grenades. “The complaints we hear [are] that there is no programming, no
counseling, no industry and no education” at the CCA facility, observed Vermont Defender
General Matthew Valerio. “The Vermont inmates perceive they are being threatened and
denied equal treatment and privileges.”
In April 2009, the Vermont Department of Corrections removed all of its prisoners from the
Perry County Detention Center in Alabama, operated by LCS Corrections Services, citing
inadequately trained staff, poor security and institutional violence. “We sent some people down
there and there were continued problems. I was very skeptical myself,” stated Senator Richard
Sears. “Turned out there were a lot of problems and they moved them all out.”
Other prior incidents have included the sexual abuse of multiple Vermont prisoners at the
CCA-operated Marion Adjustment Center in Kentucky (CCA guard Joel Becks was charged
with sexual abuse and official misconduct), and prisoners rioting at CCA’s Lee Adjustment

Rep. Alice Emmons, Chair
February 13, 2013
Page 4

Center in Kentucky in September 2004. The latter incident resulted in a $10,000 fine against
the company due to understaffing and security deficiencies. Sixteen Vermont prisoners were
indicted for taking part in the riot. Then-Vermont Corrections Commissioner Steve Gold said
Vermont prisoners at the CCA facility had complained about limited recreational time, smaller
portions and less variety of food, and disciplinary measures that weren’t adequately explained
to employees or prisoners, according to news reports.
Additionally, on May 7, 2010, the Bennington Banner ran an article about Vermont prisoners
in out-of-state facilities being exposed to racist/white supremacist prisoners in Southern states.
“There are certainly pros and cons to sending offenders out-of-state,” noted Vermont Agency
of Human Services Secretary Robert Hofmann. “In the con category would be the opportunity
to meet offenders out-of-state who would have a negative influence on them.”
Given that cost savings through prison privatization are equivocal and subject to debate, that
the goal of private prisons is to generate profit rather than ensure public safety, and that public
safety may be placed at risk based on the past track records of private prison firms, there is no
apparent need – or advantage to the state or taxpayers – for Vermont to utilize private prisons.
Thus, H.28 would benefit the state by ensuring that its prisoners are solely held in governmentoperated correctional facilities that serve the public interest and are accountable to the public,
unlike prisons managed by private companies, which have the goal of generating profit and
are accountable to their shareholders and executives. Nor is Vermont alone in contemplating a
ban on contracting with for-profit prison companies; New Hampshire is currently considering
similar legislation (HB 443).
In the interest of full disclosure, beyond my extensive research into prison privatization, which
resulted in the book chapters and many other reports and articles I have authored, as well as
my testimony before a Congressional subcommittee, etc., my knowledge about private prisons
stems from empirical experience, as I was incarcerated at a CCA-operated facility myself in the
1990s prior to my release in 1999. I therefore know how privatized prisons operate both from
an insider’s perspective as well as that of an outside expert. Although some may question the
messenger, the message concerning the risks posed by private prisons is clear.
In closing, I am attaching a PCI fact sheet on prison privatization that summarizes some of the
points that should be considered with respect to the private prison industry. Please contact me
should you require any additional information; further, staff from the Human Rights Defense
Center are available to provide testimony at legislative hearings on H.28.
Alex Friedmann
Associate Director, HRDC

Private Corrections Institute, Inc.
The private prison industry has a sordid past, dating from the turn of the 20th century when inmates were
handed over to private businesses under the “convict lease” system, primarily in the South. Abuses by
private prison companies that used inmates for forced labor, including a high rate of prisoner deaths, led
government agencies to abandon the concept of for-profit incarceration.
The industry revived in the early 1980s due largely to tough-on-crime sentencing laws and the war on drugs,
which resulted in an increase in the prison population. A number of companies were formed to capitalize
on the developing market for housing inmates, including the industry leader, Corrections Corp. of America
(CCA), the industry’s second-largest firm, GEO Group (previously known as Wackenhut Corrections), and
Cornell Corrections, MTC, Civigenics and various other smaller companies. The industry expanded in the
1990s due to a crackdown on illegal immigration but has leveled off in more recent years.
Today, approximately 8% of state and federal prisoners are held in privately-operated facilities, totaling over
129,000 inmates. Government agencies contract with private prison companies for several reasons, primarily
anticipated cost savings and a need for additional bed space. However, there are a number of negative factors
related to private prisons that should be considered, including the following:
Staff Turnover Rate
Staffing costs account for about 80% of operational expenses for prisons whether they are public or private.
Thus, one of the main ways that private prison companies reduce costs to increase their profit margins is by
cutting staffing expenses. This is typically done by staffing private prisons with fewer employees than in the
public sector, paying lower wages, offering fewer or less costly benefits, providing less training and leaving
unfilled positions vacant for extended periods of time. Due to these factors, privatized prisons tend to have
much higher staff turnover rates. According to the last self-reported industry statistics from 2000, the average
private prison turnover rate was 53% while the public prison turnover rate was 16%. The FY 2008 turnover
rate at seven state-contracted private prisons in Texas was 90% (60% at privately-run state jails), compared
with a 24% turnover rate at public prisons. Higher turnover rates lead to understaffing and less experienced
staff in private prisons, which has resulted in riots, hostage situations, assaults, sexual abuse and escapes.
Higher Rates of Violence
Several studies have shown that privately-operated prisons experience higher rates of inmate violence,
including a 2004 article in the Federal Probation Journal that found private prisons had more than twice as
many inmate-on-inmate assaults than in public prisons, and a 2001 Bureau of Justice Assistance report that
found private prisons had 50% more inmate-on-inmate assaults and almost 50% more inmate-on-staff
assaults than in public prisons with comparable security levels.

1114 Brandt Drive - Tallahassee, FL 32308
850-980-0887 -

Lack of Public Accountability
Private prison firms are accountable to their shareholders, not the public, and add a layer of secrecy when
citizens want to learn about problems or misconduct at privately-operated facilities. In 2008, CCA general
counsel Gus Puryear admitted that CCA did not disclose detailed audit reports to contracting government
agencies. In response to a question from U.S. Sen. Dianne Feinstein he stated, “we did not make customers
aware of these documents.” A CCA whistleblower who worked in the company’s quality assurance office
has accused CCA of keeping two sets of audit reports, and providing less detailed reports to government
agencies (reported in TIME, March 13, 2008). Because private prison companies are private entities, they
are not covered by the Freedom of Information Act (FOIA) or most state public records statutes.
Alleged Cost Savings
Although private prison companies claim they can save government agencies up to 30%, only minimal
savings if any have been documented. It is difficult to obtain an “apples to apples” comparison of public and
private facilities due to a number of factors. For example, public prison systems have higher costs because
they house maximum security, death row and female prisoners, who are more expensive to incarcerate. Few
private prisons house such inmates. Also, private prison firms have a record of “cherry picking” prisoners
with few medical or mental health problems, which passes the costs associated with housing those inmates to
the public prison system. Further, in some cases private prison companies have a cap on medical expenses
they must pay for inmates, with medical costs above the cap paid by the public prison system. These factors,
as well as other costs such as monitoring and oversight of private prisons by public corrections officials,
make it hard to determine what costs savings, if any, are achieved through privatization. According to a 2010
report by the State Auditor’s Office in Arizona, private prisons housing minimum- and medium-security
inmates actually cost the state more than publicly-run prisons.
Dubious Research
The private prison industry relies on a number of allies and research studies to justify its claims of cost
savings and proficiency; however, most of these sources have industry connections or vested financial
interests. For example, the Reason Foundation, a strong proponent of prison privatization, has received
funding from private prison firms. The American Correctional Association (ACA) receives sponsorship
money from CCA, GEO Group and other private prison companies for its bi-annual conferences. Former
University of Florida Prof. Charles Thomas conducted supposedly impartial research on the private prison
industry until it was learned that he owned private prison stock, had been paid $3 million for consulting for
a private prison firm, and served on the board of Prison Realty Trust (a CCA spin-off). Thomas was fined
$20,000 by the Florida Commission on Ethics and stepped down from his University position.
A 2003 study by the Florida Dept. of Corrections, Florida State University and Correctional Privatization
Commission found that in “only one of thirty-six comparisons was there evidence that private prisons were
more effective than public prisons in terms of reducing recidivism.” A research study published in Crime
and Delinquency (2008), which tracked over 23,000 prison releasees, found that “private prison inmates
had a greater hazard of recidivism in all eight models tested, six of which were statistically significant.”

1114 Brandt Drive - Tallahassee, FL 32308
850-980-0887 -

Private Corrections Institute, Inc.
January 2012

The research on cost savings through prison privatization, dating back to a 1996 report by the
U.S. Government Accountability Office, is equivocal. Some studies have shown savings while
others indicate that private prisons are actually more expensive when all relevant cost factors are
considered. Many of the studies that have found savings through privatization were funded by
the private prison industry or organizations that receive funding from private prison companies.
Most independent studies have determined that cost savings are inconclusive at best and illusory
at worst. Even assuming that private prisons save money for taxpayers (e.g., that such savings do
not go toward corporate profits), we get what we pay. Do we really want to be outsourcing the
incarceration and supervision of dangerous prisoners to the lowest bidder?
Best Studies:
A Sept. 2010 report by Arizona’s Office of the Auditor General found that privately-operated
prisons housing minimum-security state prisoners actually cost $.33 per diem more than state
prisons ($46.81 per diem in state prisons vs. $47.14 in private prisons), while private prisons that
house medium-security state prisoners cost $7.76 per diem more than state facilities ($48.13 per
diem in state prisons vs. $55.89 in private prisons), after adjusting for comparable costs. See:
An April 2010 policy brief by the Florida Center for Fiscal and Economic Policy found “the
process implemented to gauge compliance with these policy objectives in Florida is flawed and
as a result the evidence to show that private prisons cost less to operate or are more effective at
reducing recidivism than public prisons is questionable.” Further, the policy brief noted there
were a number of factors that made cost comparisons between public and privately-run prisons
difficult, and that apparent cost savings were the result of an “inappropriate comparison.” For
example, “There are differences between inmates in private and public prisons: those who are
more costly to handle are usually incarcerated in public prisons, such as those who are the
highest security risks and those with extensive medical issues.” See:

Private Corrections Institute, 1114 Brandt Drive, Tallahassee, FL 32308
850-980-0887 -

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January 2012

A 2007 meta-analysis study by the University of Utah, Utah Criminal Justice Center, College
of Social Work found that private prisons provide no particular benefit as opposed to publiclyoperated prisons, and that cost savings are not guaranteed and “appear minimal.” See:
Questionable Studies:
Any research conducted by the Reason Foundation, a libertarian think-tank that is strongly in
favor of privatization of government services, including prison privatization. The Reason
Foundation has received funding from private prison companies since at least the mid-1990s.
More recently, according to the Reason Foundation’s “Carrying the Torch of Freedom” list of
donors, private prison firm GEO Group was listed as a Platinum Level supporter while CCA
was listed as a Gold Level supporter. Reason Foundation studies are not peer-reviewed, and
Reason does not disclose in its research that it accepts money from private prison companies.
Any studies that rely on research by disgraced former University of Florida professor Charles
Thomas, who was fined $20,000 by the Florida Commission on Ethics in 1999 because he was
conducting private prison research at the same time he owned stock in private prison companies,
sat on the board of Prison Realty Trust (a CCA spin-off), and was paid $3 million by Prison
Realty Trust/CCA. Private Capitol Punishment: The Florida Model, by Ken Kopczynski (2004).
A December 2007 Vanderbilt University study titled “Do Government Agencies Respond to
Market Pressures? Evidence from Private Prisons,” which was funded by both CCA and the
Association for Private Correctional and Treatment Organizations (APTCTO), a trade group
for private companies that provide prison services.
Cost Comparison Issues:
It is often difficult to ensure an apples-to-apples comparison of public vs. private prisons due to
a number of factors. These factors include the number of prisoners housed at each type of facility
who have comparable security levels, sentence lengths, medical and mental health conditions,
institutional disciplinary records and other relevant characteristics.
In general, private prisons do not house maximum-security prisoners, death row prisoners,
juveniles sentenced to adult prisons, or prisoners who have serious mental health or medical
conditions, all of whom are more expensive to incarcerate. As the state prison system must
incarcerate all such offenders, the per-diem cost for public prisons is skewed upwards while
the per diem rate for private prisons is kept artificially low.

Private Corrections Institute, 1114 Brandt Drive, Tallahassee, FL 32308
850-980-0887 -

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January 2012

For example, according to a December 2008 report by Florida’s Office of Program Policy
Analysis and Government Accountability (OPPAGA), the state’s private prison contracts do not
“assure that private prisons serve inmates with comparable medical and mental health conditions
as those housed in public prisons.” The OPPAGA report found that “As special needs inmates
are more expensive to serve than other inmates, the difference in the populations of public and
private prisons results in the state shouldering a greater proportion of the cost of housing these
inmates. As a result, the requirement that the private prisons operate at 7% lower cost than state
facilities is undermined.” According to the OPPAGA report, private prisons in Florida house a
much lower percentage of special needs prisoners with medical or mental health conditions than
state prisons, except at just one privately-operated facility. See:
Female prisoners are also more expensive to incarcerate, usually due to increased medical costs,
and few women’s prisons are privately operated (in Florida, only one of five main correctional
institutions housing women is run by a private company – Gadsden CI).
Further, the Department of Correction’s central office has overhead expenses that often are not
factored in to public vs. private prison cost comparisons. For example, the central office must
still provide certain services for prisoners at private prisons, such as sentence calculation and
review of grievances and disciplinary decisions, with these overhead costs being part of the per
diem rate calculated for state prisons but usually not for private prisons.
These factors, as well as other costs such as monitoring and oversight of private prisons by state
corrections officials, and prisoner transportation expenses, make it hard to determine what cost
savings, if any, are achieved through prison privatization.
Although a 2010 OPPAGA cost comparison study found that prison privatization in Florida
had resulted in savings to the state, OPPAGA had previously said in an April 2009 research
memorandum that, “While significant, these cost savings estimates are subject to caveats and
should be evaluated cautiously. Cost comparisons between public and private prisons require
a number of adjustments because prisons differ on several factors, including size and location;
facility design and age; the physical and mental health of the inmates served; inmate custody
level; and the educational, vocational, behavioral, and substance abuse programs provided.
Adjustments used to ‘equalize’ Florida’s public and private prisons historically have been
controversial.” Further, in a 2011 report to the Senate Criminal Justice Committee, OPPAGA
noted that although the state had “achieved reductions in some costs” through private prisons,
“comparability issues limit the conclusiveness of cost savings analyses.” See:

Private Corrections Institute, 1114 Brandt Drive, Tallahassee, FL 32308
850-980-0887 -

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January 2012

Quotes and Findings:
“There is a mixed bag of research out there. … It’s not as black and white and cut and dried as
we would like.” – CCA spokesman Steve Owen, on cost savings, quoted in a New York Times
article, May 18, 2011.
“There is no compelling evidence that the privatization of prisons has actually resulted in savings
…. there is no definitive conclusion regarding the actual cost differences between prisons
operated by [the Florida] DOC and those that are privately operated.” – Florida Center for Fiscal
and Economic Policy, “Are Florida’s Private Prisons Keeping Their Promise?” April 2010.
“[A]ccording to the Department’s Fiscal Year 2009 Operating Per Capita Cost Report, the State
paid private prisons a higher per inmate rate than it spent on equivalent services at state-operated
facilities in fiscal year 2009. After adjusting state and private rates to make them more
comparable, the Department’s study found that rates paid to private facilities were higher for
both minimum- and medium-custody beds—the two categories of beds for which the Department
contracts.” – Arizona Office of the Auditor General, “Department of Corrections - Prison
Population Growth,” September 2010, Report No. 10-08.
“Results suggest privately managed prisons provide no clear benefit or detriment. Cost savings
from privatizing prisons are not guaranteed and appear minimal. Quality of confinement is
similar across privately and publicly managed systems, with publicly managed prisons delivering
slightly better skills training and having slightly fewer inmate grievances.” – University of Utah,
Utah Criminal Justice Center, College of Social Work, “Prison Privatization: A Meta-Analysis
of Cost Effectiveness and Quality of Confinement Indicators,” April 26, 2007.
“Results vary somewhat, but when inconsistencies and research errors are adjusted the savings
associated with investing in private prisons appear dubious. Even minimal savings are far from
guaranteed, and many studies claiming otherwise have been criticized for their methodology.
The available data belies the oft-claimed economic benefits of private contracting, and points to
the practice being an unreliable approach toward financial stability.” – The Sentencing Project,
“Too Good to be True: Private Prisons in America,” January 2012.

Private Corrections Institute, 1114 Brandt Drive, Tallahassee, FL 32308
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January 2012

“[T]he state now budgets on average about $56 per inmate per day for each additional prison
inmate – often referred to as overcrowding costs per inmate. By comparison, the contracted rate
for ... new out of state [private] prison beds is higher, about $63 per inmate per day.”
– California Legislative Analyst’s Office (LAO), in a 2007 letter to state Senator Gloria Romero.
Cited in a Private Corrections Institute press release, May 21, 2010.
“Contrasting the inaccurate per diem rate in [a 2010 report by the Reason Foundation] with the
cost of housing inmates in out-of-state private prisons cannot even be considered an apples-tooranges comparison. It’s more like an apples-to-fish comparison.” – Ken Kopczynski, Private
Corrections Institute Director, in the same May 21, 2010 press release.
“We’ve tried it and it did not work. In my opinion, they can’t do it better for less.”
– Arkansas Dept. of Correction Director Larry Norris, on cost savings through prison
privatization, quoted in Arkansas News, January 13, 2006.
“I’ve seen so many different attempts to compare the two that I don’t know if there is a simple
way to evaluate one versus the other.” – ACA president and Davidson County (TN) Sheriff Daron
Hall, who worked for CCA in the 1990s, on comparing private vs. public prison costs.,2

The Private Corrections Institute (PCI) is a non-profit citizen watchdog organization that works
to educate the public about the significant dangers and pitfalls associated with the privatization
of correctional services. PCI maintains an online collection of news reports and other resources
related to the private prison industry, and holds the position that for-profit prisons have no place
in a free and democratic society. For more information:

Private Corrections Institute, 1114 Brandt Drive, Tallahassee, FL 32308
850-980-0887 -