The American Legal Exchange Council (ALEC) has been convincing state legislators to adopt laws with mandatory, determinate sentencing guidelines for a long time now. ALEC started this project back in the 1970s, when people were panicked about the high crime rate.
Liberals were concerned about inconsistent sentences being handed out by different judges for the same crime. Politicians in both parties contended that the laws gave too much leeway for judges. Senator Edward Kennedy was an early advocate for determinate sentencing. Conservatives gave speeches about bleeding heart liberals and judges who were soft on crime.
States began replacing indeterminate sentencing laws with determinate sentences. Republican legislators vied with each other to see who could be toughest on crime. To many voters, being tough on crime meant getting tough with African Americans, whom many white people, north and south, believed to be a criminal class. Such beliefs resulted in a disproportionate number of arrests and convictions of African-Americans: in 2000, according to records in seven states, 80-90% of drug offenders sent to prison were African-Americans.1
ALEC has been pushing harsh sentencing laws since 1975. They were responsible for enacting “three strikes” and “truth in sentencing” laws in 27 states. Three strikes laws sentenced a person who was convicted of a third crime, no matter how minor, to life in prison without possibility of parole. Truth in sentencing laws replaced the discretion of judges with definite lower and upper limits for sentences. Prisoners could not be released before the lower limit, nor could they be released before serving 85% of the upper limit.
Truth in sentencing laws mandated higher sentences for drug offenders, and pushed the average time served for drug offenses in federal prison from 17 months to 47 months. The result of these "three strikes" and "truth in sentencing" laws was that drug offenders were more likely to spend time in prison than those arrested for murder, assault, burglary, or rape.2
ALEC is also responsible for the Minimum-Mandatory Sentencing Act that established sentencing guidelines for drug offenses, and which is now in effect in many states. This model law erased the distinction between mere possession of a drug and possession for sale, so that a marijuana user faces the same penalty as a marijuana seller working for a cartel. The law also increases penalties for higher-ups, but the higher-ups are seldom arrested and can escape prison sentences through clever lawyers and legal technicalities.
For example, the executives of HSBC Bank, the largest bank in Europe, failed to monitor $690 billion in wire transfers and $9.4 billion in money order sales from Mexico. HSBC's failure to monitor these sales, as required by law, permitted Mexican and Colombian drug cartels to launder more than $881 million in profits from their illegal enterprises. Not only did these executives escape prison, their failure to monitor these transactions also means that cartel kingpins will never stand trial because the proof of their crimes—the record of money received for drugs—was erased by the bank.
The judge in the case fined the bank $1.9 billion but imprisoned no one. A company can't be imprisoned, he wrote.3 Contrast this with the fate of Weldon Angelos, a first offender and father of two, who was sentenced to 55 years in jail for selling $350 worth of marijuana to undercover police officers.
Packing the prisons for the private prison industry
The net effect of these changes was an increase in the prison population in states where they were passed. Another effect was an increase in the demand for private prisons. Corrections Corporation of America (CCA) and the Geo Group (formerly Wackenhut) were the first corporations to build prisons and manage them for state governments. By 2010 the two companies were netting $2.9 billion in annual profits from contracts with state and federal governments.
In a meeting in Washington, DC, in 2010, CCA representatives and ALEC member Russell Pearce conceived and drafted Arizona S.B. 1070, aka the "Papers Please" bill . S.B. 1070 gave Arizona police the right to stop people and ask them for their citizenship papers. CCA promised the City Manager of Benson that the law would bring prosperity to his small town. It also brought prosperity to CCA: in 2011, CCA reported that immigrant detention was a significant portion of corporate revenue. CCA successfully convinced Arizona to strengthen its anti-immigrant laws in order to increase its own profits from prison management. After S.B. 1070 passed, 30 of its 38 legislative co-sponsors received campaign donations from CCA and Geo.
ALEC has also helped corporations profit from the increase in prison populations by pushing the Prison Industries Act (PIA) model legislation. PIA permits prisons to "rent out" inmates to corporations at sub-minimum wage rates. In Florida, the prisons then deduct 40% of the prisoner's already sub-minimum wages for “room and board”. Many of these prisons are “for-profit” private corporations which thus benefit directly from their state and federal lobbying efforts, as one filthy "hand" washes the other.
1National Lawyers Guild, High Crimes: Strategies to Further Marijuana Legalization Initiatives 11, NLG 2013, https://docs.google.com/gview?embedded=true&url=https://www.nlg.org/sites/default/files/High%2520Crimes-Digital_0_0_1.pdf
2Human Rights Watch, United States: Punishment and Prejudice, Racial Disparities in the War on Drugs (2000), http://www.hrw.org/reports/2000/usa/Rcedrg00-03.htm#P241_48009.
3U.S. v. HSBC Bank USA NA, 12-cr-00763 20, U.S. District Court, Eastern District of New York (Brooklyn), http://www.justice.gov/usao/nye/pr/2013/doc/HSBC%20Memorandum%20and%20Order%207.1.13.pdf